In a minority of states, the four corner rule is strictly enforced; even if the insurer has extrinsic evidence that would trigger coverage:

A Wisconsin court rejected a request from the plaintiff to consider extrinsic evidence when determining whether the duty to defend had been triggered by the complaint.
The duty to defend in Texas is not affected by facts learned pre-suit.
Under Louisiana's "Eight Corners Rule," the court must assess whether there is a duty to defend by applying the allegations of the complaint to the underlying policy without resorting to extrinsic evidence.
Hawaii adheres to the complaint allegation rule; the duty to defend is limited to situations where the underlying pleadings have alleged a claim for relief, which falls within the terms for coverage of the insurance contract.However, the Hawaii Supreme Court has cautioned that courts should carefully examine the allegations of a complaint to ensure that the plaintiffs are not, through artful pleading, bootstrapping themselves to obtain insurance coverage by asserting claims of negligence based on facts that reflect intentional rather than negligent conduct.
Arkansas and Rhode Island also do not allow for the consideration of extrinsic evidence in making a determination of whether the insurer's duty to defend and indemnify has been triggered.

Colorado also follows the minority approach. However, the United States Court of Appeals for the Tenth Circuit, the appellate court for the federal circuit to which Colorado is assigned, has opined that the Colorado Supreme Court would carve out two exceptions to the four corner rule:

In Pompa v. Am. Family Mut. Ins. Co. the Court of Appeals held that it will consider extrinsic evidence that constitutes an indisputable fact that is not an element of either the cause of action or a defense in the underlying litigation. Pompa is based on the expectation that the Colorado Supreme Court would recognize an exception to the complaint rule if a claimant's complaint contained allegations made in bad faith and framed to trigger an insurance policy.

In AIMCO v. Nutmeg Ins. Co. a second exception was identified: considering extrinsic evidence in the form of an allegation contained in several separate—but factually related—complaints. The AIMCO court predicted that the Colorado Supreme Court would recognize a narrow exception to the four corners rule requiring an insurer to consider facts of which it is aware in parallel complaints that tend to show a duty to defend as this "would not undercut an insured's legitimate expectation of a defense."³

To date, the Colorado Supreme Court has not adopted these two exceptions.

Special Reports /

Using Extrinsic Evidence To Determine an Insurer’s Duty to Defend

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