The U.S. Fifth Circuit Court of Appeals certified to the Texas Supreme Court the question of whether it may refer to extrinsic evidence in determining the duty to defend. State Farm Lloyd’s v. Richards, No. 18-10721, 2019 U.S.App. LEXIS 27221 (5th Cir. Sept. 9, 2019).
The Supreme Court has had several occasions over the years to find that an exception exists to the “eight-corners” rule, but, while acknowledging that Texas courts have applied such an exclusion, it has neither rejected nor accepted such an exception on each occasion. The Supreme Court has agreed to address the question. Richards v. State Farm, Lloyd’s Case No. 19-0802.
Briefing is under way, and oral argument will be held January 8, 2020.