In the case of Mercury Insurance vs. Bautista, 35 Fla. L. Weekly D454 (2010) the Fourth District Court of Appeal held that Mercury Insurance did not owe coverage to an employee sued by another employee for negligence pursuant to an exclusion that provides that Mercury does not have a duty to defend for:
Bodily injury to an employee of an insured… arising out or within the course of employment, except with respect to a domestic employee if benefits are neither paid nor required to be provided under any workers’ compensation, disability benefits or other similar law. This exclusion applies to whether the insured may be liable as an employer or in any other capacity and to any obligation to share damages with or repay someone else who must pay damages because of the injury.
In Mercury Insurance vs. Bautista, two employees of Charlie’s Tree Service, Inc. (hereinafter “Charlie’s”) were involved in a motor vehicle accident while passengers in a vehicle owned by Charlie’s. One of the employees, Bautista, settled with Charlie’s for workers’ compensation benefits, but then sued the other employee, Caviaro. The Fourth District ruled that pursuant to the above-referenced exclusion, Mercury did not owe Caviaro a defense to the lawsuit.