The Ohio Court of Appeals on June 24 enforced liability insurance for a company that had distributed opiates, finding that the insured had a duty to defend the insured in lawsuits filed by government agencies and pending in the Opioid Multidistrict Litigation.  Acuity v. Masters Pharm., No. C-190176 (Ohio Ct. App. June 24, 2020).  A unanimous three-judge panel overturned a trial court decision that had accepted arguments of insurers that, because the underlying suits were brought by government entities seeking to recover for “their own economic loss,” the damages sought did not qualify as “damages because of or for a ‘bodily injury.’” Relying on the Seventh Circuit’s decision in Cincinnati Ins. Co. v. H.D. Smith, L.L.C., 829 F.3d 771 (7th Cir. 2016), the Court of Appeals acknowledged that “[t]he governmental entities are seeking their own economic losses,” but concluded that some losses at issue “(such as medical expenses and treatment costs) are arguably ‘because of’ bodily injury,” bringing policyholder claims “potentially within the policies’ coverage.”  Slip op. ¶ 30.  The trial court thus had erred in finding that the insurer had no duty to defend in the underlying opioid cases.

In reaching this decision, the Court of Appeals also cited firearm coverage decisions that upheld liability insurers’ duty to defend lawsuits against policyholder manufacturers by governmental entities seeking to recover costs of medical care and emergency services incurred as a result of violence caused by the insured’s products. Beretta U.S.A. Corp. v. Fed. Ins. Co., 117 F. Supp. 2d 489, 496 (D. Md. 2000), aff’d, 17 Fed. Appx. 250 (4th Cir. 2001).

The Court of Appeals also held that a policyholder’s knowledge of a risk does not preclude coverage as a “known loss.”  Indeed, the knowledge of a risk is why people buy insurance.  The appeals court thus agreed with the policyholder holding that, while MPI “may have been aware there was a risk that if it filled suspicious orders, diversion of its products could contribute to the opioid epidemic,” such knowledge “is not enough to bar coverage under the loss-in-progress provision.”