Acuity v. Masters Pharmaceuticals, Inc. , 2022 Ohio 3092 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Acuity v. Masters Pharmaceutical, Inc., Slip Opinion No. 2022-Ohio-3092.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-3092ACUITY, APPELLANT v. MASTERS PHARMACEUTICAL, INC., APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Acuity v. Masters Pharmaceutical, Inc., Slip Opinion No.
2022-Ohio-3092.]
Insurer of distributor of pharmaceutical products, including prescription opioids,
does not owe a duty to defend its insured in lawsuits brought by
governmental entities seeking economic damages for losses caused by the
opioid epidemic—The insurance policies cover “damages because of bodily
injury,” and the damages sought by the governmental entities do not fall
within that coverage.
(No. 2020-1134—Submitted September 8, 2021—Decided September 7, 2022.)
APPEAL from the Court of Appeals for Hamilton County, No. C-190176,
2020-Ohio-3440.
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O’CONNOR, C.J.
{¶ 1} In this appeal, we consider whether appellant, Acuity, an insurer,
owes a duty to defend its insured, appellee, Masters Pharmaceutical, Inc.
(“Masters”), in several lawsuits brought by cities and counties in West Virginia,
Michigan, and Nevada (“the governments”) for economic losses caused by the
opioid epidemic. The dramatic increase in the acceptance and use of highly
addictive prescription opioids to treat chronic pain in recent years has contributed
to the hundreds of thousands of opioid-related overdoses in the United States—now
commonly referred to as the opioid-overdose epidemic. Centers for Disease
Control and Prevention, Prescription Opioids, https://www.cdc.gov/opioids
/basics/prescribed.html (accessed Apr. 27, 2022) [https://perma.cc/47KE-UGY9];
Centers for Disease Control and Prevention, Understanding the Opioid Overdose
Epidemic, https://www.cdc.gov/opioids/basics/epidemic.html (accessed Apr. 27,
2022) [https://perma.cc/Q96N-2DA2]. The underlying lawsuits represent a
growing number of actions initiated by governmental entities against opioid
manufacturers, distributors, and retailers for their alleged improper marketing and
inappropriate distributing of prescription opioids across the country.
{¶ 2} Masters purchased several commercial general liability insurance
policies from Acuity, and those policies impose on Acuity a duty to defend the
insured against any suit seeking “damages because of bodily injury.” The trial court
concluded that Acuity does not owe Masters a duty to defend it in the underlying
suits, because the governments seek damages for their own economic losses. The
First District Court of Appeals disagreed, finding that some of the governments’
economic losses are arguably “because of bodily injury,” and reversed the trial
court’s judgment. Because we conclude that Acuity does not owe Masters a duty
to defend, we reverse the judgment of the court of appeals and reinstate the trial
court’s entry of summary judgment in favor of Acuity.
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Relevant Background
{¶ 3} Masters was a wholesale distributor of pharmaceutical products, and
as part of its business, Masters filled and shipped orders of prescription opioids to
pharmacies around the country.1 Twenty-two cities and counties in West Virginia,
Michigan, and Nevada have sued Masters,2 as well as several pharmaceutical
manufacturers, other distributors, and retailers. These underlying suits are
substantially similar to each other and share common allegations and claims against
Masters. The governments allege that Masters failed to monitor and report
suspicious orders of prescription opioids and to implement measures to prevent the
filling of improper prescriptions and that it thereby failed to maintain effective
controls against the diversion of prescription opioids into the illicit market in
violation of federal and state laws. The governments claim that Masters’s conduct
“greatly contributed to the vast increase in opioid overuse and addiction” and
caused “a public-health and law-enforcement crisis” in their respective
communities. Based on these allegations, the governments assert claims for public
nuisance, negligence, and, in a majority of the complaints, violations of the
Racketeer Influenced and Corrupt Organization (“RICO”) Act, among other laws.
They allege that Masters’s conduct contributed to the opioid epidemic that
continues to plague their communities, resulting in the governments’ suffering
economic losses, such as increased law-enforcement expenses, judicial
expenditures, prison and public-works costs, emergency and medical-care-services
costs, substance-abuse-treatment expenses, and lost economic opportunity.
{¶ 4} Between July 26, 2010, and July 26, 2018, Masters purchased eight
commercial general liability insurance policies from Acuity (each policy covering
1. As of January 1, 2018, Masters is a shell company and is no longer in operation.
2. The majority of these actions have been consolidated and transferred to a federal multidistrict-
litigation court in the Northern District of Ohio as part of the national prescription-opioid litigation.
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one year). The policies state that under certain circumstances, Acuity has a duty to
defend Masters against lawsuits seeking “damages because of bodily injury” and a
duty to indemnify Masters for damages it may be legally obligated to pay. Acuity
filed an action in the Hamilton County Court of Common Pleas for a declaratory
judgment that it owed no duty to defend or indemnify Masters in the underlying
suits. Masters counterclaimed for a declaration that Acuity owed both duties.
{¶ 5} Both parties moved for summary judgment. In support of its motion,
Acuity argued that the underlying suits do not fall within the policy coverage,
because the governments seek damages for their own economic injury, not for any
bodily injury, and because Masters knew of the opioid epidemic prior to purchasing
the policies from Acuity. Masters countered that the policies provide coverage
because the governments seek, at least in part, “damages because of bodily injury,”
such as medical and treatment costs they have incurred because of opioid addiction
and overdoses sustained by their citizens.
{¶ 6} The trial court ultimately agreed with Acuity for two reasons. First,
it concluded that the complaints in the underlying suits do not seek “damages
because of bodily injury,” because the governments seek damages solely for their
own economic loss, not damages for any citizen’s opioid addiction. And second, it
found that Masters knew prior to the initial policy period of the alleged “bodily
injury”—i.e., prescription opioid addiction—thereby precluding coverage under
the policies’ loss-in-progress provisions. It accordingly granted Acuity’s motion
for summary judgment, denied Masters’s motion for summary judgment, and
declared that Acuity did not owe a duty to defend or indemnify Masters in the
underlying suits.
{¶ 7} Masters appealed and argued that the trial court erred in determining
that Acuity had no duty to defend it in the underlying suits. The First District agreed
and reversed the trial court’s judgment. It concluded that the policies expressly
provide for organizations, like the governments in the underlying suits, to claim
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“economic damages, as long as the damages occurred because of bodily injury.”
2020-Ohio-3440, ¶ 17. Accordingly, it determined that the policies covered some
of the governments’ alleged economic losses, such as medical expenses and
treatment costs, because those losses are arguably “because of bodily injury”—i.e.,
because of physical harm from opioid addiction. Id. at ¶ 30. The First District
further concluded that the policies’ loss-in-progress provisions did not preclude
coverage, because it was unclear whether some of the governments’ damages were
known to Masters prior to the initial policy period. Id. at ¶ 50. It therefore held
that Acuity has a duty to defend Masters in the underlying suits, and it remanded
the case for the trial court to grant summary judgment in favor of Masters. Id. at
¶ 54.
{¶ 8} We accepted Acuity’s discretionary appeal, which presents two
propositions of law. See 160 Ohio St.3d 1495, 2020-Ohio-5634, 159 N.E.3d 277.
In its first proposition of law, Acuity argues that commercial general liability
policies, such as those at issue here, cover an insured’s liability for an occurrence
causing “bodily injury” to a specific, identifiable person and do not cover an
insured’s liability for corporate conduct that allegedly caused governmental entities
to sustain economic losses for increased governmental services. In its second
proposition, Acuity asserts that whether the loss-in-progress provision within the
policies bars coverage turns on whether prior to the policy period the insured knew
that the “bodily injury” had occurred, in whole or in part, and not on whether the
insured knew of the damages claimed in the underlying suits. Because we resolve
this case on the first proposition of law, we need not consider Acuity’s second
proposition.
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Analysis
The commercial general liability policies
{¶ 9} Between 2010 and 2018, Acuity issued eight commercial general
liability policies to Masters, all of which include the following language regarding
coverage for bodily injury:
(a) [Acuity] will pay those sums that [Masters] becomes
legally obligated to pay as damages because of bodily injury or
property damage to which this insurance applies. [Acuity] will have
the right and duty to defend [Masters] against any suit seeking those
damages. However, [Acuity] will have no duty to defend [Masters]
against any suit seeking damages for bodily injury or property
damage to which this insurance does not apply.
***
(b) This insurance applies to bodily injury and property
damage only if:
(1) The bodily injury or property damage is caused by an
occurrence that takes place in the coverage territory;
(2) The bodily injury or property damage occurs during the
policy period; and
(3) Prior to the policy period, no insured * * * knew that the
bodily injury or property damage had occurred, in whole or in part.
If [an] insured * * * knew, prior to the policy period, that the bodily
injury or property damage occurred, then any continuation, change
or resumption of such bodily injury or property damage during or
after the policy period will be deemed to have been known prior to
the policy period.
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The above language is set forth under Section I, Coverage A(1) of the basic insuring
agreement in each policy. “Coverage A” in standard commercial general liability
policies provides for bodily-injury and property-damage liability coverage. See 20-
129 Appleman, Insurance Law and Practice, Section 129.2 (2d Ed.2011).
{¶ 10} The policies define “bodily injury” as “bodily injury, sickness or
disease sustained by a person, including death resulting from any of these at any
time.” The policies do not define “damages,” but they do state that “damages
because of bodily injury include damages claimed by any person or organization
for care, loss of services or death resulting at any time from the bodily injury.”
Coverage A (1)(b)(3) of the policies is often referred to as the “loss-in-progress” or
“known-loss” provision. See, e.g., Ohio Cas. Ins. Co. v. Mansfield Plumbing
Prods., L.L.C., 5th Dist. Ashland No. 2011-COA-009, 2011-Ohio-4523, ¶ 10;
Kaady v. Mid-Continent Cas. Co., 790 F.3d 995, 999 (9th Cir.2015).
Applicable law
{¶ 11} We review de novo a decision granting summary judgment based on
the interpretation of an insurance contract. Westfield Ins. Co. v. Hunter, 128 Ohio
St.3d 540, 2011-Ohio-1818, 948 N.E.2d 931, ¶ 12 (plurality opinion), citing
Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 652
N.E.2d 684 (1995). An insurance policy is a contract whose interpretation is a
matter of law, Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d
146 (1978), paragraph one of the syllabus, and like any other contract, its terms are
to be given their plain and ordinary meaning, Gomolka v. State Auto. Mut. Ins. Co.,
70 Ohio St.2d 166, 167-168, 436 N.E.2d 1347 (1982). Courts must examine an
insurance contract as a whole and presume that the language used in the policy
reflects the intent of the parties. Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,
2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11. Consequently, courts cannot read
insurance policies in an overly circumscribed fashion. Sauer v. Crews, 140 Ohio
St.3d 314, 2014-Ohio-3655, 18 N.E.3d 410, ¶ 13, citing Gomolka at 172.
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{¶ 12} An insurer’s duty to defend is both broader than and distinct from its
duty to indemnify. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241,
2007-Ohio-4948, 874 N.E.2d 1155, ¶ 19, citing Socony-Vacuum Oil Co. v.
Continental Cas. Co., 144 Ohio St. 382, 59 N.E.2d 199 (1945), paragraph one of
the syllabus. When determining whether an insurer has a duty to defend, we look
to the scope of the allegations of the underlying complaint filed against the insured.
Motorists Mut. Ins. Co. v. Trainor, 33 Ohio St.2d 41, 294 N.E.2d 874 (1973),
paragraph two of the syllabus. “If the allegations state a claim that potentially or
arguably falls within the liability insurance coverage, then the insurer must defend
the insured in the action.” Ward v. United Foundries, Inc., 129 Ohio St.3d 292,
2011-Ohio-3176, 951 N.E.2d 770, ¶ 19. But an insurer need not defend an action
when all the claims are clearly and indisputably outside the policy coverage.
Preferred Risk Ins. Co. v. Gill, 30 Ohio St.3d 108, 113, 507 N.E.2d 1118 (1987).
{¶ 13} There is a growing and diverging body of case law on the issue
before us: whether an insurance policy that provides coverage for “damages
because of bodily injury” covers claims brought by governmental entities to recover
economic costs they incurred as a result of the opioid epidemic. Some courts have
interpreted policy language that is nearly identical to the language at issue in the
policies here and have held that similar opioid-related lawsuits filed by
governmental entities invoked the insurer’s duty to defend because those entities
sought “damages because of bodily injury.” See, e.g., Cincinnati Ins. Co. v. H.D.
Smith, L.L.C., 829 F.3d 771, 775 (7th Cir.2016); Giant Eagle, Inc. v. Am. Guar. &
Liab. Ins. Co., 499 F.Supp.3d 147 (W.D.Pa.2020) (concluding that the insurance
company had a duty to defend the insured distributor because the counties’
underlying lawsuits alleged bodily injuries such as opioid abuse, addiction,
overdose, and death suffered by their citizens and sought to recover costs related to
emergency medical treatment, detoxification and addiction services, and recovery
treatment).
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{¶ 14} But other courts have concluded that no duty to defend existed in
such lawsuits because the governments sought to recover their own increased
economic costs resulting from a public-health crisis and did not tie their claims to
an individual opioid-related injury, which would require proof of that injury. See,
e.g., ACE Am. Ins. Co. v. Rite Aid Corp., 270 A.3d 239, 253-254 (Del.2022);
Westfield Natl. Ins. Co. v. Quest Pharmaceuticals, Inc., W.D.Ky. No. 5:19-cv-
00083-TBR, 2021 WL 1821702, *7 (May 6, 2021) (holding that because the
governmental entities in the underlying suits did “not need to provide proof that
[their] citizens or patients experienced any bodily injury,” they did not seek
damages because of bodily injury).
{¶ 15} Like the appellate court in its decision below, Masters heavily relies
on the decision of the United States Court of Appeals for the Seventh Circuit in
H.D. Smith. In that case, the Seventh Circuit interpreted a liability policy that,
similar to the one before us, required the insurer to defend the insured against suits
that seek damages “because of bodily injury.” Id. at 773. The state of West
Virginia sued the insured pharmaceutical distributor for its role in the opioid
epidemic and alleged that it had incurred “ ‘excessive costs related to diagnosis,
treatment and cure of addiction’ ” and had provided “ ‘necessary medical care,
facilities, and services for treatment of citizens’ who [could not] afford their own
care.” Id. at 775. The Seventh Circuit concluded that the insurer had a duty to
defend the pharmaceutical distributor in the underlying litigation because West
Virginia alleged that its citizens had suffered opioid-related bodily injuries and the
state sought to recover as damages the money it had spent caring for those injuries.
Id. at 774. In so holding, the court used an analogy involving a hypothetical West
Virginian who suffered bodily injury because of his opioid addiction. The
hypothetical man’s mother spent her own money to care for her injured son and
brought a suit against the pharmaceutical distributor seeking recovery of those
costs. The court noted that the insurer conceded that its policy would cover the
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mother’s negligence claim in that situation, and the court reasoned that a state’s
seeking damages related to medical care and services it provided for its own citizens
is no different than a mother’s seeking damages for her own losses she sustained in
caring for her son. Id.
{¶ 16} In ACE Am. Ins. Co., the Delaware Supreme Court rejected this
analogy. In that case, the Delaware Supreme Court held that the insurer owed no
duty to defend the insured drugstore company against lawsuits filed by Ohio
counties seeking “economic damages” for losses incurred as a “direct and
proximate result” of the company’s failure to effectively prevent the diversion of
prescription opioids into the illicit market. 270 A.3d at 241, 246. The liability
policy imposed a duty to defend against lawsuits seeking damages because of
“personal injury,” which was defined in part as “bodily injury.” Id. at 243. The
court acknowledged that the underlying parties brought direct claims asserting their
own losses in both the Seventh Circuit’s hypothetical case and in its case. Id. at
253. However, it determined that the cases differ because the hypothetical mother’s
claim would require proof that the alleged harm caused by the insured was the
immediate and direct result of her son’s injury, whereas the counties’ “alleged
damages do not depend on proof of bodily injuries.” Id. at 253-254.
{¶ 17} The Delaware court reasoned that the policy required “more than
some linkage between the personal injury and damages to recover ‘because of’
personal injury”—namely, that the underlying claims stem from a bodily injury and
the damages sought be tied to that specific bodily injury. Id. at 250. Based on the
nature of the allegations in the underlying complaints, the court determined that the
counties’ claims were not tied to an individual injury but to a public-health crisis,
because the counties sought damages for increased economic costs caused by the
opioid epidemic. Id. at 253. It therefore concluded that the counties’ suits did not
invoke the insurer’s duty to defend as the suits did not seek damages because of
personal injury. Id. at 253-254.
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The underlying complaints filed against Masters
{¶ 18} With the above in mind, we begin with a review of the underlying
complaints and the scope of the allegations against Masters. As noted above, the
underlying complaints filed by the various West Virginia, Michigan, and Nevada
governmental entities are substantially similar and often use comparable, if not
identical, language. Because the allegations in the complaint filed by Genesee
County, Michigan, against Masters mirror several of the important and relevant
allegations set forth in the other underlying complaints, we use it as a
representative.
{¶ 19} Genesee County seeks damages for losses it suffered due to
Masters’s failure “to effectively monitor and report suspicious orders of
prescription opioids” and “to implement measures to prevent the filling of improper
prescriptions.” It claims that Masters’s conduct “greatly contributed to the vast
increase in opioid overuse and addiction” and “directly caused a public-health and
law-enforcement crisis,” thereby forcing Genesee County “to shoulder tremendous
costs” and “an exorbitant financial burden.” Accordingly, it seeks “damages [for
losses] caused by the opioid epidemic,” including “increased emergency response
costs,” “law enforcement and incarceration costs,” “addiction treatment costs,” and
“medical costs,” as well as “accelerated economic blight,” which it claims has
resulted in “diminished property values and a loss in tax revenue.”
{¶ 20} Acuity argues that the underlying complaints demonstrate that the
governments seek reimbursement for costs for increased governmental services
provided to the public on account of the opioid epidemic, not for bodily injury
experienced by any specific person or persons. It emphasizes that any claim for
damages on account of an injury sustained by society as a whole or by unidentified
members of the public is insufficient to constitute a claim for “damages because of
bodily injury.” Accordingly, Acuity maintains that to be covered, a claim must
seek damages either directly or derivatively for a bodily injury sustained by a
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person—neither of which, it contends, the governments claim in their underlying
complaints. Stated differently, because the governments’ claims for increased
public-service costs are untethered to any one person’s bodily injury—but, rather,
to the costs of the opioid epidemic generally—Acuity asserts that the underlying
suits do not seek “damages because of bodily injury.” It therefore asserts that the
First District incorrectly interpreted the phrase “damages because of bodily injury”
so broadly as to cover “any liability where bodily injury is a tangential factor.”
{¶ 21} Masters counters that the governments’ complaints do include
allegations regarding specific and identifiable persons who have experienced
opioid-related bodily injuries. It emphasizes that Pocahontas County, West
Virginia, alleges that it “experienced 34 drug overdose deaths per 100,000
population”; Saginaw County, Michigan, pleads that “116 opioid related
hospitalizations” occurred in that county in 2013; and the city of Lansing,
Michigan, claims that in 2015, its fire department administered 243 doses of
Naloxone, a lifesaving, opioid-overdose-reversal drug. Masters stresses that every
dose of Naloxone was administered to a specific person and that every hospital and
treatment-program admission was of a specific person, and it asserts that it is for
these specific costs as to these specific persons that the governments pray for
reimbursement in their complaints. Masters therefore maintains that the losses for
which the governments seek damages include the costs of medical care and other
treatment they provided to their citizens suffering from opioid-related injury,
illness, and death. Based on these allegations, Masters asserts that the underlying
suits fall within the definition of “damages because of bodily injury” set forth in
the policies, which explicitly includes “damages claimed by any * * * organization
for care, loss of services or death resulting * * * from the bodily injury.”
{¶ 22} It is true that some of the complaints include allegations that the
governments’ citizens sustained opioid-related injuries and that the damages sought
by the governments include costs for providing medical care and treatment services.
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But the governments’ theories of relief in the underlying suits are not that specific
opioid-related injuries sustained by their citizens occurred because of Masters’s
alleged failure to prevent the improper diversion of prescription opioids and that
the damages sought flow from the care of those specific opioid-related injuries. For
instance, Lansing, Michigan, does not claim that Masters’s allegedly negligent
conduct proximately caused 243 Lansing citizens’ overdoses in 2015, which
required the fire department to administer 243 doses of Naloxone, and Saginaw
County does not claim that the conduct proximately caused 116 Saginaw County
citizens’ hospitalizations in 2013. Nor do the counties seek recovery for the
medical care provided for those specific opioid-related injuries.
{¶ 23} Rather, the governments’ theories of relief are that Masters’s alleged
failure to prevent the improper diversion of prescription opioids was a “direct and
proximate cause of the opioid epidemic” and the “economic damages” sought are
based on that public-health crisis. Stated differently, the governments seek
damages for their own aggregate economic injuries caused by the opioid epidemic
and not for any particular opioid-related bodily injury sustained by a citizen as a
direct result of Masters’s alleged failures. The governments repeatedly allege in
their complaints that Masters has “created a serious public health crisis,” which is
a public nuisance, and that they bring the underlying actions to force Masters to
“take responsibility for the opioid epidemic that [it has] created.” They also allege
that the “opioid epidemic has caused [the governments] to suffer past, present, and
future damages in the form of the increased expenses of providing public services
that so far exceeds the normal, expected costs.”
{¶ 24} The allegations in the governments’ complaints regarding the
opioid-related overdoses, addiction, and injuries sustained by their citizens
accordingly provide context for their public-nuisance, negligence, and RICO
claims. See Cincinnati Ins. Co. v. Richie Ents., L.L.C., W.D.Ky. No. 1:12-CV-
00186-JHM-HBB, 2014 WL 3513211, *5 (July 16, 2014) (reasoning that the
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underlying claims that “persons suffered physical harm and death due to
prescription drugs only explains and supports the claims of the actual harm
complained of: the economic loss to the State of West Virginia”); Quest
Pharmaceuticals, 2021 WL 1821702, at *7, quoting Health Care Indus. Liab. Ins.
Program v. Momence Meadows Nursing Ctr., Inc., 566 F.3d 689, 695 (7th
Cir.2009) (explaining that the allegations as to opioid-related injuries to citizens
“merely ‘put a human touch’ on the claims”). By highlighting the sheer number of
opioid-related overdoses and hospitalizations that have occurred in their
communities, the governments bolster their claims that Masters’s alleged failure to
prevent the improper diversion of prescription opioids to the public has indeed
created and perpetuated a public-health crisis in their respective jurisdictions and
that the governments have in fact incurred “an exorbitant financial burden” in
combatting that crisis. To be sure, the opioid epidemic, as a public-health crisis,
necessarily relates to bodily injuries, such as opioid addictions, hospitalizations,
and deaths. But allegations of bodily injury alone do not automatically bring an
action within the coverage for “damages because of bodily injury.” See Barron v.
NCMIC Ins. Co., D.Mass. No. 17-cv-11969-ADB, 2018 WL 2089357, *6 (May 4,
2018) (concluding that the insurer had no duty to defend its insureds
[chiropractors], because, even assuming that the chiropractors’ patients had in fact
been injured, the allegations did not “conceivably allow [the underlying plaintiff—
the patients’ insurer, who had paid the chiropractors’ allegedly fraudulent medical
bills] to in any way recover for such an injury”).
{¶ 25} In sum, the governments tie their alleged losses to the aggregate
economic injuries they have experienced as a result of the opioid epidemic, not to
any particular bodily injury. With this in mind, we now consider whether, based
on the plain language of the policies, the underlying suits seek “damages because
of bodily injury,” thereby invoking a duty to defend.
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The plain language of the policies requires more than a tenuous connection
between the damages sought and the bodily injury
{¶ 26} Central to the question before us is how to interpret the phrase
“damages because of bodily injury” as used in the commercial general liability
policies at issue here. Acuity, on the one hand, maintains that this phrase cannot
be read broadly to include damages for increased economic costs that are untethered
to any person’s bodily injury. Masters, on the other hand, asserts that “because of”
requires “only a causal connection between the bodily injury and the alleged
damages” and that the underlying suits therefore fall within coverage since the
governments seek damages because of the bodily injuries allegedly caused by
opioids and sustained by their citizens.
{¶ 27} Masters’s argument relies on the following premise: Acuity has a
duty to defend because the governments allege that they have suffered economic
loss caused by the opioid epidemic, which in turn was caused by the numerous
opioid-related injuries sustained by their citizens. By this, Masters asks us to
interpret “damages because of bodily injury” so expansively as to include any suit
in which the damages sought merely relate to bodily injury, regardless of whether
the claims are in fact tied to any particular bodily injury sustained by a person. For
the reasons set forth below, we decline to adopt such an expansive interpretation.
{¶ 28} The ordinary meaning of “because of” is “by reason of” or “on
account of.” Webster’s Third New International Dictionary 194 (2002). Some
courts have interpreted the phrase “because of bodily injury” broadly, and Masters
relies on many of these cases. See, e.g., H.D. Smith, 829 F.3d at 774; Natl. Assn.
for the Advancement of Colored People v. Acusport Corp., 253 F.Supp.2d 459, 463
(E.D.N.Y.2003) (concluding that a duty to defend existed when the underlying
complaint filed against the insured, a wholesale distributor of firearms, sought
“damages because of bodily injury,” including costs to establish firearm-related
educational programs and to inspect gun dealers, because “there [was] a connection,
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however remote, between injuries to persons and liability for that injury of the
insured”); Beretta U.S.A., Corp. v. Fed. Ins. Co., 117 F.Supp.2d 489, 496
(D.Md.2000). We find these cases unpersuasive, however.
{¶ 29} First, several of these cases do not apply Ohio law. See, e.g., H.D.
Smith at 773 (applying Illinois law); Acusport Corp. at 463 (applying either Illinois
or New York law [explaining that the result would be the same under either]);
Beretta at 493 (applying Maryland law). And in fact, we cannot find a case in
which Ohio courts have made the distinction that some courts in other states have
between the phrases “because of bodily injury” and “for bodily injury” for purposes
of commercial general liability policies, see, e.g., H.D. Smith at 774 (holding that
the phrase “because of bodily injury” provides “broader coverage than [a liability
policy] that covers only damages ‘for bodily injury’ ” [emphasis sic]). Nor would
such a distinction be relevant here, because the policies use the phrase “because of
bodily injury” interchangeably with “for bodily injury” in Coverage A(1)(a) of the
basic insuring agreement: “We will pay those sums that the insured becomes legally
obligated to pay as damages because of bodily injury * * *. We will have the right
and duty to defend the insured against any suit seeking those damages. However,
we will have no duty to defend the insured against any suit seeking damages for
bodily injury * * * to which this insurance does not apply.” (Emphasis added.)
{¶ 30} Further, reading the insurance policy as a whole, as we must, see
Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, at ¶ 11, the plain
language of the policy does not support such a broad interpretation of “damages
because of bodily injury.” Coverage A(1)(a) outlines the obligation to pay and the
duty to defend. It further states, in Coverage A(1)(b), that the insurance applies to
bodily injury only if (1) the bodily injury is caused by an occurrence in the coverage
territory, (2) the bodily injury occurs during the policy period, and (3) prior to the
policy period, no insured knew that the bodily injury had occurred, in whole or in
part. The third prong is the loss-in-progress provision, and it explains that if the
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insured knew prior to the policy period that the bodily injury had occurred, then
“any continuation, change or resumption” of such bodily injury during or after the
policy period will be considered to have been known prior to the policy period.
{¶ 31} The repeated use of the phrase “the bodily injury” suggests that the
damages sought in the underlying suit need to be tied to a particular bodily injury
sustained by a person or persons in order to invoke coverage under the policies. If
the phrase were interpreted as broadly as Masters argues it should be, it would be
rather difficult to determine whether the bodily injury occurred during the policy
period, was caused by an occurrence in the coverage territory, or had occurred in
whole or in part prior to the policy period.
{¶ 32} The view that the damages in the underlying suit need to be tied to a
particular bodily injury to invoke coverage is consistent with how courts have
interpreted the loss-in-progress provision. Generally, courts have viewed the loss-
in-progress provision narrowly based on its “continuing” language: if the insured
knew prior to the policy period that the bodily injury or property damage occurred,
“then any continuation, change or resumption of such bodily injury or property
damage during or after the policy period” will be considered to have been known
by the insured prior to the policy period. (Emphasis added.) See, e.g., Kaady, 790
F.3d at 999; Quanta Indemn. Co. v. Davis Homes, L.L.C., 606 F.Supp.2d 941, 948-
949 (S.D.Ind.2009). In Kaady, the United States Court of Appeals for the Ninth
Circuit interpreted a loss-in-progress provision like the one here, but the underlying
suit involved property damage. That court noted that this provision precludes
coverage if the insured “knew that the * * * ‘property damage’ had occurred, in
whole or in part.” (Emphasis and ellipsis sic.) Id. at 998. It explained that the use
of the article “the” particularizes the subject that it precedes—i.e., property
damage—and thus indicates that for the provision to preclude coverage, the claimed
property damage in the underlying suit must be the same as the property damage
known to the insured prior to the policy period. Id. Consequently, “an insured’s
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knowledge of one type of damage to property doesn’t automatically constitute
knowledge of any and all damage to the property.” Id. at 998-999. Any other
interpretation, it reasoned, would eviscerate the provision’s “continuing” language:
“[I]f the insured’s knowledge of any damage to any part of the structure
automatically barred coverage of all damage to that structure, it wouldn’t matter
whether the claimed damage was a ‘continuation, change or resumption’ of the
known damage.” Id. at 999. The loss-in-progress provision therefore must be
interpreted as precluding coverage if the claimed damage in the underlying suit is
a “continuation, change or resumption” of that same damage known to the insured
prior to the policy period. Id.
{¶ 33} We ultimately decline to reach the loss-in-progress provision’s
application to the case here based on our resolution of Acuity’s first proposition.
Nevertheless, this narrow interpretation of the loss-in-progress provision helps
focus the lens by which to review the phrase “damages because of bodily injury.”
Determining the loss-in-progress provision’s application necessarily requires
examining whether the specific type of bodily injury alleged in the underlying suit
was a continuation, change, or resumption of that same type of bodily injury
allegedly known by the insured prior to the policy period. See Quanta Indemn. Co.
at 948-949 (holding that the known-loss provision precluded coverage because the
insured knew of the brain-stem injury prior to the policy’s inception and the bodily
injury alleged in the underlying suit was that exact same brain-stem injury [which
allegedly resulted in death during the policy period]). The bodily injury alleged in
the underlying suit therefore must be a particularized injury in order to make the
comparison necessary under the loss-in-progress provision.
{¶ 34} To determine otherwise would be to conclude that “bodily injury”
should be interpreted broadly in one part of the policy, i.e., Coverage A(1)(a), but
narrowly in the following part, i.e., Coverage A(1)(b). Applying such a broad
interpretation in Coverage A(1)(a) would also beg the question: Why would the
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January Term, 2022
policy restrict coverage to bodily injury caused by an occurrence that takes place in
the coverage territory, occurs during the policy period, and is not known to the
insured prior to the policy period if the damages sought need not be tied to any
particular bodily injury sustained by a person? Moreover, applying a broad
interpretation of “bodily injury” in Coverage A(1)(a) of the policy would severely
dilute the application of Coverage A(1)(b), and it would seemingly contradict
precedent from this court, see Cincinnati Ins. Co. v. Anders, 99 Ohio St.3d 156,
2003-Ohio-3048, 789 N.E.2d 1094, ¶ 36 (explaining that the underlying suit fell
outside the scope of coverage because the claimed negligent nondisclosure of the
structural damage was not an “occurrence,” i.e., an accident, that resulted in the
property damage, but instead “an accident that allegedly caused economic
damages”).
{¶ 35} “The concept of ‘bodily injury’ is obviously central to the meaning
of Coverage A.” 20-129 Appleman, Section 129.2; see also Barron, 2018 WL
2089357, at *6 (interpreting a similar liability policy and describing an “injury” as
being “the crucial requirement for a claim to be covered under [the policy]”). The
significance of the term “bodily injury” to the meaning of the insuring agreement
undermines Masters’s expansive view of the phrase “damages because of bodily
injury.” See Wohl v. Swinney, 118 Ohio St.3d 277, 2008-Ohio-2334, 888 N.E.2d
1062, ¶ 22 (rejecting the appellees’ interpretation of the insurance policy because
it “would render meaningless portions of the contract”). Moreover, if the intent
behind the liability policy had been to afford such broad coverage—with “damages
because of bodily injury” encompassing any suit seeking losses that tangentially
relate to a bodily injury sustained by a person—different language would have been
used to make that intent clear. See Stickovich v. Cleveland, 143 Ohio App.3d 13,
37, 757 N.E.2d 50 (8th Dist.2001) (“The term ‘arising out of’ in a liability insurance
policy affords very broad coverage. This court has held that ‘arising out of’ means
‘flowing from’ or ‘having its origin in’ ”); Beaver Excavating Co. v. Testa, 134
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Ohio St.3d 565, 2012-Ohio-5776, 983 N.E.2d 1317, ¶ 31 (“the phrase ‘relating to’
is plainly intended to be interpreted broadly”).
{¶ 36} We therefore conclude that the phrase “damages because of bodily
injury” in the policies before us requires more than a tenuous connection between
the alleged bodily injury sustained by a person and the damages sought. See ACE
Am. Ins. Co., 270 A.3d at 250; Diamond State Ins. Co. v. Chester-Jensen Co., Inc.,
243 Ill.App.3d 471, 477, 611 N.E.2d 1083 (1993) (rejecting an insured’s assertion
that its liability for the state’s economic losses due to state employees’ illness was
covered by its insurance policy, because such an interpretation would “extend [the
policy’s] reach so as to provide coverage for any liability where bodily injury is a
tangential factor”). A sufficient connection will likely be found to exist under
standard commercial general liability polices when the damages sought in the
underlying suit are for losses asserted by (1) the person injured, see, e.g., Fairless
v. Acuity, 1st Dist. Hamilton No. C-210165, 2022-Ohio-10 (holding that insurer
had a duty to defend insured property-management company and property manager
because complaint alleged that plaintiff sustained injuries on insureds’ negligently
maintained premises), (2) a person recovering on behalf of the injured person, see,
e.g., United States Liab. Ins. Co. v. Jenkins, M.D.Ga. No. 7:13-CV-164, 2015 WL
3756046 (June 16, 2015) (holding that insurer had a duty to defend its insured, a
day-care center, in lawsuit brought by parents seeking damages for injuries
sustained by their minor daughter while under the day-care center’s supervision),
or (3) a person or organization that directly suffered harm because of another
person’s injury—in which case, the existence and cause of the injury must be
proved, see, e.g., Cincinnati Ins. Co. v. Robert W. Setterlin & Sons, 10th Dist.
Franklin No. 07AP-47, 2007-Ohio-5094 (holding that insurer had a duty to defend
its insured, a general contractor, against a lawsuit brought by one of its
subcontractors seeking damages for increased workers’ compensation premiums on
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January Term, 2022
account of a bodily injury the general contractor’s negligence caused one of the
subcontractor’s employees).
The underlying suits do not seek “damages because of bodily injury”
{¶ 37} Obviously, the governments’ claims in the underlying suits do not
seek damages for bodily injury sustained by themselves. Nor do they seek damages
for bodily injury on behalf of their injured citizens. In fact, the majority of the
governments disclaim such injuries: “The damages Plaintiff has suffered are not
derivative of third party’s injury or injuries”; “[n]or are [the plaintiff’s] damages
derivative of harm visited upon third party persons or entities not named in this
action.”
{¶ 38} Further, the governments here do not seek damages because of any
particular opioid-related injury sustained by a citizen. Like the Delaware Supreme
Court in ACE Am. Ins. Co., we find the Seventh Circuit’s hypothetical described
above unhelpful and not comparable to the underlying suits here. The mother in
that hypothetical must demonstrate that her son was indeed injured by the insured
pharmaceutical distributor’s allegedly negligent distribution of the product and that
the financial harm to her (the money she spent caring for her son) was because of
that injury. See, e.g., Roberts v. Luneau-Gordon, 2d Dist. Montgomery No. 15212,
1995 WL 703898, *5-6 (Nov. 29, 1995) (wherein the parents’ claims for medical
expenses, loss of consortium, and negligent infliction of emotional distress failed
because the parents could not prove that the doctor’s conduct proximately caused
the injury to their child); Rouse v. Riverside Methodist Hosp., 9 Ohio App.3d 206,
212, 459 N.E.2d 593 (10th Dist.1983) (explaining that a parent may “recover from
the wrongdoer the reasonable value of the care or attendance which he himself
renders to his child as the result of a negligent injury”). In other words, the
hypothetical mother’s claim is tied to a particular bodily injury and depends on
proof of bodily injury to her son. ACE Am. Ins. Co. at 253; Quest Pharmaceuticals,
2021 WL 1821702, at *7; see also Simmons v. Hertzman, 99 Ohio App.3d 453,
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459, 651 N.E.2d 13 (1st Dist.1994) (explaining that parents’ direct claim for
medical expenses to care for their injured daughter failed because they did not
allege that the injury was proximately caused by the allegedly negligent procedure).
Consequently, the hypothetical falls within the third category of sufficient
connection noted above; the mother is a claimant who suffered her own losses (i.e.,
medical expenses) because of another’s bodily injury (her son’s opioid addiction)
and who must demonstrate the existence and cause of that injury to recover her
losses.
{¶ 39} Unlike the hypothetical mother, however, the governments in the
underlying suits do not tie their alleged economic losses to particular bodily injuries
sustained by their citizens but to the aggregate economic injuries they have
experienced because of the opioid epidemic. We therefore conclude that based on
the scope of the governments’ allegations and the plain language of the policies,
the underlying suits do not seek “damages because of bodily injury” and Acuity
does not have a duty to defend Masters in the underlying suits. To hold otherwise
would be to conclude that a duty to defend exists simply because a consequence of
the alleged public-health crisis is bodily injury, regardless of the fact that the
underlying parties do not seek damages because of any particular bodily injury
sustained by a person. We find this to be an extraordinarily expansive view and
one that gives us much pause given the potential floodgates it might open.
Conclusion
{¶ 40} Based on the scope of the allegations in the underlying complaints,
we conclude that the governments do not seek “damages because of bodily injury.”
Accordingly, we hold that Acuity does not owe Masters a duty to defend it in the
underlying suits. We reverse the judgment of the First District Court of Appeals
holding otherwise, and we reinstate the trial court’s decision granting summary
judgment in favor of Acuity in its declaratory-judgment action.
Judgment reversed
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January Term, 2022
and trial court’s judgment reinstated.
KENNEDY, FISCHER, DEWINE, and DONNELLY, JJ., concur.
STEWART, J., dissents, with an opinion joined by BRUNNER, J.
_________________
STEWART, J., dissenting.
{¶ 41} This case involves the interpretation of insurance policies, and as
with any contract, insurance policies must be interpreted as written, Lubrizol
Advanced Materials, Inc. v. Natl. Union Fire Ins. Co. of Pittsburgh, PA., 161 Ohio
St.3d 1, 2020-Ohio-1579, 160 N.E.3d 701, ¶ 13. Under the plain language of the
commercial general liability policies at issue in this case, defendant-appellant,
Acuity, promised to defend its insured, plaintiff-appellee, Masters Pharmaceutical,
Inc. (“Masters”), against suits seeking “damages because of bodily injury.”
Because Acuity’s duty to defend Masters was triggered when cities and counties in
West Virginia, Michigan, and Nevada filed lawsuits seeking damages that included
costs for treatment and services for citizens of the government-plaintiffs in the
underlying cases suffering from opioid-related addiction or disease, I would affirm
the decision of the First District Court of Appeals.
{¶ 42} This court made clear, decades ago, that “where the insurer’s duty to
defend is not apparent from the pleadings in the case against the insured, but the
allegations do state a claim which is potentially or arguably within the policy
coverage, or there is some doubt as to whether a theory of recovery within the policy
coverage ha[s] been pleaded, the insurer must accept the defense of the claim.”
Willoughby Hills v. Cincinnati Ins. Co., 9 Ohio St.3d 177, 180, 459 N.E.2d 555(1984). Moreover, “where provisions of a contract of insurance are reasonably
susceptible of more than one interpretation, they will be construed strictly against
the insurer and liberally in favor of the insured.” Lane v. Grange Mut. Cos., 45
Ohio St.3d 63, 65, 543 N.E.2d 488 (1989).
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{¶ 43} In its complaint for declaratory judgment and its motion for
summary judgment, Acuity argued that it had no duty to defend Masters, because
the governmental entities did not allege that they had sustained bodily injury. The
trial court agreed, granting Acuity’s motion for summary judgment and overruling
Masters’s motion for summary judgment and issuing a declaratory judgment that
Acuity does not owe Masters a defense for the underlying claims. The court
reasoned that Acuity does not have a duty to defend Masters in the underlying
litigation, because the governmental entities are not seeking damages on behalf of
their citizens who sustained losses because of bodily injury but instead are seeking
damages solely for their own economic losses. The court also held that Masters
knew of prescription-opioid addiction before Acuity insured Masters, precluding
any coverage under the loss-in-progress provision of the policies, which specifies
that “[i]f [an] insured * * * knew, prior to the policy period, that the bodily injury
* * * occurred, then any continuation, change or resumption of such bodily injury
* * * during or after the policy period will be deemed to have been known prior to
the policy period.” Section I, Coverage A(1)(b)(3).
{¶ 44} In reversing summary judgment in favor of Acuity and remanding
the case to the trial court with instructions to grant summary judgment in favor of
Masters, a unanimous court of appeals held that the governmental entities were
indeed seeking their own economic losses but that some of those losses were
arguably because of bodily injury, triggering the duty to defend. It also held that
coverage was not barred under the loss-in-progress provision, because Masters’s
mere knowledge of the risk that the diversion of its products could contribute to the
opioid epidemic, resulting in costs to the governmental entities, was not enough to
bar coverage.
{¶ 45} The commercial general liability policies that Acuity issued to
Masters for the policy periods of July 26, 2010, to July 26, 2018, included the
following language:
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January Term, 2022
(a) [Acuity] will pay those sums that [Masters] becomes
legally obligated to pay as damages because of bodily injury or
property damage to which this insurance applies. [Acuity] will have
the right and duty to defend [Masters] against any suit seeking those
damages. However, [Acuity] will have no duty to defend [Masters]
against any suit seeking damages for bodily injury or property
damage to which this insurance does not apply.
***
(b) This insurance applies to bodily injury and property
damage only if:
(1) The bodily injury or property damage is caused by an
occurrence that takes place in the coverage territory;
(2) The bodily injury or property damage occurs during the
policy period; and
(3) Prior to the policy period, no insured * * * knew that the
bodily injury or property damage had occurred, in whole or in part.
If [an] insured * * * knew, prior to the policy period, that the bodily
injury or property damage occurred, then any continuation, change
or resumption of such bodily injury or property damage during or
after the policy period will be deemed to have been known prior to
the policy period.
Section I, Coverage A(1). The policies explain that “[d]amages because of bodily
injury include damages claimed by any person or organization for care, loss of
services or death resulting at any time from the bodily injury.” And “bodily injury”
is defined as “bodily injury, sickness or disease sustained by a person, including
death resulting from any of these at any time.”
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SUPREME COURT OF OHIO
{¶ 46} In reversing the court of appeals’ judgment and reinstating the trial
court’s summary judgment in favor of Acuity, the majority opinion concludes that,
based on the allegations in the underlying complaints, the governmental entities do
not seek “damages because of bodily injury” but instead seek damages for their
own economic losses. However, the policies potentially cover the losses alleged in
the underlying suits, as medical expenses and treatment costs are arguably “because
of” bodily injury. In holding that Acuity has no duty to defend Masters in the
underlying lawsuits, the majority opinion ignores blackletter law and the plain
language of the policies. Because we must construe the policies strictly against
Acuity, the court of appeals was correct to reverse the summary judgment.
{¶ 47} The underlying lawsuits allege that Masters acted negligently in
failing to investigate, report, and refuse to fill suspicious orders of prescription
opioids and failing to maintain effective controls against the diversion of
prescription opioids, which contributed to the opioid epidemic and resulted in
increased costs to the governmental entities. More specifically, the governmental
entities seek damages for the significant amount of money spent on their citizens
for emergency medical treatment, ambulatory services, detoxification and addiction
treatment, and inpatient hospital services, among other things.
{¶ 48} The majority opinion disregards the plain language of the policies
and finds that the phrase “damages because of bodily injury” does not actually mean
what it says, concluding that the policies require “more than a tenuous connection
between the alleged bodily injury sustained by a person and the damages sought.”
(Emphasis added.) Majority opinion, ¶ 36. The majority asserts that if the intent
behind the policies had been to afford such broad coverage that they cover “any
suit seeking losses that tangentially relate to a bodily injury sustained by a person,”
different language would have been used. Id. at ¶ 35.
{¶ 49} The majority’s assertion begs the question: what language would
have been sufficient, when the policies expressly provide for that precise coverage
26
January Term, 2022
(bodily injuries on or after July 26, 2010, that occurred in the governmental entities’
jurisdictions)? Nothing in the policy language requires that the claimant bringing
the suit seek to recover the costs of the claimant’s own bodily injury. And had
Acuity wanted to exclude coverage for losses claimed by entities because of bodily
injury suffered by third persons, or claims brought by governmental entities, it
could have said so, but it did not. See Am. Fin. Corp. v. Fireman’s Fund. Ins. Co.,
15 Ohio St.2d 171, 174, 239 N.E.3d 33 (1968) (“an exclusion from liability must
be clear and exact in order to be given effect”). And the policies themselves cover
liabilities to organizations (like governmental entities), which cannot personally
suffer “bodily injuries.”
{¶ 50} The majority focuses, however, on Section I, Coverage A(1)(b) in
the policies to defend its conclusion, stating that “[t]he repeated use of the phrase
‘the bodily injury’ suggests that the damages sought in the underlying suit need to
be tied to a particular bodily injury sustained by a person or persons in order to
invoke coverage under the policies.” (Emphasis added in the majority opinion.)
Majority opinion at ¶ 31. But this interpretation adds words to the policies; the
language in the policies does not specify who, or whether a particular claimant,
must suffer the bodily injury for coverage. And this court should not read into the
contract a meaning that is not there. See Motorists Mut. Ins. Co. v. Tomanski, 27
Ohio St.2d 222, 226, 271 N.E.2d 924 (1971) (“This court has refused to change the
meaning of language contained in an insurance contract when that wording is
directly applicable to the facts under consideration, and will not read into a contract
meaning which was not placed there by an act of the parties”). And if a claim is
arguably within the policy coverage, an insurer must accept the defense of the
claim. Willoughby Hills, 9 Ohio St.3d at 180, 459 N.E.2d 555.
{¶ 51} The majority rejects the reasoning in Cincinnati Ins. Co. v. H.D.
Smith, L.L.C., 829 F.3d 771, 775 (7th Cir.2016), a case in which the United States
Court of Appeals for the Seventh Circuit interpreted nearly identical language in a
27
SUPREME COURT OF OHIO
commercial general liability policy and held that suits seeking damages “because
of bodily injury” included a suit brought by West Virginia against the insured to
recover as damages the money it had spent caring for drug-addicted West
Virginians who suffered opioid-related injuries and could not pay for their own
care, thus triggering the insurer’s duty to defend. In an attempt to distinguish that
case from the one before us, the majority opinion notes that H.D. Smith applied
Illinois law. But, as the First District correctly determined in this case, see 2020-
Ohio-3440, ¶ 22, the judgment comports with Ohio law. See H.D. Smith at 773-
774 (explaining that it is the court’s job to compare the allegations in the complaint
to the policy language to determine whether an insurer’s duty to defend is triggered
and noting that the allegations must be liberally construed in favor of the insured).
In H.D. Smith, the insurer made arguments similar to Acuity’s, alleging that West
Virginia sought damages to recover its own losses and did not seek damages on
behalf of its citizens, therefore precluding coverage. The Seventh Circuit explicitly
rejected this argument stating: “[S]o what? [The insurer’s] argument is untethered
to any language in the policy.” Id. at 774; see also Scottsdale Ins. Co. v. Natl.
Shooting Sports Found., 226 F.3d 642, 2000 WL 1029091 (5th Cir.2000) (holding
that an insurer’s duty to defend was triggered under a standard commercial general
liability policy when a municipality filed a suit seeking to recoup expenses
associated with the manufacture, marketing, promotion, and sale of firearms that
were unreasonably dangerous, including the cost of increased police force and
increased emergency care, and rejecting the insurer’s argument that the provision
limiting coverage to claims for damages incurred “because of bodily injury”
required that the plaintiff seeking damages be the one who suffered the loss).
{¶ 52} The majority cites favorably ACE Am. Ins. Co. v Rite Aid Corp., 270
A.3d 239 (Del.2022), a Delaware Supreme Court case that interpreted similar
policy language narrowly to hold that an insurer had no duty to defend Rite Aid
against lawsuits filed by two Ohio counties seeking to recover opioid-related
28
January Term, 2022
economic damages. In that case, the policy provided that the insurer had a duty to
defend the insured against any suit seeking “damages because of ‘personal
injury’ ”; the policy covered damages “claimed by a person or organization for care,
loss of services or death resulting at any time from the ‘personal injury,’ ” and
“personal injury” was defined to include “bodily injury.” Id. at 242-243. Despite
this clear language, the Delaware Supreme Court limited coverage for losses
because of personal injury to three categories of claims: claims asserted by the
person injured, claims asserted by a person recovering on behalf of the person
injured, and claims asserted by people or organizations that treated the person
injured who demonstrate the existence of and cause of the injuries. Id. at 247. The
dissenting opinion, however, applied the policy language as written and pointed out
that the policy does not contain language limiting coverage in the way the majority
held it did: “The policy covers damages claimed by any organization for the care
of a person injured by Rite Aid.” (Emphasis sic.) Id. at 256 (Vaughn, J.,
dissenting). The dissenting opinion recognized that the allegations in that case were
arguably covered by the policy because the governmental entities sought damages
for medical care for the injuries suffered by their citizens.
{¶ 53} Here, the majority’s theory is untethered to any policy language and
similarly restricts coverage for losses to three categories of claims (when no
language in the policies support such a restriction): claims in which (1) the person
seeking damages is the person injured, (2) the person seeking damages is recovering
on behalf of the injured person, and (3) the person or organization seeking damages
directly suffered harm because of another person’s injury—in which case, the
existence and cause of the injury must be proved, majority opinion at ¶ 36. But by
adding these words to the policies, the majority opinion is not construing the
language strictly against Acuity, which it is required to do, see Lane, 45 Ohio St.3d
at 65, 543 N.E.2d 488 (“The insurer, being the one who selects the language in the
contract, must be specific in its use”).
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SUPREME COURT OF OHIO
{¶ 54} Finally, the loss-in-progress provision of the policies is an exclusion
that Acuity must prove applies to the facts of this case. See Continental Ins. Co. v.
Louis Marx & Co., Inc., 64 Ohio St.2d 399, 401, 415 N.E.2d 315 (1980), quoting
Arcos Corp. v. Am. Mut. Liab. Ins. Co., 350 F.Supp. 380, 384 (E.D.Pa.1972) (“ ‘A
defense based on an exception or exclusion in an insurance policy is an affirmative
one, and the burden is cast on the insurer to establish it’ ”). The exclusion at issue
states, “This insurance applies to bodily injury and property damage only if * * *
[p]rior to the policy period, no insured * * * knew that the bodily injury or property
damage had occurred, in whole or in part.” The First District held that the loss-in-
progress provision is a prerequisite to establishing coverage, rather than an
exclusion to coverage and that, therefore, Masters has the burden to show that the
provision does not apply. 2020-Ohio-3440 at ¶ 38. But the loss-in-progress
provision is not a prerequisite to establishing coverage. See, e.g., Burlington Ins.
Co. v. PMI Am., Inc., 862 F.Supp.2d 719, 734 (S.D.Ohio 2012) (“the only
appropriate avenue to introduce a loss in progress issue into an insurance dispute is
when the policy at issue contains a loss in progress exclusionary endorsement”).
Despite its incorrectly shifting the burden to Masters, the First District was
nevertheless correct when it found that Masters’s mere knowledge of the risk that
“prescription drugs it distributed wholesale could eventually be diverted into illegal
channels far down the supply chain or be misused and abused by individuals” was
not enough to bar coverage. 2020-Ohio-3440 at ¶ 44, 50.
{¶ 55} By its plain terms, the loss-in-progress provision applies only if
Masters had knowledge of an actual injury it caused before the policy period, not
mere knowledge of a risk of injury generally. See Buckeye Ranch, Inc., v.
Northfield Ins. Co., 134 Ohio Misc.2d 10, 2005-Ohio-5316, 839 N.E.2d 94, ¶ 30
(C.P.) (“Awareness by the [insured] of an act that might someday result in [injury]
is not equivalent to knowledge of [injury]”). Acuity argues that mere awareness of
addiction in unidentified members of the public is enough to trigger the exclusion,
30
January Term, 2022
but there is no evidence that prior to the time that Masters purchased the policies,
it knew about the addictions, overdoses, and deaths caused by opioids that are
alleged in the underlying suits. See Sherwin-Williams Co. v. Certain Underwriters
at Lloyd’s London, 813 F.Supp. 576, 585 (N.D.Ohio 1993) (“If knowledge of
certain risks posed by a product were sufficient to infer intent by a manufacturer to
injure consumers, then no manufacturer would ever be able to seek coverage from
an insurer because every product has certain known dangers and risks”).
{¶ 56} The majority declines to decide whether the loss-in-progress
provision applies in this case, but the majority nevertheless interprets the provision
narrowly and determines that “[t]he bodily injury alleged in the underlying suit
* * * must be a particularized injury in order to make the comparison necessary
under the loss-in-progress provision.” Majority opinion at ¶ 33. But the article
“the” before “bodily injury” merely means that “the bodily injury” in the loss-in-
progress provision is the same bodily injury referred to earlier in the policy—or
more specifically to this case, any opioid-related injury on or after July 26, 2010,
that occurred in the governmental entities’ jurisdictions. See Black’s Law
Dictionary 1477 (6th Ed.1990) (defining “the” as “[a]n article which particularizes
the subject spoken of”). Accordingly, the majority’s interpretation of the policy
language attempts to add ambiguity that does not exist.
{¶ 57} Because the plain language of the policies triggers Acuity’s duty to
defend in the underlying lawsuits, I would affirm the judgment of the First District
Court of Appeals. Because the majority holds otherwise, I respectfully dissent.
BRUNNER, J., concurs in the foregoing opinion.
_________________
Tucker Ellis, L.L.P., and Benjamin C. Sassé; Gallagher Sharp, L.L.P., and
Gary L. Nicholson; Dean & Fulkerson, P.C., and Karen Libertiny Ludden; and
Hanna, Campbell & Powell, L.L.P., and John Chlysta, for appellant.
31
SUPREME COURT OF OHIO
Brouse McDowell, L.P.A., Paul A. Rose, and Amanda M. Leffler, for
appellee.
Reed Smith, L.L.P., and Jason E. Hazlewood, urging affirmance for amicus
curiae United Policyholders.
Collins, Roche, Utley & Garner, Richard M. Garner, David L. Lester, and
James S. Kresge, urging reversal for amicus curiae Ohio Insurance Institute.
Weston Hurd, L.L.P., and Gary W. Johnson, urging reversal for amici curiae
Complex Insurance Claims Litigation Association, American Property Casualty
Insurance Association, and National Association of Mutual Insurance Companies.
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