The Ohio Supreme Court is deciding whether the insurance company for a drug distributor should be forced to provide a legal defense in the company’s fight against government lawsuits related to the opioid epidemic.
Justices on Sept. 8 heard arguments in a dispute between Hamilton County-based Masters Pharmaceutical and its insurer from 2010 to 2018, Wisconsin-based Acuity Insurance.
Beginning in 2012, West Virginia and local governments in Michigan and Nevada sued Masters and other opioid distributors, seeking compensation for the cost of increased public services incurred during communities’ battle against the painkiller epidemic. Those included necessary increases in policing, court cases, substance abuse treatment, emergency responses and medical services.
Masters argues it did nothing wrong. But it also says that under its contract with Acuity, the company must defend Masters against the allegations. Masters argues that previous court rulings have upheld the notion that insurance companies must provide a defense for businesses for plausible claims of alleged damages.
Acuity’s policy with Masters requires it to defend lawsuits alleging “damages because of bodily injury,” lawyers for the drug company argued in a court filing earlier this year.
Because governments are suing Masters for the cost of medical care and treatment for citizens allegedly harmed by the company’s distribution of opioids, Acuity must defend Masters against those lawsuits, the lawyers said.
Allegations against Masters include specific references to injuries, including the cost of 116 opioid-related hospitalizations in Saginaw County, Michigan; 24 hospitalizations in Mason County, Michigan; and 243 doses of the overdose antidote Narcan administered by the Lansing, Michigan, fire department, Masters attorney Paul Rose said during Wednesday’s hearing before the state Supreme Court.
“Every one of these ambulances that went out to pick up someone picked up a specific person. Every dose of Narcan was administered to a specific person,” Rose said.
Acuity counters that it’s only liable for coverage of injuries incurred by specific people, not the overall costs of the opioid epidemic to governments.
Government lawsuits are seeking compensation for costs “associated with increased public services, not bodily injury experienced by any one person or persons,” and therefore don’t require Acuity to mount a defense, the company’s attorneys said in a court filing.
Some justices seemed skeptical of Acuity’s position and questioned why it shouldn’t defend Masters.
Chief Justice Maureen O’Connor noted that the policy required the company to defend against “damages claimed by any person or organization for care, loss of services, or death.”
Benjamin Sasse, representing Acuity, said the key was an additional phrase referring to “the bodily injury.”
“These coverages are written and underwritten to respond to injuries to a particular person,” Sasse said.
Insurance companies are urging the court to side with Acuity in the closely watched case.
“Insurers have no obligations to defend suits seeking massive and unfettered government expenditures for public services,” a group of insurance company associations argued in a February friend of the court brief siding with Acuity.
“To obligate them to do so would drastically deviate from the applicable law, insurance policy terms, and public policy,” the companies said.
A decision in the case isn’t expected for months.
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