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Ohio Justices Nix Insurer’s Duty to Defend in Opioid Suits


The Ohio Supreme Court on Wednesday overturned an appeals court's ruling that Acuity Inc. has a duty to defend a now-out-of-business drug wholesaler in public nuisance suits brought by governments over the opioid epidemic, finding the underlying actions were not brought "because of" bodily injury.


Seth Lamden, an insurance recovery attorney at Blank Rome LLP's Chicago office, who is not involved in the case, told Law360 that the Buckeye State high court confused Acuity's duty to cover the damages from the suits with the insurer's duty to defend, which is broader.

"Potentially covered factual allegations trigger the duty to defend, even if the likelihood of covered damages is remote or unsupported by the legal theories pleaded by the underlying plaintiffs," said Lamden, who represents policyholders. "The underlying complaints sought medical expenses and treatment costs, which created the potential for damages because of bodily injury."

He went on to say that there is nothing in commercial general liability, or CGL policies, that limits coverage to bodily injury incurred by a specific identifiable person. Even if that is the correct interpretation, Lamden explained that the allegations in the counties' underlying complaints gave rise to the potential for damages because of bodily injury to a specific, identifiable person.

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"Ohio Justices Nix Insurer’s Duty to Defend in Opioid Suits," by Shane Dilworth was published in Law360 on September 7, 2022.