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By: Barry Miller
Acuity v. Masters Pharmaceutical, 2022-Ohio-3092 (September 7, 2022), considered a “growing and diverging” body of case law applying commercial general liability (“CGL”) policies in opioid cases. Prior courts differed on whether CGL claimants must link damages to a particular bodily injury. The Ohio court rejected decisions that likened a government spending money to care for addicted citizens to a parent’s expense to care for an addicted child. It cited a Delaware case saying that the hypothetical parent still would have to show their child’s injury directly resulted from the insured’s conduct.
Noting that it had to construe the entire policy—including provisions that referred to “the bodily injury”—the court required damages be tied to “a particular bodily injury sustained by a person or persons” to trigger coverage.
One use of the term “the bodily injury” arose in the insuring agreement, stating that the insurance applies only if no insured knew before the policy period “that the bodily injury or property damage occurred.” The trial court used this as an alternate reason for dismissal under the “loss-in-progress” doctrine. The Supreme Court did not rule on this issue because it found that the claimants did not link their alleged damages to a particular bodily injury.
Jonathan Schwartz, a member of FMG’s Coverage and Extra Contractual Liability Practice Section and chair of the Firm’s Chicago office, told Law 360 that the court’s decision is “a consistent and predictable result. Courts that have found similarly are rebuking those that may have inaccurately found before that there was or may have been coverage for these types of opioid epidemic claims.”