In a post last week, we discussed an appeals court opinion from California, Traveler’s Prop. Cas. Co. of Am. v. Actavis, Inc., 2017 Cal. App. LEXIS 976, which ruled that Travelers Insurance had no duty to defend or indemnify pharmaceutical company insured who was sued by various state and local government units for deceptive practices leading to the overuse and abuse of opioids. The opinion is a signpost on a road to what is likely to come a multiplicity of opioid suits against the drug-makers by governmental health organizations now overwhelmed with the problems arising out of opioid addition and abuse.
Insurers should be ready, therefore, to stake out clear lines demarcating the limits of the CGL coverage they wrote and priced, which did not contemplate opioid suits. Here is a very brief review of key points for successfully disclaiming duties to defend and indemnify insurers never contemplated:
What Does Your Policy Say?
CGL policies routinely cover “occurrences” which are traditionally seen to be accidental, unintended, and unexpected. As discussed below, the current trend in opioid litigation is the allegation of intentional, deliberate conduct on the part of pharmaceutical companies.
In addition, CGL policies routinely come with “Products and Completed Work” and / or “Completed Operations / Your Product” exclusions. In the California case discussed earlier this week, and in most Pharma CGL’s, there is also a “Products-Completed Operations Hazard – Medical and Biotechnology” exclusion, which was seen by the Court as directly on point in Actavis. The definition of an “occurrence” under the policy, and exclusions like these are the first steps to defining coverage, and these provisions have routinely been held by courts across the U.S. to be clear and unambiguous.
What Is Your Insured Being Sued For?
The emerging trend in opioid litigation against the manufacturers is the allegation by state and local governmental health units that the manufacturers deliberately misrepresented the benefits and downplayed the risks of opioids to self-grow demand for the drugs, and to diminish concern in the medical community for the risks and downside of opioid products, namely addiction. The allegations sound in intentional conduct and intentionally deceptive trade and marketing practices, and are not the types of allegations of accident or negligence which CGL polices are intended to cover, i.e., they are generally not “occurrences” as defined in the CGL policy.
The Actavis Court went to great pains to examine the underlying complaints against the drug makers, and in the end it found that the conduct complained of was neither accidental nor fortuitous such that it would be insurable under the CGL, but rather calculated and intentional.
Avoid The “Duty to Defend” Trap
While in the Actavis case the court recognized the distinction between an insurer’s duty to defend and duty to indemnity, it also pointed out that where there is no possibility of coverage, not even the broad duty to defend was triggered. The Court found that all of the conduct alleged was deliberate and not accidental, and that, according to the underlying complaints, none of the damages caused by the drug makers were unexpected or unforeseen. It held, therefore, that not even the duty to defend was triggered.
There is case law in almost every jurisdiction holding that the duty to defend is not so broad and infinite as to require an insurer to defend its insured if there is no possible way the underlying wrongful conduct comes within the terms and conditions of the policy. Insurers should take advantage of this to avoid incurring defense costs in these kinds of opioid cases where it is almost certain to never have a duty to indemnify.
The Best Defense…..
The costs of defending opioid litigation is, and will continue to be substantial. Therefore, in the right cases, an insurer may be wise to invest in an early, interventional, declaratory judgment suit to free itself from any question of its duty to either defend, or indemnify insureds in the type of litigation seen in the Actavis case. So too, early, well -reasoned denial letters, and, where appropriate, reservations of rights letters, will help protect the insurer from covering a risk it may never have contemplated, and certainly never priced into the policy it sold.
As discussed above, opioid litigation of the type seen in Actavis is likely to multiply. Insurers should take pains to make sure that the CGL policies they issued, which cover only accidental occurrences arising out of negligence, are not converted into product liability insurance for injuries and damages caused by opioids.