Cincinnati Insurance v. H.D. Smith, L.L.C.

829 F.3d 771, 2016 U.S. App. LEXIS 13175, 2016 WL 3909558
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 19, 2016
DocketNo. 15-2825
StatusPublished
Cited by28 cases

This text of 829 F.3d 771 (Cincinnati Insurance v. H.D. Smith, L.L.C.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cincinnati Insurance v. H.D. Smith, L.L.C., 829 F.3d 771, 2016 U.S. App. LEXIS 13175, 2016 WL 3909558 (7th Cir. 2016).

Opinion

WILLIAMS, Circuit Judge.

According to West Virginia, it faces an “epidemic of prescription drug abuse” that costs it hundreds of millions of dollars every year. Seeking some relief, the state sued pharmaceutical distributors, asserting a variety of legal claims. One of the distributors, H.D. Smith, asked its insurer, Cincinnati Insurance Company, to defend the suit. Instead Cincinnati filed this suit seeking a declaration that its policy does [773]*773not cover the suit filed by West Virginia. The district court agreed with Cincinnati and granted its motion for summary judgment. But the plain language of the policy requires Cincinnati to defend a suit brought by a plaintiff to recover money paid to care for someone who was injured by H.D. Smith. West Virginia’s suit fits that description so we reverse.

I. BACKGROUND

West Virginia sued H.D. Smith and other pharmaceutical distributors, seeking to hold them liable for contributing to the state’s epidemic of prescription drug abuse. The complaint alleged that certain pharmacies — pejoratively called “pill mills” — knowingly provided citizens with hydrocodone, oxycodone, codeine, and other prescription drugs, not for legitimate medical uses but to fuel and profit from the citizens’ addictions. The pharmacies ordered the drugs from the defendant distributors in huge quantities — quantities so large that West Virginia contends the distributors should have known the drugs would be used for illicit and destructive purposes. West Virginia alleged that the defendant distributors “acted negligently, recklessly, and in contravention of West Virginia law,” and cost the state hundreds of millions of dollars every year. Among other things, that money was spent caring for drug-addicted West Virginians who suffer drug-related injuries and cannot pay for their own care.

At relevant times, H.D. Smith was covered by a general commercial liability insurance policy issued by Cincinnati Insurance Company. Under the policy, Cincinnati agreed to cover damages that H.D. Smith became legally obligated to pay “because of bodily injury.” Cincinnati also agreed to defend H.D. Smith against any suit seeking such damages. The policy defines “bodily injury” as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.” And “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.”1

H.D. Smith asked Cincinnati to defend the suit brought by West Virginia, but Cincinnati refused. Cincinnati filed suit in federal court, seeking a declaration that its policy did not cover West Virginia’s suit. Granting Cincinnati’s motion for summary judgment, the district court held that West Virginia’s suit did not seek damages “because of bodily injury.” H.D. Smith appeals.

II. ANALYSIS

The issue is contract interpretation and the posture is an appeal of summary judgment, so our review is de novo. Koransky, Bouwer & Poracky, P.C. v. Bar Plan Mut. Ins. Co., 712 F.3d 336, 341 (7th Cir. 2013); BASF AG v. Great Am. Assur. Co., 522 F.3d 813, 818 (7th Cir. 2008). The parties agree that their contract is governed by Illinois law — H.D. Smith is based in Illinois — so we apply that substantive law. See Koransky, 712 F.3d at 341.

Our job is to “compare the allegations in the underlying complaint to the policy language in order to determine whether the insurer’s duty to defend has arisen.” Gen. Agents Ins. Co. of Am., Inc. v. Midwest Sporting Goods Co., 215 Ill.2d 146, 293 Ill.Dec. 594, 828 N.E.2d 1092, [774]*7741098 (2005). We must “liberally constru[e]” the allegations “in favor of the insured.” Id. And because the duty to defend is “much broader” than the duty to indemnify, we will hold that a duty to defend exists “unless it is clear from the face of the underlying complaint” that the case is not “within or potentially within the insured’s policy coverage.” Id. (emphasis added). Importantly, “if several theories of recovery are alleged in the underlying complaint against the insured, the insurer’s duty to defend arises even if only one of several theories is within the potential coverage of the policy.” Id.

The policy that Cincinnati issued to H.D. Smith covers suits seeking damages “because of bodily injury.” Such a policy provides broader coverage than one that covers only damages “for bodily injury.” Medmarc Cas. Ins. Co. v. Avent Am., Inc., 612 F.3d 607, 616 (7th Cir. 2010) (applying Illinois law). We explained that result with the following example:

[A]n individual has automobile insurance; the insured individual caused an accident in which another individual became paralyzed; the paralyzed individual sues the insured driver only for the cost of making his house wheelchair accessible, not for his physical injuries. If the insured driver had a policy that only covered damages “for bodily injury” it would be reasonable to conclude that the damages sought in the example do not fall within the insurer’s duty. However, if the insurance contract provides for damages “because of bodily injury” then the insurer would have a duty to defend and indemnify in this situation. Id.

Here, West Virginia alleged that its citizens suffered bodily injuries and the state spent money caring for those injuries — money that the state seeks in damages. On its face, West Virginia’s suit appears to be covered by Cincinnati’s policy. Cincinnati argues to the contrary, stressing that West Virginia seeks its own damages, not damages on behalf of its citizens. But so what? Cincinnati’s argument is untethered to any language in the policy. At oral argument, we discussed the following example. Suppose a West Virginian suffers bodily injury due to his drug addiction and sues H.D. Smith for negligence. Cincinnati’s counsel acknowledged that such a suit would be covered by its policy. Now suppose that the injured citizen’s mother spent her own money to care for her son’s injuries. Cincinnati’s counsel acknowledged that her suit would be covered too — remember the policy covers “damages claimed by any person or organization for care ... resulting ... from the bodily injury.”

The mother’s suit is covered even though she seeks her own damages (the money she spent to care for her son), not damages on behalf of her son (such as his pain and suffering or money he lost because he missed work). Legally, the result is no different merely because the plaintiff is a state instead of a mother. Cincinnati’s lawyer acknowledged as much but argued this case is different in fact because West Virginia does not actually seek reimbursement for money it spent because of its citizens’ injuries. Cincinnati argues — and the district court held — that this suit is like Medmarc, where we held that no duty to defend arose. - But Medmarc is readily distinguishable. In that case, the insured party sold baby bottles and similar consumer products.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re: CVS Opioid Insurance Litigation
Supreme Court of Delaware, 2025
IN RE: CVS Opioid Insurance Litigation
Superior Court of Delaware, 2024
Discover Property Cslty v. Blue Bell
73 F.4th 322 (Fifth Circuit, 2023)
Westfield Nat'l Ins. Co. v. Quest Pharms., Inc.
57 F.4th 558 (Sixth Circuit, 2023)
Acuity v. Masters Pharmaceuticals, Inc.
2022 Ohio 3092 (Ohio Supreme Court, 2022)
Cincinnati Ins. Co. v. Discount Drug Mart, Inc.
2021 Ohio 4604 (Ohio Court of Appeals, 2021)
Acuity v. Masters Pharmaceutical, Inc.
2020 Ohio 3440 (Ohio Court of Appeals, 2020)

Cite This Page — Counsel Stack

Bluebook (online)
829 F.3d 771, 2016 U.S. App. LEXIS 13175, 2016 WL 3909558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cincinnati-insurance-v-hd-smith-llc-ca7-2016.