Reversing the lower court, the Delaware Supreme Court found there was not duty to defend a supplier of opioids when the counties pursuing the underlying litigation only sought economic losses. Ace Am. Ins. Co. v. Rite Aid Corp., 2022 Del. LEXIS 9 (Del. Jan. 10, 2022).

    Two Ohio counties sued Rite Aid to recover opioid-epidemic-related economic damages. Policies issued by Rite Aid's insurers provided, "We will pay those sums that the insured becomes legally obligated to pay as damages because of 'personal injury' . . . to which this insurance applies." The lower court determined that the lawsuits sought damages "for" or "because of" personal injury  because there was arguably a causal connection between the counties' economic damages and the injuries to their citizens from the opioid epidemic.

    The insurers moved for summary judgment on the grounds they had no duty to defend in the underlying suits. The lower court granted summary judgment to Rite Aid, finding that "some of the economic losses sought by the governmental entities are arguably because of bodily injury" because the economic costs were related to injuries to individuals.

    The insurers argued on appeal that coverage depended on whether the bodily injury was suffered by the plaintiff, or someone asserting bodily injury liability derivatively for the harmed party. The insurers claimed that the counties did not suffer personal injury and thus compensation only for their non-derivative economic harms, even if those harms had some causal connection to a bodily injury. Rite Aid responded that the policies did not exclude non-derivative economic damages related to bodily injury. If the damages sought were causally related to a covered "occurrence," the duty to defend was triggered.

    The underlying complaints sought "economic damages" as a "direct and proximate result" of Rite Aid's failure to "effectively prevent diversion" and "monitor, report and prevent suspicious orders" of opioids. Absent from the complaints, however, were personal injury damage claims for or on behalf of individual who suffered or died from the allegedly abusive prescription dispensing practices.

    The Supreme Court agreed with the lower court that the counties' economic losses were arguably linked to care for Ohio residents affected by the opioid epidemic. But under the policies, damages for bodily injury were covered losses only when asserted by (1) the person injured, (2) a person recovering on behalf of the person injured, or (3) people or organizations that treated the person injured or deceased, who demonstrated the existence of and cause of the injuries. The counties expressly disclaimed all personal injury damages, stating their claims were "not based on" the injuries of others. Thus, the insurers had no duty to defend.