Judges: Williams
Filed: Jul. 19, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-2825 CINCINNATI INSURANCE COMPANY, Plaintiff-Appellee, v. H.D. SMITH, L.L.C., Defendant-Appellant. _ Appeal from the United States District Court for the Central District of Illinois. No. 3:12-cv-3289 — Richard Mills, Judge. _ ARGUED APRIL 11, 2016 — DECIDED JULY 19, 2016 _ Before BAUER and WILLIAMS, Circuit Judges, and ADELMAN, District Judge.* WILLIAMS, Circuit Judge. According to West Virginia, it faces an “epidemic of pre
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-2825 CINCINNATI INSURANCE COMPANY, Plaintiff-Appellee, v. H.D. SMITH, L.L.C., Defendant-Appellant. _ Appeal from the United States District Court for the Central District of Illinois. No. 3:12-cv-3289 — Richard Mills, Judge. _ ARGUED APRIL 11, 2016 — DECIDED JULY 19, 2016 _ Before BAUER and WILLIAMS, Circuit Judges, and ADELMAN, District Judge.* WILLIAMS, Circuit Judge. According to West Virginia, it faces an “epidemic of pres..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2825
CINCINNATI INSURANCE COMPANY,
Plaintiff‐Appellee,
v.
H.D. SMITH, L.L.C.,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:12‐cv‐3289 — Richard Mills, Judge.
____________________
ARGUED APRIL 11, 2016 — DECIDED JULY 19, 2016
____________________
Before BAUER and WILLIAMS, Circuit Judges, and
ADELMAN, District Judge.*
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 re‐
* Of the Eastern District of Wisconsin, sitting by designation.
2 No. 15‐2825
lief, 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 declara‐
tion that its policy does not cover the suit filed by West Vir‐
ginia. 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 descrip‐
tion 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 com‐
plaint alleged that certain pharmacies—pejoratively called
“pill mills”—knowingly provided citizens with hydroco‐
done, 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 destruc‐
tive purposes. West Virginia alleged that the defendant dis‐
tributors “acted negligently, recklessly, and in contravention
of West Virginia law,” and cost the state hundreds of mil‐
lions of dollars every year. Among other things, that money
was spent caring for drug‐addicted West Virginians who suf‐
fer 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
No. 15‐2825 3
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 de‐
fend 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 Vir‐
ginia’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. Ko‐
ransky, 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.
1 The policy requires that the injury be caused by an “occurrence”
that takes place in the “coverage territory” during the policy period, but
these requirements are not at issue on appeal.
4 No. 15‐2825
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., 828 N.E.2d
1092, 1098 (Ill. 2005). We must “liberally constru[e]” the alle‐
gations “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 re‐
covery 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 pol‐
icy.” Id.
The policy that Cincinnati issued to H.D. Smith covers
suits seeking damages “because of bodily injury.” Such a poli‐
cy 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 wheel‐
chair accessible, not for his physical injuries. If
the insured driver had a policy that only cov‐
ered damages “for bodily injury” it would be
reasonable to conclude that the damages
sought in the example do not fall within the in‐
No. 15‐2825 5
surer’s duty. However, if the insurance contract
provides for damages “because of bodily inju‐
ry” then the insurer would have a duty to de‐
fend 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 re‐
sult is no different merely because the plaintiff is a state in‐
stead 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
6 No. 15‐2825
we held that no duty to defend arose. But Medmarc is readily
distinguishable. In that case, the insured party sold baby bot‐
tles and similar consumer products. When buyers learned
that the products contained a dangerous chemical, they re‐
fused to use them. The buyers filed suit, complaining about
the money they wasted by buying unusable products. But
importantly, “the plaintiffs never allege[d] that they or their
children ever used the products or were actually exposed to
the [harmful chemical].” 612 F.3d at 610. In other words,
there was “no claim of bodily injury in any form.” Id. at 616.
West Virginia’s complaint is quite different. The state al‐
leges that H.D. Smith negligently distributed drugs that
were “consumed by persons then residing in West Virginia.”
In so doing, H.D. Smith “interfered with the right of West
Virginians to be free from unwarranted injuries, addictions,
diseases and sicknesses.” H.D. Smith’s actions caused West
Virginia to spend money “addressing and combating the
prescription drug abuse epidemic.” In particular, “[h]ospital
services … are being consumed by persons with prescription
drug abuse issues,” many of whom “have no medical insur‐
ance coverage.” So the state has incurred “excessive costs
related to diagnosis, treatment and cure of addiction,” and
has “provide[d] necessary medical care, facilities, and ser‐
vices for treatment of citizens” who cannot afford their own
care. West Virginia seeks reimbursement of such “damages
and losses sustained as the proximate result” of H.D. Smith’s
negligence.
To be sure, West Virginia asserts numerous legal theories
and seeks a variety of remedies, but the duty to defend aris‐
es “even if only one of several theories is within the potential
coverage of the policy.” Midwest Sporting Goods, 828 N.E.2d
No. 15‐2825 7
at 1098 (Ill. 2005). Given West Virginia’s allegations de‐
scribed above, Cincinnati has a duty to defend H.D. Smith.
III. CONCLUSION
We REVERSE the judgment of the district court.