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
I. BACKGROUND
West Virginia sued H.D. Smith and other pharmaceutical distributors, seeking to hold them liable for cоntributing to the state’s epidemic of prescription drug abuse. The complaint alleged that certain pharmacies — pejoratively callеd “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 distributоrs 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 contrаvention 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 “beсause 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.”
H.D. Smith asked Cincinnati to defend the suit brought by West Virginia, but Cincinnati refused. Cincinnati filed suit in federal сourt, 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 damagеs “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 dе novo. Koransky, Bouwer & Poracky, P.C. v. Bar Plan Mut. Ins. Co.,
Our job is to “compare the аllegations 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.,
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.,
[A]n individual has automobile insurаnce; the insured individual caused an accident in which another individual became paralyzed; the paralyzed individual sues the insured driver only for the cоst 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 sрent 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 poliсy. 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 lаnguage 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 negligencе. 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 tо care for her son’s injuries. Cincinnati’s counsel acknowledged that her suit would be covered too — remember the policy covers “damages сlaimed 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 statе 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 reimbursemеnt 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. When buyers learned that the products contained a dangerous chemical, they refused 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
West Virginia’s complaint is quite different. The state alleges 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, addictiоns, diseases and sicknesses.” H.D. Smith’s actions caused West Virginia to spend money “addressing and combating the prescription drug abuse epidemic.” In particular, “[hjospital services ... are being consumed by persons with prescription drug abuse issues,” many of whom “have no medical insurance 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 services for treatment of citizens” who cannot afford their own care. West Virginia seeks reimbursement of such “damages аnd 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 thе duty to defend arises “even if only one of several theories is within the potential coverage of the policy.” Midwest Sporting Goods,
III. CONCLUSION
We ReveRsb the judgment of the district court.
Notes
. 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.