Publix demands insurers honor policies in opioid litigation
Publix said it is facing millions of dollars in legal fees because of its insurance providers' refusal to provide coverage in opioid litigation.
Publix Super Markets Inc. hit back against more than a dozen insurance companies in a complaint filed in a federal court in Tampa for their alleged failure to honor policies in over 60 lawsuits aiming to hold the supermarket accountable for its alleged role in the opioid crisis.
Publix, the plaintiff, pointed to the multiple defendants, including ACE Property and Casualty Insurance Co. and American Guarantee & Liability Insurance Co., who are incorporated under the laws of Pennsylvania and New York, respectively, who were put on notice of the lawsuits but denied coverage.
Stephen A. Marino, Jr., managing partner at Ver Ploeg & Marino in Miami and an insurance expert not involved in the matter, said it is not unreasonable for companies to sue their insurance carriers as a group because the alternative is a series of independent lawsuits that run the risk of inconsistent rulings in different jurisdictions.
“It’s actually more efficient, and more likely to have consistent results when you include everybody in one lawsuit,” Marino said. “You can say, ‘This is what’s happened so far, this is what’s projected in the future, and we want a unified determination as to who owes what obligations to each other.’”
Robert H. Friedman, a solo practitioner based in West Palm Beach who represents Publix, declined to comment.
Karyn Faggello, media relations for ACE’s parent company, Chubb Limited, did not respond to a call or email seeking comment.
Peter Delahunty, staff legal for American Guarantee’s parent company, Zurich American Insurance Co., did not respond to a request for comment.
In denying coverage, the insurers claimed that the allegations of intentional conduct against Publix did not have an “occurrence” under the policies. Similarly, select insurers asserted that coverage was excluded for opioid lawsuits because the bodily injuries were “expected or intended,” according to the complaint.
The dispute stems from the opioid crisis in which entities that had any involvement in the distribution of opioids, ranging from manufacturers that marketed opioid medications to retail pharmacies, such as those located within Publix supermarkets, have been targets of lawsuits, many filed by government entities.
According to the Tampa Bay Times, in a seven-year span that saw the opioid epidemic reach crisis levels, more than 5.5 billion hydrocodone and oxycodone pills flooded into Florida, and Publix was one of four companies that distributed the most pills.
So far, Publix has faced more than 60 lawsuits in federal courts across the country, according to the complaint. The lawsuits seek damages for bodily injuries and liabilities that arose from the opioids that Publix sold, distributed or dispensed. The insurers were authorized to underwrite insurance policies covering risks in Florida.
And Publix, which has denied wrongdoing, claimed in the complaint that these allegations are covered under the substantial premiums the supermarket chain paid to insurers for broad general, druggists, umbrella and excess liability insurance. Publix noted that it has since paid millions of dollars in legal fees to defend itself in the federal court lawsuits filed against it.
Now, the case will go before U.S. District Judge Charlene Edwards Honeywell, who sits in the Middle District of Florida.
And, according to the lawsuit, Publix sued the defendants under four causes of action: Breach of contract against the primary insurers, who had a duty to pay or defend; anticipatory breach of contract against all insurers, who have an ongoing duty to pay or defend, as well as indemnification; and declaratory judgment against all insurers, with a duty to pay or defend; and, separately, a duty to indemnify.
“Litigation like this can be very expensive for a defendant,” Marino added. “If you paid a premium to get a benefit, including defense be paid, you’re entitled to ask for that.”
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