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Insurance Coverage Law
January 13, 2023, the Sixth Circuit followed the holding of Rite-Aid and held that the lawsuits brought by local governments to recover costs incurred due to the opioid epidemic did not seek to recover for any specific bodily injury and thus did not trigger the insurer’s duty to defend or indemnify.
The Influence of The Restatement of Insurance Coverage
The ALI Restatement of the Law, Liability Insurance (“Restatement”), was widely criticized as being counter to the purpose of prior Restatements. Rather than attempting to state the “consensus” of the
law, or at least the majority position, as had been prior Restatement’s purposes, this Restatement, it is alleged, was heavily influenced by the insured’s coverage bar and pushed several legal positions that were consistently (1) detrimental to the insurance company’s interests, and (2) also minority opinions. In other words, the Restatement had become an advocate of what one interest thought the law should be, not a “restatement” of what the law was.
As a result, some states have acted to limit or legislatively “disrespect” the Restatement.16 Some statutes actually state the Restatement should not be relied upon by Courts in reaching decisions on liability insurance law.17
Whether, and to what degree, the Restatement will influence future decisions in states with gaps in the law, or even influence a change of direction in the law, remains to be seen. But there is some undeniable influence in some opinions, especially with filling in the gaps and Federal courts trying to be faithful to Erie in the absence of controlling authority. Which leads us to the final topic today.
The Right To Reimbursement In The Absence of a Policy Provision
Now that the Restatement has been in place for three years, it does not appear to be influential in changing established precedents in courts with controlling state law. But this is a minor victory. There
are insurance law gaps in many states that State appellate courts have left to fill, and the prevalence of Federal court practice in coverage is high, thus leaving the Federal courts and the Erie doctrine guessing to
16 https://flapartners.com/2019/10/02/florida-beware-ali-restatement-of-the-law-liability-insurance/ 17 Id., e.g., Ohio Statutes 3901.82, North Dakota 26.1-02-34; Michigan 500.3032
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FDCC ANNUAL INSIGHTS 2023