IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN RE: CVS OPIOID ) Consol. C.A. No. N22C-02-045 

INSURANCE LITIGATION ) PRW CCLD

Submitted: August 16, 2024

Decided: August 20, 2024

MEMORANDUM OPINION AND ORDER

Upon Insurers’ Motion for Partial Summary Judgment 

GRANTED

Upon CVS’s Motion For Partial Summary Judgment

DENIED

Garrett B. Moritz, Esquire, and R. Garret Rice, Esquire, ROSS ARONSTAM & MORITZ 

LLP, Wilmington, Delaware; Michael S. Shuster, Esquire (argued), Daniel M. 

Sullivan, Esquire, Blair E. Kaminsky, Esquire, and Daniel M. Horowitz, Esquire, 

HOLWELL SHUSTER & GOLDBERG LLP, New York, New York; Robert M. Mangino, 

Esquire, and Susan Koehler Sullivan, Esquire, CLYDE & CO LLP, Los Angeles, 

California, Attorneys for ACE Property and Casualty Insurance Company, Federal 

Insurance Company, Indemnity Insurance Company of North America, Vigilant 

Insurance Company, and Westchester Fire Insurance Company.

Robert J. Katzenstein, Esquire, and Julie M. O’Dell, Esquire, SMITH KATZENSTEIN 

& JENKINS LLP, Wilmington Delaware; Christopher J. St. Jeanos, Esquire, WILLKIE 

FARR & GALLAGHER LLP, New York, New York, Attorneys for American Home 

Assurance Company, Lexington Insurance Company, National Union Fire 

Insurance Company of Pittsburgh, P.A., and New Hampshire Insurance Company.

Bruce W. McCullough, Esquire, BODELL BOVÉ, LLC, Wilmington, Delaware; Karen 

M. Dixon, Esquire, SKARZYNSKI MARICK &BLACK LLP, Chicago, Illinois, Attorneys 

for American Zurich Insurance Company, Zurich American Insurance Company, 

and American Guarantee & Liability Insurance Company.

Joseph B. Cicero, Esquire, CHIPMAN BROWN CICERO & COLE, LLP, Wilmington, 

Delaware; Adam H. Fleischer, Esquire, R. Patrick Bedell, Esquire, and Allyson C. 
-iiSpacht, Esquire, BATESCAREY LLP, Chicago, Illinois, Attorneys for Great American 

Alliance Insurance Company, Great American Insurance Company of New York, 

Great American Insurance Company, and Tamarack American, Inc.

Louis J. Rizzo, Jr., Esquire, REGER RIZZO & DARNALL LLP, Wilmington, Delaware; 

Monica T. Sullivan, Esquire, Matthew J. Fink, Esquire, Leena Soni, Esquire, and 

Stephanie M. Flowers, Esquire, NICOLAIDES FINK THORPE MICHAELIDES SULLIVAN

LLP, Chicago, Illinois, Attorneys for Endurance American Insurance Company, and 

North American Capacity Insurance Company.

Sean J. Bellew, Esquire, BELLEW LLC, Wilmington, Delaware; Michael A. Kotula, 

Esquire, RIVKIN RADLER LLP, Attorneys for Allianz Insurance Company, Fireman’s 

Fund Insurance Company, Interstate Indemnity Company, and National Surety 

Company.

Loren R. Barron, Esquire, KAUFMAN DOLOWICH LLP, Wilmington, Delaware, 

Attorney for Gemini Insurance Company, and Berkley National Insurance Company.

Wade A. Adams, III, Esquire, LAW OFFICES OF WADE A. ADAMS, III, Newark, 

Delaware; Bryce L. Friedman, Esquire, and Matthew C. Penny, Esquire, SIMPSON 

THACHER & BARTLETT LLP, New York, New York, Attorneys for Discover Property 

and Casualty Company, St. Paul Fire and Marine Insurance Company, Gulf 

Underwriters Insurance Company, United States Fidelity and Guaranty Company, 

and The Travelers Indemnity Company.

Thad J. Bracegirdle, Esquire, Sarah T. Andrade, Esquire, and Emily L. Skaug, 

Esquire, BAYARD, P.A., Wilmington, Delaware; Edward B. Parks, II, Esquire, and 

Sara Hunkler, Esquire, RUGGERI PARKS WEINBERG LLP, Washington, D.C., 

Attorneys for First State Insurance Company, and Twin City Fire Insurance 

Company.

Kevin. J. Connors, Esquire, MARSHALL DENNEHEY, P. C., Wilmington, Delaware; 

Cheryl P. Vollweiler, Esquire, SKARZYNSKI MARICK & BLACK LLP, New York, New 

York, Attorneys for AXIS Insurance Company.

Philip Trainer, Jr., Esquire, and Marie M. Degnan, Esquire, ASHBY & GEDDES, 

Wilmington, Delaware; Robert A. Kole, Esquire, and Caroline M. Trusty, Esquire, 

CHOATE, HALL & STEWART LLP, Boston, Massachusetts, Attorneys for Liberty 

Insurance Underwriters, Inc., Liberty International Underwriters, and The Ohio 

Casualty Insurance Company.
-iiiMarc S. Casarino, Esquire, KENNEDYS CMK LLP, Wilmington, Delaware; 

Christopher R. Carroll, Esquire, Jillian D. Dennehy, Esquire, and Joshua S. 

Wirtshafter, Esquire, KENNEDYS CMK LLP, Basking Ridge, New Jersey, Attorneys 

for TIG Insurance Company.

Robert K. Beste, Esquire, SMITH KATZENSTEIN & JENKINS LLP, Wilmington 

Delaware; Keith Moskowitz, Esquire, DENTONS US LLP, Chicago, Illinois; Kathryn 

Guinn, Esquire, DENTONS US LLP, Denver, Colorado; Deborah J. Campbell, 

Esquire, DENTONS US LLP, St. Louis, Missouri, Attorneys for XL Insurance 

America, Inc., Greenwich Insurance Company, and The Continental Insurance 

Company.

David J. Baldwin, Esquire, Peter C. McGivney, Esquire, and Zachary J. Schnapp, 

Esquire, BERGER HARRIS LLP, Wilmington, Delaware; Jeffrey L. Schulman, Esquire

(argued), BLANK ROME LLP, New York, New York, Attorneys for CVS Health 

Corporation.

WALLACE, J.
In 2022, the Delaware Supreme Court in ACE American Insurance Co. v. Rite 

Aid Corp. (“Rite Aid”) held that claims seeking generalized economic damages to 

redress the opioid crisis were not claims seeking “damages because of bodily 

injury.”1 Like retail pharmacy giant Rite Aid, CVS was facing thousands of lawsuits 

related to the opioid crisis (the “Opioid Lawsuits”). In August 2023, this Court 

applied the Rite Aid decision to CVS’s request for relief with regards to its insurance 

claims in defending against the Opioid Lawsuits (the “2023 Decision”).

2

 Following 

the 2023 Decision, the parties agreed that there was no coverage for 2,151 Opioid 

Lawsuits.3 

The parties now ask the Court to determine whether coverage applies to the 

remaining Opioid Lawsuits that the parties have been unable to resolve. 62 of the 

Opioid Lawsuits come from governmental entities, and the other 156 from nongovernmental entities, including third-party payors and hospitals.4

 The Court 

focuses on the exemplar lawsuits presented by the parties and addresses the parties’

arguments in support of their motions for summary judgment. For the reasons 

described below, CVS’s motion for partial summary judgment is DENIED. The 

1

270 A.3d 239, 241 (Del. 2022).

2

In re CVS Opioid Ins. Litig., 301 A.3d 1194 (Del. Super. Ct. 2023), as corrected (Sept. 14, 

2023).

3 D.I. 395.

4

Insurers’ Motion for Partial Summary Judgment on Remaining Government Lawsuits and 

Non-Government Entity Lawsuits (“Insurers’ Motion”) at 2 (D.I. 403).
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Insurers’ motion for partial summary judgment is GRANTED. 

I. FACTUAL AND PROCEDURAL BACKGROUND

The procedural and factual background of this action is already described in 

the 2023 Decision. The Court refers the reader to that decision for a more fulsome 

summary of the relevant policy provisions and background. 

In short, parties across the United States have filed thousands of lawsuits

against opioid manufacturers, distributors, and retailers, including CVS.5 After 

resolving and settling the Opioid Lawsuits, CVS sought indemnification from 

various insurance companies (the “Insurers”) under the insurance agreements CVS

had entered into with the Insurers (the “Policies”).6 Under the Policies, CVS is 

entitled to coverage for claims that seek “damages because of bodily injury or 

property damage,” including “damages claimed by any person or organization for 

care, loss of services or death resulting at any time from the ‘bodily injury.’”7 

In Rite Aid, the Supreme Court interpreted nearly identical language as that in 

the Policies. It held that coverage for damages because of personal injury was only 

available to: (a) the person injured; (b) a person recovering on behalf of the person 

injured; or, (c) people or organizations that treated the person injured or deceased, 

5

In re CVS Opioid Ins. Litig., 301 A.3d at 1199.

6

Id.

7

Id. at 1204-5.
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who demonstrate the existence of and cause of the injuries.8 With respect to category 

(c), the organization “must show that it treated an individual with an injury, how 

much that treatment cost, and that the injury was caused by the insured.”9 The 

alleged damages must “depend on proof of bodily injuries” and cannot be for 

general, non-derivative economic loss.10 

The Supreme Court held that merely alleging a “causal connection between 

[ ] counties’ economic damages and the injuries to their citizens from the opioid 

epidemic” did not transform claims seeking redress for the opioid epidemic into 

claims for personal injury.11 Opioid Lawsuits must allege “more than some linkage 

between the personal injury and damages to recover ‘because of’ personal injury: 

namely, bodily injury to the plaintiff, and damages sought because of that specific 

bodily injury.”12 The individual physical injury must be “the basis of the claims,” 

“independently proven, and shown to be caused by the insured.”13 Though the duty 

to defend is broad, merely alleging “facts that support the economic claims” does 

not excuse the threshold requirement that the claims allege “damages because of 

8 Rite Aid, 270 A.3d at 247.

9

Id. at 252.

10 Id. at 250, 254.

11 Id. at 241.

12 Id. at 250.

13 Id. at 250-51.
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bodily injury.”14 Eligible claims must seek “damages for personal injury,” not “nonderivative economic loss.”15

 

The 2023 Decision applied the reasoning in Rite Aid to two Opioid Lawsuits 

that served as bellwether cases in multidistrict litigation (the “Track One Suits”), as 

well as seven additional exemplar lawsuits that included lawsuits brought by 

counties in Ohio and New York, as well as the Cherokee Nation, the City of 

Philadelphia and State of Florida (“Additional Representative Suits”).

16 The Court 

found that the Insurers had no duty to indemnify or defend those lawsuits because

those governmental entities did not allege “damages because of ‘bodily injury’ or 

‘property damage.’”17

Thereafter, the parties filed the instant cross-motions for summary judgment 

on the remaining Opioid Lawsuits that the parties were unable to resolve. 

II. STANDARD OF REVIEW

The Court “cannot grant any party’s motion for summary judgment under 

Delaware Superior Court Civil Rule 56 unless no genuine issue of material fact 

exists and that party is entitled to judgment as a matter of law.”18 The Court must 

14 Id. at 251.

15 Id. at 250.

16 In re CVS Opioid Ins. Litig., 301 A.3d at 1212-14.

17 Id. at 1214, 1217.

18 IDT Corp. v. U.S. Specialty Ins. Co., 2019 WL 413692, at *5 (Del. Super. Ct. Jan. 31, 

2019) (citing Del. Super. Ct. Civ. R. 56).
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construe the record “in the light most favorable to the non-moving party.”19 If the 

record reveals that material facts are in dispute, then summary judgment will be 

denied.20 

The filing of cross-motions for summary judgment doesn’t act per se as a 

concession that there are no genuine factual disputes.21 Rather, when cross-motions 

are filed, the Court evaluates each motion separately to determine whether genuine 

issues of material fact remain.

22

 Because the Court may only grant a motion for 

summary judgment to one of the parties when there is no disputed issue of material 

fact and that party is entitled to judgment as a matter of law.23

III. DISCUSSION

A. CVS’S MOTION

CVS seeks a declaration that the remaining Opioid Lawsuits at issue allege 

“damages because of bodily injury and property damage.” In its motion, CVS 

categorizes the remaining Opioid Lawsuits at issue into three groups—the Medical 

19 Merrill v. Crothall–Am., Inc., 606 A.2d 96, 99 (Del. 1992).

20 IDT Corp., 2019 WL 413694, at *5.

21 United Vanguard Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (Del. 1997).

22 Motors Liquidation Co. DIP Lenders Tr. v. Allianz Ins. Co., 2017 WL 2495417, at *5 (Del. 

Super. Ct. June 19, 2017), aff’d sub nom., Motors Liquidation Co. DIP Lenders Tr. v. Allstate Ins. 

Co., 191 A.3d 1109 (Del. 2018).

23 Fasciana v. Elec. Data Sys. Corp., 829 A.2d 160, 167 (Del. Ch. 2003).
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Provider Lawsuits,24 the Municipal Lawsuits,

25 and the Third-Party Payor 

Lawsuits.

26 The Court addresses each.27

1. The Medical Provider Lawsuits Do Not Allege Damages Because of 

Bodily Injury.

As with the other groups, CVS insists the Medical Provider Lawsuits fall 

under category (c) above—people or organizations that treated the person injured or 

deceased, who demonstrate the existence of and cause of the injuries. If so, under 

Rite Aid, the plaintiff “must show that it treated an individual with an injury, how 

much that treatment cost, and that the injury was caused by the insured.”28 The 

alleged damages must “depend on proof of bodily injuries” and could not be for 

24 Opening Brief in Support of CVS’s Motion for Partial Summary Judgment (“CVS Motion”), 

Ex. B (Dall. Cnty. Hosp. Dist., et al. v. Amneal Pharms., LLC, No. DC-19-18635 (Tex. Dist. Ct. 

originally filed Nov. 20, 2019), Ex. C (Hosp. Dist. No. 1 of the Parish of Avoyelles, La., d/b/a 

Bunkie Gen. Hosp. v. Actavis LLC, No. 1:20-op-45098 (N.D. Ohio Mar. 9, 2020), Ex. D (Bristol 

Bay Area Health Corp. v. Purdue Pharma L.P., No. 3:19-cv-00305 (D. Ala. Dec. 2, 2019), Ex. E 

(Lester E. Cox Med. Ctrs. v. Amneal Pharms., LLC, No. 231-CC00459 (Mo. Cir. Ct. Apr. 14, 2020), 

Ex. F (Bon Secours Health Sys., Inc. v. Purdue Pharma L.P., No. 1:18-op-45821 (N.D. Ohio July 

12, 2018), Ex. G (Fayetteville Ark. Hosp. Co. v. Amneal Pharms., LLC, No. 72CV-20-156 (Wash. 

Cir. Ct. Jan. 14, 2020) (D.I. 405).

25 CVS Motion, Ex. H (Cnty. of Fresno v. AmeriSourceBergen Drug Corp., No. 1:18-at-341 (E.D. 

Cal. May 9, 2018); see also Cnty. of Nev. v. AmeriSourceBergen Drug Corp., No. 2:18-cv-01152 

(E.D. Cal. May 9, 2018); City of San Jose v. AmeriSourceBergen Drug Corp., No. 5:19 cv-04529 

(N.D. Cal. Aug. 2, 2019).

26 CVS Motion, Ex. I (S. Tier Bldg. Trades Benefit Plan v. Purdue Pharma L.P., No. 1:20 op45239 (W.D.N.Y. July 30, 2020).

27 CVS also moved on a category called the “Estate Suits,” but the parties have reached a 

resolution on those lawsuits.

28 Rite Aid, 270 A.3d at 252.
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general, non-derivative economic loss.29 

A review of the Medical Provider Lawsuits shows that they do not allege 

“damages because of bodily injury.” The Court cannot find any allegations of 

individualized bodily injury, or claims based on the cost of treating any one specific 

individual’s injury. CVS highlights allegations in the Medical Provider Lawsuits 

that the underlying plaintiffs incurred costs because of “uncompensated” care due to 

CVS’s alleged role in distribution and sale of opioids.30 But those allegations are 

generalized and are not based on any one specific individual’s injury, including the

complaints that allege “special injury.”31 A further review of these complaints reveal 

29 Id. at 250, 254.

30 CVS Motion at 13.

31 See id., Ex. B ¶ 1071 (“Plaintiffs have incurred costs by providing uncompensated care for 

patients suffering from opioid related conditions”), Ex. C ¶ 743 (“[H]ospitals have and continue 

to incur millions of dollars in damages for the costs of uncompensated care resulting from the 

unlawful marketing, distribution and sale of opioids”), Ex. D ¶ 14 (seeking damages for the costs 

of providing medical and therapeutic care; treatment costs for patients suffering from opioid 

addiction or disease, overdose, or death; and counseling, treatment, and rehabilitation services),

Ex. E ¶ 59 (“Plaintiffs have incurred and continues to incur operational costs related to the time 

and expenses in diagnosing, testing, and otherwise attempting to treat these individuals”), ¶ 533 

(“As a proximate result of Marketing and Supply Chain Defendants’ conduct, Marketing and 

Supply Chain Defendants have caused Plaintiffs’ injury related to the diagnosis and treatment of 

opioid-related conditions. Plaintiffs have incurred massive costs by providing uncompensated care 

as a result of opioid-related conditions.”), Ex. F ¶ 7 (“Plaintiffs have incurred substantial 

expenditures, for which they have not received compensation or reimbursement, in connection 

with their provision of care to individuals who have been impacted by the opioid epidemic being 

perpetuated by the Defendants”), Ex. G ¶ 57 (“Additionally, individuals with opioid dependence 

have presented and continue to present themselves to Plaintiffs claiming to have illnesses and 

medical problems in an effort to obtain opioids. Plaintiffs have incurred and continues to incur 

operational costs related to the time and expenses in diagnosing, testing, and otherwise attempting 

to treat these individuals.”), ¶ 807 (“As a proximate result of Marketing and Supply Chain 

Defendants’ conduct, Marketing and Supply Chain Defendants have caused Plaintiffs’ injury 

related to the diagnosis and treatment of opioid-related conditions. Plaintiffs have incurred massive 
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that the claims are in fact seeking recompense for generalized, economic losses for 

the opioid epidemic.32 Under Rite Aid and the 2023 Decision, those Opioid Lawsuits 

do not allege “damages because of bodily injury.”

2. The Municipal Lawsuits Do Not Allege Damages Because of Property 

Damage.

33

CVS argues that the Municipal Lawsuits Allege “damages because of . . . 

property damage,” because there are allegations of damages in the form of needed 

repairs to infrastructure, including jail facilities, court systems and hospital and 

treatment facilities.34 In the 2023 Decision, the Court held that:

[t]he rationale in Rite Aid concerning the requirement to assert claims 

that seek recovery of damages because of bodily injury is the same 

when it comes to property damage. In Rite Aid the Supreme Court held 

that “[t]here must be more than some linkage between the personal 

injury and damages to recover ‘because of’ personal injury.” Here, 

“bodily injury” and “property damage” appear side-by-side in the 

Policies, and there is no reason why claims based on property damage 

costs by providing uncompensated care as a result of opioid-related conditions.”).

32 See, e.g., CVS Motion, Ex. G. ¶ 881 (“Defendants’ misconduct alleged in this case does not 

concern a discrete event or discrete emergent of the sort a hospital would reasonably expect to 

occur and is not part of the normal and expected costs of a hospital’s healthcare services.”), Ex. D. 

¶ 21 (“The diversion of funding to address a public health crisis like the opioid epidemic . . can 

have devasting impacts . . .”), Ex. C ¶ 800 (“Plaintiff brings this civil action to recover monetary 

losses that have been incurred as a direct and proximate result of Defendants’ false, deceptive and 

unfair marketing of prescription opioids.”), Ex. F ¶ 233 (“This diversion and the epidemic are 

direct causes of foreseeable harm to the Plaintiff.”).

33 One of CVS’s arguments is that the Rite Aid decision created a fourth category of potential 

groups that seek damages because of bodily injury, specifically, counties who run public hospitals 

who seek to “recover their actual, demonstrated costs of treating bodily injuries caused by opioid 

overprescription.” CVS Motion at 1. This is a distortion of the Court’s holding in Rite Aid that 

elaborates on potential claims that could be brought under category (c). 

34 CVS Motion at 15.
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require less of a causal relationship than that required for claims 

because of bodily injury. Just as the individual physical injury must be 

“the basis of the claims,” so must the property damage be the basis of 

claims for loss because of “property damage.”35 

Just as with the generalized allegations relating to bodily injury in the Medical 

Provider Lawsuits, the allegations with regards to property damages are not based 

on any damage to a specific piece of property. Instead, they broadly describe how 

the opioid crisis strained healthcare systems and eroded the quality of underlying 

municipal infrastructure such as jails and treatment facilities. For these reasons, 

these Opioid Lawsuits do not seek “damages because of . . . property damage.” 

3. The Third-Party Payor Lawsuits 

The Third-Party Payor Lawsuits consist of health insurance companies and 

welfare benefit plan providers. CVS argues that these entities seek to “recover the 

actual costs incurred for opioid addiction treatment for their members and 

beneficiaries.”36 Yet without naming any specific members or beneficiaries, CVS 

highlights allegations that merely state that costs for opioid addiction treatment were

“significant,” and details the forms in which the increased social spending 

materialized—“excessive opioid prescriptions, substance abuse treatment services, 

ambulatory services, emergency department services, and inpatient hospital 

35 In re CVS Opioid Ins. Litig., 301 A.3d at 1216.

36 CVS Motion at 25. 
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services.”37 The lack of individualized allegations reveals that these Third-Party 

Payor Lawsuits are indistinguishable from the rest of the Opioid Lawsuits that seek 

aggregate economic costs. While the Third-Party Payor Lawsuits seek damages 

related to the injuries of others, these Lawsuits do no more than merely allege “facts 

that support economic claims,” not “damages because of bodily injury.”38 

37 Id. at 25-26. 

38 Rite Aid, 270 A.3d at 250. CVS makes a recycled argument already addressed and rejected in 

Rite Aid that the damages the Third-Party Payor Lawsuits seek are the same as that of a mother 

whose damages include the costs she incurred on her son’s medical care, as described in the 

Seventh Circuit Decision Cinncinati Ins. Co. v. H.D. Smith, L.L.C., 829 F.3d 771, 773 (7th Cir. 

2016). See Rite Aid, 270 A.3d at 253. Furthermore, CVS makes an undeveloped argument in its 

reply that the removal of the phrase “sustained by a person” from certain of the Policies’ definition 

of bodily injury “incontrovertibl[ly]” meant that the inclusion of the phrase was central to Rite Aid 

and the 2023 Decision and a broadening of legal coverage. CVS’s Reply Brief in Further Support 

of Its Motion for Partial Summary Judgment at 11 (D.I. 417). It then cites cases from other 

jurisdiction that included the phrase and therefore concludes, without explanation, that its 

exclusion in certain of the Policies compels a finding of coverage. First, CVS misconstrues the 

holdings in Rite Aid and the 2023 Decision. The language cited by CVS doesn’t modify the 

requirement that damages must be “for” or “because of” “bodily injury,” which is language in all 

the Policies. Second, CVS has waived this argument by failing to properly develop it in its opening 

brief, merely citing to the language in the fact section, choosing not to raise it until its reply brief, 

and then, there, failing to develop its argument. See CVS Motion at 5; Franklin Balance Sheet 

Inv. Fund v. Crowley, 2006 WL 3095952, at *4 (Del. Ch. Oct. 19, 2006) (explaining that, “under 

the briefing rules, a party is obliged in its motion and opening brief to set forth all of the grounds, 

authorities and arguments supporting its motion” and “should not hold matters in reserve for reply 

briefs,” which “should consist of material necessary to respond to the answering brief”); In re 

Mobilactive Media, LLC, 2013 WL 297950, at *12 (Del. Ch. Jan. 25, 2013) (“[I]ssues adverted to 

in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed 

waived. . . . It is not enough merely to mention a possible argument in the most skeletal way, 

leaving the court to do counsel’s work. . . . Judges are not expected to be mindreaders. 

Consequently, a litigant has an obligation to spell out its arguments squarely and distinctly, or else 

forever hold its peace.”) (citation omitted). 
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B. INSURERS’ MOTION

The Insurers seek a declaration that they have no duty to defend or indemnify 

CVS for the remaining Opioid Lawsuits at issue. As the movant, the Insurers have 

the burden to show that no genuine issue of material fact exists that the remaining 

Opioid Lawsuits do not seek “damages because of ‘bodily injury’ or ‘property 

damage.’” If that burden is met, then CVS must show there is a genuine issue for 

trial. The parties have cross-moved on the same issue; though with little overlap, 

each side has selected different exemplar lawsuits for the Court to examine. The 

Court therefore addresses each of the exemplar lawsuits raised in the Insurers’ 

Motion independently and asks the reader to excuse the duplicative reasoning. 

Whereas CVS categorizes its exemplar lawsuits under three categories, Insurers 

divide theirs into two—Governmental Lawsuits and Non-Governmental Lawsuits. 

The Court addresses each. 

1. Governmental Lawsuits

The Insurers contend that the Governmental Lawsuits are “materially 

indistinguishable” from the “Track One and Additional Representative Suits” 

covered in the 2023 Decision.39 Specifically, the lawsuits do not seek recovery for 

individualized injury or property damage, but instead “seek to recover for budgetary 

39 Insurers’ Motion at 4.
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spending in response to the opioid crisis.”40

The Court has reviewed the allegations in each of the exemplar complaints 

and agrees. It has not found a single allegation tying the allegations against CVS to 

a particular person’s injury or individual property’s damage. This glaring omission 

is reflective of the underlying nature of these complaints—that they are seeking 

generalized economic losses, and therefore not “damages because of ‘bodily injury’ 

or ‘property damage.’” To be sure, the burden on the Insurers is to essentially prove 

a negative—that is, upon a review of the allegations in each of these lengthy 

lawsuits, show that no genuine issue of material fact exists that the allegations in the 

lawsuits do not seek individualized damages. Though a tedious exercise and a high 

burden, the Insurers’ have shown—and this Court’s review of the exemplar lawsuits 

confirms—that no such genuine issue of material fact exists. In response CVS has 

not—as it must—raised any genuine issue of material fact. CVS instead raises a 

variety of arguments already rejected (here and above) and identifies no allegation 

of individualized injury.

 The Insurers offer three exemplar Governmental Lawsuits.41 Two lawsuits 

40 Id.

41 Insurers’ Motion, Ex. 3 (County of Fresno v. Amerisourcebergen Drug Corp., 1:18-op-45644 

(N.D. Ohio) (“Fresno”), Ex. 4 (Clinch County Hospital Authority v. Amerisourcebergen Drug

Corp., 1:18-op-45453-DAP (N.D. Ohio) (“Clinch”), Ex. 5 (County of Beaver v. CVS Health Corp., 

et al., 2022-11132 (Pa. Ct. Com. Pl. Del. Cnty.) (“Beaver County”). Beaver County was 

commenced via writ of summons and no complaint was filed. See Insurers’ Motion Ex. 5. 

Nonetheless, it was part of a coordinated action in which Delaware County, PA v. Purdue Pharma, 

L.P., et al. was the bellwether case (“Delaware County”). CV-2017-008095 (Pa. Ct. Com. Pl. Del. 
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state word-for-word that the:

Plaintiff brings this civil action to eliminate the hazard to public health 

and safety caused by the opioid epidemic, to abate the nuisance caused 

thereby, and to recoup monies that have been spent, or will be spent, 

because of Defendants’ false, deceptive and unfair marketing and/or 

unlawful diversion of prescription opioids.42

The third lawsuit states the materially same message:

This case arises from the worst man-made epidemic in modern medical 

history—the misuse, abuse, and over-prescription of opioids. The 

opioid crisis arose from pharmaceutical manufacturers’ deliberately 

deceptive marketing strategy . . . Manufacturers and distributers alike 

acted without regard for the lives that would be trammeled in pursuit of 

profit . . . Plaintiff has filed this suit to bring the devasting march of this 

epidemic to a halt.43 

The type of damages the Governmental Lawsuits seek is evident—economic 

damages for the generalized harm caused by CVS’s role in contributing to the opioid 

crisis.44 Indeed, among the relatively scant county-specific damages alleged in the 

voluminous complaints, the Court discovers no specific, individualized injury, but 

instead an array of opioid-related statistics and increased levels of budgetary 

Cnty.), See Insurers’ Motion, Ex. 17. CVS disputes that there is any connection between Beaver 

County and Delaware County, notwithstanding that the lawsuits share common questions of fact. 

It then provides no additional explanation why no such connection exists. In light of CVS’s failure 

to adequately distinguish Beaver County and Delaware County, for purposes of evaluating Beaver 

County, the Court refers to the allegations in Delaware County. 

42 Clinch ¶ 1; Fresno ¶ 1. 

43 Delaware County ¶¶ 1-2, 23.

44 See, e.g., Fresno ¶¶ 341, 458; Clinch ¶¶ 474; Delaware County ¶¶ 876.
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spending.45

2. Non-Governmental Lawsuits

The Insurers contend that the Non-Governmental Lawsuits indisputably 

indicate that (a) CVS contributed to the public health crisis by over-distributing and 

dispensing prescription opioids and (b) that the recovery sought was for “budgetary 

impact without connecting CVS’s conduct to any particular individual’s bodily 

injury or damage to any specific property.”46 Just so. 

The Insurers offer five exemplar Non-Governmental Lawsuits.47 Two of the 

exemplar Non-Governmental Lawsuits come from an insurance fund and employee 

benefit fund that provided health benefits (“Third-Party Payor Lawsuits”),48 and the 

remaining three come from hospital systems, or entities operating hospital systems 

(“Hospital Lawsuits”).49 

The Third-Party Payor Lawsuits’ theory of relief is that CVS’s unlawful 

45 See, e.g., Delaware County ¶¶ 772-90, 901; Clinch ¶¶ 55-61; Fresno ¶¶ 68-84, 779-795.

46 Insurers’ Motion at 5.

47 Id., Ex. 8 (Louisiana Assessors’ Insurance Fund v. Amerisourcebergen Drug Corp., 1:18-op46223 (N.D. Ohio) (“Louisiana Assessors”) (initial complaint), Exs. 9 (“Lousiana Assessors 

Supplemented Complaint”) 10 (“Louisiana Assessors Additional Supplemented Complaint”); id., 

Ex. 11 (Laborers Local 235 Welfare Fund v. Purdue Pharma L.P. et al., 1:19-op45792 (N.D. Ohio) 

(“Laborers Welfare Fund”); id., Ex. 12 (Bon Secours Health System, Inc. v. Actavis, 1:18-op-45819 

(N.D. Ohio) (“Bon Secours”), Ex. 13 (Bon Secours supplemented complaint); id., Ex. 14 (Family 

Practice Clinic of Booneville, Inc. v. Actavis, 1:18-op-45390 (N.D. Ohio) (“Booneville”), Ex. 15 

(Booneville supplemented complaint); id., Ex. 16 (Eastern Maine Medical Center v. Teva 

Pharmaceuticals USA, Inc., CV21333 (Me. Super. Ct. Cumberland Cnty.) (“Eastern Maine”).

48 See Louisiana Assessors and Laborers Welfare Fund.

49 See Bon Secours, Booneville, and Eastern Maine.
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conduct contributed to the opioid epidemic, causing the plaintiffs to pay more in 

health benefits.50 The specific damages the Third-Party Payor Lawsuits allege are 

increased prescription drug purchases for its members as well as opioid addiction 

treatment and other related medical care.51 None of these lawsuits, however, “show 

that it treated an individual with an injury, how much that treatment cost, and that 

the injury was caused by the insured.”52 Instead, the lawsuits rely on generalized 

economic harm caused to its members in the form of increased prescription 

purchases and related opioid addiction treatment. 

The Hospital Lawsuits fare no better. Those Lawsuits assert claims against 

distributors like CVS for their misconduct in causing damages in the form of 

“unreimbursed and/or uncompensated” and increased medical care related to opioid 

misuse.53 As indicated by the lack of individualized allegations of damage, these 

plaintiffs seek damages for the aggregate financial strain placed on their health 

systems as a result of the opioid epidemic. 

As with all the Governmental Lawsuits, the Non-Governmental Lawsuits do 

not direct their allegations to “an individual injury [or damage to individual property] 

50 See, e.g., Lousiana Assessors Additional Supplemented Complaint § IV.C; Laborers Welfare 

Fund ¶¶ 9, 11-12.

51 See, e.g., Lousiana Assessors Additional Supplemented Complaint ¶¶ 7, 841-62; see Laborers 

Welfare Fund ¶¶ 772-790.

52 270 A.3d at 252.

53 Bon Secours ¶¶ 8, 236-252; Booneville ¶¶ 55-59, 244-253; Eastern Maine ¶¶ 20, 607.
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but to a public health crisis.”54 

2. CVS Does Not Raise a Genuine Issue of Material Fact In Opposition 

to the Insurers’ Motion

In opposition to the Insurers’ motion, CVS relies on a series of arguments that 

had already been considered and rejected by this Court and the Supreme Court. 

CVS argues that the Insurers misstate Delaware’s duty to defend by requiring 

allegations of specific individual or injuries. Yet, Rite Aid addressed this argument 

head-on. While the duty to defend is broad, the Court must determine “whether the 

allegations of the complaint, when read as a whole, assert ‘a risk within the coverage 

of the policy.’”55 Accordingly, “just facts that support economic loss claims” do not 

give rise to claims for personal injury.56 The lack of individualized injury only goes 

to show that these governmental entities are not asserting “a personal injury claim 

or one for derivative loss, but rather a direct claim for its own aggregate economic 

injury.”57 The Insurers, therefore, are not misstating Delaware’s broad duty to 

defend for insurance disputes.

Moreover, CVS’s argument that focuses on the identity of the plaintiff as a 

public hospital does not resolve the underlying requirement that the lawsuits 

54 In re CVS Opioid Ins. Litig., 301 A.3d at 1207.

55 Rite Aid, 270 A.3d at 251 (citation omitted). 

56 Id.; see also id. at 252 (“If the complaint does not allege damages covered by the insurance 

policy, the insurer has no duty to defend.”).

57 Id. at 253.
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themselves must still seek “damages because of ‘bodily injury’ or ‘property 

damage.’” While Rite Aid held that organizations that directly care for or treat 

injured persons may be within the classes of plaintiffs covered by the policies’ 

insurance, Rite Aid did not hold that membership in such a permitted plaintiff-class 

inexorably qualifies lawsuits that seek recovery for non-derivative economic loss 

into claims for personal injury. Furthermore, the only allegations CVS identifies as 

purportedly showing the requisite damages are in fact generalized damages in the 

form of increased social and budgetary spending.58

Finally, CVS argues that the Insurers are not entitled to a declaration regarding 

their indemnity duties. This Court already held in the 2023 Opinion that “the 

development of allegations illustrating the extent of the opioid crisis will not change 

the fact that the plaintiffs in these underlying complaints have asserted claims for 

general, economic losses to respond to the opioid epidemic, not personal injury 

claims.”59 This holding applies equally to the current Opioid Lawsuits based on the 

nature of the allegations raised therein. Though CVS points to language in a 

settlement agreement with CVS that provides for resolution of alleged harms and 

provision of opioid remediation, such harms and opioid remediation do not 

transform the Opioid Lawsuits into claims for personal injury. CVS has therefore 

58 See Clinch ¶¶ 9; Fresno ¶¶ 10, 458-59.

59 In re CVS Opioid Ins. Litig., 301 A.3d at 1217.
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failed to show any genuine issue of material fact that the Governmental Lawsuits 

and Non-Governmental Lawsuits do not allege damages because of “bodily injury 

or property damage.”

Accordingly, there is no duty to defend or indemnify the Governmental and 

Non-Governmental Lawsuits.

IV. CONCLUSION

For the reasons stated above, the Insurers’ Motion for Partial Summary 

Judgment is GRANTED, and CVS’s Motion for Partial Summary Judgment is also 

DENIED. 

IT IS SO ORDERED.

 /s/ Paul R. Wallace

 

Paul R. Wallace, Judge