In cases that involve bodily injury allegedly caused by opioid addiction, one of the first questions liability insurers and their counsel should ask is whether the claim triggers their particular policy. A policy is “triggered” in this context if the bodily injury is deemed to have occurred during the policy period.
A trigger analysis is important because the typical commercial general liability (CGL) coverage form provides coverage only for losses occurring during the policy period. If the bodily injury did not occur during the policy period, then the policy is not triggered, and that policy will not provide coverage for that injury.
First, it is necessary to discuss the general framework courts use when deciding trigger-of-coverage issues. In easy cases, such as slip and falls, the trigger of coverage analysis is simple: When a customer in a grocery store slips and falls, the injury is inflicted and is observable at the same time.
The analysis is more difficult in cases where the injury happens gradually and is not observable until a significant time after it begins. Asbestos, toxic torts, construction defects, and, sometimes, medical malpractice are examples. If a house is built with faulty stucco in 2005 and water leaks in gradually over the next 10 years causing the wood studs to rot, then that harm may not be observable until either the wall begins to sag or the homeowners have a moisture-intrusion inspection performed. When the homeowners sue the builder, the question becomes, at what point during the 10-year latency period did the damage occur? The answer to this question is critical because only the policies in effect when the injury is deemed to have happened will be triggered by the damage. In this kind of case, courts generally employ one or more of the following rules to determine when such a loss is deemed to happen:
• The exposure theory holds that coverage is triggered when the initial exposure to an injurious condition takes place. This is typically applied only in situations where it is assumed that an injury begins at first exposure, such as in asbestos cases.
• The injury-in-fact theory holds that coverage is triggered when actual bodily injury or actual property damage first occurs, regardless of whether that damage or injury is observable at the time.
• The first-manifestation theory holds that coverage is triggered at the time that bodily injury or property damage becomes or should reasonably be known to the victim or property owner.
• The “continuous” or “multiple” trigger theory holds that coverage is triggered many times during (or throughout) the relevant period, from exposure through actual injury, and including first manifestation. The result is that all insurance policies in effect during the relevant time periods are triggered, and must pay portions of the loss.
Independent legal research shows that the most popular rule is the injury-in-fact theory, with at least 24 states employing some variation thereof. The next most popular approach appears to be the continuous trigger theory, which is employed in some form in at least 13 states. The first manifestation theory is the general rule in at least five states, but it should be noted that many states that use either the injury-in-fact or continuous trigger theory of coverage hold that first manifestation is an alternative way of triggering an insurance policy (see, e.g., D.R. Sherry Const. Ltd. v. Am. Fam. Mut. Ins. Co.).
There are approximately 11 states that lack a clear stance on this issue. The exposure trigger of coverage is not typically employed as a general rule, as its usefulness is somewhat limited to situations where an injury begins at first exposure and causes a slow and gradual loss that is not observable for some time.
The Anatomy of Addiction
Before discussing how opioid bodily injury claims would be analyzed under these rules, it is necessary to understand the basic pathology of opioid addiction. What is commonly referred to as “opioid addiction” is clinically described as opioid use disorder (OUD). The most recent version of the “Diagnostic and Statistical Manual of Mental Disorders” (DSM-5) defines OUD as “a problematic pattern of opioid use leading to clinically significant impairment or distress.”
Per DSM-5, OUD may be diagnosed when there are two or more of the following factors present in any 12-month span:
1. Opioids are often taken in larger amounts over a longer period of time than intended.
2. There is a persistent desire or unsuccessful efforts to cut down or control opioid use.
3. A great deal of time is spent in activities necessary to obtain the opioid, use the opioid, or recover from its effects.
4. Craving or a strong desire to use opioids.
5. Recurrent opioid use resulting in failure to fulfill major role obligations at work, school, or home.
6. Continued opioid use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of opioids.
7. Important social, occupational, or recreational activities are given up or reduced because of opioid use.
8. Recurrent opioid use in situations in which it is physically hazardous.
9. Continued use despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by opioids.
10. Tolerance, as defined by either of the following: a need for markedly increased amounts of opioids to achieve intoxication or desired effect, or markedly diminished effects with continued use of the same amount of an opioid.
11. Withdrawal, as manifested by either of the following: the characteristic opioid withdrawal syndrome, or the same (or a closely related) substance is taken to relieve or avoid withdrawal symptoms.
Where two-to-three factors are present in a 12-month span, OUD is deemed mild; where four-to-five are present, OUD is deemed moderate; and where six or more are present, OUD is severe.
It is difficult to quantify the bodily injury caused by opioid abuse. Although prolonged opioid use may have many side-effects, such as constipation and sleeplessness, there is scant evidence that opioids actually cause physical deterioration of any body part, organ, or system.
Instead, opioids work by regulating chemicals in the brain. Opioids bind to opioid receptors in the brain, thereby activating a part of the brain called the mesolimbic reward system. This causes dopamine to be released into another part of the brain, the nucleus accumbens, which produces the pleasure sensation associated with activities, such as eating and sex.
Part of this pleasurable sensation involves suppressing a hormone called noradrenaline, which is a part of the body’s fight-or-flight response. After repeated use over a certain amount of time (something that varies from person to person), a chronic opioid user’s body, in an attempt to regulate its hormonal balance, begins producing more noradrenaline. As the body produces more noradrenaline, more opioids are needed to attain the desired state of relaxation. As more opioids are used, more noradrenaline is produced.
If opioid use is interrupted or discontinued, then a user must deal with the effects of elevated noradrenaline levels, which include severe anxiety and all the typical ailments associated with withdrawal. Thus, an opioid user develops a tolerance for opioids, as more are needed to attain the desired state of relaxation, and a dependence on opioids, as they are necessary to avoid withdrawal symptoms.
The reason an opioid overdose can be fatal is that opioids are depressants, and when too great an amount is consumed, the user’s body ceases to regulate its respiratory functions. Breathing slows or stops altogether, and carbon dioxide is no longer removed from the user’s blood. Essentially, the user becomes so relaxed that respiration ceases and suffocation ensues.
How It Relates to the Policy
This medical background is helpful in determining when opioid-related bodily injury triggers a policy.
Under the injury-in-fact rule, which applies in a plurality of jurisdictions, coverage is triggered when there is actual bodily injury. An easy case of injury-in-fact caused by opioid use involves an overdose. The respiratory distress caused by the overdose, along with its effects, likely would qualify as an actual injury in all jurisdictions that adhere to this rule.
The question of injury-in-fact is more difficult in cases where there is no overdose. As discussed, opioids do not seem to directly harm any part of the human body. Rather, they cause a hormonal imbalance, tolerance, and dependence. In such cases, it may be appropriate to consider increased levels of noradrenaline as an injury-in-fact.
The reason is that, under the injury-in-fact rule, actual bodily injury is indispensable to triggering coverage (see, e.g., In re Silicone Implant Ins. Coverage Litig.]). Thus, at the very least, it is necessary to show some physiological change in order to qualify as an actual injury.
As noted, there is no evidence showing that opioids are inherently injurious to any aspect of human physiology. Thus, a non-addict who takes a prescribed course of opioids likely has not suffered actual injury, as, at this stage, opioids have not damaged any part of the person’s body or caused a physiological change.
The medical science suggests that the body’s first negative response to opioid use is increased production of noradrenaline. Therefore, increased levels of noradrenaline should be considered “actual bodily injury.” Finally, it should be noted that many of the symptoms of addiction, such as spending a great deal of time engaging in activities necessary to obtain opioids or failing to fulfill obligations at work would likely not be considered an injury-in-fact. These are external manifestations of an addiction, but they are not physiological injuries.
Trigger under the first manifestation rule is quite different. Under the first manifestation rule, coverage is triggered at the earliest point when bodily injury is diagnosed or should first reasonably be diagnosed. Thus, in the context of opioid-related bodily injury claims, the relevant inquiry focuses on the earliest point at which opioid addiction could reasonably be diagnosed.
Accordingly, the 11 factors listed in the DSM-5 for diagnosing OUD may be an appropriate gauge for determining when OUD has first manifested. Again, under the DSM-5, OUD can be diagnosed if two or more factors are present in any 12-month span. Thus, it stands to reason that, if the facts or allegations of a case show two or more of the DSM-5 factors in a 12-month span, then OUD reasonably could be diagnosed at such time, thereby triggering the policy.
We caution that the first manifestation of opioid use may often be overshadowed by the obvious problems associated with fully developed opioid addiction. For example, two of the factors deal with whether the subject has used more opioids than intended over the course of a prescription, and whether the subject has been unsuccessful repeatedly in attempts to quit. These are far more subtle than full-blown tolerance and dependence, where the subject requires opioids every day.
Finally, it is not clear that the exposure or continuous triggers of coverage are appropriate for opioid-related bodily injury claims. The reason is that opioids do not cause harm at first exposure. This is in contrast to asbestos and toxic-tort cases, where bodily injury or property damage is deemed to begin at the moment of first exposure (see, e.g., J.H. France Refractories Co. v. Allstate Ins. Co.).
Indeed, this makes intuitive sense, as the vast majority of persons who are prescribed opioids do not become addicted or suffer adverse consequences on account thereof. Moreover, as previously noted, the medical science indicates that opioid use must be repeated for a certain amount of time before the body begins to produce more noradrenaline, thereby initiating tolerance and dependence. Thus, it is not clear that the moment of exposure is an appropriate trigger of coverage for opioid-related bodily injury claims. Nevertheless, in jurisdictions that apply the continuous trigger theory, both first manifestation and actual injury will serve as additional triggers of coverage.
There are numerous issues about first manifestation that this article does not address. For example, from an evidentiary perspective, is an allegation in a complaint that the plaintiff “was addicted to opioids” enough to demonstrate actual injury or first manifestation? Unfortunately, there is no easy answer to this question, as the outcome will largely be driven by each respective state’s rules for pleading and triggering coverage. The purpose of this article is to simply provide an introduction to a suggested analytical framework for trigger of coverage in cases involving opioid-related bodily injury claims.