Walmart claims in Arkansas state court that 45 of the nations largest insurers wrongly refused to cover losses incurred as a result of defending itself against more than 2,400 opioid lawsuits. Jurisdiction in Arkansas is claimed because Walmart is headquartered in Bentonville, Arkansas, and the parties conduct business in Arkansas, including the Insurers selling insurance to Walmart in Benton County, Arkansas.
This action involves nearly 200 insurance policies spanning two decades, and many of those policies are dozens or hundreds of pages long.
According to the Complaint they failed, they allege that Walmart has paid millions of dollars to 45 Defendant Insurers – many of the nation’s leading insurance companies – for broad general liability policies designed to protect Walmart against potential risks to its business.
They say those risks have now manifested themselves in the form of more than 2,400 Opioid Lawsuits that have been filed against Walmart. Those lawsuits seek damages because of, among other things, bodily injuries allegedly arising out of opioids or opioidcontaining products that Walmart sold, distributed, or dispensed.
Walmart claims it has spent tens of millions of dollars defending itself against the Opioid Lawsuits and expects to spend much more in the future. Walmart timely notified the Insurers of each of the Opioid Lawsuits. But now they say “the Insurers have turned their backs, providing a litany of excuses why the policies supposedly do not cover the Opioid Lawsuits.”
“Those excuses are meritless, as Walmart has repeatedly explained to Insurers, yet they continue to refuse to live up to their obligations under the policies.” And they go on to claim that “the underlying Opioid Lawsuits seek damages sufficient to exhaust all layers of coverage provided by Insurers’ Policies.”.
“Insurers have either reserved their rights to deny coverage, denied their duties to defend or indemnify, and/or otherwise failed to acknowledge their obligations to provide coverage for the Opioid Lawsuits on a series of baseless grounds.”
“For example, certain Insurers have asserted that these lawsuits are not brought “because of bodily injury,” despite complaints and settlements expressly stating otherwise and making clear that the underlying plaintiffs’ alleged damages are because of alleged injury and death to hundreds of thousands of individuals as a result of opioid abuse and addiction.”
“Certain Insurers have also asserted that coverage for the Opioid Lawsuits is excluded because the damages at issue in them were “expected or intended,” even though these lawsuits include numerous allegations of negligent or otherwise unintentional conduct or injuries, many of the settlements are expressly based on negligent conduct, not intentional harm, and Walmart has vehemently denied that it intended or expected to harm anyone.”
Many of the Policies are “primary” or first-level policies, meaning that they obligate the issuing Insurers to defend or to pay for Walmart’s defense and to indemnify Walmart either from the first dollar spent, or once a self-insured retention is satisfied. Those policies were issued by Defendants National Union, American Home, and the Insurance Company of the State of Pennsylvania.
Other Policies are umbrella or excess-layer policies, which, among other things, obligate the issuing Insurers to defend or to pay for Walmart’s defense costs and/or to indemnify Walmart for settlement or judgment costs when those costs exceed specified retention amounts or amounts of coverage available under lower-layer Policies or when coverage is not available or not collectible from such lower-layer Policies. The umbrella and excess-layer Policies were issued by various Insurers.