Arkansas Walmart Decision Could Shift Path of Opioid Insurance Litigation

Chris Popecki, special counsel at Pillsbury, said in an interview with Law360 that the Arkansas Court of Appeals’ decision reflects the importance of evaluating the specific allegations in the underlying complaints when determining whether an insurer has a duty to defend.

“Unless the complaint is absolutely crystal clear that the only potential liability is intentional malfeasance, that really lends itself to a duty to defend because if there’s any question at all that we’re talking about a negligent standard of intent — and that’s a fact issue — there should be a duty to defend,” he said.

Popecki also highlighted the importance of state-specific law in opioid coverage disputes. Discussing a recent Eleventh Circuit decision to seek guidance from the Georgia and Florida Supreme Courts about whether governments’ opioid lawsuits seek covered “damages because of bodily injury,” he explained that, despite some recent decisions favoring insurers, “the last word has not been spoken on these claims” because each state’s interpretation of their own insurance principles will be decisive.

“In the Eleventh Circuit case, the decision essentially said that while we have general interpretive principles, and those are fairly well-established under state law, there really isn’t much guidance as to how Florida or Georgia courts would decide this issue in this particular context,” he noted.

Popecki emphasized that the Arkansas decision demonstrates that policyholders have an opportunity to take back momentum on opioid coverage issues, and that future outcomes will depend on how courts apply their respective state laws.

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