Certification of Opioid-Coverage Questions: Whether “Damages Because of Bodily Injury” Encompasses Governmental Opioid-Abatement Claims Under Georgia and Florida Law

I. Introduction

In a consolidated, unpublished per curiam decision, the U.S. Court of Appeals for the Eleventh Circuit addressed two insurance-coverage disputes arising from the nationwide opioid litigation:

• Allied Property & Casualty Insurance Company / AMCO Insurance Company v. Bloodworth Wholesale Drugs Inc. (Georgia law, declaratory-judgment posture)
• Publix Super Markets, Inc. v. Ace Property and Casualty Insurance Company, et al. (Florida law, breach-of-contract posture)

Bloodworth (a wholesale pharmacy distributor) and Publix (a retail pharmacy insured under “excess druggists liability” coverage) sought defense and indemnity for dozens of underlying opioid suits. Those underlying plaintiffs—states, municipalities, and other entities— generally alleged that pharmacies failed to “monitor, detect, investigate, refuse, and report suspicious orders,” thereby contributing to opioid addiction and overdose and forcing governments and providers to spend vast sums on healthcare, social services, and public safety.

The central interpretive issue was whether these underlying suits seek covered “damages because of bodily injury” within the meaning of the policies. The district courts in Georgia and Florida agreed with insurers that the claims were essentially for economic loss not covered by bodily-injury liability coverage. On appeal, the Eleventh Circuit concluded that Georgia and Florida law lack clear, controlling precedent on this precise question, and it therefore certified the determinative question to the Supreme Court of Georgia and the Supreme Court of Florida.

II. Summary of the Opinion

The Eleventh Circuit did not decide the merits of coverage. Instead, it held that:

1. The disputes turn on a novel and consequential state-law question: whether opioid-abatement and cost-recovery claims asserted by governments and similar entities qualify as “damages because of bodily injury.”
2. Existing Georgia and Florida authorities invoked by the parties do not squarely resolve how to treat mass-tort opioid claims under the relevant policy language.
3. Federalism and comity concerns—especially given the potential market-wide consequences “with billions of dollars at stake”—warrant certification rather than a federal-court prediction of state law.

The court certified the following question (without limiting how the state courts may reframe it):

Do the insurance policies in this case require the insurers to defend and/or indemnify the insured in the underlying opioid lawsuits?

III. Analysis

A. Precedents Cited

1. Background framing: the opioid crisis and mass-tort posture

The opinion situates the disputes within the broader public-health catastrophe described in Harrington v. Purdue Pharma L.P., 603 U.S. 204 (2024), emphasizing the scale of addiction, overdose deaths, and annual economic cost. While not an insurance-coverage case, Harrington supplies the factual and societal context that makes the coverage question high-stakes and explains why state high-court guidance is especially important.

2. Federal appellate standards and state-law interpretive framework

• Pier 1 Cruise Experts v. Revelex Corp., 929 F.3d 1334 (11th Cir. 2019): cited for the de novo standard on contract interpretation.
• Pincus v. Am. Traffic Sols., Inc., 986 F.3d 1305 (11th Cir. 2021): reiterates that in diversity cases federal courts decide state-law issues as the state’s highest court would.
• Henry's La. Grill, Inc. v. Allied Ins. Co. of Am., 35 F.4th 1318 (11th Cir. 2022) and Morales v. Zenith Ins. Co., 714 F.3d 1220 (11th Cir. 2013): used to underscore that Georgia and Florida contract interpretation is text-driven and that unambiguous policy terms receive their plain meaning.

3. Non-controlling opioid-coverage authorities from other jurisdictions

The Eleventh Circuit acknowledged a growing body of appellate authority on opioid coverage under similar “bodily injury” language, but emphasized those decisions are not controlling for Georgia or Florida:

• Insurer-favorable outcomes: Westfield Nat'l Ins. Co. v. Quest Pharms., Inc., 57 F.4th 558 (6th Cir. 2023); Acuity v. Masters Pharm., Inc., 169 Ohio St. 3d 387 (2022); ACE Am. Ins. Co. v. Rite Aid Corp., 270 A.3d 239 (Del. 2022).
• Insured-favorable outcome: Cincinnati Ins. Co. v. H.D. Smith, L.L.C., 829 F.3d 771 (7th Cir. 2016).

Their relevance in the Eleventh Circuit’s analysis is mainly diagnostic: they highlight that reasonable courts have read similar language differently, reinforcing that Georgia and Florida supreme court guidance is needed.

4. Georgia authorities considered—and why they were not dispositive

• Pacific Employers Insurance v. Cesnik, 219 F.3d 1328 (11th Cir. 2000) (and related factual discussion in Cesnik v. Edgewood Baptist Church, 88 F.3d 902 (11th Cir. 1996)): the district court relied on Pacific Employers to deny coverage where the complaint failed to connect the damages sought to the bodily injury. The Eleventh Circuit distinguished it: unlike in Pacific Employers, the opioid complaints plausibly allege the insureds’ conduct caused the bodily injuries (addiction/overdose) for which the claimants seek payment.
• Lunceford v. Peachtree Casualty Insurance, 230 Ga. App. 4 (1997): addressed whether “damages because of bodily injury” included punitive damages and relied on contra proferentem for ambiguity. The Eleventh Circuit explained that ambiguity is contextual, so Lunceford does not decide whether opioid abatement/cost-recovery claims satisfy “because of.”
• Brown v. Gardner, 513 U.S. 115 (1994) and Hope Elec. Enters., Inc. v. Schindler Elevator Corp., 324 Ga. App. 859 (2013): invoked for the proposition that ambiguity is not mere definitional possibility; it depends on context.
• Presidential Hotel v. Canal Insurance, 188 Ga. App. 609 (1988) and O'Dell v. St. Paul Fire & Marine Insurance, 223 Ga. App. 578 (1996): held that bodily-injury coverage did not extend to workplace sexual harassment, fraud, and other non-physical harms. The Eleventh Circuit found these decisions only partially helpful because no one disputes that opioid addiction and overdose qualify as “bodily injury.”
• Wolverine Ins. Co. v. Jack Jordan, Inc., 213 Ga. 299 (1957): cited for the broader interpretive backdrop that ambiguous provisions are construed against the insurer—though whether ambiguity exists here is the hard threshold issue.

5. Florida authorities considered—and why they were not dispositive

• Garcia v. Fed. Ins. Co., 969 So. 2d 288 (Fla. 2007): interpreted “because of” to require that liability be “caused by” the insured’s acts or omissions, but did not specify the applicable causation standard or how it applies to large-scale governmental cost-recovery claims.
• Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528 (Fla. 2005): referenced for Florida’s approach to ambiguity and interpretive methodology; again, the obstacle is deciding whether the opioid claims fit within the causal and remedial scope of “because of bodily injury.”

6. Certification principles

• WM Mobile Bay Env't Ctr., Inc. v. City of Mobile Solid Waste Auth., 972 F.3d 1240 (11th Cir. 2020): cited for the federalism/comity rationale underlying certification.
• Whiteside v. GEICO Indem. Co., 977 F.3d 1014 (11th Cir. 2020): provides the Eleventh Circuit’s test—certify when there is “substantial doubt” about state law—and highlights the impropriety of substituting federal “intuition” on unsettled issues with broad consequences.
• Statutory authorization: OCGA § 15-2-9(a) and Fla. Stat. § 25.031, permitting certification where the question is determinative and there is no clear controlling precedent.

B. Legal Reasoning

The court’s reasoning proceeds in three main steps:

1. Identify the coverage trigger and the true point of dispute

Both sets of policies obligate the insurers to pay sums the insured becomes legally obligated to pay as “damages because of bodily injury,” and to defend “any” suit seeking such damages (subject to exclusions not argued to bar coverage across-the-board). The court anchored interpretation in ordinary meaning (using Black’s Law Dictionary and Restatement (Second) of Torts § 902) and noted agreement on two items:

• the underlying plaintiffs seek “damages” in the general sense of monetary compensation; and
• opioid addiction and overdose qualify as “bodily injury.”

The contested phrase is the connective tissue: whether the damages are sought “because of” bodily injury—i.e., the required causal or relational nexus.

2. Present the competing constructions of “because of bodily injury”

The insurers’ construction is functionally individualized: coverage exists only when the suit seeks redress for particular injuries to identifiable people. They bolster this with policy notice provisions that contemplate reporting details of an “occurrence,” including names/addresses of injured persons and witnesses “to the extent possible.”

The insureds’ construction is broader and more systemic: coverage exists when the damages sought trace to physical injuries suffered by persons or groups, even if the plaintiffs (governments/organizations) seek reimbursement of aggregated costs and cannot identify each injured person. The insureds point to policy language stating that “damages because of bodily injury” include damages claimed by “any person or organization” for “care” or “loss of services” resulting from bodily injury. On that reading, governmental claims for hospital and social-service spending are paradigmatic “care” damages.

3. Conclude that state law is unsettled in a determinative, high-stakes way

The Eleventh Circuit’s key move is restraint: it evaluated the candidate Georgia and Florida authorities and found no “clear controlling precedents” that answer whether opioid-abatement/cost-recovery suits are covered as “because of bodily injury.” It also rejected the idea that existing cases about punitive damages (Lunceford), non-physical injury claims (Presidential Hotel, O’Dell), or a factually distinct causation gap (Pacific Employers Insurance v. Cesnik) could be treated as dispositive.

Having found “substantial doubt” about the status of state law and emphasized the magnitude of the potential economic and regulatory consequences, the court certified the question. Notably, the court framed certification broadly (“defend and/or indemnify”), signaling that the state courts may need to address both: (i) the duty to defend (often broader, based on the allegations), and (ii) the duty to indemnify (based on actual facts and liability).

C. Impact

Although the opinion does not establish substantive coverage law, it meaningfully shapes the legal landscape in three ways:

1. It elevates opioid-coverage disputes to state high courts in Georgia and Florida. The certification ensures that the decisive interpretive rules—especially the meaning of “because of” in this mass-tort, aggregated-damages context—will be articulated by the ultimate expositors of state law.
2. It highlights the doctrinal fault line likely to control future litigation. The decisive issue is not whether opioid addiction is “bodily injury,” but whether governmental/public-entity expenditures are sufficiently causally and legally linked to bodily injuries to be “because of” those injuries—particularly where the plaintiffs seek abatement, remediation, and cost shifting at population scale.
3. It signals market-wide consequences for liability insurance. By expressly noting “billions of dollars at stake” and “significant consequences” for insurance markets, the opinion foreshadows that the state supreme courts’ answers may influence underwriting, exclusions, premiums, and the drafting of pharmacy-specific endorsements (including “druggists products hazard” language).

IV. Complex Concepts Simplified

Duty to defend vs. duty to indemnify

The duty to defend requires the insurer to provide a legal defense if the complaint alleges claims that potentially fall within coverage. The duty to indemnify requires the insurer to pay covered judgments or settlements, typically determined by the actual facts established.

“Damages because of bodily injury”

This phrase does two things: it requires (1) monetary relief (“damages”), and (2) a connection (“because of”) to bodily injury. The dispute is how direct that connection must be when plaintiffs seek broad societal cost recovery rather than victim-specific compensation.

“Occurrence” and notice provisions

Policies often require prompt notice of an “occurrence” (usually an accident or repeated exposure to harmful conditions). Insurers here use notice language (asking for names of injured persons “to the extent possible”) to argue the policy contemplates individualized injuries. Insureds respond that “to the extent possible” anticipates situations where individual identification is not feasible.

Ambiguity and contra proferentem

If policy language is genuinely ambiguous in context, Georgia and Florida generally construe it against the insurer. The hard threshold issue is deciding whether opioid-abatement claims render “because of bodily injury” ambiguous or whether plain meaning resolves the issue.

Certification

Certification is a procedure allowing a federal court to ask a state supreme court to decide an unsettled question of state law that will determine the outcome of the case. It avoids federal “guessing” on issues of major state policy importance.

V. Conclusion

The Eleventh Circuit’s decision is significant less for what it decides than for what it refuses to decide: it declines to predict Georgia and Florida law on whether governmental opioid-abatement and cost-recovery suits seek covered “damages because of bodily injury” under standard liability and pharmacy-specific coverages. By certifying the question, the court channels an economically and doctrinally consequential interpretive dispute to the Supreme Court of Georgia and the Supreme Court of Florida, positioning those courts to define the required causal nexus embedded in “because of,” the role of organizational “care” damages, and the boundary between bodily-injury coverage and large-scale economic-loss remediation in opioid litigation.