DUNDON

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MATTHEW DUNDON, AS THE TRUSTEE :

OF THE ENDO GENERAL UNSECURED : Civil Action

CREDITORS’ TRUST, :

Plaintiff, :

:

v. : No. 24-4221

:

ACE PROPERTY AND CASUALTY :

INSURANCE COMPANY, et al., :

Defendants. :

MEMORANDUM

KENNEY, J. FEBRUARY 10, 2026

Defendants Gemini Insurance Company, Ironshore Insurance Company, Those

Underwriters that subscribed to the LSR 2016 excess policy (including Hiscox, Chaucer,

RenaissanceRe, Amlin, and Catlin n/k/a AXA XL), TDC Specialty Insurance Company, Newline

Corporate Named Limited, and Starstone Specialty Insurance Company (collectively, the “2016-

17 Products Insurers”) move for summary judgment on each count of Plaintiff Matthew Dundon’s

Amended Complaint as applied to the 2016–2017 insurance policy tower (“2016–2017 Products

Policy Tower”). ECF Nos. 307, 308, 311; see also ECF No. 313 (joinder of Defendant TDC

Specialty Insurance Company). Plaintiff Matthew Dundon cross moves for summary judgment

(ECF No. 341). For the reasons set forth below, the Court will GRANT in part and DENY in part

Defendants’ Motions (ECF Nos. 307, 308, 311) and DENY Plaintiff’s Cross-Motion for Summary

Judgment (ECF No. 341), as set forth below.

I. BACKGROUND

A. General Factual Background

This is an insurance coverage dispute arising from litigation over prescription opioids.

During the relevant period, non-party Endo International plc (“Endo”) was a pharmaceutical

company that manufactured opioid products. ECF No. 341-5 ¶¶ 10–11. In connection with its

business operations, Endo obtained insurance coverage, including multiple products insurance

policies in each of the following years: 2013–2014, 2016–2017, and 2017–2018. See ECF No.

315 ¶¶ 4–12, 22–23, 25–30, 35–41. Endo’s insurance policies in each of these years formed an

insurance “tower,” with one policy serving as the primary policy and others providing layers of

excess coverage. See ECF No. 316-1 at 12 (chart identifying 2013–2014 tower); ECF No. 311-2

¶ 38 (chart identifying 2016–2017 tower); ECF No. 312-2 ¶ 67 (chart identifying 2017–2018

tower); see also Pharmacia Corp. v. Arch Specialty Ins. Co., No. 22-2586, 2024 WL 208146, at *1

n.1 (3d Cir. Jan. 19, 2024) (defining an insurance tower as a structure in which “a primary insurer

respond[s] first to any covered loss, and excess insurers respond[ ] in a predetermined order if the

loss exceeds the [primary policy’s] coverage”) (first and second alterations in original) (citation

omitted). Endo also obtained multiple commercial general liability insurance policies from 2010–

2022, in addition to the above products insurance policies. See ECF No. 319 ¶ 1.

1. The Underlying Litigation and Bankruptcy Action

Based on Endo’s role in manufacturing and promoting opioids, various state and local

governments, third parties, and individuals sued Endo and its affiliates. See ECF No. 315 ¶¶ 1–3,

21, 42–49. Thousands of lawsuits were filed across the country against Endo and its affiliates. See

ECF No. 319-10 at 50. A sample of the lawsuits naming Endo International plc and/or at least one

of its affiliates as a defendant includes: California v. Purdue Pharma, No. 30-2014-00725287 (Cal.

Super. Ct.); Chicago v. Purdue Pharma, No. 1:14-cv-4361 (N.D. Ill.); UFCW, Local 23 and

Employers Health Fund v. Endo Pharmaceuticals, Inc., No. 180403485 (Pa. Ct. Com. Pl.); Iron

Workers District Council of Philadelphia and Vicinity, Benefit Fund v. Abbott Laboratories, Inc.,

No. 180502442 (Pa. Ct. Com. Pl.); St. Charles County, Missouri v. Purdue Pharma L.P., No. 4:18-

cv-1376 (E.D. Mo.); Koechley v. Purdue Pharma, Inc., No. G-4801-CI-0201803741-000 (Ohio Ct.

Comm. Pl.); Riling v. Purdue Pharma L.P., No. 2:18-cv-1390 (S.D. W. Va.); Florida v. Purdue

Pharma L.P., No. 2018-CA-1438 (Fla. Cir. Ct.); Estate of Brockel v. Couch, No. 2017-CV-902787

(Ala. Cir. Ct.); Georgia v. Purdue Pharma L.P., No. 19-A-00060-8 (Ga. Super. Ct.); County of

Walker v. Abbott Laboratories, No. 1929076 (Tex. Dist. Ct., Walker Cnty.); Mississippi v. Purdue

Pharma L.P., No. 25CH1:15-cv-1814 (Miss. Ch. Ct.); Brumbarger v. Purdue Pharma L.P., No.

1:19-op-45469 (N.D. Ohio); Paul v. Purdue Pharma L.P., No. 1:19-op-45467 (N.D. Ohio);

Berzinski v. Purdue Pharma L.P., No. 1:19-op-45503 (N.D. Ohio); and Alsup v. McKesson Corp.,

No. 1:20-op-45083 (N.D. Ohio). See ECF No. 317 ¶¶ 15–31.

Endo ultimately filed for Chapter 11 bankruptcy before the U.S. Bankruptcy Court for the

Southern District of New York on August 16, 2022. See ECF No. 341-2 ¶ 1; see also In re Endo

Int’l plc, No. 22-22549 (Bankr. S.D.N.Y. Aug. 16, 2022). The bankruptcy court confirmed a

reorganization plan, which, in conjunction with a trust agreement, provided for the formation of a

general unsecured creditors’ trust and the appointment of Plaintiff Matthew Dundon as trustee. See

ECF No. 341-2 ¶ 1; ECF No. 315 ¶¶ 54–55. The reorganization plan provides for “full and final

satisfaction, settlement, release, and discharge of” numerous opioid claims. See Fourth Amended

Plan at 99–102, In re Endo Int’l plc, No. 22-22549 (Bankr. S.D.N.Y. Mar. 18, 2024).

2. The Trustee’s Instant Suit Against Certain Insurers

On August 15, 2024, Plaintiff, as trustee of the Endo General Unsecured Creditors’ Trust

(hereinafter, “the Trustee”), brought the instant action for a declaratory judgment and breach of

contract against certain insurers that issued policies to Endo. ECF No. 1; see also ECF No. 113

(operative complaint). The Amended Complaint alleged that Defendants were obligated to cover

Endo’s liability and defense costs arising from the above opioid litigation.1 See ECF No. 113

¶¶ 119, 139. Specifically, the Trustee alleged that three products policy towers and Endo’s

commercial general liability policies provided coverage for various opioid lawsuits:

1. The 2013–2014 products insurance policies, which the Trustee alleged provided

coverage for lawsuits brought by state and local governments. See id. ¶ 122.

2. The 2016–2017 products insurance policies, which the Trustee alleged provided

coverage for lawsuits brought by individuals. See id. ¶¶ 87, 122.

3. The 2017–2018 products insurance policies, which the Trustee alleged provided

coverage for lawsuits brought by third-party payors. See id.

4. The commercial general liability policies issued from 2010–2022, which the

Trustee alleged provided coverage for the opioid lawsuits in connection with

“Unbranded Promotional Activities.” See id. ¶¶ 112, 135, 139.

The 2016–2017 products insurance policies are most relevant to the 2016-17 Products

Insurers’ Motions (ECF Nos. 307, 308, 311) and are discussed in greater detail below.2

1 The Amended Complaint also alleged that certain Defendants were obligated to cover Endo’s

liability and defense costs related to litigation over transvaginal surgical mesh products and

products containing ranitidine. See ECF No. 113 ¶¶ 73, 107, 119. However, the instant Motion

concerns only coverage for the cost of opioid litigation. The Trustee voluntarily dismissed

coverage claims related to ranitidine, see ECF No. 249 at 2–3; ECF No. 250 at 2–3, and the claims

seeking coverage for surgical mesh litigation are subject to a separate briefing scheduling. See ECF

No. 346 at 1–3.

2 Defendants filed separate summary judgment motions and briefing with respect to each of the

above four categories of insurance coverage. See infra Section I.C. The Court likewise issues

separate summary judgment rulings for each category of coverage. See Commercial General

Liability Summary Judgment Order & Opinion; 2013–2014 Tower Summary Judgment Order &

Opinion; 2017–2018 Tower Summary Judgment Order & Opinion.

B. The 2016-2017 Products Insurance Policies

1. The Primary Policy

Gemini Insurance Company (“Gemini”) issued primary Products Insurance Policy Number

GL_12089-4 for the September 26, 2016 to September 26, 2017 policy year (the “2016-17 Gemini

Policy”), which has a limit of liability of $10 million and a self-insured retention of $25 million.

ECF No. 310-6.

The 2016-17 Gemini Policy states in Coverage Part A – Products Completed Operations

Liability that it will provide coverage for “all damages that the insured becomes legally obligated

to pay for bodily injury or property damage included within the products completed operations

hazard.”3 ECF No. 311-2 ¶ 40; ECF No. 310-6 at 37. Coverage applies only when the claim for

bodily injury or property damage is first made during the policy period or extended reporting

period and the injury occurs between the retroactive date and the policy end date or, if applicable,

extended coverage period. ECF No. 311-2 ¶ 41.

2. The Excess Policies

The first excess policy above the 2016-17 Gemini Policy is Ironshore Excess Policy No.

001160205, which was issued for the September 26, 2016 to September 26, 2017 policy year (the

“2016-17 Ironshore Policy”) and has a limit of liability of $15 million above $35 million in

combined underlying limits and retentions. Id. ¶ 53; ECF No. 315-19. The 2016-17 Ironshore

Policy follows form to the underlying 2016-17 Gemini Policy, subject to any additional terms,

conditions of, and endorsements attached to the 2016-17 Ironshore Policy. ECF No. 311-2 ¶¶ 53–

54.

3 The policy marks defined words in bold. For readability, the Court omits the use of bold text.

The 2016-17 Ironshore Policy provides coverage for “those sums that the Insured becomes

legally obligated to pay as Loss in excess of the Underlying Limits,” but which “must be

attributable to an Occurrence.” Id. ¶ 55. Coverage applies only when the Claim is first made during

the Policy Period and the injury takes place between the retroactive date and policy end date or, if

applicable, extended coverage period. Id. ¶ 56. The second through fifth layer excess policies were

issued by Underwriters, TDC, Newline, and Starstone. Like the 2016-17 Ironshore Policy, the

2016-17 Underwriters, TDC, Newline and Starstone Policies follow form to the 2016-17 Gemini

Policy, subject to each of their own additional terms, conditions, and endorsements. Id. ¶ 57.

3. The Underlying PI/NAS Opioid Claims

As discussed, the Trustee alleges that the 2016–2017 products insurance policies provided

coverage for lawsuits brought by or on behalf of individuals for personal injury claims and claims

related to neo-natal abstinence syndrome that were allegedly caused by opioids (“PI/NAS

Claims”). ECF No. 113 ¶¶ 87, 122. Three of the PI/NAS Claims were filed against Endo during

the 2016-17 policy period:

a. The Hughes Lawsuit

The first claim, filed on September 20, 2017, is titled Linda Hughes, mother of decedent,

Nathan Hughes v. Mallinckrodt Brand Pharmaceuticals, Inc., et al., Circuit Court of the City of

St. Louis, State of Missouri, No. 1722-CC11044 (the “Hughes Lawsuit”). ECF No. 310-3. The

claim alleges that plaintiff’s son, Nathan Hughes, died of an opioid overdose on July 9, 2016. Id.

at 2; ECF No. 311-2 ¶ 9. The complaint alleged that the defendants, including Endo, “employed

and used deception in connection with the sale and advertisement of opioid medications,” “falsely

marketed their opioid medications to Nathan Hughes as safe for the treatment of chronic pain,”

and “conceal[ed], suppress[ed], or omitt[ed] the material fact that prolonged use of opioid

medications carries an unreasonably high risk of addiction and death.” ECF No. 311-2 ¶ 10; ECF

No. 310-3 at 17–18. Hughes asserts claims for strict products liability, negligence, violation of the

Missouri Merchandising Practices Act, and fraudulent misrepresentation. ECF No. 311-2 ¶ 15; see

ECF No. 310-3.

b. The Staubus Lawsuit

The second claim, filed on June 13, 2017, is titled Barry Staubus, et al. v. Purdue Pharma,

L.P., et al., Circuit Court for Sullivan County at Kingsport, Tennessee, Case No. C41916 (the

“Staubus Lawsuit”). ECF No. 310-1. The lawsuit asserts a NAS claim on behalf of “Baby Doe,”

alleging that Baby Doe was born addicted to opioids as a result of a “concerted effort” by Endo

and the other defendants “to mislead doctors and the public about the need for, and addictive nature

of, opioid drugs.” Id. at 3; ECF No. 311-2 ¶ 17. The claim sought damages under the Drug Dealer

Liability Act, Tenn. Code Ann. § 29-38-106(a)(2), and for statutory and common law nuisance.

ECF No. 311-2 ¶ 26; see ECF No. 310-1.

c. The Lewis Lawsuit

The third claim, filed on June 29, 2017, is titled Michael Ray Lewis v. Purdue Pharma L.P.,

et al., United States District Court for the Western District of Arkansas, Docket No. 5:17-cv-05118

(the “Lewis Lawsuit”). ECF No. 310-2. Filed by Michael Ray Lewis, who alleges that he became

addicted to opioids after being prescribed painkillers in 2005, the lawsuit sought class certification

for two putative classes: one sought damages for individuals prescribed a defendant company’s

opioid who required medical treatment for overdose or addiction, and the other sought medical

monitoring for all persons prescribed such opioids for any reason during a five-year period. Id. at

56; ECF No. 311-2 ¶¶ 27–28. The complaint alleges that, dating back to the late 1990s, Endo and

the other defendants “began a marketing scheme designed to persuade doctors and patients that

Opioids can and should be used for chronic pain, a far broader group of patients much more likely

to become addicted and suffer other adverse effects from the long-term use of Opioids.” ECF No.

311-2 ¶ 29; ECF No. 310-2 at 3. As a result of the defendants’ actions, Lewis alleged that he

became addicted to opioids. ECF No. 311-2 ¶ 32; ECF No. 310-2 at 9. The claim alleges violations

of Arkansas’s Deceptive Trade Practices Act, unjust enrichment, and states a claim for medical

monitoring and other injunctive relief. ECF No. 311-2 ¶ 33; see ECF No. 310-2.

C. Procedural History

After the Trustee brought the above captioned action on August 15, 2024, the matter was

stayed with respect to some Defendant-insurers—Endurance Specialty Insurance Ltd., Liberty

Specialty Markets Bermuda Limited, and Markel International Insurance Company Limited—

because these Defendants invoked arbitration clauses in their insurance policies. See ECF Nos.

138, 139, 140. Certain claims were also stayed against Defendant Ironshore Specialty Insurance

Company because some of its policies contained arbitration clauses, which Ironshore invoked. See

ECF No. 214 at 1 & n.1; see also ECF No. 213-1 at 2 n.1. With respect to all other claims and

Parties, the case proceeded.

On June 10, 2025, the Court held an initial pretrial conference, at which the Parties

identified certain key (“bellwether”) issues in the litigation and agreed to propose early summary

judgment briefing schedules on these issues. See ECF No. 281 at 1. The Parties subsequently

identified bellwether issues and proposed summary judgment briefing deadlines, which the Court

adopted. See ECF Nos. 286, 287, 288, 289. As relevant here, the bellwether issues identified for

the 2016–2017 tower are as follows:

1. Claims-Made Requirement, Batching, and Extended

Reporting. Whether the individual opioid lawsuits were claims first

made during the applicable policy period, including whether the

lawsuits are subject to “batching” or other provisions that bring them

within the policy period;

2. Notice. Whether notice of the individual opioid lawsuits was

provided to the insurers “as soon as practicable” or otherwise as

provided under the affected policies, and whether any deficient

notice means that the insurers are not obligated to provide defense

or indemnity for the opioid claims;

3. Occurrence Requirement and Fortuity-Based Exclusions.

Whether the opioid lawsuits allege an “occurrence” within the

meaning of the affected policies, and whether the lawsuits’

allegations fall within the policies’ exclusions for expected or

intended injuries, intentional acts, or similar exclusions;

4. Prior Knowledge. Whether, based on the opioid lawsuits’

allegations or prior reporting of claims, the insured knew of facts

prior to the policy period that affect whether the insurers are

obligated to provide defense or indemnity for the opioid claims.

ECF No. 288 at 2.

Pursuant to the briefing schedules, Defendants moved for summary judgment with respect

to the bellwether issues on August 8, 2025. See ECF No. 314 (Defendants’ motion regarding

commercial general liability policies); ECF No. 316 (Defendants’ motion regarding 2013–2014

tower); ECF No. 311 (Defendants’ motion regarding 2016–2017 tower); ECF No. 312

(Defendants’ motion regarding 2017–2018 tower); ECF No. 306 (Defendants the LSR

Underwriters’ motion); ECF No. 308 (Defendant Gemini Insurance Company’s motion regarding

2016–2017 tower); ECF No. 309 (Defendant Gemini Insurance Company’s motion regarding

2017–2018 tower). The Trustee filed its opposition briefs and cross-moved for summary judgment

on October 6, 2025. See ECF No. 339 (cross-motion regarding commercial general liability

policies); ECF No. 339-29 (accompanying opposition and cross-motion brief); ECF No. 341

(cross-motion regarding the three products policy towers); ECF No. 349 (accompanying

opposition and cross-motion brief).4 Defendants filed reply briefs on November 20, 2025 and

4 The sealed version of the Trustee’s opposition brief was originally filed at ECF No. 344, but that

version of the brief did not contain complete pagination. A version with complete pagination was

November 25, 2025. See ECF Nos. 357, 358, 359, 360, 361, 362, 365, 368, 374, 375. The Trustee

filed sur-reply briefs on December 19, 2025, see ECF No. 379 (sur-reply brief regarding the

products policy towers); ECF No. 381 (sur-reply brief regarding commercial general liability

policies), and Defendants filed responses to the sur-reply briefs on January 30, 2026, see ECF Nos.

388, 389.

Defendants’ summary judgment motions regarding the 2016–2017 Products Policy Tower

(ECF No. 307, 308, 311), and the Trustee’s Cross-Motion (ECF No. 341), are now before this

Court.

II. LEGAL STANDARD

Summary judgment is proper when the moving parties demonstrate that “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). Accordingly, “[s]ummary judgment is appropriate when the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact.” Wright v. Corning, 679 F.3d 101, 105

(3d Cir. 2012) (internal quotations omitted). The Court is not to engage in “[c]redibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences from the

facts” as those are functions that are reserved for the jury. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). A fact is considered “material” if it could “affect the outcome of the suit

under the governing law.” Id. at 248. Where applicable, a party may move for summary judgment

on a claim based on a pure question of law. See Sheline v. Dun & Bradstreet Corp., 948 F.2d 174,

176 (5th Cir. 1991).

refiled at ECF No. 349, and the Parties cite to this docket entry when referring to the Trustee’s

opposition brief.

The party seeking summary judgment has the initial burden “of informing the district court

of the basis for its motion,” and identifying the specific information on the record that “it believes

demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). Once the moving party has satisfied its burden, “the nonmoving party must come

forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis

omitted). The nonmoving party must demonstrate more than a “mere existence of a scintilla of

evidence” in support of its position, Anderson, 477 U.S. at 252. “Conjecture and speculation will

not create a genuine issue of material fact.” Wiest v. Tyco Elec. Corp., 812 F.3d 319, 328 (3d Cir.

2016). Indeed, the non-movant is not permitted to “rely on unsupported allegations, but must go

beyond pleadings and provide some evidence” showing a genuine dispute exists for trial. Jones v.

United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). If the record, taken as a whole, would not

“lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.”

Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 587 (internal quotations omitted).

III. DISCUSSION

A. Any PI/NAS Claims Made After the 2016-17 Policy Period Are Not Covered

Under the 2016-17 Products Policies

The 2016-17 Products Policies provide “claims made” coverage.5 Under a “claims made”

policy, coverage is available only for claims that were first made during the policy period or, if

applicable, an extended reporting period and the injury occurs between the retroactive date and the

5 The primary 2016-17 policy, issued by Gemini Insurance Company, provides “claims made”

coverage, ECF No. 308 at 8; ECF No. 310-6, and the excess policies follow form to—or follow

form to other policies that follow form to—the underlying 2016-17 Gemini Policy, ECF No. 311-

1 at 11–12; ECF No. 315-19 at 3; ECF No. 315-20 at 5; ECF No. 315-21 at 9; ECF No. 315-22 at

25; ECF No. 315-23 at 6.

policy end date or, if applicable, the extended coverage period. ECF No. 310-6 at 37. “Claims

made” policies are different than “occurrence” policies, which provide coverage for all claims

arising from injuries that take place during the relevant policy period regardless of when the claim

is actually made. See Lehigh Valley Health Network v. Exec. Risk Indemn., Inc., No. 1999-cv-5916,

2001 WL 21505, at *7 (E.D. Pa. Jan. 10, 2001). Because there is a fixed date for the end of an

insurer’s exposure under a claims made policy, an insurer assumes less risk under a claims made

policy than under an occurrence policy, allowing insurers to issue claims made policies for lower

premiums. Id.

“The threshold issue under a claims-made policy is whether the claims were first made

during the effective dates of the policies.” Home Ins. Co. v. Law Offices of Jonathan DeYoung,

P.C., 32 F. Supp. 2d 219, 224 (E.D. Pa. 1998). Here, it is undisputed that only three PI/NAS claims

were first made against Endo during the 2016-17 policy period: Hughes, Staubus, and Lewis. ECF

No. 315 ¶ 21; ECF No. 308-1 ¶ 7; see ECF No. 349 at 85. All other PI/NAS claims do not qualify

for coverage under the 2016-17 Products Policies because Endo did not elect to batch the PI/NAS

Claims pursuant to the Batch Claims Coverage Endorsement and the extended reporting period

provisions are not applicable. The 2016-17 Gemini Policy includes a Batch Claims Coverage

Endorsement that allows Endo to designate future claims alleging “loss connected to” a “critical

fact” first identified during the policy period as a “batch claim,” thereby tethering such claims to

the 2016-17 policy period. ECF No. 310-6 at 25–28. Endo never batched any PI/NAS or other

opioid claims under the 2016-17 Gemini Policy.6 ECF No. 308-1 ¶¶ 20–21. And none of the

6 The Court notes that the Trustee does not develop an argument for batching in his opposition,

stating instead that he cannot “rule out [the] possibility” of coverage based on batching “without

further discovery,” in light of the early nature of the summary judgment briefing. ECF No. 349 at

114 n.94. The Trustee points out, for instance, that Defendants have not produced correspondence

with Endo regarding “notice of any batched claims under the Batch Coverage Endorsement.” Id.

extended reporting periods provided for by the 2016-17 Gemini Policy were available to Endo to

cover claims made after the policy period.

1. The Basic Extended Reporting Period Does Not Provide Coverage for Claims

Made After the 2016-17 Policy Period

The 2016-17 Gemini Policy provides for a Basic Extended Reporting Period (“BERP”)

that allows coverage for certain claims made outside the policy period when one of three limited

requirements is met. ECF No. 310-6 at 16. The BERP is part of an endorsement to the 2016-17

Gemini Policy (the “Extended Reporting Endorsement”) that also provides for a Supplemental

Extended Reporting Period (“SERP”) that Endo may choose to purchase prior to the expiration of

the policy period. Id. at 17. The Extended Reporting Endorsement contains three sections: Section

1 details “When Extended Reporting Periods Apply,” Section 2 describes the “Basic Extended

Reporting Period,” and Section 3 describes the “Supplemental Extended Reporting Period.” Id. at

16–17. Section 1 states that:

a. Extended reporting periods apply to all claims-made coverages where:

(1) This Policy is canceled or not renewed by you or by us;

(2) We renew or replace this Policy with insurance that:

(a) Has a retroactive date later than the date shown in the Declarations; or

(b) Does not apply to loss covered on a claims-made basis; or

(3) The First Named Insured purchases EXTENDED COVERAGE as set forth

above.

at 129. Given the current posture of the case, further briefing on batching may be required after

more discovery is completed. As set forth in the accompanying Order, the Parties shall confer and

address the impact of the Court’s summary judgment rulings.

Id. at 16. The plain language of Section 1 clearly delineates that there are only three circumstances

under which an extended reporting period will apply to cover claims made after the policy period.

Under Pennsylvania law,7 insurance policies are contracts governed by “traditional principles of

contract interpretation.” Kurach v. Truck Ins. Exch., 235 A.3d 1106, 1116 (Pa. 2020). Courts must

interpret the policy as a whole and “give unambiguous terms [in the policy] their plain meaning,”

unless there is evidence of a contrary trade usage or industry custom. See Nationwide Life Ins. Co.

v. Commonwealth Land Title Ins. Co., 687 F.3d 620, 623 (3d Cir. 2012).

The Trustee attempts to argue that Section 1 of the Extended Reporting Endorsement acts

only as a limitation upon Section 3 and not upon Section 2. ECF No. 349 at 101–07. The Trustee’s

primary basis for this argument is that Section 2 states that “[a] basic extended reporting period is

automatically provided without additional charge.” Id. at 102–03; ECF No. 310-6 at 16 (emphasis

added). According to the Trustee, because the word “automatic” is not defined in the insurance

policy, it takes on its ordinary meaning, which, as defined by the Oxford English Dictionary, is

“self-acting; having the power of motion within itself.” ECF No. 349 at 102–03; Automatic, Oxford

English Dictionary, https://www.oed.com/dictionary/automatic_adj (last visited Jan. 13, 2026).

The Trustee goes on to argue that Section 2 “does not state that the BERP applies only if the policy

is canceled or non-renewed, among other triggering events,” and so, “the BERP stands alone and

must be construed according to its terms, clearly stating that a BERP goes into effect automatically

upon the expiration of the policy period.” ECF No. 349 at 103.

However, Section 2 did not need to state that the BERP applies only under certain

conditions because Section 1 supplied the conditions under which both the BERP and the SERP

7 The Parties agree that the 2016-17 Products Policies are governed by Pennsylvania law. See ECF

No. 311-1 at 22 n.7.

are available. The Trustee contends that while Section 2 stands alone solely because of the word

“automatically,” Section 3 remains subject to the limitations of Section 1 because Section 3 does

not state that the SERP applies “automatically.” Id. at 104. This argument is unavailing because

reading Section 2 in conjunction with the other sections in the Extended Reporting Endorsement,

it is clear that the statement “[a BERP] is automatically provided without additional charge” means

that unlike the SERP, which is an extended reporting period that would only be available if Endo

elects to pay for it, the BERP is available to Endo for free. Because the SERP requires an additional

payment in order to be available to Endo, the SERP is not “automatically provided.” Both the

BERP and the SERP, however, are subject to the limitations of Section 1 and as such, both extended

reporting periods are only available to Endo when certain conditions are met. This interpretation

of the word “automatically” in Section 2 allows the Extended Reporting Endorsement to be read

“as a whole and give[s] effect to the whole [endorsement].” See Wilson v. USI Ins. Serv. LLC, 57

F.4th 131, 143 (3d Cir. 2023). Indeed, even the Trustee seems to endorse this meaning of the word

“automatically” in Section 2, stating that “neither [the SERP nor the Extended Coverage Period]

applies automatically but [are policies] that Endo instead could have opted to purchase.” ECF No.

349 at 104.

The Trustee’s other arguments that Section 1 does not apply as a limitation to Section 2 are

similarly unpersuasive. For example, the Trustee notes that there is no mention of limitations or

conditions in Section 2 regarding the applicability of the BERP and states that Gemini could have

included language to explicitly link the BERP in Section 2 to Section 1 if it had intended to restrict

the BERP by Section 1’s limitations. Id. at 103. However, as Gemini points out in its sur-reply,

there is no language in Section 3 linking the SERP to Section 1 yet the Trustee nonetheless

maintains that Section 1 applies in full force to the SERP. ECF No. 374 at 9; ECF No. 349 at 104.

The Trustee also argues that the definitions section of the 2016-17 Gemini Policy proves that the

BERP operates independently of the other sections in the Extended Reporting Endorsement. ECF

No. 349 at 104. This argument is a bit difficult to follow, and an examination of the definitions of

the various terms used in the Extended Reporting Endorsement—including “basic extended

reporting period,” “supplemental extended reporting period,” “extended reporting period,” and

“extended coverage period”—does not show that the BERP is intended to always be available upon

expiration of the policy period. The definitions are consistent with a BERP that is only available

when one of the conditions specified in Section 1 is satisfied.8

Thus, the BERP is only available if (1) the 2016-17 Gemini Policy is canceled or not

renewed; (2) the 2016-17 Gemini Policy is replaced with a policy that has a retroactive date later

than the one specified in the 2016-17 Policy or that is not a claims made policy; or (3) Endo

purchases extended coverage. None of the three conditions was met with respect to the 2016-17

Gemini Policy, and so the Trustee cannot use the BERP to save the PI/NAS Claims that were first

made after the 2016-17 Policy Period.

8 Section 1 of the Extended Reporting Endorsement states that “extended reporting periods apply

to all claims-made coverage” under the three conditions listed. ECF No. 310-6 at 16 (emphasis

added). Section 1 uses the plural form for “extended reporting periods.” The 2016-17 Gemini

Policy defines “extended reporting period” as “the period of time commencing immediately

following the expiration of the policy period or, if applicable, the extended coverage period, and

extending until the expiration date of the extended reporting period set forth in the Policy or as

amended by endorsement.” Id. at 75. “Basic extended reporting period” is defined as “the period

of time commencing immediately following the policy period and lasting for sixty (60) days.” Id.

at 71. “Supplemental extended reporting period” means “the period of time commencing upon the

expiration of the basic extended reporting period and lasting until the end of the supplemental

extended reporting period as set forth in the Policy or by endorsement.” Id. at 80. The definitions

of both the “basic extended reporting period” and “supplemental extended reporting period”

clearly fall within the definition of the general “extended reporting period”; if anything, the

definition of “basic extended reporting period” matches up better with that of “extended reporting

period” than that of “supplemental extended reporting period.” Thus, the definitions provided for

in the 2016-17 Gemini Policy help prove that Section 1 of the Extended Reporting Endorsement

was intended to apply to both Sections 2 and 3.

2. The 2017-18 Gemini Policy Was a Renewal of the 2016-17 Gemini Policy

The Trustee does not dispute that the renewal policy, the 2017-18 Gemini Policy, has the

same retroactive date as the 2016-17 Gemini Policy and provides claims made coverage, or that

Endo never purchased extended coverage under the 2016-17 Gemini Policy. ECF No. 315 ¶ 22;

compare ECF No. 310-7 (2017-18 Gemini Policy), with ECF No. 310-6 (2016-17 Gemini Policy);

ECF No. 310 ¶ 67. Even so, the Trustee argues in the alternative that under Pennsylvania law, the

2016-17 Gemini Policy was not “renewed” because Gemini “substantially altered the scope of

coverage available under” the 2017-18 Gemini Policy such that it should not be deemed a

“renewal.” ECF No. 349 at 108. The term “renewal policy” is defined in the 2016-17 Gemini

Policy as “a life science liability policy issued to you by us where we have provided continuous,

uninterrupted, substantially similar coverage to you from the initial coverage date to the

commencement of the policy period.” ECF No. 310-6 at 79. There are only two notable changes

between the 2016-17 Gemini Policy and the 2017-18 Gemini Policy: the later policy (1) offered

$5 million in limits, down from $10 million under the prior policy, and (2) changed the premium.

ECF No. 341-5 ¶¶ 96–98; compare ECF No. 310-7, with ECF No. 310-6. The premium price of

the renewal policy went down from that of the earlier policy, ECF No. 341-5 ¶ 98, which makes

sense given the lower policy limits of the 2017-18 Gemini Policy. Although the coverage limit was

reduced under Endo’s primary policy, the Gemini Policy, for the 2017-18 policy year, the same

total limit of coverage was nonetheless maintained in Endo’s overall tower of insurance through

follow-form excess policies. ECF No. 315 ¶¶ 22–30, 35–41. Thus, while notable, the two changes

to the 2017-18 Gemini Policy are not material and the 2017-18 Gemini Policy satisfies the

definition of “renewal policy” under the 2016-17 Gemini Policy because it provides “continuous,

uninterrupted, substantially similar coverage.” See ECF No. 310-6 at 79.

The Trustee’s reliance on Indian Harbor Insurance Co. v. F & M Equipment, Ltd., 804 F.3d

310 (3d Cir. 2015), to support its argument that the 2017-18 Gemini Policy was not a “renewal” is

misplaced. The “renewal” policy at issue in Indian Harbor contained four significant changes that

materially altered the terms of the policy: (1) reducing the length of coverage offered from ten

years to one year; (2) reducing the policy limits from $14 million to $5 million; (3) eliminating

coverage for one of twelve previously insured sites; and (4) changing the premium. Id. at 312, 315.

In contrast, the 2017-18 Gemini Policy included only two minor changes that did not curtail the

scope and length of coverage in the way that the policy in Indian Harbor did. See id. at 315. And

although the 2017-18 Gemini Policy provided for a lower coverage limit, Endo still received the

same overall amount of coverage through a tower of excess policies. The Third Circuit in Indian

Harbor stated that “it is clear under our precedent that a renewal need not be identical to the

original.” Id. While the Trustee faults the 2017-18 Gemini Policy for not containing the exact same

terms as the previous policy, it does contain terms that are substantially similar to those in the

previous policy, and as such, constitutes a “renewal” of the 2016-17 Gemini Policy.

In any case, Endo’s acceptance of the 2017-18 Gemini Policy, including the changed terms,

constitutes a renewal. Circuit courts across the country have held that “the knowing acceptance of

a successor policy with different terms constitutes a renewal of the prior policy.” Am. Cas. Co. of

Reading, Pa. v. Baker, 22 F.3d 880, 893 (9th Cir. 1994) (collecting cases from the 1st, 3rd, 8th,

and 10th circuits reaching the same conclusion). “Even in a state where ‘renewal’ is strictly defined

as ‘continuation of coverage on the same, or nearly the same, terms as the policy being renewed,’

acceptance of new terms constitutes a renewal.” Am. Cas. Co. of Reading, Pa. v. Continisio, 17

F.3d 62, 66 (3d Cir. 1994) (applying New Jersey law). The Court in Indian Harbor ruled that “for

a contract to be considered a renewal, it must contain the same, or nearly the same, terms as the

original contract,” applying Pennsylvania law. 804 F.3d at 311, 313. Because Endo accepted the

terms of the 2017-18 Gemini Policy, the 2017-18 policy constituted a renewal of the 2016-17

Gemini Policy and as such, none of the conditions of Section 1 of the Extended Reporting

Endorsement was met and the BERP is not applicable to the PI/NAS Claims made outside the

2016-17 policy period.

3. PI/NAS Claims Filed After the 2016-17 Policy Period Do Not Qualify as

Losses “Associated With” a Critical Fact

Even if the changes in the 2017-18 Gemini Policy were material enough such that the 2017-

18 Gemini Policy would be considered a non-renewal, the BERP would still not save the later-

filed PI/NAS Claims because those claims are not “losses” “associated with” a “critical fact.” The

Extended Reporting Endorsement provides that when available, a BERP lasts for six years “for

loss associated with a critical fact provided that the critical fact is reported to [Gemini] within sixty

(60) days of the expiration of the policy period.” ECF No. 310-6 at 16. “Loss” is defined in the

2016-17 Gemini Policy as “bodily injury, . . . personal injury . . . or any other loss, injury, damage

or expense covered by this Policy.” Id. at 77. A “critical fact” is defined, in relevant part, as “a

verbal or written demand for any damages which would be covered under this Policy.” Id. at 72.

Following from these definitions, a six-year BERP would apply to injuries “associated with” a

demand for damages if that demand is reported to the insurer within sixty days of the end of the

policy period.

During the 2016-17 Policy Period, Endo reported one PI/NAS Claim to Gemini, the

Staubus Lawsuit. ECF No. 341-5 ¶ 46; ECF No. 349 at 110. Using the Staubus Lawsuit as the

reported critical fact, the Trustee seeks coverage for all PI/NAS Claims filed after the 2016-17

Policy Period because the later-filed claims are “associated with” the Staubus Lawsuit in that the

later claims and Staubus all assert “a common set of facts, circumstances, or events.” ECF No. 349

at 113. The Trustee’s interpretation of the BERP provision contravenes the plain meaning of the

terms in the BERP. As discussed above, the BERP applies to injuries “associated with” a single

demand for damages. Injuries asserted in the later-filed PI/NAS Claims are not associated with the

Staubus Lawsuit because the later claims allege distinct bodily injuries suffered by individual

plaintiffs who are not the plaintiffs named in Staubus. The Trustee attempts to circumvent this

straightforward meaning of the BERP by claiming that the phrase “associated with” is broad

enough to sweep in all later-filed claims involving injuries that were caused by the same facts and

circumstances that caused the injuries alleged in Staubus. Id. at 112–113. That sweeping meaning

of “associated with” is in tension with the use of “associated with” in other parts of the policy—

namely, the exclusions section. That section states that “[w]here an exclusion applies to loss, it

shall also apply to any covered defense costs associated with such loss.” ECF No. 310-6 at 56. The

exclusions section envisions a close relationship between a “loss” and corresponding “defense

costs.” See id. The ordinary meaning of the exclusions language is that where an exclusion applies,

it bars coverage both for the liability stemming from a loss and the cost of defending against the

loss.

According to the Trustee, though, the phrase “associated with” means something far

broader. See ECF No. 349 at 112–13. As the Trustee sees it, defense costs could be associated with

a loss, even if they were not “directly tied” to the loss, if they are connected by the same general

factual backdrop—for instance, if the defense costs were incurred in an entirely different suit

involving the opioid epidemic. See id. Such a reading of the exclusions clause is strained, would

sweep in numerous loosely connected defense costs, and defies the ordinary meaning of the

exclusions section. And because the exclusions clause’s use of “associated with” envisions a close

relationship between a loss and defense costs, the basic extended reported period’s use of

“associated with” does too. See Volk v. Ace Am. Ins. Co., 748 F.3d 827, 829 (8th Cir. 2014) (stating

that a term used multiple times in a contract must generally be given the same meaning

throughout). To support his argument that “associated with” is broad enough to sweep in

subsequent injuries caused by the same facts and circumstances that caused the injuries alleged in

an earlier claim, the Trustee cites cases finding that “associated with” is equivalent to the phrases

“relating to” and “in connection with.”9 ECF No. 349 at 112. Yet, the injuries suffered by

individuals in later claims are still not “related to” or “connected with” separate injuries suffered

by separate individuals in an earlier lawsuit.

In conclusion, the BERP cannot be used to extend coverage to PI/NAS Claims filed after

the 2016-17 Policy Period because those claims do not involve losses associated with the Staubus

Lawsuit, which is the only critical fact reported during the 2016-17 Policy Period. In any event,

the BERP was not even available to Endo following the end of the 2016-17 Policy Period because

9 The cases cited by the Trustee interpret language other than the phrase “associated with.” See

CAMICO Mut. Ins. Co. v. Heffler, Radetich & Saitta, LLP, No. 11-cv-4753, 2013 U.S. Dist. LEXIS

91649, at *25 (E.D. Pa. June 27, 2013) (interpreting “arising from, related to or in connection

with,” and noting that the different parts of this phrase should be interpreted to have different

meaning); ACE Cap. Ltd. v. Morgan Waldon Ins. Mgmt., LLC, 832 F. Supp. 2d 554, 570–71 (W.D.

Pa. 2011) (interpreting phrase “based upon, arising out of, directly or indirectly relating to or in

any way involving”); Phoenix Leasing, Inc. v. Sure Broad., Inc., 843 F. Supp. 1379, 1388 (D. Nev.

1994) (interpreting “with respect to” in the phrase “any action brought on or with respect to this

agreement,” and making no mention of “associated with” at all), aff’d, 89 F.3d 846 (9th Cir. 1996)

(summarily affirming). And to the extent these cases mention the phrase “associated with,” they

do so in passing by quoting the same excerpt of the same case—Coregis Ins. Co. v. Am. Health

Found., Inc., 241 F.3d 123 (2d Cir. 2001). See Ace Cap. Ltd., 832 F. Supp. 2d at 570–71 (quoting

Coregis Ins. Co., 241 F.3d at 128–29); Camico Mut. Ins. Co., 2013 U.S. Dist. LEXIS 91649, at

*25 (quoting Ace Cap. Ltd., 832 F. Supp. 2d at 570–71 (quoting Coregis Ins. Co., 241 F.3d at 128–

29)). But in Coregis, the court interpreted the phrase, “[a]rising out of, based upon or related to,”

and it relied on the fact that each part of this phrase should be given independent meaning. 241

F.3d at 124, 128; cf. Witzke v. Femal, 376 F.3d 744, 753 (7th Cir. 2004) (concluding that the Prison

Litigation Reform Act’s use of multiple terms in a list reflected an intent to broaden the reach of

the statute). Moreover, it mentioned the phrase “associated with” only in passing and to shed light

on the meaning of “related to.” Coregis, 241 F.3d at 128–29. Neither Coregis, nor other authority

cited by the Trustee, tips the scales toward the Trustee’s reading.

the 2016-17 Gemini Policy was renewed, so none of the conditions set forth in the Extended

Reporting Endorsement for triggering the BERP was met. Having found that all PI/NAS Claims

made after the 2016-17 Policy Period are not covered under the BERP, or any other provision of

the 2016-17 Gemini Policy, the Court declines to comment on any other arguments made by the

Parties pertaining to the availability of or scope of the BERP.

B. The Three PI/NAS Claims First Made During the 2016-17 Policy Period Are

Covered Under the 2016-17 Products Policies

There are three PI/NAS claims that were first made against Endo during the 2016-17 policy

period: Hughes, Staubus, and Lewis. ECF No. 315 ¶ 21; ECF No. 308-1 ¶ 7. The Products Insurers

attempt to avoid coverage for these three claims by arguing that the claims do not fit the definition

of an “occurrence” and are subject to a number of exclusions under the 2016-17 Products Policies.

ECF No. 311-1 at 22–31; ECF No. 308 at 19–22; ECF No. 307 at 10–15. For the reasons stated

below, these arguments are unavailing.

1. Hughes, Staubus, and Lewis Allege Covered “Occurrences”

For claims to be covered, the 2016-17 excess policies require that the damages “must be

attributable to an occurrence,” which is defined as “an accident, including continuous or repeated

exposure to substantially the same general harmful conditions.” ECF No. 311-2 ¶¶ 42, 55; ECF

No. 315-19 at 6; ECF No. 310-6 at 78. Under Pennsylvania law, “the term ‘accident’ within

insurance policies refers to an unexpected and undesirable event occurring unintentionally.” Busby

v. Steadfast Ins. Co., 420 F. Supp. 3d 289, 292 (E.D. Pa. 2019) (citing Donegal Mut. Ins. Co. v.

Baumhammers, 938 A.2d 286, 292 (Pa. 2007)). “[I]t is well established that the test of whether the

injury or damage is caused by an accident must be determined from the perspective of the insured.”

Nationwide Mut. Fire Ins. Co. of Columbus v. Pipher, 140 F.3d 222, 226 (3d Cir. 1998).

So, to determine whether the damages alleged in Hughes, Staubus, and Lewis stem from

accidents, the Court must reason from the perspective of Endo whether the injuries asserted by

plaintiffs in the three cases were “unexpected and entirely fortuitous.” See Baumhammers, 938

A.2d at 293. As explained in the Trustee’s sur-reply, as a manufacturer of opioids, Endo could not

have expected that its “lawful and regulated sale of opioid products” would lead to an

unprecedented public health crisis resulting in injuries like those suffered by the plaintiffs in

Hughes, Staubus, and Lewis. See ECF No. 379 at 21–22. Moreover, each of the three lawsuits

alleges negligent conduct by Endo, and “injuries caused by negligence are considered to be the

result of ‘accidents’ within the meaning of insurance policies.” Allstate Prop. & Cas. Ins. Co. v.

Fischer, No. 12-cv-6946, 2013 WL 6145248, at *4 (E.D. Pa. Nov. 20, 2013).

The Products Insurers focus on the lawsuits’ allegations of Endo’s “deliberate business

conduct” to argue that Endo’s actions were intentional and not accidental. ECF No. 311-1 at 25.

The Products Insurers assert that other courts have found that similar allegations do not describe

“accidents” but only cite to cases from the Ninth Circuit and California. Id. at 23–27. In

emphasizing the allegations detailing deliberate actions by Endo, the Products Insurers disregard

the allegations describing negligent or unintentional actions by Endo, which appear in each of the

three lawsuits. The complaint in Hughes states a claim for negligence and alleges that “[a]s a direct

and proximate result of one, several, or all of the foregoing acts of negligence on the part of

Defendant Drug Companies, Plaintiff claims such damages as the trier of fact may deem fair and

just.” ECF No. 310-3 at 16 (emphasis added). The complaint in Staubus alleges that “[t]he

Manufacturer Defendants knowingly, intentionally, recklessly, and/or negligently disseminated

massive quantities of prescription opioids.” ECF No. 310-1 at 78 (emphasis added). The complaint

in Lewis also alleges unintentional conduct because it involves a cause of action for violation of

the Arkansas Deceptive Trade Practice Act (“ADTPA”), which does not require knowledge or

intent to establish. See Curtis Lumber Co. v. La. Pac. Corp., 618 F.3d 762, 776, 780 (8th Cir. 2010)

(“[C]laims pursuant to [the ADTPA] do not require knowing or intentional deception. . . . The

ADTPA claims are viable despite the lack of evidence regarding [defendant’s] knowledge of a

false or deceptive practice or it’s specific intent to deceive.”).

Because Hughes, Staubus, and Lewis all involve allegations of negligence or unintentional

conduct, the three lawsuits allege “occurrences” covered by the 2016-17 excess policies. “[A]n

insurer’s duty to defend an action brought against its insured is to be determined solely by the

allegations contained in the plaintiff’s pleadings.” Pipher, 140 F.3d at 225. Even when a complaint

asserts a cause of action sounding in intentional conduct, such as an intentional tort, as long as the

complaint also asserts a theory of recovery sounding in negligence, the duty to defend is triggered

for an insurance policy that covers occurrences. State Farm Fire & Cas. Co. v. Corry, 324 F. Supp.

2d 666, 672–73 (E.D. Pa. 2004) (finding that insurer owed a duty to defend where a complaint

alleged both intentional conduct and negligent acts by insured); Britamo Underwriters, Inc. v.

Emerald Abstract Co., Inc., 855 F. Supp. 793, 798 (E.D. Pa. 1994) (“[A]n insurer is obliged to

defend the entire claim if some of the allegations in the complaint fall within the terms of coverage

and others do not.”) (internal quotation marks and citation omitted). Thus, to the extent the 2016-

17 excess policies are triggered (if the Trustee can show that Endo has exhausted its self-insured

retention and the underlying policies), the Hughes, Staubus, and Lewis Lawsuits are covered under

the 2016-17 excess policies.

2. The Intentional, Fraudulent or Criminal Acts Exclusion Does Not Bar

Coverage of the PI/NAS Claims

The 2016-17 Products Insurers argue that coverage for the three PI/NAS Claims made

during the 2016-17 Policy Period is barred by the “Intentional, Fraudulent or Criminal Acts”

exclusion in the 2016-17 Gemini Policy. ECF No. 311-1 at 27–29; ECF No. 308 at 22.10 This

exclusion bars coverage for loss “based upon or arising out of” any criminal or fraudulent acts,

intentional non-compliance with the law, or “[a]ny other act intended by the insured to cause loss.”

ECF No. 310-6 at 60. As discussed above, each of the three timely-filed PI/NAS Claims asserts

causes of action sounding in negligence or unintentional conduct, and “negligence claims do not

fall within policy exclusions for injuries ‘expected or intended’ by the insured.” Fischer, 2013 WL

6145248, at *4. Moreover, Pennsylvania law provides that an insurance policy’s exclusion for

intended loss “applies only when the insured intended to cause a harm. Insurance coverage is not

excluded because the insured’s actions are intentional unless he also intended the resultant

damage.” Melrose Hotel Co. v. St. Paul Fire & Marine Ins. Co., 432 F. Supp. 2d 488, 511 (E.D.

Pa. 2006) (citation omitted). “An insured intended to cause harm if it desired to cause the

consequences of his act or if [it] acted knowing that such consequences were substantially certain

to result.” Id. (alteration in original) (internal quotation marks and citation omitted).

Here, the Hughes, Staubus, and Lewis Lawsuits allege negligent conduct by Endo that

resulted in the plaintiffs’ injuries, and to the extent the three lawsuits allege intentional acts by

Endo, the lawsuits do not allege that Endo desired to cause the plaintiffs’ injuries or knew that the

plaintiffs’ injuries were substantially certain to result from its actions. As for the 2016-17 Products

Insurers’ argument that the criminal acts exclusion applies because Endo pled guilty to engaging

in criminal misconduct in its marketing activities, ECF No. 311-1 at 29, Endo’s admission in its

plea agreement with the Department of Justice was limited to admitting that certain sales

representatives made false statements about one of Endo’s opioid products to prescribers during

10 Gemini incorporates the arguments in the 2016-17 Products Insurers’ brief in support of their

motion for summary judgment (ECF No. 311-1) by reference.

sales calls and that certain sales managers were aware that the sales representatives were making

such false statements, ECF No. 311-2 ¶ 52. Endo’s sales representatives and sales managers do

not qualify as “Insured Representatives,” which is defined by the 2016-17 Gemini Policy as “the

insured’s executive officers; the members of the legal department and risk management

departments of the insured; and any person(s) designated by the insured as responsible for claims

reporting or insurance matters.” ECF No. 310-6 at 76. According to the “Intentional, Fraudulent

or Criminal Acts” exclusion, only acts by an “Insured Representative” trigger the application of

the exclusion against Endo. Id. at 60. Thus, this exclusion does not bar coverage for the Hughes,

Staubus, and Lewis Lawsuits.

3. The Consumer Fraud Exclusion Does Not Bar Coverage of the PI/NAS

Claims

Gemini argues that coverage for the Hughes, Staubus, and Lewis Lawsuits is barred by the

2016-17 Gemini Policy’s “Consumer Fraud” exclusion. ECF No. 308 at 19–22. This exclusion

eliminates coverage for loss based upon allegations of antitrust violation, unfair competition,

piracy, unfair trade practices, consumer fraud, or violation of consumer protection laws. ECF No.

310-6 at 56. And if a lawsuit alleges antitrust violation, unfair competition, or piracy, among other

causes of action, then the entire lawsuit is precluded from coverage by the exclusion, even if some

of the causes of action would have otherwise been covered by the policy. Id. at 56–57. Gemini

points to another opioid case in a different district court in which it succeeded in denying coverage

based on this exclusion. ECF No. 308 at 20. The case, Travelers Property Casualty Co. of America.

v. Anda, Inc., involved an underlying suit by the State of West Virginia against Anda, a distributor

of prescription drugs, that contained a count for unfair competition for “Violations of the West

Virginia Consumer Credit and Protection Act (WVCCPA)—Unfair Methods of Competition or

Unfair or Deceptive Acts or Practices.” 90 F. Supp. 3d 1308, 1315 (S.D. Fla. 2015). The underlying

complaint in Anda included a cause of action for unfair competition, which distinguishes the case

from the three PI/NAS Claims at issue in the instant case.

The Hughes, Staubus, and Lewis Lawsuits do not allege unfair competition as a distinct

cause of action. See ECF Nos. 310-3, 310-1, 310-2. And the lawsuits do not concern antitrust

violations or piracy. In an attempt to shoehorn allegations in the lawsuits into the unfair

competition category of the Consumer Fraud exclusion, Gemini identifies allegations from each

lawsuit dealing primarily with deceptive marketing and misleading advertising, which are different

from allegations of unfair competition. As such, the Consumer Fraud exclusion does not bar

coverage of the three timely-filed PI/NAS Claims in full. To the extent that the three lawsuits

involve loss based upon the other three categories listed in the Consumer Fraud exclusion—unfair

trade practices, consumer fraud, or violation of consumer protection laws—coverage for such

losses may be barred by the exclusion, but that remains an issue to be investigated in discovery.

4. The Known Critical Facts Reporting Requirement, the Previous Claim

Exclusion, and the Prior Event Exclusion Do Not Bar Coverage of the PI/NAS

Claims

The 2016-17 Products Insurers argue that the 2016-17 Gemini Policy’s Known Critical

Facts Reporting Requirement excludes coverage for the three timely-filed PI/NAS Claims based

on a lawsuit against Endo filed in 2014, Brown v. Endo Pharms., Inc., 38 F. Supp. 3d 1312 (S.D.

Ala. 2014). ECF No. 311-1 at 30–31. The Known Critical Facts Reporting Requirement bars

coverage for “any loss connected to a critical fact known by an Insured Representative prior to the

inception date of this Policy” unless the critical fact is “set forth in an endorsement listing covered

known critical facts” or the critical fact first became known after the initial coverage date and was

reported to Gemini prior to the policy’s inception date. ECF No. 310-6 at 47. Pursuant to the

Requirement, “[l]oss is connected to a critical fact if such loss arises out of the critical fact, or if

the facts and circumstances resulting in the critical fact also resulted in the loss.” Id. As discussed

in Part III.A.3, supra, a “critical fact” is defined as “a verbal or written demand for any damages

which would be covered under this Policy.” Id. at 72. The 2016-17 Products Insurers maintain that

Brown v. Endo was a critical fact known by Endo and therefore bars coverage for the later-filed

PI/NAS Claims. ECF No. 361 at 12–15.

The six-page complaint in Brown alleges a wrongful death action against Endo and a nurse

who allegedly sold Opana to the decedent and brings claims solely under Alabama’s wrongful

death statute. ECF No. 315-27. The Brown complaint alleges that Endo knew its Opana product

was defective because it was susceptible to tampering and failed to remove it from distribution. Id.

at 5. Brown did not involve other opioid products and contains no allegations about Endo’s efforts

“to flood the statewide market with opioids or conceal from the public the attendant risks of

addiction, abuse, and fatal overdose.” ECF No. 379 at 24. The Hughes, Staubus, and Lewis

Lawsuits involved multiple defendants and opioid products and alleged claims beyond wrongful

death, including infant injury and death resulting from NAS, medical malpractice, products

liability, public nuisance, and violations of various state laws. See ECF Nos. 310-3, No. 310-1,

310-2. Comparing the allegations in Brown to those in the Hughes, Staubus, and Lewis Lawsuits,

it is evident that the narrow facts and circumstances surrounding Brown—Endo’s negligence

regarding the sale of one of its products—did not result in the injuries suffered by the plaintiffs in

the later-filed lawsuits, which the lawsuits contend resulted from the distribution of additional

opioid products and targeted marketing campaigns by Endo. Accordingly, Brown does not suffice

as a known critical fact that would bar coverage of later-filed PI/NAS claims.

The Underwriters at Lloyd’s London separately argue that their policy contains a “Previous

Claim” exclusion and a “Prior Event” exclusion, both of which bar coverage. ECF No. 307 at 10–

15. Defendant TDC’s 2016-2017 excess policy incorporates the Underwriters’ policy, ECF No.

315-21 at 9, and TDC joins in the Underwriters’ arguments, ECF No. 313 at 2. Neither exclusion

in the Underwriters’ policy prohibits coverage here. The “Previous Claim” exclusion bars coverage

for claims “arising out of or related to a claim” that “was reported to [the insurer] or any other

insurer under any previous policy.” ECF No. 315-20 at 35. The Underwriters argue that the

personal injury lawsuits “relate to” a government lawsuit by the State of Mississippi because the

Mississippi suit includes the same general allegations “about the conduct of Endo and other opioid

manufacturers” that the subsequent personal injury suits also contain. ECF No. 307 at 14. Such

suits are not “related” for the purposes of the “previous claims” exclusion. Claims by a state like

Mississippi, seeking to recover budgetary losses linked to opioid abuse in its state, have nothing

to do with claims of personal injuries alleged by individual plaintiffs. Thus, the Underwriters have

failed to show that the “previous claim” exclusion applies here.

Under the Underwriters’ “Prior Event” exclusion, claims are excluded from coverage when

they involve (1) “‘[i]njury or damage’ arising out of an event; (2) when that event “was first

discovered or known before the policy period” by the insured; and the event (3) “[s]hould

reasonably have been expected . . . to result in a claim against you or any other insured,” “[i]s

covered by other insurance or would have been covered but for the exhaustion of [the policy],”

“[w]as reported by any insured to another insurance company prior the policy period,” or “[i]s

listed” on the insured’s insurance application. ECF No. 315-20 at 35–36. And an event is defined

by the Underwriters’ policy, in relevant part, as “an occurrence, offense, accident, act, or other

event.” Id. at 12.

The Underwriters argue only that the prior event here “is the ‘opioid epidemic.’” ECF No.

307 at 10. But an epidemic is not a single event, unlike an “occurrence,” “accident,” “act” or

“offense.” See ECF No. 315-20 at 12. The opioid epidemic therefore does not qualify as an event

under the plain language of the exclusion. Cf. Allen v. Boeing Co., 784 F.3d 625, 629 (9th Cir.

2015) (interpreting the phrase “event or occurrence” under the Class Action Fairness Act to

“appl[y] only where all claims arise from a single event or occurrence”). Accordingly, neither

exclusion applies.

5. Public Policy Does Not Bar Coverage of the PI/NAS Claims

Finally, Gemini argues that allowing coverage for the PI/NAS Claims would be against

Pennsylvania public policy. ECF No. 374 at 21–23. “Pennsylvania bars insurance coverage where

relieving an insured of personal accountability for their wrongdoing would contravene a clear

mandate of Pennsylvania public policy.” Rosenberg v. Hudson Ins. Co., 638 F. Supp. 3d 510, 521

(W.D. Pa. 2022). Courts applying Pennsylvania law have refused to enforce insurance contracts

on public policy grounds for claims based upon intentional torts and criminal acts. See, e.g., Cigna

Corp. v. Exec.. Risk Indem., Inc., 111 A.3d 204 (Pa. Super. 2015) (barring coverage for intentional

acts); Fed. Ins. Co. v. Sandusky, No. 11-02375, 2012 WL 1988971, at *3-4 (M.D. Pa. June 4, 2012)

(barring coverage for claim of child abuse); Nautilus Ins. Co. v. Motel Mgmt. Servs., Inc., 320 F.

Supp. 3d 636, 643 (E.D. Pa. 2018), aff’d on other grounds, 781 F. App’x 57 (3d Cir. 2019) (barring

coverage for human trafficking allegations); Germantown Ins. Co. v. Martin, 595 A.2d 1172, 1175

(Pa. Super. Ct. 1991) (barring coverage where underlying complaint alleged murder). The case

cited by Gemini, Mutual Benefit Insurance Co. v. Haver, involved allegations against a pharmacist

for distributing controlled substances to individuals without prescriptions, which the court

characterized as “evil or illegal conduct.” 725 A.2d 743, 747 (Pa. 1999).

The types of claims for which courts have excluded coverage on the basis of public policy

involve intentional harm or criminal acts, which are not at issue in the PI/NAS Claims. As

discussed earlier when assessing the applicability of the Intentional, Fraudulent or Criminal

Exclusion, Endo’s actions as alleged in the Hughes, Staubus, and Lewis Lawsuits do not rise to the

level of intentional acts as defined by the case law. Therefore, permitting coverage of the three

PI/NAS Claims filed during the 2016-17 Policy Year is not contrary to Pennsylvania public policy.

IV. CONCLUSION

For the foregoing reasons, the Court will GRANT in part and DENY in part Defendants’

Motions for Summary Judgment (ECF Nos. 307, 308, 311) on bellwether issues. The Court will

grant the Motions (ECF Nos. 307, 308, 311) as to Defendants’ argument that all PI/NAS Claims

first made after the 2016-17 policy period are not covered under the 2016-17 Products Policies.

The Court will deny the Motions (ECF Nos. 307, 308, 311) with respect to Defendants’ argument

that the three PI/NAS Claims first made during the 2016-17 policy period (the Hughes, Staubus,

and Lewis Lawsuits) are not covered under the 2016-17 Products Policies. The Court will DENY

the Trustee’s Cross-Motion for Summary Judgment (ECF No. 341). An appropriate order will

follow.

BY THE COURT:

/s/ Chad F. Kenney

CHAD F. KENNEY, JUDGE