Jurden President Judge Bruce W. McCullough, Esq. Bodell Bove,
Jennifer C. Wasson, Esq. Potter, Anderson & Corroon LLP
Jurden President Judge
the Court is Zurich American Insurance Company's
post-trial Motion for Costs Pursuant to Superior Court Civil
Rule 54(d). In its Motion, Zurich contends it is
entitled to "prevailing party" status in the case
and, therefore, costs because Zurich prevailed on its notice
and consent defenses at trial. Plaintiffs (collectively
"TIAA CREF") argue that Rule 54(d) contemplates
only one prevailing party in a litigation, and therefore,
Rule 54(d) precludes Zurich's recovery of costs
because-considering the entire litigation, including
TIAA-CREF's claims against the other insurers-TIAA-CREF
is the prevailing party. If the Court were to consider
prevailing party status as only between TIAA-CREF and Zurich,
TIAA-CREF maintains any decision would be premature because
TIAA-CREF's Cummings Action claims, which were
not addressed at trial, are still pending against
to Superior Court Civil Rule 54(d), "[e]xcept when
express provision therefor is made either in a statute or in
these Rules or in the Rules of the Supreme Court, costs shall
be allowed as of course to the prevailing party upon
application to the Court . . . ." Similarly, 10 Del.
C. § 5101 provides "[g]enerally a party for
whom final judgment in any civil action, or on a writ of
error upon a judgment is given in such action, shall recover,
against the adverse party, costs of suit, to be awarded by
the Court." The determination of who the prevailing
party is in each case is a threshold legal question, but
whether an award of costs is appropriate is a matter of the
trial court's discretion.
Dreisbach v. Walton, this Court acknowledged that
Rule 54(d)'s use of the single definite article in the
term "the prevailing party" "suggests that
there can be only one prevailing party for the purposes of
costs." However, the Court also acknowledged
that other courts, considering their own rules regarding
allowance of costs, have found that there may be multiple
prevailing parties with respect to costs if "there are
separate and distinct claims[, ] which would support
case aligns with the exception noted in Dreisbach
for separate and distinct claims.Although TIAA-CREF's
claims against Zurich share many commonalities with its
claims against its other insurers, Zurich ultimately
prevailed at trial on the main issue of liability by
asserting a defense based on facts particular to Zurich, i.e.
Zurich's notice and consent defenses. As a result of
Zurich's successful defense, Zurich is entitled to
dismissal with prejudice of TIAA-CREF's
Bauer-Ramazani claims against it.
case, as in many cases, the opposing parties each prevailed
on some, but not all, of the issues in the case. Zurich
prevailed on TIAA-CREF's cause of action for coverage of
TIAA-CREF's costs in Bauer-Ramazani by asserting
a successful defense at trial, whereas TIAA-CREF prevailed,
in large part, at the summary judgment stage and on the issue
of reasonableness of defense costs at trial. Beyond that,
TIAA-CREF's Cummings Action claims are still
pending. In light of the foregoing, the Court finds that it
is appropriate to determine prevailing party as between
Zurich and TIAA-CREF but that such determination is premature
in light of the outstanding Cummings Action claims.
Zurich's Motion for Costs is DEFERRED.
However, at the pre-trial conference, in the course of
resolving motions in limine, TIAA-CREF agreed to
cover the cost of travel, lodging, and billing associated
with defense expert Brand Cooper's attendance of the
trial deposition of a key TIAA-CREF witness.
TIAA-CREF's concession that it owes only $678,
reflecting the cost of Mr.
Cooper's hotel, is not consistent with the agreement
reached at the pretrial conference. Therefore, TIAA-CREF and
Zurich will attempt to reach a stipulation regarding
TIAA-CREF's payment of these costs.
IS SO ORDERED.
 Defendant Zurich American Insurance
Company's Motion for Costs Pursuant to Superior Court
Civil Rule 54(d) ...