Solera Holdings, Inc.
XL Specialty Insurance Company, et al.
Counsel, On July 31, 2019, 1 issued an opinion (the
"Opinion") resolving a motion for summary judgment
in this insurance coverage case. The motion was filed by two
of the named insurance company defendants, ACE American
Insurance Company and Federal Insurance Company and was
joined by several other defendants, including Endurance
American Insurance Company, now known as Sompo International
August 7, 2019, Sompo filed a Motion for Reconsideration or
Clarification of the Court's Opinion (the
"Motion"). In the Motion, Sompo argues "it is
premature to rule that Delaware law - or any other law -
applies to the coverage issues [in this
case]." Sompo therefore seeks to clarify that
"notwithstanding [the Court's] comment in the
Opinion that Delaware law applied to certain issues at this
juncture, choice of law issues remain to be explored through
discovery and, ultimately, in further motions or pretrial
proceedings in this case." Sompo contends it is
"likely" that Texas law, not Delaware law, governs
the insurance policy in this case and argues there is a
conflict between Texas and Delaware law as to whether a
consent to defense expenses clause in an insurance policy
contains an implied prejudice requirement.
plaintiff, Solera Holdings, Inc. ("Solera"), argues
in response that the Court should deny the Motion because
Sompo has not identified a conflict between Delaware and
Texas law. Solera contends the Texas cases Sompo cites as
being in conflict with this Court's holding are not
factually or procedurally similar to this case. Solera also
points out, correctly, that Sompo never raised this
particular conflict in its joinder to the summary judgment
motion. Finally, Solera argues that even if such a conflict
exists, the record demonstrates that Delaware law applies.
I believe it was clear from the Opinion, this letter should
serve to clarify that the Opinion did not rule on choice of
law because that issue was not ripe for consideration. The
joining defendants neither asked the Court to decide what
state's law applied to the policy nor identified a
conflict between Delaware and any other state on the issues
raised in the summary judgment motion. Unless and until
such a conflict is raised, choice of law remains a
potentially interesting, but entirely hypothetical
argument. For that reason, the Opinion noted that
the joining defendants had raised the argument as a basis for
denying Solera's request for summary judgment, but did
not decide any conflict of law issue. Instead, the Court held
that even if Delaware law applied, factual issues made
summary judgment inappropriate at this stage.
the parties are free to raise at a later date the issue of
whether a conflict exists between Delaware law and another
state on any issue before the Court, and - to the extent such
a conflict exists - the parties are free to argue how the
Court should resolve the Restatement's
"most significant relationship" test. In other
words, the Opinion does not preclude the parties from raising
a conflict of law argument at the appropriate time.
ABIGAIL M. LEGROW Judge
 Solera Holdings, Inc. v. XL
Specialty Insur. Co., 2019 WL 3453232 (Del. Super. July
31, 2019) (hereinafter "Opinion").
 Motion for Reconsideration or
Clarification (hereinafter "Motion") at 2.
 Motion at 1-2.
I do not understand the purpose of
Sompo's seemingly gratuitous questioning of the
correctness of the Court's holding that Delaware law
implies a prejudice requirement in consent to defense
expenses clauses. See Motion at 3 ("But
if Delaware law holds that a consent to defense
expenses clause contains an implied prejudice
requirement, there are clear conflicts between Delaware and
Texas law.") (emphasis in original). To the extent
Sompo's comments seek reargument of that ruling, such an
effort is improper in the context of the present motion. To
the extent the comment or emphasis on certain words simply
seeks to express Sompo's disagreement or displeasure with
the Court's holding, such disagreement or displeasure is
presumed, need not be expressed, and should be reserved for
appeal. For now, the holding constitutes ...