NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, ALLIANZ GLOBAL RISKS U.S. INSURANCE COMPANY, ACE AMERICAN INSURANCE COMPANY, ZURICH AMERICAN INSURANCE COMPANY, GREAT LAKES INSURANCE SE, XL INSURANCE AMERICA, INC., GENERAL SECURITY INDEMNITY COMPANY OF ARIZONA, ASPEN INSURANCE UK LIMITED, NAVIGATORS MANAGEMENT COMPANY, INC., IRONSHORE SPECIALTY INSURANCE COMPANY, VALIDUS SPECIALTY UNDERWRITING SERVICES, INC., and HDI-GERLING AMERICA INSURANCE COMPANY, Plaintiff Below, Appellants,
AXIALL CORPORATION and WESTLAKE CHEMICAL CORPORATION, Defendants Below, Appellees.
Submitted: September 12, 2019
Below-Superior Court of the State of Delaware C.A. No.
VALIHURA, SEITZ, and TRAYNOR, Justices.
F. TRAYNOR, JUSTICE
consideration of the notice of interlocutory appeal and the
documents attached thereto, it appears to the Court that:
plaintiffs below-appellants National Union Fire Insurance
Company of Pittsburgh, Pa., Allianz Global Risks U.S.
Insurance Company, ACE American Insurance Company, Zurich
American Insurance Company, Great Lakes Insurance SE, XL
Insurance America, Inc., General Security Indemnity Company
of Arizona, Aspen Insurance UK Limited, Navigators Management
Company, Inc., Ironshore Specialty Insurance Company, Validus
Specialty Underwriting Services, Inc., and HDI-Gerling
America Insurance Company (collectively, the
"Insurers") have petitioned this Court under
Supreme Court Rule 42 to accept an interlocutory appeal from
the Superior Court's order granting the motion to stay
for forum non conveniens filed by the defendants
below-appellees Axiall Corporation and Westlake Chemical
Corporation (collectively, the "Insureds").
This appeal arises from an insurance-coverage dispute.
Following the release of liquefied and vaporized chlorine
from a cracked tank at a plant located in West Virginia, the
Insureds notified the Insurers of a loss under the policies.
On January 18, 2018, the Insurers issued a
reservation-of-rights letter to the Insureds. On April 8,
2019, the Insurers informed the Insureds that they denied
coverage and that they had initiated declaratory judgment
proceedings in the Superior Court. On April 9, 2019, the
Insurers filed a declaratory judgment complaint against the
Insureds in the Superior Court. On April 10, 2019, the
Insureds filed a complaint against the Insurers in the
Circuit Court of Marshall County, West Virginia.
the Delaware litigation, the parties briefed the
Insureds' motion to dismiss or stay for forum non
conveniens. On August 1, 2019, the Superior Court held a
hearing on the motion. At the conclusion of the hearing, the
Superior Court denied the motion to dismiss, but granted the
motion to stay pending the final resolution of the West
Virginia litigation. The Superior Court found that the
Delaware and West Virginia cases were filed contemporaneously
and that the Cryo-Maid factors supported a stay of
the Delaware litigation in favor of the West Virginia
litigation. The Superior Court also found that the Insureds
had not shown that it would be an overwhelming hardship to
litigate in Delaware, so dismissal of the Delaware litigation
was not appropriate. On August 12, 2019, the Superior Court
entered an order incorporating the August 1, 2019 ruling.
August 22, 2019, the Insurers filed an application for
certification of an interlocutory appeal. Based on this
Court's past interlocutory review of trial court rulings
resolving forum disputes, the Insurers argued that the
Superior Court's decision determined a substantial issue
of material importance. As to the Rule 42(b)(iii) criteria,
the Insurers argued that the Superior Court's decision
conflicted with other trial court decisions requiring a party
seeking a stay to show overwhelming hardship when a stay
would have the same effect as dismissal.
Insureds opposed the application for certification. They
argued that the Superior Court decision did not determine a
substantial issue of material importance, the Insurers failed
to identify any exceptional circumstances to justify
interlocutory review of a ruling on a motion to stay, and the
stay did not have the same effect as dismissal.
September 11, 2019, the Superior Court denied the application
for certification. The Superior Court found that the Insurers
had not identified exceptional circumstances supporting
interlocutory review,  and concluded that, even if its decision
did determine a substantial issue of material importance
meriting interlocutory review, the decision did not conflict
with other trial court decisions on the same issue of
The Superior Court also found that certification would not
promote judicial efficiencies because the West Virginia
litigation would proceed regardless of the result of an
interlocutory appeal, leading to the possibility of two
parallel actions with duplicate filings and potentially
inconsistent rulings. The Superior Court concluded that the
likely benefits of interlocutory review did not outweigh the
probable costs, such that interlocutory review was in the
interest of justice.
Applications for interlocutory review are addressed to the
sound discretion of the Court. In the exercise of our discretion
and giving great weight to the Superior Court's denial of
the application for certification, this Court has concluded
that the application for interlocutory review does not meet
the strict standards for certification under Supreme Court
Rule 42(b). The case is not exceptional,  and the potential
benefits of interlocutory review do not outweigh the
inefficiency, disruption, and probable costs caused by an
THEREFORE, IT IS ORDERED that the interlocutory ...