Opinion
C.A. No. 04C-11-167-JRJ.
Date Submitted: December 17, 2007.
Date Decided: January 17, 2008.
Upon ATT Insurers' Motions for Partial Summary Judgment as to the 2001 ATT Runoff Program, the 2001 ATT Program and the 2002 ATT National. Union Policies: DENIED
OPINION
INTRODUCTION
In their renewed motion for summary judgment, the ATT Insurers seek a ruling that any insurance coverage available to ATT for the underlying case referenced in the Second Amended Complaint in confined to a single "program" of insurance that ATT purchased for a policy period that spanned from 1997 to 2001.
The "ATT Insurers" are National Union Fire Insurance Company of Pittsburg, Pa. ("National Union"), Faraday Capital Limited, Individually and as Representatives of those Underwriters at Lloyd's and those other companies subscribing to Directors and Officers and Company Reimbursement Policy Nos. 509/QB298501 and 509/QB405401, including named New Hampshire Insurance Company, Ltd. ("Llyod's"), Twin City Fire Insurance Company ("Twin City") and the Travelers Indemnity Company as successor in interest by merger to Gulf Insurance Company ("Travelers").
BACKGROUND
This three-year-old case, aptly called a "coverage contraction odyssey" by ATT, has a long history, including two appeals to the Delaware Supreme Court. This Court previously granted partial summary judgment to the ATT Insurers in an Amended Opinion dated April 25, 2006 ("Amended Opinion"). In that opinion, the Court held that: (1) two civil actions for which coverage was sought — Williamson and Leykin — each constituted a single "Claim" under the relevant policies; (2) the insuring clauses applicable to three subsequent programs of insurance purchased by ATT barred coverage for Williamson and Leykin because both of those Claims involved allegations of "Wrongful Acts" that were first made in two actions filed against ATT during the term of the earlier 1997 to 2001 Program; and (3) the factual nexus that existed among these actions also barred coverage for Williamson and Leykin under a number of exclusions contained in the policies for the subsequent programs.
See ATT Corp. v. Clarendon America Ins. Co., 918 A.2d 1104 (Del. 2007); 931 A.2d 409 (Del. 2007).
ATT Corp., Del. Super., C.A. No. 04C-11-167, Jurden, J. (April 25, 2006) (ORDER), D.I. 218.
On appeal, the Delaware Supreme Court disagreed with this Court's finding that Williamson and Leykin each constituted a single "Claim" and remanded the case, holding:
We conclude that the trial court misconstrued the term "Claim" . . . we do not address the trial court's other determinations, because they were based on the incorrect premise that each lawsuit constituted one claim.
ATT Corp., 918 A.2d at 1105.
Because ATT did not decide exactly how many Claims it had until it reached the Delaware Supreme Court, the Supreme Court further held:
See Transcript of Conference at 15-16, ATT Corp., 931 A.2d 409 (Del. 2007), D.I. 347.
Only after the "claims" have been properly identified will it be possible to determine whether there is coverage under the relevant policies.
ATT Corp., 918 A.2d at 1109.
According to ATT, because the Delaware Supreme Court rejected this Court's view that an entire lawsuit constitutes a single Claim, "the Supreme Court's analysis then necessarily rejected the Court's view that if entire lawsuits contain a single fact or circumstance in common they must be related." The Insurers, however, steadfastly maintain that ATT's belated determination of its Claims and the Supreme Court's reversal and remand have "no impact on the Court's ultimate coverage analysis because even ATT's asserted categories of Wrongful Acts are related to and flow from the Wrongful Acts alleged in the Prior Actions." In other words, under the Insurers' theory, once the Court appropriately determines that all eleven counts in Williamson combine to constitute a single Claim and all five counts in Leykin combine to constitute a single Claim,
Id. at 1108.
Op. Supp. Br. at 3.
the only remaining question is whether the facts underlying Williamson and Leykin are sufficiently intertwined with the facts alleged in the Prior Actions to trigger a host of policy provisions that operate to limit coverage for the subsequent actions to ATT's 1997-2001 program of insurance. This is the precise question addressed and answered in the affirmative by this Court in its Amended Opinion.
Id. at 4.
This Court previously discussed in great detail the underlying events giving rise to this case and the Directors and Officers liability Insurance Programs at issue and thus will not do so again here.
ATT Corp., 2006 WL 1382268 (Del.Super.), rev'd, 918 A.2d 1104 (Del. 2007); 2006 WL 2685081 (Del.Super.), rev'd 931 A.2d 409 (Del. 2007).
DISCUSSION
Because the Delaware Supreme Court found that this Court misconstrued the term "Claim," it did not address this Court's other determinations. But ATT argues that by rejecting this Court's construction of "Claim," the Supreme Court also rejected this Court's opinion that "if entire lawsuits contain a single fact or circumstance in common they must be related." The Court does not agree with this reasoning, however, it does agree with ATT that the Insurers are not entitled to summary judgment.
Op. Supp. Br. at 6.
See Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); see also Clarkson v. Goldstein, 2005 WL 1331776, at *5 (Del.Super.).
The number of Claims is hotly disputed. The Court is going to let the jury decide how many separate "Claims" are asserted in Williamson and Leykin. With regard to those Claims that are "substantially related" to Claims made in the Prior Actions, the Insurers argue that because this Court previously ruled that the Williamson and Leykin actions each constitute one "Claim," it must do so again because ATT's Claims are set forth in those two lawsuits. But this the Court cannot do. After reviewing the Supreme Court decision and the voluminous briefing and supplemental briefing on this motion, the Court is now convinced that this matter should not be resolved through summary judgment, but rather a trial. This "odyssey" has gone on long enough. The jury will decide how many "Claims" ATT has and whether it is entitled to coverage under the 2001 ATT Run-off Program, the 2001 ATT Program and the 2002 National Union Polices.
IT IS SO ORDERED.