IN THE SUPREME COURT OF THE STATE OF DELAWARE
ARCH INSURANCE COMPANY, §
LIBERTY MUTUTAL §
INSURANCE COMPANY, § No. 32, 2017
CONTINENTAL CASUALTY §
INSURANCE COMPANY, § Court Below—Superior Court of
NAVIGATORS INSURANCE § the State of Delaware
COMPANY, RSUI INDEMNITY §
COMPANY, and BERKLEY § C.A. No. N16C-01-104
INSURANCE COMPANY, §
§
Plaintiffs Below, §
Appellants, §
§
v. §
§
DAVID H. MURDOCK, C. §
MICHAEL CARTER, DOLE FOOD §
COMPANY, INC. and DFC §
HOLDINGS, LLC, §
§
Defendants Below, §
Appellees. §
Submitted: January 23, 2017
Decided: February 2, 2017
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
ORDER
This 2nd day of February 2017, having considered the notice and
supplemental notice of appeal from an interlocutory order under Supreme Court
Rule 42, it appears to the Court that:
(1) On April 8, 2016, the plaintiffs below-appellants, Arch Insurance
Company, Liberty Mutual Insurance Company, Continental Casualty Insurance
Company, Navigators Insurance Company, RSUI Indemnity Company, and
Berkley Insurance Company (“Insurers”) filed an amended complaint against the
defendants below-appellees, David H. Murdock, C. Michael Carter, Dole Food
Company, Inc., and DFC Holdings, LLC. The Insurers sought: (i) a declaratory
judgment that they did not have to fund the defense or settlement of a consolidated
class action in the Court of Chancery (Count I); and (ii) a declaratory judgment
that they were entitled to subrogation pursuant to a fraud exclusion provision in the
relevant insurance policies and applicable law (Count II). Murdock, Carter, and
Dole filed a motion to dismiss. In an opinion dated December 21, 2016, the
Superior Court denied the motion to dismiss as to Count I, but granted the motion
to dismiss as to Count II.1
(2) On January 3, 2017, the Insurers filed an application for certification
to take an interlocutory appeal. Murdock, Carter, and Dole opposed the
application. By order dated January 20, 2017, the Superior Court denied the
application after determining certification was not warranted under the principles
and criteria of Rule 42(b).
1
Arch Ins. Co, v. Murdock, 2016 WL 7414218 (Del. Super. Ct. Dec. 21, 2016).
2
(3) Applications for interlocutory review are addressed to the sound
discretion of the Court.2 In the exercise of its discretion, this Court has concluded
that the application for interlocutory review does not meet the strict standards for
certification under Supreme Court Rule 42(b) and should be refused.
NOW, THEREFORE, IT IS HEREBY ORDERED that the interlocutory
appeal is REFUSED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
2
Supr. Ct. R. 42(d)(v).
3