IN THE SUPREME COURT OF THE STATE OF DELAWARE
NATIONAL UNION FIRE §
INSURANCE COMPANY OF § No. 287, 2023
PITTSBURGH, PA, §
§ Court Below–Superior Court
Plaintiff Below, § of the State of Delaware
Appellant, §
§ C.A. No. N22C-08-488
v. §
§
FEDEX CORP. and FEDEX §
GROUND PACKAGE SYSTEM, §
INC., §
§
Defendants Below, §
Appellees. §
Submitted: August 17, 2023
Decided: September 8, 2023
Before SEITZ, Chief Justice; LEGROW and GRIFFITHS, Justices.
ORDER
After consideration of the notice of interlocutory appeal, the supplemental
notice of interlocutory appeal, and their exhibits, it appears to the Court that:
(1) This appeal concerns a dispute between FedEx Ground Package
System, Inc. (“FedEx Ground”) and its excess insurers regarding insurance coverage
for pre- and post-judgment interest incurred in connection with a $157-million jury
verdict and judgment entered in a New Mexico personal-injury lawsuit (the “New
Mexico Verdict”). On August 30, 2022, one of FedEx Ground’s excess insurers,
National Union Fire Insurance Company of Pittsburgh, PA (“National Union”), filed
suit in the Delaware Superior Court (the “Delaware Action”) against FedEx Ground
and FedEx Corp. (together, “FedEx”) seeking a declaratory judgment that National
Union has no obligation to pay post-judgment interest on the New Mexico Verdict.
On September 6, 2022, FedEx Ground filed a separate action in the Pennsylvania
Court of Common Pleas (the “Pennsylvania Action”) alleging breach of contract and
other claims against National Union and two of FedEx Ground’s other excess
insurers, Great American Insurance Company of New York (“GAIC”) and Liberty
Mutual Insurance Europe Limited (“Liberty Mutual”). Shortly thereafter, FedEx
filed a motion to dismiss or stay the Delaware Action. National Union then filed an
amended complaint, adding GAIC and Liberty Mutual as co-defendants in the
Delaware Action.
(2) In the Pennsylvania Action, all three insurers filed preliminary
objections, arguing, among other things, that the Pennsylvania Action should be
dismissed or stayed in deference to the Delaware Action. In the Delaware Action,
FedEx moved to dismiss or stay the proceedings on the grounds of comity or forum
non conveniens in light of the pending and larger-in-scope Pennsylvania Action. On
February 8, 2023, the Pennsylvania court denied the insurers’ preliminary objections
and declined to stay the Pennsylvania Action.1
1
On May 25, 2023, the Pennsylvania court denied the insurers’ motion for reconsideration of its
ruling.
2
(3) On July 18, 2023, the Superior Court denied FedEx’s motion to dismiss
the Delaware Action but granted its request to stay the Delaware Action, deferring
to the Pennsylvania Action in the interests of comity and judicial efficiency (the
“Opinion”).2 Observing that the Pennsylvania court had decided—over the insurers’
objections—that the Pennsylvania Action should proceed, the Superior Court
concluded that a stay would conserve judicial resources as well as avoid confusion,
inconsistent rulings, and duplicative litigation costs.3 National Union asked the
Superior Court to certify an interlocutory appeal of the Opinion under Supreme
Court Rule 42. FedEx opposed the application.
(4) On August 16, 2023, the Superior Court denied National Union’s
application.4 As a preliminary matter, the Superior Court disagreed with National
Union’s claim that the Opinion decided a substantial issue of material importance—
a threshold consideration under Rule 425—because it did not relate to the merits of
the case. Nevertheless, the Superior Court analyzed the Rule 42(b)(iii) factors cited
by National Union—specifically, Factors A (the Opinion decided an issue of first
impression in the State), B (the Opinion conflicts with other trial court decisions),
and H (interlocutory review of the Opinion would serve the considerations of
2
Nat’l Union Fire Ins. Co. v. FedEx Corp., 2023 WL 4623626 (Del. Super. Ct. July 18, 2023)
(“FedEx I”).
3
Id. at *8.
4
Nat’l Union Fire Ins. Co. v. FedEx Corp., 2023 WL 5310443 (Del. Super. Ct. Aug. 16, 2023)
(“FedEx II”).
5
Del. Supr. Ct. R. 42(b)(i).
3
justice)—and concluded that none of them supported the certification of an
interlocutory appeal.
(5) First, the Superior Court found that National Union’s application for
certification mischaracterized the Opinion because the court granted FedEx’s
request for a stay “solely on the grounds of comity,”6 but National Union’s
application cited the court’s forum non conveniens analysis. As it had in the
Opinion, the court emphasized that it had offered its forum non conveniens analysis
only as supplemental commentary in the event that “some issue arises in the
Pennsylvania Action warranting lifting the stay in the [Delaware A]ction.”7 That is,
the decision to stay the Delaware Action was based on comity and judicial-efficiency
principles and did not involve a novel application of the forum non conveniens
doctrine. Second, the Superior Court found that the Opinion does not conflict with
the other trial court decisions cited by National Union because they relate to the
application or misapplication of the doctrine of forum non conveniens. Finally, the
Superior Court found that considerations of justice would not be served by
interlocutory review because, among other things, National Union would not suffer
any irreversible prejudice if it were forced to litigate the insurance-coverage dispute
in Pennsylvania as opposed to Delaware. Mindful of Rule 42’s directive that a trial
6
FedEx II at *3.
7
Id.
4
court should refuse to certify an interlocutory appeal if it finds the balance of the
Rule 42(b)(iii) factors to be uncertain,8 the Superior Court denied the application.
(6) We agree with the Superior Court that interlocutory review is not
warranted in this case. Applications for interlocutory review are addressed to the
sound discretion of the Court.9 Exercising our discretion and giving due weight to
the Superior Court’s analysis, we have concluded that the application for
interlocutory review does not meet the strict standards for certification under Rule
42(b). Exceptional circumstances that would merit interlocutory review of the
Opinion do not exist,10 and the potential benefits of interlocutory review do not
outweigh the inefficiency, disruption, and probable costs caused by an interlocutory
appeal.11
NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is
REFUSED.
BY THE COURT:
/s/ N. Christopher Griffiths
Justice
8
Del. Supr. Ct. R. 42(b)(iii).
9
Del. Supr. Ct. R. 42(d)(v).
10
Del. Supr. Ct. R. 42(b)(ii).
11
Del. Supr. Ct. R. 42(b)(iii).
5