1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOSIANE SOUZA DA SILVA SOARES, )

individually and as the Personal ) C.A. No. K19C-12-028 NEP

Representative of the Estate of )

ANTONIO PEREIRA SOARES, deceased, )

)

Plaintiff, )

)

v. )

)

CONTINENTAL MOTORS, INC., et al., )

)

Defendants. )

ORDER DENYING CERTIFICATION 

OF INTERLOCUTORY APPEAL

Submitted: January 6, 2022

Decided: January 18, 2022

Defendants Continental Motors, Inc., and Continental Aerospace Technologies 

GmbH (hereinafter collectively “Defendants”) have made application under Rule 42 of 

the Supreme Court for an order certifying an appeal from the interlocutory Opinion and 

Order of this Court dated December 17, 2021 (hereinafter the “Order”). For the reasons 

that follow, Defendants’ application is DENIED.

1. This product liability action stems from the crash of an aircraft (hereinafter 

the “Aircraft”) off the coast of Turks and Caicos Islands (hereinafter “TCI”). The Aircraft 

was purchased from Defendant Continental Motors, Inc. by a Brazilian company. 

Antonia Pereira Soares, the decedent (hereinafter “Decedent”)—whose representative is 

suing on his behalf1—was an employee of the Brazilian company and tasked to 

accompany the Aircraft from Kansas to Brazil. During the course of the flight, the 

1 Decedent’s wife, Plaintiff Josiane Souza Da Silva Soares (hereinafter “Plaintiff”), the Special 

Administrator of his estate, has brought this action in a representative capacity on behalf of herself, 

Decedent's two children, and any other individual entitled to recovery by law.
2

Aircraft was to make ten planned stopovers to refuel given the Aircraft's size and flying 

range. The Aircraft stopped at one of these locations, TCI, for one hour to refuel. Shortly 

after takeoff from TCI, the Aircraft's engine failed and lost power. A possible cause of 

the engine failure was engine hose failure and/or detachment. The pilot requested an 

immediate return to TCI's airport but was unable to land the Aircraft before it 

crashed. Both Decedent and the pilot, the only two individuals on the plane, were killed. 

The complaint, asserting the above facts, followed.2 

2. Subsequently, Defendants brought a motion to dismiss pursuant to Superior 

Court Civil Rule 12(b)(6) arguing that TCI’s one-year statute of limitations should apply

because TCI had the “most significant relationship” with the crash under Delaware’s 

choice-of-law analysis. 

3. Upon review of the complaint, and in preparation for oral argument on the 

motion to dismiss, it appeared to the Court that the complaint provided insufficient

information to conduct a choice-of-law analysis, and during oral argument this impression 

was confirmed, as both parties opined that they had newly-found discovery that would be 

relevant in this Court’s choice-of-law determination: e.g., Defendants noted “the finding 

of the AIIB—the British entity that investigated the accident—that pilot error caused the 

accident,”

3

and Plaintiff claimed that “[a]ll the activity relating to the failed or 

disconnected hose on the engine would have occurred in the United States, likely in 

Alabama we've come to learn, but none of that happened in [TCI].”4 The complaint 

referenced neither of these circumstances.

2

In addition, in the complaint there were a number of competing jurisdictions applicable to a choice-oflaw analysis, supported by brief allegations outlining their potential relevance, including: Brazil, where 

Decedent’s family experiences the loss of their father and husband; Germany, where the Aircraft’s

engine was manufactured and where Defendant Continental Aerospace Technologies GmbH is 

incorporated; Alabama, where the principal place of business for Defendant Continental Motors, Inc., is 

located and where the engine was installed; and Delaware, where Defendant Continental Motors, Inc.,

is incorporated.

3

Soares v. Cont'l Motors, Inc., 2021 WL 6015701, at *8 n.83 (Del. Super. Dec. 17, 2021) (quoting Oral 

Arg. Tr. at 24). 

4

Id. at *10 n.90 (quoting Oral Arg. Tr. at 43). 
3

4. The Court inquired during oral argument if there was a need to convert the

motion to dismiss into a motion for summary judgment, but Defendants stated that the 

Court could rule “on the papers in front of Your Honor,” given their contention that the 

Restatement’s presumption regarding location of injury applies and that the location of 

injury was not fortuitous.5 Hence, the Court in its Order considered the fortuity of the 

location of injury, based upon the pleadings, and left a full-fledged choice-of-law analysis 

for a future time when the record was sufficiently developed. 

5. Supreme Court Rule 42 governs interlocutory appeals from this Court’s 

orders. Under Rule 42, an interlocutory appeal may be certified by this Court only when 

the appealed decision (1) “decides a substantial issue of material importance that merits 

appellate review before a final judgment”6and (2) meets criteria enumerated in Rule 

42(b)(iii).

7

 Additionally, before certifying an interlocutory appeal, this Court assesses

“the most efficient and just schedule to resolve th[e] case”8and “identif[ies] whether and 

why the likely benefits of interlocutory review outweigh the probable costs, such that 

interlocutory review is in the interests of justice.”9

Rule 42(b)(ii): The Order does not decide a substantial issue of material 

importance that merits appellate review before a final judgment. 

6. Whether a substantial issue of material importance has been decided is a 

gatekeeping inquiry10 that requires the Court to find both (1) “a main question of law 

[that] relates to the merits of the case, and not to collateral matters”

11 and (2) a legal 

5

Id. at *3 n.34 (quoting Oral Arg. Tr. at 65). 

6 Supr. Ct. R. 42(b)(i).

7 Foraker v. Amazon.com, Inc., 2021 WL 22030, at *1 (Del. Super. Jan. 4, 2021) (citing Supr. Ct. R. 42 

(b)(iii)). 

8

In re Asbestos Litig., 2015 WL 5692811, at *2 (Del. Super. Sept. 24, 2015) (citing Supr. Ct. R. 

42(b)(iii)).

9 Supr. Ct. R. 42(b)(iii).

10 Northrop Grumman Innovation Sys., Inc. v. Zurich Am. Ins. Co., 2021 WL 772312, at *3 (Del. Super. 

Mar. 1, 2021).

11 Id. (quoting Sprint Nextel Corp. v. iPCS, Inc., 2008 WL 2861717, at *1 (Del. Ch. July 22, 2008)). 
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right.12 “A legal right is discernable [sic] when ‘one of the parties’ rights has been 

enhanced or diminished as a result of the order.’”

13

7. There are two “highly undesirable” problems in interlocutory appeals: 1) the 

fragmentation of the case; and 2) the delay in the final disposition.14 “[A] ruling on the 

pleadings generally falls within the same kind of prohibition . . . . [and is] unappealable 

because it does not establish a legal right between the parties.”15 Thus, “[a] substantial 

legal issue is not created within the meaning of Rule 42 where this Court merely permits 

both parties to further develop the factual record in [the] case.”

16

 

8. Here, the Court finds the determination that TCI, as the location of injury, is 

fortuitous in nature is a “main question of law that relates to the merits of the case.”

However, given the state of the record, Defendants have not asserted a legal right.17 

Nonetheless, assuming for the sake of argument that the interlocutory order does raise a 

legal right, the Court finds the satisfaction of this gatekeeping requirement insufficient to 

warrant interlocutory review when considered in light of the Court's assessment of the 

Rule 42(b)(iii) criteria below and the guidance of Rule 42(b)(ii), which provides that 

“[i]nterlocutory appeals should be exceptional, not routine, because they disrupt the 

normal procession of litigation, cause delay, and can threaten to exhaust scarce party and 

judicial resources.”

12 Id. (citing Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park, 261 A.2d 520, 521 (Del. 1969) 

(“The rule is settled that in the absence of a determination of legal right and substantial issue, an 

interlocutory order is unappealable.”))

13 Id. (quoting In re Cogent, Inc. S’holder Litig., 2010 WL 4146179, at *1 (Del. Ch. Oct. 15, 2010)). 

14 Levinson v. Conlon, 385 A.2d 717, 720 (Del. 1978).

15 Id. 

16 State v. Premier Healthcare Inc., 2018 WL 3471848, at *3 (Del. Super. July 17, 2018).

17 This is because, as the Court made clear in the Order, the possibility that TCI bears the most significant 

relationship to the case is not foreclosed by the Order and, indeed, may be established by further 

discovery. Soares, 2021 WL 6015701, at *8. Rather, this Court’s denial of Defendants’ motion to 

dismiss was based upon the limited summary of facts set forth in the complaint. See Levinson, 385 A.2d 

at 720 (denial of motion asserting statute of limitations defense based on the pleadings did not constitute 

establishment of legal right between parties for purposes of Rule 42 analysis); accord Tucker v. Jarman, 

1981 WL 383073, at *1 (Del. Super. Jan. 7, 1981).
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9. The Rule 42(b)(iii) factors that the Court will consider in turn below are 

those that Defendants have argued are relevant to this application.

Rule 42(b)(iii)(A): The interlocutory order does not involve a question of law 

resolved for the first time in this State.

10. Defendants concede in their application that Bell Helicopter Textron, Inc. v.

Arteaga18 addressed, through an interlocutory appeal, a trial court’s decision of “an 

almost identical issue”19 or a “very similar issue.”20 The only question arguably resolved 

for the first time by the Order was whether the act of refueling an aircraft at one of a 

number of refueling points takes this case outside the general rule of fortuity for aviation 

accidents.21 Rather than a resolution of a question of law, however, this determination 

involved the application of a settled legal principle (i.e., the principle of fortuity) to a 

particular fact pattern.

11. In this matter, the Court took the principles previously explained by the 

Delaware Supreme Court regarding the fortuity of tort incidents as set forth in Bell

Helicopter and Ison v. E.I. DuPont de Nemours & Co.22 and applied them in the Order. 

Defendants frame the question of law by stating that the Supreme Court “has not 

addressed the application of a foreign statute of limitations in a case arising from an 

aviation accident since [1957].”23 However, this distinction is not persuasive, as the 

determinative legal issue in both Bell Helicopter and Ison was the fortuity of the incident, 

18 113 A.3d 1045 (Del. 2015).

19 Defendants’ Appl. for Certification of Interlocutory Appeal, at 3.

20 Id. at 4. Defendants argue that the Supreme Court has granted interlocutory review in cases similar to 

this, e.g., Bell Helicopter and Certain Underwriters at Lloyds, London v. Chemtura Corp., 160 A.3d 

457, 459 (Del. 2017); however, in neither of those cases was the trial court’s analysis confined to the 

allegations in the pleadings, as it was here in considering the Rule 12(b)(6) motion. 

21 See Bell Helicopter, 113 A.3d at 1053 (“Although Ison specifically mentioned airplane accidents as 

an example of fortuitous accidents, the Court clarified that they were only “fortuitous” because the 

victims have no other connection to the place of the crash.”)

22 729 A.2d 832 (Del. 1999).

23 Defendants’ Appl. for Certification of Interlocutory Appeal, at 4. 
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not the particular legal standards—e.g., applicable tort standards or statutes of 

limitations—involved.

12. In short, this Court denied Defendants’ motion, based on the facts presented 

in the complaint, by applying the “most significant relationship” test, which is, again, a 

well-settled legal principle in Delaware.24

Rule 42(b)(iii)(B): The decisions of the trial courts are not conflicting upon 

the question of law in this matter. 

13. Defendant argues that questions of law “remain conflicting” in the trial 

court’s performance of a choice-of-law analysis.25 As mentioned in the Order, a fullfledged choice-of-law analysis was not appropriate because the record was insufficient, 

and the Court was bound by the pleadings.26 Therefore, to the extent that any trial courts’ 

decisions are conflicting in applying the Restatement’s choice-of-law analysis, that does 

not implicate the Order due to its limited scope. In addition, as Defendants point out, Bell 

Helicopter specifically mentioned the potentially conflicting nature of Delaware courts’ 

24 See, e.g., Rahaman v. J.C. Penney Corp., Inc., 2016 WL 2616375, at *3 (Del. Super. May 4, 2016) 

(employing the “most significant relationship test” to decide the choice of law issue); Lee ex rel. Lee v.

Choice Hotels Int'l Inc., 2006 WL 1148737, at *1 (Del. Super. Ct. Mar. 21, 2006) (“It is well established 

that Delaware decides choice of law questions based upon the ‘most significant relationship test’ set 

forth in Restatement (Second) of Conflict of Laws.”); Burrell v. Astrazeneca LP, 2010 WL 3706584, at 

*4 (Del. Super. Sept. 20, 2010) (applying the “most significant relationship” test to determine applicable 

statute of limitations). 

25 Defendants’ Appl. for Certification of Interlocutory Appeal, at 4. 

26 Soares, 2021 WL 6015701, at *1, *11 (“Because this Court finds that TCI is a fortuitous location of 

injury under such analysis, the Court's determination of the applicable law is not ripe for decision. . . . 

[F]or this Court to determine which location has the most significant relationship with the occurrence 

and the parties, the Court must possess the facts necessary to analyze each contact. There may be 

additional facts bearing upon these contacts, some of which counsel referenced during oral argument 

and that may also be revealed during further discovery, that the Court cannot consider in the context of 

the current motion.”). 
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conflict-of-law determinations27 and set out what it considers to be germane 

considerations within the four contacts,28 which this Court followed in the Order.

29

Rule 42(b)(iii)(C): The question of law does not relate to the constitutionality, 

construction, or application of a statute of this State that has not been, but 

should be, settled by this Court. 

14. Defendants support this criterion only with the following statement: 

“Additionally, the question of law decided in the Order relates to the construction or 

application of Delaware’s borrowing statute, 10 Del. C. § 8121.”30 Although, the Order

did apply the borrowing statute, the “construction” and “application” of the statute is well 

settled under Delaware law. Hence, this criterion does not weigh in favor of certification. 

Rule 42(b)(iii)(G). Whether review of the interlocutory order may terminate 

the litigation. 

15. Defendants argue that if TCI is found to have the most significant 

relationship to the case, such a finding would terminate the litigation in light of the statute 

of limitations. The Court agrees. However, any review of the Order by the Supreme 

Court would extend only as far as the standard of review below allows. This Court was 

tasked with considering a choice-of-law issue in the context of a Rule 12(b)(6) motion, 

i.e., the Court was bound by the allegations in the complaint, which relayed insufficient 

facts as outlined in the Order. Therefore, the Supreme Court’s review of the Order would 

be similarly restricted with respect to what should be a “fact-intensive” analysis.31 Hence, 

27 113 A.3d at 1052 n.26.

28 See generally id. at 1053–1058.

29 E.g., Soares, 2021 WL 6015701, at *9 (citing to Bell Helicopter for the proposition that the “trend” 

is to look to the place where the product is marketed when analyzing the second contact).

30 Defendants’ Appl. for Certification of Interlocutory Appeal, at 6. 

31 See Dow Chem. Co. v. Organik Kimya Holding A.S., 2018 WL 2382802, at *6 (Del. Ch. May 25, 

2018) (“The ‘most significant relationship’ test entails a fact-intensive inquiry that often is inappropriate 

to a motion to dismiss.... It should be apparent that, at this stage of the litigation, the choice-of-law 

question cannot be answered.” (citations omitted)); see also, e.g., Barrera v. Monsanto Co., 2016 WL 

4938876, at *11 (Del. Super. Sept. 13, 2016) (“The parties have identified Michigan, New York, Texas 
8

this criterion does not weigh in favor of certification.

32

 Moreover, Delaware courts have 

repeatedly held that the fact that parties must proceed to trial as the result of the trial 

court’s decision is not the basis for an interlocutory appeal.33 

Rule 42(b)(iii)(H): Review of the interlocutory order will not serve 

considerations of justice. 

16. Justice is served when the correct outcome, determined by precedent and a 

careful analysis of the facts, is reached. In the Order the Court neither made a final 

determination, nor precluded a later finding, of the most significant relationship as to the 

statute of limitations issue, or as to any other legal issue for that matter. The factual 

record was not sufficiently developed to perform a full choice-of-law analysis. E.g., the 

Court had no information to consider regarding 1) any communications between TCI airtraffic-control personnel and the pilot before the crash; 2) any physical impact to TCI 

from the crash (e.g., physical damage from the impact or resulting wave activity); 3) TCI’s 

standing as a refueling destination, i.e., how TCI was chosen as a place to refuel, if other 

and Missouri as jurisdictions that may prove relevant in the choice of law determination, but additional 

information to properly conduct a ‘choice of law’ analysis is required.... To date, the choice of law 

analysis has not been conducted and cannot be made on the limited facts and minimal record before it.”).

32 Cf. Brunswick Corp. v. Bowl-Mor Co., 297 A.2d 67, 70 (Del. 1972) (holding that “the expression of 

judicial views and impressions, especially those subject to change upon further evaluation of both sides 

of the case are not judicial decisions and, hence, are not appealable when contained within interlocutory 

rulings.” (internal quotations omitted); accord Haveg Corp. v. Guyer, 211 A.2d 910, 913 (Del. 1965) 

(“But only judicial decisions are appealable—not judicial views and impressions, especially those 

subject to change upon further evaluation of both sides of the case. . . . If and when the thoughts objected 

to ripen into a determination of a substantial issue, the review now sought prematurely will be 

available.”). 

33 Levinson, 385 A.2d at 720 (holding that the fact that the parties must proceed to trial as the result of a 

decision “is not a basis for an interlocutory appeal”); accord Stepak v. Pioneer Texas Corp, No. 6315, 

1982 WL 8775, at *1 (Del. Ch. July 7, 1982) (finding that when the Court “did not determine an issue 

essential to the position of the parties regarding the merits of the case . . .[and] either party may yet 

prevail at the trial level” there is no legal right for an interlocutory appeal); Cross v. Hair, 258 A.2d 277, 

278 (Del. 1969) (holding that a decision that finds that a case “is not one to be disposed of summarily 

and is one for trial” does not constitute an adjudication of a legal right supporting an appeal of such 

decision).
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locations were possible, or if there is anything unique about TCI as a refueling stop; 4) 

Decedent’s interaction with the pilot and what responsibilities Decedent had during the 

flight beyond merely accompanying the Aircraft to its destination; and (5) whether there 

was any negligence on the part of the pilot and whether any such negligence contributed 

to the accident. There is also an insufficient factual record, as set forth in the Order, 

concerning other jurisdictions’ connections with the case. This case needs to be 

developed through discovery, at which time, as noted in the Order, a motion to determine 

choice of law, if appropriate, would be ripe for decision. Defendants have already placed 

the proverbial carriage before the horse by pursuing the motion to dismiss, and any further 

delay in discovery to build a sufficient record would undermine the “interests of justice.”

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17. After considering the above factors that Defendants contend weigh in favor 

of their application, the Court finds that the probable costs of interlocutory review 

outweigh any benefits of granting certification.

NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants’

Application for Certification of an Interlocutory Appeal is DENIED.

NEP/wjs

Via File & ServeXpress

oc: Prothonotary

cc: Counsel of Record

34 Supr. Ct. R. 42(b)(iii) (“After considering these factors and its own assessment of the most efficient 

and just schedule to resolve the case, the trial court should identify whether and why the likely benefits 

of interlocutory review outweigh the probable costs, such that interlocutory review is in the interests of 

justice. If the balance is uncertain, the trial court should refuse to certify the interlocutory appeal.”).