IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN RE: CVS OPIOID ) Consol. C.A. No. N22C-02-045 

INSURANCE LITIGATION ) PRW CCLD

Submitted: June 14, 2022

Decided: August 12, 2022

MEMORANDUM OPINION AND ORDER

Upon Defendant CVS Health Corporation’s Motion to Dismiss or Stay

DENIED

Garrett B. Moritz, Esquire, and R. Garret Rice, Esquire, ROSS ARONSTAM & MORITZ 

LLP, Wilmington, Delaware; Michael S. Shuster, Esquire (argued), Daniel M. 

Sullivan, Esquire, Blair E. Kaminsky, Esquire, Daniel K. Phillips, Esquire, and 

Daniel M. Horowitz, Esquire, HOLWELL SHUSTER & GOLDBERG LLP, New York, 

New York; Susan Koehler Sullivan, Esquire, CLYDE & CO LLP, Los Angeles, 

California; Robert M. Mangino, Esquire, CLYDE & CO LLP, Morristown, New 

Jersey, Attorneys for ACE Property and Casualty Insurance Company, Federal 

Insurance Company, Indemnity Insurance Company of North America, Vigilant 

Insurance Company, and Westchester Fire Insurance Company.

Robert J. Katzenstein, Esquire, and Julie M. O’Dell, Esquire, SMITH KATZENSTEIN 

& JENKINS LLP, Wilmington Delaware; Christopher J. St. Jeanos, Esquire (argued), 

and James E. Fitzmaurice, Esquire, WILLKIE FARR & GALLAGHER LLP, New York, 

New York, Attorneys for American Home Assurance Company, Lexington Insurance 

Company, National Union Fire Insurance Company of Pittsburgh, P.A., and New 

Hampshire Insurance Company.

David J. Baldwin, Esquire, Peter C. McGivney, Esquire, and Zachary J. Schnapp, 

Esquire, BERGER HARRIS LLP, Wilmington, Delaware; Kirk Pasich, Esquire, and 

Nathan M. Davis, Esquire, PASICH LLP, Los Angeles, California; Jeffrey L. 

Schulman, Esquire (argued), and Peter A. Halprin, Esquire, PASICH LLP, New York, 

New York, Attorneys for CVS Health Corporation.

WALLACE, J.
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CVS Health Corporation (“CVS”) has been named a defendant in myriad

lawsuits for allegedly contributing to and profiting from the country’s opioid crisis

(the “Opioid Lawsuits”). CVS has sought defense and indemnity for the Opioid 

Lawsuits from its several insurers. Eight of those insurers collectively filed two 

actions in this Court in the first week of February 2022. They seek declarations that 

they had no duty to defend or indemnify CVS against the Opioid Lawsuits. Within 

days of the commencement of these actions, CVS filed a parallel action against those 

insurers in Rhode Island, where CVS maintains its corporate headquarters.

CVS also immediately moved to dismiss or stay these actions, under forum 

non conveniens (the “Motion”). CVS accuses the insurers of filing here as an act of 

forum shopping and argues that Rhode Island is the proper place for their insurance 

coverage dispute. The insurers say CVS’s accusations of forum shopping fall flat 

and that CVS cannot meet its burden under the applicable forum non conveniens

analysis. Through their briefing, the parties dispute which standard governs the 

Motion and how the Cryo-Maid factors apply to the facts of this case. 

For the reasons explained below, the Court holds that the “overwhelming 

hardship” standard governs the Motion and that CVS has not met its burden 

thereunder. Accordingly, the Motion to Dismiss or Stay is DENIED.
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I. FACTUAL AND PROCEDURAL BACKGROUND

A. THE OPIOID LAWSUITS

The Opioid Lawsuits generally allege that CVS purposefully and intentionally 

breached its duties under federal, state, and local law to: maintain effective controls 

against the diversion of opioids, to disclose suspicious prescribing orders, and to 

avoid filling suspicious prescribing orders. It’s alleged that these breaches resulted 

in opioid abuse, addiction, increased morbidity and mortality, and other harms.1 The 

Opioid Lawsuits generally seek abatement, injunctive relief, equitable relief, 

restitution, damages for economic loss (including punitive damages), and attorney’s 

fees.2 

Thousands of Opioid Lawsuits have been consolidated for pretrial 

proceedings in a multi-district litigation (“MDL”) in the federal district court for the 

Northern District of Ohio.3 The MDL suits include actions brought by state, local, 

and tribal governments against manufacturers, distributers, and retailers of 

prescription opioids.4 The presiding MDL judge has designated several cases 

1 Compl. ¶ 34, In re: CVS Opioid Ins. Litig., Consol. C.A. No. N22C-02-045 PRW CCLD (Del. 

Super. Ct. Feb. 4, 2022) (D.I. 1).

2

Id. ¶ 35.

3

Id. ¶ 36 (citing City of Dover et al. v. Purdue Pharma L.P. et al., No. 1:20-op-45086 (N.D. 

Ohio filed Mar. 2, 2020) and Sussex County, Delaware v. Purdue Pharma L.P. et al., No. 1:19-

op-45723 (N.D. Ohio filed Sept. 10, 2019). The consolidated, MDL lead case is captioned In re: 

National Prescription Opiate Litigation, 477 F. Supp. 3d. 613 (N.D. Ohio)).

4

Id.
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against CVS and others as bellwether suits and assigned those cases to numbered 

litigation tracks.5 Other Opioid Lawsuits remain pending in state courts, including 

an action filed by the State of Delaware in this Court.6

In July 2021, CVS settled Opioid Lawsuits brought by New York State’s 

Suffolk and Nassau counties for a combined $26 million against CVS and three other 

chain pharmacies.

7 On November 23, 2021, a federal jury delivered a finding of 

liability against CVS and two other pharmacies in two of the bellwether cases.8

B. CURRENT LITIGATION

Since 2017, CVS has provided notices of certain Opioid Lawsuits to Chubb

Limited seeking to recover its defense costs and to be indemnified under the 

policies.9 CVS has tendered more than two thousand Opioid Lawsuits to Chubb in 

total, including for the suits resulting in the New York settlements and the federal 

jury verdict.10 In response, Chubb notified CVS that it reserved its right to deny 

coverage under the relevant policies.11

5

Id.

6

Id. ¶ 38 (citing State of Delaware v. Purdue Pharma L.P. et al., C.A. No. N18C-01-223 MMJ 

CCLD (Del. Super. Ct.)).

7

Id. ¶ 39 (internal citation omitted).

8

Id. ¶ 40.

9

Id. ¶ 41. Chubb alleges on information and belief that CVS has provided similar notices to its 

other insurers as well. Id.

10 Id. ¶ 42.

11 Id. ¶ 43.
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On February 4, 2022, five Chubb entities—Ace Property and Casualty 

Insurance Company, Federal Insurance Company, Indemnity Insurance Company of 

North America, Vigilant Insurance Company, and Westchester Fire Insurance 

Company (hereinafter collectively, “Chubb”)—together filed a three-count 

complaint in this Court “to have the parties’ rights under the Policies finally 

determined.”

12

 Counts I and II seek declarations that Chubb has no duty to “defend 

or pay for CVS’s defense of the Opioid Lawsuits” or to “indemnify CVS for the 

Opioid Lawsuits,” respectively.13 Alternatively, should the Court determine Chubb 

has any defense or indemnification obligations, Count III seeks a “declaration of the 

rights and obligations, if any, of the Other Insurers14 with respect to coverage for any 

of the underlying Opioid Lawsuits under the terms, conditions, and exclusions of 

their respective policies.”15

Two days later, National Union Fire Insurance Company of Pittsburgh, PA, 

American Home Assurance Company, and New Hampshire Insurance Company 

12 Id. ¶ 44.

13 See id. ¶¶ 45–50.

14 The “Other Insurers,” listed elsewhere in the Complaint, are entities that “issued insurance 

policies to CVS with respect to the relevant period.” See id. ¶¶ 18–19. The Complaint explains 

that “[t]he Other Insurers are joined to ensure the interests they have or may have in the subject 

matter of this declaratory judgment action are not litigated and affected in their absence.” Id. ¶ 18. 

15 See id. ¶¶ 51–53.
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(collectively, the “AIG Insurers” and with Chubb collectively, “the Insurers”) filed 

a substantially identical action against CVS in this Court.16

Chubb served CVS with its complaint on February 11, 2022.17 The next day, 

CVS filed suit against Chubb and the rest of its Insurers in Rhode Island Superior 

Court, seeking competing declaratory relief and alleging additional causes of action 

for breaches of the Policies, breaches of the implied covenant of good faith and fair 

dealing, and statutory bad faith under Rhode Island law (the “Rhode Island 

Action”).18 

On February 23, 2022, CVS moved to dismiss or stay the Delaware Action in 

favor of the Rhode Island Action. In support of the Motion, CVS submitted an 

affidavit stating that its risk management and insurance claims departments are 

located at CVS’s corporate headquarters in Woonsocket, Rhode Island.19 CVS 

claims that nearly all documents comprising this case’s evidentiary record will be 

found in Rhode Island, along with all potential party and non-party witnesses of 

16 See Nat’l Union Fire Ins. Co. of Pittsburgh, P.A. et al. v. CVS Health Corp., N22C-02-056 

PRW CCLD (Del. Super. Ct.). The two actions have since been consolidated under the caption 

and case number: In re CVS Opioid Ins. Litig., Consol. C.A. No. N22C-2-045 PRW CCLD (Del. 

Super. Ct.) (hereinafter “the Delaware Action”). See Order to Consolidate, March 21, 2022 (D.I. 

93).

17 See D.I. 42.

18 See CVS’s Mot. to Dismiss, Decl. of Jeffrey L. Schulman (D.I. 57).

19 See id., Decl. of Lawrence E. Parks at ¶¶ 2–6.
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CVS.20 CVS specifies that its “insurance and risk management functions have 

absolutely no connection to Delaware” and that “[n]o insurer has ever suggested or 

requested that a coverage dispute between CVS and its insurers be resolved in 

Delaware.”21

Initially, the Complaint named as defendants CVS Health Corporation, CVS 

Pharmacy, Inc., and CVS Caremark Corporation.22 The Insurers voluntarily 

dismissed the latter two CVS entities after CVS filed the Motion, leaving CVS 

Health Corporation as only remaining CVS entity.23 CVS Health Corporation is a 

Delaware corporation.

24

 

II. BURDEN AND LEGAL STANDARD FOR FACT-FINDING

The forum non conveniens tests applied by Delaware courts vary based on the 

specifics of both the litigation initiated here and the litigation history of the parties.25 

But no matter which forum non conveniens analysis is applicable in a given situation, 

to gain dismissal it is always the defendant-movant who must show a sufficient 

burden visited by the plaintiff’s choice of Delaware as the forum in which to bring 

20 Id. ¶¶ 5–6, 17.

21 Id. ¶ 17.

22 Compl. ¶¶ 15–17.

23 D.I. 59.

24 Compl. ¶ 15. 

25 See Aranda v. Philip Morris USA Inc., 183 A.3d 1245, 1250–51 (Del. 2018) (describing 

Delaware’s different forum non conveniens analyses).
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suit. Ordinarily, at the motion to dismiss stage, the Court must accept as true all of 

a plaintiff’s well-pleaded facts and draw all reasonable inferences in its favor.26 But 

on a motion to dismiss an action for forum non conveniens, this Court exercises its 

sound discretion when making findings of fact and drawing conclusions therefrom 

based on that supported by the record; the Court must, when doing so, use an orderly 

and logical deductive process.27

III. PARTIES’ CONTENTIONS

CVS begins by addressing the standard under which its motion should be 

scrutinized. According to CVS, the Delaware Action and the Rhode Island Action 

should be treated as “contemporaneously filed” because they were filed within “the 

same general time frame”—thus, “neither action commands the high ground which 

would otherwise force the court to approach the [forum non conveniens] analysis in 

a manner which defers to a plaintiff’s choice of forum.”28 The Insurers argue the 

Delaware Action should be treated as the first-filed action because there was no “race 

26 E.g. Olenik v. Lodzinski, 208 A.3d 704, 714 (Del. 2019) (applying this rule where dismissal 

was sought and granted because the contested transaction was subject to business judgment 

review); Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 535 

(Del. 2011) (applying this rule when reversing dismissal that was granted because of purportedly 

duplicative claims); Clinton v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009) (applying 

this rule where dismissal was granted under this Court’s Civil Rule 12(b)(6)).

27 Williams Gas Supply Co. v. Apache Corp., 594 A.2d 34, 37 (Del. 1991).

28 See CVS’s Mot. to Dismiss at 9–10 (internal citations omitted).
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to the courtroom” between them and CVS. And so, they say the Motion should be 

assessed under the “overwhelming hardship” standard.29 

The parties next turn to applying the six Cryo-Maid factors30 to the facts of 

this dispute. The parties’ contentions as to each factor will be examined in more 

detail below. Predictably, however, CVS argues each and every factor supports 

litigating this dispute in Rhode Island.

31

 Conversely, the Insurers claim CVS fails 

to establish, under any factor, that it would face overwhelming hardship if the dispute 

were to remain in Delaware.32

More generally, the parties dispute the Insurer’s reasons for filing the 

Delaware Action in the first instance. According to CVS, Chubb filed the first 

action (and the AIG Insurers followed) in response to the Delaware Supreme Court’s 

January 10, 2022 decision in Ace American Insurance Company v. Rite Aid 

Corporation.

33

 The question in that case was whether insurance policies covering 

lawsuits “for” or “because of” personal injury require insurers to defend their 

insureds when the plaintiffs in the underlying suits expressly disavow claims for 

29 See Chubb’s Answering Br. at 11–16 (D.I. 152).

30 Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. Ch. 1964), overruled in part on 

other grounds, Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park, 261 A.2d 520 (Del. 1969).

31 CVS’s Mot. to Dismiss at 11. 

32 Chubb’s Answering Br. at 22–23.

33 See 270 A.3d 239 (Del. 2022).
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personal injury and seek only their own economic damages.34 The Supreme Court 

held that because “the plaintiffs, governmental entities, sought to recover only their 

own economic damages, specifically disclaiming recovery for personal injury or any 

specific treatment damages . . . the carriers did not have a duty to defend Rite Aid 

under the governing insurance policy.”35 CVS claims that the Insurers “apparently 

conclude[ed] that Rite Aid set a favorable precedent for it in Delaware”36 and thus 

filed suit here in act of “forum shopping.”37 As explained below, CVS posit that the 

Insurers’ alleged forum shopping weighs in favor of dismissing or staying the 

Delaware Action. In response, the Insurers argue that CVS’s accusations do not alter

its burden of showing overwhelming hardship and that, in any case, CVS is 

attempting to engage in forum shopping itself by avoiding litigating this dispute in 

Delaware. 38 

34 Id. at 241.

35 Id.

36 CVS’s Mot. to Dismiss at 2.

37 Id. at 3.

38 Chubb’s Answering Br. at 19–22.
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IV. ANALYSIS

Because the “overwhelming hardship” standard governs the Motion and CVS 

fails to meet that standard, its Motion to Dismiss or Stay must be DENIED.

A. THE “OVERWHELMING HARDSHIP” STANDARD APPLIES.

When determining whether a suit should be stayed or dismissed for forum non 

conveniens, Delaware courts apply different standards depending on the 

circumstances.39 When a Delaware case is the first action filed, relief via forum non 

conveniens is available only in the face of overwhelming hardship from Delaware 

litigation.40 But “[w]hen two cases are filed at approximately the same time, 

Delaware courts will weigh an application for a stay ‘under the traditional forum non 

conveniens framework’ without ‘preference for one action over the other’ to avoid 

rewarding the victor in a ‘race to the courthouse.’”41 “In such cases, the reviewing 

court neutrally compares hardships imposed on each party by the adverse party’s 

chosen forum, and stays the Delaware action if the foreign proceeding is less 

39 SS&C Techs. Holdings, Inc. v. Endurance Assurance Corp., 2020 WL 6335898, at *4 (Del. 

Super. Ct. Oct. 29, 2020) (internal citations omitted).

40 GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 234 A.3d 1186, 1194 (Del. Super. Ct. 2020), 

aff’d, appeal dismissed, 253 A.3d 93 (Del. 2021).

41 Id. at 1195 (quoting In re Citigroup Inc. S’holder Derivative Litig., 964 A.2d 106, 116 (Del. 

Ch. 2009)).
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burdensome overall.”

42

 Thus, the Court must determine “the strength of the 

presumptions applied” under the forum non conveniens analysis.43

CVS argues the Delaware Action and Rhode Island Action should be deemed 

contemporaneously filed because they were filed within the “same general time 

frame”—only ten days apart.44 But the temporal proximity between the filings isn’t 

dispositive. The reason that Delaware courts generally “consider[] matters filed 

within a couple days to be filed contemporaneously” is “to avoid rewarding a party 

merely for winning a race to the courthouse.”45 But if there was no race, the rationale 

for applying this rule abates. 

The Court of Chancery’s decision in Dura Pharmaceuticals is instructive.46

Scandipharm, Inc. sued Dura, Inc. in Alabama, alleging Dura wrongfully terminated 

their merger agreement. Dura promptly filed a competing action against 

Scandipharm in Delaware. Scandipharm moved to dismiss the Delaware action 

under forum non conveniens. In opposition, Dura argued the two actions had been 

42 Id. (citing National Union Fire Ins. Co. of Pittsburgh, PA v. Axiall Corp., 2019 WL 4303388,

at *4 (Del. Super. Ct. Sept. 11, 2019)).

43 See GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 253 A.3d 93, 100–01 (Del. 2021) (internal 

citations omitted).

44 See CVS’s Mot. to Dismiss at 9–10.

45 Nokia Sols. & Networks Oy v. Collision Commc’ns, Inc., 2020 WL 2095829, at *4 (Del. Super. 

Ct. Apr. 30, 2020) (internal citations omitted); see also Cnty. of York Emps. Ret. Plan v. Merrill 

Lynch & Co., 2008 WL 4824053, at *3 (Del. Ch. Oct. 28, 2008) (“Actions filed close in time to 

each other are considered simultaneously filed in order to avoid encouraging a ‘race to the 

courthouse.’”).

46 Dura Pharms., Inc. v. Scandipharm, Inc., 713 A.2d 925 (Del. Ch. 1998).
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filed so closely together in time that they should be treated as contemporaneous.47 

The court disagreed:

There was no “race to the courthouse” following the expiration of a 

standstill agreement. On the contrary, both parties had been free to file 

suit for several weeks. While there is a suggestion that Dura was also 

in the process of preparing suit papers when it learned of Scandipharm’s 

complaint, Dura “was shocked by the filing of litigation in Alabama” 

and made its decision to file suit in reaction to, rather than 

independently of, news of that filing. The fact that the two complaints 

were filed within one business day of one another is not an indication 

of independent decisionmaking, as in Cyrix, but merely a testament to 

Dura’s alacrity in responding to Scandipharm’s choice of Alabama as 

the forum for this litigation. Neither Cyrix nor the other cases cited by 

Dura suggest that, in the absence of other, special circumstances, a 

second-filed, reactive Delaware action will succeed in ousting a foreign 

plaintiff of its choice of forum simply by the speed with which it is 

filed. Indeed, such a rule would undermine the very considerations of 

comity and efficiency on which the general rule of McWane is based, 

by encouraging a “race” to file responsive or reactive complaints.48

Here, the material facts are very similar to those of Dura Pharmaceuticals. 

Like Dura, CVS effectively admitted there was no race to the courthouse—CVS says 

the Insurers “surprised CVS with this action” by filing “without warning or 

provocation.”49 Similarly, CVS filed the Rhode Island Action solely as a reaction to 

the Delaware Action, rather than as an act of independent decisionmaking.50 Finally, 

47 Id. at 928. 

48 Id. at 929 (emphasis in original) (internal citations omitted).

49 CVS’s Mot. to Dismiss at 2.

50 See id. at 9 (“Chubb sued on February 4, 2022, and served CVS on February 11, 2022. CVS 

first learned of this action on February 7, 2022. On February 14, 2022, five business days after 
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CVS and the Insurers had been free to file an action concerning their coverage 

dispute at any time. CVS began tendering the Opioid Lawsuits to Chubb in 2017, 

to which Chubb responded with “numerous coverage position letters[] reserving its 

right to deny coverage.”51 The coverage dispute began to ripen by at least 2021, 

when CVS was found liable in connection with several Opioid Lawsuits.52 Even 

then, no party appeared to be in any rush to adjudicate their coverage rights or 

obligations. Because there was no race to the courthouse between CVS and the 

Insurers, there is no reason to treat the Rhode Island and Delaware Actions as 

contemporaneously filed.53

CVS attempts to concoct a race to the courthouse by accusing the Insurers of 

filing the Delaware Action in response to the Delaware Supreme Court’s Rite Aid

decision. According to CVS, it is “well-settled Delaware law that when, as here, 

two lawsuits are filed close in time and there is a ‘hint of jockeying for position,’ the 

first-filed lawsuit will not be afforded presumptive priority.”54 If any such “rule” 

does indeed exist, it doesn’t apply here. 

CVS learned of this action and the next business day after Chubb served it, CVS filed the Rhode 

Island Action.”). 

51 See Compl. at ¶¶ 41–43.

52 Id. ¶¶ 39–40.

53 Compare Nokia Sols. & Networks Oy, 2020 WL 2095829, at *5 (declining to extend deference 

to a Delaware action where the filing party “plainly engaged in a race to the courthouse”). 

54 CVS’s Reply Br. at 8 (quoting Air Prods. & Chem., Inc. v. Lummos Co., 252 A.2d 545, 547 

(Del. Ch. 1968), rev’d, 252 A.3d 543 (Del. 1969)). 
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CVS draws the “jockeying for position” language from Air Products & 

Chemicals, Inc. v. Lummos Co.55 In that case, one party “was preparing” to file suit 

in Puerto Rico “in order to take advantage of a fifteen year statute of limitations” for 

its claims in that jurisdiction.56 The opposing party attempted to preempt that

“imminent suit” by filing a declaratory judgment action in Delaware, where the 

applicable statute of limitations was shorter and could have barred certain claims

against it.

57

 Thus, the “jockeying for position” in Lummos referred to the fact that 

one party was attempting to “effectively block[]” an imminent lawsuit by exploiting 

an unearned procedural advantage.58 That’s not what’s happened here. The Insurers 

did not “jockey for position” by filing the Delaware Action because there was 

nothing imminent to initiate some race to the courthouse between them and CVS. 

Nor does it appear that the Insurers filed in Delaware to obtain any procedural

advantage that could wholly foreclose CVS from a decision on the merits of its 

potential claims.

Similar considerations distinguish this dispute from E-Birchtree, LLC v. 

Enterprise Products Operating L.P., another case on which CVS relies.59 In that 

55 Lummos, 252 A.2d at 547.

56 See id. at 546–47.

57 Id. at 546.

58 Id.

59 See CVS’s Mot. to Dismiss at 26 (citing E-Birchtree, LLC v. Enter. Prod. Operating L.P., 

2007 WL 914644 (Del. Super. Ct. Jan. 18, 2007)).
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case, E-Birchtree, LLC filed a declaratory judgment action in Delaware relating to a 

contract between itself and a company called Enterprise. E-Birchtree explained that 

Enterprise had accused E-Birchtree of breaching the contract and sought declarations 

that Enterprise’s “potential” breach-of-contract claims were time-barred under 

Delaware’s statute of limitations.60 Two days later, Enterprise filed a breach-ofcontract action against E-Birchtree in Texas and moved to dismiss the Delaware 

action.61 Quoting Lummos, this Court noted that the “use of a declaratory judgment 

action to anticipate and soften the impact of an imminent suit elsewhere for the 

purpose of gaining an affirmative judgment in a favorable forum requires a closer 

look at the deference historically accorded a prior filed action.”62 And “[t]he obvious 

advantage to E-Birchtree by filing in Delaware is the hoped-for application of 

[Delaware’s] three-year statute of limitations, which would foreclose Enterprise’s 

action on the merits.”63 Not so here. The Insurers didn’t file the Delaware Action to 

preempt any imminent action by CVS or to gain any unfair advantage.

To the contrary, the only thing that CVS suggests as some act of forum 

shopping is the Insurers’ “apparent[] conclu[sion] that Rite Aid set favorable 

60 E-Birchtree, 2007 WL 914644, at *1.

61 Id. at *1–2.

62 Id. at *3 (internal citations omitted).

63 Id.
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precedent for [them] in Delaware.”64 Assuming CVS were correct about the 

Insurers’ strategic motivations, the filing of the Delaware Action would not 

constitute the type of “shopping” that Delaware courts have disfavored. As the Court 

of Chancery has explained:

It is a fact of life that a party’s choice of forum will more likely than 

not be motivated by strategic considerations. What is pivotal is not the 

litigant’s subjective motivation but the objective impact of its actions. 

If “forum shopping” means filing an action in a location that the 

plaintiff considers advantageous, then most plaintiffs in litigation 

involving significant commercial disputes will be guilty of it. If such 

behavior were considered inequitable, a stay would become virtually 

automatic in most litigations involving large economic stakes.65

Although the decision to litigate in Delaware “will not be honored if it will inflict 

inconvenience and hardship upon the opposing party[,]”

66 the Court “cannot concern 

itself with the plaintiffs’ ‘subjective motivation’ in bringing their claims to 

Delaware.”67 “The Court’s focus is, and must be, vel non the defendants have 

established that they will suffer overwhelming hardship by litigating . . . in 

Delaware.”

68

64 CVS’s Mot. to Dismiss at 2. 

65 Williams Nat. Gas Co. v. Amoco Prod. Co., 1990 WL 13492, at *9 (Del. Ch. Feb. 15, 1990), 

appeal dismissed, 577 A.2d 751 (Del. 1990); see also In re Asbestos Litig., 929 A.2d 373, 388 

(Del. Super. Ct. 2006).

66 Williams, 1990 WL 13492, at *9.

67 In re Asbestos Litig., 929 A.2d at 388.

68 Id.
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B. CVS CANNOT ESTABLISH OVERWHELMING HARDSHIP

Where, as here, the Delaware case is the first action filed, relief via forum non 

conveniens is available only in the face of overwhelming hardship from Delaware 

litigation.

69 This standard “is not intended to be preclusive[,]” but it “is intended as 

a stringent standard that holds defendants who seek to deprive a plaintiff of [its]

chosen forum to an appropriately high burden.”70 Accordingly, the Court must 

determine whether CVS “ha[s] shown that the forum non conveniens factors weigh 

so overwhelmingly in [its] favor that dismissal of the Delaware litigation is required 

to avoid undue hardship and inconvenience to [it].”71 

The factors relevant to this analysis are the six set forth in Cryo-Maid.

72 After 

considering each factor in turn, the Court concludes that CVS has not established 

that it would suffer overwhelming hardship litigating the Delaware Action in this 

Court. 

1. Relative ease of access to proof.

The first factor assesses “the relative ease of access of proof.”73 CVS argues 

69 GXP Cap., 234 A.3d at 1194.

70 Martinez v. E.I. DuPont de Nemours & Co., 86 A.3d 1102, 1105 (Del. 2014) (internal citations 

omitted).

71 Id. at 1106.

72 Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. Ch. 1964), overruled in part on 

other grounds, Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park, 261 A.2d 520 (Del. 1969); 

see also Martinez, 86 A.3d at 1104.

73 Martinez, 86 A.3d at 1104. 
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this factor favors the Rhode Island Action because “[n]early all documents 

comprising this case’s evidentiary record will be found in Rhode Island” and 

relevant witnesses “will need to travel to Delaware” from Rhode Island.74 CVS does 

not refer to any individual specifically, but rather refers generally to its own risk 

management and insurance claims department employees.

This adds little heft to the claim of overwhelming hardship here. Even if most 

of the CVS’s documents are physically located in Rhode Island, “modern methods 

of information transfer render concerns about transmission of documents virtually 

irrelevant.”75 Similarly, “mode[rn] methods of transportation lessen the Court’s 

concern about the travel of witnesses who do not live in Delaware[.]”76 CVS has 

not attempted to explain why such workarounds would be unavailable or 

impracticable here. In short, CVS overstates the burden of obtaining the evidence

needed to prepare its defense in Delaware.77

2. Availability of compulsory process for witnesses.

Under the second factor, the Court must evaluate whether “another forum 

would provide a substantial improvement as to the number of witnesses who would 

74 CVS’s Mot. to Dismiss at 19–23.

75 Barrera v. Monsanto Co., 2016 WL 4938876, at *6 (Del. Super. Ct. Sept. 13, 2016) (internal 

quotations and citations omitted).

76 Id. (internal quotations and citations omitted).

77 Id.
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be subject to compulsory process.”78 CVS says this factor weighs in its favor 

because “CVS knows of no potential witnesses in Delaware, and anticipates the 

Insurers will not identify any. On the other hand, many witnesses would be subject 

to compulsory process in Rhode Island, including those who are or have been 

responsible for CVS’s risk management, insurance, and legal functions and various 

insurance brokers.”79 

But CVS make no real attempt to identify any witnesses that could be called 

in Rhode Island but not in Delaware, making its assertion that Rhode Island will “be 

able to compel many more witnesses than Delaware”80 entirely conclusory. “[B]are 

allegations that litigating in Delaware may be less convenient than litigating 

[elsewhere]” are insufficient; instead, there must be a “particularized showing that 

witnesses, documents, or other evidence . . . cannot be brought to or otherwise 

produced in Delaware.”81 When a defendant does “not name the witnesses it deem[s]

necessary to call . . . or explain why their testimony could not be presented in 

78 Mt. Hawley Ins. Co. v. Jenny Craig, Inc., 668 A.2d 763, 769 (Del. Super. Ct. 1995). See, e.g.,

Aveta, Inc. v. Colon, 942 A.2d 603, 611–13 (Del. Ch. 2008) (concluding that the movant “has not 

established that he would face overwhelming hardship by having to transmit the necessary 

documentary evidence to Delaware[,]” but “would face an overwhelming hardship if forced to 

absorb the considerable expense of flying his numerous witnesses from Puerto Rico to Delaware 

and boarding them here.”).

79 CVS’s Mot. to Dismiss at 23.

80 Id.

81 Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Ref., L.P., 777 A.2d 774, 781 (Del. 

2001).
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Delaware by deposition . . . [i]t follows that the defendant fail[s] to sustain its burden 

of proof in this regard.”82 

CVS’s position is further weakened by the reality that the witnesses in any

insurance dispute will mostly be employees of the parties—i.e. witnesses who 

“generally do not require compulsory process to obtain their appearance.”83 The 

second Cryo-Maid factor, like the first, does not support dismissing or staying the 

Delaware Action.

3. Possibility to view the premises.

The parties agree this factor carries no weight in the current dispute and need 

not be discussed.84

4. Applicability of Delaware law.

The fourth factor assesses “whether the controversy is dependent upon the 

application of Delaware law which the courts of this State more properly should 

decide than those of another jurisdiction.”

85 An “implicit and logical corollary” to 

this factor is that Delaware courts “must acknowledge that important and novel 

issues of other sovereigns are best determined by their courts where practicable.”86 

82 States Marine Lines v. Domingo, 269 A.2d 223, 226 (Del. 1970).

83 Rosen v. Wind River Sys., Inc., 2009 WL 1856460, at *6 (Del. Ch. June 26, 2009).

84 See CVS’s Mot. to Dismiss at 28; Chubb’s Answering Br. at 23 n.5. 

85 Martinez, 86 A.3d at 1104.

86 See id. at 1109–10.
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CVS argues at length that Rhode Island law governs this dispute, while the 

Insurers say the Court need not choose between Rhode Island and Delaware law 

because they are not in conflict. Too, the Insurers suggest CVS would suffer no 

hardship even if this Court were required to apply Rhode Island law. The Insurers 

are correct on both points. 

a. No true conflict between Delaware and Rhode Island law.

The first step in a conflict-of-law analysis is to decide whether a conflict truly 

exists, comparing “the competing jurisdictions to determine whether the laws 

actually conflict on a relevant point.”

87

 “‘In determining whether there is an actual 

conflict, Delaware state courts . . . answer a single and simple inquiry: does 

application of the competing laws yield the same result?’”

88

 “If the answer is yes, 

then ‘the Court should avoid the choice-of-law analysis altogether.’”

89

Here, the answer is “yes.” The result of an insurance coverage dispute will 

depend primarily upon the Court’s interpretation of the coverage terms and 

exclusions contained in the relevant insurance policies. CVS and the Insurers appear 

to agree that Rhode Island and Delaware follow substantially identical rules for 

87 Arch Ins. Co. v. Murdock, 2018 WL 1129110, at *8 (Del. Super. Ct. Mar. 1, 2018), aff’d sub. 

nom., RSUI Indem. Co. v. Murdock, 248 A.3d 887 (Del. 2021).

88 Id. (quoting Laugelle v. Bell Helicopter Textron, Inc., 2013 WL 5460164, at *2 (Del. Super.

Ct. Oct. 1, 2013)).

89 Id. (quoting Vichi v. Koninklijke Philips Elec., N.V., 85 A.3d 725, 773 (Del. Ch. 2014)).
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contract interpretation, including insurance contracts.90 Thus, the Court would likely 

reach the same conclusion on the parties’ rights and obligations were it to apply 

either Delaware or Rhode Island law. This conclusion is consistent with Rite Aid, 

where the Delaware Supreme Court held there was no conflict between Delaware 

and Pennsylvania in an insurance coverage dispute because both states follow the 

same rules when interpreting insurance contracts.

91

That said, CVS claims that Rhode Island and Delaware conflict as to remedies. 

For instance, CVS notes that Rhode Island, unlike Delaware, provides a private right 

of action by statute when an insurer denies coverage in bad faith.92 The Rhode Island 

statute authorizes the recovery of reasonable attorney’s fees for an insurer’s bad 

faith.

93

 True, Delaware has no equivalent statute. But, in the right instance, a

Delaware trial court may award attorney’s fees to prevailing parties when the losing 

party acted in bad faith—even absent some applicable contractual or statutory 

provision.94

90 See CVS’s Mot. to Dismiss at 14 (acknowledging the states’ “laws of insurance policy 

interpretation are similar”).

91 See Rite Aid, 270 A.3d at 244–46 (Del. 2022).

92 See 9 R.I. GEN. LAWS § 9-1-33 (West 2005), preempted by Desrosiers v. Hartford Life and 

Acc. Ins. Co., 354 F. Supp. 2d 119 (D.R.I. 2005).

93 Id.

94 E.g., E.I. du Pont de Nemours & Co. v. Medtronic Vascular, Inc., 2013 WL 1792824, at *2 

(Del. Super. Ct. Apr. 24, 2013).
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Citing cases addressing far different insurance coverage circumstances—i.e. 

an automobile insurer’s denial of underinsured motorist benefits to its own injured

insured95—CVS also alludes to the potential availability of punitive damages in 

Rhode Island. CVS follows that the states “diverge” on their “bad-faith doctrines.”96 

The Court views with great skepticism CVS’s postulation that bad-faith remedies 

would be available in an insurance coverage dispute like this in either state. But if 

so, and if at this point this granularity matters at all, Rhode Island and Delaware do 

not diverge to nearly the degree CVS protests.97 In other words, as best the Court 

can discern, there appears no real conflict between Delaware and Rhode Island law 

regarding either liability or damages in the type of coverage dispute here. 

95 See Skaling v. Aetna Ins. Co., 799 A.2d 997, 1016 (R.I. 2002); Bibeault v. Hanover Ins. Co., 

417 A.2d 313, 319 (R.I. 1980).

96 CVS’s Mot. to Dismiss at 14. According to CVS, in Rhode Island, “punitive damages are 

available as a matter of right in bad faith cases,” even without a showing of “willful or wanton 

conduct.” See Skaling, 799 A.2d 997 at 1016. Conversely, CVS says, Delaware conditions the 

recovery of punitive damages on proof that the insurer denied coverage with a higher degree of 

fault. See E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 446 (Del. 1996). 

97 The Rhode Island Supreme Court has held that to prove bad faith—as one must to recover 

punitive damages—“a plaintiff must show the absence of a reasonable basis for denying benefits 

of the policy and the defendant’s knowledge or reckless disregard of the lack of a reasonable basis 

for denying the claim.” Skaling, 799 A.2d at 1004 (internal citations omitted). When available in 

a particular coverage context, Delaware “has permitted punitive damages in the insurance ‘bad 

faith’ context”—for example, “‘if the denial of coverage is willful or malicious . . . [and] when the 

bad faith actions of an insurer are taken with a reckless indifference or malice toward the plight of 

the injured employee [insured].’” E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 446 

(Del. 1996) (quoting Pierce v. Int’l Ins. Co. of Ill., 671 A.2d 1361, 1367 (Del. 1996)).
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A note on the Delaware Supreme Court’s Chemtura decision: it demands no 

different decision in these circumstances. In Chemtura, the Supreme Court held that 

New York law governed the interpretation of the “comprehensive, nationwide 

insurance program” at issue in that case because New York had the most significant 

relationship to the insurance contracts.

98

 In its analysis, the Court afforded 

“particular” significance to the fact that New York was “the headquarters of the 

insured at the outset of the insurance program.”99 CVS argues Chemtura supports 

the application of Rhode Island law to the current dispute. But the Supreme Court 

made clear that its holding was directed to the third step of the choice-of-law 

analysis—a step that must be reached only if there is an actual conflict between the 

laws of the competing states.100 Because no such conflict exists here, Chemtura is 

inapplicable.101 

98 See Certain Underwriters at Lloyds, London v. Chemtura Corp., 160 A.3d 457, 459–460 (Del. 

2017).

99 Id.

100 Id. at 464; see also Travelers Indem. Co. v. CNH Indus. Am., LLC, 2018 WL 3434562, at *4 

(Del. July 16, 2018) (analyzing which state had the “most significant relationship” to the parties’ 

insurance policies only after determining an actual conflict existed between the competing states); 

Sycamore Partners Mgmt., L.P. v. Endurance Am. Ins. Co., 2021 WL 761639, at *7 (Del. Super.

Ct. Feb. 26, 2021).

101 In its Motion, CVS also relies on RSUI Indem. Co. v. Murdock, 248 A.3d 887 (Del. 2021). 

There again, the Court was effectively thrust to the third step of the choice-of-law analysis and 

needed to determine which state had the most significant relationship to those parties’ directors’ 

and officers’ liability insurance policies. See id. at 895. So, RSUI is inapplicable here for the same 

reason as Chemtura.
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At this point, the Court need not choose between Delaware and Rhode Island 

law because there simply appears no real conflict between them.102 So the fourth 

Cryo-Maid factor does not weigh on the side of dismissal/stay of the Delaware 

Action in favor of the Rhode Island Action.

b. Even if Rhode Island law applied, CVS hasn’t shown “overwhelming 

hardship.”

CVS has not shown this factor favors the Rhode Island Action, even if it were 

assumed the Court must apply Rhode Island law. As the Delaware Supreme Court 

has explained:

This factor, like the other Cryo-Maid factors, would support dismissing 

a first-filed Delaware action only if it created overwhelming hardship. 

It does not. Delaware courts often decide legal issues—even unsettled 

ones—under the law of other jurisdictions. Accordingly, this Court has 

held that “[t]he application of foreign law is not sufficient reason to 

warrant dismissal under the doctrine of forum non conveniens.”103

CVS has not explained how it would be subjected to overwhelming hardship if this 

Court were to apply Rhode Island law. CVS instead blithely claims this action 

implicates “open questions of Rhode Island insurance law” that are better decided 

by Rhode Island courts.104 Our Supreme Court has made clear that’s not enough 

102 See Deuley v. DynCorp Int’l, Inc., 8 A.3d 1156, 1161 (Del. 2010) (avoiding choice-of-law 

analysis because the conflict was “false” and the result under the competing laws would be the 

same).

103 Berger v. Intelident Sols., Inc., 906 A.2d 134, 137 (Del. 2006) (internal citations omitted). 

104 CVS’s Mot. to Dismiss at 18.
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under the forum non conveniens analysis. Again, this factor does not favor 

dismissing or staying the Delaware Action.

5. Pendency of a similar action in another jurisdiction.

The fifth factor assesses the “pendency or nonpendency of a similar action or 

actions in another jurisdiction.”105 Its application here is straightforward. 

To borrow the Court of Chancery’s words:

There is a similar action pending in another jurisdiction, with [CVS] 

having filed a mirror image declaratory judgment action in [Rhode 

Island] . . . [shortly] after [the Insurers] filed this action. The pendency 

of the [Rhode Island] Action, however, cannot be said to cause 

overwhelming hardship to [CVS] by requiring it to litigate in two 

forums. This ‘problem’ is of [CVS’s] own making, as it filed [Rhode 

Island] Action after it knew it faced litigation in Delaware.106 

Or as our Supreme Court has said: “The parties face wasteful duplication of effort 

and risk inconsistent adjudications only because [CVS] is pursuing its later-filed 

[Rhode Island] action. If [CVS] were to dismiss its [Rhode Island] action, this 

hardship would disappear.”107

Nevertheless, CVS insists this Court should defer to the Rhode Island Action 

because, as plaintiff there, it seeks a “more comprehensive declaratory judgment on 

105 Martinez, 86 A.3d at 1104. 

106 Petroplast Petrofisa Plasticos S.A. v. Ameron Int’l Corp., 2009 WL 3465984, at *6 (Del. Ch. 

Oct. 28, 2009).

107 Chrysler First Bus. Credit Corp. v. 1500 Locust Ltd. P’ship, 669 A.2d 104, 107–08 (Del. 

1995).
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the parties’ rights and obligations under the Policies” and “also asserts causes of 

action for breach of contract and bad faith under Rhode Island law.”108 Additionally, 

CVS again suggests the Insurers’ furtive “forum shopping” weighs in favor of 

dismissing the Delaware Action because CVS is the “natural plaintiff” in this 

dispute.109 CVS’s arguments fail in several ways. 

First, the Rhode Island Action is not more “comprehensive” than the 

Delaware Action. CVS brought four causes of action in the Rhode Island Action: 

(1) breach of contract, alleging the insurers breached the insurance policies by 

“unreasonably stating that there is no coverage for the Opioid Lawsuits;” (2) breach 

of the implied covenant of good faith and fair dealing, alleging the insurers denied 

coverage in bad faith; (3) statutory bad faith, again premised on the denial of 

coverage; and (4) declaratory judgment that CVS’s coverage position is correct.110 

Thus, CVS’s claims in the Rhode Island Action are coterminous with those in the 

Delaware Action. It is in every substantive feature a doppelgänger coverage dispute. 

Both actions boil down to the same core issue: Are the Insurers obligated to cover 

the Opioid Lawsuits? Neither Action will answer that more comprehensively than 

the other. 

108 See CVS’s Mot. to Dismiss at 25–26.

109 See id. at 26–27.

110 See CVS’s Mot. to Dismiss, Ex. A.
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Second, CVS’s allegations of forum shopping again fall flat. CVS is correct 

that “Delaware courts take a ‘rather dim view of declaratory judgment claims of nonbreach made for purposes of forum shopping.’”

111

 But, to reiterate, the Insurers can’t 

be said to have impermissibly forum-shopped. 

Third, CVS’s claim that it is the “natural plaintiff” in this dispute lacks 

nuance. True, in Crosstex, this Court recognized that “the insured[] is in the role of 

the natural plaintiff following a denial of coverage.”112 But Crosstex made note of 

this fact in the context of holding that two competing actions had been filed 

contemporaneously because the parties had engaged in a race to the courthouse.113 

Because there was no race to the courthouse here, CVS’s status as the “natural 

plaintiff” carries little independentsignificance. Similarly, although this Court noted 

disapprovingly that the party filing the Delaware action in E-Birchtree—which had 

nothing to do with insurance coverage—was not the “natural plaintiff” in the parties’ 

dispute, it did so in the context of that party’s obvious forum shopping.114 

Like the previous factors, the fifth Cryo-Maid factor does not support 

dismissing or staying the Delaware Action. 

111 E-Birchtree, 2007 WL 914644, at *4 (quoting In re Delta and Pine Land Co. S’holders Litig.,

2000 WL 1010584, at *5 (Del. Ch. July 17, 2000)).

112 Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Crosstex Energy Servs., L.P., 2013 WL 

6598736, at *5 (Del. Super. Ct. Dec. 13, 2013).

113 Id. at *5.

114 See E-Birchtree, 2007 WL 914644, at *3.
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6. Other practical considerations.

The final factor assesses “all other practical problems that would make the 

trial of the case easy, expeditious and inexpensive.”115 Under this factor, CVS 

argues: (1) the “public interest” in this case favors a dismissal or stay because “there 

are no contacts with [Delaware] other than the incorporation of a few of the parties;” 

(2) granting CVS’s motion would promote judicial economy by eliminating 

duplicative litigation; and (3) granting CVS’s motion would avoid the risk of 

inconsistent judgments in different courts.116

The Court addressed the latter two arguments in the previous section. CVS 

created duplicative litigation and the risk of inconsistent judgments by filing the 

Rhode Island Action after being sued in Delaware. These are problems of CVS’s 

own creation, and CVS could solve them simply by dismissing or seeking a stay of 

its own reactive, later-filed Rhode Island Action. 

More complicated is CVS’s argument relating to the public interest in this 

case. CVS is correct: Delaware’s interest in this dispute is somewhat weaker than 

in other circumstances. As this Court observed in GXP Capital: 

Delaware has an interest in regulating the conduct of entities formed 

under its laws [i.e., CVS], and this public interest can weigh against 

granting forum non conveniens relief. But Delaware’s public interest 

in providing a forum on the basis of incorporation is strongest in cases 

115 Martinez, 86 A.3d at 1104.

116 See CVS’s Mot. to Dismiss at 28–34.
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where issues of substantive corporate governance and structure are 

implicated. And this general—but important—interest in providing a 

forum for resolving disputes involving its corporate citizens can be 

outweighed by the hardship occasioned from the other factors visited 

on those who appear to have been brought here for vexatious, harassing, 

or oppressive purposes.117

This dispute doesn’t implicate any issues of substantive corporate governance and 

structure. And its strongest connection to Delaware appears to be CVS’s 

incorporation here. Nevertheless, “the practical consideration that the only 

connection to Delaware is that the parties are incorporated here does not rise to the 

level of overwhelming hardship required for a motion to dismiss on forum non

conveniens grounds.”118 To the contrary, the Delaware Supreme Court has held that

“‘the traditional showing a defendant must make in order to prevail on a motion to 

dismiss on the ground of forum non conveniens’ is not varied where a dispute’s only 

connection to Delaware is the fact that the defendant is a Delaware entity.”119 

Furthermore, Rhode Island cannot be said to have a greater interest in this case

than Delaware. Because this dispute does not perforce call for the application of 

Rhode Island law, Rhode Island’s connection to this insurance dispute is the fact that

117 GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 234 A.3d 1186, 1198 (Del. Super. Ct. 2020), 

aff’d, appeal dismissed, 253 A.3d 93 (Del. 2021).

118 Royal Indem. Co. v. Gen. Motors Corp., 2005 WL 1952933, at *11 (Del. Super. Ct. July 26, 

2005).

119 Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Ref., L.P., 777 A.2d 774, 780 

(Del. 2001) (internal citation omitted).
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CVS maintains its corporate headquarters there.120 In this context, Delaware’s 

interest in offering a “neutral forum to adjudicate commercial disputes against 

Delaware entities”121—like CVS—arguably provides Delaware as great an interest 

in this dispute as any other state can readily claim. 

V. CONCLUSION

To prevail on its Motion to Dismiss or Stay, CVS “must meet the high burden 

of showing that the traditional forum non conveniens factors weigh so heavily that 

[CVS] will face ‘overwhelming hardship’ if th[is] lawsuit proceeds in Delaware.”122 

Because CVS has not met its burden under any of those factors, its Motion is 

DENIED.

IT IS SO ORDERED.

_________________________

Paul R. Wallace, Judge

Original to Prothonotary

cc: All Counsel via File & Serve

120 Compare Royal Indem. Co., 2005 WL 1952933, at *11 (“However, the fact that this case will 

ultimately be decided, presumably, under Michigan or New York law and not upon Delaware law, 

does favor a stay.”).

121 See Candlewood Timber Grp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 1000 (Del. 2004).

122 See Martinez, 86 A.3d at 1104 (internal citations omitted).