IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RITE AID CORPORATION; et al, 

Plaintiffs,

 v. 

ACE AMERICAN INSURANCE 

COMPANY; et al., 

Defendants. 

 

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) C.A. No. N19C-04-150 EMD CCLD

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Submitted: October 12, 2020

Decided: October 13, 2020

ORDER REFUSING TO CERTIFY CHUBB’S APPLICATION

FOR CERTIFICATION OF INTERLOCUTORY APPEAL

This 13th day of October, 2020, upon consideration of Chubb’s Application for 

Certification to the Delaware Supreme Court (the “Application”)1filed by Defendants ACE 

American Insurance Company (“ACE), Illinois Union Insurance Company, ACE Property & 

Casualty Insurance Company (i/p/a ACE Property & Casualty Company), Federal Insurance 

Company (collectively, “Chubb”) on October 2, 2020;

2 Rite Aid’s Opposition to Chubb’s 

Application for Certification of an Interlocutory Appeal (the “Response”) filed by Plaintiffs Rite 

Aid Corporation, Rite Aid Hdqtrs. Corp., and Rite Aid of Maryland Inc. d/b/a Mid-Atlantic 

Support Center (collectively, “Rite Aid”) on October 12, 2020;

3

the Court’s Opinion4dated 

 

1 Unless otherwise defined herein, all capitalized terms shall have the meaning ascribed to them in the Opinion.

2 D.I. No. 187.

3 D.I. No. 189.

4 D.I. No. 183.
2

September 22, 2020 (the “Opinion”);

5 Supreme Court Rule 42 (“Rule 42”); and this civil action’s 

entire record:

INTRODUCTION

1. This civil action relates to disputes over duties to defend and indemnify under 

existing insurance policies. Rite Aid has been sued in over 1,143 lawsuits (the “Opioid 

Lawsuits”) by governmental entities, third-party payors of medical care, and individuals seeking 

damages for costs arising out of Rite Aid’s distribution of opioids.

6

 The Opioid Lawsuits allege 

that Rite Aid knowingly distributed opioids to its own local pharmacies, and separately allege 

that local Rite Aid pharmacies improperly dispensed prescription opioids to its customers, which 

contributed and perpetuated drug abuse, addiction and resulting injuries or death.7 Rite Aid 

sought coverage for the Opioid Lawsuits under ACE policy XSL G27390900 (the “Policy”) 

issued by ACE.8 Chubb denied coverage under the Policy for any of Rite Aid’s costs incurred in 

defending any of the Opioid Lawsuits.9 In response, Rite Aid initiated this action on April 16, 

2019.10

2. Chubb has now applied, under Rule 42, for certification of Chubb’s interlocutory 

appeal of the Court’s decision granting Rite Aid’s motion for summary judgment on the issue of 

the duty to defend Rite Aid under the Policy. Chubb contends that the Court improperly

interpreted the terms of the Policy, the nature of the Opioid Lawsuits claims and applicable 

law.11 Chubb claims that the Application meets the criteria listed in Rules 42(b)(i)12 and 

 

5 Rite Aid Corp. v. ACE American Ins. Co., 2020 WL 5640817 (Del. Super. Sept. 22, 2020).

6

Id. at *1.

7

Id.

8

Id.

9

Id.

10 Id.

11 App. at 4-12.

12 Id. at 13-17.
3

42(b)(iii)(A), (G) and (H).

13

 Rite Aid opposes certification, arguing that the Opinion does not 

decide a substantial issue of material importance14 and satisfies none of the Rule 42(b)(iii) 

factors.15

APPLICABLE STANDARD

3. Rule 42(b) dictates the standard for certifying an interlocutory appeal. “No 

interlocutory appeal will be certified by the trial court or accepted by this Court unless the order 

of the trial court decides a substantial issue of material importance that merits appellate review 

before a final judgment.”16 In deciding whether to certify an interlocutory appeal, the trial court 

must consider: (1) the eight factors listed in Rule 42(b)(iii);17 (2) the most efficient and just 

schedule to resolve the case; and (3) whether and why the likely benefits of interlocutory review 

outweigh the probable costs, such that interlocutory review is in the interests of justice.18 “If the 

balance [of these considerations] is uncertain, the trial court should refuse to certify the 

interlocutory appeal.”19

 

13 Id. at 18-21.

14 Res. at 9-13.

15 Id. at 13-20.

16 Del. Supr. Ct. R. 42(b)(i).

17 Delaware Supreme Court Rule 42(b)(iii) provides that the trial court should consider whether:

(A) The interlocutory order involves a question of law resolved for the first time in this State;

(B) The decisions of the trial courts are conflicting upon the question of law;

(C) The question of law relates to the constitutionality, construction, or application of a statute of this State, 

which has not been, but should be, settled by this Court in advance of an appeal from a final order;

(D) The interlocutory order has sustained the controverted jurisdiction of the trial court;

(E) The interlocutory order has reversed or set aside a prior decision of the trial court, a jury, or an 

administrative agency from which an appeal was taken to the trial court which had decided a significant 

issue and a review of the interlocutory order may terminate the litigation, substantially reduce further 

litigation, or otherwise serve considerations of justice;

(F) The interlocutory order has vacated or opened a judgment of the trial court;

(G) Review of the interlocutory order may terminate the litigation; or

(H) Review of the interlocutory order may serve considerations of justice. See Del. Supr. Ct. R. 42(b)(iii).

18 Id.

19 Id.
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DISCUSSION

4. Initially, the Court must determine if the Opinion “decides a substantial issue of 

material importance that merits appellate review before a final judgment.”20 The “substantial 

issue of material importance” prong of Rule 42 requires that the matter decided goes to the 

merits of the case.21 Chubb, in form and essence, object to the Court’s interpretation and 

application of the law to the language of the Policy as it relates to the claims asserted against Rite 

Aid in the Opioid Lawsuits. 

5. The Supreme Court has before refused to entertain interlocutory appeals of 

decisions in contract cases.22 This is because “[a]s a general matter, issues of contract 

interpretation are not worthy of interlocutory appeal.”23 While the Court agrees that there are no 

Pennsylvania or Delaware reported decisions interpreting the specific policy language at issue as 

applied to the facts presented in the Opioid Lawsuits, this does not create a “substantial issue of 

material importance” out of a mere contract dispute.24

6. Rite Aid’s motion for summary judgment required the Court to interpret the 

unambiguous provisions of the Policy under straightforward legal principles regarding insurance 

contract interpretation. The Court agrees that the Opioid Lawsuits are numerous and the amount 

in controversy is large, but that does not convert this matter into an extraordinary one meriting 

 

20 Id. 42(b)(i).

21 Id.

22 See, e.g., Lexington Ins. Co. v. Almah LLC, 167 A.3d 499 (Del. 2016) (refusing to grant interlocutory appeal of a 

Delaware Superior Court decision addressing cross-motions for summary judgment in an insurance coverage dispute 

turning on issues of contract interpretation); Robino-Bay Court Plaza, LLC v. W. Willow-Bay Court, LLC, 941 A.2d 

1019 (Del. 2007) (refusing to grant interlocutory appeal when the underlying issue was one of Delaware contract 

interpretation).

23 REJV5 A WH Orlando, LLC v. A WH Orlando Member, LLC, 2018 WL 1109650, at *3 (Del. Ch. Feb. 28, 2018), 

appeal refused, 182 A.3d 115 (Del. 2018). See also Steadfast Ins. Co. v. DBI Servs., LLC, 2019 WL 3337127 (Del. 

Super. July 25, 2019).

24 McKnight v. USAA Cas. Ins. Co., 872 A.2d 959 (Del. 2005) (affirming the Delaware Superior Court’s refusal to 

certify an interlocutory appeal because “while the particular exclusion at issue ha[d] not previously been interpreted 

in Delaware, the trial court applied well-established principles of contract interpretation and thus the case did not 

involve a matter of first impression.”).
5

interlocutory review.25 The Court must use the same approach for each request for certification 

and not elevate one over the other because of the amount in controversy. 

7. On the threshold requirement of a substantial issue of material importance, alone, 

the Court would deny certification of the Application.26 For completeness, however, the Court 

will also consider the factors set forth in Rule 42(b)(iii). 

8. The Court must consider all eight factors in Rule 42(b)(iii), but “[a]fter 

considering these factors and its own assessment of the most efficient and just schedule to 

resolve the case, [the Court] should identify whether and why the likely benefits ... outweigh the 

probable costs, such that interlocutory review is in the interests of justice.”27 Here, Chubb argues 

that three of the eight factors are met and the Court should certify the interlocutory appeal. The 

Court disagrees but also recognizes the merit in some of Chubb’s arguments.

9. Chubb’s strongest argument is under Rule 42(b)(iii)(G). The Court acknowledges 

that the Opinion resolves a number of issues, especially as to Count II. The Court does not 

believe that a successful interlocutory appeal on the duty to defend issue as to the Policy would 

necessarily terminate the litigation in its entirety. The Opinion does address a substantial claim 

asserted by Rite Aid as against Chubb. Moreover, the Opinion could give guidance to the other 

parties in this civil action. However, the litigation would not end with an interlocutory appeal. 

 

25 The Court’s decision is not so novel either. Just prior to the date of the Opinion, the Ohio Court of Common Pleas 

issued a similar decision applying Ohio’s insurance contract law—law that is substantially the same as Pennsylvania 

and Delaware law. See Cincinnati Ins. Co. v. Discount Drug Mart, Inc., CV-19-913990 (Ohio Ct. Comm. Pl. Sept. 

17, 2020). 

26 See, e.g., Steadfast Ins. Co. v. DBI Servs. LLC, 221 A.3d 527 (Del. 2019) (TABLE) (denying interlocutory appeal 

that involved issues of contract interpretation); Lexington Ins. Co. v. Almah LLC, 167 A.3d 499 (Del. 2016) 

(TABLE) (denying interlocutory appeal upon noting the “dispute turn[s] on issues of contract interpretation”); 

Robino–Bay Court Plaza, LLC v. West Willow–Bay Court, LLC, 941 A.2d 1019 (Del. 2007) (TABLE) (declining to 

grant interlocutory appeal of this court’s construction of the operative contract); McKnight v. USAA Cas. Ins. Co., 

872 A.2d 959 (Del. 2005) (TABLE) (declining interlocutory appeal where “the trial court applied well-established 

principles of contract interpretation and thus the case did not involve a matter of first impression”).

27 Del. Supr. Ct. R. 42(b)(iii).
6

Certain Excess Insurer Defendants requested that any rulings on Rite Aid’s motion for summary 

judgment be narrowly and explicitly tailored to address only those matters at issue in that 

motion. As part of the Opinion, the Court stated: 

[i]n regard to the Responses from the Great American Defendants and the Certain 

Excess Insurers Defendants, this is not a ruling on their obligations under their 

respective policies, but the Court is not limiting any of the implications of this 

decision.28

So, despite the Opinion, this civil action will continue as to Counts I, II (as to other insurers), III 

and IV. 

10. The Opinion does not involve a question of law resolved for the first time in this 

State. Moreover, the Opinion does not involve a question of law resolved for the first time in 

Ohio or Pennsylvania. The Court agrees that this civil action involves interesting and complex 

facts, but the law that the Court applied involves insurance contract principles applied in almost 

every insurance coverage dispute.29 Just because there are no Delaware and Pennsylvania cases 

addressing this specific factual situation does not mean that the Opinion involves questions of 

law resolved for the first time in Delaware.30 

11. Chubb asserts that review of the Opinion may serve considerations of justice. 

Here, Chubb contends that the “stakes alone satisfy [Rule 42(b)(iii)(H)].” The Court is not 

persuaded that the amount in controversy satisfies the “considerations of justice” standard. The 

 

28 Rite Aid Corp., 2020 WL 5640817, at *21.

29 Id., at *11-12. See also Bliss Sequoia Ins. v. Allied Property & Cas. Ins., 2020 WL 5893414, at * 3 (D. Ore. Oct. 

5, 2020)(in discussing the Opinion, “Bliss Sequoia argues that its situation is analogous to that of plaintiffs in a 

string of opioid cases where courts have found a duty to defend. [citation omitted]. However, these opioid cases do 

not turn on an expansive reading of the phrase ‘because of,’ as Bliss Sequoia asserts, but rather on a common sense 

understanding of interrelated events.”).

30 See Alcoa World Alumina LLC v. Glencore Ltd., 2016 WL 3659424, at *2 (Del. Super. March 10, 2016)(“Even 

though the Court could not find another Delaware decision with the same fact pattern, the Court applied already 

accepted rules of law to the facts.”).
7

Court considers each issue before it despite the dollar amount owed. Rite Aid has as much to 

complain about with respect to cost as do the insurance companies. 

12. Chubb relies, in part, on the Court’s order in Green v. GEICO General Insurance 

Company.

31

 The Court notes that Green involved both a novel legal issue and considerations of 

justice. Here, Chubb’s argument under Rule 42(b)(iii)(H) is really the same argument as under 

Rule 42(b)(iii)(G)—that an interlocutory appeal may terminate the litigation, could avoid costs 

involved in litigation and subsequent appeals, and may somehow be used in the Opioid Lawsuits. 

13. The Opinion does not have an impact on the Opioid Lawsuits. The Opinion only 

addresses the Policy and duty to defend issues. Rite Aid is contesting those actions. The 

Opinion does not address any legal issues in those tort actions. The Opinion only addresses who 

may pay the cost of defending the litigation there. 

14. Nor does the Court believe that certification would promote the most efficient and 

just schedule to resolve this case. Even if an interlocutory appeal may terminate this litigation as 

to Chubb and Count II, the Court does not find that these three (of eight) factors warrant granting 

Chubb’s certification request when considering the totality of the circumstances. “Interlocutory 

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.”32 This 

case is not exceptional despite the amount in controversy. The Court notes that other procedural 

devices—like Civil Rule 55(b)—might be more appropriate than having the Court certify 

interlocutory appeals after it grants summary judgment on a discreet count of a complaint. 

15. For the reasons set forth above, the Court does not believe that the likely benefits 

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

 

31 2019 WL 4643937, at *2-3 (Del. Super. Sept. 23, 2019).

32 Del. Supr. Ct. R. 42(b)(ii).
8

interests of justice. The Court does find that its decision here is very close, uncertain. The 

Opinion does handle a discrete issue of this litigation but will not necessarily terminate this 

litigation entirely. The issue is complex but does not involve novel legal principles applied for 

the first time in Delaware. “If the balance [of these considerations] is uncertain, the [Court] 

should refuse to certify the interlocutory appeal.”33 Accordingly, the Court finds that Chubb has 

not met Rule 42’s strict standards for certification.

CONCLUSION

IT IS HEREBY ORDERED that certification to the Supreme Court of the State of 

Delaware for disposition in accordance with Rule 42 is REFUSED.

Dated: October 13, 2020

Wilmington, Delaware

/s/ Eric M. Davis

Eric M. Davis, Judge

 

33 Del. Supr. Ct. R. 42(b)(iii).