IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SOLERA HOLDINGS, INC., ) ) Plaintiff, )

)
v. ) C.A. NO.: N18C

- 08

- 315 AML CCLD ) XL SPECIALTY INSURANCE ) COMPANY, ACE AMERICAN ) INSURANCE COMPANY, ) ILLINOIS NATIONAL INSURANCE ) COMPANY, ARGUONAUT ) INSURANCE COMPANY, HUDSON ) INSURANCE COMPANY, ) ENDURANCE AMERICAN ) INSURANCE COMPANY, ZURICH ) AMERICAN INSURANCE ) COMPANY, LIBERTY INSURANCE ) UNDERWRITER S INC ., FEDERAL ) INSURANCE COMPANY, ) ) Defendants. )
Submitted: September 16, 2019 Decided: September 26, 2019
ORDER GRANTING LEAVE TO APPEAL FROM INTERLOCUTORY ORDER Defendants seek to certify an interlocutory appeal of this Court’s opinion denying Defendants’ motion for summary judgment. Although denial of a dispositive motion ordinarily would not warrant the extraordinary step of interlocutory appellate review, such review is justified in this case because t he Court’s opinion decided two issues of first impression, one of which would resolve2

the case entirely if Defendants prevail on appeal. In light of the novel issues decided in the Court’s opinion , and the potential that those issues have broader implicat ions within the insurance industry, I grant Defendants’ application and certify the interlocutory appeal.
FACTS AND PROCEDURAL BACKGROUND The opinion for which Defendants seek interlocutory review involves the
Court’s interpretation of a directors’ and of ficers’ insurance policy (the “Policy”) , 1

spe cifically whether that p olicy covers attorneys’ fees and pre

- judgment interest the insured company , Solera, incurred defending an appraisal action in the Court of Chancery

. 2 On January 11, 2019, Defendants ACE Insurance Company (“ACE”) and Federal Insurance Company (“Federal , ” and collectively with ACE, the “Moving
Defendants” ) filed a motion for summary judgment seeking confirmation that

“ ACE and Fe deral have no obligation to pay d efens e e xpenses or indemnify Solera
in connection with the a ppraisal a ction. ” 3 The Moving Defendants argued summary judgment was appropriate because the Policy only provided coverage for

1 Defendant XL Specialty Insurance Company issued the primary Policy and the remaining defendants, including ACE and Federal, issued excess policies, which follow

- form and incorporate d the Policy’s provisions. The Court’s interpretation of the Policy’s ter ms and conditions therefore applied to all Defendants. Solera Hldg s
. , Inc. v. XL Specialty Ins. Co. , 2019 WL 3453232, at *1 (Del. Super. July 31, 2019) (hereinafter “July 31 Op.”). 2 In re Appraisal of Solera Hldgs. , Inc. , 2018 WL 3625644 (Del. Ch. July 30, 2018). 3 Defs.’ Mem. in Supp. of Mot. for Summ. J. (hereinafter “Mot.” ) 2

.3

“Loss[es] resulting solely from a ny Securities Claim , ” 4 and the Moving Defendants
contended an appraisal action under 8 Del. C. § 262 is not a “Securities Claim” as the Policy defines that term

. The Moving Defendants alternatively argued summary judgment should be granted because ( 1 ) the pre

- judgment interest award
did not constitute a Loss 5 unde r the Policy since the underlying fair value award

was not a covered Loss; and ( 2 ) co verage for most of Solera’s Defense E xpenses 6

was barred because Solera incurred those expenses without Defendants’ consent.
This Court issued its opinion on July 31, 2019 denying Defendants ’ motion for summary judgment ( the “July 31 Opinion”)

. 7 In the July 31 Opinion, the Court
held an app raisal action filed under 8 Del. C. § 262 is a Securities Claim within the meaning of the Policy because the definitio n of “Securities Claim” is not limited to claims of wrongdoing . As to the pre

- judgment interest award, the Court concluded the Policy’s plain language did not limit the definition of “Loss” to pre

- judgment

4 The Policy defines “Securities Claim” as a claim: “ (1) [M]ade against [Solera] for any actual or alleged violation of any federal, state, or local statute, regulation, or rule or common law regulating securities, including but not limited to the purchase or sale of, or offer to purchase or sell, securities , which is: (a) brought by any person or entity resulting from, the purchase or sale of; or offer to purchase or sell, securities of [Solera]; or (b) brought by a security holder of [Solera] with respect to such security holder’s interest in securities of [ Solera] . . . .” Policy § II(S); see July 31 Op. at *1

- 2. 5 “The Policy covers any ‘Loss’ resulting from a Securities Claim, which includes ‘damages, judgments, settlements, pre

- judgment and post

-

judgment interest or other amounts (including punitive, exemplary or multiplied damages, where insurable by law)’ that Solera legally is obligated to pay . . . .” Policy § II(O); see July 31 Op. at *2. 6 The P olicy defines “ Defense Expenses” as the “reasonable and necessary legal fees, expenses and other cost s (including experts’ fees): (1) incurred in the investigation, adjustment, settlement, defense and/or appeal of any [c]laim, [i]nvestigation [d]emand or [i]nterview . . . .” P olicy § II(F); see July 31 Op. at *2. 7 July 31 Op. at *1.4

interest on a covered judgment, but ruled that factual issues , including mitigation of damages, precluded summary judgment

. 8 Finally, the Court held as a matter of
Delaware law that the Policy’s clause requiring the insurer’s prior consent to Defense Expenses (the “Consent Clause”) impliedly co ntained a prejudice requirement . W hether the Moving Defendants suffered s uch prejudice , the Court ruled, also was a disputed factual issue

. 9 Defendant Sompo International 10 filed a motion for r econsideration or
clarification on August 7, 2019, seeking to clarify that “notwithstanding [the Court’s] comment in the Opinion that Delaware law applied to certain issues at this juncture, choice of law issues remain to be explored through discovery and, ultimately, in further motions on pretrial proceedings in this case[.]” 11 The Court entered its letter opinion on August 29, 2019 ( the “August 29 Opinion” ) regarding
the motion for reconsideration or clarification. 12 The August 29 Opinion
confirmed that the July 31 Opinion did not resolve any choice of law question because that issue was not ripe for consideration , and the parties remained free to argue choice of law at a later date, if appropriate. 13

8 See I d . at *6. 9 Id

. at *7

- 8. 10 Sompo International is the successor to Endurance American Insurance Company. 11 Def.’s Mot. for Recons. or Clarification (hereinafter “Mot. for Recons.”) 1

- 2. 12 Solera Hldgs. , Inc. v. XL Specialty Ins. Co. , 2019 WL 4120688 (Del. Super. Aug. 29, 2019) (hereinafter “Aug. 29 Op.”)

. 13 Id . at * 2.5

On September 4 , 2019, Defendants ACE and Federal submitted an application (the “Application”) to certify the July 31 Opinion for interlocutory appeal to the Delaware Supreme Court

. 14 Solera responded on September 16 th , stating that it does not oppose interlocutory review and that the parties had stipulated to continue discovery and pretrial work while the interlocutory appeal is pending. 15 Solera , of course, does not agree with the Moving Defendants’ underlying challenges to the Court’s summary judgment ruling. 16
ANALYSIS Although the parties agree that this matter should be certified for interlocutory appeal, this Court independently must determine that such certification is appropriate. A n interlocutory appeal only should be certified where

14 An application for certification of an interlocutory appeal must be “served and filed within 10 days of the entry of the order from which the appeal is sought . . . .” Del. Sup. Ct. R. 42(c)(i). Altho ugh t here is no clear case law regarding whether a motion for reconsideration or
c larification stays the time period for seeking certification of an in terlocutory appeal , the Delaware Supreme Court repeatedly has held that motions for reargument stay the period to appeal a final order. See Bowen v. E.I. DuPont de Nemours and Co., Inc. , 879 A.2d 920, 921

- 22 (Del. 2005) (“In a civil action, the timely filing of a motion for reargument suspends the finality of the judgment and tolls the time for taking an ap peal from what would otherwise have been a final judgment” ) (citing Linda D.P. v. Robert J.P. , 493 A.2d 968, 9 69 (Del. 1985) (“Therefore, while a Motion for Reargument is pending before the Family court, the finality of the judgment is suspended” ) ) ; see al so U.S. v. Kalb , 891 F.3d 455, 463 (3rd Cir. 2018) (“But if the government timely seeks reconsideration of the order, it is rendered nonfinal until the court decides the motion for reconsideration, and the thirty

- day appeal period runs from an order denying the motion”)

. The parties did not address in th eir papers whether Moving Defendants’ applica tion to certify the appeal was timely

. In my view, the motion for r econsideration stayed the period for seeking interlocutory review since it would be difficult for the Moving Defendants to determine whether an d on what issues to seek interlocutory r eview before the motion for r econsideration was decided. Accordingly, I conclude the present application for certification of an interlocutory appeal is timely. 15 Pl. ’ s Resp. to the Appl. for Certification of Interlocutory Order (hereinafter “Pl.’s Resp.”) 1. 16 Id . at 1

- 2.6

the relevant order decides a “ substantial issue of material importance that merits appellate review before a final judgment.” 17 In making its determination, this
Court must consider : (1) the factors set forth in Delaware Supreme Court Rule 42 , (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 This Court should refrain from certifying an interlocutory appeal if th e balance between the benefits and
costs is uncertain. 19 Initially , the Court must determine whether the July 31 Opinion “decides a substantial issue of material importance that merits appellate review before a final judgment.” 20 A “ substantial issue of material importance” is one that address es the
merits of the case, not merely collateral matters. 21 The Court’s opinion resolved key issues in this matter , including interpretation of several contractual provisions,
and therefore interlocutory appellat e review will resolve substantial issue s of material importance. 22

17 Del. Sup. Ct. R. 42(b)(i)

. 18 Del. Sup. Ct. R. 42(b)(iii). 19 Id

. 20 Del. Sup. Ct. R. 42(b)(i)

. 21 In re CNX Gas Corp. S ’holders Litig. , 2010 WL 2705147 , at *13 (Del. Ch. July 5, 2010 ) ( citing Castaldo v. Pittsburgh

- Des Moine Steel Co. , 301 A.2d 87 , 87 ) (Del. 1973) ). 22 See, e.g., Rhone

- Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co. , 606 A.2d 73, 74 (Del. 1992) (finding insurer’s right to exclude certain claims from coverage a “substantial issue”); State Farm Mut. Auto. Ins. Co. v. Abramowicz , 386 A.2d 670, 671 (Del. 1978) (finding the “validity of a contract provision essential to t he position of the parties” is considered to be a7

A. The Rule 42 factors support certification.
The Court also must con sider whether one or more of the eight Rule 42
factors apply to the interlocutory order . After reviewing the parties’ arguments and the July 31 Opinion , I conclude three of those factors are met in this case : (A) “[t] he interlocutory order involves [questions] of law resolved for the f irst time in [Delaware];” (G) “[r] eview of the interlocutory order may terminate the litigation;” and (H) “[r] eview of the interlocutory order may se rve considerations of justice. ” 23
1. The July 31 Opinion involved questions of law addressed for the first time in Delaware.
T he July 31 Opinion decided two i ssues of first impression in Delaware: (1) the meaning of “Securities Claim” within a D&O policy and whether an appraisal
action is such a claim , and (2) whether a consent clause relating to defense expenses contains an implied prejudice requirement under Delaware law

. As to the
definition of a S ecurities C laim, the Court’s interpretation of the Policy was a question of law. 24 No prior Delaware decision defined t hat term or considered whether the term encompasse s an appraisal action under Section 262. Although
substantial issue); Shook & Fletcher Asbestos Settlement Trust v. Safety Nat. Cas. Corp. , 2005 WL 3007806, at *2 (Del. Super. Oct. 27, 2005) (“The extent of insurance coverage as a matter of law is a substa ntial issue for purposes of interlocutory appeal”). 23 Del. Sup. Ct. R. 42(b)(iii). Moving Defendants also argued th at Rule 42(b)(iii)(C) applied. That factor is met if “ [ t ] he 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.” Although the July 31 Opinion tangentially r elated to Section 262 and the nature of an action under that section, the Court’s decision will not affect appraisal actions or how they proceed under that statute, and therefore this criteria is not a compelli ng basis to certify interlocutory review. 24 Ju ly 31 Op. at *4

.8

the Court applied settled principles of contractual interpretation to the relevant Policy language, the interpretive question never has been addressed in D elaware (or any other jurisdiction) and may have implications beyond just the Policy at
issue in this case. 25
As to the Consent Clause , the Court held that settled Delaware law implies a prejudice requirement in insurance policy consent

- to

- settle clauses , and that prejudice requirement also should be implied in consent

- to

- defense

- expenses
clauses. The Court reasoned :
I cannot find any reason why the implied prejudice requirement that Delaware courts apply to consent

- to

- settle clauses would not also apply to the Consent Clause in this case. Both consent

- to

- settle and consent

- to

- defense provisions are meant to allow the insurer a meaningful opportunity to participate in litigation and to protect the insurer from prejudice , but a strict interpretation of ei ther provision would lead to forfeiture of coverage. Implying the prejudice requirement in both circumstances protects an insured who has breached a consent provision from the harsh result of forfeiture, but only if the insured can prove by competent evid ence a lac k of prejudice to the insurer. 26
This extension of the implied prejudice requirement to a consent

- to

- defense clause
is an issue of first impression in Delaware and therefore is appropriate for interlocutory review. 27

25 See Defs.’ Appl. for Certification of Interlocutory Order (hereinafter “Appl.”) 6; Pl.’s Resp. at 2. 26 July 31 Op. at *7 (internal citations omitted)

. 27 Although Moving Defendants argue otherwise, I do not agree that the Court’s ruling regarding whether pre

-

judgment interest is a “Loss” under the policy is an issue of first impression.9

2. Interlocutory review may terminate the litigation
. The Moving Defendant s contend that if the July 31 Opinion is rev ersed in whole or in part , the case would terminate as to either or both of them, and

“ interlocutory review of the dispositive legal issue presented by the parties’ early

cross
- motions [sic] for summary judgment presents the most efficient and just
schedule to resolve the case.” 28 The Court agrees that the definition of a
“Securities Claim , ” and whether an appraisal action constitutes such a claim , is

case
- dispositive if the Moving Defendants prevail on their appeal. If the Appraisal Action does not fall within a “Securities Claim,” the parties other coverage disputes are moot.
3. Interlocutory review may serve considerations of justice. The Court agrees with the parties that the July 31 Opinion has implications for the broader insurance industry, and clarifying the Policy’s scope and interpretation will serve the parties in this case and potent ially in other pending or future cases. Along with the definition of “Securities Claim,” the existence or nonexistence of an implied prejudice requirement in consent

- to

- defense clauses is

Nonetheless, if the Delaware Supreme Court accepts the interlocutory appeal, it would be efficient for the Court to consider all three issues addressed in the July 31 Opinion. 28 Appl. at 7

- 8

. Solera never filed a motion for summary judgment. Although Solera suggested in briefing and at oral argument that the Court enter j udgment sua sponte in Solera’s favor, the Moving Defendants stridently resisted that request.10

likely to have ramifications beyond this case . Achieving certainty re garding these issues may aid resolution of other insurance coverage disputes.
B. Interlocutory review would support an efficient and just resolution of this case , and the benefits of such review outweigh its probable costs. Having concluded that the July 31 Opinion decided a substantial issue of material importance and that three of the criteria under Supreme Court Rule 42(b)(iii) are met, this Court also must offer its own assessment of the most efficient and just schedule to resolve the case and its determination of “ whether and why the likely benefits of interlocutory review outweigh the probable costs, such that interlocutory review is in the interests of justice.” 29 I nterlocutory review
will be efficient in this case because it will resolve mo st of the parties’ disagreements

. T he appeal will not substantially delay the case because the parties
have agreed to proceed with discovery while the app eal, if accepted, is resolved. Moreover, as set forth above, other insurers and insureds beyond thos e ensnared in this particular case likely will benefit from interlocutory review of the July 31 Opinion

. For those reasons, interlocutory review is in the interests of justice and its benefits outweigh the cost of piecemeal litigation

.

29 Del. Sup. Ct. R. 42(b)(iii).11

CONCLUSION
For the foregoing reasons, the Court finds that Defendants have met the
certification standards f

or interlocutory review, and Defendants’ Application for
Certification of Interlocutory Order to the Delaware Supreme Court is
GRANTED

. This order does not stay d iscovery or related pretrial proceedings
before this Court

. 30
IT IS SO ORDERED.

/s/ Abigail M. LeGrow Abigail M. LeGrow, Judge

Original to Prothonotary c c: All Counsel of Record

30 Del. Sup . Ct. R. 42(e).