IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ORIGIS USA LLC and GUY 

VANDERHAEGEN

 Plaintiffs, 

 v.

GREAT AMERICAN INSURANCE 

COMPANY, NORTH AMERICAN 

SPECIALTY INSURANCE 

COMPANY, AXIS INSURANCE 

COMPANY, MARKEL 

AMERICAN INSURANCE 

COMPANY, BRIDGEWAY 

INSURANCE COMPANY, RSUI 

INSURANCE COMPANY, ASCOT 

SPECIALTY INSURANCE 

COMPANY, ENDURANCE 

ASSURANCE COMPANY, 

BERKSHIRE HATHAWAY 

SPECIALTY INSURANCE 

CORPORATION, IRONSHORE 

INDEMNITY, INC., and 

NATIONAL UNION FIRE 

INSURANCE COMPANY OF 

PITTSBURGH, PA,

 Defendants.

)

)

)

)

)

)

) 

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

C.A. No. N23C-07-102

 SKR CCLD

Submitted: March 13, 2024

Decided: May 9, 2024

Upon Defendants’ Motions to Dismiss, 

GRANTED

MEMORANDUM OPINION AND ORDER
Brian M. Rostocki, Esquire, Anne M. Steadman, Esquire, REED SMITH LLP, 

Wilmington, Delaware, Carolyn H. Rosenberg, Esquire, REED SMITH LLP, Chicago, 

Illinois, Stephen T. Raptis, REED SMITH LLP, Washington, DC, Attorneys for 

Plaintiffs Origis USA LLC and Guy Vanderhaegen.

David J. Soldo, Esquire, MORRIS JAMES LLP, Wilmington, Delaware, Michael D. 

Margulies, Esquire, Charles W. Strotter, Esquire, CARLTON FIELDS, P.A., New York, 

New York, Attorneys for Defendant Endurance Assurance Corporation.

Jennifer C. Jauffret, Esquire, Puja A. Upadhyay, Esquire, RICHARDS, LAYTON &

FINGER, P.A., Wilmington, Delaware, Courtney E. Scott, Esquire, TRESSLER LLP, 

New York, New York, Attorneys for Defendant RSUI Indemnity Company.

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

JENKINS LLP, Kevin M. Mattessich, Esquire, Kevin Windels, Esquire, KAUFMAN 

DOLOWICH VOLUCK, New York, New York, Attorneys for Defendants Ascot 

Specialty Insurance Company and Ironshore Indemnity, Inc.

Bruce E. Jameson, Esquire, John G. Day, Esquire, PRICKETT,JONES & ELLIOTT, P.A., 

Wilmington, Delaware, James T. Sandnes, Esquire, SKARZYNSKI MARICK & BLACK 

LLP, New York, New York, Attorneys for Defendant Berkshire Hathaway Specialty 

Insurance Company.

Krista M. Reale, MARGOLIS EDELSTEIN, Wilmington Delaware, Michael F. Perlis, 

Esquire, KAUFMAN BORGEEST & RYAN LLP, Woodland Hills, California, Patrick 

Stoltz, Esquire, KAUFMAN BORGEEST & RYAN LLP, Valhalla, New York, Attorneys 

for Defendant Markel American Insurance Company.

Shaun Michael Kelly, Esquire, Jarrett W. Horowitz, Esquire, Sara A. Barry, Esquire, 

CONNOLLY GALLAGHER LLP, Wilmington, Delaware, James K. Thurston, Esquire, 

WILSON ELSER, Chicago, Illinois, Daniel E. Tranen, Esquire, WILSON ELSER, St. 

Louis, Missouri, Erik J. Tomberg, Esquire, WILSON ELSNER, Raleigh, North 

Carolina, Attorneys for Great American Insurance Company.

Thaddeus J. Weaver, Esquire, DILWORTH PAXSON LLP, Wilmington, Delaware, 

Michael J. Smith, Esquire, Bryan W. Petrilla, Esquire, STEWART SMITH, West 

Conshohocken, Pennsylvania, Attorneys for Defendant Bridgeway Insurance 

Company.
Aaron M. Nelson, Esquire, HEYMAN ENERIO GATTUSO & HIRZEL LLP, Wilmington, 

Delaware, Attorneys for Defendant National Union Fire Insurance Company of 

Pittsburgh, PA.

RENNIE, J.
1

I. INTRODUCTION

This litigation is Plaintiffs’ attempt to secure insurance coverage for an action 

currently pending in federal court (the “Underlying Litigation”). Plaintiffs look to 

two towers of D&O insurance to provide that coverage, naming a dozen individual 

insurers in the process. Plaintiffs’ Complaint was met by a wave of opposition. 

Specifically, the Defendant Insurers filed six separate motions to dismiss, along with 

several substantive notices of joinder, which collectively raised a veritable host of 

issues. Plaintiffs responded to that onslaught with a single, consolidated answering 

brief—although, “filing” may be a more apt term for that document.

Against that muddied backdrop, two key issues emerged as determinative and

will, therefore, be the focus of this opinion. Together, those two issues instruct the 

Court to grant the motions to dismiss. 

First, a provision in the earlier tower of insurance, dubbed the “No Action” 

clause, commands that no actions may be filed against the insurer until the insured’s 

payment obligations are finally determined. Plaintiffs neither contest that reading 

nor dispute that their payment obligations remain unsettled. Plaintiffs instead seek 

to convince the Court that the need to enable swift litigation against insurers 

outweighs the need to enforce contracts as written. That attempt falls short. In this 

singularly contractarian jurisdiction, the Court construes the parties’ intent based on 
2

the language of the policy, not extrinsic sources that purport to shed light on what 

similar provisions are supposed to mean.

The second pivotal issue pertains to the prior acts exclusions found in the latter 

tower’s policies. As explained more fully below, the Underlying Litigation centers 

on alleged wrongs that occurred too early to be eligible for coverage under the latter 

tower. To escape that fact, Plaintiffs point to three paragraphs of the Underlying 

Litigation’s operative complaint (the “Underlying Complaint”) that mention

wrongful conduct that occurred after the exclusion’s cut-off date. As a primary 

matter, the Court is unconvinced that those ancillary allegations qualify as a “Claim” 

for which coverage is available. In any event, the Court is satisfied that to the extent

those allegations are a Claim, they arose out of earlier alleged misconduct and so are

excluded by the prior notice exclusions.

At bottom, Plaintiffs’ policies do not support Plaintiffs’ current suit. In one 

set of policies, Plaintiffs agreed not to sue their insurers until the occurrence of a 

particular event that is yet to occur. In the other set of policies, Plaintiffs waived 

coverage for pre-existing wrongs such as the Underlying Litigation. Accordingly, 

the motions to dismiss must be GRANTED.
3

II. FACTUAL AND PROCEDURAL BACKGROUND1

A. The Parties

Plaintiff Origis USA LLC (“Origis”) is a Delaware entity with its headquarters 

in Florida.

2

 Plaintiff Guy Vanderhaegen is a Florida resident and the Chief Executive 

Officer of Origis.3

 Plaintiffs are named as defendants in the Underlying Action, 

which is currently pending in New York federal court.4

Defendant Great American Insurance Company (“Great American”) is an 

Ohio entity that insured Plaintiffs.5

Defendant North American Specialty Insurance Company (“North 

American”) is a Missouri entity that insured Plaintiffs.6

Defendant AXIS Insurance Company (“Axis”) is an Illinois entity that insured 

Plaintiffs.7

1

 The following facts are based upon the well-pled allegations in the Complaint, as well as the 

documents attached thereto. These allegations are accepted as true solely for purposes of this 

decision.

2

 Compl. ¶ 7 (D.I. 1).

3

 Id. ¶ 8.

4

 Id. ¶ 1.

5

 Id. ¶ 9.

6

 Id. ¶ 10.

7

 Id. ¶ 11.
4

Defendant Markel American Insurance Company (“Markel”) is a Virginia 

entity that insured Plaintiffs.8

Defendant Bridgeway Insurance Company (“Bridgeway”) is a Delaware 

entity that insured Plaintiffs.9

Defendant RSUI Indemnity Company (“RSUI”) is a New Hampshire entity 

that insured Plaintiffs.10

Defendant Ascot Specialty Insurance Company (“Ascot”) is a Rhode Island 

entity that insured Plaintiffs.11

Defendant Endurance Assurance Corporation (“Endurance”) is a Delaware 

entity that insured Plaintiffs.12

Defendant Berkshire Hathaway Specialty Insurance Corporation13

(“Berkshire Hathaway”) is a Nebraska entity that insured Plaintiffs.14

8

 Id. ¶ 12.

9

 Id. ¶ 13.

10 Id. ¶ 14.

11 Id. ¶ 15.

12 Id. ¶ 16.

13 The Complaint lists the “Berkshire Hathaway Specialty Insurance Corporation,” but that 

entity’s filings suggest its proper name is “Berkshire Hathaway Specialty Insurance Company.” 

The Court relies on the Complaint for present purposes and means no disrespect.

14 Id. ¶ 17.
5

Defendant Ironshore Indemnity, Inc. (“Ironshore”) is an Illinois entity that 

insured Plaintiffs.15

Defendant National Union Fire Insurance Company of Pittsburgh, PA 

(“National Union”) is a Pennsylvania entity that insured Plaintiffs.16

B. The Underlying Litigation

The details of the Underlying Litigation are only tangentially relevant to this 

coverage dispute. It was brought by Pentacon BV and Baltisse NV (together, the 

“Investors”) to recover sums that Plaintiffs and Plaintiffs’ affiliates—who are not 

insured under the two towers at issue here—allegedly stole through fraud.17 The 

heart of the allegations is that Plaintiffs and their affiliates undersold the Investors 

on the value of the Investors’ shares in Origis and Origis’s parent company, Origis 

Energy NV.

18

The alleged scheme began in early 2019, when Plaintiffs supposedly 

diminished the Investors’ oversight of Origis.19 Then, in two transactions in October 

2020 and January 2021, Plaintiffs and their affiliates bought out the Investors’

interest in Origis and Origis Energy for $105 million.20 Just a few months later, 

15 Id. ¶ 18.

16 Id. ¶ 19.

17 Compl., Ex. N (hereinafter “Underlying Litig. Am. Comp.”) ¶¶ 1-2.

18 Id. ¶¶ 2-5.

19 Id. ¶ 14.

20 Id. ¶ 23.
6

Plaintiffs sold Origis to a third party for $1.4 billion.21 The investors complain that 

they did not get their fair share of that payday.22

C. The 2021-22 Tower

The first relevant tower of D&O polices that Origis bought and that cover

Vanderhaegen (the “2021-22 Tower”) had a policy period of June 10, 2021 to June 

10, 2022, with an extended reporting period until November 18, 2027.23 In this 

tower, Great American issued the primary policy and North American, Axis, and 

Markel (together, the “2021-22 Insurers”) issued follow-form excess policies in that 

ascending order.24 After the applicable retention, each of the 2021-22 Insurers had 

a $5 million limit.25

As relevant here, Great American’s policy, which was followed by the other 

2021-22 Insurers’ policies, states:

With respect to any Liability Coverage Part, no action shall be taken 

against the Insurer unless, as a condition precedent thereto, there has 

been full compliance with all the terms of this Policy, and until the 

Insured’s obligation to pay has been finally determined by an 

adjudication against the Insured or by written agreement of the 

Insured, claimant and the Insurer.

26

21 Id. ¶ 31.

22 Id. ¶ 32.

23 Compl. ¶ 24.

24 Id. ¶¶ 25-26.

25 Id.

26 Compl., Ex. A at General Terms and Conditions § XI.A.
7

D. The 2023-24 Tower

The second relevant tower of D&O insurance (the “2023-24 Tower”) had a 

policy period of February 4, 2023 to February 4, 2024.27 In this timeframe, 

Bridgeway issued the primary policy, and RSUI, Ascot, Endurance, Berkshire 

Hathaway, Ironshore, Markel, and National Union (together, the “2023-24 Excess 

Insurers” and, together with Bridgeway, the “2023-24 Insurers”) each issued excess 

policies in that ascending order.28 After the applicable retention, each of the 2023-24 

Insurers had a $2.5 million limit.29

Each of the 2023-24 Tower’s policies had a provision excluding coverage for

claims arising out of wrongful acts that first occurred before November 18, 2021.30 

There are slight differences in the way each Insurer chose to word this exclusion, but 

the substance of the exclusions have uniform application in this instance.

31 Most 

importantly, each exclusion incorporates the notion of excluding claims that arise

out of a wrongful act that first occurred before November 18, 2021.32 RSUI’s firstlayer excess policy reflects a fairly representative example, stating:

27 Compl. ¶ 28.

28 Id. ¶¶ 29-30

29 Id.

30 See 2023-24 Excess Insurers’ Joint Mot. to Dismiss (hereinafter “2023-24 Excess Mot.”), Ex. 

A (D.I. 97). This exhibit collates the various prior acts exclusions from the 2023-24 Excess 

Insurers’ policies into a single document. The Court appreciates this convenience.

31 Id.

32 Id.; see also Compl., Ex. E at p.64 (Bridgeway’s prior acts exclusion endorsement).
8 

The Insurer shall not be liable to make any payment for Loss in 

connection with any Claim made against any Insured that alleges, 

arises out of, is based upon or attributable to, directly or indirectly, in 

whole or in part, any actual or alleged Wrongful Acts which first 

occurred prior to November 18, 2021.

33

E. Procedural History

Plaintiffs initiated this action with their Complaint on July 13, 2023.34 On 

October 4, 2023, Plaintiff was met with separate motions to dismiss from Axis,35

Great American,36 Markel,37 Bridgeway,38 and jointly from the 2023-24 Excess 

Insurers.39 That same day, Markel joined in Great American and Axis’s motions,40

and National Union joined in the 2023-24 Excess Insurers’ motion.41 On October 

25, 2023, North American concluded the opening round with one more motion to 

dismiss.42 

33 Compl., Ex. F at p.7. 

34 Compl. 

35 Axis’s Mot. to Dismiss (D.I. 91). 

36 Great American’s Mot. to Dismiss (hereinafter “Great Am.’s Mot.”) (D.I. 93). 

37 Markel’s Mot. to Dismiss (D.I. 95). 

38 Bridgeway’s Mot. to Dismiss (D.I. 99). 

39 2023-24 Excess Mot. 

40 Markel’s Notice of Joinder (D.I. 94). 

41 National Union’s Notice of Joinder (D.I. 98). 

42 North American’s Mot. to Dismiss (D.I. 117). 
9

Plaintiffs responded to that array of arguments in a consolidated answering

brief on December 14, 2023.43 After receiving Plaintiffs’ opposition, Axis chose to 

withdraw its motion and answer the complaint—so Axis is not part of this decision.44 

On January 25, 2024, North American filed its reply brief.45 The next day, Great 

American,46 the 2023-24 Excess Insurers,47 Markel,48 and Bridgeway49 each filed 

their reply brief. As before, National Union joined in the 2023-24 Excess Insurers’ 

reply,50 and Markel joined in Great American’s reply.51 

Following that fulsome briefing, the Court heard argument on March 13, 

2024. At oral argument, Plaintiffs acknowledged that North American had an 

enforceable arbitration clause that North American chose not to waive.52 

43 Pls.’ Opp’n Br. (D.I. 120).

44 Stipulation and Order to Withdraw and Set Answer Deadline (D.I. 126).

45 North American’s Reply (D.I. 127).

46 Great American’s Reply (D.I. 128).

47 2023-24 Excess’s Reply (D.I. 129).

48 Markel’s Reply (D.I. 132).

49 Bridgeway’s Reply (D.I. 134).

50 National Union’s Notice of Joinder (D.I. 130).

51 Markel’s Notice of Joinder (D.I. 131). Unlike the opening briefs, Markel also submitted a notice 

of joinder for the 2023-24 Excess Insurers’ reply. Markel’s Notice of Joinder (D.I. 133). That is 

despite the fact that Markel was already expressly joined in the 2023-24 Excess Insurers’ reply. 

See 2023-34 Excess’s Reply at 22. Markel then used this extraneous “notice of joinder” to launch 

a ripeness argument found nowhere in Markel or the 2023-24 Excess Insurers’ opening briefs, nor 

the 2023-24 Insurers’ reply brief. Markel cites no authority that permits such a filing.

52 See March 13, 2024 Oral Argument Tr. at 77:4-14 (D.I. 156).
10

Accordingly, the claims against North American were dismissed without prejudice 

on March 14, 2024.53

III. STANDARD OF REVIEW

When reviewing a motion to dismiss under Rule 12(b)(6), the Court (i) accepts 

all well-pled factual allegations as true, (ii) accepts even vague allegations as wellpled if they give the opposing party notice of the claim, (iii) draws all reasonable 

inferences in favor of the non-moving party, and (iv) only dismisses a case where 

the plaintiff would not be entitled to recover under any reasonably conceivable set 

of circumstances.54 The Court will not, however, accept “conclusory allegations that 

lack specific supporting factual allegations.”55 

IV. DISCUSSION

Delaware courts review insurance contracts to assess the parties’ intent “as 

expressed through their contractual language.”56 Like any contract, when an 

insurance contract’s terms are reasonably susceptible of but one meaning, and are 

thus unambiguous, Delaware courts will apply that meaning.57 

53 Order Granting North American’s Motion to Dismiss (D.I. 151).

54 See ET Aggregator, LLC v. PFJE AssetCo Hldgs. LLC, 2023 WL 8535181, at *6 (Del. Super. 

Ct. Dec. 8, 2023).

55 Id. at *6 (quoting Ramunno v. Crawley, 705 A.2d 1029, 1034 (Del. 1998)).

56 Alexion Pharms., Inc. v. Endurance Assurance Corp., 2024 WL 639388, at *7 (Del. Super. Ct. 

Feb. 15, 2024) (quoting Sycamore Partners Mgmt., L.P. v. Endurance Am. Ins. Co., 2021 WL 

4130631, at *10 (Del. Super. Ct. Sept. 10, 2021)).

57 Id. (citations omitted).
11

As general principles, coverage under an insurance contract is given a broad 

construction “to align with the insured’s reasonable expectations,” while exclusions 

are read narrowly.58 The insured bears the initial burden to demonstrate that 

coverage exists.59 If the insured carries its burden, the burden shifts to the insurer to 

show an exclusion applies.60

A. The No Action Clause Precludes This Litigation Against the 2021-22 

Tower.

Great American, joined by Markel, argues that the plain language of the No 

Action clause blocks Plaintiffs’ ability to bring this coverage dispute before the 

Underlying Litigation concludes.61 Plaintiffs do not disagree that the No Action 

clause’s plain language calls for that result. Instead, Plaintiffs cite wide-ranging 

precedent to demonstrate a supposed national disfavor for enforcing No Action 

clauses against an aggrieved insured.62 Even accepting that premise, Delaware 

courts are exceptionally inclined to hold sophisticated parties to their bargains. For 

that reason, the Court will not disregard the No Action clause.

“The courts of this State hold freedom of contract in high—some might say, 

reverential—regard. Only ‘a strong showing that dishonoring [a] contract is required 

58 Id. (quoting RSUI Indem. Co. v. Murdock, 248 A.3d 887, 905-06 (Del. 2021)).

59 Id.

60 Id.

61 Great Am.’s Mot. at 10-12.

62 Pls.’ Opp’n at 27-32.
12

to vindicate a public policy even stronger than freedom of contract’ will induce our 

courts to ignore unambiguous contractual undertakings.”63 Thus, in Delaware, 

“[p]arties have a right to enter into good and bad contracts, the law enforces both.”64 

The Court’s reluctance to relieve a party of its voluntary arrangements is especially 

strong when a sophisticated party, like the ones here, asks for such relief.65

Against that backdrop, Plaintiffs argument about the “draconian nature” of the 

No Action clause is unpersuasive. Plaintiffs freely assented to this provision. If they 

thought the potential delay in coverage it risked was unacceptable, they should not 

have accepted it. The Court is fully confident that the representatives of this billiondollar company were well-equipped to understand the policy language and negotiate 

necessary changes. Not having done so, Plaintiffs cannot use this litigation to reopen 

negotiations.66

63 Cantor Fitzgerald, L.P. v. Ainslie, 2024 WL 315193, at *1 (Del. Jan. 29, 2024) (alteration in 

original) (quoting ev3 v. Lesh, 103 A,3d 179, 181 n.3 (Del. 2014)).

64 Nemec v. Shrader, 991 A.2d 1120, 1126 (Del. 2010).

65 See One Cypress Terminals, LLC v. Bluewing Midstream LLC, 2023 WL 2401693, at *6 n.6 

(Del. Ch. Mar. 8, 2023) (“Such provisions are enforceable, particularly where, as here, they are the 

result of negotiations by sophisticated parties.” (citing Progressive Int’l Corp. v. E.I. Du Pont de 

Nemours & Co., 2002 WL 1558382m at *10-11 (Del. Ch. July 9, 2002))); see also Acme Mkts., 

Inc. v. Oekos Kirkwood, LLC, 2023 WL 4873317, at *7 (Del. Ch. July 31, 2023) (“[U]nder 

Delaware law, sophisticated parties are bound by the terms of their agreement. Even if the bargain 

they strike ends up a bad deal for one or both parties, the court’s role is to enforce the agreement 

as written.” (quoting Glaxo Grp. Ltd. v. DRIT LP, 248 A.3d 911, 919 (Del. 2021))).

66 Nemec, 991 A.2d at 1126 (Delaware courts interpreting a contract “must assess the parties’ 

reasonable expectations at the time of contracting and not rewrite the contract to appease a party 

who later wishes to rewrite a contract he now believes to have been a bad deal” (citing Cont’l Ins. 

Co. v. Rutledge & Co., 750 A.2d 1219, 1234 (Del. Ch. 2000))).
13

The Court also notes that Plaintiffs position is uncompelling with respect to 

the necessary “strong showing that dishonoring [a] contract is required to vindicate 

a public policy even stronger than freedom of contract.”67 The No Action clause 

does not permanently deprive Plaintiffs of any right. Instead, Plaintiffs ability to 

seek a remedy is simply deferred until there is certainty as to the Plaintiffs’ losses. 

The Court’s ruling is not intended to belittle the hardship that delayed relief might 

impose; but when compared to the economic and societal importance of stable 

contractual relationships free from outside interference, the latter concern takes 

priority.68

In support of their position that the No Action clause is unenforceable as 

written, Plaintiffs rely heavily on Wright Construction Co. v. St. Lawrence Fluorspar, 

Inc.

69 This is Plaintiffs only Delaware case discussing a No Action clause. In it, this 

Court concluded “a ‘no action’ clause in a liability policy will not prevent a 

defendant insured from impleading his insurer as a third-party defendant, even 

67 Ainslie, 2024 WL 315193, at *1 (quoting ev3, Inc., 103 A.3d at 181 n.3).

68 See RSUI Indem. Co., 248 A.3d at 903 (“[P]ublic policy interests [sufficient to override a 

contract] are not to be lightly found, as the wealth-creating and peace-inducing effects of civil 

contracts are undercut if citizens cannot rely on the law to enforce their voluntarily-undertaken 

mutual obligation.” (quoting ev3, Inc., 103 A.3d at 181 n.2)).

69 254 A.2d 252 (Del. Super. Ct. 1969).
14

though no judgment has been taken against the insured.”70 Despite that language, 

the Court does not find Wright to be very persuasive.

First, it must be noted that in the half-century since Wright was decided, no 

Delaware court has cited to it. Also, Wright’s value as an analogous precedent is 

lessened by the fact that the opinion does not set forth the particular language of the 

at-issue clause, only concluding it was “a standard ‘no action’ clause.”71 Nor did the 

court explain the above-quoted conclusion except to say that it was based upon “[a] 

consideration of the authorities.”72 Wright’s cursory analysis of the No Action 

clause—whatever its terms might have been—may be due to the fact that there was 

no available coverage, so the insurer was dismissed anyway.73 All told, Wright’s 

unexplained conclusion about a nondescript No Action clause in a different 

procedural posture is not enough to sway the Court to ignore the No Action clause 

for which the 2021-22 Insurers bargained.

More recently, this Court enforced a nearly verbatim No Action clause in 

Rodriguez v. Great American Insurance Company.

74 The Court does not rely heavily 

on that decision either, though, because a different portion of the provision was at 

70 Id. at 253-54.

71 Id. at 253.

72 Id.

73 Id. at 254.

74 2022 WL 591762 (Del. Super. Ct. Feb. 23, 2021).
15

issue. Specifically, instead of applying the “final determination” prong that is raised 

here, Rodriguez looked at the alternative “full compliance with all terms of this 

Policy” condition.75 The Court recognizes that the two distinct conditions in the No 

Action clause raise different concerns, so the application of one does not command 

application of the other. Nevertheless, Rodriguez at least indicates that there is no 

inherent presumption in Delaware law that an insured is at all times guaranteed the 

right to sue its insurer.

Finally, to the extent Plaintiffs mean to use extra-contractual sources to 

demonstrate what the parties intended at the time of contracting, Plaintiffs have not 

satisfied the prerequisite to make such an argument. Under Delaware law, extrinsic 

evidence has no role in the interpretation of an unambiguous contract.76 In other 

words, if there is only one reasonable interpretation of a contract based on its plain 

language, “[e]xtrinsic evidence cannot itself create ambiguity.”77 Since the plain 

language of the No Action clause can only be reasonably read as a bar on actions 

against the 2021-22 Insurers until there is a final determination of Plaintiffs’ liability 

and full compliance with the relevant policy, Plaintiffs outside sources cannot dictate 

a different result.

75 Id. at *9.

76 Deluxe Ent. Servs. Inc. v. DLX Acquisition Corp., 2021 WL 1169905, at *3 (Del. Ch. Mar. 29, 

2021) (citations omitted).

77 Id.
16

For those reasons, the Court will enforce the No Action clause as it is written. 

Hence, Plaintiffs’ present claims against the 2021-22 Insurers are contractually 

prohibited. That prohibition will be lifted when Plaintiffs satisfy the two conditions 

contained in the No Action clause. Until then, the 2021-2022 Insurers’ motions to 

dismiss must be granted.78

B. The Prior Acts Exclusion Precludes Coverage under the 2023-24 Tower.

The analysis is even clearer with respect to the unavailability of coverage for 

the Underlying Litigation under the 2023-24 Tower. First, Plaintiffs have not 

established that the specific allegations they rely upon comprise a “Claim” as defined 

in the Bridgeway policy. And even if those allegations were a Claim, they 

unmistakably arise out of the more central conduct at issue in the Underlying 

Litigation, so coverage would be excluded under the prior acts exclusions.

Since the 2023-24 Tower only covers Claims for wrongful acts that occurred 

after November 18, 2021, Plaintiffs scoured the Underlying Complaint to find such 

wrongful acts. Out of 252 paragraphs, Plaintiffs found three to rely on.79 Those 

three paragraphs allege:

158. In conjunction with the Indemnity Notice, Plaintiffs demanded 

access to the information from Origis necessary to carry out a complete 

78 As noted in the Procedural History, North American has already been dismissed, and Axis 

withdrew its motion to dismiss and answered the Complaint. See supra notes 44, 53. Thus, this 

decision only affects Great American and Markel.

79 See Pls.’ Opp’n at 76-77.
17

investigation of their claims. Plaintiffs had the right to this information 

pursuant to Section 8.4 of the SRA.

159. Defendants produced only a small portion of the information 

Plaintiffs requested. Rather than a complete production, Defendants 

proposed a list of search terms, to which Plaintiffs proposed revisions. 

But then Defendants refused to produce all documents responsive to 

their own proposed search terms. Defendants instead produced the 

Antin transaction documents as well as an overwhelming amount of 

irrelevant technical information from the Antin data room. Beyond 

that, Defendants produced only certain documents expressly relating to 

discussions with investment bankers and the financing of the buyout 

and largely did so from the email account of a single custodian—

Vanderhaegen. Defendants also failed to provide access to Origis 

employees for interviews as provided for in the SRA.

160. The failure to provide all information necessary for Plaintiffs to 

investigate their claims breached Plaintiffs’ information access rights in 

the SRA. But for these breaches, Plaintiffs would be able to set forth 

their claims with even more particularity.80

In Plaintiffs’ view, because Paragraph 160 states that the allegedly insufficient 

production of information “breached [the underlying] Plaintiffs’ informational 

access rights,” those allegations are a Claim that stand apart from the other 249 

paragraphs of the Underlying Complaint. Not so.

The Bridgeway policy’s relevant definition of Claim, to which the other 2023-

24 policies followed form, provides:

Claim means any:

1. Written demand first received by an Insured for monetary, 

non-monetary, declaratory or injunctive relief; [or]

80 Underlying Litig. Am. Comp. ¶¶ 158-60.
18

2. Civil proceeding commenced by the service of a complaint or 

similar pleading;

. . . .

against an Insured for a Wrongful Act[.]81

“Wrongful Act” is defined as, “any actual or alleged error, misstatement, misleading 

statement, act, omission, neglect, or breach of duty committed or attempted[.]82

The allegation that Plaintiffs breached an agreement with the Investors by 

failing to provide information might be a Wrongful Act, but no Claim followed. The 

Underlying Litigation does not seek any relief for that purported breach. In context 

with the rest of the Underlying Complaint, Paragraphs 158 through 160 reflect that 

the Investors merely wished to explain that there could be additional information 

that would support their action. For the same reason, the Underlying Litigation was 

not a civil proceeding against Plaintiffs “for” the allegations in Paragraphs 158 to 

160.

83 Instead, those allegations are little more than an aside in a lengthy complaint 

that brings plenty of proper Claims—but only Claims for pre-November 2021 

Wrongful Acts.

Even if the Court were to accept that Plaintiffs met their burden to establish 

coverage, the 2023-24 Insurers successfully refute that coverage with the prior acts 

81 Compl., Ex. E at D&O Liability Coverage § VI.A.

82 Id. § VI.N.

83 Id. § VI.A.2.
19

exclusion. As explained above, each of the applicable prior acts exclusions bar 

coverage for Claims that “arise out of” a Wrongful Act that first occurred before 

November 2021.84 Thus, the question becomes whether the failure to comply with 

the Investors investigation “arose from” the conduct that necessitated the

investigation. It did.

Relatedness inquiries almost invariably assess whether one litigation is related 

to another litigation.85 That is sometimes a complex task requiring the careful 

weighing of several factors.86 The task is less complicated when comparing one 

allegation in a complaint to another allegation in the same complaint. It is even 

simpler where, as here, the first allegation is an excluded wrongful act and the second 

allegation is the cover-up of that wrongful act. Indeed, it is difficult to conceive a 

much better fit for the term “arising out of” than the way a cover-up is predicated on 

an initial wrong. Accordingly, even if Paragraphs 158 to 160 of the Underlying 

Complaint constituted a Claim, that Claim would be precluded by the 2023-24 

Tower’s prior acts exclusions. For that reason, the 2023-24 Insurers’ motions to 

dismiss must be granted.

84 See 2023-24 Excess Mot., Ex. A.

85 See, e.g., Alexion Pharms., 2024 WL 639388, at *8-10.

86 See First Solar, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 274 A.3d 1006, 1014-17 

(Del. 2022).
20 

V. CONCLUSION

The No Action clause contained in the 2021-22 Policy precludes litigation 

against those insurers until Plaintiffs’ payment obligation is finally determined. The 

Prior Acts Exclusions contained in the 2023-24 Policies preclude coverage for the 

Underlying Litigation. Therefore, Defendants’ Motions to Dismiss are GRANTED.

IT IS SO ORDERED. 

_____________________ ___

Sheldon K. Rennie, Judge