IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

GENWORTH FINANCIAL, INC. , GENWORTH LIFE INSURANCE COMPANY, and GENWORTH LIFE INSURANCE COMPANY OF NEW YORK,
P laintiff s,

v. A IG SPECIALTY INSURANCE COMPANY, AXIS INSURANCE COMPANY, U.S. SPECIALTY INSURANCE COMPANY, FREEDOM SPECIALTY INSURANCE COMPANY, ACE AMERICAN INSURANCE COMPANY, CONTINENTAL CASUALTY COMPANY, ATLANTIC SPECIALTY INSURANCE COMPANY, and ARGONAUT INSURANCE COMPANY,
D efendant s. ) ) ) ) ) C.A. No. N22C-05-057 EMD CCLD ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

S ubmitted: June 22, 2023 Decided: September 21 , 2023
U

pon Plaintiffs’ Motion for Partial Summary Judgment GRANTED, in part, and DENIE D, in part
U

pon Defendants’ Motion for Summary Judgment DENIED
J ennifer C. Wasson, Esq., Carla M. Jones, Esq., Potter Anderson & Corroon LLP, Wilmington, Delaware, Kenneth H. Frenchman, Esq., Michelle R. Migdon, Esq., Orrie A. Levy, Esq., Samantha Smith, Esq., Cohen Ziffer Frenchman & McKenna LLP, New York, New York, Attorney s for Plaintiffs.
K

urt M. Heyman, Esq., Aaron M. Nelson, Esq., Kelly E. Rowe, Esq., Heyman Enerio Gattuso & Hirzel LLP, Wilmington, Delaware , Scott B. Schreiber, Esq., Arthur Luk, Esq., William C.2 Perdue, Esq., Samuel I. Ferenc, Esq., Matthew Bemi s, Esq., Arnold & Porter Kaye Scholer LLP, Washington, D.C., Attorneys for Defendan t AIG Specialty Insurance Company. John C. Phillips, Jr., Esq., David A. Bilson, Esq., Phillips McLaughlin & Hall, P.A., Wilmington, Delaware, Attorneys for Defendants U.S. Specialty Insurance Company and Argonaut Insurance Company. Douglas M. Mangel, Esq., Michelle Beecy, Esq., Clyde & Co LLP, Washington, D.C., Attorneys for Defendant U.S. Specialty Insurance Company

. Geoffrey W. Heineman, Esq., Jung H. Par k, Esq., Ropers Majeski, PC, New York, New York, Attorneys for Defendant Argonaut Insurance Company

. Robert J. Katzenstein, Esq., Julie M. O’Dell, Esq., Smith Katzenstein & Jenkins LLP, Wilmington, Delaware, Attorneys for Defendants AXIS Insurance Company , Continental Casualty Company, and Atlantic Specialty Insurance Company. Matthew Beato, Esq., Jason Cronic, Esq., Jessica N. Gallinaro, Esq., Wiley Rein LLP, Washington, D

. C

. , Attorneys for Defendant AXIS Insurance Company

. Karen H. Ventrell , Esq., CNA Corporate Litigation, Washington, D.C., Attorney for Defendant Continental Casualty Company

. Scott A. Schechter, Esq., Matthew Mawby, Esq., Kaufman Borgeest & Ryan LLP, Valhalla, New York, Attorneys for Defendant Atlantic Specialty Insurance Company

. John G. Day, Esq., Bruce E. Jameson, Esq., Prickett , Jones & Elliott, P.A., Wilmington, Delaware, Alexis J. Rogoski, Esq., Edward C. Carleton, Esq., Skarzynski Marick & Black LLC, New York, New York, Attorneys for Defendant Freedom Specialty Insu rance Company. John L. Reed, Esq., DLA Piper LLP (US), Wilmington, Delaware, Steven J. Brodie, Esq., Carlton Fields, P.A., Miami, Florida, Charles W. Stotter, Esq., Carlton Fields, P.A., New York, New York, Attorneys for Defendant ACE American Insurance C ompany
. DAVIS, J.
I. INTRODUCTION
This is a n insurance coverage dispute alleging claims for breach of contract , anticipatory
breach of contract and declaratory relief assigned to the Complex Commercial Litigation
Division of this Court. On May 9, 2022, Plaintiffs Genworth Financial, Inc. (“GFI”) , Genworth
L ife Ins urance Co mpany (“GLIC”) , and Genworth Life I ns urance Co mpany of New York3 (“GLICNY”) ( collectively , “Genworth”) commenc ed this action against Defendants AIG Specialty Ins urance Co mpany (“AIG”), Axis Ins urance Co mpany (“Axis”), U.S. Specialty Insurance Company (“U.S. Specialty”), Freedom Specialty Insurance Company (“Freedom Specialty”), Ace American Insurance Company (“Ace ”), Continental Casualty Co mpany (“CNA”), Atlantic Specialty Insurance Company (“Atlantic”), and Argonaut Insurance Company (“Argonaut”) ( collectively , “Insurers”)

. On September 21, 2022, Genworth filed an Amended Complaint. 1 The Amended Complaint sets out three claims against the Insurers: (i) breach of contract and/or anticipatory breach of contract for defense costs; (ii) breach of contract and/or anticipatory breach of contract for indemnity; and (iii) certain declaratory relief

. Subsequently, Genwo rth moved for partial summary judgment (the “Genworth Motion”) on October 3, 2022. 2 On December 1, 2022, Insurers filed their own motion for summary judgment (the “Insurers Motion”). 3 The Court held a hearing on these motions on June 22,
2023. 4 At the end of the hearing, the Court took the Genworth Motion and the Insurers Motion
under advisement. For the reasons stated below, the Genworth Motion is GRANTED , in part, DENIED , in part, and the Insurers Motion is DENIED

. II. RELEVANT FACTS A. P ARTIES GFI is a Delaware corporation with its principal place of business in Virginia. 5 GLIC is a Delaware corporation with its principal place of business in Virginia. 6 GLICNY is a New York

1 D.I. No. 62. 2 D.I. No. 63. 3 D.I. No. 67

. 4 D.I. No. 96. 5 Amended Complaint (“Amend. Compl.”) ¶ 10. 6 Id. ¶ 11.4 corporation with its principal place of business in New Yor k. 7 Genworth is a financial, retirement, and life insurance company which sells financial and retirement products, including long

- term care (“LTC”) insurance plans. 8 LTC insurance “seeks to minimize the cost of nursing home care, home care, assisted li ving care, and other specialized care designed for individuals unable to perform the basic functions of daily living (such as dressing, bathing, eating and continence, among other things). ” 9 Insurers are engaged in the business of selling insurance, investigating claims, and issuing policies that cover policyholders in the State of Delaware, amongst other states. AIG is an Illinois corporation with its principal place of business in New York. 10 Axis is also an Illinois corporation with its principal place of business in Georgia. 11 U.S. Specialty is a Texas corporation with its principal place of business in Texas. 12 Freedom Specialty is an Ohio corporation with its principal place of busine ss in Ohio. 13 Ace is a Pennsylvania corporation with its principal place of business in Pennsylvania. 14 Like AIG and Axis, CNA is an Illinois corporation

. 15 CNA has it principal place of business in Illinois. 16 Atlantic is a New York corporation with its principal place of business in Minnesota. 17 Argonaut is an Illinois corporation with its principal place of business in Texas. 18

7 Id. ¶ 12. 8 Id. ¶ 24. 9 Id. ¶ 41. 10 Id. ¶ 13. 11 Id. ¶ 14. 12 Id. ¶ 15. 13 Id. ¶ 16. 14 Id. ¶ 17. 15 Id. ¶ 18. 16 Id

. 17 Id. ¶ 19. 18 Id. ¶ 20.5 B. T HE I NSURANCE P OLICIES As part of its risk management efforts, Genworth annually purchased primary and excess professional liability insurance

. 19 The Amended Complaint alleges that Genworth purchased the insurance to insure against third

- party claims, including those seeking damages and other relief as a result of Genworth’s alleged misrepresentations and other p rofessional errors or omissions. 20 During the relevant period, Genworth was covered under a professional liability coverage tower from March 31, 2018 to March 31, 2019 (the “Policies”). 21 The Policies provided approximately $80 million in liability cover age from nine 22 layers of insurance in excess of Genworth’s $25
million in self

- insured retention amount

. 23 The Policies followed form to the first layer liability policy sold by the primary carrier, AIG. 24 The Policies include a Virginia choice of law provision. 25 AIG provided t he first layer insurance policy (the “Primary Policy”) not exceeding $10
million in coverage beyond Genworth’s $25 million self

- insured retention amount

. 26 Axis provided the second layer insurance policy not exceeding $10 mi llion in coverage beyond $10 million in liability. 27 U.S. Specialty provided the third layer insurance policy not exceeding $15
million in coverage beyond $20 million in liability. 28 Freedom Specialty provided t he fourth layer insurance policy not exceeding $10 million in coverage beyond $35 million in liability. 29

19 Id. ¶ 25. 20 Id

. 21 Id. ¶ 26. 22 The Amended Complaint alleges nine layers; however, the Complaint

— when describing the layers

— skips from seven to nine. This discrepancy (real or imagined) is not meaningful to the decision here. 23 Id. 24 Id. ¶ 27. 25 Insurance Company Professional Liability and Fiduciary Liability (“Primary Policy”), Endorsement #8 (D.I. No. 64, Ex. 1).

. 26 Amend. Compl. ¶ 28. 27 Id. 28 Id. 29 Id.6 A ce provided t he fifth layer insurance policy not exceeding $10 million in coverage beyond $45 million in liability. 30 CNA and Atlantic provided t he sixth layer insurance policies issued not exceeding $5 million each in a quota share ($10 million in total) in coverage beyond $55 million in liability. 31 Argonaut provided t he seventh layer insurance policy not exceeding $10 million in coverage beyond $ 65 million in liability. 32 CNA provided t he ninth layer insurance policy not exceeding $5 million ( as a part of a $10 million quota share ) in coverage beyond $90 million in liability. 33
C. T HE P RIMARY P OLICY The Insuring Clause of the Primary Policy provides that: Underwriters shall pay on behalf of the Insureds Loss which the Insureds become legally obligated to pay by reason of any Claim first made by: 1) a policyholder; 2) third

- party client of the Compan y ; 3) mortgagor/borrower in connection with a private mortgage insurance Policy ; or 4) Prospective Policyholder or Prospective Third

- Party Client , but solely with respect to Defense Costs , against the Insureds during the Policy Period or an applicable Disc overy Period for any Wrongful Acts by the Insureds or by a person or entity for whom the Insureds are legally responsible in rendering or failing to render Professional Services , if such Wrongful Acts take place prior to the end of the Policy Period

. 34 The Primary Policy defines “ Insured Person ” as the “ Company ,” which is defined to include
the “ Parent Company and Subsidiaries .” 35 The “ Parent Company ” is defined as GFI. 36

“ Subsidiar y ” is defined as any entity “of which the Company has Management Control, i.e.,
GLIC and GLICNY. 37 “ Claim ” is defined as “a written demand for monetary or non

- monetary

30 Id. 31 Id. 32 Id. 33 Id. Two eighth layer insurance policies and the other half of the ninth layer insurance policy are not included in the lawsuit due to mandatory arbitration provisions. Amend. Compl. at 12, n.2. 34 Primary Policy at 17

. 35 Amend. Compl. ¶ 30, Primary Policy at 1. 36 Primary Policy at 3. 37 Id. at 4.7 damages or injunctive relief” or “a civil proceeding commenced by the service of a complaint or similar pleading.” 38

“ Loss ” is defined as: [T]he amount which the Insureds become legally obligated to pay on account of each Claim and for all Claims in the Policy Period . . . made against them for Wrongful Acts for which coverage applies, including , but not limited to, damages, judgments, any award of pre

- judgment and post

- judgment interest, settlements and Defense Costs

. Loss does not include (1) any amount for which the Insureds are absolved from payment, (2) taxes, fines or penalties imposed by l aw, or (3) matters uninsurable under the law pursuant to which this Policy is construed.
Loss shall also mean punitive, exemplary or multiple damages to the extent such damages are insurable under the internal laws of any jurisdiction most favorable to t he insurability of such damages, and which has a substantial relationship to either the Insureds , Underwriters, this Policy or such Claim

. 39

“ Defense Costs ” is defined as “reasonable costs, charges, fees (including but not limited to attorneys’ fees and e xperts’ fees) and expenses . . . incurred by the Insureds in defending or investigating Claims and the premium for appeal, attachment or similar bonds.” 40

“ Professional Services ” is defined as : [S]ervices , including but not limited to investment advisory services and investment management services, performed by or on behalf of the Company for: 1) a policyholder; 2) third

- party client of the Company ; 3) mortgagor/borrower in connection with a private mortga ge insurance policy; or 4) solely with respect to Defense Costs , Prospective Policyholder or Prospective Third

- Party Client

. The Professional Services must be performed in connection with the sales and marketing of insurance and investment products and/or a written contract or policy with such or to be issued to such policyholder, Prospective Policyholder , third

party client or Prospective Third

- party Client . A written contract shall include an insurance Policy issued by the Company

. 41

38 Id. at 18. 39 Id. at 19. 40 Id. at 2. 41 Id. at 19.8 “ Prospective Policyh older ” or “ Prospective Third

- Party Client ” is defined as “someone who has actually submitted an application for coverage or other application seeking the performance of a Professional Service from the Insured or inquired thereto.” 42

“ Wrongful Act ” is defin ed as “any error, misstatement, misleading statement, act, omission, neglect or breach of duty actually or allegedly committed or attempted . . . by the Company or by any person or organization for whom the Insureds are legally responsible.” 43 The Primary Policy also provides that in relation to claims : F or purposes of this Policy , all Claims arising out of the same Wrongful Act and all Interrelated Wrongful Acts of the Insureds shall be deemed one Claim , and such Claim shall be deemed to be first made on t he date the earliest of such Claims is first made against them, regardless of whether such date is before or during the Policy Period . All Loss resulting from a single Claim shall be deemed a single Loss

. 44

“ Interrelated Wrongful Acts ” is defined as “all Wrongful Acts that have as a common nexus any fact, circumstance, situation, event, transaction, cause or series of related facts, circumstances, situations, events, transactions or causes.” 45
D. T HE C OVERAGE E XCLUSIONS The Primary Polic y (and the other policies in the insurance coverage ladder) excluded certain types of claims from coverage. Section III(A)(19) (the “Underwriting Exclusion”) states: [Underwriters shall not be liable for that portion of Loss on account of any Claim made against any Insured ] based upon, arising out of or attributable to the underwriting of insurance, including any decisions involving the classification, selection, and renewal of risks as well as the rates and premiums charged to insure or reinsure risks; Notwithstanding the foregoing, this exclusion shall not apply to Claims arising out of the sale and marketing of insurance or investment products. 46

42 Id. 43 Id. at 20. 44 Id. at 5. 45 Id. at 3. 46 Id. at 24.9 Section III(A)(20) (the “Premium Exclusion”) states: [Underwriters shall not be liable for that portion o f Loss on account of any Claim made against any Insured ] if such Loss constitutes: . . . (iii) premiums, return premiums or commissions; but this exclusion shall not apply to Defense Costs

. 47 Section III(A)(23) (the “Claim Reserves Exclusion”) states: [Underwriters shall not be liable for that portion of Loss on account of any Claim made against any Insured ] based upon, arising out of or attributable to (i) the inadequacy of any claim reserves of the Company or any entity to which the Insureds provide Professional Services ; or (ii) the bankruptcy, insolvency, receivership, liquidation or financial inability of any entity to which the Insureds provide Professional Services to pay claims or perform Professional Services

. 48
E. T HE U NDERLYING C LASS A CTION L AWSUITS 1. The Skochin Action On January 18, 2019, Jeremy Skochin, Susan Skochin, and Larry Huber ( the “Skochin
P laintiffs”) filed a class action lawsuit (“Skochin Action”) against Genworth . The Skochin Action allege d that Genworth “made partial or inadequate disclosures of material information and/or omissions of material information regarding potential or likely f uture rate increases that it expected or planned to make in multiple subsequent years” which “affected [the Skochin Plaintiffs’] a bility to make informed decisions regarding policy options and policy renewal each year.” 49 The Skochin Plaintiffs claimed that when they entered into the LTC policy, Genworth failed to inform them of Genworth’s existing plans to increase the premium rates from 44

- 60%
in the near future. 50 The Skochin Plaintiffs also contended that in 2018, Genworth sent a rate
increa se letter noting that Genworth planned on increasing the premium 150% over the following
6

- 8 years, while Genworth’s internal projections showed that the rate of increase was expected to

47 Id. at 25. 48 Id. at 26. 49 Amend. Compl. ¶¶ 43, 47. 50 Id. ¶ 43.10 be closer to 300%. 51 The Skochin Plaintiffs , however, did not challe nge Genworth’s right to increase premiums if such increases were made across entire policy classes, and approved by the policyholder s ’ state insurance regulators. 52 On October 30, 2019, the Skochin Action parties filed a Notice of Settlement and
executed a class action settlement agreement on December 20, 2019 (the “Skochin Settlement”). 53 The terms of the Skochin Settlement provided that Genworth would send a “Special Election Letter” to all settlement class members which provided disclosures about
future rate increases and the financial condition of Genworth

. 54 The Skochin Settlement also offered certain “Special Election Options” which the class members could select from in light of these updated disclosures for future premiums. 55 One of the Special El ection O ptions was a “damages payment” payable to the class member which was calculated in various ways, including : (i) a calculation of “premiums paid previously ; ” (ii) “future reduced benefit premiums as a basis for calculating such damages payment ; ” or , alternatively, (iii) “using a one

- time specified cash payment for certain class members in certain categories.” 56 Genworth also agreed to pay the class counsel attorneys’ fees, litigation costs, and service costs. 57 Genworth denied any wrongdoing or legal liability of any kind under the settlement. 58
The Skochin Court approved the Settlement Agreement in November of 2020, granting the plaintiffs’ motion for class counsel attorneys’ fees with an elimination of the $10 million

51 Id. ¶ 46. 52 Id. ¶ 48. 53 Id. ¶ 53. 54 Id. ¶ 54. 55 Id. 56 Id. ¶ 55. 57 Id. ¶ 56. The class counsel attorneys’ fees were calculated with a specific formula ($2 million plus an amount equal to 15% of the cash damages paid to the settlement class, subject to a $10 million floor and $24.5 million cap). The class counsel litigation costs were capped at $75,000. Service fees were capped at $25,000 for each of the three named class plaintiffs. 58 Id. ¶ 57.11 floor, granting the $25,000 service fees per named class plaintiff, and approval of litig ation costs totaling $64,398.66. 59 As of May 2022, Genworth has paid over $8.6 million in defense costs arising from the Skochin Action. 60 Under the Skochin Settlement, Genworth paid approximately $26.5 million in class counsel attorneys’ fees, more than $213 million in cash damage payments to the Skochin class members, $75,000 in service fees , and $64,398.66 in class counsel litigation

costs. 61
2. The Halcom Action On January 11, 2021, Judy Halcom, Hugh Penson, Harold Cherry, and Richard Landino ( the “Halc om Plaintiffs”) filed a class action lawsuit against Genworth (“Halcom Action”) . The
Halcom Plaintiffs contended that Genworth failed to disclose the possibility of future premium increases at the time they entered into an LTC policy with Genworth. 62 The Halcom Plaintiffs alleged that , while they paid steady premiums for the first few years of their LTC policies, Genworth began obtaining large premium increases, with 11

- 12% premium increases in 2008, and another 18% premium increase by 2010. 63 By 2012, the Halcom Plaintiffs claimed th at Genworth applied premium increases ranging from 60

- 95% for PCS I policies, and 63

- 78% increases for PCS II policies. 64 The Halcom Plaintiffs contended that Genworth failed to “tell policyholders the full scope of planned rate increases” in its communic ations to the policyholders regarding premium increases, and also failed to disclose that there would be further significant premium increases planned for the future. 65

59 Id. ¶ 59. 60 Id. ¶ 61. 61 Id

. 62 Id. ¶ 62. The Halcom Plaintiffs purchased PCS I (issued between 1994

- 97) and PCS II (issued between 1997 to 2001) LTC policies from Genworth. 63 Id. ¶ 65. 64 Id. ¶ 66. 65 Id. ¶ 67.12 As in the Skochin Action, the Halcom Plaintiffs did not contest the amount or extent of Genworth’s premium increases, or Genworth’s right to make such increases

. 66 The Halcom
Plaintiffs only challenged Genworth’s alleged failure to disclose such anticipated additional increases to its policy h olders. 67 The Halcom Plaintiffs sought compens atory, consequential, and general damages. 68 On August 23, 2021, the Halcom Action parties filed an executed proposed settlement agreement (the “Halcom Settlement”). 69 The Halcom Settlement was substantially similar to the Skochin Settlement, with Genwort h agreeing to send a “Special Election Letter” to all of the settlement class members providing various disclosures about future rate increases and the
financial condition of Genworth

. 70 Additionally, Genworth offered several “Special Election Options” that the class members could choose in light of the disclosures regarding future premium increases. 71 As in the Skochin Settlement, one of the Special Election O ptions was a “damages payment” which was measured in diffe rent ways, including (i) a calculation of “premiums paid previously ; ” (ii) “future reduced benefit premiums as a basis for calculating such damages payment ; ” or , alternatively, (iii) “using a one

- time specified cash payment for
certain class members in cer tain categories.” 72 Genworth also agreed to pay the class counsel attorneys’ fees, litigation costs, and service costs. 73 Under the Halcom Settlement, Genworth

66 Id. ¶ 68. 67 Id

. 68 Id. ¶ 71. 69 Id. ¶ 72. 70 Id. ¶ 73. 71 Id

. 72 Id. ¶ 74. 73 Id. ¶ 76. The class counsel attorneys’ fees were calculated with a specific formula ($1 million plus an amount equal to 15% of the cash damages paid to the settlement class, subject to a cap of $18.5 million). The class counsel’ litigation costs were capped at $50,000. Servic e fees were capped at $15,000 for each of the four named class plaintiffs.13 denied any wrongdoing or legal liability of any kind and denied that the lawsuit wa s appropria te for class treatment. 74 On June 29, 2022, the Halcom Court granted a Final Judgment and Order of Dismissal with Prejudice giving the final approval of the Halcom Settlement. 75 Genworth estimates that the anticipated total value of the settlement payouts could range from between $84 million and $251 million. 76 As of May 2022, Genworth has paid $1.3 million in defense costs for the Halcom Action, and “ expects that it will incur “substantial amounts in defense costs, damages payments and class counsel atto rneys’ fees going forward for the Halcom Action.” 77
3. The Haney Action On January 28, 2022, Fred Haney, Marsha Merrill, Sylvia Rausch, Stephen Swenson, and Alan Wooten ( the “Haney Plaintiffs”) filed a class action lawsuit against Genworth (“Haney Action”) . The Haney Plaintiffs contend ed that Genworth substantially increased premium rates for Choice 2, Choice 2.1, California CADE, California Reprice, and California Unbundled Long

Term Care Insurance policies (“Choice 2/2.1 Policies”) without disclo sing material information related to potential rate increases Genworth expected or planned to make in the future. 78 Similar to the Skochin and Halcom Actions, the Haney Plaintiffs claim ed that while they paid stable premiums for the first few years of the ir Genworth LTC policies, by 2012, Genworth began requesting, and received approvals for, sharp increases in the policy premiums from the state regulators. 79 The Haney Plaintiffs maintained that Genworth failed to disclose to its policyholders the expecte d need for Genworth to seek the premium increases from the state

74 Id. ¶ 77. 75 Id. ¶ 79. 76 Id. ¶ 75. The exact amount of the settlement payouts cannot be accurately calculated until all class members select their benefit options. 77 Id. ¶ 80 78 Id. ¶ 83. Choice 2/2.1 Policies were sold between 2003 and 2012. 79 Id. ¶ 86.14 regulators, and that Genworth failed to inform the policyholders of the “full scope of planned rate increases . . . or that Genworth was planning to ask for significant additional rate increa ses in
the future.” 80 “Like in the Skochin Action and the Halcom Actions, the Haney Plaintiffs did not challenge the amount or extent of Genworth’s premium increases, or Genworth’s right to make such increases, only Genworth’s alleged failure to disclose such anticipated additional increases to its policyholders.” 81 In January 2022, the Haney Action parties agreed to a settlement in principle, and on July 5, 2022, the parties filed an Amended Joint Stipulation of Class Action Settlement and Release,
which was approved by the Haney Court on July 7, 2022. 82 As of May 2022, Genworth has paid nearly $400,000 in defense costs in the Haney Action, and expects that it will incur “substantial amounts in additional defense costs, damages payments and class counsel attorneys’ fees going
forward

. ” 83
F. D ENIAL OF C OVERAGE FOR THE S KOCHIN , H ALCOM , AND H ANEY A CTIONS Genworth notified the Insurers about the Skochin Action and the incurred damages arising from the lawsuit on or about January 25, 2019. 84 On September 12, 201 9, AIG asserted that coverage for the Skochin Action was barred under three policy exclusions under the Primary Policy

– the Underwriting Exclusion ; the Claim Reserves Exclusion ; and the Premiums
Exclusion. 85 On October 18, 2019, Axis denied coverage for the Skochin Action based on the same three policy exclusions raised by AIG, as well as an additional exclusion for Loss from a
Claim. 86 On November 18, 2019, U.S. Specialty also denied coverage for the Skochin Action

80 Id. ¶ 88. 81 Id. ¶ 89. 82 Id. ¶ 93. 83 Id. ¶ 94. 84 Id. ¶ 96. 85 Id. ¶ 97. 86 Id. ¶ 100.15 and adopted the same position s as Axis. 87 On November 23, 2020, A ce denied coverage for the Skochin Action and adopted AIG’s coverage position. 88 T he other Insurers did not acknowledge coverage for the Skochin Action at the time Genworth filed th is suit. 89 On or about January 19, 2021, Genworth notified the Insurers about the Halcom Action and the incurred damages arising from th at lawsuit. 90 On February 5, 2021, AIG asserted that coverage for the Halcom Action was barred under the same three exc lusions AIG had raised in the rejection of coverage for the Skochin Action, and that AIG would consider the claim for the Halcom Action as being first made during the 2018

- 2019 policy period because it was related to
the Skochin Action. 91 ACE, Axis, and U .S. Specialty adopted the same position for denying coverage for the Halcom Action. 92
Genworth notified the Insurers of the pre - suit mediation request from the Haney Plaintiffs on or about November 5, 2021 and , again, on December 28, 2021

. 93 On January 11, 2022, AIG denied coverage for the Haney Action and asserted the same three exclusions it asserted for non

coverage of the Skochin and Halcom Actions

. 94 Atlantic Specialty, ACE, and CNA adopted AIG’s position on the Haney Action, and also d enied coverage. 95
G. P RESENT L ITIGATION On September 21, 2022, Genworth filed its Amended Complaint asserting three claims: (i) Breach of Contract and/or Anticipatory Breach of Contract Against All Defendants for Defense Costs; (ii) Breach of Contract and/or Anticipatory Breach of Contract Again st All

87 Id. ¶ 101. 88 Id. ¶ 102. 89 Id. ¶ 106. 90 Id. ¶ 108. 91 Id. ¶ 110. 92 Id. ¶¶ 112

- 115. 93 Id. ¶ 118. 94 Id. ¶ 120. 95 Id. ¶¶ 121

- 123.16 Defendants for Indemnity; and (iii) Declaratory Relief Against All Defendants. 96 On October 3, 2022, Genworth filed its Motion for Partial Summary Judgment Dismissing Certain Insurer Coverage Defenses. 97 On December 1, 2022, Insurers filed its Mot ion for Summary Judgment. 98 On January 25, 2023, Genworth filed its Combined Memorandum of Law 1) In Opposition to
Defendants’ Cross

- Motion for Summary Judgment, 2) In Further Support of its Motion for Partial Summary Judgment, and 3) In Opposition to Ins urers’ 56(f) Affidavit. 99 On March 8, 2023, Insurers filed its Reply in Further Support of Their Cross

- Motion for Summary Judgment. 100 The Court held a hearing on the Genworth Motion and the Insurers Motion on June 22,
2023 . After hearing from the parti es, the Court took the matter s under advisement. 101
III. PARTIES’ CONTENTIONS
A. T HE G ENWORTH M OTION Genworth argues that the three exclusions to coverage asserted by the Insurers do not bar coverage for the defense and settlement costs arising from the Skochin, Halcom, and Haney
Actions ( collectively, the “Underlying Actions”)

. Genworth maintains that the losses incurred by Genworth in the Underlying Actions “ fall squarel y within and satisfy all the elements of the insuring agreements of Genworth’s policies. ” 102 Genworth asserts that Insurers rely on erroneous interpretations of the exclusions to argue that : (i) Genworth’s losses either constitute premiums or return of pre miums ; (ii) Genworth’s losses are related to the inadequacy of its

96 D.I. No. 62. 97 D.I. No. 63. 98 D.I. No. 67. 99 D.I. No. 71. 100 D.I. No. 72. 101 D.I. No. 96. 102 Genworth’s Motion for Partial Summary Judgment (“Genworth Motion”) at 2 (D.I. No. 64)

.17 claims reserves ; or (iii) the Underlying Actions are attributable to issues in the underwriting of the LTC policies in question. 103
B. T HE I NSURER S M OTION
Insurers counter and argue that the Court should grant summary judgment in their favor

. The Insurers contend that the facts show that there are no genuine issues of material fact as to the applicability of the Claim Reserves Exclusion under the Policies

. 104 The Insurers claim that the plain reading of the clause bars coverage for Genworth’s losses arising from the Underlying
Actions

. 105 The Insurers state that Genworth’s premium increases were a result of “substantial shortfall in [Genworth’s] LTC reserves, ” and t hat t he Underlying Actions were “based upon, arising out of or attributable” to the inadequacies of Genworth’s claim reserves, triggering the
Claim Reserves Exclusion. 106 As such, Genworth’s defense costs and settlement payments are
not covered unde r the Policies as a matter of law. 107
The Insurers alternatively argue that even if they are not entitled to summary judgment on
the Claim Reserve s Exclusion clause , or the Premium Exclusion clause, the Insurers are entitled to discovery

. The Insurers cont end that discovery is required to determine whether Genworth’s settlement damages and costs arising from the Underlying Actions included “return of premiums” paid by the class members, which would trigger the Premiums Exclusion under the
Policies. 108 Furthermore, the Insurers argue that genuine issues of material fact remain as to the applicability of the Underwriting Exclusion, and discovery is necessary to find whether

103 Id. at 3

- 5. 104 Insurers’ Combined Opening Brief in Support of Their Cross

- Motion for Summary Judgment and Opposition to Plaintiffs’ Motion for Partial Summary Judgment (“Insurers Motion”) at 3 (D.I. No. 67)

. 105 Id

. 106 Id

. 107 Id. at 4. 108 Id. at 32.18 Genworth made certain decisions as to the need to seek significant future premium increases as a part of the underwriting process for the LTC policies. 109 As such, the Insurers argue that the Court should deny Genworth’s motion for partial summary judgment.
IV. STANDARD OF REVIEW The standard of review on a motion for summary judgment is well

- settled. The Court’s principal function when considering a motion for summary judgment is to examine the record to determine whether genuine issues of material fact exist, “but not to decide such issues.” 110 Summary judgment will be granted if, after viewing the record in a light most favorable to a nonmoving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. 111 If, however, the record reveals that material facts are in dispute,
or if the f actual record has not been developed thoroughly enough to allow the Court to apply the law to the factual record, then summary judgment will not be granted. 112 The moving party bears the initial burden of demonstrating that the undisputed facts support his claims or
defenses. 113 If the motion is properly supported, then the burden shifts to the non

- moving party to demonstrate that there are material issues of fact for resolution by the ultimate fact

- finder. 114
“These well

- established standards and rules equa lly apply [to the extent] the parties have
filed cross

- motions for summary judgment.” 115 Where cross

- motions for summary judgment are

109 Id. at 33. 110 Merrill v. Crothall

- American Inc. , 606 A.2d 96, 99

- 100 (Del. 1992) (internal citations omitted); Oliver B. Cannon & Sons, Inc. v. Dorr

- Oliver, Inc. , 312 A.2d 322 , 325 (Del. Super. 1973). 111 Id. 112 Ebersole v. Lowengrub , 180 A.2d 467, 470 (Del. 1962); see also Cook v. City of Harrington , 1990 WL 35244, at *3 (Del. Super. Feb. 22, 1990) (citing Ebersole , 180 A.2d at 467) (“Summary judgment will not be granted under any circumstances when the record indicates . . . that it is desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances.”). 113 Moore v. Sizemore , 405 A.2d 679, 680 (Del. 197 9 ) (citing Ebersole , 180 A.2d at 470). 114 See Brzoska v. Olsen , 668 A.2d 1355, 1364 (Del. 1995). 115 IDT Corp. v. U.S. Specialty Ins. Co. , 2019 WL 413692, at *5 (Del. Super. Jan. 31, 2019) (citations omitted); see Capano v. Lockwood , 2013 WL 2724634, at *2 (Del. Super. May 31, 2013) (citing Total Care Physicians, P.A. v. O'Hara , 798 A.2d 1043, 1050 (Del. Super. 2001)).19 filed and neither party argues the existence of a genuine issue of material fact, “the Court shall
deem the motions to be the equivalent of a stipulation for decision on the merits based on the
record submitted with the motions.” 116 But where cross

- motions for summary judgment are filed and an issue of material fact exists, summary judgment is not appropriate. 117 To determine whether there is a genuine issue of material fact, the Court evaluates each motion independently. 118 And again, where it seems prudent to make a more thorough inquiry into the facts, summary judgment will be denied. 119
V. DISCUSSION After reviewing the relevant documents and hearing from the parties, the Court will grant the Genworth Motion as to the Claims Reserves and Underwriting Exclusions. The Court does find that there are genuine issues of material fact as to the applicability of the Premiums
Exclusion. The Court will DENY the Insurers Motion. 120
A. A PPLICABLE V IRGINIA L AW Under Virginia law, “[e]xclusionary language in an insurance policy will be construed most strongly against the insurer and the burden is upon the insurer to prove that an exclusion applies.” 121 “[I]t is incumbent upon the insurer to employ exclusionary language that is clear and

116 Del. Super. Ct. Civ . R. 56(h). 117 Motors Liquidation Co. DIP Lenders Tr. v. Allianz Ins. Co. , 2017 WL 2495417, at *5 (Del. Super. June 19, 2017), aff’d sub nom., Motors Liquidation Co. DIP Lenders Tr. v. Allstate Ins. Co. , 191 A.3d 1109 (Del. 2018); Comet Sys., Inc. S’holders ’ Agent v. MIVA, Inc. , 980 A.2d 1024, 1029 (Del. Ch. 2008); s ee also Anolick v. Holy Trinity Greek Orthodox Church, Inc. , 787 A.2d 732, 738 (Del. Ch. 2001) (“[T]he presence of cross

- motions ‘does not act per se as a concession that there is an absence of f actual issues.’” (quoting United Vanguard Fund, Inc. v. TakeCare, Inc. , 693 A.2d 1076, 1079 (Del. 1997)) )

. 118 Motors Liquidation , 2017 WL 2495417, at *5; see Fasciana v. Elec. Data Sys. Corp. , 829 A.2d 160, 167 (Del. Ch. 2003). 119 Ebersole , 180 A.2d at 470

- 72; Pathmark Stores, Inc. v. 3821 Assocs., L.P. , 663 A.2d 1189, 1191 (Del. Ch. 1995). 120 As both Motions heavily overlap in their arguments regarding the applicability of the three exclusions, this discussion section will address both Motions for conciseness. 121 Am. Reliance Ins. Co. v. Mitchell , 385 S.E.2d 583, 547 (Va. 1989) (citing Johnson v. Insurance Co. of North America, 350 S.E.2d 616, 619 ( Va. 1986)).20 unambiguous.” 122 Ambiguity of a policy term must be found “on the face of the policy.” 123 Language can be found to be ambiguous when “it may be understood in more than one way or when it refers to two or more things at the same time.” 124 “[D]oubtful, ambiguous language in an insurance policy will be given an interpretation which grants coverage, rather than one which
withholds it.” 125 When determining whether an insurer has a duty to defend its insured, Virginia courts apply the “eight corners rule,” which compares the four corners of the insurance policy against the four corners of the underlying complaint. 126 “If any of the allegation s may potentially be covered by the policy, the insurer has a duty to defend.” 127
B. T HE C LAIM R ESERVES E XCLUSION DOES NOT BAR COVERAGE . The Insurers argue that the Claim Reserves Exclusion precludes coverage for Genworth’s settlement payouts and related costs and fees because the Underlying Actions were “based upon, arising out of or attributable . . . to the inadequacy of ” Genworth’s claim re serves. 128 The
Insurers contend that each of the Underlying Actions’ complaints repeatedly refer to Genworth’s alleged inadequate claims reserves for the LTC policies as the motive for Genworth increasing the LTC premium rates. 129 In turn, the Insurers cl aim that “ but for ” Genworth’s insufficient reserves, Genworth would not have had to omit “ material information ” from the LTC policyholders that it would be seeking additional future rate increases, giving rise to the Underlying Actions

. 130 As such, Insurers assert that the Claim Reserves Exclusion bars

122 Id. (citing State Farm Mutual Ins. Co. v. Gandy , 383 S.E.2d 717, 719 ( Va. 1989)). 123 Id. (citing Nationwide Mutual Ins. Co. v. Wenger , 278 S.E.2d 874, 877 ( Va. 1981)). 124 Id. (citing Linco ln National Life Ins. Co. v. Commonwealth Container Corp. , 327 S.E.2d 98, 101 ( Va. 1985)). 125 Id. (citing St. Paul Ins. v. Nusbaum & Co. , 316 S.E.2d 734, 736 ( Va. 1984)). 126 Erie Ins. Exchange v. State Farm Mut. Auto. Ins. Co. , 2002 WL 32075410, at *5 (Va. C ir. Ct. Dec. 16, 2002). 127 Penn. Nat. Mut. Cas. Ins. Co. v. Block Roofing Corp. , 754 F. Supp. 2d 819, 822

- 23 (E.D. Va. 2010). 128 Insurers Motion at 18. 129 Id. at 19

- 22. 130 Id. at 7, 23.21 recovery because the settlement payments and defense costs are not only “based upon, arising out of or attributable . . . to the inadequacy of [ Genworth’s ] claim reserves. ” 131 The Insurers

con clude that “ Genworth’s inadequate claim reserves were part of the foundation for the Underlying Actions (“based upon”); they were part of the causal chain leading to the underlying plaintiffs filing suit (“arising out of”); and the Underlying Actions are c apable of being explained as occurring in consequence of Genworth’s inadequate claim reserves (“attributable to”). ” 132 Genworth argues that the Court should find the Claim Reserves Exclusion does not bar recovery because Genworth’s potential liability in the Underlying Actions was predicated solely upon Genworth’s alleged misrepresentations or omissions regarding planned future premium
increases. 133 As Genworth states, “any background allegations regarding Genworth’s reserves were merely contextual, and not a necessary element of Genworth’s liability in the Actions, as required under Virginia law.” 134 Genworth notes that m ere allegations and “incidental” claims to the underlying class plaintiffs’ causes of action are in sufficient to trigger the Claim Reserves
E xclusion , as there was no actual occurrence of Genworth failing to pay out claims due to inadequate claim reserves. 135 Genworth summarizes that the “ [class] plaintiffs did not need to prove that Genworth’s reserves were actually inadequate , as either a legal or factual matter, in order to establish liability in the Actions . . . Genworth’s liability turned on the scope and adequacy of its rate increase disclosures.” 136

131 Id. at 25. 132 Id. at 25. 133 Genworth’s Combined Memorandum of Law 1) In O pposition to Defendants’ Cross

- Motion for Summary Judgment, 2) In Further Support of Its Motion for Partial Summary Judgment, and 3) In Opposition to Insurers’ 56(f) Affidavit (“Genworth Opp.”) at 19 (D.I. No. 71)

. 134 Id. at 26. 135 Id. at 29. 136 Id

. (emphasis in original).22 A plain reading of the Claim Reserves Exclusion demonstrates that the provision does not
bar Genworth’s claims

. The Claim Reserves Exclusion states : [Insurers] shall not be liable for that portion of Loss on account of any Claim made against any Insured based upon, arising out of or attributable to (i) the inadequacy of any claim reserves of the Company or any entity to which the Insureds provide Profe ssional Services ; or (ii) the bankruptcy, insolvency, receivership, liquidation or financial inability of any entity to which the Insureds provide Professional Services to pay claims or perform Professional Services

. 137
The Claims Reserve Exclusion, in its entirety , provides that the Insurers are not liable for losses
related to claims made against Genworth “based upon, arising out of or attributable to” either the inadequacy of Genworth’s claim reserves, or the general financial insolvency of Genworth. In other words, “Losses” incurred by Genworth must be directly attributable to Genworth’s inability to pay claims to its insureds because Genworth either failed to maintain sufficient claim reserves, or because of Genworth’s financial insolvency. Even under a broad reading of the clause, the Claim Reserves Exclusion language does not implicate barring recovery for
Genworth’s “Losses” even if claims made by policyholders suggest that inadequacy of claims
reserves was a motivator or factor for Genworth’s failure to disclose planned premium increases
from its LTC policyholders

. Furthermore, the Insurers rel y on James River Ins. Co. v. Doswell Truck Stop, LLC to argue that under Virginia law, the language “arising out of” does not require a direct link between a “liability” and a “violation” to implicate an exclusionary clause , and that only a “reasonable causal connection” is required to trigger the clause

. 138 However, a ca reful reading of
James River strongly suggests that the Virginia Supreme Court did not intend on its interpretation of the language, “arising out of” to be applied beyond the immediate facts

137 Id. at 26 (emphasis in original). 138 Insurers Motion at 27

- 28 (citing James River Ins. Co. v. Doswell Truck Stop, LLC , 827 S.E.2d 374, 377 (Va. 2019) ).23 presented in that case, and thus, the Court will not adopt the interpretation proffered by
Insurers. 139
In each of the Underlying Actions , the class plaintiffs asserted claims alleging that Genworth made misleading and inadequate disclosures regarding premium rate increases at the time they entered into Genworth’s L TC policies. 140 The class plaintiffs ’ complaints also stated that “[t]his case does not challenge Genworth’s right to increase these premiums or the need for premium increases given changes in certain of Genworth’s actuarial assumptions.” 141
As Genworth al so points out, the Halcom Court noted in its memorandum opinion approving the Halcom Settlement that “concerns related to Genworth’s actuarial decisions and its long

- term prospects for business success . . . [are] beyond the scope of this case.” 142 While t he class plaintiffs may have offered theories or evidence as to Genworth’s inadequate reserves as a
motive or cause for increasing the LTC policy premium rates, it was not asserted as a claim against Genworth in the class plaintiffs’ case

- in

- chief.
In con clusion, the Court reads the plain language of the Claim Reserves Exclusion to mean that the Insurers are not liable for Genworth’s losses if such losses arise from the inadequacy of Genworth’s claim reserves. M ere allegations or background facts tangenti ally relating to Genworth’s claim reserves are insufficient to trigger the exclusion . At best, the

139 The James River case involved a plaintiff who was injured on the premises of the defendant’s truck stop and repair garage due to an overinflated tire exploding near the plaintiff. The defendant was insured under a general commercial liability policy which excluded coverage for bodily injury arising out of the maintenance of any aut omobile on the truck stop premises. The James River court found that the auto exclusion clause language , “arising out of the ownership, maintenance or use” should be interpreted broadly, and following State Farm Mut. Auto. Ins. Co. v. Powell , 318 S/E/2d 39 3. 397 (Va. 1984), only a “reasonable causal connection” needed to exist between the maintenance or use of an automobile and the injury in question to trigger the exclusion and deny coverage for the plaintiff’s injury. The James River court did not provide for its interpretation of “arising out of” language to be applied wholesale in any and all insurance dispute cases beyond specific situations involving bodily injuries arising from maintenance or use of automobiles, and liability cov erage exclusion clauses. 140 Amend. Compl. ¶¶ 2

- 4. 141 Genworth Opp. at 19, Ex. 11 ¶ 1; Exs. 22 & 23 ¶ 3. 142 Id. at 19, Ex. 26 at 43.24 language of the Claim Reserves Exclusion can be found to be ambiguous on whether supporting allegations or claims contained within the Underlying Actions’ complaints are sufficient to trigger the clause. However, under Virginia law, exclusionary language in an insurance policy must be “construed most strongly against the insu rer and the burden is upon the insurer to prove that an exclusion applies” 143 and “doubtful, ambiguous language in an insurance policy will be given an interpretation which grants coverage, rather than one which withholds it.” 144
The Court finds that Insur ers fail ed to overcome the burden of showing that Genworth’s claims should be barred from coverage on the basis of the Claim Reserves Exclusion

. As such,
the Court will GRANT the Genworth Motion as to the Claims Reserve Exclusion.
C. T HE U NDERWRITING E XCLUSION DOES NOT BAR COVERAGE . The Insurers contend that there are genuine factual disputes as to whether the Underlying Actions are “based upon, arising out of or attributable to the underwriting of insurance, including any decisions invol ving the renewal of risks as well as the rates and premiums charged to insure
or reinsure risks.” 145 The Insurers asse r t that the Underlying Actions’ central allegations were based on Genworth’s decisions regarding the rates and premiums of the LTC plans, a s well as its failure to disclose significant premium increases. 146 The Insurers then argue that Genworth’s inadequate disclosures to the class plaintiffs were material to the “renewal” of the LTC policies, and the rates and premiums charged by Genworth f or those policies. 147 As such, the Insurers claim that the Underwriting Exclusion applies here because Genworth’s losses from the Underlying Actions were based upon its decisions involving the renewal of risks, and the rates

143 Am. Reliance Ins. Co. v. Mitchell , 385 S.E.2d 583, 547 (Va. 1989) (citing Johnson v. Insurance Co. of North America, 350 S.E.2d 616, 619 ( Va. 1986)). 144 Id. (citing St. Paul Ins. v. Nusbaum & Co. , 316 S.E.2d 734, 736 ( Va. 1984)). 145 Insurers Motion at 33. 146 Id. 147 Id.25 and premiums charged for the policies. 148 In suppor t, the Insurers note that the complaints of the Underlying Actions use variants of the words “renewal,” “rate,” and “premium” “over 400 times” which evince the fact that the underwriting of the LTC policies was central to the Underlying Actions. 149
The Insu rers also argue that, at the minimum, the Court should deny the Genworth Motion on this issue and permit discovery to go forward in order to “shed light on when and how Genworth decided what rates and premiums to charge, as well as what role rates, premium s, and renewables played in the underlying plaintiffs’ cases....” 150 The Insurers also contend they need discovery on whether the Underlying Actions arose out of “the sale and marketing of insurance . . . products” which are excluded from the Underwriting Ex clusion. 151 Genworth argues that the Underwriting Exclusion does not apply as a matter of law because the Underlying Actions only involved claims related to the “sale and marketing” of the LTC policies in question. 152 Genworth contends that the Underlying Actions were brought on the sole basis of Genworth’s alleged misrepresentation and false marketing of the LTC policies regarding the undisclosed premium increases at the time the policies were sold to the policyholders. 153 Genworth points out that the clas s plaintiffs argued they were harmed as a result of Genworth’s marketing material as to the LTC policies, and that “plaintiffs purchased and/or renewed their LTC policies based on Genworth’s market materials and allegedly incomplete information about premi um increases.” 154

148 Id. 149 Id. at 34. 150 Id. at 36. 151 Id

. 152 Genworth Opp. at 43. 153 Id. at 44. 154 Id

. at 44, Ex. 22 ¶¶ 8

- 10, 59

- 62; Ex. 28 ¶ 58 (“Genworth ‘marketed its experience and financial condition to induce new policyholders to purchase LTC policies and to keep its LTC policyholders renewing their policies.’”)

.26 Additionally, Genworth asserts that the class plaintiffs never alleged any wrongdoing in Genworth’s underwriting practices, and “expressly did not challenge Genworth’s ability to raise premiums or the propriety of those projected increases .” 155 Genworth also notes that under Virginia law, mere references in the underlying complaints to “renewals,” “rate,” or “premiums,” do not preclude coverage, as the underwriting of the policies itself must be a required or necessary element for liability in the Underlying Actions. 156 Genworth asks the Court to reject the Insurers’ broad reading of the provision, and argues that the exclusion is much narrower, only applying to “errors made in the underwriting process itself

– i.e. at the business risks
Gen worth itself assumes each time it issues a policy....” 157 Genworth maintains that the exclusion “does not apply to subsequent errors or claims of wrongdoing that allegedly occurred outside that process.” 158 The Court does not find this to be a complicated iss ue. A plain reading of the Underwriting Exclusion provides that the Insurers are not liable for covering any Loss related to the underwriting of insurance policies, or decisions made by Genworth involving the “classification, selection, and renewal of ris ks as well as the rates and premiums charged to
insure or reinsure risks.” 159 Most importantly, the Underwriting Exclusion explicitly provides
that it does not apply to Claims arising out of the “sale and marketing of insurance or investment products .” 160 The Underlying Actions involved class action lawsuits against Genworth for alleged false and misleading marketing of their LTC policies and failure to disclose planned future premium

155 Genworth Opp. at 46. 156 Id. 157 Id. at 48. 158 Id

. 159 Primary Policy at 24. 160 Id. (emphasis added).27 increases. The Underlying Actions do not involve any allegations attribu table to the underwriting of the policies, or the decisions made during the underwriting of the policies as to the rates and premiums charged to insure or reinsure risks. Upon review of the Underlying Actions, it is evident that the claims made by the cla ss plaintiffs, and the resulting losses to Genworth from settling the Underlying Actions, can only be attributed to the “sale and marketing of insurance” products, which are expressly not covered by the Underwriting Exclusion. The
Court finds that there a re no genuine issues of material fact as to the applicability of the Underwriting Exclusion. The Court also finds that no amount of discovery would alter the facts of the Underlying Actions to fit the arguments presented by Insurers on this issue.
Accord ingly , the Court will GRANT Genworth’s motion as to the Underwriting
Exclusion.
D. T HERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO THE APPLICABILITY OF THE P REMIUMS E XCLUSION . The Insurers argue that Genworth is not entitled to partial summary judgment as to the Premiums Exclusion because there are genuine issues of material fact as to whether the settlement payments constitute premiums or return premiums. Insurers plead that they are entitled to discovery on how the settlement payments were negotiated and whether the payments include a return of LTC premiums. 161
The Insurers contend that under the Policies, when any loss consists of premiums or return premiums, that loss is exclude d from coverage under the Premiums Exclusion. 162 The Insurers point out that in all three of the Underlying Actions , the class plaintiffs sought a “return of premiums paid for each year a renewal of the policy was rescinded.” 163 The Insurers also note

161 Insurers Motion at 43

- 44. 162 Id. at 37. 163 Id.28 that even Genworth’s own initial disclosures in the Underlying Actions admitted the fact that the plaintiffs were seeking “compensatory damages, which will be calculated as a refund of premiums.” 164
The Insurers also contest Genworth’s arguments that the Premiu m s Exclusion does not bar coverage for Genworth’s defense costs, class counsel attorneys’ fees, and settlement payments arising from the Underlying Actions

. First, the Insurers argue that while the language
of the Premium Exclusion does state that it does not apply to defense costs, the Insurers point out that the claimed defense costs of Genworth are only $10 million, which does not exceed the $25 million retention amount as per the Policies. 165 Second, the Insurers contend that the class

cou nsel attorneys’ fees were awarded under a “constructive common fund” doctrine, meaning
that the class counsel fees were a “hold

- back from the payments Genworth made to class
members” and , as such, all of the payments made under the settlement agreements co nstitute a return of premiums. 166 In other words, the Insurers maintain that the Premium Exclusion bars recovery for the class counsel attorneys’ fees because (i) the settlement payments arising out of the Skochin, Halcom, and Haney Settlements consisted o f a return of premiums ; and (ii) the class counsel attorneys’ fees were paid out from that return of premiums

. Lastly, the Insurers rely on language from the Skochin C ourt regarding settlement. The Insurers not that, despite Genworth’s assertions that t he settlement payments were purely “cash damages,” the Skochin C ourt referred to the settlement as involving the “partial refund of . . . premiums,” despite later amending the statement

. 167

164 Id. at 38. 165 Id. at 39. 166 Id. at 40. 167 Id. at 42. The Skochin C ourt issued an order amending a portion of its settlement approval opinion which originally stated, “a partial refund of the premiums that the policyholder has already made” to instead read “cash damages.” Genworth Motion at 25, Ex. 19.29 The Insurers argue that at minimum, there are genuine issues of m aterial fact related to whether the settlement payments consist of return of premiums already paid by the underlying
action class members . The Insurers contend that discovery is necessary to resolve those issues of fact prior to the Court’s decision on th e Genworth M otion. 168 Genworth argues that the Premium s Exclusion does not bar coverage for the Underlying
Actions because the settlement payments and class counsel attorneys’ fees do not constitute premiums or return premiums. Genworth disputes the Insure rs’ arguments that the class counsel attorneys’ fees consisted of premiums or return premiums and that such fees were awarded under
a “constructive common fund” doctrine. 169
Genworth alerts the Court to the final terms of the settlement agreements that provide: “Genworth shall pay Class Counsel’s reasonable attorneys’ fees and litigation expenses, without reducing the benefit to any Settlement Class members

. ” 170 Genworth maintains that these terms

controvert Insur ers’ arguments as to the alleged “constructive common fund” scheme. 171 Genworth also relies upon the Notice of Pendency of Class Action and Proposed Settlement to support the conclusion that class counsel attorneys’ fees were distinct from the settlement
p ayouts . T he Notice of Pendency of Class Action and Proposed Settlement states: “ Class members will not be required to separately pay Class Counsel for any other attorneys’ fees or expenses. Genworth has agreed to pay all fees and expenses separately.” 172 Genworth argues that even if the Court were to find that the settlement payments constituted premiums or return premiums, the class counsel attorneys’ fees would still be covered under the Policies as it was

168 Insurers Motion a t 43

- 44. 169 Id. at 35. 170 Id. 171 Id. 172 Id. at 36.30 not commingled with the settlement payments, and was expressly designated as a separate payment s and was to be made by Genworth. 173 Additionally, Genworth states that the cash damages settlement payments do not constitute premiums or return premiums and that the Insurers failed to disprove a plethora of evidence showing that the settlement payments were general cash damages that are covered
under the Policies. Genworth maintains that none of the briefings and orders related to the settlements included any language or references to a return of premiums paid by the class
members. Genworth also notes that the Underlying Actions’ “Prayer[s] for Relief” specifically sought “compensatory, consequential, and general damages,” and that the Skochin, Halcom, and Haney Courts never found that Genworth was either obligated to return premiums, or that class
members were entitled to the return of premiums paid during the LTC policies. 174 Most importantly, Genworth presents the “smoking gun” evidence of the Skochin Court correcting its settlement approval order from stating that the settlement payment was a “refund of . . . premiums” to instead read that t hey were “Cash Damages.” 175 Here, on this record, the Court finds that genuine issues of material fact remain on this
issue . The plain reading of the Premiums Exclusion provides that coverage for loss is barred
when the l oss constitutes premiums and return premiums. 176 Merriam

- Webster defines “constitute” as “make up, form, compose.” 177 Loss is found when claims are made against Genworth for “Wrongful Acts” which are defined as “any error, misstatement, misleading

173 Id. at 37. 174 Id. at 39. 175 Genworth Opp. at 39. 176 Primary Policy at 25. 177 Constitute , Merriam

- webster.com, https://www merriam

- webster.com/dictionary/constitute ( last visited Sept. 20, 2023).

.31 statement, act, omission , neglect or breach of duty actually or allegedly committed” by
Genworth. 178 The language of the Premiums Exclusion is unambiguous

– Genworth’s l oss is not covered by the Policies if the l oss consists of premium payments being returned to the policyholders. Upon review of the final settlement agreements, the Court finds that there is a genuine
issue of material fact as to the make

- up of the cash damages offered to the class member plaintiffs in the Underlying Actions

. Here, the language of the final settlement agreements of the Underlying Act ions dictates whether the “Loss” consisted of a return of premium payments to the class plaintiffs. The Settlement Agreements’ Appendix C titled “Special Election Options,” provid es several alternatives for the class members to opt into , including : 1. A sett lement option consisting of two components: (a) a paid

- up benefit option equivalent to 100% of the Settlement Class member's paid

- in premiums through December 31, 2015 plus the Settlement Class member's paid

- in premiums paid on or after January 1, 2020, if any, less any claims paid over the lifetime of the policy, and (b) a damages payment equal to premiums paid during the time period beginning January 1, 2016 through December 31, 2019; or
2. A settlement option consisting of a paid

- up benefit equal to two ti mes the difference between the Settlement Class member's paid

- in premiums to date less claims paid to the Settlement Class member to date. This option will not include any damages payment. 179 The settlement payment options seem to suggest s that certain por tions of the settlement

amounts could have been calculated by adding up amounts “equivalent to 100% of the Settlement Class member’s paid

- in premiums.” 180 While Genworth argues that the final wording of the settlement payment terms provide these are “cash payments” to the class members, the

178 Primary Policy at 20 (emphasis added). 179 Genworth Motion, Ex. 14B. 180 Id.32 calculation of these “cash payments” appears to include calculating how much in premium payments were made by the class members during the relevant policy period , and returning those amounts back to the class members who opt for that alternative

. The language of the Premium Exclusion clause states that Insurers “shall not be liable for that portion of Loss on account of any Claim made against [Genworth] if such Loss constitutes: . . . (iii) premiums, retu rn premiums.” 181 The Court thinks that Genworth’s arguments on the
Premium Exclusion are stronger. The provision seems to exclude the business situation where Genworth has to return premiums and then seeks indemnification. The Underlying Actions do not appear to seek the return of premiums. However, the comment from the Skochin Court and the terms of the settlements creates an issue of fact. In other words, the Court finds t here are genuine issues of material fact as to whether portions of the settlemen t payments made to the Underlying Action class members consist of premiums or return premiums. As such, the Court
will DENY the Genworth Motion as to the Premium Exclusion.
VI. CONCLUSION For the foregoing reasons, the Genworth Motion is GRANTED , in part, as to the Claim Reserves Exclusion and the Underwriting Exclusion, and DENIED , in part, as to the Premium
Exclusion. The Insurers Motion is DENIED

. IT IS SO ORDERED. September 21, 2023 Wilmington, Delaware 

## /s/ Eric M. Davis Eric M. Davis, Judge

cc: File&ServeXpress

181 Primary Policy at 25.