IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DEWEY BEACH ENTERPRISES,INC. and ) RUDDERTOWNE HOTEL, LLC, ) ) Plaintiffs, ) )

v. ) C.A. No. N20C

- 08

- 018 CEB ) DRASS INSURANCE AGENCY, INC.; )

MARKEL AMERICAN INSURANCE CO.: )

WILMINGTON INSURANCE CO

. ; )

CATALYTIC MANAGERS AND INSURANCE ) AGENCY, LLC; UNDERWRITERS AT ) LLOYD’S, LONDON; SAFETYSPECIALTY )

INSURANCE CO

. ; and GUIDEONE NATIONAL )

INSURANCE CO

. , ) )

Defendants. )

Submitted: February 5, 2021 Decided: May 13, 2021

On Defendants’ Motion to Dismiss, or in the Alternative,

Motion to Stay Litigation.

DENIED.

MEMORANDUM OPINION

Neil R. Lapinski , Esquire, Phillip A. Giordano, Esquire, GORDON, FOURNARIS & MAMMARELLA, P.A., Wilmington, Delaware. Attorneys for Plaintiffs Dewey Beach Enterprises, Inc. and Ruddertowne Hotel, LLC.

Susan List Hauske, Esquire, TYBOUT, REDFEARN & PELL, Wilmington,

Dela ware; Kimberly M. Jones, Esquire, Christian M. Gunneson, Esquire, WOOD, SMITH HENNING & BERMAN, LLP, Tampa, Florida. Attorneys for Defendants Catalytic Risk Managers and Insurance Agency, LLC, Underwriters at Lloyd’s London, Safety Specialty Insurance Com pany and Guideone National Insurance Company.

BUTLER, R.J.1 FACTS AND PROCEDURAL HISTORY

In 2012, Plaintiffs began construction and renovation on a mixed

- use property

containing the Ruddertowne Hotel, the adjacent lighthouse, condominiums, and

commercial event space (collectively, the “Project”). Plaintiffs retained Defendants

to provide insurance coverage for the Project. 1 The coverage was current through

April 2020. On April 23, 2020, a fire

— deemed arson by the Fire Marshall

—

consumed the lightho use, the restaurant and damaged the adjacent decking, railings,

piers, condominiums and commercial space. Plaintiffs have brought this action

against the insurers claiming breach of contract, negligence and requesting

declaratory judgment. Three of the D efendants have moved to dismiss the

Complaint because, they say, they are still “adjusting” the claim. In the alternative,

they seek a stay of the litigation pending the completion of their own investigation.

STANDARD OF REVIEW

On a motion to dismiss pursuant to Superior Court Civil Rule 12(b)(6), the

Court accepts all factual allegations as true in a light most favorable to the plaintiff. 2

1 The instant motion is brought by Defendants Underwriters at Lloyd’s, London, Safety Specialty Insurance Company, and Guideone National Insurance Company. It appears these defendants were underwriters of policies obtained by Defendant Drass Insurance Agen cy.

2 Williams v. Newark Country Club , 2016 WL 6781221, at *1 (Del. Super. Nov. 2, 2016); see Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs.

, LLC , 27 A.3d 531, 535 (Del. 2011).2

If it is possible for the plaintiff to recover under any reasonable set of circumstances

presented from the com plaint, the motion must be denied. 3

ANALYSIS

Defendants argue that because the Plaintiffs’ insurance claims are still being

adjusted, any litigation is premature and is not ripe for adjudication.

A ripeness determination requires an assessment of whe ther the interests of

the party seeking immediate relief

– in this case the Plaintiffs

– outweigh the

concerns of a party “in postponing review until the question arises in some more

concrete and final form.” 4 The balancing test to determine ripeness for adjudication

includes:

(1) a practical evaluation of the plaintiff’s legitimate interest in prompt resolution of the question presented, (2) the hardship that further delay may threaten, (3) the possibility of future factual development that might affect the determination made, (4) the need to conserve scarce judicial resources, and (5) a due respect for identifiable policies of the law touching upon the subject matter dispute. 5

Here, these so

- called Schick factors weigh in favor of denying the motion to

dismiss. First, Plaintiffs have a legitimate interest in prompt resolution, as they are

paying the repair and rebuilding costs themselves, defeating the very reasons they

3 Spence v. Funk , 396 A.2d 967, 968 (Del. 1978).

4 Stroud v. Milliken Enter., Inc., 552 A.2d 476, 480 (Del. 1989) (quoting Cont'l Air
Lines, Inc. v. C.A.B., 522 F.2d 107, 124

– 25 (D.C. Cir. 1974) ).

5 Schick v. Amalgamated Clothing & T extiles Workers Union, 533 A.2d 1235, 1239 (Del. Ch. 1987).3

purchased insurance. Plaintiffs ha ve suffered hardships including loss of income

and lengthened construction schedules that further delay will exacerbate.

When considering the possibility of future factual development that might

affect the determination and a due respect for identifiabl e policies of the law

touching on the dispute, Defendants rely upon XL Specialty v. WMI Liquidating

Trust. 6 In XL Specialty, an excess insurance policy was only triggered when the

plaintiff incurred liability reaching the excess carrier’s attachment leve l. The Court

dismissed the action because without a determination regarding liability, there was

no reasonable likelihood that the policy would be triggered and a judicial

determination would necessarily be based on speculation and hypothetical facts.

T hat is not this case. While there may be multiple insurance policies involved,

the Defendants have not identified themselves as excess carriers. Absent such a

claim, XL Specialty is inapposite. There is no risk that the Court will render an

advisory opi nion, as the condition for coverage has been triggered and litigation is

unavoidable. 7 Since litigation is unavoidable, there is no judicial economy served

by piecemeal litigation. 8

6 XL Specialty Ins. Co. v. WMI Liquidating Trust , 93 A.3d 1208 (Del. 2014).

7 See id. at 1217 (“Generally, a dispute will be deemed ripe if ‘litigation sooner or later appears to be unavoidable and where the material facts are static.’” (quoting
Julian v. Julian, 2009 WL 2937121, at *3 (Del. Ch. Sept. 9, 2009))).

8 See generally Energy Transfer Equity, L.P. v. Twin City Fire Insur. Co. , 2020 WL 5758027, at *7 (Del. Super. Sept. 28, 2020) (findin g judicial economy is not4

The Court cannot sanction further delay when the precipitating facto r appears

to be that Defendant insurers are still investigating the claim. Such logic would give

Defendant insurers carte blanche to take forever resolving their own coverage

obligations while the Plaintiff loses the benefits of his bargained

- for insuranc e

coverage.

The Court is currently issuing trial availability dates in 2022 at the earliest.

There is no illusion that these Defendants, or any other party, is being rushed into

the Courthouse. Should Defendants require a protective order from onerous

discovery they are not yet prepared to answer, they may apply to the Court for relief.

A blanket Order that dismisses the litigation or stays it indefinitely while the insurers

investigate their options is not appropriate.

CONCLUSION

Accordingly, Defe ndant’s motion to dismiss, or in the alternative, to stay

litigation is DENIED.

IT IS SO ORDERED.

Charles E. Butler, Resident Judge

preserved when dismissing an action without prejudice would result in a new complaint renaming moving insurers).