Supreme Court of Delaware Decides Long-Standing Dispute in Viking Pump Action

Posted In Decision

The Supreme Court of Delaware issued its decision in the long-standing dispute in In re Viking Pump, Inc. and Warren Pumps, LLC.  The appeal arose out of several rulings in the Court of Chancery and after a jury trial in the Complex Commercial Litigation Division of the Superior Court of Delaware. 

The litigation began in 2005 in the Court of Chancery, when Viking brought suit claiming it was the successor to certain insurance policies that Liberty Mutual Insurance Company had issued to Houdaille Industries, Inc., or, in the alternative, seeking partition of the Liberty policy limits.  That dispute settled.  Viking and Warren then filed new complaints in the Court of Chancery against more than twenty excess insurers that had issued excess policies to Houdaille.  The issue was whether to allocate using either the “pro rata” or “all sums” approach.  The Court of Chancery held that, under New York law, the language of the policy unambiguously provided for “all sums” allocation.  The case was then transferred to the Superior Court. More ›

Superior Court of Delaware Finds that Late Notice Does Not Defeat Coverage Under D&O Policy

Posted In policies

The Superior Court’s Complex Commercial Litigation Division held in Medical Depot, Inc. v. RSUI Indemnity Company that late notice did not preclude coverage in a D&O policy absent prejudice to the insurer.  By way of brief background, in June 2013, Tony Messadri sent Medical Depot a letter (the “Demand Letter”) in which Mezzadri threatened to file a class action lawsuit if the company did not bring itself into compliance with California law.  In March 2014, Messadri filed his initial complaint.  Messadri did not serve the initial complaint on Medical Depot, but Medical Depot’s HR director received a copy of the complaint from outside counsel.  On September 2, 2014, Messadri served an amended complaint on Medical Depot; Medical Depot notified its D&O insurer of the amended complaint on September 9, 2014.   More ›

Superior Court of Delaware Grants Motion for Summary Judgment Regarding Duty to Defend Under Wisconsin Law

The Complex Commercial Litigation Division of the Superior Court of Delaware recently held that Travelers Indemnity Company (“Travelers”) breached its duty to defend and indemnify plaintiff CNH Industrial America LLC (“CNH”) in underlying asbestos-related lawsuits. More ›

Best Lawyers® 2017 Recognizes 20 Morris James Attorneys

Twenty Morris James attorneys in twenty-six practice areas were selected by their peers for inclusion in The Best Lawyers in America 2017 edition. Morris James also has been recognized in four new practice areas, Personal Injury Litigation – Defendants, Arbitration, Corporate Governance Law and Mediation.  The Best Lawyers® list is based on an extensive survey involving detailed evaluations of leading lawyers by their peers. More ›

Superior Court of Delaware Confirms D&O Policy Provides Coverage for Investigation Costs Associated with Shareholder Derivative Demands

In a series of decisions regarding a matter of first impression under Delaware law, the Superior Court of Delaware held that the “Investigation Costs” for two related shareholder derivative demands made by Robert Ammerman (“Ammerman”) were covered under Defendant and Counterclaim Plaintiff XL Specialty Insurance Company’s (“XL”) Management Liability and Company Reimbursement Insurance Policy (the “XL Policy”) that XL issued to Ameritrans Capital Corporation (“Ameritrans”).  See Ameritrans Capital Corp. v. XL Specialty Ins. Co., C.A. No. N14C-10-019 (EMD) (Nov. 30, 2015) (granting Ameritrans’ Motion for Judgment on the Pleadings); (June 15, 2016) (granting XL’s Motion for Reargument but upholding November 30, 2015 decision).   More ›

Court denies summary judgment after claim construction

Cronos Technologies, LLC v. Expedia, Inc., et al., C.A. Nos. 13-1538-LPS; 13-1541-LPS; 13-1544-LPS, July 22, 2016.

Stark, C. J. Claim construction opinion issues regarding three terms from one patent. Defendants’ motion for summary judgment is deferred pending the filing of a status report.

The disputed technology relates to website remote ordering systems. The following terms were considered:

  1. “Item Code”/ “identifying code”
  2. “data entry device for providing said terminal with said ... item codes"
  3. “user inputting said identifying code"

Plaintiff contends that hyperlinks implemented in defendants’ websites are infringing item codes, The court concludes that defendants have met their burden of showing no genuine issue of material fact that their websites do not infringe. However, the court acknowledges that actual claim constructions are only being provided with this opinion and concludes that plaintiff should be permitted to consider new infringement theories even if it is unlikely it court persuade the court to allow them with the pretrial conference just a week away. The parties are directed to meet and confer and to provide their positions on whether summary judgment of non-infringement should be entered.

Chambers USA Recognizes 14 Morris James Attorneys and 5 Practice Areas Among the Nation’s Best

Posted In News

Morris James is pleased to announce that fourteen of its partners and five practice areas have been recognized by Chambers USA 2016.  More ›

Morris James Attorneys Participate in Delaware Mock Trial

Posted In News

Morris James attorneys and staff continued the firm’s longstanding support for the Delaware High School Mock Trial Competition with twelve attorneys serving as judges or coaches at the annual competition held at the New Castle County Courthouse on February 26-27, 2016.  Jason C. Jowers, a partner in the firm’s Corporate and Commercial Litigation Group, completed his seventh year as Chair of the competition and received the Pete Jones Award, named after Morris James partner Pete Jones, given to an individual who has demonstrated sustained commitment to the goals and values of the mock trial program. Eric Hacker, an associate in the firm’s Georgetown office, coached Sussex Central, the first team from Sussex County to advance to the finals of the competition. In addition to Jowers and Hacker, the Morris James attorneys who participated as coaches or judges included partners Kevin Healy, Pete Jones,  Lewis Lazarus, Dennis Schrader, Joe Slights, and David Soldo, and associates Megan Adams, Nick Krawitz,  Beth Powers,  and Laura Readinger. Also, Morris James administrative assistant Margie Touchton served as the Judge Volunteer Coordinator.

Delaware Supreme Court Justice Collins J. Seitz, Jr.,  the presiding judge of the championship round, commented that the future of the practice of law in Delaware is bright based on the skill demonstrated by the finalists.  David Williams, the firm’s managing partner, expressed his gratitude to the attorneys and staff who gave so generously of their time to aid the next generation of Delaware lawyers, noting that “this type of dedication exemplifies the type of community service for which the firm is proud.”

U.S. News - Best Lawyers Ranks Eighteen Morris James Practice Areas among 2016 “Best Law Firms” in Delaware

Posted In News

Eighteen Morris James practice areas were recognized in the 2016 “Best Law Firms” rankings by U.S. News – Best Lawyers®. These rankings complement the twenty-one Morris James attorneys who were selected by their peers for inclusion in the “The Best Lawyers in America” 2016 edition.

The practice areas recognized include: More ›

Morris James Receives Christopher W. White 2015 Distinguished Access to Justice Leadership Award

Posted In News

Morris James LLP was presented the Leadership Award at the Delaware State Bar Association’s Christopher W. White 2015 Distinguished Access to Justice Awards Breakfast on October 29th, 2015. The Leadership Award is given to the firm who has demonstrated outstanding leadership in the field of pro bono service to the impoverished in Delaware, and who fosters a culture which recognizes the value of Access to Justice service.  More ›

Sixteen Morris James Lawyers Recognized in Delaware Today's "Top Lawyers 2015"

Posted In News

Morris James LLP is pleased to congratulate the lawyers listed below, who were most recommended by their professional peers in a survey of Delaware attorneys conducted by Delaware Today magazine. Sixteen Morris James attorneys were distinguished in their respective practice areas, with seven named as “top vote-getters,” listed below in bold. More ›

Morris James LLP Receives NAMI Delaware’s "Corporate Partner of the Year" Award

Posted In News

The National Alliance on Mental Illness (NAMI) of Delaware has recognized Morris James as its “Corporate Partner of the Year.”  Managing partner, David H. Williams, accepted this award given in recognition for the firm’s service to the community and support for NAMI Delaware’s mission. National Alliance on Mental Illness (NAMI) is a nonprofit group that raises money and awareness for the treatment of people with mental illness.  Over the past 13 years, a dedicated team of Morris James employees has raised money each year in the NAMI Delaware Walk. Margie Touchton, a long-term employee, has led Morris James’ effort which contributes money to fund people in group homes around the state.  More ›

Best Lawyers® 2016 Recognizes 21 Morris James Attorneys

Posted In News

Twenty-one Morris James attorneys in twenty-six practice areas were selected by their peers for inclusion in The Best Lawyers in America 2016 edition. Additionally, three of those attorneys were named “Lawyer of the Year” for their respective practices, including Richard Galperin for Personal Injury Litigation – Defendants, Gretchen S. Knight for Family Law, and Mark D. Olson for Tax Law.  More ›

Fourteen Morris James Attorneys Recognized in Chambers USA 2015

Posted In News

Morris James LLP is pleased to announce that fourteen attorneys in six separate practice areas have been ranked among the leading Delaware lawyers in the 2015 edition of Chambers USA: America's Leading Lawyers for Business.  The Chancery, Intellectual Property and Labor & Employment practice areas also received recognition from Chambers USA. More ›

Bank of Delmarva v. South Shore Ventures, LLC, Del. Super., C.A. No. S13C-05-008 THG (Oct. 21, 2014)

Posted In Cases

The Superior Court granted the Bank of Delmarva’s (“Bank”) motion for summary judgment as to each of Defendant John E. O’Brien’s (“Defendant”) counterclaims.  In 2005, Defendant along with South Shore Ventures, LLC (“Shore”) and Clayton Evans (“Evans”) (collectively “the Defendants”), secured a loan from the Bank to develop a piece of property known as “The Cove.”  As per the loan agreement, Defendants executed a bond for $500,000, the original principal amount, in favor of the Bank.  In 2010, the Bank and Defendants also negotiated modifications to the loan agreement, but those modifications were never enacted.  Defendants subsequently defaulted on the loan agreement.

Defendant counterclaimed that the Bank breached fiduciary duties owed to Defendants when the Bank failed to notify Defendants that the Bank had made a claim under the Bank’s title insurance policy due to a defect in a property’s title.  Defendant also claimed that the Bank’s conduct constituted a breach of the covenant of good faith and fair dealing.  Finally, Defendant claimed that the Bank was negligent in its handling of the original property appraisal.

First the Court granted summary judgment as a matter of law on Defendant’s counterclaim that the Bank breached a fiduciary duty that was created by the loan agreement and insurance policy.  For one, although commercial relationships may implicate fiduciary duties, the mere existence of a commercial relationship does not automatically implicate such duties.  But, more importantly, under Delaware law, the Court of Chancery has exclusive jurisdiction over equitable causes of action such as breach of fiduciary duty.  Relying on Reybold Venture Grp. XI-A, LLC v. Atl. Meridian Crossing, LLC, 2009 WL 143107, at *2 (Del. Super. Jam. 20, 2009), the Court found it lacked subject matter jurisdiction and granted the Bank summary judgment on the counterclaim.

The Court next granted summary judgment on Defendant’s counterclaim that the Bank breached the covenant of good faith and fair dealing.  The covenant of good faith and fair dealing is implied in every contract, and requires a party to refrain from arbitrary or unreasonable actions that would frustrate the ultimate purpose of the contract or disadvantage an opponent.  The doctrine is most often asserted to prevent a party from taking an action that they would have sought to prevent at the time of contract, had they anticipated such conduct at the time. The Court found no breach because the loan agreement, which required Defendant to take out an insurance policy naming the Bank as a beneficiary, did not require the Bank to then keep Defendant apprised of any subsequent claims on the policy.  The Court also found that, even if there was merit to Defendant’s bad faith counterclaim, the counterclaim was barred by the relevant statute of limitations, three years for a contract claim.

Finally, the Court found that Defendant’s negligence claim, which was also subject to a three-year statute of limitations, was also time-barred. Defendant had argued that the statute of limitations should have been tolled because of the “time of discovery rule.”  The rule permits tolling where no observable facts alert a party of the injury such that the complaining party is “blamelessly ignorant” of the injury.  In such a case, the statute of limitations is tolled until the complaining party discovers the alleged wrong.  The Court declined to toll the statute of limitations, however, because it found that Defendant was not “blamelessly ignorant.”  Rather, the record revealed that Defendant not only owned the property, but also acted as the closing agent and was, at the time, a Delaware attorney.  These facts together indicated that the Defendant understood the importance of an accurate appraisal, and should have been aware of the alleged negligent appraisal when it was conducted in 2005.  For all the reasons stated above, the Court granted the Bank’s motion for summary judgment in its entirety.