Delaware Business Litigation Report

Delaware Superior Court Addresses Choice of Law Issues in the D&O Insurance Context and Requires Carriers to Cover Pfizer’s Litigation Costs

Pfizer Inc. v. Arch Insurance Co., C.A. No. N18C-01-310 PRW CCLD (Del. Super. July 23, 2019).

This case from the Delaware Superior Court discusses important D&O coverage exclusion issues that frequently arise during securities litigation.  Pfizer sought coverage from its insurers in connection with the defense and settlement of a securities action in the Southern District of New York.  Defendants, the excess insurers, denied coverage based on “related wrongful acts” exclusions in the policies.  They argued that the action “arose out of” or “shared a common nexus” with another action in the District of New Jersey such that the D&O policies’ exclusion provisions precluded coverage.  Noting that the contract interpretation result would likely be different if applying New York law rather than Delaware law, and that the policies lacked a controlling choice of law provision, the Superior Court first applied the Restatement’s “most significant relationship” test to determine which state law should apply.  Although some of the Restatement Section 188 factors tipped in favor of New York, the Court ruled that application of Delaware law was most consistent with the parties’ reasonable expectations at the time of contracting and with the Delaware choice of law precedent for D&O policies.  For such policies, under Delaware law, the state of incorporation, rather than the state where the corporation is headquartered, has the most significant relationship.  This also was consistent with the parties’ choice of Delaware law in the policies to govern arbitration or mediation of their disputes.  Applying well-settled Delaware law to the interpretation of the policy provisions, the Court found the two actions were not “fundamentally identical.”  Thus, the exclusion did not apply and the insurers were obligated to cover the costs.

 

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