Delaware Business Litigation Report

Superior Court Denies Motion to Dismiss or Stay First-Filed Delaware Action

Certain Underwriters at Lloyds Severally Subscribing Policy Number DP359504 v. Tyson, 2008 WL 660485 (Del. Super. March 7, 2008)

This case is an insurance coverage dispute between Tyson Foods, Inc., and certain of its underwriters over damages caused by Hurricane Katrina.  The underwriters filed two declaratory judgment actions in Delaware seeking denial of coverage.  Two weeks later Tyson filed an action in Mississippi.  Tyson then moved to dismiss or stay the Delaware action.

The Superior Court found that the underwriters’ Delaware action was first filed.  The court then applied the Cryo-Maid factors to determine if the Delaware action should nonetheless be dismissed or stayed on forum non conveniens grounds.  The court considered (1) whether Delaware law governs the case; (2) the relative ease of access to proof; (3) the availability of compulsory process for witnesses; (4) the possibility of a view of the premises; (5) the pendency or nonpendency of a similar action or actions in another jurisdiction; and (6) all other practical considerations that would affect the trial.   

The court held that the Cryo-Maid factors weighed in favor of keeping the action in Delaware, noting that “Delaware has a significant interest in making a neutral forum available to parties in commercial disputes who file against Delaware entities, even where the dispute involves the law of another jurisdiction and the parties and conduct are centered in another jurisdiction.”    Share