             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ARCH INSURANCE COMPANY,                         )
LIBERTY MUTUAL INSURANCE                        )
COMPANY, CONTINENTAL                            )
CASUALTY INSURANCE                              )
COMPANY, NAVIGATORS                             )
INSURANCE COMPANY, RSUI                         )
INDEMNITY COMPANY, and                          )
BERKLEY INSURANCE                               )
COMPANY,                                        )
                                                )
                     Plaintiffs,                )
                                                )
              v.                                )   C.A. No. N16C-01-104 EMD CCLD
                                                )
DAVID H. MURDOCK, C. MICHAEL                    )
CARTER, DOLE FOOD COMPANY,                      )
INC., and DFC HOLDINGS, LLC,                    )
                                                )
                     Defendants.                )

                                   Submitted: November 6, 2017
                                     Decided: March 1, 2018

                       Upon Plaintiffs’ Motion for Summary Judgment
                         GRANTED in part and DENIED in part

Robert J. Katzenstein, Esquire, and Kathleen M. Miller, Esquire, Smith, Katzenstein & Jenkins
LLP, Wilmington, Delaware. Attorneys for Arch Insurance Company, Liberty Mutual Insurance
Company, Continental Casualty Insurance Company, Navigators Insurance Company, RSUI
Indemnity Company, and Berkley Insurance Company.

Michael R. Goodstein, Esquire, Bailey Cavalieri LLC, Columbus, Ohio. Attorneys for Arch
Insurance Company and Liberty Mutual Insurance Company.

Merril Hirsh, Esquire, Troutman Sanders, LLP, Washington, District of Columbia, and John R.
Gerstein, Esquire and Stacey E. Rufe, Esquire, Clyde & Co. US, LLP, Washington, D.C.
Attorneys for Continental Casualty Insurance Company.

Michael L. Manire, Esquire, and Deanna M. Galla, Manire & Galla LLP, New York, New York.
Attorneys for Navigators Insurance Company.

Robert P. Conlon, Esquire, and Kevin A. Lahm, Esquire, Walker Wilcox Matousek LLP,
Chicago, Illinois. Attorneys for RSUI Insurance Company.
Ommid C. Farashahi, Esquire, Michael T. Skoglund, Esquire, and Nicholas R. Novak, Esquire,
BatesCarey LLP, Chicago, Illinois. Attorneys for Berkley Insurance Company.

Elena C. Norman, Esquire, Mary F. Dugan, Esquire, Young Conaway Stargatt & Taylor LLP,
Wilmington, Delaware, Kirk A. Pasich, Esquire and Pamela Wood, Esquire, Pasich LLP, Los
Angeles, California, Mikaela Whitman, Esquire, Pasich LLP, New York, New York. Attorneys
for David H. Murdock, C. Michael Carter, Dole Food Company, Inc., and DFC Holdings, LLC.

DAVIS, J.

                                            I. INTRODUCTION

        This breach of contract case is assigned to the Complex Commercial Litigation Division

of this Court. Plaintiffs Arch Insurance Company, Liberty Mutual Insurance Company,

Continental Casualty Insurance Company, Navigators Insurance Company, RSUI Indemnity

Company, and Berkley Insurance Company (collectively, “Insurers”) are six excess insurance

carriers. The Insurers filed a declaratory judgment against Defendants David H. Murdock, C.

Michael Carter (collectively with Mr. Murdock, the “Individual Defendants”), Dole Food

Company, Inc. (“Dole”), and DFC Holdings, LLC (“DFC”).1 The Insurers seek a declaration

that they do not have to fund an underlying settlement due to Insureds’ alleged breaches of the

applicable insurance policies (the “Policies).2

        On April 28, 2016, the Insureds filed a Motion to Dismiss.3 On December 21, 2016, the

Court granted in part and denied in part the Motion to Dismiss.4 As set out more fully in the

MTD Decision, the Court found that: (1) there is an actual controversy between the Insurers and




1
  The Individual Defendants, Dole and DFC will be referred to collectively as the “Insureds.”
2
  The Insurers belong to Dole’s overall package of Directors and Officers Liability insurance coverage. All are in
excess of, and follow form to, Axis Insurance Company’s Primary Policy and two, non-party, excess carriers:
National Union Fire Insurance Company and Federal Insurance Company. See Arch Ins. Co. v. Murdock, C.A. No.
N16C-01-104 EMD CCLD, 2016 WL 7414218, at *1 (Del. Super. Dec. 21, 2016)(the “MTD Decision”). In the
MTD Decision, the Court set out the Insurers’ range of coverage. See id.
3
  Id., at *2.
4
  Id. at *8.

                                                         2
the Insureds for coverage of the Stockholder Action; but (2) under Delaware or California choice

of law, the Insurers cannot subrogate against the Insured.5

        On April 18, 2017, the Insureds filed their Amended Answer, Affirmative Defenses, and

Counterclaims (the “Counterclaims”). In the Counterclaims, the Insureds argue that the Insurers

acted in bad faith by not paying the Insurance Policies and are subject to punitive damages. All

of the Insurers have answered the Counterclaims.

        On June 30, 2017, Insurers’ filed their Opening Brief in Support of Motion for Summary

Judgment (the “Motion”). On August 7, 2017, Defendants filed their Answering Brief in

Opposition to Plaintiff Insurers’ Motion for Summary Judgment (the “Opposition”). Insurers

filed their Reply Brief in Support of their Motion for Summary Judgment (the “Reply”) on

August 29, 2017.

        On October 30, 2017, the Court held a hearing (the “Hearing”) on the Motion,

Opposition, and Reply. After the Hearing, the Court took the matter under advisement. This is

the Court’s opinion the Motion. For the reasons set forth more full below, the Motion is

GRANTED in part and DENIED in part.

                                         II. RELEVANT FACTS6

        The Insurers provided Dole’s overall package of Directors and Officers Liability

insurance coverage.7 Dole is a Delaware corporation.8 DFC is a Delaware LLC.9 The Policies

are in excess of, and follow form to, Axis Insurance Company’s Primary Policy and two, non-




5
  Id. at *4-8.
6
  The Relevant Facts are taken from exhibits and attachments to the Motion, Opposition and Reply and, if
appropriate, the pleadings.
7
  Plaintiffs’ Amended Complaint for Declaratory Relief (“Compl.”) ¶ 21.
8
  Id. at ¶ 16.
9
  Id. at ¶ 17.

                                                        3
party, excess carriers: National Union Fire Insurance Company and Federal Insurance

Company.10

         A. RELEVANT POLICY PROVISIONS

         Dole executed the Policies with the Insurers. The Policies are claims based insurance for

the directors, officers, and corporate liability. The Policies contain a provision requiring that the

Insured received the Insurers’ written consent before action is taken (the “Written Consent

Provision”). The Written Consent Provision states: “The Insureds shall not admit any liability,

settle, offer to settle, stipulate to any judgment or otherwise assume any contractual obligation

with regard to any Claim or Insured Inquiry without the Insurer’s prior written consent, which

shall not be unreasonably withheld.”11

         The Policies also contained a provision that required the Insureds to cooperate with the

Insurers (the “Cooperation Clause”). The Cooperation Clause states:

         The Insurer shall have the right and shall be given the opportunity to effectively
         associate with the Insureds in the investigation, defense and settlement, including
         but not limited to the negotiation of a settlement, of any Claim that appears
         reasonably likely to be covered in whole or in part hereunder. . . . The Insureds shall
         provide the Insurer with all information, assistance and cooperation which the
         Insurer reasonably requests and shall do nothing that may prejudice the Insurer’s
         potential or actual rights of recovery with respect to Loss paid; provided the failure
         of one Insured Individual to comply with this provision shall not impair the rights
         of any other Insured Individual under this Policy.12

         Mr. Murdock owned 40% of Dole’s stock and was a director and officer of Dole.13 Mr.

Carter was Dole’s president and CEO.14 In 2013, Mr. Murdock utilized DFC, a holding


10
   Id.
11
   Motion, Ex. 1 (the old provision stated: Insureds shall not settle any Claim, select any defense counsel, incur any
Defense Costs, admit or assume any liability, stipulate to any judgment without the Insurer’s prior written consent,
which shall not be unreasonably withheld, or otherwise assume any contractual obligation. The Insurer shall not be
liable for any settlement, Defense Costs, assumed obligation, admission or stipulated judgment to which it has not
consented or for which the Insureds are not legally obligated”).
12
   Id.
13
   Id. at ¶ 14.
14
   Id. at ¶ 15.

                                                           4
company, to acquire the remaining Dole stock and take it private.15 Mr. Murdock completed the

acquisition in November 2013. Mr. Murdock paid shareholders $13.50 per share.16 Thereafter,

the shareholders filed multiple lawsuits challenging the transaction’s fairness.17

        B. IN RE DOLE FOOD COMPANY, INC. STOCKHOLDER LITIGATION

        In re Dole Food Company, Inc. Stockholder Litigation (“Memorandum Opinion”) is one

of two shareholder litigations relevant to this civil action.18 This action was filed in the

Delaware Court of Chancery (the “Chancery Court”). The Insureds were all parties to the

Memorandum Opinion.19 The stockholders alleged Defendants engaged in a lengthy process that

manipulated the stock price so that Mr. Murdock could acquire the stock at a lower price.20 Vice

Chancellor Laster, in his Memorandum Opinion, repeatedly cited to “fraud” and “fraudulent

activity.”21 Vice Chancellor Laster found breaches of the duty of loyalty, and assessed liability

against Mr. Murdock, Mr. Carter, and DFC in the amount of $148,190,590.18.22

        On September 21, 2015, Dole’s “insurance recovery counsel” wrote to the Insurers.23

The letter notified the Insurers that Dole was considering settlement and mediation. It asked that

the Insurers consider funding a settlement. The Insurers all responded, citing various potential

exclusions and requesting more information from Dole.24 On October 29, 2015, Dole



15
   Id. at ¶ 17.
16
   Id. at ¶ 18.
17
   Id.
18
   See C.A. No. 8703-VCL, 2015 WL 5052214, at *3-25 (Del. Ch. Aug. 27, 2015); Compl. ¶ 20. The Court
acknowledges that the term “Memorandum Opinion” is not the best defined term for a lawsuit; however, the
Memorandum Opinion best memorializes what actually happened in the lawsuit.
19
   Dole, 2015 WL 5052214 at *1.
20
   Id., at *3-25.
21
   Id., at *2, 26.
22
   Id. at *47.
23
   Pls.’ Compl. Ex. 11.
24
   See id. Ex. 12 (Letter from Federal Insurance Company); Ex. 13 (Letter from Arch Insurance Company); Ex. 14
(Letter from Liberty International Underwriters); Ex. 15 (Letter from Continental Insurance Company); Ex. 16
(Letter from Navigators Insurance Company); Ex. 17 (Letter from RSUI Indemnity Company); Ex. 18 (Letter from
Berkley Insurance Company).

                                                       5
responded.25 Dole disagreed with Federal’s reservations, and again demanded coverage for the

underlying settlement.26

        On November 5, 2015, Dole signed a term sheet settling the underlying action. On

December 7, 2015, the underlying parties signed a formal Stipulation and Agreement of

Settlement (the “Settlement”).27 In lieu of an appeal, the parties settled for 100% plus interest.28

Mr. Murdock agreed to pay the settlement on the Defendants’ behalf. Vice Chancellor Laster

approved the settlement on February 10, 2016 (the “Order and Final Judgment”).29 The

Settlement caused the Chancery Court action to be dismissed “with prejudice and in its

entirety.”30

        The Insureds contend that they kept the Insurers informed as to the progress of the

negotiations and provided copies of drafts of term sheets.31 The Insureds also state that none of

the Insurers asked to participate in the settlement negotiations or objected to or commented on

any of the settlement terms.32

        On February 26, 2016, Dole’s counsel wrote to the Insurers, seeking indemnification for

the Settlement.33 The Insurers did not in the Chancery Court object to the Settlement or appeal

the Order and Final Judgment.34

        On January 13, 2016, prior to the Chancery Court’s approving the Settlement, the

Insurers filed this civil action. The parties stipulated to dismiss the Insurers’ claims against



25
   Id. Ex. 19.
26
   See id.
27
   Compl. ¶ 57.
28
   Mot. at 31.
29
   Compl., Ex. 3 at 13.
30
   Id. at 6.
31
   Affidavit of Pamela M. Woods (“Woods Aff.”), ¶¶ 6-8.
32
   Id., ¶¶ 14-18.
33
   Pls.’ Compl. ¶ 59.
34
   Woods Aff., ¶¶ 18, 20.

                                                          6
DFC, because DFC, is not an insured under any of the policies.”35 The Insurers filed an

Amended Complaint for Declaratory Judgment (the “Amended Complaint”) on April 8, 2016.

        C. SAN ANTONIO FIRE & POLICE PENSION FUND V. DOLE FOOD CO., INC.

        On December 9, 2015, suit was filed against Dole and Mr. Murdock in United States

District Court for the District of Delaware—San Antonio Fire & Police Pension Fund v. Dole

Food Co., Inc., No. 1:15-CV-01140 (D. Del.)(the “San Antonio Action”).36 The Insureds state

that Dole gave the Insurers notice of the San Antonio Action.37 The Insurers responded over a

six-month period as to their respective coverage positions.38 According to the Insureds, the

Insurers took the same coverage positions with respect to the San Antonio Action as were taken

in the Memorandum Opinion.39

        In October 2016, the Delaware District Court scheduled an Alternative Dispute

Resolution teleconference in the San Antonio Action.40 The Insureds notified the Insurers of this

teleconference.41 The San Antonio Action plaintiffs then approached the Insureds about

mediation, and the parties discussed the timing of such a mediation and potential mediators.42

        The Insureds then scheduled a teleconference to discuss the potential mediation with the

Insurers.43 During this teleconference, the Insureds stated to the Insurers that the Insureds

thought it would be beneficial to mediate the San Antonio Action.44 The Insureds purported to

identify potential mediators that had been previously discussed with the plaintiffs and asked the



35
   Murdock, 2016 WL 7414218, at *2.
36
   Woods Aff., ¶ 23.
37
   Id., ¶ 24.
38
   Id., ¶¶ 24, 26-28, 31, 37.
39
   Id.
40
   Affidavit of Alexander K. Mircheff (“Mircheff Aff.”), ¶3.
41
   Id.
42
   Id., ¶ 4.
43
   Id., ¶¶ 5-6.
44
   Id.

                                                         7
Insurers for input.45 The Insurers provided some feedback on potential mediators but none

objected to the mediation or to using Judge Layn Phillips as a mediator.46

        Arch and Liberty asked the Insured to provide who was the Insured’s damages expert and

a damage assessment report during the teleconference.47 The Insureds refused to provide this

information, claiming that it was work product or attorney-client privileged information and if it

was disclosed to non-defending insurers it could be argued that the Insureds waived these

privileges.48

        The Insureds relayed to the Insurers the mediation dates.49 Once each Insurer signed a

Mediation Confidentiality Agreement required by the mediator, the Insureds provided the

mediation briefs to the Insurers.50 According to the Insureds, only Arch and Liberty attended the

mediation and the other Insurers received telephonic updates.51

        After the mediation, the Insureds told the Insurers that the Insureds had provisionally

agreed to terms of a term sheet (the “Term Sheet”).52 The Term Sheet was subject to the

approval of Dole’s board of directors within ten business days.53 The Insureds asked the Insurers

to confirm that the Insurers would contribute to the settlement reached in the Term Sheet.54 The

Insureds also provided the Insurers with information requested in the November 2016

teleconference—damage analyses by Dole’s consulting expert—and asked them to let the




45
   Id.
46
   Id.
47
   Woods Aff., ¶ 30.
48
   Id.
49
   Id., ¶ 32-35.
50
   Id.
51
   Id., ¶ 38.
52
   Id., ¶ 39.
53
   Id.
54
   Id.

                                                 8
insureds know if they needed any additional information.55 According to the Insureds, none of

the Insurers requested additional information.56

        The Insurers each responded to the request that it contribute to fund the settlement.57 The

Insureds did not fund the settlement.58 The Insureds negotiated a final settlement (the “San

Antonio Settlement”) with the San Antonio Action plaintiffs.59 The Delaware District Court

entered a Judgment Approving Class Action Settlement, finding that the settlement was “in all

respects, fair, reasonable, and adequate to the Settlement Class.”60

        The Insurers did not provide prior written consent for (i) the Settlement or (ii) the San

Antonio Action Settlement.

                                  III. PARTIES’ CONTENTIONS

        A.      The Insurers

        In the Motion, the Insurers present a number of arguments. The Insurers contend that

they do not have to indemnify the Insureds because: (i) Delaware and California law does not

permit indemnification under the facts here; (ii) the Insureds failed to obtain written consent

prior to settling certain litigations; and (iii) the Insureds failed to cooperate with the Insurers. In

addition, the Insurers also ask the Court to grant judgment on the Insureds’ fraud in the

inducement and bad faith claims, contending that the such claims cannot exist when there is no

duty to indemnify. The Insurers also ask the Court to apply the doctrine of collateral estoppel, or

issue preclusion, with respect to matters adjudicated in and addressed by the Chancery Court in

the Memorandum Opinion.61


55
   Id., ¶ 41.
56
   Id., ¶ 42.
57
   Id., ¶ 44.
58
   Id.
59
   Mirchell Aff., ¶ 10.
60
   Id., Ex. G.
61
   C.A. No. 8703-VCL, 2015 WL 5052214 (Del. Ch. Aug. 27, 2015).

                                                    9
         B.       The Insureds

         The Insureds oppose the Motion, contending that the Insurers’ arguments “miss the

mark.” In the Opposition, the Insureds contend that the Court has already held that the

Memorandum Opinion has no collateral estoppel effect and, therefore, cannot support a granting

of summary judgment. The Insureds claim that Delaware law applies to the Policies, and that

Delaware public policy does not bar indemnification here. The Insureds also argue that the facts

do not support summary judgment on the issues of failure to obtain consent or cooperation.

Additionally, the Insureds claim that the Motion is premature on their tort claims because there

has been no discovery in the civil proceeding.

                                        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.”62

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.63 If, however, the record reveals that material facts are in dispute,

or if the factual 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.64




62
   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).
63
   Id.
64
   See 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.”).

                                                           10
         The moving party bears the initial burden of demonstrating that the undisputed facts

support his claims or defenses.65 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 the resolution by

the ultimate fact-finder.66

                                                V. DISCUSSION

         A. THE COLLATERAL ESTOPPEL DOCTRINE APPLIES HERE WITH RESPECT TO THE
            INSUREDS AND THE MEMORANDUM OPINION.

         The Court will look to Delaware law to determine whether the collateral estoppel

doctrine applies to the Insureds on factual issues litigated and decided by the Memorandum

Opinion.67 In Delaware, res judicata refers to claim preclusion and collateral estoppel refers to

issue preclusion.68 The two principles are distinct. “Under the doctrine of res judicata, a

judgment in a prior suit involving the same parties, or persons in privity with them, bars a second

suit on the same cause of action.”69 The doctrine of collateral estoppel prohibits a party from

relitigating a factual issue that was adjudicated previously.70

         Under collateral estoppel “a judgment in a prior suit does not operate to bar a subsequent

cause of action but rather precludes the relitigation of a factual issue which was litigated and

decided in in prior suit between the same parties.”71 “[O]nly parties to the former judgment or

their privies may take advantage of or be barred by it.”72 “A privy is one who, after the rendition




65
   See Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole, 180 A.2d at 470).
66
   See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
67
   See RESTATEMENT (SECOND) OF CONFLICTS OF LAW § 95 cmt (e) (“the local law of the State where the judgment
was rendered determines the collateral estoppel effect of the judgment in subsequent litigation”). Both parties cite to
Delaware authority when arguing collateral estoppel.
68
   See Dover Historical Soc., Inc. v. City of Dover Planning Comm’n, 902 A.2d 1084, 1092 (Del. 2006) (stating res
judicata test); M.G. Bancorporation v. Le Beau, 737 A.2d 513, 520 (Del. 1999) (stating collateral estoppel test).
69
   Khols v. Kenetech Corp., 791 A.2d 763, 767 (Del. Ch. 2000), aff’d 794 A.2d 1160 (Del. 2002) (emphasis added).
70
   M.G. Bancorporation, 737 A.2d at 520.
71
   Id.
72
   Columbia Cas. Co. v. Playtex FP, Inc., 584 A.2d 1214, 1217 (Del. 1991).

                                                          11
of the judgment, has acquired an interest in the subject matter affected by the judgment through

or under one of the parties. . . .”73 The Court expanded the notion and found that “privity, need

not be present in order to apply collateral estoppel . . . [if the party] had a full and fair

opportunity to present [its] case.”74 In order to adopt the previous court’s ruling on an issue, the

party wishing to enforce that ruling must show “that (1) a question of fact essential to the

judgment (2) be litigated and (3) determined (4) by a valid and final judgment.”75 Further, new

issues being estopped must involve a party from the first case and that party must have had a

“full and fair opportunity to litigate the issue in the prior action.”76

        Collateral estoppel only prevents particular issues previously litigated from being

challenged. In Stephenson v. Capano Dev., Inc., the plaintiff filed several claims in the Court of

Chancery.77 The Chancellor refused to consider plaintiff’s fraud claim because it was untimely

filed.78 Following this decision, the plaintiff filed suit in the Superior Court based on the

defendant’s fraud.79 The Superior Court judge found that any findings of fact would receive

collateral estoppel effect, but res judicata was inapplicable because the Chancellor did not

address the legal merits of the plaintiff’s fraud claim for procedural reasons.80




73
   Id.
74
   Michell v. Cook, 2001 WL 1729136, at *2 (Del. Super. Dec. 10, 2001) (citing Chrysler Corp., v. New Castle
County, 464 A.2d 75, 79 (Del. Super. 1983)).
75
   M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 520 (Del. 1999).
76
   Id; Betts v. Townsends, Inc., 765 A.2d 531, 535 (Del. 2000).
77
   462 A.2d 1069, 1070 (Del. 1983).
78
   Id.
79
   Id.
80
   Id. at 1072-73. See Acierno v. New Castle County, 679 A.2d 455 (Del. 1996) (Delaware Supreme Court holding
that the Court of Chancery was not required to adopt the federal court’s determination because “the issues presented
to the two courts [were] not the same.” Court of Chancery decided a procedural issue. The District Court decided a
constitutional issue.). But see M.G. Bancorporation, Inc., 737 A.2d at 520 (finding that relitigation of a court’s
factual finding rejecting a value of a share was barred by collateral estoppel).

                                                        12
         Generally, a dismissal with prejudice has the effect of a final adjudication on the

merits.”81 When parties “voluntarily dismiss[ ] the action, knowing that they either received the

full relief to which they were legally entitled, or that they waived their rights to seek further

relief, the dismissal is tantamount to a judgment on the merits.”82 “[F]inality is neither a precise

nor a rigid concept.”83 “It is widely recognized that the finality requirement is less stringent for

issue preclusion than for claim preclusion.”84 “[F]inality may mean little more than that the

litigation of a particular issue has reached such a stage that a court sees no really good reason for

permitting it to be litigated again”85 or include “any prior adjudication of an issue in another

action that is determined to be sufficiently firm to be accorded conclusive effect.”86

         The Delaware Supreme Court has found that “once interlocutory rulings achieve finality

at the trial level, through incorporation in the final judgment of the trial court, review of those

subsidiary rulings must be achieved through a timely appeal of that final order.”87

         The Court put the parties on notice during the May 1, 2017 Scheduling Conference (the

“Scheduling Conference”) that the Court might apply collateral estoppel with respect to the

Memorandum Opinion.88 During the Scheduling Conference, the Court told the parties that the

Court is “not going to re-litigate matters that have been litigated in a case.”89 “The question was

whether it’s a final non-appealable order, that’s different as to whether a judge found a fact after



81
   Wash. H. Condominum Assn. of Unit Owners v. Daystar Sills, Inc., 2017 WL 3412079, at *22 (Del. Super. Aug.
8, 2017) (quoting Fields v. Frazier, 2005 WL 319382, at *2 (Del. Super. Ct. Nov. 21, 2005)) (internal quotations
omitted).
82
   Fields, 2005 WL 319382, at *2.
83
   In re Natl. Auto Credit, Inc. - Shareholders Litig., 2004 WL 1859825, at *3 (Del. Ch. Aug. 3, 2004).
84
   Id. at *3 n.19 (quoting Christo v. Padgett, 223 F.3d 1324, 1339 (11th Cir. 2000)).
85
   Yucaipa Am. All. Fund I, LP v. SBDRE LLC, 2014 WL 5509787, at *12 n.51 (Del. Ch. Oct. 31, 2014) (quoting
Free Speech Coal, Inc. v. Att’y Gen. of U.S., 677 F.3d 519, 541 (3d Cir. 2012)).
86
   Yucaipa, 2014 WL 5509787, at *12 n.51 (quoting Restatement (Second) of Judgments § 13).
87
   Tyson Foods, Inc. v. Aetos Corp., 809 A.2d 575, 580 (Del. 2002) (finding that a lengthy opinion on the merits of a
party’s claim became final under the final judgment rule once the parties consummated the settlement).
88
   Reply, Ex. 20.
89
   Id. at 15.

                                                         13
hearing it.”90 “[I]t would be at least collateral estoppel, and I’m not going to put in front of a

jury a fact that a judge has had on the same question.”91 “That’s a big difference between

finding that contractually you agreed to a final non-appealable order. . . .”92 “I’m not going to re-

litigate an issue that somebody testifies under oath and Vice Chancellor Laster makes findings, a

very long specific decision. . . .”93

        Vice Chancellor Laster’s Memorandum Opinion is sufficiently firm to be accorded

conclusive effect for collateral estoppel. Vice Chancellor Laster issued a 106-page opinion

discussing Mr. Murdock’s and Mr. Carter’s breach of the duty of loyalty after a trial. The trial

lasted nine days and involved: (i) the introduction of 1,800 exhibits; (ii) the live testimony of ten

fact witnesses and three expert witnesses; (iv) the lodging of twenty-nine depositions; (v) a 419

paragraph pre-trial order; and (vi) pre- and post-trial briefing that totaled 668 pages. 94 Although

the Memorandum Opinion may not be sufficient under res judiciata, the lengthy opinion goes

into detail about the findings of Mr. Murdock’s fraudulent activities that breached the duty of

loyalty to the shareholders. Vice Chancellor Laster specifically found that “Murdock and

Carter’s conduct throughout the Committee process . . . demonstrated that their actions were not

innocent or inadvertent, but rather intentional and in bad faith.”95 Further, the Memorandum

Opinion finds that defendants, including Mr. Murdock, “engaged in fraud.”96

        As to the finality of the Memorandum Opinion, Vice Chancellor Laster ends the

Memorandum Opinion by saying that the “parties will confer and advise the court as to any




90
   Id.
91
   Id. at 15-16.
92
   Id. at 16.
93
   Id.
94
   Id. at *2.
95
   In re Dole Food Co., Stockholder Litig., 2015 WL 5052214, at *2.
96
   Id. at *46.

                                                       14
issues that remain to be addressed.”97 After Vice Chancellor Laster issued the Memorandum

Opinion, the Parties reached the Settlement. The Memorandum Opinion is sufficiently definite

to be a final judgment on the merits. The 106 page opinion talks in detail about the scheme used

by Mr. Murdock and his co-defendants to drive down the price of Dole. Additionally, the

Settlement rendered the Memorandum Opinion final for collateral estoppel.98

        The Court holds that collateral estoppel vis a vis the Memorandum Opinion applies to this

civil action and the Motion. First, factual issues relevant to this civil action and the Motion are

factual issues decided by the Memorandum Opinion. Second, the Memorandum Opinion is

“finally adjudicated” for purposes of collateral estoppel. Third, the Insureds were parties to the

litigation memorialized in the Memorandum Opinion. Fourth, the Insureds have had their day in

court on the facts addressed in the Memorandum Opinion. For these reasons, the Court will

employ collateral estoppel against the Insureds on factual issues determined in the Memorandum

Opinion to the extent those factual issues are relevant to issues in this civil action.

        B. DELAWARE LAW APPLIES TO THIS CIVIL ACTION AND NEITHER DELAWARE LAW
           NOR DELAWARE PUBLIC POLICY PRECLUDES INDEMNIFICATION HERE.

        i. Choice of Law

        The Policies do not contain a choice of law provision. The Insurers argue that California

law applies, noting that Dole’s management and board are located in California, and that Mr.

Murdock and Mr. Carter are located in California. The Insurers also contend that the underlying

facts supporting the Memorandum Decision mostly occurred in California. The Insureds claim

that Delaware law applies, arguing that Dole is a Delaware corporation and Mr. Murdock and

Mr. Carter were directors and officers of Dole. The Insureds go on to argue that Delaware has a


97
  Id. at *47.
98
  See Defillipo v. Quarles, 2010 WL 702310, at *3 (Del. Super. Feb. 26, 2010) (applying collateral estoppel effect
to an order resolving a motion for partial summary judgment).

                                                        15
direct interest because (i) Dole had the authority to obtain the Policies under Delaware law, 8

Del. C. § 145(g), and (ii) Delaware law ultimately determines whether an officer or director has

violated duties owed to the company, its shareholders and its investors.

        The Court did not address or decide whether Delaware or California law would apply to

this civil action in the MTD Opinion. For purposes of the Motion, the Court must make such a

determination. As set forth below, the Court holds that Delaware law applies in this civil action.

        The first step in a conflict-of-law analysis is to decide whether a conflict truly exists. The

Court must compare the competing jurisdictions to determine whether the laws actually conflict

on a relevant point.”99 “In determining whether there is an actual conflict, Delaware state courts

. . . answer a single and simple inquiry: does application of the competing laws yield the same

result?”100 If the answer is yes, then “the Court should avoid the choice-of-law analysis

altogether.”101

        Further, the laws of competing jurisdictions must actually conflict to require an analysis.

When one state’s laws failed to address a particular issue, it cannot conflict with the laws of

another state.102 Where one state fails to address a particular issue, the Court should apply the

settled law.103

        The parties disagree about what law applies to this case. Plaintiffs argue that California

law applies. The Defendants argue that Delaware law applies.




99
   Vichi v. Koninklijke Philips Electronics, N.V., 85 A.3d 725, 773 (Del. Ch. 2014).
100
    Laugell v. Bell Helicopter Textron, Inc., 2013 WL 5460164, at *2 (Del. Super. Oct. 1, 2013).
101
    Vichi, 85 A.3d at 773.
102
    See Mills Ltd. P’ship v. Liberty Mut. Ins. Co., 2010 WL 8250837, at * 4 (Del. Super. Nov. 5, 2010); Deuley v.
DanCorp Int’l, Inc., 8 A.3d 1156, 1161 (Del. 2010).
103
    See Mills Ltd. Partn., 2010 WL 8250837, at *4 (applying Delaware law to exhaustion issue since Delaware’s
approach to exhaustion is in the mainstream and Virginia law had not addressed the issue before).

                                                        16
        As the forum state, Delaware applies its own choice-of-law rules.104 The Court must use

the most significant relationship test set forth in Restatement (Second) of Conflict of Laws

Section 188.105 Section 188 provides:

        (1) The rights and duties of the parties with respect to an issue in contract are
            determined by the local law of the state which, with respect to that issue, has
            the most significant relationship to the transaction and the parties under the
            principles stated in [Restatement (Second) of Conflict of Laws] § 6.

        (2) In the absence of an effective choice of law by the parties (see § 187), the
            contacts to be taken into account in applying the principles of § 6 to determine
            the law applicable to an issue include:

             (a) the place of contracting,

             (b) the place of negotiation of the contract,

             (c) the place of performance,

             (d) the location of the subject matter of the contract, and

             (e) the domicil[e], residence, nationality, place of incorporation and place of
               business of the parties.

        The Court evaluates the contacts based on their relative importance with each particular

issue. 106

        “The state where the thing or the risk is located will have a natural interest in transactions

affecting it.”107 Restatement (Second) of Conflict of Laws § 6 also enumerates several factors to

relevant to the choice of law:

        (a) the needs of the interstate and international systems,

        (b) the relevant policies of the forum,




104
    Shook & Fletcher Asbestos Settlement Tr. v. Safety Nat'l Cas. Corp., 2005 WL 2436193, at *2 (Del. Super. Ct.
Sept. 29, 2005), aff'd, 909 A.2d 125 (Del. 2006).
105
    Oliver B. Cannon and Son, Inc. v. Dorr–Oliver, Inc., 394 A.2d 1160, 1166 (Del. 1978).
106
    RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188.
107
    Id. at § 188, cmt. e.

                                                        17
         (c) the relevant policies of other interested states and the relative interests of those
             states in the determination of the particular issue,

         (d) the protection of justified expectations,

         (e) the basic policies underlying the particular field of law,

         (f) certainty, predictability and uniformity of result, and

         (g) ease in the determination and application of the law to be applied.108

         “In complex insurance cases with risks in multiple states such as this one, Delaware

courts have generally held that the most significant factor for the conflict-of-law analysis is the

principal place of business of the insured because it is ‘the situs which link[s] all the parties

together.’”109 However, when the “risk is the directors’ and officers’ honesty and fidelity to the

corporation, and the choice of law is between the headquarters or the state of incorporation, the

state of incorporation has the most significant relationship.”110 The Court notes that the first

legal principle relied upon involves insurance cases with general comprehensive liability

policies. The second legal principle is a situation, like the one here, involving director and

officer liability insurance coverage.

         Delaware and California law conflict regarding whether an insurance policy covers a

director or officer’s willful or wanton actions.111 As the Insurers note, Cal. Ins. Code § 533



108
    Id. at § 6.
109
    Catlin Specialty Ins. Co. v. CBL & Assoc. Properties, Inc., 2017 WL 4784432, at *5 (Del. Super Sept. 20, 2017)
(citing Monsanto Co. v. Aetna Cas. & Sur. Co., 1991 WL 236936 (Del. Super. Ct. Oct. 29, 1991)). See also Liggett
Group Inc. v. Affiliated RM Ins. Co., 788 A.2d 134 (Del. Super. 2001)(providing in depth analysis of complex
insurance case with risks in multiple states).
110
    Mills Ltd. Partn. v. Liberty Mut. Ins. Co., C.A. No. 09C-11-174 FSS, 2010 WL 8250837, at *6 (Del. Super. Nov.
5, 2010); see also 11 Del. C. § 3114 (every resident or nonresident who “accepts election or appointment as a
director, trustee or member of the governing body of a corporation organized under the laws of this state . . . shall by
such acceptance” authorize the registered agent or Secretary of State to accept service on behalf of the director,
trustee or member and such acceptance shall be the equivalent of service made upon the director, trustee or member
within the state). But see Catlin Specialty Ins. Co. v. CBL & Assoc. Properties, Inc., 2017 WL 4784432, at *1, 4-5
(Del. Super. Sept. 20, 2017) (applying the law of the state of incorporation for the insurance policy protecting the
company from a fraudulent scheme to overcharge consumers not involving a D&O policy).
111
    See Part VI.B.

                                                          18
(“Section 533”) provides that “[a]n insurer is not liable for a loss caused by the willful act of the

insured’s agents or others.” Section 533 is “an implied exclusionary clause which by statute is

to be read into all insurance policies,” regardless of the policy’s language.112 The Insurers rely

upon Section 533 and the Memorandum Opinion, and contend that the Insureds have committed

fraud to affect the purchase price of stock and the Insurers cannot be liable for a loss related to

that fraud.

         Delaware does not have a statute similar to Section 533. However, Delaware law does

provide that:

         …a corporation shall have the power to purchase and maintain insurance on behalf of any
         person who is or was a director, officer, employee or agent of the corporation, . . . against
         any liability asserted against such person and incurred by such person in any such capacity,
         or arising out of such person’s status as such, whether or not the corporation would have
         the power to indemnify such person against such liability under this section. 113

Under Delaware law, therefore, a corporation is permitted to purchase insurance against any

liability asserted against an officer or director even when the corporation would not be able to

otherwise indemnify that person under 8 Del. C. § 145. This would include insurance for a

breach of the duty of loyalty—the determination made in the Memorandum Opinion.

         The Insurers rely heavily on Liggett Group Inc. v. Affiliated FM Ins. Co.114 That is a

very well-reasoned opinion and strong authority on the issue of choice of law in complex

insurance coverage situations. Liggett involves defense and indemnification claims arising out

of more than one-thousand tobacco health related claims filed throughout the United States.115

However, Liggett discusses choice of law as it relates to general comprehensive liability policies

and not an officer and director insurance policy.116


112
    J.C. Penny Cas. Ins. Co. v. M.K., 278 Cal. Rptr. 64, 69 (1991), cert. denied, 502 U.S. 902 (1991).
113
    8 Del. C. § 145(g) (emphasis added).
114
    788 A.2d 134 (Del. Super. 2001).
115
    Id. at 136.
116
    Id.

                                                         19
        The Court finds that the better authority for this situation is Mills Ltd. Partnership v.

Liberty Mut. Ins. Co.117 Mills Ltd. Partnership addresses the choice of law issue in the context

of an officer and director insurance policy.118 The underlying loss involved the officers and

directors of Mills Ltd. Partnership (“Mills”) using their positions to defraud investors in various

ways, including lying about Mills’ financial pictures.119 Mills eventually admitted massive

fraudulent overstatements of income, shareholders’ equity and partners’ capital for close to six

years.120

            In Mills Ltd. Partnership, the Court needed to determine whether Virginia or Delaware

law applied.121 Mills was a Delaware corporation. Mills’ headquarters was in Virginia and,

most likely, Virginia was where most of the fraud occurred. As in this case, the insurance

companies failed to provide a choice of law provision in the policy. The Court undertook a

choice of law analysis using the Restatement.122 The Court held that:

        When the insured risk is the directors’ and officers’ “honesty and fidelity” to the
        corporation, and the choice of law is between the headquarters or the state of
        incorporation, the state of incorporation has the most significant relationship.123

        The Court found that Mills insured its officers and directors under Delaware law—8 Del.

C. § 145(g).124 The Court noted that, ultimately, Delaware law would determine whether an

officer or director had breached a duty owed to Mills, Mills’ shareholders, and Mills’

investors.125 Unlike Liggett, the Court noted that the underlying suit did not involve products




117
    C.A. No. 09C-11-174 FSS, 2010 WL 8250837 (Del. Super. Nov. 5, 2010).
118
    Id., at *1.
119
    Id., at *2.
120
    Id.
121
    Id., at *5-6.
122
    Id.
123
    Id., at *6.
124
    Id.
125
    Id.

                                                    20
liability, consumer fraud or an embezzlement situation.126 In Mills Ltd. Partnership, the Court

found that the place of incorporation is a more significant contact because “[w]hen the conduct

of a corporation’s directors and officers is centrally implicated, the place of incorporation is

important.”127

          In this case, the Policies covered directors, officers and corporate liability. The Policies

do not contain a choice of law provision. In addition, Dole is a Delaware corporation and Mr.

Murdock and Mr. Carter are directors and officers of a Delaware corporation. The suit was

brought by stockholders of Dole in the Chancery Court. The situs of Dole’s stock is

Delaware.128 The Chancery Court applied Delaware law in holding that the duty of loyalty had

been breached and that the value of Dole’s stock had been artificially decreased due to fraudulent

conduct. Under these facts, Delaware and not California has the more significant interest and

Delaware law will apply in this civil action

             ii. Delaware Public Policy Does Not Prohibit Insurers from Paying for Insureds’
                Fraud

         A court may not enforce an insurance provision that is contrary to Delaware public

policy.129 A court will not void an otherwise valid contract provision based on public policy “in

the absence of clear indicia that such a policy actually exists.”130 The Court has found no

Delaware decision that holds that a corporation cannot obtain directors and officers liability




126
    Id.
127
    Id. (“Although Virginia also allows its corporations to insure themselves and their directors and officers, Virginia
has, at best, an indirect interest in whether Delaware corporations insure their directors and officers. Again, the point
is that Liberty Mutual insured Mills’s directors and officers under Delaware law. Those directors and officers caused
a Delaware corporation to defraud its investors, which made the corporation liable and triggered the corporation’s D
& O policy. In a case like this, what difference does headquarters’ location make to the company or the people
involved?”).
128
    8 Del. C. § 169.
129
    See J.S. Alberici Construction Co. v. Mid-West Conveyor Co., 750 A.2d 518 (Del. 2000).
130
    Whalen v. On-Deck, Inc., 514 A.2d 1072, 1074 (Del. 1986).

                                                          21
insurance that covers breach of loyalty based on fraud.131 Moreover, Section 145(g) of Title 8 of

the Delaware Code provides that a corporation has the power to purchase and maintain insurance

on behalf of directors and officers against any liability that could be asserted against them.132

         In Whalen v. ON-Deck, Inc., the Delaware Supreme Court found that Delaware public

policy did not prohibit insurance provisions that cover punitive damages.133 The Court reasoned

that although the “purposes of punitive damages would be frustrated if such damages were

insurable, we cannot infer from that concern a policy against such insurance.”134 A person

insured for punitive damages could be “punished through higher insurance premiums or the loss

of insurance altogether.”135 Finally, a court will not void an otherwise valid provision in “the

absence of clear indicia that such a policy actually exists.”136

         In this case, any alleged fraud would be reckless or knowing conduct.137 Although it may

strain public policy to allow a director to collect insurance on a fraud, it does not appear to

explicitly prohibited by Delaware statutory law. In fact, the Whalen court found that public

policy did not prohibit insurance companies from covering punitive damages. Punitive damages



131
    While the issue was not addressed in Mills Ltd. Partnership, the insureds were seeking indemnification for
breach of loyalty based upon fraudulent concealment. Although not addressed, the Court did not hold that
indemnification was not available due to the breach of loyalty, and none of the excess layer insurers sought to avoid
coverage on a public policy argument. In fact, the primary coverage insurers indemnified the insureds. See Mills
Ltd. Partnership, 2010 WL 8250837, at *1-4.
132
    8 Del. C. §145(g).
133
    Whalen, 514 A.2d at 1074.
134
    Id.
135
    Id.
136
    Id; see also J.S. Alberici, 750 A.2d at 520-21 (finding that a contractual provision requiring anyone to indemnify
another party for the other party’s own negligence in a contractor/subcontractor relationship violates Delaware
public policy because the statute explicitly states that such action “is against public policy and is void and
unenforceable.”); Yoder v. Delmarva Power & Light Co., 2003 WL 26066796, at *4 (Del. Super. Dec. 31, 2003)
(distinguishing the case, because “no statute specifically provided that such provisions were against public policy
and void and unenforceable. . . .”).
137
    See Hauspie v. Stonington Partners, Inc., 945 A.2d 584, 586 (Del. 2008) (listing the elements of fraud as: “(1) a
false representation, usually one of fact . . .; (2) the defendant’s knowledge or belief that the representation was
false, or was made with reckless indifference to the truth; (3) an intent to induce the plaintiff to act or to refrain from
acting; (4) the plaintiff’s action or inaction taken in justifiable reliance upon the representation; and (5) damage to
the plaintiff as a result of such reliance.”).

                                                            22
are awarded for willful or wanton actions.138 Therefore, Delaware public policy does not clearly

prohibit Insurers from indemnifying the Insureds’ fraud. As such, the Court will not grant the

Motion on a claim that indemnification would violate Delaware public policy.

        C. SUMMARY JUDGMENT IS PREMATURE ON THE ISSUES OF PRIOR WRITTEN
           CONSENT, COOPERATION AND THE BAD FAITH COUNTERCLAIM

             i. Under Delaware Law, the Insurers Have Not Shown Sufficient Prejudice From
               the Insureds’ Violation of the Written Consent Provision to obtain judgment at
               this stage of the proceedings.

        This Court discussed how to construe an insurance policy in the MTD Decision.139

Insurance policies “are construed as a whole, to give effect to the parties' intentions.”140 In other

words, the Court is to interpret the insurance policy through a reading of all of the relevant

provisions of the contract as a whole, “and not on any single passage in isolation.”141 Moreover,

an interpretation that gives effect to all the terms of an insurance policy is preferable to any

interpretation that would result in a conclusion that some terms are uselessly repetitive.142 The

Court is also to interpret an insurance policy in a manner that does not render any provisions

“illusory or meaningless.”143

        Where the language of an insurance policy is “clear and unambiguous, the parties' intent

is ascertained by giving the language its ordinary and usual meaning.”144 Ambiguous insurance

policy language is construed in the insured's favor—i.e., under the doctrine of contra

proferentem, the language of an insurance policy must be construed most strongly against the




138
    Jardel Co., Inc. v. Hughes, 523 A.2d 518, 530 (Del. 1987).
139
    See Murdock, 2016 WL 7414218, at *4.
140
    AT&T Corp. v. Faraday Capital Ltd., 918 A.2d 1104, 1108 (Del. 2007).
141
    O'Brien v. Progressive Northern Ins., 785 A.2d 281, 287 (Del. 2001). See also Chicago Bridge & Iron Co. N. U,
v. Westinghouse Elec. Co., 166 A.3d 912, 912 (Del. 2017).
142
    O'Brien, 785 A.2d at 287.
143
    Id. (quoting from Sonitrol Holding Co. v. Marceau Investissements, 607 A.2d 1177, 1183 (Del. Super. 1992)).
144
    Faraday Capital Ltd., 918 A.2d at 1108.

                                                       23
insurance company that drafted the policy.145 This is because insurance contracts are contracts

of adhesion.146 An insurance policy is ambiguous when the provisions at issue “are reasonably

or fairly susceptible of different interpretations or may have two or more different meanings.”147

An insurance policy is not ambiguous merely because the parties do not agree on the proper

construction.148

        Coverage language is interpreted broadly to protect the insured's objectively reasonable

expectations.149 Exclusionary clauses, on the other hand, are “accorded a strict and narrow

construction.”150 Even so, courts will give effect to exclusionary language where it is found to

be “specific,” “clear,” “plain,” “conspicuous” and “not contrary to public policy.”151 The Court

also recognizes that case law exists that permits judicial application of the reasonable expectation

doctrine to fulfill an insured's expectations even where those expectations contravene the

unambiguous, plain meaning of exclusionary clauses.152

        The Policy states that “[i]t shall be the Insureds’ duty and not the Insurer’s duty to defend

Claims, including the investigation and evaluation of any Shareholder Derivative Demand.”153



145
    O'Brien, 785 A.2d at 288; see also Weiner v. Selective Way Ins. Co., 793 A.2d 434, 440 (Del. Super. 2002); AIU
Insurance Co., 729 P.2d at 1264–65.
146
    See State Farm Mut. Auto. Ins. Co. v. Johnson, 320 A.2d 345, 347 (Del. 1974) (holding that an insurance contract
is “an adhesion contract, not a truly consensual agreement.”). See also J.C. Penney Cas. Ins. Co. v. M.K., 804 P.2d
689, 694, n. 9 (Cal. 1991) (“The premise of the strict-construction rule is that an insurance policy is an adhesion
contract drafted by the insurer[.]”).
147
    Weiner, 793 A.2d at 440; see also Waller v. Truck Ins. Exchange, Inc., 900 P.2d 619, 627 (Cal. 1995).
148
    O'Brien, 785 A.2d at 288; see also Waller, 900 P.2d at 627 (“Courts will not strain to create an ambiguity where
none exists.”).
149
    AT&T Corp. v. Clarendon Am. Ins. Co., C.A. No. 04C–11–167(JRJ), 2006 WL 1382268, at *9 (Del. Super. April
25, 2006), rev'd in part on other grounds, AT&T Corp. v. Faraday Capital Ltd., 918 A.2d 1104 (Del. 2007). See
also Safeco Ins. Co. of America, 28 P.3d at 893.
150
    AT&T Corp., 2006 WL 1382268, at *9; see also E.M.M.I. Inc. v. Zurich American Ins. Co., 84 P.3d 385, 389
(Cal. 2004).
151
    AT&T Corp., 2006 WL 1382268, at *9; see also MacKinnon v. Truck Ins. Exchange, 73 P.3d 1205, 1213 (Cal.
2003).
152
    AT&T Corp., 2006 WL 1382268, at *9, n. 123 (citing and reviewing cases that utilized the “reasonable
expectation doctrine”).
153
    Motion, Ex 1.

                                                        24
Further, “Insureds shall not settle any Claim, select any defense counsel, incur any Defense

Costs, admit or assume any liability, stipulate to any judgment without the Insurer’s prior written

consent, which shall not be unreasonably withheld, or otherwise assume any contractual

obligation.”154

        Consent to settle provisions do not provide an insurer an absolute right to veto a

reasonable settlement.155 Rather, the main purpose of the consent provision is to protect the

insurer from prejudice.156 An insurer is not free from liability in an “absence of a showing that

the breach caused the insurer to suffer prejudice.”157

        A party may demonstrate prejudice on the face of pleadings.158 If there are issues of

material fact, the Court may find a presumption of prejudice that is rebuttable and is not properly

resolved conclusively on a motion for summary judgment.159 However, the Court may find a

lack of prejudice on a motion for summary judgment.160

        The Insurers have demonstrated that they did not provide prior written consent to the

Settlement or the San Antonio Action Settlement. However, the Insurers have not shown

prejudice. Moreover, there may be a factual issue as to whether prior written consent was

unreasonably withheld. The Insurers argue that the Insured prejudiced the Insurers by settling

the claim for 100% of the value of the case. However, the Insurers have not shown how they

would have settled the case differently or what would have changed if they had been involved in




154
    Id.
155
    Sun-Times Media Group, Inc. v. Royal & Sunalliance Ins. Co. of Canada, 2007 WL 1811265, at *12 (Del. Super.
June 20, 2007).
156
    Id.
157
    Allstate Ins. Co. v. Fie, 2006 WL 1520088, at *3 (Del. Super. Mar. 9, 2006).
158
    Id. at *4 (citing Hall v. Allstate Ins. Co., 1985 WL 1137299 (Del. Super. Jan. 11, 1985)).
159
    Id.
160
    U-Haul Co. of Penn. v. Utica Mut. Ins. Co., 2013 WL 1726192, at *4 (D.Del. Mar. 28, 2013), aff’d, 565 Fed.
Appx. 87 (3d Cir. 2014).

                                                      25
the case from the beginning. Further, the Insureds argue that they put the Insurers on notice and

that the Insurers failed to take any action relating to the litigation and settlements.

        The Insured argue that they sent letters and emails to update the insurers on the progress

of the settlement negotiations.161 Further, the Insureds asked the Insurers to fund a settlement,

confirm that the Insurers had no objections to the settlement, and inform the Insureds of any

concerns.

             ii. The Record is not Developed Enough to Grant Judgment on Issues Relating to
                the Cooperation Clause

        The Cooperation Clause states: “Insureds shall provide the Insurer with all information,

assistance and cooperation which the Insurer reasonably requests and shall do nothing that may

prejudice the Insurer’s potential or actual rights of recovery with respect to Loss paid on account

of a Claim.”162

        Cooperation clauses are “material to the insurance contract and a substantial breach of the

provision by the insured provides a legitimate defense to the insurer if factually proven.”163

Cooperation clauses are meant to “prevent collusion between the insured and the inured party

and to allow the insurer an opportunity to conduct a reasonable investigation of the underlying

claim.”164 If the insured failed to cooperate with the insurer, then the insurer may raise

“noncooperation as a defense to liability for coverage above the statutory minimum.”165




161
    Woods Aff. and Mircheff Aff.
162
    Motion, Ex 1.
163
    Harris v. Prudential Prop. & Cas. Ins., Co., 632 A.2d 1380, 1382 (Del. 1993); see also E.I. du Pont de Nemours
& Co. v. Admiral Ins. Co., 1995 WL 654010, at *8 (Del. Super. Oct. 27, 1995) (stating that “Delaware Courts have
not required a showing of prejudice as a result of a breach of an assistance and cooperation clause. However, . . .
prejudice may have a bearing on the materiality of the breach.”).
164
    Id.
165
    Id. at 1383.

                                                        26
        In E.I. du Pont de Nemours & Co. v. Admiral Ins. Co., the insurers sought summary

judgment against the insured for failing to abide by the assistance and cooperation provision.166

The Court determined that insurers do not need to show prejudice, but prejudice may be a factor

bearing on the materiality of the breach.167 The Court held that the issue was not ripe for

summary judgment because issues of material fact remained.168 The insurers argued that the

insured failed to provide information requested under the clause.169 The insured argued that the

insurers failed to actively become involved in the case.170 This created a material issue of fact.171

        The record is not clear whether there was a substantial breach of the Cooperation Clause.

The Insureds argue that Insurers “neither associated in the defense of these lawsuits nor accepted

coverage.”172 The Insurers never reserved their rights to deny coverage or failed to respond to

the Insureds’ notice relating to the San Antonio lawsuit.173 Since Insurers did not take action, the

Insureds were permitted to make reasonable decisions to defend themselves.174

        Insurers argue that the Insureds breached the Cooperation Clause. Insurers admit that the

Insureds told the Insurers about the discussions to settle the Stockholder Action, but negotiated

the Term Sheet without the Insurers participation. Further, Insureds did not dispute that they

refused requests to provide basic information about the San Antonio action.

        There appears to be a material issue of fact of whether there was a substantial breach of

the cooperation provision.




166
    1995 WL 654010, at *8.
167
    Id.
168
    Id. at *10.
169
    Id. at *9.
170
    Id. at 9-10.
171
    Id. at *10.
172
    Opposition, at 34-35.
173
    Id. at 35.
174
    Id.

                                                 27
                iii. The Record Needs Development on the Bad Faith Counterclaim

           The Motion on Insureds’ counterclaims for bad faith is pre-mature. A denial of a claim

that not validly made cannot be an act of bad faith or unfair dealing.175 The Court may allow a

bad faith claim and award punitive damages if “the denial of coverage is willful or malicious . . .

[and] when the bad faith actions of the insurer are taken with a reckless indifference or malice

toward the plight of the injured . . . [or the] breach is particularly egregious.”176

           The Insurers’ advance a rather well reasoned argument for why coverage to the Insureds

was denied. However, the Insureds demonstrate in the Opposition that the record is incomplete

and the Bad Faith Counterclaim, as plead, provides facts for a bad faith denial of coverage. The

Court notes that discovery has just begun in this civil action. At this point in the case, the Court

cannot find that there are no genuine issues of material fact and that the Insurers are entitled to

judgment as a matter of law. The Insureds will need some time to develop this claim. It does not

appear that the Insurers are seeking a declaratory judgment in bad faith; however, it is premature

for the Court to rule on the issue at this time.

           D. THE FRAUD IN THE INDUCEMENT COUNTERCLAIMS FAIL TO STATE A CLAIM UPON
              WHICH RELIEF CAN BE GRANTED AND ARE DISMISSED WITH PREJUDICE.

           The Insureds each assert a counterclaim for fraud in the inducement (the “Fraudulent

Inducement Counterclaims”). In the Fraudulent Inducement Counterclaims, the Insureds

contend that the Insurers induced Dole to enter into the Policies by representing that the Insurers

would indemnify the Insureds for a Loss unless the Loss arose from deliberate criminal or

fraudulent acts as established by a final and non-appealable adjudication adverse to the Insureds.




175
      See Brandywin Flowers, Inc. v. W. Am. Ins. Co., 1993 WL 133176, at *3 (Del. Super. April 19, 1993).
176
      E.I. DuPont de Nemours and Co. v. Pressman, 679 A.2d 436, 446 (Del. 1996).

                                                          28
The Insureds claims that the Insurers’ representation was false and that the Insurers never

intended to perform under the Policies.

        Delaware courts have consistently held that to successfully plead a fraud claim, the

allegedly defrauded plaintiff must have sustained damages as a result of a defendant's action.”177

The damages allegations may not simply ‘rehash’ the damages allegedly caused by the breach of

contract.”178 Further, Delaware law holds that a plaintiff “cannot ‘bootstrap’ a claim of breach of

contract into a claim of fraud merely by alleging that a contracting party never intended to

perform its obligations.”179 In other words, a plaintiff cannot state a claim for fraud simply by

adding the term “fraudulently induced” to a complaint.180 Thus, couching an alleged failure to

comply with a contract as a failure to disclose an intention to take certain actions arguably

inconsistent with that contract is “exactly the type of bootstrapping this Court will not

entertain.”181

        The Court holds that the Fraudulent Inducement Counterclaims are contract claims

“bootstrapped” into fraudulent inducement claims. The Insureds remedy is for breach of the

Policies and not that Dole and/or the Insureds were fraudulent induced into purchasing the

Policies. The Insureds are couching an alleged failure by the Insurers to comply with a

contract—i.e., the Policies—as a failure to disclose an intention by the Insurers that they would

ever take certain actions consistent with that contract. This is exactly the type of bootstrapping

this Court will not entertain. Accordingly, the Court will DISMISS the Fraudulent Inducement

Counterclaims with prejudice.



177
    ITW Glob. Investments Inc. v. Am. Indus. Partners Capital Fund IV, L.P., 2015 WL 3970908, at *5 (Del. Super.
June 24, 2015).
178
    Id.
179
    Narrowstep, Inc. v. Onstream Media Corp., 2010 WL 5422405, at *15 (Del. Ch. Dec. 22, 2010).
180
    Id.
181
    Id.

                                                       29
                                       VI. CONCLUSION

       For the reasons set forth above, the Court will DENY in part and GRANT in part the

Motion. The Court holds that: (1) the Insureds are collaterally estoppel from relitigating the

Memorandum Opinion’s factual determinations, including those of fraud and disloyalty, to the

extent those factual determinations are relevant to this civil action; (2) Delaware law applies to

the Policies; (3) Delaware law and/or public policy does not excuse the Insurers from

indemnifying for breach of loyalty based upon fraud; (4) the Court will not grant judgment on

the issues of consent, cooperation or the Bad Faith Counterclaim because the factual record has

not yet been developed enough; (5) the Fraudulent Inducement Counterclaims are dismissed with

prejudice for failing to state a claim upon which relief can be granted.

       IT IS SO ORDERED.



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




                                                 30
