          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                        IN AND FOR NEW CASTLE COUNTY


RSUI IDEMNITY COMPANY,                       )
                                             )
               Plaintiff,                    )
                                             )
               v.                            )      C.A. No. N13C-10-096 MMJ CCLD
                                             )
SEMPRIS, LLC d/b/a BUDGET                    )
SAVERS AND PROVELL, INC.                     )
f/k/a BUDGET SAVERS                          )
                                             )
               Defendants.                   )



                              Submitted : November 24, 2014
                                Decided: December 3, 2014

                      ORDER DENYING LEAVE TO APPEAL
                       FROM INTERLOCUTORY ORDER

       (1)     Plaintiff RSUI Indemnity Company has moved for an order certifying

an interlocutory appeal to the Delaware Supreme Court. The determination of whether

to certify an interlocutory appeal lies within the discretion of the Court and is

analyzed under the criteria set forth in Supreme Court Rule 42(b).1 An interlocutory

appeal will not be certified unless the Court finds that its decision: (1) determines a

substantial issue; (2) establishes a legal right; and (3) satisfies one of the five criteria


1
 See, e.g., Tortuga Cas. Co. v. Nat’l Fire Ins. Co. of Pittsburgh, 1991 WL 247813, at *2 (Del.);
State v. Superior Court, 141 A.2d 468, 471 (Del. 1968).
set forth in Rule 42(b)(i)-(v). Under Rule 42(b)(i), the Court may look to the criteria

established by Rule 41.

      (2)   In this action, RSUI seeks a declaratory judgment that RSUI owes no

insurance coverage obligations to Defendant Sempris, LLC. RSUI moved for

summary judgment on certain counts in the complaint and on Sempris’ counterclaims.

Sempris moved for partial summary judgment, seeking a declaration that RSUI has

a duty to defend Sempris in the underlying Toney lawsuit.

      (3)    By Opinion dated September 3, 2014, this Court held:

             No genuine issue of material fact exists that would
             prevent the Court from granting summary judgment.
             Sempris has met its burden to prove the Toney Lawsuit
             falls within the Policy’s grant of coverage. The Court
             finds that the Toney Lawsuit, arising from alleged
             violations of the TCPA, is not related to the Prior
             Lawsuits. The Court finds that RSUI has failed to prove
             that any exception exists that bars coverage for the Toney
             Lawsuit. Counts II, III, IV, V and VI are not dismissed,
             as requested by RSUI. The Court finds that RSUI has a
             duty to defend Sempris in the underlying Toney Lawsuit.
                    THEREFORE, RSUI’s Motion for Summary
             Judgment is hereby DENIED. Sempris’ Motion for
             Partial Summary Judgment is hereby GRANTED.



      (4)    RSUI argues that interlocutory appeal pursuant to Supreme Court

Rule 42(b) is justified because a decision on summary judgment, in the context of

an insurance coverage dispute, constitutes a “substantial issue” and satisfies the
“legal right” requirement of Rule 42(b). Further, RSUI contends that review may

terminate the litigation or otherwise serve considerations of justice pursuant to

Rule 42(b)(v).

           (5)     Sempris opposes certification of the interlocutory appeal. Sempris

argues that the duty to indemnify is independent of the duty to defend and that a

finding that an insurer does not have a duty to defend does not inexorably lead to the

conclusion that no duty to indemnify exists as a matter of law. Sempris also asserts

that RSUI need not indemnify on allegations which, at the end of the case, are found

insufficient to activate the defense duty. Thus, Sempris contends, regardless of the

outcome of any interlocutory appeal, the parties’ indemnification-related claims will

remain unresolved. Finally, Sempris urges that the Court, in the interest of justice,

deny interlocutory appeal so that RSUI will begin to fulfill its obligation to defend

in the ongoing Toney lawsuit.

           (6)     The Court finds that the September 3, 2014 Opinion determines a

substantial issue and establishes a legal rights.2 However, interlocutory review in this

case will not substantially reduce further litigation and otherwise serve considerations

of justice.3 Counts II, III, IV, V and VI of the Complaint were not dismissed. The

ultimate duty to indemnify has not been resolved. The interests of justice weigh in


2
    Supr. Ct. R. 42(b).
3
    See Supr. Ct. R. 42(b)(iii).
favor of RSUI providing a defense in the ongoing underlying Toney lawsuit, pending

the final outcome of the litigation in this Court.

      THEREFORE, RSUI has failed to demonstrate that any of the five criteria set

forth in Delaware Supreme Court Rule 42(b)(i)-(v) require that the Court exercise its

discretion to certify interlocutory appeal. The Application for Certification of an

Interlocutory Appeal is hereby DENIED.

      IT IS SO ORDERED.




                                        /s/_Mary M. Johnston__________
                                        The Honorable Mary M. Johnston
