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Superior Court of Delaware, New Castle
June 5, 2020, Submitted; September 22, 2020, Decided
C.A. No. N19C-04-150 EMD CCLD
This insurance coverage dispute is assigned to the Complex Commercial Litigation Division of the Court. Plaintiffs Rite Aid Corporation, Rite Aid Hdqtrs. Corp., and Rite Aid of Maryland Inc. d/b/a Mid-Atlantic Support Center (collectively, "Rite Aid") have been sued in over 1,143 lawsuits by governmental entities, third-party payors of medical care, and individuals seeking damages for costs arising out of Rite Aid's distribution of opioids ("Opioid Lawsuits").1 The Opioid Lawsuits allege that Rite Aid knowingly distributed opioids to its own local pharmacies, and separately allege [*3] that local Rite Aid pharmacies improperly dispensed prescription opioids to its customers, which contributed and perpetuated drug abuse, addiction and resulting injuries or death.2 Rite Aid sought coverage for the Opioid Lawsuits under ACE policy XSL G27390900 (the "Policy" or the "2015 Policy") issued by Defendant ACE American Insurance Company ("ACE").3 Chubb (as defined below) denied coverage under the Policy for any of Rite Aid's costs incurred in defending any of the Opioid Lawsuits. In response, Rite Aid initiated this action on April 16, 2019.
On July 19, 2019, Rite Aid filed its Motion for Partial Summary Judgment Requiring Defendant ACE American Insurance Company to Pay or Reimburse Rite Aid's Defense Costs for Opioid Lawsuits ("Rite Aid's Motion"). On January 31, 2020, ACE filed ACE's Memorandum of Law in Opposition to Rite Aid's Motion for Partial Summary Judgment.
Also, on January 31, 2020, two group of non-Chubb insurers filed responses to Rite Aid's Motion: (i) Defendants Great American Assurance Company, Great American Insurance Company of New Yok, Great American Spirit Insurance Company ("Great American Defendants"); and (ii) Defendants Endurance American Insurance Company [*4] ("Endurance") and National Union Fire Insurance Company of Pittsburgh, Pa., ("National Union" and, with Endurance, "Certain Excess Insurer Defendants"). The Great American Defendants filed the Response of Great American Assurance Company, Great American Insurance Company of New Yok, Great American Spirit Insurance Company to Rite Aid's Motion for Partial Summary Judgment Requiring Defendant ACE American Insurance Company to Pay or Reimburse Rite Aid's Defense Costs for Opioid Lawsuits ("Great American Defendants' Response"). The Certain Excess Insurer Defendants filed the Certain Excess Insurer Defendants' Memorandum in Connection with and in Opposition to Plaintiffs' Motion for Partial Summary Judgment Requiring Defendant ACE to Pay Defense Costs ("Certain Excess Insurer Defendants' Response").
On February 21, 2020, Rite Aid filed Rite Aid's Reply Brief in Further Support of its Motion for Partial Summary Judgment Requiring ACE to Pay or Reimburse Rite Aid's Defense Costs for Opioid Lawsuits and Rite Aid's Reply to Certain Insurers' Response to Rite Aid's Motion for Partial Summary Judgment Requiring ACE to Pay or Reimburse Rite Aid's Defense Costs for Opioid Lawsuits ("Rite Aid's [*5] Reply to Certain Insurers' Response"). The Reply to Certain Insurers' Response addressed both the Certain Excess Insurer Defendants' Response and the Great American Defendants' Response.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2020 Del. Super. LEXIS 2797 *
RITE AID CORPORATION; RITE AID HDQTRS. CORP.; and RITE AID OF MARYLAND, INC. d/b/a MID-ATLANTIC CUSTOMER SUPPORT CENTER, Plaintiffs, v. ACE AMERICAN INSURANCE COMPANY; JURY TRIAL ILLINOIS UNION INSURANCE COMPANY; DEMANDED ACE PROPERTY & CASUALTY COMPANY; FEDERAL INSURANCE COMPANY; LEXINGTON INSURANCE COMPANY; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY; AMERICAN ZURICH INSURANCE COMPANY; CONTINENTAL INSURANCE COMPANY; ENDURANCE AMERICAN INSURANCE COMPANY; GREAT AMERICAN ASSURANCE COMPANY; GREAT AMERICAN INSURANCE COMPANY OF NEW YORK; GREAT AMERICAN SPIRIT INSURANCE COMPANY; LIBERTY INSURANCE UNDERWRITERS, INC.; ST. PAUL FIRE AND MARINE INSURANCE COMPANY; and XL INSURANCE AMERICA, INC., Defendants.
Notice: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Subsequent History: Request denied by Rite Aid Corp. v. Ace Am. Ins. Co., 2020 Del. Super. LEXIS 2831 (Del. Super. Ct., Oct. 13, 2020)
Prior History: [*1] Upon Plaintiffs Rite Aid Corporation, Rite Aid Hdqtrs. Corp., and Rite Aid of Maryland Inc.'s Motion for Partial Summary Judgment. Upon Defendants ACE American Insurance Company, Illinois Union Insurance Company, ACE Property & Casualty Insurance Company, and Federal Insurance Company's Motion for Partial Summary Judgment.
Disposition: GRANTED. DENIED.
opioids, Lawsuits, Track, bodily injury, coverage, damages, insured, occurrence, personal injury, allegations, dispensing, costs, defense costs, duty to defend, government entity, seek damages, addiction, policies, insurance company, Interlineation, pharmacies, injuries, property damage, public nuisance, policy period, diversion, contends, argues, insurance policy, economic loss
Civil Procedure, Pleadings, Amendment of Pleadings, Relation Back, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Judgments, Burdens of Proof, Entitlement as Matter of Law, Burdens of Proof, Nonmovant Persuasion & Proof, Movant Persuasion & Proof, Insurance Law, Claim, Contract & Practice Issues, Policy Interpretation, Ordinary & Usual Meanings, Reasonable Expectations, Reasonable Person, Plain Language, Obligations of Parties, Insurers, Allegations in Complaints, Property Insurance, Obligations, Duty to Defend, Liability & Performance Standards, Good Faith & Fair Dealing, Business Insurance, Commercial General Liability Insurance, Ambiguous Terms, Construction Against Insurers, Federal & State Interrelationships, Choice of Law, Governmental Interests, Coverage, Bodily Injuries, Torts, Compensatory Damages, Types of Losses, Economic Losses, Remedies, Damages, Compensatory Damages, Occurrences, Elements, Causation, Concurrent Causation, Asbestos Claims, Triggers, Multiple Triggers, Claims Made Policies, Occurrence Policies, Continuous Triggers, Known Loss Doctrine