ConAgra Foods, Inc. v. Lexington Insurance Co.
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SUPERIOR COURT OF THE STATE OF DELAWARE FRED S. SILVERMAN NEW CASTLE COUNTY COURTHOUSE 500 North King Street, Suite 10400 Wilmington, DE 19801-3733 Telephone (302) 255-0669 JUDGE April 9, 2012 (VIA E-FILED) John E. James, Esquire Michael B. Rush, Esquire Potter Anderson & Corroon LLP Hercules Plaza - Sixth Floor 1313 North Market Street Wilmington, DE 19801 RE: Patricia L. Enerio, Esquire Melissa N. Donimirski, Esquire Proctor Heyman LLP 300 Delaware Avenue, Suite 200 Wilmington, DE 19801 ConAgra Foods, Inc. v. Lexington Insurance Co. C.A. No.: 09C-02-170 FSS Upon Lexington s Motion for Partial Summary Judgment DENIED, as moot. Dear Counsel: After the court granted Lexington s Motion for Partial Summary Judgment on October 30, 2009, ConAgra tried unsuccessfully to certify an interlocutory appeal. The court was adamant that this case should not be sent to the Supreme Court piecemeal.1 The Supreme Court also refused to certify an interlocutory appeal.2 Apparently in response to this court s and the Supreme Court s refusals to certify an interlocutory appeal, ConAgra agreed to a final judgment order, entered on April 20, 2010. While the final judgment recites various agreements between the 1 ConAgra Foods, Inc. v. Lexington Ins. Co., 2010 WL 748171, at *1 (Del. Super. Feb. 4, 2010) (Silverman, J.) ( [I]f the parties' cross-appeals were decided interlocutorily, such an appeal's outcome will not be case-dispositive. ). 2 Lexington Ins. Co. v. ConAgra Foods, Inc., 998 A.2d 937 (Del. 2010) (TABLE). John E. James, Esquire Michael B. Rush, Esquire Patricia L. Enerio, Esquire Melissa N. Donimirski, Esquire ConAgra Foods, Inc., v. Lexington Insurance Co. C.A. No.: 09C-02-170 FSS Letter/Order April 9, 2012 Page 2 parties, it is a final judgment. The last sentence of the order reads: There being no other claims or issues before the Court, this Final Judgment Order is final and appealable. But for that, the court would have not entered the order that finally cleared the way for appeal. In light of that history, the court considers every issue, including but not limited to ConAgra s waiver and estoppel claims, was extinguished by the final judgment order. Again, had the court viewed its final judgment order as leaving anything to litigate, it would have not entered the order. The final judgment order was not an interlocutory appeal certification by another name. At this point, therefore, the only issues left are the ones opened by the April 28, 2011 remand.3 In closing, and only by way of mention in passing, the court has always viewed the waiver and estoppel arguments as far-fetched. Basically, ConAgra latched onto Lexington s befuddled response to ConAgra s demand for coverage and the fact that it took Lexington a little time to get its wits together. If not at the first moment, Lexington tried to reserve its rights early on. Thus, ConAgra s waiver and estoppel arguments are overblown. That helps explains why it made sense when ConAgra agreed to convert the partial summary judgment into the final judgment. For the foregoing reasons, Lexington s Motion for Partial Summary Judgment is DENIED as moot. Final judgment has already been entered on the waiver and estoppel claims. IT IS SO ORDERED. Very Truly Yours, /s/ Fred S. Silverman cc: Prothonotary (Civil) 3 ConAgra Foods, Inc. v. Lexington Ins. Co., 21 A.3d 62 (Del. 2011).
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