IN THE SUPERIOR COURT OF THE STATE OF DELAWARE ZURICH AMERICAN INSURANCE ) COMPANY, on its own behalf and as ) successor-in-interest to ZURICH ) C.A. No. N23C-02-232 MAA CCLD INSURANCE COMPANY, U.S. ) BRANCH; AMERICAN ) GUARANTEE AND LIABILTY ) INSURANCE COMPANY; ) AMERICAN ZURICH INSURANCE ) COMPANY, and STEADFAST ) INSURANCE COMPANY, ) ) Plaintiffs, ) v. ) ) STERIGENICS U.S., LLC; SOTERA ) HEALTH LLC; NATIONAL UNION ) FIRE INSURANCE COMPANY OF ) PITTSBURGH, PA; SENTRY ) INSURANCE COMPANY; FIRST ) STATE INSURANCE COMPANY; ) NEW ENGLAND REINSURANCE ) CORPORATION; FEDERAL ) INSURANCE COMPANY; CHUBB ) CUSTOM INSURANCE COMPANY; COLUMBIA CASUALTY ) COMPANY; LEXINGTON ) INSURANCE COMPANY; THE ) INSURANCE COMPANY OF THE ) STATE OF PENNSYLVANIA; ) OAKWOOD INSURANCE ) COMPANY, as successor by merger to ) CENTRAL NATIONAL INSURANCE ) COMPANY OF OMAHA; XYZ ) INSURANCE COMPANIES 1-50; and ) GRIFFITHS FOODS ) INTERNATIONAL INC., ) Defendants. ) Submitted: October 24, 2023 Decided: January 26, 2024
Upon Sterigenics U.S., LLC, Sotera Health LLC, Chubb Custom Insurance Company, Federal Insurance Company, Oakwood Insurance Company, Central National Insurance Company, and Griffith Foods International Inc.’s Motions to Dismiss or Stay:
GRANTED in part and DENIED in part.
MEMORANDUM OPINION
Bruce W. McCullough, Esquire, of BODELL BOVÉ, LLC, Wilmington, Delaware, and Louis A. Bové, Esquire (Argued), of BODELL BOVÉ, LLC, Philadelphia, Pennsylvania, Attorneys for Plaintiffs Zurich American Insurance Company, American Guarantee and Liability Insurance Company, American Zurich Insurance Company, and Steadfast Insurance Company.
David J. Baldwin, Esquire (Argued), and Peter C. McGivney, Esquire, of BERGER HARRIS LLP, Wilmington Delaware, Attorneys for Defendants Sterigenics U.S., LLC and Sotera Health LLC.
Stamatios Stamoulis, Esquire, of STAMOULIS & WEINBLATT LLC, Wilmington, Delaware, and Kevin R. O’Neill, Esquire (Argued), of WALKER WILCOX MATOUSEK LLP, Chicago, Illinois, Attorneys for Defendants Chubb Custom Insurance Company, Federal Insurance Company, Oakwood Insurance Company, and Central National Insurance Company.
Jennifer C. Wasson, Esquire, and Carla M. Jones, Esquire, of POTTER ANDERSON & CORROON LLP, Wilmington, Delaware, and James Davis, Esquire (Argued), of PERKINS COIE LLP, Seattle, Washington, and Bradley Dlatt, Esquire, of PERKINS COIE LLP, Chicago, Illinois, Attorneys for Defendant Griffith Foods International Inc.
Adams, J. INTRODUCTION
Plaintiffs Zurich American Insurance Company (“ZAIC”), on its own behalf
and as successor-in-interest to Zurich Insurance Company, U.S. Branch (“ZIC”),
along with American Guarantee and Liability Insurance Company (“AGLIC”),
American Zurich Insurance Company (“AZIC” and, together with ZAIC, ZIC, and
AGLIC, “Zurich”), and Steadfast Insurance Company (“Steadfast” and, together
with Zurich, “Plaintiffs”) filed this action to resolve coverage issues stemming from
hundreds of underlying lawsuits relating to the release of ethylene oxide (“EtO”)
from sterilization plants in Illinois.
Defendants Sterigenics U.S., LLC (“Sterigenics”), Sotera Health LLC
(“Sotera”), Chubb Custom Insurance Company (“Chubb”), Federal Insurance
Company (“Federal”), Oakwood Insurance Company (“Oakwood”), Central
National Insurance Company of Omaha (“Central”), and Griffith Foods International
Inc. (“Griffith” and together with Sterigenics, Sotera, Chubb, Federal, Oakwood,
and Central, “Defendants”) have each moved to dismiss or stay this action in favor
of litigation in Illinois. This is the Court’s decision on those motions. For the
reasons stated herein, Defendants’ motions are GRANTED in part and DENIED in
part.
1 FACTS1
This action is the byproduct of numerous lawsuits brought against Griffith,
Sterigenics, and Sotera (the “EtO Litigation”).2 The many plaintiffs in those lawsuits
allege that EtO emissions from sterilization plants in Willowbrook, Illinois caused
them injuries.3 The proper allocation of the costs from those lawsuits is now the
focus of this, and other, litigation.
I. The Underlying EtO Lawsuits
A. The Operation of the Sterilization Plants
In 1984, Griffith began operating sterilization facilities in Willowbrook,
Illinois through an unincorporated division called Micro-Biotrol.4 A succession of
Griffith-owned entities continued to operate the plants until 1999.5 In 1999, Griffith
sold the equity of its then-operative subsidiary, Griffith Micro Science International,
Inc., to Ion Beam Applications, S.A., a Belgian company.6 Sterigenics, which was
formerly Ion Beam Applications, Inc., is now wholly owned by Sotera.7 Sotera and
Sterigenics operated the Willowbrook sterilization plants after Griffith.8
1 Unless otherwise noted, the facts are drawn from the Amended Complaint. 2 Am. Compl. ¶ 1 (D.I. 80). 3 Id. 4 Id. ¶ 52. 5 Id. ¶¶ 53–54. 6 Id. ¶¶ 54, 88. 7 Id. ¶¶ 15, 93. 8 Id. ¶¶ 61–62. 2 EtO is a toxic carcinogen that was emitted from the Willowbrook sterilization
plants.9 In addition to increasing the risk of cancer, it can cause a variety of serious
ailments and diseases.10 The plaintiffs in the EtO Litigation allege that Griffith,
Sterigenics, and Sotera lied about the level of EtO emissions from the Willowbrook
plants.11 They claim the true amount of EtO emissions was dangerous, and that
Griffith, Sterigenics, and Sotera ignored scientific and governmental guidance while
operating the plants.12 In 2019, the Illinois Environmental Protection Agency
ordered Sterigenics to cease operation of the Willowbrook plants until it could rein
in the EtO emissions.13 Sterigenics and Sotera never reopened the facilities.14
B. The Ensuing Litigation
Following a 2018 report by a federal agency that outlined the risks posed by
the Willowbrook sterilization plants, lawsuits began flooding in.15 Specifically,
more than 800 lawsuits naming over 1,000 plaintiffs have been filed in Illinois state
court against Sterigenics, Sotera, and Griffith.16 Many, but not all, were consolidated
into a single action for discovery and pretrial purposes.17 In September 2022, one of
9 Id. ¶ 39. 10 Id. ¶ 47. 11 Id. ¶¶ 56, 63. 12 Id. ¶¶ 57, 63 13 Id. ¶ 64. 14 Id. ¶ 65. 15 Id. ¶¶ 40–41. 16 Id. ¶¶ 40–41, 43–44. 17 Id. ¶¶ 42, 46. 3 the first EtO trials resulted in a finding against Sterigenics, Sotera, and Griffiths.18
The jury in that case awarded more than $350 million in compensatory and punitive
damages, and found Sterigenics 65% liable, Sotera 30% liable, and Griffith 5%
liable.19
Thereafter, Sotera settled many of the pending EtO lawsuits for $408 million,
and Griffith settled many of the lawsuits against it for $48 million.20 By September
2022, Sterigenics had reportedly incurred more than $75 million in defense costs,
and Griffith had reportedly incurred more than $16 million in defense costs.21
II. The Relevant Insurance Policies
A. The Zurich Policies
Plaintiffs’ Amended Complaint outlines a network of policies issued by
Zurich and Steadfast that are potentially implicated in this matter. It sorts these
policies into three groups: (1) the “Zurich-Sotera Pollution Policy;” (2) the
“Zurich-GMSI/IBA Policies;” and (3) the “Zurich-Griffith Policies.”22 The precise
details of these policies are not necessary to resolve the present motions; instead, an
overview suffices.
18 Id. ¶ 67. 19 Pls.’ Br. in Opp’n to Mot. to Dismiss or Stay, Ex. E (D.I. 138). 20 Louis Bové Certification in Opp’n to Mot. to Dismiss or Stay (“Bové Cert.”) ¶¶ 9–10 (D.I. 138). 21 Id. ¶¶ 11–12. 22 Am. Compl. ¶¶ 71–156. 4 Steadfast issued the Zurich-Sotera Pollution Policy to Sotera Health Holdings
LLC.23 Its policy period ran from July 2018 to July 2021.24 As its label suggests, it
insured against losses resulting from defined pollution events.25 Plaintiffs allege that
the applicable $10 million limit was exhausted in November 2020.26
The Zurich-GMSI/IBA Policies are six commercial general liability policies
issued by ZAIC. The first five of these policies were issued to Griffith Micro
Science International, Inc. and collectively ran from September 1999 to January
2004.27 The sixth policy was issued to Ion Beam Applications, Inc. and ran from
January 2004 to January 2005.28 Certain of the Zurich-GMSI/IBA Policies name
additional insured entities and contain “Broad Named Insured Endorsements.”29
Nevertheless, Plaintiffs allege Sterigenics and Sotera are “not identified as a Named
Insured on any of the Zurich-GMSI/IBA Policies.”30 These policies contain an
exclusion for losses resulting from certain defined pollution.31
Turning to the Zurich-Griffith Policies, Plaintiffs’ Amended Complaint
breaks them into four subsets: (1) the “1985-1999 Zurich-Griffith Policies;” (2) the
23 Id. ¶ 72. 24 Id. 25 Id. ¶ 74. 26 Id. ¶ 79. 27 Id. ¶ 83. 28 Id. 29 Id. ¶¶ 85–87. 30 Id. ¶¶ 94–95. 31 Id. ¶ 101. 5 “1996 to 1999 Zurich-Griffith XS Policies;” (3) the “Post-Sale Zurich-Griffith CGL
Policies;” and (4) the “Post-Sale Zurich-Griffith UMB Policies.”
The 1985-1999 Zurich-Griffith Policies are a series of occurrence-based
commercial general liability policies issued by ZAIC either individually or as
successor-in-interest to ZIC.32 Zurich alleges that fourteen policies were issued with
policy periods collectively running from September 1985 to September 1999.33
Griffith Laboratories, Inc. and a sequence of Griffith subsidiaries were named
insureds throughout that period.34 Zurich contends that Sotera and Sterigenics were
not named insureds under any of these policies.35 The 1985-1999 Zurich-Griffith
Policies had a variety of pollution exclusions in effect at different times during the
relevant period.36
The 1996 to 1999 Zurich-Griffith XS Policies are three high excess indemnity
policies that collectively ran from September 1996 to September 1999. 37 ZAIC, as
successor-in-interest to ZIC, issued the first two policies, and AZIC issued the
third.38 Griffith Laboratories, Inc. was the named insured on the first and third
policies, and Griffith Micro Science, Inc. was named on the second.39 Again, Zurich
32 Id. ¶ 105. 33 Id. 34 Id. ¶¶ 105–06. 35 Id. ¶¶ 108–09. 36 Id. ¶¶ 114–19. 37 Id. ¶ 121. 38 Id. 39 Id. 6 says Sterigenics and Sotera are not named insureds under these policies.40 These
policies, too, contain specific pollution exclusions.41
The Post-Sale Zurich-Griffith CGL Policies are eleven occurrence-based
commercial general liability policies issued by ZAIC to Griffith Laboratories, Inc.
following the 1999 sale of Griffith Micro Science International, Inc.42 The first two
ran from September 1999 to September 2001, and the rest collectively ran from July
2006 to October 2015.43 Zurich alleges that none of the relevant Griffith
subsidiaries, nor Sterigenics and Sotera, are named insureds under the Post-Sale
Zurich-Griffith CGL Policies.44 Different pollution exclusions applied at different
times under this set of policies.45
Last, the Post-Sale Zurich-Griffith UMB Policies are a set of eight
commercial umbrella polices that collectively ran from July 2006 to October 2014.46
These policies were issued by AGLIC to Griffith Laboratories, Inc., and Plaintiffs
again contend that no relevant Griffith subsidiary, nor Sterigenics, nor Sotera were
40 Id. ¶¶ 122–23 41 Id. ¶¶ 129–30. 42 Id. ¶ 132. 43 Id. 44 Id. ¶¶ 133–35. 45 Id. ¶¶ 140–41. 46 Id. ¶ 143. 7 named insureds.47 A series of pollution exclusions were included in these successive
policies, too.48
B. The Defendant Insurers’ Policies
The details of the Defendant Insurers’ policies are similarly inessential to
resolution of Defendants’ motions. Indeed, Plaintiffs’ primary position is that
coverage is not available to Sterigenics and Sotera under any of its policies in the
first place, so it need not seek contribution from any of the Defendant Insurers.49
Plaintiffs brought the Defendant Insurers into this action only as a means to seek
alternative relief.50
For present purposes, it is enough to say that each Defendant Insurer issued
policies that Plaintiffs believe Sotera and Sterigenics “may contend are implicated
by the Underlying EtO Lawsuits.”51 As with many of the Zurich-issued policies,
most of the Defendant Insurers’ policies identified in the Amended Complaint
predate the 1999 sale of Griffith Micro Science International, Inc.52 Accordingly,
the extent to which Sterigenics and Sotera can obtain coverage under their
predecessors’ policies is relevant to both of Plaintiffs’ claims for relief.
47 Id. ¶¶ 143–46. 48 Id. ¶¶ 151–55. 49 Id. ¶¶ 186-87. 50 Id. 51 Id. ¶¶ 157–63. 52 Id. 8 III. The Litigation in Illinois
The core of Defendants’ motions is the fact that other lawsuits regarding
insurance coverage for the EtO Litigation are already pending. Defendants identify
three other actions that purportedly address issues Plaintiffs now seek to litigate here:
(1) the “National Union Litigation;” (2) the “Wassau Litigation;” and (3) the
“Griffith Litigation.”
A. The National Union Litigation
In August 2021, Sterigenics filed suit against National Union Fire Insurance
Company (“National Union”) in the United States District Court for the Northern
District of Illinois.53 That suit sought coverage for losses related to the EtO
Litigation under policies issued to Sterigenics’s predecessor.54 In November 2021,
Griffith filed an action in the same court that likewise sought coverage for the EtO
Litigation from National Union.55
An August 2022 decision in those related cases addressed National Union’s
duty to defend Griffith and Sterigenics.56 Applying Illinois law, the court found that
Sterigenics was a successor to a Griffith subsidiary, which “raise[d] at least the
53 See Aff. of Bradley Dlatt in Supp. of Def. Griffith Foods International Inc.’s Mot. (“Dlatt Aff.”), Ex. 9 (D.I. 101). 54 Id. ¶ 2. 55 See Dlatt Aff., Ex. 10. 56 Sterigenics, U.S., LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh, P.A., 619 F. Supp. 3d 852 (N.D. Ill. 2022). 9 ‘possibility’ that Sterigenics is covered as a ‘named insured.’”57 The court also
expressed doubt as to the applicability of the relevant pollution exclusion.58
Accordingly, the court found National Union had a duty to defend both Griffith and
Sterigenics, though it did not rule on National Union’s indemnity obligations.59
B. The Wausau Litigation
The next EtO-related coverage dispute was the Wausau Litigation. There, in
November 2022, Employers Insurance of Wausau (“Wausau”) filed suit against
Griffith in the Circuit Court of Cook County, Illinois.60 Wausau sought a declaratory
judgment that it owed no duty to defend or indemnify Griffith with regard to the EtO
Litigation.61 Plaintiffs originally named Wausau as an additional defendant in this
matter but have since dropped Wausau as a named defendant.62
C. The Griffith Litigation
Most pertinent to this matter, Griffith filed suit in the Circuit Court of Cook
County, Illinois on January 25, 2023.63 There, Griffith sought coverage for the EtO
Litigation from Zurich, eight of the ten Defendant Insurers named in this action,64
57 Id. at 861 (quoting Amerisure Mut. Ins. Co. v. Microplastics, Inc., 622 F.3d 806, 816 (7th Cir. 2010)). 58 Id. at 862–64. 59 Id. at 869. 60 See Dlatt Aff., Ex. 12. 61 Id. ¶ 6. 62 Compare Compl. ¶ 19 (D.I. 1), with Am. Compl. ¶¶ 15–33. 63 See Dlatt Aff., Ex. 2. 64 The two Defendant Insurers in this action not named in the Griffith Litigation are National Union and Sentry Insurance Company. Compare Am. Compl. ¶¶ 18-29, with Dlatt Aff., Ex. 3 10 and others.65 In the Griffith Litigation, Griffith identified many of the same Zurich-
Griffith Policies listed in Plaintiffs’ Amended Complaint.66 In May 2023, after
Plaintiffs’ Complaint in this action was filed, Sterigenics and Sotera moved to
intervene in the Griffith Litigation, seeking coverage based on their purported status
as a successor to Griffith’s subsidiary.67 On August 23, 2023, the Griffith Litigation
and the Wausau Litigation were consolidated.68
PROCEDURAL HISTORY
Plaintiffs initiated this action by filing a Complaint on February 27, 2023.69
They then filed an Amended Complaint on June 14, 2023.70 On June 29, 2023,
Griffith moved to dismiss Plaintiffs’ Amended Complaint or stay this matter.71 The
next day, Chubb, Federal, Oakwood, and Central jointly moved for the same relief.72
Also on June 30, 2023, Sterigenics and Sotera filed a similar motion.73 Plaintiffs’
¶¶ 7–17. Both the Amended Complaint here and the amended complaint in the Griffith Litigation include as defendants yet-unidentified insurers that may become known. Am. Compl. ¶ 32; Dlatt Aff., Ex. 3 ¶ 18. 65 Dlatt Aff., Ex. 3 ¶¶ 7–17. 66 Compare Am. Compl. ¶¶ 105, 121, 132, 143, with Dlatt Aff., Ex. 3 ¶¶ 46, 67. 67 Dlatt Aff., Ex. 6. 68 Dlatt Aff., Ex. 18. 69 Compl. 70 Am. Compl. 71 Def. Griffith International Inc.’s Mot. to Dismiss or Stay (“Griffith’s Op. Br.”) (D.I. 101). 72 Defs. Chubb Custom Insurance Company, Federal Insurance Company, Oakwood Insurance Company, and Central National Insurance Company’s Mot. to Dismiss or Stay (“Chubb’s Op. Br.”) (D.I. 103). 73 Defs. Sterigenics U.S., LLC and Sotera Health LLC’s Mot. to Dismiss or Stay (“Sterigenics’s Op. Br.”) (D.I. 104). 11 submitted an Answering Brief in response to the three motions on August 11, 2023.74
Defendants filed their respective replies on August 31 and September 1, 2023.75 The
Court heard oral argument on October 24, 2023, and reserved decision.76
STANDARD OF REVIEW
Superior Court Civil Rule 12(b)(3) permits a defendant to move to dismiss or
stay an action based on improper venue.77 Motions to stay in favor of litigation
elsewhere are not granted as a matter of right;78 instead, the decision “rests within
the sound discretion of the trial court.”79 While the burden of establishing a basis
for relief lies with the defendant,80 the Court “is not shackled to the plaintiff’s
complaint and is permitted to consider extrinsic evidence from the outset.”81
The burden the defendant must carry depends on the context of the action. A
typical forum non conveniens motion is reviewed against the familiar Cryo-Maid82
74 Pls.’ Omnibus Br. in Resp. to Mots. to Dismiss or Stay (“Pls.’ Opp’n Br.”) (D.I. 138). 75 Def. Griffith Foods International Inc.’s Reply in Supp. of its Mot. to Dismiss or Stay (“Griffith’s Reply Br.”) (D.I. 151); Defs. Sterigenics U.S. LLC and Sotera Health LLC’s Reply Br. in Supp. of their Mot. to Dismiss or Stay (“Sterigenics’s Reply Br.”) (D.I. 152); Chubb Defs.’ Reply Br. in Supp. of their Mot. to Dismiss or Stay (“Chubb’s Reply Br.”) (D.I. 153). 76 Judicial Action Form (D.I. 170). 77 Super. Ct. Civ. R. 12(b)(3). See also Ent. Data Oracle, Inc. v. iSpot.tv, Inc., 2022 WL 17481944, at *2 (Del. Super. Dec. 7, 2022). 78 McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281, 283 (Del. 1970). 79 CVR Refin., LP v. XL Specialty Ins. Co., 2021 WL 3523925, at *7 (Del. Super. Aug. 11, 2021) (citing BP Oil Supply Co. v. Conoco Phillips Co., 2010 WL 702382, at *2 (Del. Super. Feb. 25, 2010)). 80 See CVR Refin., 2021 WL 3523925, at *7. 81 Sperling & Slater v. SilkRoad, Inc., 2022 WL 16910563, at *1 (Del. Super. Nov. 14, 2022) (quoting Loveman v. Nusmile, Inc., 2009 WL 847655, at *2 (Del. Super. Mar. 31, 2009)). 82 Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (Del. 1964). 12 factors.83 But where a related action filed in another jurisdiction predates the
Delaware action, the McWane84 factors apply.85 In that setting, if there is (1) “a prior
action pending elsewhere; (2) in a court capable of doing prompt and complete
justice; (3) involving the same parties and the same issues[,]” then “McWane and its
progeny establish a strong preference for the litigation of a dispute in the forum in
which the first action was filed.”86
ANALYSIS
I. Each McWane factor is satisfied, and therefore, Defendants’ motions to stay this action are GRANTED.
In light of the Griffith Litigation, Defendants’ motions will be viewed under
the less-demanding McWane framework. Defendants carry their burden of
establishing all three prongs. Accordingly, a stay of this action until the Griffith
Litigation is resolved is warranted.
83 Those factors are: (1) the relative ease of access to proof; (2) the availability of compulsory process for witnesses; (3) the possibility of the view of the premises, if appropriate; (4) all other practical problems that would make the trial of the case easy, expeditious and inexpensive; (5) whether or not the controversy is dependent upon the application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction; and (6) the pendency or nonpendency of a similar action in another jurisdiction. Sperling, 2022 WL 16910563, at *2 (quoting Gramercy Emerging Mkts. Fund v. Allied Irish Banks, P.L.C., 173 A.3d 1033, 1036–37 (Del. 2017)). 84 McWane, 263 A.2d at 283. 85 Sperling, 2022 WL 16910563, at *2 (citing GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 234 A.3d 1186, 1194 (Del. Super. 2020)). 86 Id. (citations omitted). 13 A. The Griffith Litigation is a first-filed action.
The first prong—whether the Griffith Litigation was filed before this action—
is straightforward in this instance. Plaintiffs do not contend this was a “race to the
courthouse” that might suggest the actions should be deemed contemporaneously
filed.87 Rather, Plaintiffs’ Complaint was filed a full month after the Griffith
Litigation commenced.88 While there is no bright-line rule for when two actions
should be considered contemporaneously filed,89 the month-long separation here
precludes serious debate on this point.90 The first prong is therefore established.
B. The Illinois courts are capable of doing prompt and complete justice.
Whether the Circuit Court of Cook County, Illinois is capable of doing prompt
and complete justice requires only slightly more analysis. At the outset, the Court
notes that the Illinois state courts are well-acquainted with the deluge of litigation
flowing from the Willowbrook plants’ EtO pollution. Plaintiffs’ Answering Brief
does little to directly address this prong. Instead, Plaintiffs incorporate arguments
pertaining to the third prong and color them as addressing whether the Illinois courts
87 See CVR Refin., 2021 WL 3523925, at *8. 88 After the Griffith Litigation and Wausau Litigation were consolidated, the relevant first-filing date was arguably moved back to November 2, 2022—i.e., the date the Wausau Litigation commenced. See Griffith’s Reply Br. at 12–13. In light of the Court’s decision applying the January 2023 filing date, it need not reach that issue. 89 CVR Refin., 2021 WL 3523925, at *8 (quoting Royal Indem. Co. v. Gen. Motors Corp., 2005 WL 1952933, at *2 n. 18 (Del. Super. July 26, 2005)). 90 Cf. Bright Data, Inc. v. Meta Platforms, Inc., 2023 WL 5322293, at *3–4 (Del. Super. Aug. 18, 2023) (holding twenty-four-day difference in filing dates was sufficient to implicate McWane). 14 can do “complete” justice without an identity of issues.91 As explained more fully
in the next section, perfect identity of issues is not needed to warrant a stay under
McWane.92 Aside from noting that a court may reject intervenor motions that would
unduly complicate a litigation—a peril that appears foregone in the already complex,
consolidated Griffith and Wausau Litigations—Plaintiffs do not explain why the
Illinois courts would be incapable of deciding coverage issues as to Sterigenics and
Sotera.
During oral argument, Plaintiffs emphasized that a motion had been filed in
Illinois to replace the judge overseeing the Griffith Litigation. While the availability
of a judge is relevant to this prong,93 this concern is overstated by Plaintiffs. Under
Illinois law, “[e]ach party shall be entitled to one substitution of judge without cause
as a matter of right.”94 Illinois-based counsel present at oral argument represented
that such motions are a routine part of civil practice in that state. Particularly bearing
in mind the comity concerns that undergird McWane,95 the Court will not hold that
91 See Pls.’ Opp’n Br. at 32–35. 92 See Kurtin v. KRE, LLC, 2005 WL 1200188, at *4 (Del. Ch. May 16, 2005). 93 See, e.g., Joyce v. Cuccia, 1996 WL 422339, at *5 (Del. Ch. July 24, 1996) (holding the “prompt” justice prong was unsatisfied where a pending judicial election would delay the other litigation). 94 735 ILCS 5/2-1001(a)(2)(i). 95 McWane, 263 A.2d at 283. 15 a statutory procedural rule casts doubt upon the Illinois courts’ ability to efficiently
resolve this matter.96 Thus, the second prong is also satisfied.97
C. The parties and issues are substantially the same.
The final prong—the overlap of the parties and issues—is the crux of this
dispute. Undeniably, this action is not a perfect mirror image of the Griffith
Litigation. Each suit presently names parties the other does not, and each suit
presently identifies a different insured as the primary focus. Nevertheless, most of
the parties and insurance policies, in addition to the underlying alleged misconduct,
are common across the two actions.
McWane does not require perfect parallels in competing litigation. Instead,
“the Court has broad discretion to grant a stay where the facts and circumstances
warrant it.”98 It follows that “[c]onsistent with the McWane doctrine generally, the
‘same parties, same issues’ analysis focuses on substance over form.”99
Accordingly, as opposed to perfection, the Court looks for “substantial or functional
96 See Ritchie v. Huizenga Managers Fund, LLC, 2017 WL 7803924, at *2 (Del. Super. Dec. 21, 2017) (holding “the Circuit Court of Cook County, Illinois is capable of ‘doing prompt and complete justice.’”) (quoting McWane, 263 A.2d at 283). 97 Further allaying this concern, the Court’s review of the Griffith Litigation’s publicly accessible docket information suggests a new judge has already been assigned. See Online Case Search, CLERK OF THE CIR. CT. OF COOK CNTY., https://casesearch.cookcountyclerkofcourt.org/ CivilCaseSearchAPI.aspx (last visited Jan. 26, 2024). 98 Bright Data, Inc., 2023 WL 5322293, at *3 (citing McWane. 263 A.2d at 283). 99 Kurtin, 2005 WL 1200188, at *4. See also Park G.P., Inc. v. CCSB Fin. Corp., 2020 WL 7706962, at *2 (Del. Ch. Dec. 29, 2020) (finding even where “McWane is not a perfect fit, a McWane-like stay” may be “appropriate” based on “the policy rationale underlying the McWane factors”). 16 identity” between the competing actions.100 That substantial identity exists where
the two actions share a “common nucleus of operative fact.”101
In this analysis, the Court must also consider policy concerns such as “whether
allowing both actions to proceed ‘in tandem would either risk conflicting rulings or
foster an unseemly race to judgment in each forum.’”102 The Cryo-Maid factors
serve as useful guidance in the Court’s exercise of discretion.103 At bottom, the level
of similarity required to grant a stay ebbs and flows with the weight of the practical
considerations favoring one.104
1. The similarity of the parties
As for the similarity of the parties, the very slight mismatch between the
groups of insurers named in this action and in the Griffith Litigation does not counsel
against a stay. First, the complaints in both cases list fictitious insurers as defendants
on the explicit basis that additional insurers may need to be added.105 The possibility
of joinder suffices to make the parties “substantially identical.”106 In any event, the
100 Ent. Data Oracle, Inc, 2022 WL 17481944, at *5 n.53 (quoting Tulum Mgmt. USA LLC v. Casten, 2015 WL 7456003, at *2 (Del. Ch. Nov. 20, 2015)). 101 Bright Data, Inc., 2023 WL 5322293, at *4 (quoting Tulum Mgmt., 2015 WL 7456003, at *2). 102 Choice Hotels Int’l, Inc. v. Columbus-Hunt Park Dr. BNK Invs., L.L.C., 2009 WL 3335332, at *7 (Del. Ch. Oct. 15, 2009) (quoting Xpress Mgmt., Inc. v. Hot Wings Int’l, Inc., 2007 WL 1660741, at *5 (Del. Ch. May 30, 2007)). 103 See Bright Data, Inc., 2023 WL 5322293, at *6. 104 Id. at *4 (citing Playtex, Inc. v. Columbia Cas. Co., 1989 WL 40913, at *3 (Del. Super. Apr. 25, 1989)). 105 Am. Compl. ¶ 32; Dlatt Aff., Ex. 3 ¶ 18. 106 Kurtin, 2005 WL 1200188, at *4 (first citing Macklowe v. Planet Hollywood, Inc., 1994 WL 586835, at *3 (Del. Ch. Oct. 4, 1994); and then citing Corwin v. Silverman, 1999 WL 499456, at *4 n.13 (Del. Ch. June 30, 1999)). 17 large majority of insurers named in this action are already parties to the Griffith
Litigation.107
The Court turns now to Sterigenics and Sotera. Both entities have already
moved to join the Griffith Litigation.108 In Kurtin, the Court of Chancery made clear
that “substantial or functional identity” is broader than “a parent/subsidiary or
predecessor/successor relationship.”109 Rather, this requirement “has been met by
‘related entities,’ somewhat overlapping parties, and persons in privity with the
parties.”110 As explained, Sterigenics is Sotera’s subsidiary and is a successor to a
Griffith subsidiary. That connection is how Sterigenics obtained defense coverage
under Griffith’s policies in the National Union Litigation,111 and is why Zurich seeks
resolution of Sotera and Sterigenics rights under the Zurich-Griffith Policies here.112
In sum, Sterigenics, Sotera, and Griffith have closely aligned interests as to the
policy determinations at issue here and are materially related with regard to this
litigation.
2. The similarity of the issues
Much of the overlap in issues between this case and the Griffith Litigation is
due to Sterigenics and Sotera’s claims to coverage under policies issued to Griffith.
107 See supra note 64. 108 Dlatt Aff., Ex. 6. 109 Kurtin, 2005 WL 1200188, at *5. 110 Id. (citations omitted). 111 National Union, 619 F. Supp. 3d at 861–64. 112 Pls.’ Opp’n Br. at 13. 18 Thirteen of Plaintiffs’ seventeen stated grounds for denying coverage are based on
interpretations of Zurich policies that could impact Griffith’s rights under those
policies.113 The four remaining grounds assert that Sterigenics and Sotera are not
insureds under the Zurich policies to begin with.114 In other words, the bulk of
Plaintiffs’ requested relief seeks interpretations of the Zurich-Griffith Policies with
regard to Sterigenics and Sotera. Importantly, those interpretations would also bear
on Griffith.
That circumstance demonstrates the “common nucleus of operative fact” tying
this action to the Griffith Litigation.115 Specifically, Griffith, Sterigenics, and Sotera
engaged in substantially the same alleged misconduct while operating the
Willowbrook plants. Griffith, Sterigenics, and Sotera now seek insurance coverage
for those acts under many of the same insurance policies. That shared core of facts
creates substantial overlap between the issues in this case and the Griffith Litigation.
3. The relevant policy considerations
Practical concerns weigh heavily in this analysis.116 First, the risk of
conflicting rulings is clear. If this case were to be litigated contemporaneously with
the Griffith Litigation, this Court and the Illinois court would be simultaneously
113 Am. Compl. ¶¶ 170–82. 114 Id. ¶¶ 166–69. 115 See Bright Data, Inc., 2023 WL 5322293, at *4. 116 Choice Hotels, 2009 WL 3335332, at *7. 19 tasked with interpreting the Zurich-Griffith Policies. The resulting possibility of
differing conclusions would be ineluctable. An additional risk would be present in
this insurance dispute: the exhaustion of policy limits in one case before the other is
decided. That possibility would incentivize “an unseemly race” to judgment—a
result the McWane court explicitly sought to avoid.117
The applicable Cryo-Maid factors likewise counsel toward a stay.
Unquestionably, Illinois has a closer relationship to this dispute both legally and
factually. Apart from serving as the state of incorporation or formation for some of
the parties, Delaware has virtually no connection to the underlying events or
insurance policies at issue. Moreover, it would be needlessly taxing for both the
courts and the litigants to pursue these closely related cases in two different
jurisdictions at the same time. “A court may grant a stay on the basis of comity,
efficiency, or common sense[;]”118 here, all three dictate that result.
II. Defendants’ motions to dismiss this action are DENIED.
Defendants seek the more extraordinary relief of dismissing Plaintiffs’
Amended Complaint. The Court declines this request. “While ‘[a] party may move
for either a stay or dismissal under McWane, . . . dismissals are rarely granted when
117 McWane, 263 A.2d at 283. 118 Ent. Data Oracle, Inc., 2022 WL 17481944, at *4 (internal quotation marks omitted) (quoting LightLab Imaging, Inc. v. Axsun Techs., Inc., 2012 WL 1764225, at *1 (Del. Ch. May 10, 2012)). 20 the first-filed doctrine is invoked.’”119 That is so because “it is impossible to predict
with certainty the course of earlier-filed litigation in another jurisdiction.”120 Here,
it is possible that questions about Sterigenics and Sotera’s coverage for the EtO
Litigation will outlive the Griffith Litigation. In that event, it would be appropriate
for Plaintiffs to resume this action to settle those lingering issues. A dismissal at this
stage would unnecessarily hinder that process.
In a departure from the other movants, Griffith also seeks dismissal based
upon the even more burdensome Cryo-Maid factors.121 This argument is similarly
unavailing. Under Cryo-Maid, “dismissal should occur only in rare cases and only
where an overwhelming hardship has been shown.”122 Griffith’s argument falls well
short of that demanding standard. In brief, Griffith’s arguments pertain to why
Illinois is a more convenient forum than Delaware—not why Delaware is itself a
burdensome forum. That is not enough.123 Griffith—a Delaware corporation—has
119 Id. at *2 (alteration and omission in original) (quoting Riordan Ltd. v. IVN Consulting, LLC, 2021 WL 2879786, at *4 (Del. Ch. July 9, 2021)). 120 Id. (quoting Riordan Ltd., 2021 WL 2879786, at *4). 121 Griffith’s Op. Br. at 24–32. 122 Petit v. Tri-State Wholesale Flooring, LLCO, 2023 WL 4144751, at *4 (Del. Super. June 22, 2023). 123 See Mar-Land Indus. Contrs., Inc. v. Caribbean Petro. Refin., L.P., 777 A.2d 774, 778 (Del. 2001) (“It is insufficient . . . that another court would be a more appropriate forum.”) (internal quotation marks omitted) (quoting Ison v. E.I. DuPont de Nemours & Co., 729 A.2d 832, 838 (Del. 1999)). 21 not shown that it will suffer a “manifest hardship” by being made to litigate in
Delaware.124 Thus, a dismissal under Cryo-Maid is unwarranted.
CONCLUSION
In conclusion, Defendants’ Motions to Stay or Dismiss are GRANTED in part
and DENIED in part.
IT IS SO ORDERED.
124 Id. (quoting Ison, 729 A.2d at 842). 22