American Ins. Co. v. Synvar Corp.
| Decision Date | 03 April 1964 |
| Citation | 7 Storey 315,57 Del. 315,199 A.2d 755 |
| Court | Supreme Court of Delaware |
| Parties | , 57 Del. 315 The AMERICAN INSURANCE COMPANY, Defendant Below, Appellant, v. SYNVAR CORPORATION et al., Plaintiffs Below, Appellees. |
William Prickett, of Prickett & Prickett, Wilmington, for appellant.
Samuel R. Russell, of Herrmann, Bayard, Brill & Russell, Wilmington, for appellees.
This is an appeal by the defendant from an order of the Superior Court prohibiting the taking of a deposition of an expert witness hired by the plaintiff. The plaintiff moved to dismiss the appeal on the ground that the order appealed from is nonappealable, but also answered the appeal on the merits.
A brief statement of the nature of the action is necessary to a determination of the question. The action is one for a declaratory judgment. It seeks a declaration of the rights of the plaintiff under a policy of insurance written by the defendant.
The facts are that on November 8, 1960 the premises of the plaintiff were damaged severely by a fire and explosion or, as contended by the defendant, an explosion followed by a fire, in the course of which numerous injuries to others were caused. Suits have been brought against the plaintiff as a result of these injuries. The defendant has refused to defend these suits under the policy in question.
Immediately following the occurrence plaintiff notified the defendant of the fire and explosion. The defendant promptly sent its representatives to investigate and inspect the premises of plaintiff's plant and to interview those who claimed damages from the plaintiff.
On or about November 23, 1960 defendant's local agent advised the plaintiff that the defendant denied coverage under the policy of insurance with respect to any claim which might be asserted against the plaintiff. This disclaimer was confirmed by letter dated November 28, 1960. The reason assigned was that the injuries were caused initially by an explosion which was not a covered risk under the policy.
On December 1, 1960, plaintiff retained the services of an expert in the field of explosives for the purpose of ascertaining the precise cause of the fire and explosion which had occurred on November 8, 1960. Plaintiff desired the opinion of an expert, first, in order to obtain information to aid in avoiding any similar disaster in the future and, second, to furnish such opinion to its attorneys for use in prospective litigation in which the plaintiff knew it would be involved as a consequence of the November 8, 1960 event.
Defendant noticed the taking of the deposition of plaintiff's expert and plaintiff moved for a protective order to prevent the taking of such a deposition. The Superior Court entered an order preventing defendant from taking the deposition of plaintiff's expert.
In opposition to plaintiff's motion for a protective order defendant filed the affidavit of an expert in the field of explosives. In his deposition the expert alleges that he is acquainted with the basic facts of the occurrence on November 8, 1960, but that it is difficult to state with certainty the cause of the occurrence without knowledge of certain facts concerning it. It is further alleged that such facts can be obtained only by experts in the explosive field who are able to make an examination of the site at a time closely following the explosion and that, in his opinion, a present examination of the premises would not obtain facts sufficient to determine with certainty the cause of the explosion.
Based upon this affidavit, defendant argues that it is necessary in order for it to prepare its defense in the pending action to learn such facts from the plaintiff's expert witness. Parenthetically, it is to be noted that no allegation is made that plaintiff's expert, who could not have examined the premises prior to December 1, 1960, has the particular facts referred to in the affidavit in hand.
Defendant has moved to dismiss the appeal on the ground that it is taken from an interlocutory order of a procedural nature. Since 1960 the jurisdiction of this Court to review matters in the Superior Court in accordance with Article IV, § 11(1)(a) of the Constitution, Del.C.Ann. has been:
'To receive appeals from the Superior Court in civil causes and to determine finally all matters of appeal in the interlocutory or final judgments and other proceedings of said Superior Court in civil causes: * * *.'
By the amendment of 1960 the appellate jurisdiction of this Court over causes in the Superior Court has been made the same as that heretofore exercised by this Court in appeals from the Court of Chancery by reason of Article IV, § 11(4) of the Constitution.
Admittedly, this is an appeal from an interlocutory order. The rule is well settled with respect to appeals from interlocutory orders in Chancery, and is equally applicable now to such appeals from the Superior Court that such an order is appealable only if it determines a substantial legal issue and establishes rights. However, no appeal from an interlocutory order will lie if such order is discretionary and preliminary, or does nothing more than preserve the status quo or forward the cause procedurally. If such an interlocutory order is...
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C. v. C.
...be appealable it must determine substantial issues and establish legal rights between the parties. American Insurance Company v. Synvar Corporation, 7 Storey 315, 199 A.2d 755 (Sup.Ct.1964); Wagner v. Shanks, 6 Storey 555, 194 A.2d 701 (Sup.Ct.1963); Walsh v. Hotel Corporation of America, D......
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