Monsanto Co. v. Aetna Cas. and Sur. Co.

• Decision Date: 26 August 1988
• Citation: 559 A.2d 1301
• Parties: MONSANTO COMPANY, a Corporation of the State of Delaware, Plaintiff, v. AETNA CASUALTY AND SURETY COMPANY, et al., Defendants. . Submitted:
• Court: Delaware Superior Court

Page 1301

559 A.2d 1301

MONSANTO COMPANY, a Corporation of the State of Delaware, Plaintiff, v. AETNA CASUALTY AND SURETY COMPANY, et al., Defendants.

Superior Court of Delaware New Castle County.

Submitted: Aug. 26, 1988.

Decided: Oct. 21, 1988.

Richard E. Poole (argued), Richard L. Horwitz, and Kathleen T. Furey of Potter, Anderson & Corroon, and Jerold Oshinsky (argued), and Patricia A. Van Dyke, of Anderson, Baker, Kill & Olick, Washington, D.C., for plaintiff, Monsanto Co.

Robert K. Beste of Biggs & Battaglia and Timothy C. Russell (argued), Patricia A. Gotschalk of Drinker, Biddle & Reath, Washington, D.C., for defendants, American Mfr's. Mut. Ins. Co.

Roderick R. McKelvie and Francis J. Murphy of Ashby, McKelvie & Geddes and Richard L. Blatt, Robert W. Hammesfahr, and Peter M. Page of Peterson, Ross, Schloerb & Seidel, Chicago, Ill. and Michael Nussbaum (argued) of Nussbaum, Owen & Webster, Washington, D.C., for C. James Ayliffe and Lloyd's London and London Market Ins. Companies.

Judith Nichols Renzulli of Duane, Morris & Hecksher and Alan H. Silberman (argued), William T. Barker, Robert C. Johnson, and John S. Hahn, of Sonnenschein, Carlin, Nath & Rosenthal, Chicago, Ill. and Stephen E. Goldman, and Frank E. Coulom, Jr. of Robinson & Cole, Hartford, Conn., for defendant, Travelers Indem. Co.

Lawrence S. Drexler of Elzufon & Associates and Joseph G. Manta (argued), Mary E. Rugala, John C. Sullivan of Manta & Welge, Philadelphia, Pa., for defendant, Liberty Mut. Ins. Co.

MARTIN, Judge.

Defendants ¹ move to dismiss plaintiffs complaint on the basis of forum non conveniens. For the reasons stated herein, the Court denies defendants' motions.

On January 20, 1988 Monsanto filed this comprehensive action to determine Monsanto's rights and defendants obligations under primary and excess environmental liability insurance policies sold to Monsanto by the 37 defendants, in connection with environmental actions against Monsanto throughout the Country. Also, Monsanto wants injunctive relief against the defendants and recovery of compensatory damages. ²

Travelers Indemnity Company filed a motion to dismiss or stay this action in favor of the limited Connecticut action between Monsanto and Travelers. Twenty-four other defendants have adopted Travelers' position. American Manufacturers filed a motion to dismiss this action in favor of proceeding in other states. Seven other defendants adopted American Manufacturers' position.

Monsanto is a Delaware corporation organized in 1933. Monsanto, an industrial company, manufactures chemical and agricultural products, pharmaceuticals, industrial process controls and consumer products at sites located throughout the United States. It does business worldwide, with headquarters in St. Louis, Missouri.

The defendants are 38 insurance companies that sold Monsanto liability insurance from the late 1930's through April 1, 1986. Defendants have separate policies with Monsanto, and each has its own defense to Monsanto's hazardous waste site claims made pursuant to those policies. Monsanto has held its primary liability insurance for the past fifty years with, Travelers Indemnity Company, ("Travelers") Liberty Mutual Insurance Company ("Liberty Mutual") and the Insurance Company of North America ("INA"). Travelers is incorporated in Connecticut and has its principal place of business in Hartford, Connecticut. Liberty Mutual is a Massachusetts corporation with its principal place of business in Boston. INA is a Pennsylvania corporation which has its principal place of business in Philadelphia. The majority of the remaining 34 defendants are incorporated throughout the U.S. Eight of these defendants are incorporated in Delaware however, with the exception of American Centennial Insurance Company, none of the defendants has its principal place of business in Delaware. Thirty-three of the defendants issued excess liability policies to Monsanto and one, International Insurance Company, sold Monsanto environmental impairment liability policies. All of the defendants write premiums in Delaware and allegedly derive substantial benefits from conducting business in Delaware.

Monsanto purchased the insurance policies to protect its business activities. Monsanto's insurance program consists of a primary policy and numerous layers of excess policies to cover liability and defense costs expended after the primary coverage is exhausted. Monsanto's first layer excess policy, which provides broad coverage, is known as the umbrella policy.

Monsanto's excess policies, the layers above the umbrella policy, adopt the terms and conditions or "follow the form of" the umbrella policy.

Monsanto arranged through Thomas E. Sears, Inc., a broker, the purchase of its umbrella liability policies through the London insurance market. These policies contain a "consent-to-suit" clause which is of some importance to this litigation. Most if not all of the other policies incorporate some form of the consent-to-suit clause. ³

The United States Environmental Protection Agency (EPA), state regulatory authorities and private third parties claim that certain materials used and/or generated by Monsanto have contaminated certain locations throughout the United States ("the Sites"). These parties have commenced actions against Monsanto relating to alleged ground water, surface water and soil contamination at the Sites, ("the Environmental Actions"). Currently, these claims pending against Monsanto involve 44 sites. ⁴ These claims potentially amount to hundreds of millions of dollars.

According to Monsanto, its liability policies require the defendant insurance companies to investigate, defend and indemnify Monsanto against a broad range of liability which includes the liability incurred in connection with these environmental actions.

Allegedly, Monsanto sought defense and indemnification for these claims by giving notice of such claims to some of the defendants. Some of the defendants have provided or paid for a defense of Monsanto however, they have done so under reservations of rights.

Allegedly, some insurance companies have refused to honor in full their obligations to defend and indemnify Monsanto in the Environmental Actions. However because, as Monsanto claims, the insurance companies have breached their contracts with it by refusing to honor their obligations, Monsanto filed this action seeking damages for breach of contract and a declaration of the rights of the parties under Monsanto's insurance policies.

One day prior to the filing of this suit, Travelers filed suit in the District Court in Connecticut. Travelers is seeking a declaration that its policies with Monsanto do not provide coverage for the hazardous waste claims asserted by Monsanto and that Travelers has no duty to provide a defense or to bear the costs of defense with respect to those claims. Liberty Mutual and INA filed cross-claims against Monsanto in that case. Monsanto's excess and environmental impairment liability coverages are not at issue in the Connecticut action.

The Connecticut District Court stayed the action pending the ruling in this Court. The District Court reasons that avoidance of duplicative and piece-meal litigation requires that the Court stay the Connecticut action in favor of the more comprehensive Delaware action. ⁵

The defendants now move to stay or dismiss this case based on the doctrine of forum non conveniens. Defendants argue that litigating this case in Delaware would cause a great burden on this Court and a great inconvenience to the parties and the taxpayers in Delaware. Since the litigation lacks significant ties to Delaware, these burdens are unnecessary. Also, defendants argue that Travelers filed the Connecticut action first and Delaware law supports allowing the prior pending action to go forth. The argument follows that this Court would condone forum shopping if it ignored the law favoring prior pending actions.

The question the Court faces is whether this Court should grant defendants' motion to dismiss based upon the doctrine of forum non conveniens or any other practical public policy considerations.

The Standard Applicable to a Motion to Dismiss on the Basis of Forum Non Conveniens

Dismissal of an action based on the doctrine of forum non conveniens lies within the sound discretion of the Court. Life Assurance Company of Pennsylvania v. Associated Investors International Corporation, Del.Ch., 312 A.2d 337, 340 (1973) citing inter alia, McWane Cast Iron Pipe Corporation v. McDowell-Wellman Engineering Company, Del.Supr., 263 A.2d 281 (1970). The doctrine empowers a Court to decline jurisdiction whenever considerations of convenience, expense, and the interests of justice dictate that litigation in the forum selected by the plaintiff would be unduly inconvenient, expensive or otherwise inappropriate. Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); General Foods Corporation v. Cryo-Maid, Inc., Del.Supr., 198 A.2d 681, 684 (1964); Clatworthy v. Shakey's, Inc., Del.Super., C.A. No. 87C-MY-14, 1988 WL 7620, Bush, Judge (Jan. 28, 1988).

The Courts of this State recognize that a plaintiff's choice of forum is to be afforded great deference. See Weisberg v. Hensley, Del.Ch., 278 A.2d 334, 338 (1971). Hence, as a general rule, "litigation should be confined to the forum in which it is commenced ..." ANR Pipeline Company v. Shell Oil Company, et al. Del.Supr., 525 A.2d 991, 992 (1987). See Fast Foodmakers, Inc. v. Greisler, Del.Super., 290 A.2d 1, 3 (1972) ("[a] court does not lightly permit its jurisdiction to be rendered nugatory or a plaintiff's choice of forum to be easily defeated"); Dietrich v. Texas National Petroleum Co., Del.Super., 193 A.2d 579, 584 (1963) ("the plaintiff's choice of forum should rarely be disturbed"). See also Chrysler Corporation v. Dann, Del.Super., 171 A.2d 223, 226 (1961). Defendants bear the heavy burden of proving...