Zurich American Insurance Company v. Syngenta Crop Protection LLC

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ZURICH AMERICAN INSURANCE §
COMPANY, AMERICAN §
GUARANTEE and LIABILITY §
INSURANCE COMPANY, §
§ No. 135, 2023
Plaintiffs Below, §
Appellants, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ C.A. No. N19C-05-108
SYNGENTA CROP PROTECTION §
LLC, §
§
Defendant Below, §
Appellee. §

Submitted: December 6, 2023
Decided: February 26, 2024

Before SEITZ, Chief Justice; TRAYNOR and LEGROW, Justices.
Upon appeal from the Superior Court. AFFIRMED.

John D. Balaguer, Esquire (argued), Lindsey E. Imbrogno, Esquire, BALAGUER
MILEWSKI & IMBROGNO, Wilmington, Delaware; Michael M. Marick, Esquire,
Timothy H. Wright, Esquire, SKARZYNSKI MARICK & BLACK LLP, for
Appellants Zurich American Insurance Company, American Guarantee and
Liability Insurance Company.

Stephen E. Jenkins, Esquire, Catherine A. Gaul, Esquire, ASHBY & GEDDES,
Wilmington, Delaware; Dorthea W. Regal, Esquire, Joshua L. Blosveren, Esquire
(argued), Miriam J. Manber, Esquire, HOGUET NEWMAN REGAL & KENNEY,
LLP, New York, New York, for Appellee Syngenta Crop Protection LLC.
TRAYNOR, Justice:

Under “claims made” liability insurance policies, whether a communication

to the insured constitutes a “claim” or a “claim for damages” is consequential to the

identification of the policy applicable to the purported claim. It is not unusual for

an insurer to deny coverage on the grounds that a communication does not constitute

a claim made within the relevant policy period. In this case, we encounter the

opposite. The insurers here denied coverage, contending that a letter from a lawyer

to the insured threatening litigation on behalf of unidentified clients before the

inception of the insurers’ coverage was a “claim for damages.” Because the letter

was not received by the insured “during the policy period,” there is, according to the

insurers, no coverage, and they sought a declaratory judgment from the Superior

Court to that effect.

The Superior Court disagreed with the insurers and held that the letter, though

it threatened future litigation, was too “unclear [and] amorphous . . . to constitute a

claim for damages.”1 The litigation threatened in the letter did ensue but after the

inception of the insureds’ policies and during the periods of coverage at issue. The

court thus entered summary judgment in favor of the insured. For the reasons that

1
Zurich Am. Ins. Co. v. Syngenta Crop Prot., LLC, 2020 WL 5237318, at *8 (Del. Super. Ct. Aug.
3, 2020) (“Op.”).

2
follow, we agree with the Superior Court’s reasoning and judgment and therefore

affirm.

I

A

Appellants Zurich American Insurance Company and American Guarantee

and Liability Company (collectively, “Zurich”) are New York corporations offering

insurance services in Delaware.2 Appellee Syngenta Crop Protection, LLC

(“Syngenta”) is a Delaware LLC indirectly wholly owned by Syngenta Crop

Protection AG, a global agrichemical company.3

Zurich issued three primary commercial general liability policies to Syngenta

Crop Protection AG with Syngenta as an additional named insured covering periods

from January 1, 2017 to January 1, 2020 (collectively, the “Primary Policies”).4

Each Primary Policy provided a $5 million aggregate limit of liability in excess of a

self-insured retention of $1 million.5 Zurich also issued Syngenta three Umbrella

Policies, effective for the January 1, 2017 to January 1, 2020 policy periods.6 Under

the Umbrella Policies, Zurich agreed to pay covered damages in excess of the total

2
App. to Answering Br. at B439–440.
3
Id. at B405, B440.
4
Id. at B441; App. to Opening Br. at A625, A627. Policy number GLO 0144423 00 was effective
January 1, 2017 to January 1, 2018; policy number GLO 0144423 01 was effective January 1,
2018 to January 1, 2019; and policy number GLO 0144423 02 effective January 1, 2019 to January
1, 2020.
5
App. to Opening Br. at A631, A677.
6
Opening Br. at 16; App. to Opening Br. at A771.

3
limits of the applicable Primary Policy up to $19 million.7 We refer to the Primary

and Umbrella Policies collectively as the “Zurich Policies.”8

Under the Zurich Policies, Zurich is required to pay “sums that the insured

becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property

damage’ to which th[e] insurance applies”9 and Zurich has the “the right and duty to

defend” Syngenta against any suit seeking such damages.10 The policies treat all

claims of bodily injury resulting from a “common cause or condition” as one

occurrence.11 But the Zurich Policies are “claims-made” policies, that is, they apply

only to “claim[s] for damages . . . first made against [Syngenta] . . . during the policy

period[.]”12 The Zurich Policies do not define the term “claim for damages.”

B

Syngenta and its predecessor companies manufactured and sold paraquat, a

chemical compound used in herbicides that has been linked to the onset of

Parkinson’s disease.13 Syngenta has been named as a defendant in several lawsuits

7
App. to Opening Br. at A772.
8
The relevant language is identical in each policy. See Opening Br. at 16.
9
App. to Opening Br. at A730.
10
Id.
11
Id. at A767.
12
Id. at A730 (emphasis added). See First Solar, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh,
PA, 274 A.3d 1009 (Del. 2022) (citing United Westlabs, Inc. v. Greenwich Ins. Co., 2011 WL
2623932, at *3 (Del. Super. June 13, 2011), aff’d, 38 A.3d 1255 (Del. 2012)).
13
See Op. at *2.

4
seeking recovery for alleged bodily injuries, sickness, or disease caused by paraquat

exposure.14

On January 18, 2016, Syngenta received a 20-page letter from Stephen M.

Tillery, a named partner in Korein Tillery LLC, a plaintiffs’ toxic tort firm (the

“Tillery Letter”).15 The first paragraph of the letter states:

Since I have heard nothing from any outside counsel for Syngenta
concerning the topic of our recent discussion[,] I have decided to write
to explain this topic a bit further. Our firm has been retained by
numerous victims of Parkinson’s disease in connection with claims
they and their spouses have against Syngenta for personal injuries and
related damages. Virtually all of these men are farmers or pesticide
applicators who have a positive history of exposure to Paraquat.16

Sandwiched between this opening and the letter’s concluding paragraph sit sixteen

pages of technical information concerning paraquat’s composition, application, and

purported neurotoxicity. The letter culminates in an allegation that Syngenta “failed

to warn . . . [of the] chemicals.”17 It concludes with the following:

We believe that when all of this scientific information we have learned
is publicly disseminated there will likely be a huge number of “copycat”
lawsuits causing Syngenta to incur enormous defense costs all over the
country and exposure to liability far above its insurance policy limits.
As a simple example, if just 2,000 new Parkinson’s cases are filed each
year (we expect far more) and defense costs of $500,000 per case are
incurred, the financial exposure to Syngenta will equal one billion
annually before payment of compensatory or punitive losses. As I
indicated in our call, we believe the prudent approach is to pursue a few
14
The earliest-filed lawsuit, not at issue in this appeal, was filed was filed on May 30, 2008 in the
Superior Court of Los Angeles, California (the “Shenkel Lawsuit”). See Op. at *2.
15
App. to Opening Br. at A140.
16
Id.
17
Id. at A158.

5
“bellwether” cases. These trials will allow Syngenta and my firm to
avoid the enormous time and expense of pursuing cases all over the
country while we determine legally whether the chemical is responsible
for the onset of Parkinson’s disease. While those case are being
pursued, I believe we can execute tolling agreements for the numerous
(now over 200) remaining cases. Please let me hear from you regarding
these matters at your earlier convenience.18

Tillery sent a second letter one week later to “notif[y] Syngenta . . . of the imminent

initiation of litigation concerning Syngenta’s paraquat products and [to] request[]

that Syngenta take all steps necessary to preserve any and all documents . . . that

could be discoverable in litigation concerning its subject matter[.]”19 The second

letter, like the first, did not name any plaintiffs.20

Following receipt of the letters, Syngenta engaged Kirkland & Ellis LLP

(“Kirkland”) who met with Tillery in February 2016 and requested information

regarding the claimants and their injuries.21 Tillery declined to provide that

information.22 In an email composed on the day of this meeting and entitled

“Summary of Meeting with Tillery,” Kirkland described Tillery’s reluctance to

provide any specific information—noting that “[w]e repeatedly pressed Tillery for

18
Id. at A158–59.
19
Id. at A160.
20
Id. at A160–62.
21
Id. at A169. Below, Zurich argued that the second letter, like the first, constituted a claim for
damages on its face. See Super. Ct. Docket Index. No. 29, Opening Br. at 7, 20. (“Super. Ct. D.I.
__”). The Superior Court determined that the second letter was a “request . . . for preservation of
materials that could be discoverable in litigation that has not yet been initiated. Thus, it [wa]s a
litigation hold letter, and not a claim for damages.” Op. at *9 (emphasis in original). Zurich has
not challenged that holding on appeal.
22
App. to Opening Br. at A169.; see also id. at A180–81.

6
details about his plaintiffs’ claims--who they are, how they were exposed, when they

were diagnosed, their age, etc. Tillery responded mostly with generalities[.]”23

Kirkland also noted that, at the meeting, Tillery stated that he had “200-300”

paraquat clients that were mostly “grain farmers or applicators” local to the Madison

or St. Clair areas and were diagnosed with Parkinson’s in their “late 50s or early

60s,”24 but Tillery refused to provide any specific information on any plaintiffs.

Tillery also declined to name any experts he had retained.25 Kirkland noted that

Tillery was “not in [a] big hurry to file.”26 This led Syngenta’s Global Head of

Litigation to conclude that Tillery did not represent actual claimants and would not

“file any lawsuit against Syngenta at that time.”27

In April 2016 Kirkland emailed Tillery to “better understand[]” Tillery’s

proposal and “asked for medical records for the six plaintiffs [Tillery] described as

the bellwether plaintiffs,” as well as copies of any documents suggesting that

Syngenta had knowledge of a potential connection between paraquat and

Parkinson’s disease.28 Tillery did not respond to Kirkland’s requests in 2016.29

23
Id. at A180.
24
Id.
25
Id. at A182.
26
Id.
27
Id. at A169–70.
28
App. to Answering Br. at B2.
29
App. to Opening Br. at A170–71. App. to Answering Br. at B640–41.

7
Tillery testified at his deposition in this action that by the end of 2016, he had

not provided Kirkland or Syngenta with the names of, any specific identifying

information regarding, or medical documentation for, any of his clients.30 He also

testified that, by the end of 2016, he had not retained any experts, and had not made

any demand for money to Kirkland or Syngenta on behalf of any client.31

In September 2017, two plaintiffs—a farmer and his wife—filed suit against

Syngenta in an Illinois circuit court alleging that the plaintiffs suffered injuries

related to paraquat exposure (the “Hoffman Action”).32 The Hoffman Action, filed

by Sprague & Urban Law Office,33 was followed by two additional actions in Illinois

and ten in the Superior Court of California (collectively, the “Paraquat Actions”)

filed between September 2017 and April 2019.34 The Tillery firm was not listed as

counsel on the Hoffman Action, but was named as counsel for the plaintiffs in the

later Paraquat Actions.35

The plaintiffs in the Paraquat Actions are farmers, farm hands, landowners

and/or professional sprayers who allege that they suffer from Parkinson’s disease

caused by exposure to paraquat manufactured, distributed, or sold by Syngenta and

30
App. to Answering Br. at B639–41.
31
Id.
32
App. to Opening Br. at A222. An amended complaint was filed on October 6, 2017. See id. at
A278.
33
App. to Opening Br. at A276, A556.
34
Answering Br. at 12–13; App. to Answering Br. at B307.
35
See Super. Ct. D.I. 24, Exs. C–P.

8
its predecessors.36 The Paraquat Actions assert claims for negligence, public

nuisance, strict product liability, and breach of implied warranty of

merchantability.37 The plaintiffs in the Paraquat Actions seek monetary damages for

lost income and medical treatment, pain, mental anguish, and disability.38

In November 2017, Syngenta notified Zurich of the Hoffman Action.39 That

notice did not mention the Tillery Letter.40 In a June 22, 2018 letter Zurich agreed

to defend Syngenta in connection with the Hoffman Action once Syngenta had

exhausted its $1-million self-insured retention.41 That same day, Zurich requested

“the total defense costs incurred [and] . . . a copy of the 2018 defense budget[.]”42

In response, Syngenta “confirmed the total legal defense expenditure incurred from

first receipt of a notice of potential litigation from the Korein Tillery law firm in

January 2016 is approx. $3.43 Million” (the “Kirkland Fees”).43 This, it would

appear, was Syngenta’s first disclosure of the Tillery Letter to Zurich.44

Three months later, on September 14, 2018, Syngenta notified Zurich that it

had exhausted its self-insured retention policy and requested that Zurich pay its

36
Super. Ct. D.I. 168, ¶ 25.
37
Id., ¶ 26.
38
Id.
39
App. to Answering Br. at B22–23.
40
Id.
41
Id. at B29–35.
42
Id. at B24.
43
Id.
44
Answering Br. at 54 (citing B24).

9
defense costs.45 Zurich requested proof that Syngenta had exhausted its $1 million

limit before agreeing on January 15, 2019 to defend Syngenta in the Hoffman Action

subject to a reservation of rights.46 Five days before Zurich agreed to defend and

indemnify Syngenta for the Paraquat Actions, Syngenta provided Zurich with notice

of two additional Paraquat Actions filed by the Tillery firm against Syngenta.47

On January 28, 2019—six months after learning that the Tillery firm had

given notice of potential litigation in January 2016—Zurich requested a copy of the

Tillery Letter and any subsequent correspondence with Tillery related to the

Paraquat Actions.48 In April 2019 Syngenta provided notice of ten additional

Paraquat Actions filed by Tillery and provided the Tillery Letter to Zurich.49

C
Two weeks after receiving a copy of the Tillery Letter, Zurich filed suit in the

Superior Court, requesting a declaratory judgment that: (1) Zurich owed no duty to

defend or to indemnify Syngenta in the Paraquat Actions under the Zurich Policies

because the actions were based on claims made against Syngenta in January 2016,

that is, in the Tillery Letter before the inception of the Zurich Policies and (2) under

18 Del. C. § 2711, Syngenta was not entitled to coverage for the Paraquat Actions

45
App. to Opening Br. at B42.
46
Id. at B74–75, B97.
47
Id. at B94–95.
48
App. to Opening Br. at A866.
49
Id. at A868–69; App. to Answering Br. at B307.

10
because of its “misrepresentations, omissions, concealment of facts, and incorrect

statements in its applications for the Zurich Policies . . .”50 related to the Shenkel

Lawsuit, Hoffman Action, and Tillery Letter.51 In its answer and counterclaim

against Zurich, Syngenta asserted a breach of contract claim and requested a

declaratory judgment that Zurich had a duty to defend and indemnify Syngenta in

the Paraquat Actions.

D

Shortly after filing suit, Zurich moved to compel discovery, seeking

disclosure of privileged communications between Syngenta and its lawyers. Zurich

contended that the communications were subject to disclosure under the “at issue”

exception to the attorney-client privilege. The exception applied, according to

Zurich, because “Syngenta ha[d] injected numerous issues into [the] litigation

regarding its understanding of the Tillery Letter and its exposure to potential

Paraquat claims, so fairness require[d] an examination of Syngenta’s allegedly

privileged documents and testimony regarding these issues to resolve Zurich’s

Section 2711 claim.”52

50
App. to Answering Br. at B475–76.
51
Id. at B469–78. Zurich concedes that Syngenta’s 2018 application included notice of the
Hoffman Action, but alleges that Syngenta understated the related costs. Zurich’s complaint also
sought recoupment of defense costs advanced by Zurich for the paraquat Parkinson’s disease
claims and restitution. Id. at B478–79. Those claims are not before us on appeal.
52
App. to Opening Br. at A878.

11
In a transcript ruling, the Superior Court granted Zurich’s motion in part and

denied it in part. The court determined that the “at issue” exception was only

partially implicated53 by the positions taken by Syngenta and thus ordered Syngenta

to produce certain otherwise privileged communications in redacted form.

Documents that “relay[ed] factual information . . . [about] what Tillery said, or . . .

information [Syngenta]found out about 200 other product claims . . .”54 were to be

produced. Under the court’s ruling, however, Syngenta was permitted to redact “the

attorneys’ reactions, their work product or the advice or the other privileged

communication which was transmitted to the client on the basis of that factual

information.”55

E

After discovery, the parties filed cross-motions for partial summary judgment

on the issue that is central to Zurich’s appeal: whether Zurich had a duty to defend

and indemnify Syngenta in the Paraquat Actions. Because the Zurich Policies

excluded coverage for “claim[s] for damages” made against Syngenta before the

policies’ inception, the answer hinged upon the Superior Court’s determination

whether the Tillery Letter—indisputably received before inception—was a claim for

53
Opening Br. Ex. 3 at 52.
54
Id. at 51–52.
55
Id. at 52.

12
damages. The court found that it was not and entered summary judgment in

Syngenta’s favor.

After the ruling, Zurich filed an amended complaint again seeking a

declaration that Zurich owed no duty to defend and indemnify Syngenta for the

Paraquat Actions. Zurich reasserted, based on new documents produced by

Syngenta, that the Tillery Letter constituted a claim for damages. Zurich also

requested recoupment of defense costs advanced to Syngenta and restitution.

Syngenta in turn filed amended counterclaims asserting that Zurich’s denial of

coverage was made in bad faith.

The parties again filed cross-motions for summary judgment on the issue of

whether the Tillery Letter constituted a claim for damages. Zurich also moved for

summary judgment on its claims for recoupment and restitution and on Syngenta’s

bad-faith counterclaim, alleging for the latter that Zurich’s denial of coverage was

reasonable and justified. Syngenta sought summary judgment on Zurich’s amended

complaint in its entirety; it argued that the court’s August 3, 2020 opinion was not

subject to reconsideration and that Syngenta had made no material omissions or

misrepresentations in its application for insurance.

The court concluded that “no newly-discovered evidence or additional factual

submission” raised a genuine issue of material fact on whether the Tillery Letter was

a “claim for damages” and announced that “[t]he [c]ourt’s decision on Zurich’s duty

13
to defend Syngenta under the Primary and Umbrella Policies, for purposes of the

Paraquat Actions, remains unchanged.”56 Because it found that Zurich had the duty

to defend, the court also denied as moot Syngenta’s motion for summary judgment

on Zurich’s claims for recoupment and restitution. The court granted Zurich’s

motion for summary judgment on Syngenta’s bad-faith counterclaim because it

determined that there was a bona fide dispute over coverage. And finally, the court

found that genuine issues of material fact precluded the entry of summary judgment

on Zurich’s § 2711 claim.57

F

The Superior Court’s summary-judgment rulings disposed of all but Zurich’s

request for summary judgment on its § 2711 claim and its related claims58 for

reimbursement of defense costs. After a six-day bench trial, the Superior Court

found that Syngenta’s failure to disclose the Kirkland Fees and the Tillery Letter on

its application for insurance was not material under 18 Del. C. § 2711(2) and (3).

Consequently, the court denied Zurich’s request for a declaratory judgment and for

reimbursement of defense costs.

56
Zurich Am. Ins. Co. v. Syngenta Crop Prot. LLC, 2022 WL 4091260, at *5 (Del. Super. Ct. Aug.
24, 2022).
57
Id. at *8–9.
58
In its amended complaint, Zurich requested separately recoupment of defense costs and
restitution. Syngenta’s motion for summary judgment on those counts was dismissed as moot in
the August 24, 2022 opinion. See id. The counts were subsequently denied in the post-trial opinion
on Zurich’s § 2711 claim. See Zurich Am. Ins. Co. v. Syngenta Crop Prot. LLC, 2023 WL 2671799
(Del. Super. Ct. Mar. 28, 2023).

14
In this appeal, Zurich does not contest the Superior Court’s post-trial decision;

instead, it challenges two pretrial rulings. First, Zurich argues that the Superior

Court erred by denying its motion for summary judgment on its claim that, because

the Tillery Letter was a claim for damages before the Zurich Policies incepted, there

was no coverage under its policies. Second, Zurich contends that the Superior Court

erred when it denied its motion to compel Syngenta’s privileged communications

under the “at issue” exception. For its part, Syngenta cross-appeals, challenging the

Superior Court’s entry of summary judgment in Zurich’s favor on Syngenta’s

bad-faith claim.

II
A
The interpretation of an insurance contract is a question of law subject to de

novo review.59 We also review the Superior Court’s grant of summary judgment de

novo.60

Zurich has the duty to defend Syngenta in, and to pay damages resulting from,

suits claiming bodily injuries covered under the Zurich Policies.61 The parties do

not dispute that the claims made in the Paraquat Actions are of the type that qualify

for coverage. The only remaining coverage dispute is whether the Paraquat Actions

59
RSUI Indem. Co. v. Murdock, 248 A.3d 887, 905 (Del. 2021).
60
Arnold v. Soc’y for Sav. Bancorp, Inc., 650 A.2d 1270, 1276 (Del. 1994).
61
See App. to Opening Br. at A730.

15
are excluded from coverage because the Tillery Letter, when considered with “other

facts known to Syngenta,”62 constitutes a “claim for damages” predating the Zurich

Policies’ inception.63

As we have noted, the Superior Court addressed this issue first in response to

the parties’ initial cross-motions for summary judgment. In its August 3, 2020

opinion, the court found that the Tillery Letter, standing alone, was not a claim for

damages as that term is used in the Zurich Policies. The letter’s failure to “identify

any individual claimant or clarify any facts” was insufficient, the court wrote, to put

Syngenta “on notice that there [was] an actual person or persons who [were]

intending to file a claim for damages.”64 According to the court the letter

“constituted a threat of future litigation,”65 but the threat was “too unclear or

amorphous . . . to constitute a claim for damages.”66

After document production, Zurich moved yet again for summary judgment

on this issue, this time asserting that documents produced by Syngenta after the

court’s August 3, 2020 ruling showed that the Tillery Letter was indeed a claim for

damages. Zurich had learned in discovery that, in early 2016, Tillery had provided

Syngenta’s lawyers with additional information about the clients he represented in

62
Opening Br. at 25.
63
Id.
64
Op. at *8 (emphasis in original).
65
Id.
66
Id. at *9.

16
anticipated paraquat litigation. Tillery had identified his “200” clients as “primarily

men diagnosed in their 50s and 60s,”67 describing them as mostly “grain farmers or

applicators who worked on grain farms, [who] were either mixing/applying the

product or were in the vicinity while it was applied.”68 He also said that he intended

to file his bellwether cases in state court in southern Illinois. Yet Tillery still did not

identify any client by name and expressed uncertainty as to when he might file an

actual lawsuit. In its renewed motion, Zurich also highlighted that Syngenta’s

lawyers, in response to the Tillery Letter, had formed a “Paraquat Litigation

Team.”69

Syngenta responded that, if anything, the discovery record “conclusively

confirmed the appropriateness of the Court’s decision that no ‘claim for damages’

was made in 2016.”70 The centerpiece of Syngenta’s argument in this

summary-judgment round was Stephen Tillery’s deposition testimony that, as of the

last day of 2016, he had not demanded that Syngenta pay money, nor had he provided

Syngenta or its counsel with the name or other identifying information about any

claimant.

67
Super. Ct. D.I. 248 at 3–4.
68
Id. at 5.
69
Id. at 4, 25, 28, 31.
70
Super. Ct. D.I. 346 at 2.

17
The Superior Court was not persuaded by Zurich’s effort to fortify the Tillery

Letter with extraneous generalized communications from Stephen Tillery, noting

that the “new” evidence did “not provide specific evidence or disclosure tied to any

individual potential claimant.”71 The court concluded that

still there is not specific evidence - only groups and generalized
categories such as: age range, occupation, gender, and a generalized
disability that is the same as common Parkinson’s symptoms. The
alleged “new evidence” is still not sufficient to constitute a claim. There
is no newly-discovered evidence or additional factual submission that
raise genuine issues of material fact sufficient to present the case to the
jury. The Court finds there was no “Claim for Damages” at the time
coverage was denied. The Court’s decision on Zurich’s duty to defend
Syngenta under the Primary and Umbrella Policies, for purposes of the
Paraquat Actions, remains unchanged.72

On appeal, Zurich maintains its position that “[t]he Tillery Letter asserts a

‘claim for damages’ on the very face of the letter.”73 Though Zurich assures us that

we “need look no further than the letter itself”74 to conclude likewise, it adds that the

circumstances surrounding and following Syngenta’s receipt of the letter confirms

Zurich’s conclusion. Zurich provides a laundry list of the confirmatory

circumstances, including Syngenta’s settlement of lawsuits brought by Tillery years

before, Tillery’s identification of his purported clients as men in their 50s and 60s

who had been exposed to Paraquat and were severely disabled by Parkinson’s

71
Zurich Am. Ins. Co., 2022 WL 4091260, at *5.
72
Id.
73
Opening Br. at 27.
74
Id. at 37.

18
disease; the amount of fees Kirkland billed Syngenta in 2016 for Paraquat-related

issues; Tillery’s delivery of a litigation-hold notice to Syngenta; and Syngenta’s

parent’s disclosure to its auditor in early 2016 that Tilley had “threatened litigation”

in his January 2016 letter.75

Syngenta holds fast to its position that, under the unambiguous language of

the Zurich Policies, the Tillery Letter—with or without Tillery’s supplemental

disclosures—does not constitute a “claim for damages.” The letter “[n]either asked

for money [nor] identified any injured parties,”76 and was, according to Syngenta,

nothing more than “a threat of a future claim for damages, which . . . does not

constitute an actual claim of damages.”77

B

“Insurance contracts, like all contracts, ‘are construed as a whole, to give

effect to the intentions of the parties.’”78 Absent ambiguity, contract terms should

be accorded their plain and ordinary meaning.79 “A term is not ambiguous simply

because it is not defined[,]”80 nor is a term ambiguous because the parties do not

agree on its proper construction.81 “[A] contract is ambiguous only when the

75
Id. at 37–42.
76
Answering Br. at 4.
77
Id. at 3–4.
78
RSUI Indem. Co., 248 A.3d at 905.
79
Id.
80
1 Bradley W. Voss, Voss on Delaware Contract Law § 3.06 [2][j] at 3-35 (Jan. 2023) (citing
Sassano v. CIBC World Mkts. Corp., 948 A.2d 453, 468 n.86) (Del. Ch. Jan. 17, 2008)).
81
RSUI Indem. Co., 248 A.3d at 905.

19
provisions in controversy are reasonably or fairly susceptible of different

interpretations or may have two or more different meanings.”82

This court has not previously defined the term “claim for damages,” nor have

the parties pointed us to authority that squarely determines the meaning of the

phrase. As more fully developed below, however, we can discern the ordinary

meaning of “claim for damages”: in the absence of a contractual definition, a “claim

for damages,” is a demand or request for monetary relief by or on behalf of an

identifiable claimant. This is consistent with case law from this and other

jurisdictions as cited by both parties in this case.

We begin with a Superior Court opinion that both Zurich and Syngenta cite in

support of their preferred interpretations. Fifty years ago, in Lamberton v. Travelers

Indemnity Co.,83 the Superior Court confronted “[t]he question of whether the words

in [a] deductible provision of [an architect’s and engineer’s professional liability

policy], ‘each claim’ apply to each Occurrence of an incident or to each Assertion

by a person injured by an incident that he is entitled to compensation therefor . . . .”84

The court found it helpful to consider some “fundamental definitions” in its effort to

determine whether the term “each claim” was ambiguous.

The court reviewed the usual characteristics of a claim:

82
Id. at 906.
83
325 A.2d 104 (Del. Super. Ct. 1974), aff’d, 346 A.2d 167 (Del. 1975).
84
Id. at 106.

20
The entire concept of the word, when viewed broadly, brings to mind
someone who is asserting a right to something in the possession of
another. A ‘claim’ is a challenging request, a demand of a right, a
calling upon another for something due, a demand for benefits or
payment, a privilege to something, a title to something in the possession
of another, an assertion or statement, or a demand for payment under
an insurance policy upon the happening of a contingency against which
the policy is issued.85

With the exception of “an assertion or statement,” all the definitions mentioned by

the Superior Court strongly suggest that a claim involves the assertion of a right or

a demand for a remedy. And, from our viewpoint, when “claim” is said to mean

“assertion or statement,” it refers to “a statement that something yet to be proved is

true,”86 such as when a person makes a “claim” that a signed confession was coerced

or that a traffic light was green immediately preceding a collision. It seems obvious

that “claim” is not used in that sense in the Zurich Policies. It only makes sense if it

means something akin to a request for the enforcement of a right or a demand for a

remedy. That this usage was intended by the contracting parties here is supported

by the object of the “claim” at issue; it must be a “claim for damages.” One does

not make an “assertion or statement” for damages, but requests or demands them.87

Thus, as we read it, Lamberton, the only case cited in the section of Zurich’s opening

85
Id. at 107.
86
Claim, Black’s Law Dictionary (11th ed. 2019).
87
To be sure, a claimant might “assert a claim for damages” but that construction gets us no closer
to defining “claim” than when we started.

21
brief for the proposition that the Tillery Letter standing alone is a “claim for

damages,” provides meager support for Zurich’s position.

More recently, in AT & T Corp. v. Faraday Capital Ltd.,88 this Court

addressed a directors and officers liability policy carrier’s argument that “when a

demand [for damages] is made in the form of a lawsuit, one lawsuit equals one

‘Claim.’”89 This Court observed that “[c]ourts that have addressed the meaning of

the term ‘Claim,’ as used in liability insurance policies, generally conclude that the

term is unambiguous and ‘means and demand by a third party against the insured for

money damages or other relief owed.’”90 This definition dovetailed with the subject

policy’s definition of “Claim,” which included both “a written or oral demand for

damages . . .” and a “civil . . . proceeding initiated against any of the [Insureds]

. . . .”91 True, as Zurich argues, the Court in AT & T did not purport to determine the

general meaning of “claim” under Delaware law. Even so, both the Court’s

recognition of a generally accepted meaning and the policy definition, at a minimum,

confirm that the word “claim” in a liability insurance policy ordinarily connotes a

demand of some sort.

88
918 A.2d 1104 (Del. 2007).
89
Id. at 1107.
90
Id. at 1108 (citing Home Ins. Co. of Illinois v. Spectrum Info. Techs., Inc., 930 F.Supp. 825,
846 (E.D.N.Y. 1996)).
91
Faraday, 918 A.2d at 1109.

22
Before turning to the case law from other jurisdictions cited by the parties, we

pause to note that the meaning ascribed to “claim” in both Lamberton and AT & T

lines up neatly with dictionary definitions. The definitions found in Black’s Law

Dictionary are illustrative. The most pertinent definitions there are “2. [t]he

assertion of an existing right; any right to payment or to an equitable remedy, even

if contingent or provisional . . . [; and] 3. [a] demand for money, property, or a legal

remedy to which one asserts a right. . . .”

In our view, under any of these definitions and characterizations of what is

generally understood to be a “claim” under a liability insurance policy, the Tillery

Letter falls short. If the letter demands—or even requests—anything, it is an

opportunity to discuss a process by which claims not yet made might be adjudicated

or otherwise resolved in the future. And even if it were a “claim,” it does not request

or demand “damages,” a word that means “[m]oney claimed by, or ordered to be

paid by one person to another as compensation for a loss or injury.”92 Try as it might

and despite a comment by the trial court that might suggest otherwise (more about

which we write later), Zurich simply cannot point to any request or demand for

monetary relief in the Tillery Letter.

92
Damages, Black’s Law Dictionary (11th ed. 2019).

23
C

The cases from other jurisdictions upon which Zurich relies do not support its

position that a letter from a lawyer threatening litigation on behalf of unidentified

clients with only the vaguest reference to damages should be deemed a “claim for

damages.” For instance, in Berry v. St. Paul Fire & Marine Insurance Co.,93 the

United States Court of Appeals for the Eighth Circuit considered whether a letter

from plaintiff’s counsel to a sandblaster manufacturer was a “claim,” defined under

the relevant insurance policy as “a demand in which damages are alleged.” The

letter itself was captioned “Products Liability Claim of Ronald D. Berry[,]

Sandblaster Model No. 350.”94 The letter stated that Berry had sustained personal

injuries and permanent disability as the result of his use of the manufacturer’s

product, asserted an attorney’s lien, and asked the manufacturer to forward the letter

to the manufacturer’s products liability insurance carrier. The court concluded that

the letter, “fairly read, clearly qualifies as a ‘claim.’” But, in opposition to that

conclusion, the carrier argued that the letter, containing no specific demand for

payment, was nothing more than “a communication of a present legal right.”95 The

court made short work of that argument:

We think the argument is strained. True, the letter does not request
payment of a specific dollar amount, but sometimes complaints in

93
70 F.3d 981 (8th Cir. 1995).
94
Id. at 982 (emphasis added).
95
Id.

24
actions actually filed in Court don’t either, so this omission does not
seem inconsistent with the letter’s being treated as a “claim.” Treating
the letter as other than a claim, it seems to us, requires a tortured
construction of its text. In our view, anyone receiving this letter would
know that Mr. Berry was claiming that he was owed money.96

The same simply cannot be said of the Tillery Letter and the surrounding

communications in which not a single person was identified as having a claim for

money against Syngenta.

In a similar vein, in Carosella & Ferry, P.C. v. TIG Insurance Co.,97 the court

had before it a letter from a lawyer to his client’s former lawyer threatening a

professional malpractice lawsuit. The letter was pointed:

You are hereby notified of the intent of Mr. and Mrs. Bradley to file an
action against you and your law firm for professional malpractice
consisting of your failure timely to litigate the issues raised in our
subsequent Motion to Strike Confessed Judgment. If you have not
already done so, please notify your errors and omissions carrier at once.
. . . 98

Under the relevant policy, there was coverage for wrongful acts, errors or

omissions occurring before the policy period but only if the insured “prior to the

policy period” did not have “a reasonable basis to foresee that a Claim would be

made against an Insured.”99 Because the insured received the above-quoted letter

before the policy’s inception, the court concluded that, “[a]pplying this standard of

96
Id.
97
189 F. Supp. 2d 249 (E.D. Pa. 2001).
98
Id. at 250.
99
Id. at 252–53.

25
foreseeability to the facts of this case, it is plain the Bradleys’ claim is not covered

by the policy.”100 It is difficult to discern how this finding, so tightly linked to the

foreseeability of a claim by identified clients who have stated through their attorney

a present intention to file suit, supports Zurich’s contention that the Tillery Letter is

a “claim for damages.”

Equally unavailing is Westrec Marina Management, Inc. v. Arrowhead

Indemnity Co.,101 a California case in which coverage hinged on whether Westrec

had timely reported a claim as required by the policies issued by Arrowhead. The

underlying claim against Westrec was brought by an employee alleging that she had

been subjected to employment discrimination and wrongful termination. Before

filing suit, the employee’s lawyer had sent a letter to Westrec describing the

employee’s claims and confirming that the employee had received a right-to-sue

notice from the Department of Fair Employment and Housing. The purpose of the

letter was “to see if Westrec would prefer to attempt to resolve or mediate this matter,

or if it will be necessary to file a lawsuit and have a jury decide the outcome.”102 In

the California court’s eyes, the letter “clearly expressed [the employee’s] intent to

100
Id. at 253.
101
78 Cal Rptr. 3d 264 (Cal. Ct. App. 2008).
102
Id. at 266–67.

26
sue Westrec for employment discrimination if an appropriate settlement could not

be reached.”103 Unremarkably, the court construed the letter as

a settlement demand seeking monetary compensation for the alleged
wrongdoing. Although the letter did not expressly demand payment or
refer to any specific amount, its meaning was clear that, absent some
form of negotiated compensation, Clark would commence a lawsuit
against Westrec. The attorney’s request for compensation while
threatening litigation was a “demand,” as that word is ordinarily
understood.104

And a written settlement demand fell within the policies’ definition of “claim,”

which included “a written demand for civil damages or other relief.”105 By contrast,

the Tillery Letter neither makes nor seeks any relief on behalf of any individual

claimant.106

For its part, Syngenta cites numerous cases from which it derives that a “claim

for damages” must take the form of a “demand or request for monetary payment.”

103
Id. at 268.
104
Id.
105
Id.
106
Compare App. to Opening Br. at A140 (Tillery Letter) with the remaining authorities Zurich
relies on in its briefing to support the claim that the Tillery Letter is a “claim for damages” under
the Zurich Policies—Precis, Inc. v. Fed. Ins. Co., 184 F. App’x 439, 441–42 (5th Cir. 2006) (letter
sent by a known claimant demanding monetary payment and the policy defined claim as a “written
demand for monetary damages”); Pine Mgmt., Inc. v. Colony Ins. Co., 2023 WL 2575082, at *1
(S.D.N.Y. Mar. 20, 2023) (letter demanding damages on behalf of a known claimant and the policy
defined claim as a “written demand . . . for monetary, nonmonetary[,] or injunctive relief”);
Paradigm Ins. Co. v. P & C Ins. Sys., Inc., 747 So. 2d 1040, 1041 (Fla. Dist. Ct. App. 2000) (letter
sent on behalf of a known claimant and the policy defined claim as “a demand for money or
services made by a third party, made in writing against the Insured[,] and actually received by the
Insured”); Herron v. Schutz Foss Architects, 935 P.2d 1104, 1107 (Mont. 1997) (letter sent on
behalf of a known claimant and the policy defined claim as “the receipt of a demand for money or
services, naming you and alleging a wrongful act.”).

27
The policies under consideration in many of those cases, unlike the Zurich Policies,

define “claim,” as including the elements of “demand” or monetary relief and, in

some cases, both. For example, the policy in Employers Insurance of Wausau v.

Bodi-Wachs Aviation Insurance Agency, Inc.,107 defined “claim” as including “all

claims or suits for damages” and, in turn, stated that “damages” means “monetary

judgment, award or settlement.”108 Likewise, in a case decided by our Superior

Court, Sycamore Partners Management., L.P. v. Endurance American Insurance.

Co.,109 the policies defined “claim” as “any written demand for monetary or non-

monetary relief (including, but not limited to, injunctive relief) commenced by the

receipt of such demand.”110 And, as mentioned above, the policy before this Court

in AT & T Corp. v. Faraday Capital Ltd., defined “claim” as including “a written

oral demand for damages . . . .”111

107
39 F.3d 138 (7th Cir. 1994).
108
Id. at 141.
109
2021 WL 4130631 (Del. Super. Ct. Sept. 10, 2021).
110
Id. at *2.
111
Faraday, 918 A.2d at 1104. See also Med. Depot Inc. v. RSUI Indem. Co., 2016 WL 5539879,
at *8 (Del. Super. Ct. Sept. 29, 2016) (defining claim as “a written demand for monetary relief.”);
Myers v. Interstate Fire & Cas. Co., 2008 WL 276055, at *4 (M.D. Fla. Jan. 30, 2008) (defining
claim as “a demand for money, or the filing of [a] Suit naming the Named Insured and alleging a
Bodily Injury or Property Damage as a result of a Medical Incident”); Nat’l Fire Ins. v. Bartolazo,
27 F.3d 518, 519 (11th Cir. 1994) (defining claim as “the receipt by you of a demand for money
or services, naming you and alleging a medical incident.”); MHM Corr. Servs., Inc. v. Evanston
Ins. Co., 2023 WL 4743754, at *7 (Ill. App. Ct. July 25, 2023) (defining claim as either a “demand
for monetary damages . . . [or] service of a suit against the Insured.”); Harris Thermal Transfer
Prods., Inc. v. James River Ins. Co., 2010 WL 2942611, at *2 (D. Or. July 19, 2010), aff’d, 457 F.
App’x 660 (9th Cir. 2011) (defining “‘Claim’” for coverage purposes as ‘a written demand for
monetary damages’”); SNL Fin., LC v. Philadelphia Indem. Ins. Co., 455 F. App’x 363, 365 (4th
Cir. 2011) (defining claim as either “a written demand for monetary or non-monetary relief . . .

28
D

As can be seen, the policies at issue in the cases Zurich and Syngenta cite in

support of their respective arguments as to whether the Tillery Letter was a “claim

for damages” typically provide some explicit definitional guidance as to the meaning

of “claim.” This dims the light they might otherwise shed on the Zurich Policies,

which are devoid of such guidance. Still, they are illustrative of what is typically

characterized as a “claim”—and, in turn, “a claim for damages”—under a liability

insurance policy.

First among the characteristics of a “claim” is the existence of an identifiable

claimant. Zurich faults the Superior Court for not identifying any policy language,

case law, or other justification supporting such a requirement. It argues further that,

even if the requirement exists, “Mr. Tillery’s affirmative representation that his firm

was retained by clients should have been sufficient to put Syngenta on notice”112 that

he represented actual claimants.

[or] a judicial or civil proceeding commenced by the service of a complaint or similar pleading.”);
Clarendon Nat’l Ins. Co. v. Muller, 237 F. App’x 451, 452 (11th Cir. 2007) (defining claim as “a
demand received by the Insured for money or services arising out of an act or omission, including
personal injury, in the rendering of or failure to render legal services.”); Fla. Dep’t of Fin. Servs.
v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 2012 WL 760606, at *3 (N.D. Fla. Mar. 7, 2012)
(noting that under the policy a claim could include a “demand” for non-monetary relief . . .
“reported to the Insurer ... for any actual or alleged Wrongful Act.”); McCullough v. Fid. & Deposit
Co., 2 F.3d 110, 113 (5th Cir. 1993) (policy required “the insured to give written notice of specified
wrongful acts”); Chatz v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pennsylvania, 372 B.R. 368,
373 (N.D. Ill. 2007) (policy required “full particulars” for notice requirement to be satisfied).
112
Opening Br. at 30.

29
Zurich’s concern about the absence of policy language or case law supporting

the proposition that only an identifiable claimant or someone acting on her behalf

can make a “claim for damages” is puzzling. The proposition is inherent in the very

concept of a claim for damages, which evokes questions that can only be answered

with reference to the specific, identifiable person making the claim. Who, for

instance, but an identifiable claimant herself, can confirm the nature and extent of

the damages, especially to the extent that they are unique and distinguishable from

the damages suffered by other claimants? It is not difficult, moreover, to conceive

practical difficulties that would attend the adoption of Zurich’s position. For

example, how does one address, evaluate, or satisfy a claim for damages when the

identity of the claimant is concealed?

That the existence of an actual, identifiable claimant is implicit in the concept

of a “claim for damages” also explains the absence of case law on this point. Indeed,

every case cited by the parties in their briefing involves an actual named claimant.

In this regard, we are not persuaded by Zurich’s contention that a lawyer’s

representation that his firm has been retained by unidentified clients who intend to

bring a claim in the future should suffice to put an alleged tortfeasor on notice that

there is an actual person making a claim for damages. Once again, Zurich’s

argument overlooks the essence of a “claim,” which is a demand or request for relief.

One cannot plausibly demand or request relief, much less money damages, on behalf

30
of a client whose identity is unknowable to the person or entity upon whom the

demand is made. Simply put, Zurich has offered nothing that casts doubt on the

notion that the existence of an identifiable claimant is an essential element of a

“claim for damages.”

The claims addressed in the cited authorities also share the common

characteristic of claiming something more than that wrongdoing occurred; they

request or demand relief.113 On this point, it bears noting that the provision we are

interpreting here, in contrast to the cases that seek to discern the meaning of “claim,”

explicitly requires a request or demand for relief, that is “for damages.” A “claim

for damages,” however—and here we agree with Zurich—need not demand a sum

certain.114 Finally, the case law teaches that mere threats or statements of intention

113
Sycamore Partners Mgmt., L.P., 2021 WL 4130631, at *18 (“identifying a wrongdoing, without
demanding relief, is not a Claim.”); Bartolazo, 27 F.3d at 519 (letter “merely request[ing] medical
records and allud[ing] to a claim for malpractice” but “ma[king] no demand for money or services”
was not a “claim”); MGIC Indem. Corp. v. Home State Sav. Ass’n, 797 F.2d 285, 288 (6th Cir.
1986) (“[t]he word ‘claim,’ . . . is one of those ‘words of many-hued meanings [which] derive
their scope from the use to which they are put’ . . . the only kind of ‘claim or claims’ that could
trigger the insurer’s obligation to pay would be a demand for payment of some amount of
money.”); Klein v. Fid. & Deposit Co. of Am., 700 A.2d 262, 270–75 (Md. Ct. Spec. App. 1997)
(threatening letters not “claims” because they “at most, simply warn[ed] that claims were likely to
be filed” and did not “explicitly or implicitly, demand money[.]”).
114
Berry, 70 F.3d at 982 (letter did not state “damages of a particular dollar amount”); Precis, Inc.,
184 F. App’x at 441 (“[t]he fact [the claimant] does not propose a specific amount for settlement
does not mean that the letter is not a demand for money.”); Pine Mgmt. Inc., 2023 WL 2575082,
at *3 (“a ‘demand that [an insured] rectify a problem’ can be sufficient to constitute a claim.”);
Herron, 935 P.2d at 1109 (letter making “no request for a specific dollar amount,” was a claim
where on its face it indicated that it sought payment by requesting that the insured contact its
insurance carrier).

31
to file a lawsuit or claim and some indefinite future date is not a claim for

damages.”115

E

We return then to where we began our analysis of the ordinary meaning of

“claim for damages.” To reiterate, our case law does not dictate, but is consistent

with, our conclusion that a “claim for damages” is a demand or request for monetary

relief by or on behalf of an identifiable claimant. We are satisfied that this definition

is in accord with how other courts have treated similar, though not identical,

claims-made provisions of liability insurance policies.

We are equally convinced that the Superior Court correctly concluded that the

Tillery Letter and related communications did not constitute a “claim for damages”

under the Zurich Policies. The letter, as mentioned before, does not identify any

claimants, except in the vaguest terms. And because Stephen Tillery was not

prepared to disclose the identity of the clients or to proceed with litigation, he could

not—and did not—demand or request monetary relief on behalf of a claimant.

115
Emps. Ins. of Wausau, Inc., 39 F.3d at 142 (attorney letter referring to “the potential of a
negligence claim against [the insured]” did not “constitute a clear demand for damages but merely
notice that a demand may be made in the future.”); Med. Depot Inc., 2016 WL 5539879, at *1, *9
(“demand letter” in which an attorney “threatened to file a class action lawsuit” on behalf of his
named client “if [the insured] did not bring itself into compliance” was a “precursor to a lawsuit
for monetary relief,” not a “Claim” under the policy); In re Ambassador Grp., Inc. Litig., 830 F.
Supp. 147, 154–55 (E.D.N.Y. 1993) (holding that although “claim” was not defined by the policy,
a claim was “something more than the threat of a lawsuit” and a letter indicating “the likelihood,
if not inevitability, of some future claim,” did not constitute a “claim made” under the policy).

32
Zurich points out that the Superior Court “acknowledged that ‘[t]aken as a

whole, the Tillery Letter is reasonably interpreted as requesting damages.’”116 At

first blush, the quoted statement would appear to clash with the Superior Court’s

earlier statement that “[t]he Tillery Letter did not request monetary damages.”117

The discrepancy is best explained, in our view, by the context within which the

Superior Court found the letter “request[ed] damages” was made. Zurich leaves out

that the quoted snippet was preceded by the court’s conclusion that the letter was not

a claim but a mere “threat of future litigation,”118 and followed closely by a

characterization of the letter as “proposing a future method by which to resolve any

future claims.”119 Read in this light, the reference to “requesting damages” appears

to refer, albeit imprecisely, to damages that might be recoverable under future claims

or in future litigation.

III

Zurich contends that, should we agree, as in fact we have, with the Superior

Court that the Tillery Letter was not a “claim for damages,” then it should be entitled

to a remand and discovery of certain attorney-client communications under the “at-

issue” exception. According to Zurich, “[t]he trial court erred when it denied

116
Opening Br. at 33 (quoting Op. at *9) (italics in original).
117
Op. at *3 (emphasis added).
118
Id. at *9 (emphasis in original).
119
Id.

33
Zurich’s motion to compel Syngenta’s privileged communications with Kirkland

under the ‘at issue’ doctrine because it effectively prevented Zurich from

challenging Syngenta’s purported belief that Tillery had no actual clients at the time

he sent his letter in 2016.”120

We decline Zurich’s invitation to prolong this case so that it can peek into

Syngenta’s privileged communications. The Tillery Letter either is or is not a “claim

for damages” regardless of Syngenta’s lawyers’ subjective beliefs. Zurich,

moreover, appears to have understood that when it sought production of the

communications in the Superior Court. Zurich sought the documents in furtherance

of its § 2711 claim. On this point, its motion to compel could not be clearer:

discovery sought by Zurich is critical to a full understanding of the
issues Syngenta has raised to defend against Zurich’s Section 2711
claim, including Syngenta’s assertions that: (1) its failure to disclose
information about the Tillery Letter was not an “omission” because it
did not “reasonably expect” the allegations described by the Tillery
Letter to exceed $2 million in loss if lawsuits materialized; and (2) even
if the failure to disclose the Tillery Letter was an “omission,” it was not
“material” because Zurich’s knowledge of the risks surrounding
Paraquat was equivalent to Syngenta’s own knowledge.121

120
Opening Br. at 8.
121
Super. Ct. D.I. 142 at 3 (emphasis added).

34
Having not appealed the Superior Court’s rejection of its § 2711 claim after

trial, Zurich may not now revive a discovery claim that it did not fairly present

below.122

IV

In its cross appeal, Syngenta asserts that the Superior Court erred in

dismissing Syngenta’s bad-faith counterclaim. This is so, Syngenta contends,

because the court “did not consider Zurich’s failure to perform any investigation into

the stated basis for denial before denying coverage”123 and because Zurich’s denial

of coverage in reliance upon the Tillery Letter was pretextual, and thus, in bad faith.

Zurich responds that it had a reasonable justification to deny coverage at the time of

the denial “both on the basis that the Tillery Letter constituted a ‘claim for damages’

that was ‘first made’ prior to the inception of the Zurich Policies . . . and on the basis

that that Syngenta failed to disclose material information about the Tillery Letter in

violation of 18 Del. C. § 2711[.]”124

“In order to establish ‘bad-faith’ the [policyholder] must show that the

insurer’s refusal to honor its contractual obligation was clearly without any

122
Under Supr. Ct. R. 8, “[o]nly questions fairly presented to the trial court may be presented for
review; provided, however, that when the interests of justice so require, the Court may consider
and determine any question not so presented.” Here, the interests of justice do not weigh in favor
of considering and determining this issue.
123
Answering Br. at 6.
124
Zurich Reply Br. at 37.

35
reasonable justification.”125 Reasonable justification requires that, at the time of the

denial, facts or circumstances were known to Zurich that created a bona fide

coverage dispute and therefore a meritorious defense to the insurer’s liability.126

“Where the issue to be tried is one of disputed fact, the question of bad faith refusal

to pay should not be submitted to the jury unless it appears that the insurer did not

have reasonable grounds for relying on its defense to liability.”127

At the time Zurich denied coverage, that is, two weeks after it first received a

copy of the Tillery Letter, Zurich was aware of the following facts and

circumstances: that the Tillery Letter predated the Zurich Policies; that Syngenta

had incurred the Kirkland Fees dating back to the receipt of the Tillery Letter; that

the Tillery firm had filed at least twelve actions against Syngenta; and that Syngenta

had not mentioned the Tillery Letter in its application for the Zurich Policies. In our

view, these facts provided a reasonable justification for challenging coverage at the

time of the denial. Syngenta’s argument that Zurich’s reliance on these facts is

pretextual is unavailing— an insurer’s purported motive, as alleged by the insured,

is irrelevant on a bad-faith claim where reasonable grounds for the denial exist.128

125
GEICO Gen. Ins. Co. v. Green, 276 A.3d 462, 2022 WL 1052195, at *8 (Del. 2022) (TABLE)
(quoting Casson v. Nationwide Ins. Co., 455 A.2d 361, 369 (Del. 1982)).
126
Id.
127
Casson, 455 A.2d at 369.
128
See id. at 368–70 (discussing that even if the court accepted the factual inference that the
insurer’s decision “was a deliberate attempt to deny [the insured] benefits,” because the court had
determined that a bona fide coverage dispute otherwise existed, the record “simply fail[ed] to
support [an] argument that no reasonable basis” for denial existed).

36
Further, that we have determined on appeal that the Tillery Letter cannot be

reasonably read as a “claim for damages” does not require us to accept Syngenta’s

assertion that Zurich’s argument on this point was made in bad faith. A lack of

success in litigation does not negate a finding that there were reasonable grounds, at

the time of the denial, for Zurich to rely on its belief that the Tillery Letter was a

claim for damages.129

Further, Zurich’s § 2711 claim stood as a separate basis for Zurich’s coverage

denial, and at the time of the Superior Court’s ruling it found that there were “at least

questions of fact regarding Zurich’s position that coverage [wa]s barred under 18

Del. C. § 2711.” The “basic question [of] whether Syngenta failed to provide

material information about the Tillery Letter” on its application for insurance created

“at a minimum . . . a bona fide dispute over coverage,” and that was sufficient to

defeat Syngenta’s bad faith claim.130 We agree that Zurich’s denial of coverage

under § 2711 based on the facts as it understood them at the time it denied coverage

was not, on the undisputed facts, “clearly without any reasonable justification.”131

Hence, the Superior Court’s entry of summary judgment on Syngenta’s bad-faith

counterclaim was not erroneous.

129
See Ace Am. Ins. Co. v. Guaranteed Rate, Inc., 305 A.3d 339, 350 (Del. 2023) (upholding
dismissal of bad faith claim where the insurer’s denial rested on “colorable arguments” with which
the Court ultimately disagreed—“[a]lthough we may ultimately disagree with [the insurer’s]
position, we cannot say that its position clearly lacks reasonable justification.”).
130
Zurich Am. Ins. Co., 2022 WL 4091260, at *6.
131
Casson, 455 A.2d at 369.

37
V

For the reasons set forth above, we affirm the judgment of the Superior Court

as reflected in its August 3, 2020 and August 24, 2022 opinions, its March 4, 2021

transcript ruling and order, and its March 28, 2023 post-trial opinion.

38