IN THE SUPREME COURT OF THE STATE OF DELAWARE

THE LIMA DELTA COMPANY, § TRIDENT AVIATION SERVICES, § LLC, and SOCIÉTÉ § COMMERCIALE ET § No. 114, 2016 INDUSTRIELLE KATANGAISE, § § Court Below—Superior Court of Plaintiffs Below, § the State of Delaware, Appellants, § § C.A. No. N14C-02-101 v. § § GLOBAL AEROSPACE, INC., as § underwriter on behalf of certain § domestic insurance companies, § NATIONAL INDEMNITY § COMPANY, AMERICAN § ALTERNATIVE INSURANCE § CORPORATION, TOKIO MARINE § & NICHIDO FIRE INSURANCE § COMPANY, LTD. (USB), MITSUI § SUMITOMO INSURANCE § COMPANY OF AMERICA, § AMERICAN COMMERCE § INSURANCE COMPANY, WELLS § FARGO INSURANCE SERVICES, § USA, INC., § § Defendants Below, § Appellees. §

Submitted: March 28, 2016 Decided: April 5, 2016

Before HOLLAND, VALIHURA, and VAUGHN, Justices. ORDER

This 5th day of April 2016, having considered the notice of appeal from an

interlocutory order and the supplemental notice of appeal from an interlocutory

order, it appears to the Court that:

(1) The plaintiffs below-appellants, The Lima Delta Company, Trident

Aviation Services, LLC and Société Commerciale et Industrielle Katangaise

(collectively, “Lima Delta”), filed a notice of appeal from the Superior Court’s

February 19, 2016 opinion (“Opinion”) granting the motion to dismiss of the

defendants-below appellees Global Aerospace, Inc. (“Global”), National Indemnity

Company, American Alternative Insurance Corporation, Tokio Marine & Nichido

Fire Insurance Company, Ltd. (USB), Mitsui Sumitomo Insurance Company of

America, and American Commerce Insurance Company (collectively with Global,

“the Insurers”) and the motion to stay of defendant-below appellee Wells Fargo

Insurance Services, USA, Inc. (“Wells Fargo”).1 In the Opinion, the Superior

Court concluded that Lima Delta’s claims against the Insurers should be dismissed

in favor of litigation Global filed against The Lima Delta Company and Trident

Aviation Services, LLC in Georgia twenty-one months before Lima Delta

instituted the Delaware litigation.2 The Superior Court concluded that a stay of

Lima Delta’s claims against Wells Fargo was appropriate because even though

1 Lima Delta Co. v. Global Aerospace, Inc., 2016 WL 691965 (Del. Super. Ct. Feb. 19, 2016). 2 Id. at *3-6. 2 Wells Fargo was not a party to the Georgia litigation, resolution of the insurance

coverage dispute in Georgia would likely impact Lima Delta’s claims against

Wells Fargo in Delaware.3

(2) Although the Opinion was interlocutory and Lima Delta filed a

motion for certification of final judgment, or in the alternative, interlocutory

review of the Opinion as to the Insurers and interlocutory review of the Opinion as

to Wells Fargo in the Superior Court on February 29, 2016, the notice of appeal

filed in this Court did not comply with Official Form M as required by Supreme

Court Rule 42(d)(ii)4 and did not include the application for certification of an

interlocutory appeal as required by Supreme Court Rule 42(d)(iv)(A).5 The

Insurers filed their opposition to Lima Delta’s motion on March 9, 2016. Wells

Fargo filed its opposition to Lima Delta’s motion on March 10, 2016.

(3) On March 17, 2016, Lima Delta filed an amended application for

certification of an interlocutory appeal with the certification of counsel required by

Rule 42(b)(iii). A few hours later, the Superior Court denied Lima Delta’s

application for certification of an interlocutory appeal. As to the granting of the

Insurers’ motion to dismiss, the Superior Court concluded that none of the Rule

3 Id. at *7-8. 4 Supr. Ct. R. 42(d)(ii) (providing that notice of appeal shall comply with Rule 42 and Official Form M which is titled “Notice of Appeal from Interlocutory Order” and includes the date the application for certification was filed in the Superior Court). 5 Supr. Ct. R. 42(d)(iv)(A) (requiring notice of interlocutory appeal to include application for certification). 3 42(b)(iii) criteria weighed in favor of certification, certification would not promote

the most efficient and just schedule to resolve the case, and the benefits of

interlocutory review would not outweigh the probable costs in light of the

advanced stage of the Georgia litigation.

(4) As to the granting of the motion to stay, the Superior Court concluded

that the case did not implicate the same interests that led to interlocutory review in

McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co.6 and Gen’l Foods

Corp. v. Cryo-Maid, Inc.7 as Lima Delta claimed because, unlike those cases, there

was no litigation against Wells Fargo pending in another forum and the merits of

Lima Delta’s case against Wells Fargo would ultimately proceed in Delaware. The

Superior Court further found that none of the Rule 42(b)(iii) criteria weighed in

favor of certification, certification would not promote the most efficient and just

schedule to resolve the case, and the benefits of interlocutory review would not

outweigh the probable costs.

(5) In a separate order, also dated March 17, 2016, the Superior Court

denied Lima Delta’s motion for certification of final judgment. In a letter dated

March 22, 2016, the Superior Court acknowledged Lima Delta’s amended

application for certification of an interlocutory appeal, which contained the 6 263 A.2d 281, 283-84 (Del. 1970) (reversing Superior Court’s denial of stay where there was case involving same parties and same issues in Alabama). 7 198 A.2d 681, 684-85 (Del. 1964) (affirming Superior Court’s denial of stay where there was case involving same parties and issues in Illinois), overruled in part by Pepsico, Inc. v. Pepsi- Cola Bottling Co. of Asbury Park, (Del. 1969). 4 certification of counsel required by Rule 42(b)(iii). The Superior Court concluded

that the amended application was moot because it had denied the original

application on the merits. On March 28, 2016, Lima Delta filed a supplemental

notice of interlocutory appeal in this Court. The notice did not attach the responses

or the Superior Court’s denial of the application for certification as required by

Rule 42(d)(iv)(C) and (D).

(6) Applications for interlocutory review are addressed to the sound

discretion of the Court. Even assuming the notice of interlocutory appeal and

supplemental notice of interlocutory appeal had been filed in accordance with Rule

42(d), the Court agrees with the Superior Court’s March 17, 2016 order denying

the application for certification. The Rule 42(b) principles and criteria do not

weigh in favor of interlocutory review of the Opinion.

NOW, THEREFORE, IT IS HEREBY ORDERED that the interlocutory

appeal is REFUSED.

BY THE COURT:

/s/ Karen L. Valihura Justice

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