Should insurer cover costs for related but separate cases?
An earlier ruling found policy language was clear on how 'same or related' lawsuits would be covered.
In a virtual argument before the Delaware Supreme Court, counsel for Arizona-based solar power component manufacturer and services provider First Solar Inc. said two insurance companies should be required to pay for the defense of two federal securities suits because each case dealt with a different element of First Solar’s business and a different set of allegedly false and misleading statements.
“What’s critical is that the language of the policy is overbroad, by definition. It not only says ‘the same or related’ wrongful acts — it would bar (coverage) if there is any fact in common alleged in any of the prior litigations,” said Adam Ziffer of Cohen Ziffer Frenchman & McKenna. “So we are faced with the task of discerning from this language what claims are sufficiently related that they should be barred.”
Kurt M. Heyman of Heyman Enerio Gattuso & Hirzel argued on behalf of National Union Fire Insurance Company of Pittsburgh that when the two earlier lawsuits were in progress, First Solar made the opposite argument.
“They knew what the policy language said. They knew what the policy language meant, and they didn’t hesitate to conclude that it meant the claim is a single claim with the securities class action,” said Wiley Rein’s Charles C. Lemley, representing XL Specialty Insurance Company. “The reason they didn’t hesitate is because this happens frequently: securities class actions are filed, then there’s an opt-out, then there’s a tagalong, and they’re always treated as a single claim, absent some really extraordinary circumstances.”
Rather than each side arguing in favor of different provisions of the relevant insurance policies, arguments before the Supreme Court boiled down to one issue: Whether the two federal cases filed against First Solar were fundamentally the same or not. First Solar’s argument focused on the differences in the facts of each case, while the insurers argued the allegations are, for purposes of the policy, the same.
History of class action
In 2012, First Solar shareholders filed a class action suit in the District of Arizona, claiming the company had issued misleading statements about the possibility of making solar power a market competitor of fossil fuels. First Union exhausted a policy active from 2011 through 2012 by paying First Solar’s litigation costs.
During 2015, shareholders who had opted out of the earlier class action filed their own lawsuit against the solar company, also in Arizona. First Union and XL Specialty refused coverage for that case, which was settled for $19 million, and First Solar filed its Superior Court case in October 2020 after attempts at mediation were unsuccessful.
The Superior Court found in June 2021 the similarities between the two lawsuits outweighed the differences in terms of the insurance policies, granting the insurance companies’ motion to dismiss.
With First Solar arguing the cases concerned aspects of the business and statements made different enough that both qualify for insurance coverage, several of the justices’ questions centered on the language in the insurance policy barring coverage for claims that are “the same as or related to” each other, not necessarily identical.
“We think this is an opportunity to clarify that ‘fundamentally identical’ is not the standard. The standard is to apply the unambiguous language of the policies, particularly where no party here contends they were ambiguous,” Heyman said.
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