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Court reaches no conclusions in Dole D&O dispute

Dole Foods

A Delaware court refused to reach conclusions on major issues in complex directors and officers liability insurance litigation involving Dole Food Co. Inc. and its excess insurers over the question of whether the insurers must fund two settlements.

In 2013, David H. Murdock, who owned 40% of Westlake Village, California-based Dole Food Co.’s stock, used an acquisition vehicle to acquire its remaining shares, according to Tuesday’s ruling by the Delaware Superior Court in Wilmington in Arch Insurance Co. et al. v. David H. Murdock, Dole Food Co. Inc. and DFC Holdings LLC.

Mr. Murdock paid shareholders $13.50 per share in the acquisition, which closed in November 2013. The deal led to multiple shareholder lawsuits challenging the transaction’s fairness. Tuesday’s ruling focused on two lawsuits that were settled.

Six of the insurers who had provided excess D&O insurance to Dole above $15 million in primary coverage — Arch, Liberty Mutual Insurance Co., Continental Casualty Insurance Co., Navigators Insurance Co., RSUI Indemnity Co. and Berkley Insurance Co. — had not provided prior written consent for the settlements.

The insurers filed suit, seeking a declaratory judgment that they had no obligation to pay for the settlement under terms of the policies. The defendants filed counterclaims on issues including that the insurers had breached their policies by refusing to pay for the settlements.

In its ruling, the court agreed with the defendants that the settlement payments constituted a loss under the policy, although it said this “does not mean that issues regarding allocation and exhaustion have also been determined.”

The ruling also said summary judgment is precluded on the issues of whether defendants violated the D&O coverage’s written consent provision and cooperation clause because of “genuine issues of material fact.”

“Based on the record presented to the Court in the Motions, there is a question of fact as to whether the Insurers unreasonably withheld their consent” to the settlements, said the ruling.

“First, the Defendants must show that they requested the insurers’ consent. Then, a trier-of-fact must find that the Insurers did not have a reasonable basis for withholding their consent. ‘It is not enough for the parties to show that the settlement offer was reasonable,’” said the ruling, in citing an earlier case.

“There appears to be material issue of fact of whether there was a substantial breach of the cooperation clause,” said the ruling. “The Defendants do not seem to dispute that they refused requests to provide basic information about the settlement discussions.

“But the Defendants claim that the documents they did not produce were covered by attorney-client privilege or the work documents or the work product doctrine or were unreasonably requested.”

“The Court will consider how to present the issue” of the cooperation clause in pretrial proceedings, the ruling said.

Attorneys in the case could not be reached or had no comment.


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