Citing hints of “forum shopping,” a Delaware vice chancellor on Wednesday rejected QBE’s bid for Chancery Court adjudication of its calls for arbitration in London of a dispute over excess insurance coverage for opioid liability claims against Walmart. Vice Chancellor Lori W. Will, ruling from the bench after arguments in Wilmington, found QBE Insurance Corp. lacked a Delaware case or forum provision able to overcome deference to “first filed” actions in Arkansas, despite its claim that its contract with Walmart trumps Arkansas’ standing.
“I don’t have a Delaware forum selection provision in this case,” Vice Chancellor Will told Marc S. Casarino of Kennedys CMK, counsel to QBE. “The only issue before me today concerns whether this court or the Arkansas court should be hearing the merits and addressing the issues in the arbitration [dispute].”
The vice chancellor added that “QBE’s decision, to me, indicates there might be some forum-shopping afoot.”
Adam S. Ziffer of Cohen Ziffer Frenchman & McKenna LLP, counsel to Walmart, told the vice chancellor that Arkansas law has a means for QBE to pursue an order for arbitration.
“McWane supports the proposition that the question should be decided by the court that first secured jurisdiction,” Ziffer said, noting that QBE sued in Delaware about a month after Walmart took action in Arkansas.
“This was not a situation where there was a race to the courthouse and some minor differences in filings,” Ziffer said. He added later that the Arkansas case is scheduled to go to trial on March 25, 2025.
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