Summary Judgment Denied Where Determinations Of Fact Necessary To Apply Continuous Cover And Innocent Non-Disclosure Provisions

The Superior Court of Delaware, applying Delaware law, denied an insurer's motion for summary judgment on the basis that the policy's continuous cover clause and innocent non-disclosure clause required determinations of fact. Ventech Solutions, Inc. v. Certain Underwriters at Lloyd's of London, 2023 WL 315331 (Del. Super. Ct. Jan.4, 2023). In addition, the court held that the policy's liquidated damages exclusion did not bar coverage for a settlement not characterized by the parties with reference to a prior liquidated damages award.

The insured tech company contracted to construct a system for a state government, which subsequently sued the insured in July 2017 for failure to deliver an operational system. In August 2018, more than a year later and under the following policy period, the insured noticed the claim to its insurer. The insurer denied coverage under the policy's claims-made-and-reported provisions and determined that the policy's continuous cover and