Opioid Master Disbursement Tr. II v. Ace Am. Ins.

688 S.W.3d 690

OPIOID MASTER DISBURSEMENT TRUST II, a/k/a Opioid MDT II, Appellant,

v.ACE AMERICAN INSURANCE, et al., Respondents.

No. ED 111765

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: March 5, 2024

Application for Transfer to Supreme Court Denied April 9, 2024

Appeal from the Circuit Court of St. Louis County, Honorable Richard M. Stewart, Judge

FOR APPELLANT: Randall D. Grady, Patrick T. Connor, Riezman Berger, P.C., 7700 Bonhomme Avenue, 7^th Floor, Clayton, Missouri 63105, Richard J. Leveridge, Meredith C. Neely, Richard D. Shore, Daniel I. Wolf, 700 Pennsylvania Avenue, Suite 400, Washington, DC 20003.

FOR RESPONDENTS: Jonathan H. Ebner, 3531 North Wilton Avenue, Unit 1, Chicago, Illinois 60657, Ronald Ohren, 300 East Randolph, Suite 5000, Chicago, Illinois 60601, Peter Hoening, Philip C. Semprevivio, One Grand Central Place, 60 East 42^nd Street, New York, New York 10165, Deborah C. Druley, Stephen J. O’Brien, One Metropolitan Square, Suite 3000, St. Louis, Missouri 63102, Timothy J. Wolf, Lucas J. Ude, Allie E. Malone, 600 Kellwood Parkway, Suite 120, St. Louis, Missouri 63017, Justin K. Seigler, Adam H. Fleischer, Agelo L. Reppas, 191 North Wacker, Suite 2400, Chicago, Illinois 60606, Aaron D. French, Stephen W. Carman, 600 Washington Avenue, 15^th Floor, St. Louis, Missouri 63101, Michael S. Shuster, 425 Lexington Avenue, New York, New York 10017, David W. Sobelman, Melissa Z. Baris, 8001 Forsyth Boulevard, Suite 1500, St. Louis, Missouri 63105, Clark H. Cole, Evan J. Sullivan, 7700 Forsyth Boulevard, Suite 1800, Clayton, Missouri 63105.

Michael S. Wright, Judge

Introduction

Opioid Master Disbursement Trust II (the "Trust") appeals the trial court’s judgment granting Respondents’ respective motions to dismiss. The issue before this Court is whether a provision in the parties’ insurance contracts requires any disputes arising under those contracts to be litigated in the courts of England or Wales.

We find that the provision in the insurance policy at issue is a clear and unambiguous statement of the parties’ intent to enter into a valid forum selection clause. Since we find the provision is a valid forum selection clause and there was no evidence or argument the clause was unfair or unreasonable, the parties are bound to litigate any disputes arising from these agreements in England or Wales. As such, we find the trial court did not err in granting Respondents’ motion to dismiss.

Therefore, we affirm the trial court’s judgment.

Factual and Procedural Background

The Trust is a statutory trust created in a bankruptcy proceeding for the benefit of individuals and entities harmed by Mallinckrodt and its affiliates ("Debtors")-major producers of opioid pharmaceutical products. The Debtors were discharged from liability for the opioid mass tort claims, and their liabilities were transferred to and assumed by the Trust and other related trusts. Certain assets and rights of the Debtors were also transferred to the Trust, including the Debtors’ rights to insurance coverage arising out of, relating to, or in connection with any opioid mass tort claims. Respondents Allianz Global Corporate & Specialty SE, HDI Global SE, Lloyd’s of London Syndicate #1218 a/k/a Newline Syndicate 1218, and SJ Catlin Syndicate SJC 2003 (the "UK Insurers"), Respondents Aspen Insurance UK, Ltd. ("Aspen"), and Insurers ACE American Insurance Company and ACE Property & Casualty Insurance Company ("ACE") (collectively "Insurers") are a subset of the various insurers providing such insurance coverage.

On June 16, 2022, the Trust filed a petition for declaratory judgment relief. Subsequently, the Trust filed its first amended petition on July 28, 2022. Therein, the Trust alleged each insurer was obligated, under their respective policies, to provide coverage in full for Debtors’ liability for the opioid mass tort claims, subject only to any applicable limits of liability. The Trust sought a judgment declaring the rights and obligations of the Trust and the defendant insurers with respect to the issued insurance policies. Insurers filed their respective motions to dismiss the Trust’s first amended petition¹ arguing the claims against them should be dismissed because their respective insurance policies con- tained or "followed form" to the following forum selection clause:

Any dispute concerning the interpretation of the terms, conditions, limitations and/or exclusions contained herein, is understood and agreed by both the Named Insured and the Insurers to be governed by the laws of England and Wales. Each party agrees to submit to the jurisdiction of any court of competent jurisdiction within England and Wales and to comply with all requirements necessary to give such court jurisdiction. All matters arising hereunder shall be determined in accordance with the law and practice of such court.²

After hearing arguments on the motions, the trial court granted Insurers’ respective motions to dismiss. The trial court held Missouri law applied in interpreting the forum selection clause, and the Trust had not met its heavy burden of showing the forum selection clause is unfair or unreasonable. Upon the motion of the Trust, the trial court amended its orders granting the motions to dismiss to make such orders final judgments because there was no just reason to delay the appeal.

This appeal follows.

Standard of Review

[1, 2] This Court reviews the trial court’s grant of a motion to dismiss de novo. Amalaco, LLC v. Butero, 593 S.W.3d 647, 650 (Mo. App. E.D. 2019). The trial court’s judgment will be affirmed if the dismissal is justified on any ground alleged in the motion. Corel Corp. v. Ferrellgas Partners, L.P., 633 S.W.3d 849, 853 (Mo. App. E.D. 2021).

Discussion

Certification

[3] Before this Court addresses the merits of the Trust’s appeal, we must first determine, sua sponte, whether we have jurisdiction to review it. See Energy Mkt. 709, LLC v. City of Chesterfield, 614 S.W.3d 643, 647 (Mo. App. E.D. 2020). "The right to appeal is purely statutory … [and] where a statute does not give a right to appeal, no right exists." State ex rel. Koster v. ConocoPhillips Co., 493 S.W.3d 397, 399 (Mo. banc 2016) (quoting Farinella v. Croft, 922 S.W.2d 755, 756 (Mo. banc 1996)). The statutory authority to bring an appeal is found in § 512.020, which provides the judgment entered by the trial court and appealed by the parties must be a "final judgment."³ Wilson v. City of St. Louis, 600 S.W.3d 763, 767 (Mo. banc 2020).

[4, 5] For purposes of appeal under § 512.020(5), a final judgment must: (1) be a "judgment" that resolves at least one claim in a lawsuit and establishes the rights and liabilities of the parties with respect to that claim; and (2) be "final" in that it either disposes of all claims (or the last claim) in a lawsuit or has been certified for immediate appeal pursuant to Rule 74.01(b). Energy Mkt 709, LLC, 614 S.W.3d at 648. "[A] judgment is eligible for certification under Rule 74.01(b) for purposes of § 512.020(5)—and thereby satisfies the second criterion in that way—only if it disposes of a ‘judicial unit’ of claims" by either: (a) disposing of all claims by or against at least one party, or (b) it disposes of one or more claims that are sufficiently distinct from the claims that remain pending in the trial court. Id.

[6] In the present case, the trial court entered an order and judgment granting each of the Insurers’ motions to dismiss and there is no dispute the trial court’s orders are a judgment. In regard to the second criterion (whether the judgment was "final"), the trial court certified the orders under Rule 74.01(b). Thus, at issue is whether the trial court’s judgment was "final" and eligible for certification under Rule 74.01(b).

Here, the order and judgment granting UK Insurers’ motion to dismiss was properly certified because it disposed of all the Trust’s claims against the UK Insurers. In other words, the judgment granting its motion to dismiss effectively dismissed all claims against this subset of insurers. See id Additionally, the orders and judgments granting ACE’s and Aspen’s motions to dismiss were also eligible for certification because, even though the trial court did not dismiss all of ACE’s and Aspen’s policies from the case, those orders were final with respect to the dismissed claims arising from their respective insurance policies containing forum selection clauses. Thus, the judgment dismissing those claims disposes of a "judicial unit" of claims and concludes litigation with respect to those policies. Id. at 649 ("[A] judgment resolves a ‘distinct’ judicial unit if it resolves claims that do not arise ‘from the same set of facts, and the same transactions and occurrences, as the counts’ yet to be disposed of in the circuit court.") (quoting Wilson, 600 S.W.3d at 770).

Lastly, the claims related to the Insurers and their respective policies are not so intertwined with the claims remaining against the other defendant insurers that any ruling on the issue of forum would affect the remaining insurers whose policies do not contain a forum selection clause. See id. ("[R]esolved and unresolved claims may still be distinct even if they share some facts or circumstances.").

Accordingly, the trial court’s certification was proper, and, thus, we review the Trust’s point on appeal.

Point I

[7, 8] We now turn to the dispositive issue before us: whether the provision in the insurance policies is a valid forum selection clause requiring the parties to litigate their disputes in England or Wales. We find the provision in question is a clear, unambiguous forum selection clause freely agreed upon by the parties.⁴

A. Whether the provision in the insurance policies is a forum selection clause

As to the first part of the issue, the Trust rests on the argument that the forum selection clause is permissive, and absent mandatory language, the parties are not mandated to litigate their disputes exclusively in...