The theory of deepening insolvency as a separate tort has had mixed results. It has never been truly recognized in Georgia, as noted by a Texas court. Other courts have held that it is a theory of damages rather than a cause of action.
In a big strike against its viability, the Delaware Chancery Court said it was not even a "coherent concept." What would the Delaware Supreme Court say? We just found out. Apparently, they also agreed that it was not a coherent concept so they entered a two page order affirming the Chancery Court decision, and the reasons therefore. Trenwick America Litigation Trust v. Billett, No. 495, 2006 (Del. August 14, 2007).
Thanks to Bob Eisenbach at the Business Bankruptcy Blog for the tip, and some additional analysis.