Parker McCay’s liability carriers have lost an attempt to dismiss the Mount Laurel firm’s action to compel coverage in a wrongful termination suit by a librarian wrongfully accused of setting off a false fire alarm.
Hartford Fire, Hartford Casualty and Twin City Fire insurance companies claimed the coverage dispute was not ripe for adjudication while the underlying case is pending.
But U.S. District Judge Robert Kugler held on Tuesday that the firm had established adversity of interest of the parties and had alleged a right to rely on the carriers for a defense as well as an unperfected right to indemnity if it loses the underlying case.
Jury selection starts Monday in the suit by former librarian Sheila Ciemniecki, who was fired in 2009 after being accused of pulling the false alarm. She was arrested and led away from the firm in handcuffs, but the criminal charges were dropped when Parker McCay learned the culprit was a litigant attending a mediation that day.
Her suit, Ciemniecki v. Parker McCay, 09-cv-6450, includes counts of intentional and negligent defamation, invasion of privacy, intentional infliction of emotional distress, false imprisonment, malicious prosecution, wrongful termination, negligence, negligent misrepresentation, negligent concealment of evidence and abuse of process.
Ciemniecki claims she suffered mental anguish and pain and suffering for which she has been treated by medical and mental health professionals.
Twin City, a Hartford affiliate that issued a workers’ compensation and employers liability policy, advised in February 2011 that it would not indemnify the firm or its chief financial officer, Raymond DiSanto, since no bodily injury or physical manifestation of an emotional injury is alleged.
Last January, Hartford Fire (general liability) and Hartford Casualty (umbrella liability) said they would defend Parker McCay and DiSanto subject to a reservation of rights not to indemnify for any claim arising from employment-related practices.
Parker McCay sued the three carriers in May, seeking a declaratory judgment that they are obligated to provide coverage, Parker McCay v. Hartford Fire Ins. Co., 12-cv-2971.
Kugler applied a three-part analysis to determine the ripeness of the coverage dispute.
The first part calls for consideration of the adversity of the parties, the conclusiveness of the judicial judgment and the practical help, or utility, of that judgment. Kugler said a plaintiff “need not suffer a completed harm to establish adversity of interest of the parties.” In this case, the claim is that the carriers refused to provide indemnification in the underlying case, and that Twin City’s refusal to defend or indemnify was a breach of contract.
“Accordingly, even though the Ciemniecki litigation is unresolved, Plaintiff has alleged that it has both a present right to rely on Twin City to defend it in the Ciemniecki litigation as well as an unperfected but nonetheless defined right to indemnity from all defendants if it were to lose the case,” providing a sufficient basis for summary judgment, Kugler wrote.
The second part requires a court to decide whether judicial action at the present time would amount to any more than an advisory opinion based on a hypothetical set of facts. In the present case, the facts are not hypothetical and the declaratory judgment in the case will be conclusive because it will establish whether the insurance companies are obligated to defend the plaintiff and to indemnify it for any judgment in the Ciemniecki case, Kugler said.
As for the third part, by which a court examines the practical help or utility of a declaratory judgment, Kugler said determining the plaintiff’s insurance coverage is practical and useful because it will tell the plaintiffs whether they can rely on the insurance companies for indemnification.
William Tambussi of Brown & Connery in Westmont, who represents Parker McCay in both the coverage case and the wrongful termination suit, said Kugler’s decision “indicates Parker’s on firm ground” in the coverage case. He declined to say how the insurance case would impact the wrongful termination case.
Stephen Gimigliano of Graham Curtin in Morristown, who represented the insurance companies in the coverage dispute, did not return a call about the ruling.