Vargas v. Calabrese
| Decision Date | 01 June 1989 |
| Docket Number | Civ. A. No. 85-4725. |
| Citation | 714 F. Supp. 714 |
| Parties | Josephine VARGAS, Martin Ellerbee, Marion Gargiulo, Joann Wheeler, Janice Sellers, Maria Rivera, Margarita Gonzalez, Plaintiffs, v. Christine CALABRESE, individually and in her official capacity as former Chairperson of the Hudson County Board of Elections, Frank Caleca, Lee S. Lichtenberger, the Hudson County Superintendent of Elections, Harvey L. Birne, as Hudson County Superintendent of Elections, Gerald McCann, individually and in his official capacity as former Mayor of the City of Jersey City, Matthew Burns, John Finn, Mark Munley, Defendants, Gerald McCANN, Mark Munley, John J. Finn, Matthew Burns, Defendant Third-party Plaintiffs, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Third-party Defendant. Gerald McCANN, Defendant Third-party Plaintiff, v. J.R. INSURANCE BROKERAGE, INC., Third-party Defendant. |
| Court | U.S. District Court — District of New Jersey |
Joseph Healy by Joseph Healy, Jersey City, N.J., for defendant third-party plaintiff Gerald McCann.
Robinson, Wayne & LaSala by Dorothy J. Nemetz, Newark, N.J., for defendant third-party plaintiff Matthew Burns.
Bruinooge & Associates by Thomas H. Bruinooge, John Patrick Oroho, Rutherford, N.J., for defendant third-party plaintiff Mark Munley.
Williamson & Rehill by Donald J. Williamson, Westwood, N.J., for defendant third-party plaintiff John J. Finn.
Garrity, Fitzpatrick, Graham, Hawkins & Favetta, P.A. by Walter J. Krako, Anthony J. Marino, Bloomfield, N.J., for third-party defendant Nat. Union Fire Ins. Co. of Pittsburgh, Pa.
Sheehy & Sheehy by John J. Sheehy, Jersey City, N.J., for J.R. Ins. Brokerage Co.
This matter involves motions by defendant third-party plaintiffs Gerald McCann, Mark Munley, John J. Finn and Matthew Burns against third-party defendant National Union Fire Insurance Company of Pittsburgh, PA ("NUFI") for summary judgment pursuant to Fed.R.Civ.P. 56 or, alternatively, for a declaratory judgment pursuant to Fed.R.Civ.P. 57 that NUFI is obligated to defend and indemnify them in this action. NUFI, in turn, cross-moves for summary judgment as to McCann, Munley, Finn and Burns, or seeks, in the alternative, a declaratory judgment that it has no obligation to defend or indemnify the defendant third-party plaintiffs. In addition, third-party defendant J.R. Insurance Brokerage, Inc. ("J.R.") moves for summary judgment on defendant third-party plaintiff McCann's complaint against it and McCann, in turn, cross-moves for summary judgment against J.R. Burns opposes J.R.'s motion for summary judgment.
This case involves the interpretation of a standard broad form comprehensive general liability insurance policy that was apparently drafted to cover commercial risks and in this case issued by the insurer to cover the activities of three political organizations associated with the reelection of Gerald McCann as Mayor of Jersey City. The parties' arguments seemingly present the court with a choice between the defendant third-party plaintiffs' tortured interpretation of the policy provisions and the third-party defendant insurer's strictissimi juris approach to the same language and rather disingenuous protestations that it did not have complete knowledge of the insureds' activities. This case is admittedly a close one and for that reason alone, if no other, favors the insureds.
In April 1985, Mayor Gerald McCann of the City of Jersey City ran for reelection against Anthony Cucci and two others. No candidate obtained a majority of the votes cast. Under the laws governing mayoral contests in Jersey City, a run-off election was scheduled in June between the two highest vote getters, McCann, who received 46% of the vote and Cucci who received 49%.1
Cucci apparently enjoyed broad-based support among the black and Hispanic neighborhoods in the city. The complaint alleges that in preparation for his rematch with Cucci, McCann with the advice of Finn, who was brought in as a consultant to the campaign, and Munley, who was then the city Director of Housing and Economic Development, developed a strategy to undercut Cucci's strength that would impede or prevent voting in the election districts in neighborhoods that were heavily black or Hispanic.
In general the plan, by design or in effect, had six major components, in which some or all of the defendant third-party plaintiffs involved in this motion are alleged to have participated. First, letters were forwarded to residents of public housing projects tenanted by blacks and Hispanics informing them unless their names appeared on their apartment leases they would be unable to vote and would be prosecuted for doing so. Second, some five to six thousand names were placed on the challenge list without notification to these individuals and despite the fact that, although the list was purportedly drawn from the names of voters whose sample ballots had been returned as undeliverable, some of the listed individuals received sample ballots at their home addresses.
Third, by virtue of his position as Chairman of the Hudson County Democratic Party, McCann was permitted in practice to select election district members who would, among other things, serve as challengers in the local polling places. McCann used this privilege to appoint off-duty Jersey City policemen to this function in heavily black and Hispanic voting districts. These officers allegedly harassed eligible voters and prevented them from casting ballots. Fourth, instructions were provided to all district board members directing them to prevent any individual whose name appeared on the challenge list from voting unless the voter produced a current lease, if the voter was a resident in public housing, or a phone, gas or electric bill in the voter's name.
Fifth, color-coded lists of names used to challenge prospective voters on the basis of race were allegedly prepared and sixth, there was a failure to provide adequate bilingual assistance both at polling places and at the courthouse for those individuals that attempted to obtain court orders permitting them to vote.
Finn allegedly authored and distributed the instruction sheet for all McCann campaign workers instructing them to accept only utility bills, or for individuals in public housing, only a current lease displaying the voter's name. These instructions conflicted with normal voting procedures used in the county. With Munley, Finn is also alleged to have held training sessions with the McCann-appointed election district board members. Burns served as counsel to the campaign and allegedly coordinated the work of campaign workers who procured documentation of voter fraud and the use of police officers to serve as district election board members in black and Hispanic neighborhoods.
Plaintiffs are a class of black and Hispanic voters who were allegedly prevented or discouraged from voting in the June 11, 1985 run-off election. In addition to the factual averments recited above, their second amended complaint sets out no fewer than thirteen separate causes of action arising under the Ku Klux Klan Act of 1861, 42 U.S.C. sec. 1983, the Civil Rights Act of 1866, 42 U.S.C. sec. 1985, and the Voting Rights Act of 1965, 42 U.S.C. sec. 1971 et seq. Plaintiffs seek equitable, declaratory and compensatory relief. In an opinion and order entered on May 14, 1986, I certified the plaintiff class. Vargas v. Calabrese, 634 F.Supp. 910 (D.N.J.1986).
Other individuals initially joined as defendants, members of the Hudson County Board of Elections, were dismissed on motions for summary judgment on various dates. As this rather involved case lumbers on toward the four-year milestone, the remaining defendants and the insurer have obviously started to reflect on the possibility of settlement and/or become anxious about who will end-up paying the judgment if one is ultimately entered in plaintiffs' favor. I turn now to consideration of the events that led up to the purchase of the insurance policy and the policy itself.
In the summer of 1984 McCann and his supporters formed an entity which they named the "Democratic Dinner Committee, Fall 1984." Burns served as treasurer of this committee. In the late summer or early fall of 1984, two additional committees were formed, "Professionals for McCann, Inc.", which was an incorporated group organized to raise funds and generate support among city professionals, and "McCann in 85", which was apparently the major organizational group for the McCann campaign. Burns was an incorporator and trustee of the first group and sometime counsel to the second, in each case as a volunteer.
On August 1, 1984, Jay Hamill an associate at the law firm of Keane, Brady & Hanlon, where Burns worked and who was, like Burns, providing volunteer legal services to the McCann campaign, wrote to Robert Feely of J.R. asking that Professionals for McCann be added as an additional insured to an existing insurance policy covering the Democratic Dinner Committee, Fall 1984. In December 1984 Hamill requested that Feely also add the McCann in 85 group as an additional insured under the same policy.
In November 1984 Feely apparently advised Hamill that it would be beneficial to obtain a new policy covering all three organizations. Hamill concurred and authorized Feely to obtain a new policy. Hamill stated the he told Feely that wanted a "policy that covered everybody who worked on the campaign for anything that arose out of the campaign." Oroho Affidavit Exhibit A, Hamill Deposition at 20, 23. Hamill wrote an interoffice memorandum to Burns noting that the new policy's coverage limit was $1,000,000 and that the new policy "broadens the coverage somewhat." See Burns Affidavit, Exhibit 4.
Feely went to Edward Johnson of Johnson Excess, Ltd. to obtain underwriting. Under a managing general agency agreement with NUFI, Johnson...
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