Opinion
1:20-cv-03873
06-11-2021
CITIZENS INSURANCE COMPANY of AMERICA, a Michigan corporation, Plaintiff, v. WYNNDALCO ENTERPRISES, LLC, an Illinois limited liability company; DAVID ANDALCIO; JOSE FLORES; MELISSA THORNLEY, DEBORAH BENJAMIN-KOLLER, and JOSUE HERRERA, individually and on behalf of all others similarly situated; and MARIO CALDERON and JENNIFER ROCIO, individually and on behalf of all others similarly situated, Defendants.
Counsel for Wynndalco and Thornley Defendants Daniel M. Feeney Zachary J. Freeman Rachel Ellen Simon Miller Shakman Levine &Feldman LLP Kevin M. Forde Brian P. O'Meara Kevin R. Malloy Forde & O'Meara LLP Counsel for All Defendants David S. Golub Silver Golub & Teitell LLP
Counsel for Wynndalco and Thornley Defendants
Daniel M. Feeney
Zachary J. Freeman
Rachel Ellen Simon
Miller Shakman Levine &Feldman LLP
Kevin M. Forde
Brian P. O'Meara
Kevin R. Malloy Forde & O'Meara LLP
Counsel for All Defendants
David S. Golub
Silver Golub & Teitell LLP
WYNNDALCO DEFENDANTS' AND THORNLEY DEFENDANTS' MOTION FOR JUDGMENTS ON THE PLEADINGS
HON. JOHN Z. LE JUDGE
Defendant-Counterclaim Plaintiff Wynndalco Enterprises, LLC (“Wynndalco”), and its two officers, David Andalcio and Jose Flores (collectively with Wynndalco, the “Wynndalco Defendants”), and Defendants Melissa Thornley, Deborah Benjamin-Koller and Josue Herrera (the “Thornley Defendants” and collectively, with the Wynndalco Defendants, “Defendants”), through counsel, move pursuant to FRCP 12(c) for the entry of judgments on the pleadings, as follows:
(1) A judgment in the Wynndalco Defendants' favor on Count One of Wynndalco's Counterclaim, which seeks a declaration that plaintiff-counterclaim defendant Citizens Insurance Company of America (“Citizens) has a duty, pursuant to the liability insurance policy (the “Policy”) it issued to Wynndalco, to defend Wynndalco against the claims asserted against it in Thornley v. CDW-Government, LLC and Wynndalco Enterprises, LLC, No. 2020 CH 04346 (Circuit Court of Cook County) (the “Thornley lawsuit”) and Calderon v. Clearview AI, Inc., et al, 1:20 cv 01296 (S.D.N.Y.);
(2) Judgments in Defendants' favor as to Counts One and Two of Citizens' First Amended Complaint, which seek declarations that Citizens is relieved of its obligation to defend (and indemnify) Wynndalco against the claims in the Thornley and the Wynndalco Defendants in the claims in the Calderon lawsuits pursuant to an exclusion in its Policy for “Distribution of Material in Violation of Statutes.”
In support of this motion, Defendants have filed contemporaneously a supporting memorandum of law.
WHEREFORE, Defendants respectfully pray the Court to grant their motion and declare and adjudge the controversy as follows:
A. That the Distribution of Material in Violation of Statutes exclusion in Citizens' Policy does not bar coverage under the Policy for the claims asserted against the Wynndalco in the Thornley lawsuit and the Wynndalco Defendants in the Calderon lawsuit;
B. That Citizens has a duty pursuant to the Policy to defend (and potentially to indemnify) Wynndalco against the claims asserted against the Wynndalco in the Thornley lawsuit and the Wynndalco Defendants in the Calderon lawsuit;
C. That the declaration sought in Count One of Wynndalco's Counterclaim should be granted and the declarations sought in Counts One and Two of Citizens' First Amended Complaint should be denied.
WYNNDALCO ENTERPRISES, LLC, DAVID ANDALCIO; JOSE FLORES; MELISSA THORNLEY, DEBORAH BENJANMIN-KOLLER and JOSUE HERRERA, David S. Golub One of their Attorneys