Michael J. Cawley: Lawyer with Wilson Elser Moskowitz Edelman & Dicker LLP

Michael J. Cawley

Phone215.606.3923

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AV® Preeminent

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Practice Areas

  • Appellate
  • Commercial & Business Litigation
  • Class Action Defense
  • Directors & Officers Liability
  • Employment & Labor
  • Insurance Agents & Brokers
  • Insurance & Reinsurance Coverage
  • Life, Health, Disability & ERISA
  • Miscellaneous Professions
  • Product Liability
  • Professional Liability & Services
  • Railroad
 
Contact InfoTelephone: 215.606.3923
Fax: 215.627.2665
http://www.wilsonelser.com/attorneys/michael_j_cawley
 
University University of Scranton, B.S., magna cum laude, 1981
 
Law SchoolVillanova University School of Law, J.D., 1984
 
Admitted1984, Pennsylvania; U.S. District Court, Eastern, Middle and Western Districts Pennsylvania and U.S. Court of Appeals, Third Circuit; Pennsylvania Supreme Court
 
Memberships 

Memberships & Affiliations

Pennsylvania Bar Association
American Bar Association
Defense Research Institute (DRI)
International Association of Defense Counsel
Professional Liability Underwriting Society
Risk Management Society

 
Biography

Michael Cawley concentrates his practice in the areas of insurance coverage, bad faith disputes, commercial litigation and professional liability matters. He has extensive trial and appellate experience in state, federal and bankruptcy court. Michael’s experience includes the representation of insurers and insureds in all forms of insurance coverage disputes and the litigation and trial of complex professional liability cases. He is a member of the firm’s Class Action Defense practice.

More recently, he has complemented the above practice areas by developing proficiency in litigation involving intellectual property, e-commerce and other technology-based claims and in drafting, reviewing and negotiating commercial agreements related to those industries including distribution agreements. Michael has counseled and litigated consumer credit matters for lenders, including issues arising under the Equal Credit Opportunity Act, and has addressed other compliance issues dealing with federal and state laws governing consumer credit.

Areas of Focus

Insurance Coverage / Reinsurance Disputes
Michael has provided insurance coverage advice to his insurer and policyholder clients on issues arising under multiple types of policies, including general liability, professional liability, directors and officers, property, and excess/umbrella liability policies. He is also experienced in reinsurance agreements and ERISA/non-ERISA issues involving life, health and disability matters.

Michael’s practice concentrates on the representation of insurers and insureds in coverage matters and related bad faith claims in state and federal courts. He has a comprehensive understanding of insurance industry underwriting and claims department practices as well as the relationship insureds have with their retail insurance brokers and the expectations each has with respect to the intent behind an insurance policy. This experience has enabled him to work closely with insurers and their insureds in developing strategies to resolve cases with excess liability potential through the use of hi-lo arbitrations, binding arbitration and other alternative dispute resolution mechanisms.

With respect to insurance coverage litigation, Michael is keenly aware of the need to skillfully represent a client’s insurance coverage position since the consequences of coverage litigation are of critical importance to insurer and insured alike. Michael has numerous reported decisions in both state and federal court regarding critical insurance coverage issues, including the landmark 2006 Pennsylvania Supreme Court opinion in Kvaerner Metals Div. v. Commercial Union Ins. Co. Michael’s reported decisions in the insurance coverage field establish the depth of his knowledge of the insurance industry and the principles governing it.

Insurance Broker Liability
As a complement to his insurance coverage practice, Michael has extensive litigation and trial experience in representing some of the largest retail and wholesale insurance brokers and agents in litigation across the United States. He is routinely asked to counsel insurance agents and brokers in how to avoid error and omission litigation and to represent insurance agents and brokers before insurance departments. His combined knowledge of the insurance industry and the insurance brokerage business has resulted in brokers retaining him to represent their interests in matters ranging from claims that a broker engaged in price fixing to the procurement and placement of risks with carriers that later became insolvent.

Michael is an instructor with the Philadelphia Insurance Society where he offers a three-credit course on Insurance Broker Liability, which has been qualified for continuing legal education credits by the Pennsylvania Insurance Department.

Product Liability
During the 25 years Michael has been practicing law, he has litigated cases involving both large and small medical device manufacturers. He also was involved in the defense of the manufacturer of the anti-obesity drug fen-phen. He has defended the interests of manufacturers of implanted spinal devices and manufacturers of food products charged with selling contaminated food products as well as successfully pursuing actions against third parties responsible for contaminating food products. Michael’s experience as defense counsel for product manufacturers includes representing the manufacturers and distributors of a variety of products, including lighters, swimming pool products, space heaters and others.

Lawyers Liability
In defending attorneys charged with legal malpractice, Michael is acutely aware of the significance of such claims. The defense of malpractice claims requires experience, integrity and judgment. In that regard, Michael has represented lawyers in a variety of cases from the defense of an attorney charged with failing to file civil actions to the defense of a lawyer charged with multiple violations of state and federal laws while representing a major university. Michael was a contributor to the American Bar Association’s 50-state survey entitled The Law of Lawyers Liability published in June 2012

Employment
Michael has more than 15 years of experience representing employers in a variety of employment and labor issues. He has litigated before the Pennsylvania Human Relations Commission as well as in the federal and state courts in matters ranging from sex discrimination brought pursuant to Title VII of the Civil Rights Act of 1964, as amended; wrongful termination, age discrimination and hostile work environment claims brought pursuant to the common law; and violations of the Americans with Disabilities Act.

In addition, Michael has counseled employers in labor matters, including the preparation of a company’s policy prohibiting racial or sexual misconduct and the publication of such policy to employees. He has assisted in investigations into allegations of sexual harassment and/or racial discrimination made by employees against coworkers and/or an employer as well as situations involving employees, who while in the workplace have exhibited signs that they may be either a danger to themselves and/or to co-workers.

Directors & Officers Liability
Michael has litigation and trial experience in the representation of directors and officers in disputes involving the alleged violations of securities laws; derivative suits wherein shareholders allege that the directors and officers failed to properly manage a company and in so doing lost the ability to acquire other companies that would have assisted the company in meeting its strategic goals; and claims that the directors and officers routinely misrepresented the financial condition of the company.

Michael has defended the interests of directors and officers on the board of a regional waste management corporation that was confronted with claims of mismanagement, as well as an officer of an insurance subsidiary of a major financial institution in a binding American Arbitration Association proceeding.

In addition to litigating director and officer cases, Michael remains current on the law regarding corporate governance. Additionally, he is knowledgeable regarding insurance coverage issues under director and officer policies and how the protections of those policies will become increasingly relevant in light of the Dodd-Frank Wall Street and Consumer Protection Act.

Publications

What Remains of Act 13 in Pennsylvania after Robinson? Pennsylvania Commonwealth Court Strikes Further Provisions of Act 13 as Unconstitutional

PA Appeals Court Affirms Rights of Towns to Regulate Drilling

August 15, 2014

Pennsylvania’s Supreme Court struck down as unconstitutional provisions of Act 13 that required municipalities to adopt uniform zoning requirements that could allow drilling in all zoning districts. In so ruling, the court found that the disputed provisions of Article 13 violated the Environmental Rights Amendment in that it removed from Pennsylvania’s municipalities the right to be stewards over natural resources within their own borders.

Pennsylvania Effectively Eliminates Workers’ Compensation Act as Source of Protection for Employers from Suits Arising Out of Latent Occupational Disease Lawsuits

PA Supreme Court Denies Reargument of Tooey v. AK Steel

February 18, 2014

The Pennsylvania Supreme Court has concluded that claims for occupational disease that manifest outside the 300-week period prescribed by section 301(c)(2) of the Workers’ Compensation Act do not fall within the purview of the Act, and therefore, that the exclusivity provision of section 303(a) does not apply to preclude an employee from filing a claim against an employer.

Pennsylvania Supreme Court Declares Portions of Marcellus Shale Act Unconstitutional, Upholds Local Regulation of Oil and Gas Operations

Pennsylvania Restores Ability of Municipalities to Limit Drilling

January 15, 2014

In a recent decision, Pennsylvania’s Supreme Court confirmed municipalities’ constitutional right to limit gas drilling activities through local zoning rules and imposed a more structured state decision-making process to grant waivers from setbacks required for certain bodies of water.

Insurance Agency Risk Management: A Comprehensive Guide to Avoiding E&O Claims

Additional Insureds and Related Topics

December 17, 2012

The Law of Lawyers’ Liability: Fifty-State Survey

First Chair Press and the American Bar Association

Lawyer Liability

June 2012

Cawley Published in December 2011 Issue of PLUS Journal

December 22, 2011

Michael Cawley published an article in the December 2011 issue of the PLUS Journal entitled, The Insurance Broker’s Duties and Potential Liabilities in the Insurance Coverage Dispute.”

Michael Cawley Article Selected for Inclusion in American Bar Association Book

July 22, 2011

An article written by Michael J. Cawley summarizing legal malpractice law in Pennsylvania has been selected by the American Bar Association for inclusion in its book entitled, Legal Malpractice Liability: A State by State Survey.

Lilly Ledbetter Fair Pay Act extends filing deadlines for pay-bias complaints:Employers need to review compensation policies to limit liability

February 2009 With the recent signing of the Lilly Ledbetter Fair Pay Act, President Obama effectively overturned a U.S. Supreme Court ruling in 2007 that severely restricted the amount of time an employee had in which to assert a pay discrimination claim. An employee can now file a complaint of pay discrimination long after learning of any pay discrepancy.

Additional Publications

“Insurance Broker and Agent Liability,” PLUS Journal, December 2011
Ethical Considerations of the Tripartite Relationship, Mealey’s Insurance Coverage Top 10 Issues, 2007

News

Michael Cawley Appointed to the Insurance Subcommittee of the Union League of Philadelphia

February 2014

Michael Cawley Prevails in Wrongful Death Suit

November 4, 2013

Specialty Profession Services Contributes to Agents of America e-Book, Insurance Agency Risk Management: A Comprehensive Guide to Avoiding E&O Claims

January 16, 2012

Michael Cawley Appointed to Co-Chair ABA Insurance Coverage Litigation Subcommittee

January 3, 2012 Michael J. Cawley has been appointed co-chair of the Products Liability Subcommittee of the ABA Litigation Section of the Insurance Coverage Litigation Committee (ICLC).

Cushing, Douglass and Cawley Win Summary Judgment in a Novel Bad Faith Case

July 20, 2011 Kym S. Cushing, Michael C. Douglass and Reuben H. Cawley obtained summary judgment in the United States District Court of Arizona on behalf of an insurance company. The case involved allegations of bad faith and breach of contract arising from an errors and omissions policy for an insurance agent/broker.

Michael Cawley Named Fellow of the American Bar Foundation

July 14, 2011 Michael J. Cawley has been named a fellow of the American Bar Foundation.

Awards & Distinctions

AV Preeminent Rated by Martindale-Hubbell
Fellow of the American Bar Foundation, 2010
Selected for inclusion in Pennsylvania Super Lawyers - Insurance Coverage, 2007-2014
Co-chair of the Membership Subcommittee of the American Bar Association Professional Liability Litigation Committee, 2009-2011
Co-chair of the American Bar Association Insurance Coverage Litigation Committee, 2012

Events

Bad Faith Across Jurisdictions

Speaking Engagements

March 16-17, 2015

30th National Forum on Bad Faith Claims & Litigation

How to Avoid Errors and Omissions in the Procurement, Underwriting and Placement of General and Professional Liability Insurance Coverage

Speaking Engagements

July 16, 2014

National Insurance Company Presentation

View from the Bench: Judicial Insight on the Latest Claims, Theories and Discovery Issues

Speaking Engagements

April 1, 2014

ACI’s 27th Advanced Forum on Bad Faith Litigation

View from the Bench: Judicial Insight on the Latest Bad Faith Claims, Theories and Discovery Issues

Speaking Engagements

November 22, 2013

American Conference Institute: 26th National Advanced Forum on Bad Faith Litigation

View From the Bench: Judicial Insight on the Latest Claims, Theories and Discovery Issues

Speaking Engagements

April 30, 2013

ACI’s 24th National Advanced Forum on Bad Faith Litigation

Insurance Coverage Issues Related to Sexual Molestation Claims

Speaking Engagements

April 26, 2012

Pennsylvania Bar Institute

Cawley to Present at Bar Association CLE on Insurance Coverage Issues Related to Sexual Molestation Claims

Seminars/Webinars

April 13, 2012

Additional Events

Mealey Advanced Insurance Coverage, Top 10 Issues Seminar, January 2007
“The Ramifications of Insurance Agent and Broker Errors and Omissions,” Insurance Society of Philadelphia, February (semi-annual seminar), 2005-2012
Mealey’s Reinsurance Seminar, Boston, September 20-21, 2004
“Avoiding Insurance Broker and Agent Errors and Omissions Claims,” Mellon Insurance Services, 2002

 
Reported CasesRepresentative Matters: Save Our Local Environment (SOLE) v. Grand Central Sanitary Landfill (GCSL) et. al. (Northampton County, Pennsylvania). CCP, Northampton County No. 1995-c-78; Judgment for Defendant Grand Central Sanitary Landfill December 14, 1998 . Michael tried to verdict the first SLAPP (Strategic Litigation Against Public Participation) lawsuit in the Commonwealth of Pennsylvania. The case involved charges that the client, a landfill operator and its successor company, wrongfully used civil proceedings against a citizens' group in an effort to intimidate and deter the members of the group from exercising their First Amendment Right to protest a proposed expansion of the GCSL landfill. Prior to the trial, SOLE made a demand of $14 million from GCSL and the other defendants named in the litigation. After a seven-week trial in the Northampton County Court of Common Pleas, the jury returned a verdict in favor of the defendants. Reliance Insurance Company in Liquidation v. Mellon-Clair Odell and Mellon Insurance Services AAA# 14 195 Y 0014406. In this American Arbitration Association (AAA) matter, Michael represented Mellon Insurance Services (Mellon) against claims brought by the Liquidator for Reliance Insurance Company (Liquidator) that Mellon had made material misrepresentations regarding a risk which owned and operated over 170 nursing homes in Texas. The Liquidator claimed that as a result of the alleged material misrepresentations made by Mellon, Reliance was (1) induced to underwrite hundreds of millions of dollars in excess coverage on the nursing home account and (2) that Reliance had to pay $7,600,000 under the policies to claimants who claimed to have been mistreated at the nursing home facilities. After hearings which spanned a two month period, the AAA panel found in favor of Mellon and dismissed the Liquidator's claims. Kvaerner Metals Division of Kvaerner U.S., Inc. et. al v. National Union Fire Insurance Company of Pittsburgh, PA. 589 Pa. 317; 908 A.2d 888; 2006 Pa. LEXIS 2064. In this 2006 landmark ruling, the Pennsylvania Supreme Court held that the failure of an insured's work product to meet the specifications required in a design-build contract for the construction of a coke oven battery does not meet the definition of occurrence since the failure to meet such contract specifications is not an accident. Duff Supply Co., et. al. v. Crum & Forster Insurance Company 1997 WL 255483 (E.D. Pa.). In the representation of the policyholder, Michael prevailed in establishing that Crum & Forster had an obligation to defend its insured-Duff Supply Co.-against allegations asserted in an underlying action that the insured engaged in a pattern of sexual harassment and gender based discrimination in violation of Title VII of the Civil Rights Act of 1964. The federal district court agreed that the underlying action alleged a covered personal injury (i.e. defamation) and ordered that Crum & Forster was obligated to reimburse its insured all of the legal fees and expenses incurred in the defense of the underlying litigation. Atlantic Mutual Ins. Corp. v. Brotech Corp. v. Lexington Ins. Co . 60 F.3d 813 (3d Cir. 1995), Third Circuit affirmed Trial Court'sholding that advertising activity did not include the infringement of patents by Lexington'sinsured, Brotech. National Union Fire Ins. Company of Pittsburgh, PA v. Combustion Engineering, Inc . 1989 U.S. Dist. LEXIS 15110. Holding that an Owners, Contractors Protective policy did not extend to provide coverage to designated contractors. Diamond International Corporation and National Union Fire Insurance Company v. Sulzer Brothers, Inc. and CNA Insurance Companies, 1989 U.S. Dist. LEXIS 9820. In this action, Michael represented the interests of Diamond International Company (Diamond). At issue was the interpretation of an indemnity agreement contained within an Asset Purchase Agreement (Agreement) executed between Diamond and Sulzer Bros. (Sulzer) and whether that agreement required Sulzer to defend and indemnify Diamond against contingent liability claims. The federal district court concluded that Sulzer had the obligation to defend Diamond against all future claims arising out of the product line transferred under the Agreement and held that the phrase including, but not limited to constituted a broadly worded indemnity promise running from Sulzer to Diamond. Assicuriazioni S.P.A. v. Public Service Mutual Ins. Co ., 77 F.3d. 731 (3d 1996). Michael represented Public Service Mutual Ins. Co. (PSM) which issued a comprehensive general liability policy to an insured which had insured its truckers liability risk through a Business Auto policy issued by Assicuriazioni S.P.A. He successfully argued before the Third Circuit that the district court's holding that PSM had concurrent obligations with Assicuriazioni S.P.A. to cover the injuries sustained by a third-party catastrophically injured during the delivery of furniture from a retail store be reversed. Weinstein Supply Co. v. Home Insurance Co. 1999 U.S. Dist. LEXIS 6661 (E.D of PA. 97-7195). Judge Clifford Scott Green granted Home'sMotion for Summary Judgment on basis that a comprehensive general liability policy did not cover employment related practices claims against Weinstein Supply Co. since such claims did not allege an accident and were therefore not occurrences. Reading Anthracite Coal Co. v. National Union Fire Insurance Co . 547 Pa. 756; 692 A.2d 566 (PA 1997). The Pennsylvania Supreme Court affirmed the Schuylkill County trial court'saward of summary judgment to National Union holding that a $1.8 million dollar business interruption claim of Reading Anthracite Company (RAC) was not covered under a first party property policy issued by National Union to RAC. The bad faith claim was subsequently dismissed on summary judgment as well in 2000 by the trial court. Bonnie Bannon v. Property and Casualty Insurance Company of Hartford CCP, Philadelphia County, December Term 2008; No. 1019. The Philadelphia County Court of Common Pleas Court granted Hartford's Motion to Dismiss a bad faith claim as unsupported by the pleadings. Lexington & Concord Abstract Co. v. The Hartford (E.D of PA #2:07-cv-03398-AB). After a Rule 16 Conference, the Plaintiff agreed to dismiss with prejudice all statutory bad faith and Unfair Insurance Practices Act claims which alleged that Hartford had improperly denied coverage for claims in an underlying action seeking return of real estate commissions and a return of escrow funds. Phelps School v. Transportation Ins. 844 A.2d. 1296; 2003 Pa. Super. LEXIS 5694 (November 17, 2003). Holding that the exclusionary language in the Transportation Insurance Co. (CNA) policy issued to The Phelps School (Phelps) prohibiting coverage for sporting events sponsored by the school precluded coverage to Phelps for personal injuries sustained by a 14-year-old female rendered a paraplegic in a school-sponsored wrestling match with a 14-year-old male.
 
ISLN908466168
 

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What Remains of Act 13 in Pennsylvania after Robinson? Pennsylvania Commonwealth Court Strikes Further Provisions of Act 13 as Unconstitutional
Michael J. Cawley,Kathleen D. Wilkinson, August 19, 2014
Earlier this year, we reported in our Client Alert dated January 15, 2014, on the Pennsylvania Supreme Court’s decision in Robinson v. Commonwealth of Pennsylvania, 83 A.3d 901 (Pa. 2013). In Robinson, the Supreme Court struck down as unconstitutional provisions of Act 13 that required...

Pennsylvania Effectively Eliminates Workers’ Compensation Act as Source of Protection for Employers from Suits Arising Out of Latent Occupational Disease Lawsuits
Michael J. Cawley, February 21, 2014
On January 29, 2014, the Pennsylvania Supreme Court denied defendants’ Petition for Reargument of the Court’s November 22, 2013, ruling in Tooey v. AK Steel Corp. et al. The ruling held that the Pennsylvania Workers’ Compensation Act (the Act) did not provide a bar to the lawsuits...

Pennsylvania Supreme Court Declares Portions of Marcellus Shale Act Unconstitutional, Upholds Local Regulation of Oil and Gas Operations
Michael J. Cawley,Kathleen D. Wilkinson, January 17, 2014
On December 19, 2013, in Robinson Township v. Commonwealth of Pennsylvania et al., the Pennsylvania Supreme Court declared portions of Act 13 of 2012 (Act 13), commonly known as the “Marcellus Shale Act,” unconstitutional. As enacted by the Pennsylvania legislature and signed into law...


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Michael J. Cawley

Independence Square West, Suite 1130 East
PhiladelphiaPA 19106-3308




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