Opposition Brief — Public Service Mutual Insurance v. Peck

| Supreme Court, US.

(Z) FILED

No. 03-0393 OCT 19 203

CLERK

Jn The amen

Supreme Court of the Anited States

f. *

PUBLIC SERVICE MUTUAL

INSURANCE COMPANY,

Petitioner,

V.

ELLEN M. PECK,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

¢

BRIEF IN OPPOSITION FOR

RESPONDENT ELLEN M. PECK

¢

JOHN W. MILLS

Counsel of Record

MURPHY AND KARPIE, LLC

350 Fairfield Avenue

Bridgeport, CT 06604

(203) 333-0177

Attorney for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Second Circuit correctly reversed an order of summary

judgment entered against the respondent by the District

Court on the basis that there remained unresolved issues

of material fact in dispute between the parties concerning

whether the petitioner-insurer had been materially preju-

diced as a result of allegedly receiving late notice of the

respondent’s claim in an earlier lawsuit filed in 1994.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED................:::ssscsseeeeeeseeneeees i

TABLE OF AUTHORITIES ...........cccccscsessccssseessrsvscees ii

STATEMENT OF THE CASE ...............ccscccssersseesseoens 1

REASONS FOR DENYING THE WRIT.................4++ 9

CONCLUBION ...cccssconcescevsesoscccstensuessenaneevervensesonsnens 13

TABLE OF AUTHORITIES

CASES

Aetna Casualty & Surety Co v. Murphy, 206 Conn.

409, 538 A.2d 219 (1988).........cceseeessseeeereessereeeeeeeeeesnees 11

Celotex Corp v. Catrett, 477 U.S. 317 (1986) ...........sees 1i

Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 205

A.2d TBO (1GGA) ....00ccersiersescessoccresssssnsensrenensnvenersenessovensses il

Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 116

A.24 906 (1965) ....0covcsesoesvecsvorscenssensssssussueerasesnnntoreseseesens 11

STATUTES

Connecticut General Statutes § 38a-321............::eeeseeeeeeeees 6

BRIEF IN OPPOSITION FOR

RESPONDENT ELLEN M. PECK

Respondent Ellen M. Peck (“Peck”) submits that the

petition for writ of certiorari filed by Petitioner Public

Service Mutual Insurance Company (“PSM”) should be

denied. The decision below, by the Second Circuit Court of

Appeals, correctly reversed the order of summary judg-

ment entered against Peck by the District Court after

determining that there remained critical issues of material

fact still in dispute concerning when notice of a claim was

received by PSM and whether PSM was prejudiced as a

result of not receiving notice earlier. Issues of notice and

prejudice are fact driven, and should be decided by a jury

after hearing all of the evidence. Contrary to the asser-

tions made by the petitioner in the petition now before this

Court, Peck did in fact produce specific evidence in opposi-

tion to summary judgment, and the Second Circuit Court

of Appeals was correct in deciding that ske had made a

sufficient showing to defeat summary judgment.

The petitioner raises no novel issue of law, and there

is no reason for this Court to hear further argument

concerning a motion for summary judgment. This case was

properly remanded to the District Court for further con-

sideration. The respondent should be provided with her

day in court, so that a jury can finally decide all of the

issues still in dispute between these parties.

,

v

STATEMENT OF THE CASE

This case arises out of a civil lawsuit initially filed by

Peck in the Connecticut Superior Court in 1994 as a result

of excessive noise coming from the Rattlesnake Bar &

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2

Grill, which moved directly beneath Peck’s condominium

unit in South Norwalk, Connecticut in 1992 and began to

feature live rock music several nights each week. Peck

brought suit against the owner of the condominium unit,

South Norwalk Redevelopment Limited Partnership

(“SNRLP”), as well as Rattlesnake Ventures, Inc. (“Rattle-

snake”) and its owner, William Opper.

The summons and complaint were filed on or about

June 23, 1994, alleging an ongoing course of improper

conduct by the defendants, beginning in 1992 and continu-

ing into the future. Five days after the complaint was

filed, the law firm of Goldstein & Peck entered an appear-

ance on behalf of all three defendants. Subsequently, on

December 6, 1994, Attorney Paul McCullough also ap-

peared solely on behalf of SNRLP.

When Peck first filed suit in 1994, the defendants only

provided notice of her claim to the Greater New York

Insurance Company and to the Travelers insurance

Company, the two carriers who insured the premises from

1992-1994. However, because the complaint alleged

ongoing tortuous conduct by the defendants, it was later

necessary to provide additional notice to PSM, whose

policy covered the period 12/1/94-12/1/95. On September 8,

1995 Goldstein & Peck, counsel of record for all defen-

dants, requested that insurance agent Ronald Fitelson

notify PSM of “he underlying action. Four days later, on

September 12, 1995, Fitelson faxed to PSM a Loss Notice

and the summons and complaint, which separately listed

each defendant, and contained individual counts directed

against each defendant, so that they were readily distin-

guishable.

3

When providing notice of the claim to PSM, Fitelson

instructed PSM to contact Attorney Eugene Cederbaum,

the lawyer then handling the case at Goldstein & Peck. On

September 14, Daniel Jaconetti, the head of litigation at

PSM, set up a claim file in which he made handwritten

notes about the claims alleged in Peck’s complaint. (App.

22a) Jaconetti clearly recognized that separate claims

were being asserted by Peck against SNRLP, which was

listed as an additional insured on the policy, writing

“Possibly may be coverage for Counts Nine and Ten

[against SNRLP] Depending upon lease Agr. And if Co-

defendant [SNRLP] is Add’l Insd. On Policy.”

Mr. Jaconetti immediately directed insurance adjuster

Barry Blecher to get a hard copy of the policy and the

lease agreement between Rattlesnake and SNRLP. (App.

22a) Mr. Blecher in turn contacted Attorney Cederbaum,

who on October 20 confirmed for Blecher that “the prem-

ises on which the restaurant is located is rented from

South Norwalk.” Attorney Cederbaum further advised

PSM that Peck’s deposition was scheduled to take place on

October 26th. (Pet. App. at 30a)

In early November, PSM received a copy of the lease

agreement, which specifically required Rattlesnake to

maintain liability insurance for SNRLP, and to name

SNRLP as an additional insured. PSM clearly recognized

that claims were being asserted by Peck against SNRLP

and that there might be coverage for the claims asserted

against SNRLP in Counts 9 and 10 of her complaint, as

evidenced by the initial file notes made by Mr. Jaconetti on

September 14, 1995. However, PSM refused to participate

in the underlying litigation, and refused to provide any of

the defendants with a legal defense.

4

Although invited to attend Peck’s deposition on

October 26th, PSM refused to hire defense counsel or even

to contribute to the defense costs presently being borne by

the Greater New York Insurance Company and the Travel-

ers Insurance Company, who had hired the firm of Gildea

& Stevens to appear for the defendants on January 23,

1995. On November 28, 1995 PSM sent a letter to Rattle-

snake denying insurance coverage on the grounds that (1)

the date of the loss was when the noise first started in

October, 1992, prior to the December 1, 1994 effective date

of the policy; (2) notice of the claim was not timely pro-

vided by Rattlesnake until September 12, 1995; and (3)

intentional acts alleged in parts of the complaint were

excluded from coverage.

Although PSM had received notice of the claim from

the Fitelson Insurance Agency, who procured the coverage

on behalf of all defendants, including SNRLP as an addi-

tional insured listed on the declarations page of the policy,

PSM never sent any disclaimer of coverage to SNRLP, and

SNRLP was not referred to in the letter sent to Rattle-

snake. (Pet. App. at 30a)

Peck had no way to independently contact PSM in

order to discuss the claim, as none of the defendants identi-

fied PSM as an insurer in response to discovery requests.

Finally, on November 25, 1996, Peck filed a motion for

default against SNRLP for failure to answer discovery

requests. Although an order of default was entered against

SNRLP on July 21, 1997, this was not a default judgment.

Under Connecticut Rules of Practice an order of default is

distinguishable from a default judgment. Peck did not

move for judgment against SNRLP until the conclusion of

trial in 1998, and the order of default could have easily

A A Get rr hae +

been remedied at any time prior to trial by providing the

requested discovery.

On May 29, 1998 Attorney Brian Gildea, formerly of

the firm Gildea & Stevens, entered a new appearance ir

the case on behalf of all defendants. At a pretrial confer-

ence held in July, 1998 Attorney McCullough advised the

court that he would not be attending the trial on behalf of

SNRLP, because his participation would be prohibitively

expensive for his client, who was supposed to be insured

and defended by Rattlesnake in accordance with the terms

of the lease agreement. (Pet. App. at 3la) Attorney Gildea

explained to the court that he planned on defending only

Rattlesnake and Opper, because those were the only

insureds listed on the policy issued by the Greater New

York Insurance Company, who was paying him to be there.

Although the lease agreement required Rattlesnake to

make sure that SNRLP was also insured under that policy,

the tenant had failed to do so.

At that point in the proceedings the Superior Court

judge ordered Attorney McCullough to notify any insur-

ance carrier who did insure SNRLP of the approaching

trial date. The judge specifically stated that if the insurer

wanted “to come in and ask for a continuance,” the court

would consider such a request. (Pet. App. at 31a) As the

tenant had purchased the insurance policy and paid the

premiums, Attorney McCullough did not know who to call

in response to the judge’s order. Therefore Attorney Gildea

interceded, and offered to contact PSM.

From the courthouse Attorney Gildea called PSM,

notifying PSM that the trial was scheduled to commence

shortly, and that SNRLP’s personal counsel had been

given permission not to attend. Although Attorney Gildea

6

specifically informed PSM of the judge’s order to notify the

carrier, PSM responded by stating that it “had closed [its]

file on this matter, and had no intention of hiring defense

counsel or taking any other steps to get involved in the

litigation.” (App. 17a)

Although the trial judge had invited PSM to get

involved in the case, and had indicated on the record a

willingness to consider a request for continuing the trial

date so that additional defense counsel could appear and

get up to speed, PSM decided not to take any action in

order to protect SNRLP.

After a jury trial on the merits of the underlying case,

judgment was entered against SNRLP in the amount of

$250,000 on August 4, 1998. (Pet. App. at 32a) In Septem-

ber, 1998 Attorney Cederbaum again contacted PSM,

notifying PSM of the verdict and inviting the insurer to

participate in post-trial efforts to settle the case or appeal.

PSM responded by demanding a copy of the entire trial

transcript, without offering to pay for same. (Id.) On April

4, 1999 the undersigned sent Mr. Blecher a letter, asking

PSM to pay the judgment entered against SNRLP. PSM

refused to respond.

In May, 1999 Peck sued PSM in Connecticut District

Court, pursuant to Connecticut’s direct action statute,

C.G.S. § 38a-321. (Pet. App. at 33a) In June, 2001, six

months after the expiration date for filing dispositive

motions in the case, PSM filed a motion for summary

judgment against Peck, arguing that SNRLP’s failure to

provide timely notice of the underlying claim defeated

insurance coverage and precluded Peck’s cause of action.

Peck filed a sixteen page memorandum in opposition to

summary judgment on July 16, 2001 (App. 1a-16a), which

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7

included a sworn affidavit from Attorney Gildea concern-

ing his efforts to notify PSM of the claims asserted against

SNRLP prior to trial. (App. 17a) On July 26, 2001 Peck

filed a supplemental memorandum in opposition to sum-

mary judgment which also included copies of PSM’s file

materials and excerpts from Mr. Jaconetti’s deposition

which confirmed that PSM knew about the claims being

asserted against SNRLP in 1995, before Peck was deposed,

before SNRLP was defaulted, and three full years before

trial, but opted to close its file without providing defense

or indemnification for any of the defendants on the basis

that the complaint alleged facts outside of the scope of

coverage. (App. 19a-30a)

Peck argued that PSM had waived any right to claim

late notice by failing to issue a disclaimer of coverage to

SNRLP. Peck also argued that PSM was not materially

prejudiced by not receiving notice of the underlying claim

until September 12, 1995 because there was still ample

time to hire defense counsel and defend the case prior to

trial. Finally, Peck argued that PSM’s letter to Rattle-

snake, wherein PSM denied coverage in any event because

the claims asserted in the complaint fell outside the scope

of coverage, proved that PSM did not change its position in

any way because of SNRLP’s failure to provide earlier

notice of the claim; no matter when notice was provided,

PSM was not going to agree to defend or indemnify any of

the insureds. As there was no change in its position, PSM

could not argue that it had been materially prejudiced by

late notice.

In a November 11, 2001 unpublished decision and

order, the District Court granted summary judgment for

PSM solely on the late notice defense, finding that PSM

had “been deprived of its right to defend” the underlying

Se

lawsuit because it did not learn of the claims being made

against SNRLP until after receiving the demand for

payment from the undersigned on April 4, 1999. The

District Court failed to comment on Peck’s argument that

PSM had waived its right to raise a late notice defense as

a matter of law by failing to ever send a disclaimer letter

to SNRLP prior to raising this defense in 2001, six years

after first receiving notice of the claim in 1995 and more

than two years after receiving a demand for payment of

the judgment. (Pet. App. at 34a)

Peck filed a timely appeal with the Second Circuit

Court of Appeals. On April 17, 2003 the Second Circuit

reversed the District Court, and remanded the case for

further proceedings in accordance with its opinion that the

respondent had established that there remained genuine

issues of material fact still in dispute concerning the

issues of notice and alleged prejudice to PSM. Although

Peck bore the burden of establishing that PSM was not

materially prejudiced, the Court concluded that she had

put forth enough evidence to show that PSM was not

prejudiced so as to defeat summary judgment.

On or about May 7, 2003 PSM filed a petition for a

rehearing and a petition for the matter to be heard en

banc. (Pet. App. at 68a-77a) The panel of Judges who

initially decided the appeal filed an errata sheet modifying

a portion of their original decision on May 21, 2003,

specifically acknowledging that Peck bore the burden of

proof on the issue of material prejudice, but holding that

“Peck has done so here.” Thereafter, on June 13, 2003,

PSM’s petition for a rehearing and petition for a rehearing

en banc were both denied by the Second Circuit. The order

issued by the Second Circuit confirmed that PSM’s petition

for rehearing en banc had been transmitted to the judges

ah slap

9

of the Court in regular active service and any other judge

that heard the appeal and that no such judge had re-

quested that a vote be taken thereon.

On July 2, 2003 the judgment of the District Court

was officially vacated, and the case was remanded for

further proceedings in accordance with the decision issued

by the Second Circuit. The final decision issued by the

Second Circuit Court of Appeals was reported as Peck v.

Public Service Mutual Ins. Co., 326 F.3d 330 (2d Cir. 2003).

The petition for certiorari was filed on or about September

16, 2003.

42

Vv

REASONS FOR DENYING THE WRIT

I. This Case Involves the Application of Well-

Established Law and its Application to a Mo-

tion for Summary Judgment and Does not

Merit a Grant of Certiorari

This petition was filed after the Second Circuit Court

of Appeals remanded the case to the District Court for

further proceedings in order to further litigate factual

issues pertaining to when PSM first received notice of the

underlying action and whether PSM was materially

prejudiced. The Second Circuit decision does not raise any

new issue of law, and there is no split in authority among

the circuits or the state courts of last resort in terms of the

applicable law concerning the standards for summary

judgment, nor is there a conflict with Supreme Court

precedent.

Despite the petitioner’s arguments to the contrary, the

respondent did in fact submit sufficient evidence in opposi-

tion to summary judgment to properly defeat said motion.

10

The respondent submitted documentation from PSM’s own

claims file which established that PSM received notice of

the claims filed against SNRLP in September, 1995, prior

to SNRLP being defaulted, and three full years prior to

trial. These documents made it clear that PSM recognized

that separate claims were being asserted against SNRLP,

and that there could be insurance coverage for those

claims. Any subsequent prejudice to PSM came about

because of its own refusal to hire defense counsel as

obligated by the terms of the insurance contract, and not

because of any inaction or neglect by SNRLP. The policy

required PSM to defend, not SNRLP.

The respondent also submitted an affidavit from

Attorney Brian Gildea, acting defense counsel in the under-

lying action at the time of trial, who states under oath that

he personally called PSM prior to the commencement of jury

selection in order to notify PSM of the approaching trial and

the need to hire additional defense counsel for SNRLP,

which was named as an additional insured on the PSM

insurance policy. This call was made in direct response to

an order of the trial court, which was offering to continue the

trial if PSM and/or new defense counsel needed more time.

PSM again opted to ignore the claim, telling Mr. Gildea that

it “had closed [its] file on this matter, and had no intention of

hiring defense counsel or taking any other steps to get

involved in the litigation.” (App. 17a)

Any prejudice claimed by PSM was self-inflicted by its

own refusal to properly respond to claims it knew to exist

against an additional insured for three years before trial.

Once more, even if PSM had received notice of the suit the

very day it was filed, we can be certain that the insurer

would not have acted any differently. PSM has consis-

tently maintained that the insurance policy does not

Te DAY:

RS RI

PTR OORT SE

11

provide coverage for the claims made by Peck. PSM

refused to share in the costs of defending the other insur-

eds, Rattlesnake and Opper, and refused to participate in

post-trial settlement negotiations. The fact of the matter is

that Peck’s claims really are covered by the policy, but

PSM is afraid to litigate that issue, and instead seeks to

avoid that issue altogether by arguing a preemptive late

notice defense.

The Connecticut Supreme Court has held that the

issue of whether there is material prejudice to an insurer

because of late notice should be determined on a factual

basis by the jury, as opposed to a question of law decided

solely by the court. Aetna Casualty & Sur. Co. v. Murphy,

206 Conn. 409, at 419-20, 538 A.2d 219 (1988). Similarly,

whether PSM waived its ability to claim prejudice by its

own actions and its own failure to ever issue a disclaimer

letter to SNRLP is a question of material fact that should

be decided by a jury after hearing all of the evidence.

Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 259, 205

A.2d 780 (1964); Kurzatkowski v. Kurzatkowski, 142 Conn.

680, 684, 116 A.2d 906 (1955).

The decision below is consistent with Connecticut

insurance law, and the Second Circuit properly remanded

this case to the District Court so that these issues of

material fact, which remain hotly contested by the parties,

can be properly decided after being fully developed and

explored at trial. The decision is consistent with this

Court’s holding in Celotex Corp. v. Catrett, 477 U.S. 317

(1986), as the Second Circuit properly concluded that the

respondent had met her burden of coming forward with

specific facts showing that there was a genuine issue for

trial concerning her contention that PSM was not materi-

ally prejudiced as a result of late notice. Peck produced

12

documentation from PSM’s claims file, deposition testi-

mony from PSM’s claims supervisor, and an affidavit from

defense counsel Gildea in support of her position, and this

was more than sufficient evidence to defeat a motion for

summary judgment on this issue.

The petition for certiorari should be denied. Issues

concerning when notice was received and whether PSM

was materially prejudiced are issues of fact, which should

be decided at trial, and not by any appellate court. The

respondent has a right to present her case at trial. The

respondent was initially awarded $250,000 by a jury in

1998. She has waited six years for her day in court to

prove that this award is covered by the terms of the

petitioner’s insurance policy. This case was properly

remanded to the District Court, and should immediately

proceed to trial. There is no reason for this Honorable

Court to grant certiorari.

II. The Petitioner has Failed to Cite any Legal

Authority in Support of its Contention that the

Second Circuit Court of Appeals Abused its

Discretion in Modifying its Original Decision

The petitioner cites no legal authority whatsoever for

its claim that the Second Circuit Court of Appeals abused

its discretion in using an errata sheet to modify its origi-

nal decision. The modification was made on May 21, 2003,

well before PSM’s petition for rehearing en banc was

denied on June 13. If any judge wanted to hear additional

argument or to further examine the holding reached by

the initial panel a vote would have been requested. No

such request was made.

Se EET

13

Given the petitioner’s failure to cite any legal author-

ity in support of its contention that the Court below

abused its discretion, this Honorable Court should deny

the petition for certiorari on this question as well.

é

v

CONCLUSION

For all of the reasons stated and discussed herein, the

petition for writ of certiorari should be denied.

Respectfully submitted,

ERLE IT DT ARS ARENT BT TIE TO RAB URE RATE 868 TRAN Ds BST PCT

RSET

JOHN W. MILLS

Counsel of Record

MURPHY AND KARPIE, LLC

350 Fairfield Avenue, Suite 408

Bridgeport, CT 06604

(203) 333-0177

=~ FF

APPENDIX TABLE OF CONTENTS

Plaintiffs Memorandum in Opposition

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Affidavit of Attorney Brian M. Gildea...........

Plaintiffs Supplemental Memorandum

Opposition to Summary Judgment................

Claims Division Transaction Sheet...............

Deposition Testimony of Daniel Jaconetti.....

Loss Notice from Insurance Agency ..............

Correspondence from Attorney Eugene

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App. 1

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

ELLEN M. PECK | CIVIL

Plaintiff 3:99-CV-886(GLG)

vs

PUBLIC SERVICE MUTUAL

INSURANCE COMPANY

PLAINTIFF’S MEMORANDUM IN OPPOSITION

TO THE DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

I. STATEMENT OF FACTS:

The court has ruled on numerous prior motions in this

case which have set forth the facts giving rise to this

lawsuit, and these will not be reiterated yet again by the

plaintiff. However, it is important to underscore that the

judgment obtained in the underlying case in 1998 was

based upon the allegations set forth in the operative

amended complaint dated June 1, 1998. While the defen-

dant’s brief addresses only the allegations set forth in two

earlier complaints, it can not be disputed that the judg-

ment at issue entered on a complaint filed in 1998. It is

the operative complaint filed in 1998 which will determine

whether there is insurance coverage for the judgment.

In addition, it should be noted that the defendant’s

motion for summary judgment has been filed well after the

agreed upon cut-off date for the filing of dispositive mo-

tions, which was January 31, 2001 per the parties’ report

of second planning meeting filed on or about July 24, 2000.

The plaintiff has had to incur costs in order to locate an

expert witness for disclosure by September 1, 2001. The

defendant should not be permitted to wait until this late

App. 2

date to file a potentially dispositive motion. The motion is

more than six (6) months past the agreed upon deadline,

and it should not even be entertained by the court at this

juncture.

Il. LAW AND ARGUMENT:

The defendant’s motion for summary judgment is

based upon four different arguments. Each of these argu-

ments will be addressed in turn.

(i) Time Span of Damages

First, the defendant argues that there is no insurance

coverage for this claim because the complaint filed in the

underlying action did not allege any damages to have

occurred during the policy period, which began on Decem-

ber 1, 1994 and continued forward through December,

1998. A basic review of any of the three complaints filed in

the underlying action reveal this argument to be com-

pletely without merit.

The original complaint, dated June 23, 1994, alleged a

continuing course of conduct. While it is true that the

complaint alleges that the noise problems began in Octo-

ber, 1992, it is equally true that the complaint also alleged

an ongoing, regular course of conduct by the defendants.

The defendants continued to cause damages from 1992

right up until the time of trial in 1998.

Each count of the complaint directed against South

Norwalk Redevelopment Limited Partnership alleged in

relevant part as follows:

“As a direct result of said improper use

South Norwalk Redevelopment has caused

App. 3

Ms. Peck to suffer the following injuries in

an ongoing, regular basis since October,

1992:.. .”

(a copy of the original complaint is attached as exhibit 3 to

the defendant’s memorandum)

The defendant focuses myopically on the 1992 commence-

ment of the noise problem, completely ignoring the allega-

tions of “ongoing, regular” misconduct which immediately

precede the commencement date.

The word “ongoing” is an adjective, defined in The

International Webster’s Comprehensive Dictionary of the

English Language (1999 Ed.) as “Going on, continuing or

progressing.” Thus it can not be disputed that the com-

plaint alleged a continuing course of misconduct, as

opposed to a single act that occurred on one specific date.

While the conduct began in 1992, it continued, un-

abated, for years thereafter. The Rules of Practice did not

require the plaintiff to file a series of amended complaints

every week up until the time of trial in 1995 in order to

offer evidence about conduct that occurred throughout

1995-1998; her original complaint alleged an ongoing

problem, and entitled her to offer evidence of a pattern of

misconduct by the defendants which took place in the

years that foliowed the initiation of the lawsuit.

The complaint is not ambiguous. It alleged an ongoing

course of conduct that took place during the time policy

period. Nowhere in the complaint does it say that the noise

ended, nor does it allege damages “up until the present

time” of the initial filing date. A plain reading of the

complaint and the claims for damages indicates that the

App. 4

plaintiff was suing for an ongoing course of conduct. The

wording of the complaint looks forward, not back.

Even if the court should find any ambiguity as to the

time when damages were alleged to have occurred, the

ambiguity must be read in favor of coverage not against

coverage as argued by the defendant. See, e.g., Stephan v.

Pennsylvania Mutual Assurance Co., 224 Conn. 758, 763

(1993); Streitweiser v. Middlesex Mutual Assurance Co.,

219 Conn. 371, 375 (1991); Schultz v. Hartford Fire Insur-

ance Co., 213 Conn. 696, 712 (1990); Missionaries of the

Company of Mary, Inc. v. Aetna Casualty & Surety Co.,

155 Conn. 104, 108 (1967).

As the defendant presents its arguments in a sum-

mary judgment motion, it is also important to recognize

that the issue of when the damages took place is a ques-

tion of material fact, which should be left to the jury to

decide. The jury can cxamine the operative complaint, and

decide whether the complaint alleges any facts that trigger

insurance coverage. Summary judgment is inappropriate

to decide disputed issues of material fact, and again all

inferences and ambiguities must be read in favor of the

non-moving party. Gallo v. Prudential Residential Part-

nership, 22 F.3d 1219 (2d Cir. 1994). See also FRCP 56(c),

which provides that summary judgment is only appropri-

ate if there is no genuine issue of material fact in dispute.

In the case at bar the defendant asks the court to limit

its review to the initial complaint filed by the plaintiff in

1994. The defendant also asks the court to ignore the

amended complaint filed in 1998. No legal authority is

provided in support of this skewed analysis. It can not be

disputed that the 1998 complaint was the operative

complaint at the time of trial, and superseded the earlier

App. 5

complaint. Practice Book §10-60. In addition, the

amended complaint was submitted as an exhibit in the

underlying trial, and the record clearly demonstrates that

the jury’s verdict was based solely upon that amended

complaint.’

The defendant submits no legal authority in support

of its argument that the original complaint should control

in determining the scope of insurance coverage. Although

there may be a question in dispute as to whether the

defendant received notice of the amended complaint, that

is another question of material fact that needs to be

resolved by the jury.

The plaintiff has obtained an affidavit from trial

counsel in the underlying case, Attorney Brian Gildea,

attesting to the fact that he contacted Public Service

Mutual prior to trial, specifically to inform the defendant

that a default had entered against SNRLP, and that

additional defense counsel should appear.’ Thus, there

was still time for the defendant to get involved in the

underlying case prior to trial, and to find out about the

existence of an amended complaint. The evidence indicates

that the defendant knew or should have known about the

amended complaint, but decided to ignore the entire

matter in the hope that it would never be pursued.

In total, three complaints were filed in the underlying

action prior to trial. All three of the complaints alleged a

continuing course of conduct that caused damages from

‘ A copy of -4e amended complaint submitted to the jury is

attached as “Exhivit 1.”

* A copy of the affidavit is attached as “Exhibit 2.”

App. 6

1992 up until the time of trial in 1998. In cases involving

multiple occurrences causing damages over several years,

the “multiple injury trigger” test must be applied in order

to determine whether there is insurance coverage. United

Technologies Corp. v. American Home Insurance, 989 F.

Supp. 128, 153 (D. Conn. 1997). If any of the damages

occurred during the policy period, insurance coverage is

triggered; even if the initial damages started prior to when

the policy went into effect. Id.

The plaintiff has determined that the defendant

collected approximately $90,000.00 in insurance premiums

for the insurance coverage it provided to Rattlesnake

Ventures, Inc. and SNRLP throughout 1994-1998. Addi-

tional premiums were collected because SNRLP was added

[sic] an additional insured. Although the plaintiff produced

enormous amounts of evidence throughout the underlying

case which proved that her damages occurred throughout

1995, 1996, 1997 and 1998, the insurance company now

argues that there is no coverage because all of the dam-

ages occurred prior to when its policy first went into effect

in December, 1994. The defendant’s argument ignores the

facts, and lacks the support of any legal authority. The

argument should be rejected by this court, especially when

presented in the context of a motion for summary judg-

ment.

(ii) Lack of Notice

The defendant also argues that it is entitled to sum-

mary judgment because SNRLP never provided notice of

the underlying action. This arguments [sic] must fail to

[sic] for three different reasons. First, the defendant is

legally estopped from raising the notice issue because (a) it

App. 7

refused to defend the underlying lawsuit even after becom-

ing aware of its existence prior to trial; and (b) it has never

disclaimed coverage for lack of notice, and can not raise

this issue for the first time at trial. Second, a complete

copy of the summons and complaint was admittedly

received by the defendant from SNRLP’s insurance agent

in 1995. Although the agent only mentioned the named

insured (Rattlesnake) on the claim submission form, the

summons and complaint clearly listed SNRLP as a sepa-

rate defendant, thus providing actual notice that claims

were being made against SNRLP as well as Rattlesnake.

Finally, Attorney Brian Gildea had appeared for all

defendants in the underlying case, and he has provided an

affidavit that he again notified the defendant about this

case prior to trial. Thus, a lawyer formerly representing

SNRLP is on record as having provided additional notice

to the defendant prior to jury selection and prior to trial.

Although three years has elapsed since the verdict

was obtained in the underlying case, the defendant has

never disclaimed coverage for this claim by sending a

letter denying coverage to its insured, SNRLP. The law is

well established; an insurance company can not remain

silent for years, and then disclaim coverage after the

verdict. National Union Fire Ins. Co. v. Mastroni, 754 F.

Supp. 269, 272 (D. Conn. 1990).

The defendant claims that it did not realize that its

policy also covered SNRLP when the [sic] it first received

the summons and complaint from the agent in 1995. The

defendant should be responsible for knowing who it

insures. SNRLP was named as an additional defendant on

every policy, and listed separately on the declarations

pages. In addition, the defendant collected additional

App. 8

premiums for the extra coverage afforded to SNRLP. If the

defendant failed to recognize that the policy also covered

SNRLP, the fault lies with the defendant, not with Ellen

Peck.

Attorney Gildea provided additional notice to the

defendant prior to trial. At that time the defendant ig-

nored the notice, indicating to Mr. Gildea that the file was

closed. Again, the defendant failed to notify SNRLP prior

to trial that coverage was being denied. SNRLP chose not

to pay its own attorney, Paul McCullough, to participate in

the trial because (1) it felt that legal defense should be

provided by the insurance company, and (2) assumed that

any award would be covered by insurance. Had the defen-

dant advised SNRLP of its position prior to trial, SNRLP

may have taken a different position.

The parties agree that the only notice of disclaimer

sent by Public Service Mutual was that provided to Rattle-

snake Ventures, Inc. No notice has ever been sent to

SNRLP. A notice of disclaimer to one party to insurance

contract does not operate as a disclaimer to any other

party who has not received proper notice from the insurer.

Hartford Accident & Indemn. Co. v. J.J. Wicks, Inc., 104 A

D.2d 289, 294, 482 N.Y.S.2d 935, 939 (4th Dep’t 1984);

John v. Centennial Ins. Co. 91 A.D.2d 1104, 1105, 458

N.Y.S.2d 350, 352-53 (3d Dep’t), appeal denied, 59 N.Y. 2d

605, 451 N.E.2d 505, 464 N.Y.S.2d 1026 (1983). A refusal

to take any action after receiving notice of the claim

constitutes a legal waiver of a later claim for defective

notice. Travelers Ins. Co. v. Central Nat'l Ins. Co. of

Omaha, 733 F. Supp. 522 531 (D. Conn. 1990).

Even if notice of a claim is late, the insurer still has a

duty to defend the case under a reservation of rights. A

App. 9

failure to take any action waives the right to later raise

the notice issue. Black v. Goodwin, Loomis & Britton, Inc.,

239 Conn. 144, 155-157 (1996); Keithan v. Massachusetts

Bonding & Ins. Co., 159 Conn. 128, 139 (1970); Missionar-

ies of the Company of Mary, Inc. v. Aetna Casualty &

Surety Co., 155 Conn. 104, 113 (1967). See also, Lee v.

Aetna Casualty & Surety Co., 178 F.2d 750, 751 (2d Cir.

1968); Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524, 532

(Iowa, 1995).

As the defendant has failed to ever notify its insured

that notice was defective, it can not now raise this issue as

a defense to coverage at the time of trial. The defendant

has waived the right to raise a policy defense of lack of

notice, and should be estopped from making this argu-

ment.

Even if the defendant is permitted to raise a lack of

notice defense, this would not be dispositive of this case.

The plaintiff would still be permitted to offer evidence to

show that the defendant was not prejudiced by the alleged

lack of notice.’ Aetna Casualty & Surety Co. v. Murphy,

206 Conn. 409, 412-19 (1988). The defendant may also

defeat lack of notice by showing justifiable excuse on the

part of SNRLP. Monteiro v. American Home. Assurance

Co., 177 Conn. 281, 233 (1979). Thus, the defendant is not

entitled to summary judgment on this issue.

* The defendant refused to provide coverage or a legal defense to

Rattlesnake Ventures, Inc., and would have denied coverage and legal

defense to SNRLP, no matter when notice was provided. The reality is

that the defendant would not have changed its position, and was not

prejudiced in any way because of the alleged lack of notice from

SNRLP.

App. 10

It is anticipated that the plaintiff will produce Attor-

ney Paul McCullough at trial, and that he will explain to

the jury that he repeatedly asked the lawyers hired to

defend Rattlesnake (hired by Travelers and the Insurance

Company of Greater New York) to assume the defense of

SNRLP as well, as required by the lease agreement.

Unfortunately, the tenant had not obtained additional

coverage for SNRLP for all of the years of the lease agree-

ment, as originally agreed. SNRLP was only added as an

additional insured on one of the insurance policies, the one

issued by Public Service Mutual. As Public Service Mutual

refused to defend Rattlesnake, there was no way it would

agree to defend SNRLP.

Attorney McCullough will testify that he did not have

access to the insurance policies purchased by Rattlesnake,

and did not know who to call directly. Not having this

information, he directed his demands for a legal defense

and insurance coverage to Rattlesnake Ventures, Inc. and

the lawyers defending Rattlesnake at the request of the

various insurers. If this information was not properly

passed on to the defendant, the jury may conclude that

SNRLP had a justifiable excuse for not providing notice

directly to the carrier.

It is further expected that testimony will be presented

at trial from Attorneys Eugene Cederbaum, Louis An-

nechino, and Andrew Turret who were hired by Travelers

Insurance Company to defend Rattlesnake. Although they

attempted to communicate with Public Service Mutual,

the defendant consistently refused to respond, indicating

that it had simply closed its file and did not want to be

bothered. Even if the defendant had received notice of this

claim, it would have done nothing differently. There was

- no prejudice to the defendant.

App. 11

(iii) Voluntary Default

The defendant complains that SNRLP voluntarily

allowed a default to enter against it, and refused to incur

the substantial costs of paying for its own lawyer to derend

the case throughout trial. However, this argument ignores

the fact that Public Service Mutual was the one who had

the obligation to provide a legal defense under the terms of

the policy. Even after receiving a telephone call from

Attorney Gildes, asking for separate trial counsel for

SNRLP, the defendant refused to act. Having breached the

insurance contract, the defendant can not now blame its

insured for failing to provide a proper legal defense.

In Black v. Goodwin, Loomis & Britton, Inc., 239

Conn. 144 (1996) the defendant not only refused to defend

the lawsuit brought by the plaintiff, but actually entered

into a stipulated judgment in the amount of $500,000. In

addition, the defendant provided the plaintiff with an

assignment of rights to pursue the judgment directly

against the insurance company. In exchange, the plaintiff

agreed not to look to the defendant, individually, to satisfy

the award. The insurance company cried foul, arguing that

the insured unfairly cooperated with the plaintiff by

agreeing to a large judgment. The Connecticut Supreme

Court held that this was entirely proper, given the circum-

stances. ;

The court held that when an insurer has refused to

defend its insured, it is in no position to argue that the

steps the insured took to protect itself should inure to the

insurer’s benefit. 239 Conn. 144, 154, 156. Moreover, once

an insuror has refused to defend, it can not thereafter

dispute the insured’s liability to the injured person.

Instead, the insurer must pay the judgment. Jd. at 160.

App. 12

In the case at bar the insured defendant did not

stipulate to an inflated judgment. The attorney for the

insured simply refused to participate further in the trial

because no one would pay his fees. Repeated requests

made to the insurance company lawyers hired to represent

the co-defendant (to assume the defense of SNRLP as well)

were ignored. At that point SNRLP had no obligation to

look out for the interests of the insurance company. Public

Service Mutual knew about the situation, by [sic] chose

not to get involved. The jury later awarded damages

against SNRLP. Public Service Mutual shouid have to pay

the award in full.

The defendant also points out that Attorney McCul-

lough made an inaccurate representation about a bank-

ruptcy proceeding, and failed to follow a court order to

notify the insurance company about the trial. While it is

unfortunate that these things occurred, they have no

bearing on the legal issues in this case. First, there has

been no showing that SNRLP knew about any of these

facts, or that Attorney McCullough advised his client

about the judge’s order. Second, evidence has been pro-

duced that Attorney Gildea, who was also in court at that

time, did in fact contact Public Service Mutual immedi-

ately thereafter to notify the carrier about the trial and

the fact that SNRLP was no longer being represented by

counsel. It may well be that Attorney McCullough asked

Mr. Gildea to make this call on his behalf, thus satisfying

the order of the court.

Attorney Gildea and Attorney McCullough will both

testify at trial, and will explain their actions to the jury. In

the end, it will be clear that Public Service Mutual re-

ceived notice of the trial and the fact that SNRLP was not

being represented prior to the commencement of evidence.

App. 13

It will also be established that the defendant decided not

to take any action to protect SNRLP, even though it could

have hired legal counsel, and asked for a continuance of

the trial date if necessary. Given these circumstances,

SNRLP had no obligation to defend the case at its own

expense in order to protect Public Service Mutual from its

obligation to pay the judgment.

The defendant’s. reliance on Brown v. Employer's

Reinsurance Corp., 206 Conn. 688 (1998) is completely

misplaced. The insurance policy at issue in Brown re-

quired the insured to hire defense counsel, not the insur-

ance company. Thus, the insured’s failure to properly

defend the case was found to constitute a breach of the

insurance policy. In the case at bar the insurance contract

clearly required Public Service Mutual to provide SNRLP

with a legal defense. There was no contractual obligation

for SNRLP to hire its own attorney to defend the case at

its own expense. Thus, the holding in Brown, which is

premised entirely on the terms of a different type of

insurance policy, is irrelevant to this case.

(iv) Bodily Injury or Property Damage Claims

Finally, the defendant argues it is entitled to sum-

mary judgment because none of the plaintiffs claims

qualify as either “bodily injury” or “property damage”

under its policy. The latter claim is somewhat remarkable,

given Attorney Dickins’s 1998 opinion letter, which con-

cludes that the award may in fact constitute “property

damage” under the terms of the policy.

The Connecticut Appellate Court has held that claims

solely for emotional distress, in the context of a pure

commercial transaction, do not qualify as a form of “bodily

App. 14

injury” under the typical commercial policy. Moore v.

Continental Casualty Co., 252 Conn. 405 (2000). The

plaintiffs allegations do not stem from a commercial

transaction, and the Moore holding may not apply. In

addition, the plaintiffs complaint also alleged injuries for

sleep deprivation. No case has yet ruled on whether

regular sleep deprivation, and its effects on a person’s

ability to function, qualify as a form of “bodily injury.” It

should be left to the jury to decide this disputed question

-of fact.

With respect to the claim for “property damage” the

issue is more clear cut. The plaintiff's complaint alleged a

loss of the quiet enjoyment of her property whenever loud

music was played at the defendants’ nightclub (up to eight

times over the legal limit). Black’s Law Dictionary defines

“quiet enjoyment” as “the possession and use of the prem-

ises in peace and without disturbance.” Black’s Law

Dictionary, 6th Ed. (1991). Three to four nights each week

the plaintiff was unable to use her home. Evidence was

' presented from neighbors and from investigating police

officers that the noise was so loud all of the dishes

clanked, and you could not hold a normal conversation or

even watch television. This type of “loss of use” qualifies as

a form of “property damage” under the defendant’s policy.

This is especially true when considering that any ambigu-

ity must be read in favor of coverage, and not against

coverage.

When asked to provide his professional opinion as to

the insurance coverage issues in 1998, Attorney Dickins

opined that the judgment returned in the underlying case

could be covered as “property damage.” Although a motion

has been filed with the court by the defense, asking for

that document to be returned, the court should still

App. 15

consider the document insofar as it establishes that a

legitimate argument can be made for insurance coverage.

In light of all the circumstances, summary judgment

would be inappropriate.

III. CONCLUSION:

For all of the reasons stated and discussed herein, the

plaintiff objects to the defendant’s motion for summary

judgment, and asks that the motion be denied by the

court. The defendant willingly refused to get involved in

the underlying case in any way. The defendant gambled,

assuming that the plaintiff would probably make a mini-

mal recovery and/or would fail to pursue any judgment

obtained against SNRLP. The defendant has since com-

pounded its error by refusing to attend a global settlement

mediation, or to make any serious offer to resolve this

case.

The judgment at issue is now worth approximately

$400,000.00, including post-judgment statutory interest.

The plaintiff should be given a fair day in court, in order to

prove her claims at trial. The defendant’s motion should be

denied.

THE PLAINTIFF

By: JOHN W. MILLS, ESQ.

Murphy and Karpie, LLC

350 Fairfield Avenue

Bridgeport, CT 06604

Federal Bar No.; ct11706

Tel: (203) 333-0177

App. 16

CERTIFICATION

This is to certify that a copy of the foregoing document

has been mailed, U.S. Mail, postage prepaid on July 16,

2001 to:

Oliver Dickins, Esquire

1 Phelps Lane

Simsbury, CT 06070-2215

Geoffrey Naab, Esquire

295 East center Street

Manchester, CT 06040

JOHN W. MILLS

App. 17

PLAINTIFF’S EXHIBIT W

~ CV 94 0139352 S * SUPERIOR COURT

ELLEN M. PECK * J.D. OF STAMFORD/

vs - NORWALK

RATTLESNAKE VENTURES, INC. : AT STAMFORD

AFFIDAVIT

I, BRIAN M. GILDEA, being duly sworn, hereby

depose and state:

1. Iam over the age of eighteen (18) and believe in

the obligations of an oath.

2. I am currently an attorney at law licensed to

practice in the State of Connecticut.

* * *

4. On July 21, 1998 I was the attorney representing

the defendants, William J. Opper and Rattlesnake Ven-

tures, Inc. in civil lawsuit entitled Ellen M. Peck v. Rattle-

snake Ventures, Inc., et al, CV 94 0139352 S, pending in

the Stamford Superior Court.

5. Iwas present in court on July 21, 199& when said

case was scheduled to commence jury selection.

6. I was also present in court when the Honoreble

Douglas Mintz addressed the issue that one of the defen-

dants, South Norwalk Redevelopment Limited Partner-

ship, would not be represented by counsel because

Attorney Paul McCullough requested permission not to

attend the trial.

7. Following the colloquy between Judge Mintz and

Attorney McCullough I contacted the Public Service

App. 18

Mutual Insurance Company in Manhattan, in order to

advise the claims handler that the case was scheduled to

commence trial and that there would be no attorney

present in order to defend its insured, South North Rede-

velopment Limited Partnership.

8. Although I successfully relayed this information to

the Public Service Mutual Insurance Company on July 21,

1998, the claims handler simply responded by saying that

Public Service Mutual had closed their file on this matter,

and had no intention of hiring defense counsel or taking

any other steps to get involved in the litigation.

/s/ Brian M. Gildea

Brian M. Gildea

STATE OF CONNECTICUT

NEW HAVEN

COUNTY OF FAERFESED

SS: NEW HAVEN

Subscribed and sworn to before me this 7th day of

February, 2001.

/s/ Christine M. Johnston

NOTARY PUBLIC/

COMMISSIONER-OF SUPERIOR

COURF

My Commission Expires Dec. 31, 2004

App. 19

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

ELLEN M. PECK

Plaintiff CIVIL

VS 3:99-CV-886 (GLG)

PUBLIC SERVICE MUTUAL

INSURANCE COMPANY

Defendant JULY 26, 2001

SUPPLEMENTAL MEMO IN OPPOSITION

TO SUMMARY JUDGMENT

On May 18, 2001 the plaintiff deposed the defendant’s

claims manager, Daniel Jaconetti. The deposition tran-

script just recently arrived. Mr. Jaconetti was the person

who reviewed the plaintiffs complaint when it was first

sent to the defendant by the insurance agent in 1995.

Attached hereto is a copy of the Claims Division Transac-

tion Sheet filled out by Mr. Jaconetti on September 14,

1995. As indicated in item #4, Mr. Jaconetti concluded

that there was in fact insurance coverage for Counts

Three, Five and Seven of the Complaint. This was con-

firmed at Mr. Jaconetti’s deposition.

Although the defendant now argues that it is entitled

to summary judgment because there is no insurance

coverage for any count of the complaint, because of when

the complaint was originally filed, its own claims man-

ager, the person in charge of the entire claims department,

concluded otherwise in 1995. Mr. Jaconetti read the

complaint, and concluded the policy covered some of the

allegations. Nowhere on the intake sheet is there an

indication that the complaint alleged conduct occurring

wholly outside the policy period.

App. 20

The intake sheet also indicates (#4) that there may be

coverage for Counts Nine and Ten against SNRLP, de-

pending on whether the landlord is an additional insured

on the policy. Thus, this exhibit clearly establishes that

the defendant knew that additional allegations were made

against SNRLP, and knew enough to check and see if

SNRLP was named as an additional insured on the policy.

The defendant now claims that it had no notice of any

claims made against SNRLP, and no reason to know that

it insured SNRLP as an additional insured on the policy.

The attached Exhibit proves those arguments to be false;

points #3 and #4 establish that the defendant immediately

knew that there was a co-defendant named in the com-

plaint, and that the policy would also provide coverage for

the co-defendant if the co-defendant was named as an

additional insured on the policy, which it was.

The defendant’s motion for summary should be denied

by the court, so that Mr. Jaconetti can explain to the jury

why he later refused to provide coverage, or even a legal

defense to any of the defendants in the underlying case, or

to advise SNRLP that coverage was being denied.

THE PLAINTIFF

By

JOHN W. MILLS

MURPHY and KARPIE

350 Fairfield Avenue

Bridgeport, CT 06604

Federal Bar No.: Ct11706

Tel: (203) 333-0177

App. 21

_ CERTIFICATION

This is to certify that a copy of the foregoing has been

mailed, U.S. Mail, postage prepaid on to:

Oliver Dickins, Esquire

One Phelps Lane

Simsbury, CT 06070

Geoffrey Naab, Esquire

295 East Center Street

Manchester, CT 06040

JOHN W. MILLS

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App. 23

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

* * kK KKK KK KK OK K

ELLEN M. PECK *

PLAINTIFF,

vs .

*

GREATER NEW YORK * ivil Action

MUTUAL INSURANCE , No. 3:99-CV-886 (GLG)

COMPANY, PUBLIC

SERVICE MUTUAL

INSURANCE COMPANY

DEFENDANTS.

kX KKK KKK KK KOK OK

*

*

*

*

*

DEPOSITION OF DANIEL JACONETTI, taken

pursuant to the Federal Rules of Civil Procedure, at the

law offices of MURPHY AND KARPIE, LLC., 350 Fair-

field Avenue, Bridgeport, Connecticut, before Carol J.

Beecher, a Registered Professional Reporter and Notary

Public in and for the State of Connecticut on FRIDAY,

MAY 18, 2001 at 11:30 A.M.

BEECHER & HORVATH

73 MILLBROOK ROAD

NORTH HAVEN, CT. 06473

(203) 230-0010

FAX (203) 281-3429

* * *

[49] particular case for some years now and having

brought with you today your claims file, can you tell me

one way or the other as to whether you ever received a

App. 24

copy of the summons and complaint in the underlying

action?

A Im sure we’ve received it at some point.

Q Can you tell me when?

A Specifically, no.

Q Is it fair to say that, anyway as of September 14th,

1995 that you opened a file on this case?

A Iopened the file and based on what I wrote here I

had to be looking at a summons and complaint.

Q May Isee that, please.

A (Witness handed document to counsel.)

Q Do you fill out a Claims Division Transaction

Sheet for every claim that comes in?

A For every set up of claim, yes.

Q It says here, “Accident state code 06.” I that

Connecticut?

A Yes.

Q “Examiner’s code LO 16.” Is that you?

A No. That’s an internal code. That’s [50] Mr.

Blecher’s code.

Q And specify the type of coverage. BI is bodily

injury?

A Correct.

Q The claimant is Ellen Peck?

Be RAE eB a

App. 25

A Yes.

Q_ The reserve is 99?

A $99 is a code reserve. It’s a reserve that is put on

every claim that’s set up where we don’t know whether or

not we have coverage, when we don’t know the value of the

claim.

Q Is it fair to say at some point from September 14,

1995 until today, the reserve was raised from $99 to

$50,000?

A Yes.

Q This is at the bottom, there’s initials, completed

by. Is that your initial there?

A No, it is not.

Q Whois that?

A That may be Pat Lilly, PL. She used to be one of

the clerical support staff.

Q And dated 9/15/95. Why would that —

A That would be for the file. Basically, let me ex-

plain. I fill out this sheet, it’s green [51] in color. I fill out

this sheet and I attach to the sheet the first report notice. I

hand it into the clerical support staff. They, in turn, just

hand it back to me with a file number and a blank file

jacket, and that’s probably what that is about.

Q Now, underneath that under the additional

instructions there’s a notation that says Blecher. Is that

Barry Blecher?

A Yes.

App. 26

Q_ “It looks like we are the last carrier in line.” You

see that?

A Yes.

Q Also an indication, “rush” is written up there.

What is that?

A That’s my writing “rush” to Mr. Blecher, that he

has to take care of this immediately.

All of this right here, not the okay, but all of this

which you can see, that’s all my handwriting. This is my

initials right here.

Q You have listed several items, you have circles 1,

2, 3, all the way through 7. There’s a line you have some-

thing written through?

A That’s correct.

[52] Q Would you agree that you filled this out

September 14, 1995?

A Yes.

Q At that time didn’t you put as number 4 that

counts 3, 5 and 7 of the complaint were covered?

A That’s what I wrote.

Q Now, once you filled out Exhibit H and a file

jacket was cre>ted and you wrote this note to Mr. Blecher,

did the file then go to Mr. Blecher for future handling?

A Yes.

Q And from that point forward did you have any

day-to-day involvement with the file that you can recall?

App. 27

A If and when Mr. Blecher brought it to me for

further discussion.

Q Let me show you what’s been marked as Plaintiff's

Exhibit J. This is a letter to Barry Blecher from Gene

Cedarbaum at Goldstein and Peck. It says he’s giving PSM

a copy of the revised complaint dated August 29, 1994 and

an amended answer and special defense.

MR. DICKINS: You want him to review

* * *

App. 28

PLAINTIFF’S EXHIBIT

I

®

United Insurance Agencies, Inc.

Phone: 203-339-6300 ¢ Fax: 203-339-6322

2890 Main Street, P.O. Box 289 «

Stratford, CT 06497-0289

FAX

FROM

RONALD FITELSON

DIRECT PHONE # (203) 339-6327

DATE: 9/12/95

TO: Liability Claims Dept.

COMPANY: PSM

RE: Rattlesnake Bar & Grill

TO FAX #: 1-212-268-9675

# OF PAGES: 20

Please Find Enclosed Loss Notice & Summons.

Please Contact Insured’s Aity

Gene Cederbaum ASAP 203-226-7488

Fax 203-226-6403

Any Questions Please Call.

/s/ Ronald Fitelson

United Insurance Agencies, Inc.,

Main Street, P.O. Box 289, Stratford, CT 06497-0289

TEL: (203) 339-6300 FAX: (203) 377-8414

App. 29

11-441550

Rattlesnake Bar & Grill Please refer to this # on all

inquiries

CLAIMANT LOSS LOCATION LOSS DATE

12-1-94

Ellen Peck Norwalk, Ct DATE REPORTED

9-14-95

EXAMINER PHONE # POLICY #

B Blecher (212) 560-5022 |4-319169

CLAIM TYPE:

AUTOMOBILE/CYCLE O LIABILITY &

WE HAVE RECEIVED A REPORT OF THE ABOVE LOSS

WHICH WILL RECEIVE OUR PROMPT ATTENTION

PSM INSURANCE COMPANIES

PUBLIC SERVICE MUTUAL INSURANCE COMPANY

PARAMOUNT INSURANCE COMPANY TOLL FREE #

132 WEST 31ST STREET 1-800-223-5213

NEW YORK, NY 10001-3406

9059 12/90 ACKNOWLEDGEMENT COPY

[Names Omitted In Printing]

September 8, 1995

Mr. Ron Fitelson

Max Fitelson & Son, Inc.

2546 Main Street

Bridgeport CT 06606

Re: Ellen Peck v. Rattlesnake Ventures Inc., et al.

Dear Mr. Fitelson:

This letter will confirm my understanding reached yester-

day when we spoke that you will formally put_Public

App. 30

Service Mutual Insurance company on notice of the above

law suit. For your information, I am enclosing a copy of

the Revised Complaint dated August 29, 1994 and the

defendants’ Answer dated October 5, 1994.

Please be advised that Thomas Stevens, Esquire, of Gildea

& Stevens, L.L.C., has appeared for the defendants under

the insurance policy with Greater New York. Although

Aetna had originally contested coverage, they are recon-

sidering their position. Goldstein and Peck P.C. has also

filed an appearance on behalf of the defendants. You may

advise PSM to contact me, should they desire, at our

Westport Office, 190 Main Street, 203-226-7488.

Kindly send me a copy of your letter to PSM. Should you

have any guestions, please feel free to contact me.

Yours truly,

/s/ Eugene E. Cederbaum

Eugene E. Cederbaum

_ EEC: cav

Encls.

cc: Mr. David Sederholt

Mr. William Opper

G. Kenneth Bernhard, Esq.