Free Brief in Support of Motion - District Court of Colorado - Colorado

Case 1:01-cv-02018-RPM-MJW

Document 647-5

Filed 03/01/2006

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Ray Baldwin II, Volume I

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-M-2018 (MJW)

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APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a/k/a AIMCO, a Maryland corporation,

Plaintiff,
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., a Pennsylvania corporation, SECURITY INSURANCE COMPANY OF HARTFORD, a

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Connecticut corporation,
FIRST CAPITAL AGENCY, INC., d/b/a FIRST CAPITAL GROUP, a New York corporation, NATIONAL PROGRAM SERVICES, INC., a New Jersey

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corporation,
VITO B. GRUPPUSO, a New Jersey resident, and ROGER METZGER ASSOCIATES, a New York corporation,

Defendants
and
ROGER METZGER ASSOCIATES, a New York corporation, Third-Party Plaintiff,

v.
RAY BALDWIN, a Texas res ident, SWAIN & BALDWIN INSURANCE, INC., a Texas

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corporation,
Third-Party Defendants

and
ROGER METZGER ASSOCIATES, a New York corporation, Third-Party Plaintiff,

v.
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r
Calderwood-Mackelprang, Inc. 303.477.3500

Case 1:01-cv-02018-RPM-MJW

Document 647-5
Ray Baldwin !I, Volume I

Filed 03/01/2006

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1 Gruppuso. I don't recal 1 whi ch of the NPS - - other
2 individuals were in the meeting, if any. Dennis

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3 Reilly and Al Moss.

4 Q. Okay.
S A. And myself.
6 Q. Okay. So I have Murphy, Rooney,
7 Metzger, Richie Metzger, Al Moss, Vito Gruppuso,

9 A. That i s correct.
12 meeting at NPS?

8 Reilly and yourself; is that right?

10 Q. What were you told, preceding that
11 meeting, in terms of why you were being called to a

L3 A. Well, I had complained profusely about
14 not having a policy. So I was advised that Rich
is Rooney - - they would bring the policy over and that

16 John Murphy had been inj ected into the mix, if you
17 will, and that he was going to come over to visit.

18 I had not met Al Moss or Dennis Reilly
19 prior to that, except the night before. I had met
20 them on the -- if it's the 23rd, then the 22nd is
21 when I first met them for

the first time.

22 Q. Okay. Dennis Reilly and Al Moss?

23 A. Yeah. 24 Q. Okay.
1,S A. And their take was: You know, this
Calderwood-Mackelprang, Inc. 303.477.3500

Case 1:01-cv-02018-RPM-MJW

Document 647-5

Filed 03/01/2006

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Ray Baldwin !I, Volume I

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although it was fairly green.

And I don i t think
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I can i t remember if they had loss runs, you know,

with losses by entity.
Q. Did anyone suggest, at the August 23rd
meeting, that there would need to be any changes made to the '37 policy based on the loss history to
that point in time?

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A.
Q.

No, not that I recall.

Okay.

Sir, if you could, take a look

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at

Exhibi t

68,

please.
(Deponent complied.)

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A.
Q.

Okay.

And for the moment, I'm focused

on just the first line of this document.

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It says it's a letter from John Murphy to Don Kelly.

It

says:

"In response to the proposal made to us by

16 telephone on September 27th, 2000, we would offer

17 the following terms."
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A.
Q.

I don't have that.

58?

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A.

I i m sorry, 68. Oh, I i m sorry.

Okay.

Go ahead.

I'm

21 with you now.
Q.

Do you remember having a telephone

23 conversation with representatives of National Union
24 on or about September 27th, 2000?
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MR. CALDWELL:

Counsel, I i m going to

Calderwood-Mackelprang, Inc. 303.477.3500

Case 1:01-cv-02018-RPM-MJW

Document 647-5
!I, Volume I

Filed 03/01/2006

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Ray Baldwi

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obj ect to form now and, allow that to be a blanket one so that I don i t have to obj ect each time. To
the extent that your question is saying "do you remember," or "do you recall," implies that the

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event did happen, then I'm obj ecting to form. And

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I i II just make that as a blanket obj ection.
THE DEPONENT: Okay. Would you repeat
the question?

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MR. MARTIN: Repeat my question.
(The record was read back by the reporter as requested.)
THE DEPONENT: I don i t know exactly

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when it was. I spoke to John Murphy briefly after
he issued this letter.
Q

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is
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(By Mr. Martin) After he issued

Murphy 68?
A.
Q.

Yeah, that - - what I - - yeah.
Okay. Tell me what you remember about

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that.
A.

I was in New York working on some

claim matters and some other stuff, and there was a

meeting we were having a meeting at Metzger 's
office. I went to a meeting - - I believe it was
wi th York claims - - with Al Moss and Vi to and Don

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Kelly and Richie and Dennis - - at their office, at

Calderwood-Mackelprang, Inc. 303.477.3500

Case 1:01-cv-02018-RPM-MJW

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Ray Baldwin II, Volume I

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1 their -- Metzger's office.

2 And when I returned, Vito told me that
3 Lexington was getting - - AIG or National Union was

4 getting very nervous about the losses - - which was

5 news to me - - but that they and because the
6 policy had a 180-day notice of cancellation, that
7 they were contemplating sending out a DNOC.

8 And, you know, what did I say. I
9 mean, I just listened. And he said: But, we've

10 been working this afternoon, or today, while you've 11 been gone, trying to work out a proposal or a

12 solution.
-,3 And he may have brought up - - he may 14 have brought up - - and I don i t recall exactly - - but

15 seems like he did bring up - - he said: Well, they

17 And I think I offhandedly told him, I
18 said: Well, that's just not a possibility. I said:
19 You know, if we were to take a DNOC, you know, with
20 SiX months i notice, we i II take that. The market i s

16 want to drastically increase the deductibles.

21 changing; it's hardening rapidly. But if that's
22 what, you know, what has to happen, then that's what
23 we would -- you know, I would visit with the AIMCO
24 management, and we would see what would happen.

,5 In any event, that would have taken
Calderwood-Mackelprang, Inc. 303.477.3500