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

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

Document 647-2
Alvin Moss, Volume (

Filed 03/01/2006

Page 1 of 10

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO civil Action No. 01-M-201S (MJW)

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

Plaintiff,
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v.
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NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH,

SPA., a Pennsylvania corporation,
SECURITY INSURANCE COMPANY OF HARTFORD, a

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

11 corporation,
VITO B. GRUPPUSO, a New Jersey resident, and 12 ROGER METZGER ASSOCIATES, a New York corporation,

13 Defendants.
14

15 DEPOSITION OF ALVIN B. MOSS, VOLUME I
16

17 PURSUANT TO NOTICE, the above-entitled
18 deposition was taken on behalf of the Plaintiff at
19 KMZ Rosenman, 575 Madison Avenue, New York, New 20 York, on May 22, 2003, at 8:59 a.m., before Dawn E. 21 Eastman (Calderwood), Certified Shorthand Reporter,

22 Registered Professional Reporter, and Notary Public.
23 24
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.."'.- --.Calderwood-Mackelprang, (nc. 303.477.3500

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

Document 647-2
Moss, Volume I

Filed 03/01/2006

Page 2 of 10

Alvin

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Q.

Understanding that, but you have been

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in the insurance industry for at least 20 years; is
that correct?

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A.

I i ve been in the insurance industry

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5 for 20 years, in answer to that question, yes.

6 Q. And you are the president of First
7 Capi tal?
8

A.
Q.

That i S correct.
And one of the things that First

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LO Capital does, generally, is to provide underwriting
II services; is that true?

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A.

First Capital is a bit of a

diversified company.

We act as an agent for

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companies.

We act as a claim service for companies.

We act as a wholesale broker for accounts.

So there

l6 are different facets to First Capital.

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Q.

And my question was whether or not one

l8 of the facets to First Capital is to provide

19 underwriting services?
20 22
A.

Yes, we are underwriting agents for a

2l couple of companies.
Q.

Now, based on your role at First

23 Capital and that experience, we were talking

24 generally about underwriting. And we got into this 15 because you testified that one of the functions done
Calderwood.Mackelprang, Inc. 303.477.3500

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

Document 647-2
Alvin Moss, Volume (

Filed 03/01/2006

Page 3 of 10

Page 238

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requested was actually issued?

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MR. TRIGG: Object to the form of the

question.
THE DEPONENT:

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I believe I just

answered that question.

Q. (By Ms. Giulianelli) Then maybe r

didn i t understand the answer, so let me try to rephrase the question.
You testified that First Capital was

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not the retail broker for ArMCO; is that right?

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A. Yes. Q. And that First Capital did not deal
directly with ArMCO?

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A. Yes.

Q. Based on the role that you just
described that First Capital was performing, in your

view, did you believe that First Capital owed a duty
to ArMCO to ensure that ArMCO was actually provided
with the insurance coverage that it requested?

A. ArMCO requested the coverage through
their retail broker who went to a wholesale broker

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who came to us who asked us to help in the placement

of the policy. And we performed, and we did
everything that we could to make sure it was done.

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Q. SO r take it that - - r want to make
Calderwood-Mackelprag, Inc. 303.477.3500

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

Document 647-2
Alvin Moss, Volume II

Filed 03/01/2006

Page 4 of 10

Page 244

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF COLORADO
3 Civil Action No. 01-M-201S (MJW)

4 APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a/k/ a AIMCO, a Maryland corporation,
5

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

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Connecticut corporation,

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FIRST CAPITAL AGENCY, INC., d/b/a FIRST CAPITAL 10 GROUP, a New York corporation, NATIONAL PROGRAM SERVICES, INC., a New Jersey

11 corporation,
VITO B. GRUPPUSO, a New Jersey resident, and 12 ROGER METZGER ASSOCIATES, a New York corporation,

13 Defendants.
14 15 16 17
1S

DEPOSITION OF ALVIN B. MOSS, VOLUME I I
PURSUANT TO NOTICE, the above-entitled deposition was taken on behalf of the Plaintiff at KMZ Rosenman, 575 Madison Avenue, New York, New York, on May 23,2003, at 9:03 a.m., before Dawn E. Eastman (Calderwood), Certified Shorthand Reporter,

19 20 21 22 23 24 25

Registered Professional Reporter, and Notary Public.

Calderwood-Mackelprang, Inc. 303.477.3500

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

Document 647-2
Alvin Moss, Volume II

Filed 03/01/2006

Page 5 of 10

Page 366

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A.
Q.

Yes.

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And I don i t want to spend time today
But I appreciate your

3 debating the accuracy, or lack thereof, of Mr.
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Baldwin's explanation.

5 recollection of what Mr. Baldwin said.

6 What I want to focus on is what was
7 First Capital going to do, following the January 8,

8 2001 meeting, to try and address the concerns
9 expressed by Mr. Graham and move forward.
10

A.

We were wi th Mr. Baldwin at the

11 meeting and after the meeting. And we asked

12 Mr. Baldwin to forward responses to us, or to
13 Metzger, or whoever.
14
Q.

Did you, or do you recall that

15 following the January 8th, 2001 meeting, that First
16 Capital was going to be involved in discussions with 17 Risk Specialists, slash, National Union in an 18 attempt to calculate an additional premium that 19 would be charged on the '37 policy?
20 21
A.
Q.

Yes.
Were you involved in those

22 conversations regarding the charging of an
23 additional premium following the January 8th

24 meeting?
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A.
I was involved wi th some of the

Calderwood-Mackelprang, Inc. 303.477.3500

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

Document 647-2
Alvin Moss, Volume II

Filed 03/01/2006

Page 6 of 10

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Page 429 I
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-M-201S (MJW)
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4 APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a/k/ a AIMCO, a Maryland corporation,
5

Plaintiff,
6

v.
7
8 9

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

II
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11 corporation,
VITO B. GRUPPUSO, a New Jersey resident, and 12 ROGER METZGER ASSOCIATES, a New York corporation,

13 Defendants.
14 15 16 17
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DEPOSITION OF ALVIN B. MOSS, VOLUME III

19 20 21 22 23 24 25

PURSUANT TO NOTICE, the above-entitled deposition was taken on behalf of the Plaintiff at KMZ Rosenman, 575 Madison Avenue, New York, New York, on June 26, 2003, at 9:10 a.m., before Dawn E. Eastman (Calderwood), Certified Shorthand Reporter,

Registered Professional Reporter, and Notary Public.

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Calderwood-Mackelprang, Inc. 303.477.3500

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

Document 647-2
Alvin Moss, Volume ii

Filed 03/01/2006

Page 7 of 10

Page 440

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Exhibit 192.

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A. (Deponent complied.)
MR. COLLINS: While he's reviewing
that, can we mark this as 193, please.

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(Deposition Exhibit 193 was marked for

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identification. )
MR. ROBERTS:

Did you have time to
Yes.
Okay.
Now, in the

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look at it?
THE DEPONENT:

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Q.

(By Mr. Collins)

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course of your experience in the insurance industry,

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12 you've had the opportunity to review commercial

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13 premium finance agreements; have you not?
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A.
Q.

Yes.
So you're familiar, generally, with

16 them?
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A.
Q.

Yes.
And in this particular case, have you

19 ever seen Exhibit 192 before?
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A.
Q.

The last time - - yes, I have.

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Was First Capital involved at all in

22 procuring this approximately $31 million finance

23 $32 million finance agreement with AFCO?
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A.
Q.

No.
When was the first time that you

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Calderwood-Mackelprang, Inc. 303.477.3500

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

Document 647-2
Alvin Moss, Volume II

Filed 03/01/2006

Page 8 of 10

Page 441

1 became aware of this premium finance agreement?
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A.

The last time I was here for my

3 deposition, you had showed me a copy of this during

4 one of the intermissions.
5

Q.

So you were not aware that AFCO had

6 financed part of the Security Insurance Company of

7 Hartford policy for AIMCO?
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A. That i s correct.
Q. Now, I'd like to go through, so that I
can understand, these documents a little bit more.
When someone puts down there as agent - - and in this
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12 case, Lockton Company was the agent - - what does

~3 that mean? Who are they the agent of, if you know?
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A.

I'm not sure who Lockton represented

15 here, whether they were the agent or the broker. sure.
16 I'm not

17

Q.

The agent or the broker for whom,

18 based on your understanding of the practice of how
19 these premium finance agreements work? Would that

20 be the agent for the insured who is borrowing the
21 money?

22 A. Yes.
23 Q. And they list, under the schedule of
24 policies, the FCGOOI039 policy, which is the policy

15 for AIMCO-owned properties that was issued by

Calderwood-Mackelprang, Inc. 303.477.3500

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

Document 647-2
Alvin Moss, Volume II

Filed 03/01/2006

Page 9 of 10

1 Securi ty of Hartford. 2 Are you aware of that policy
3 generally?
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Page 442

A.
Q.

Yes.
Was there ever a premium notice sent

6 out in the amount of $31,772,742 for Policy

7 FCGOOI039?
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A.
Q.

No.
And I know you took an opportunity to

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10 look at Exhibit 193. And on the second page of that

11 document, at the bottom, there i s an entry for the
12 AIMCO-owned properties. And the premium was $3.5

13 million, give or take a little bit.

14 Is that your understanding of what the
15 premium was for the AIMCO-owned properties?
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A.

It appears that that's a premium that

17 was due in the month of April for their properties.
18 It could have been on installments, and the AIMCO
19
premium could have been higher than that.
But it

20 certainly wasn i t anywhere near this $32 million that

21 appears on this statement -- or this financing
22 agreement.
23
Q.

And in reviewing the document, which

24 is 193, there i s no indication that any money is due

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on the AIMCO-owned properties, prior to May 29th --

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Calderwood-Mackelprang, Inc. 303.477.3500

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

Document 647-2
Alvin Moss, Volume II

Filed 03/01/2006

Page 10 of 10

Page 443

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excuse me

April 29th, 2000?

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A.
Q.

That i s correct.
And this document, going back to 192,

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is

lists, also under the schedule of policies,

5 that the intermediaries were National Program
6 Services and Swain and Baldwin Insurance Company;

7 correct?
8 9

A.
Q.

Yes.
Does Roger Metzger Associates' name

10 ever appear on this document, to your knowledge?
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12

A.
Q.

No.
Do you have any knowledge why AIMCO iS

13 president, Mr. Peter Kompaniez, signed a $32 million

14 finance agreement for the Security of Hartford

15 policy?
16 17
A.
Q.

No.
Even if the entire three-year premium

18 was paid in advance for the AIMCO-owned properties
19 only, would it have come anywhere near $32 million?
20 21
A.
Q.

No, nowhere near $32 million.

In reviewing this Exhibit 192, does

22 this confirm your understanding that Swain and
23 Baldwin and NPS were retail brokers for AIMCO?
24
A.

It certainly appears that way, as well

25 as Lockton.
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Calderwood-Mackelprang, Inc. 303,477.3500