Free Reply to Response to Motion - District Court of Colorado - Colorado

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

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Filed 06/23/2005

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EXHIBIT A
SUMMARY OF AIMCO' S RESPONSES TO FIRST CAPITAL'S TEMENT S T A OF UNDISPUTED FACTS
The Relevant Parties
(See

Opening Brief, pp. 3-

1. AIMCO is a corporation organized under the laws of the State of Maryland with its principal place of business in Denver Colorado. (PI.' s Fourth Am. Compi. ~ 1.) 2. Defendant National Union is a corporation
organized under the laws of the

No response or dispute

No response or dispute

Commonwealth of Pennsylvania with its principal place of business in New York , New
York.

(Id ~ 2. 3. Defendant First Capital is a corporation

No response or dispute

organized under the laws of the State of New York with its principal place of business in Long Island , New York. (Id ~ 4.
4. First Capital is a multi- faceted

company

No response or dispute

involved in the insurance industry that takes on various roles depending on the needs and requests of the client , including that of insurance agent , wholesale broker , claims representative among others. (Deposition Testimony of Alvin Moss ("Moss Depo ) at
14:12 - 14:16.

5. Defendant National Program Services ,

Inc.

No response or dispute

NPS" ) is a corporation organized under the laws of the State of New Jersey with its principal place of business in Cedar Knolls
New Jersey. (PI' s Fourth Am. CmpI. , ~ 5. 6. Defendant Vito B. Gruppuso

No response or dispute

Gruppuso ) is a resident and citizen of the State of New Jersey and an officer and
principal or sole shareholder ofNPS.

(Id
Inc.

~ 6.
7. Defendant Roger Metzger Associates ,

No response or dispute

Metzger ) is a corporation organized under the laws of the State of New York with its principal place of business located in New York, New York. (Id ~ 9. 8. Third Party Defendant Ray Baldwin is a
citizen of the state of Texas.

No response or dispute

(Id. ~ 9.

,...,

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The AIMCO Insurance Program

(See

Opening Brief, pp. 4-

9. AIMCO is a real estate investment trust (REIT) that owns and manages multi- family housing units nationwide. As one of the largest REIT' s in the nation with responsibility for over 200 000 units , securing and maintaining property insurance is critical (Id ~ 12. to AIMCO' s business. 10. According to Thomas Toomey, former Vice President and Chief Operating Officer in 1995 , AIMCO owned 9 700 apartment homes. By the year 2000 , AIMCO had grown to almost 400 000 apartment homes through mergers and acquisitions. (Deposition Testimony of Thomas Toomey (" Toomey Depo ) at 67:411. AIMCO retained Ray Baldwin to provide it with risk management and insurance services , including procurement of property

No response or dispute

No response or dispute

AIMCO agreed. Response , p. 3 (" Ray Baldwin was a risk manager consultant for AIMCO... who had a insurance. (PI.' s Fourth Am. CompI. , ~ 13. consulting agreement with AIMCO" 12. In addition to Mr. Baldwin , AIMCO AIMCO agreed. Response , p. 16 Lockton (a broker that did work for utilized Third- Party Defendant Lockton AIMCO) prepared a submission Companies of Colorado , Inc. (" Lockton ) as its retail broker for the procurement of describing AIMCO , its property values property insurance. (Deposition Testimony of and its loss history Charles McDaniel (" McDaniel Depo ) at 23:15- 24:12. 13. For decisions related to the procurement No response or dispute of insurance for AIMCO , Lockton received its instructions from Mr. Baldwin. (Exhibit AMcDaniel Depo at 45:20- 46:9. 14. Mr. Baldwin entered into a brokerage AIMCO agreed. Response , p. 4 (Baldwin J agreed to forward agreement with NPS and Mr. Gruppuso , the purpose of which was for Mr. Baldwin to submissions from his clients to provide submissions of clients who would be Gruppuso for bids. To do so , he placed into the insurance program available entered into a brokerage agreement through NPS. (Exhibit A- , NPSlBaldwin with NPS.
Brokerage Agreement. Deposition Testimony

of Ray Baldwin Baldwin Depo ) at 79:22 80:20 , 84:5 - 84: 12. 15. Lockton prepared the initial AIMCO property submission (" AIMCO Submission

AIMCO agreed. Response , p. 16 Lockton (a broker that did work for

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provided to Mr. Baldwin for submission to
the program offered by NPS. (Mfidavit of

Charles McDaniel , attached hereto as Exhibit
, ~ 5)

AIMCO) prepared a submIssion describing AIMCO , its property values and its loss history. " Also references to Exhibit 639 and Exhibit 1. Eckman 174 :22- 1 76: 5 which shows Lockton provided AIMCO submission to Ray
Baldwin. )

16. Lockton had previously met with NPS and agreed to funnel Lockton clients submissions through Mr. Baldwin. (Exhibit
A- 7 collection of documents demonstrating

No response or dispute

Lockton participation in NPS program). 17. Mr. Baldwin , III consultation with AIMCO senior management , made the decision to place AIMCO into the property insurance program with NPS that resulted in the coverage provided by National Union. (Exhibit A- , Baldwin Depo at 567:8- 568:8.

AIMCO agreed. Response , p. 16 (references to Exhibit 639 and Exhibit 1. Eckman , 174:22- 176:5 which shows Lockton provided AIMCO submission to Ray Baldwin and NPS.

The Chain of Communications Leading to National Union

(See

Opening Brief, pp. 5-

18. The AIMCO Submission prepared by AIM CO agreed. Response , p. 20 Lockton contained underwriting information (reference to TIVs in AIM including information related to the total submission as prepared by Lockton insured values (" TIVs ) of AIMCO' Exh. 639 at LKT 000063) and p. 19 (reference to loss information in properties and AIMCO' s historical loss information relating to the properties. AIM CO submission as prepared by (Exhibit A- , McDaniel Affidavit , ~ 6; Lockton - Exh. 639 at LKT 000086) Exhibit A- , AIMCO Submission , TIV s at LKTOOOO059- 63 and loss history information
at LKTOOOO086- 90.

19. Lockton provided the AIMCO AIMCO agreed. Response , p. 16 Submission TIV s and loss history information (references to Exhibit 639 and Exhibit to Ray Baldwin. (Exhibit A- , McDaniel 1. Eckman , 174:22- 176:5 which Affidavit , ~ 5; Exhibit A- , at LKTOOOOO02. shows Lockton provided AIMCO submission to Ray Baldwin. 20. Mr. Baldwin provided the AIMCO AIMCO agreed. Response , p. 16 Submission TIV s and loss history information (references to Exhibit 639 which shows Lockton providing AIM CO submission to NPS. (Exhibit Ato Ray Baldwin and requesting that he pass it along to NPS. 21. NPS asked for assistance in placing the AIM CO agreed. Response , pp. 19AIMCO Submission from a New York generally. wholesale brokerage firm - Metzger. (Deposition Testimony of Donald Kelly

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Kelly Depo

) at 69: 6- 69: 14).

22. NPS provided the TIV s and loss history

information for the AIMCO Submission to Metzger. (Exhibit A- , Kelly Depo at 166:5 - 166:9; 612:4- 613:3; Exhibit A, TIVs and loss history information submitted to Metzger by NPS). 23. Metzger sought assistance from First Capital in placing the AIMCO Submission. (Exhibit A- , Moss Depo at 55: 19- 56:8. 24. Metzger provided the AIMCO Submission TIV s and loss history information to First Capital. (Exhibit A- I 0 , Kelly Depo at 525: 16- 526:6; 531: 10- 532:23; Exhibit ATIV s and loss history information from
Metzger to First Capital.)
25. Through a

AIMCO agreed. Response , pp. 19generally.

AIMCO agreed. Response , pp. 19generally.

No response or dispute

AIMCO agreed. Response , p. 20 series of meetings in New York City, First Capital succeeded in getting National Union agreed to become the National Union to issue a three- year policy of program insurer property insurance for AIMCO. (PI.' s Fourth Am. Cmpi. at ~ 30. 26. On April 28 , 2000 , National Union No response or dispute issued a written binder of coverage to AIMCO for a three- year term. (Id at ~ 31.) 27. The binder was issued in New York , and No response or dispute the policy was assigned policy number 4547937 (the "' 37 Policy ). (Exhibit A- 13. 28. Confirmation of the 37 Policy was given AIMCO agreed. Response , p. 31 to AIMCO through Ray Baldwin , its risk National Union delivered AIMCO' manager. (Exhibit A- 14. policy to Baldwin.
The Alteration of the AIMCO Submission
(See

Opening Brief, p. 7.

29. When provided by Lockton to Ray

Baldwin , the AIMCO Submission indicated a total TIV of$10 637 567 272. (Exhibit Aat LKTOOOO063).

AIMCO agreed. Response , p. 20 (reference to TIVs in AIMCO submission as prepared by Lockton 000063. No response or dispute
Exh. 639 at LKT

30. When received by Metzger , the AIMCO Submission TIV s were substantially reduced to $4 013 418 000. (Exhibit A- , pp. 1 24. 31. Metzger passed along the $4 013 418 000 TIVs to First Capital. (Exhibit A- , at RMAO08964.

AIMCO agreed. Response , p. 20 (The First Capital/RMA submission reported an insurable value for AIMCO' properties of approximately $4. billion. (Exh. 5 at NUO06088- 89.

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32. Similar alterations occurred with respect No response or dispute Exhibit A- 8 at to the loss histories. (Compare LKTOOOO088 with , p. 2 with 12 at RMAO06177. 33. First Capital received the TIVs and loss No response or dispute. This paragraph history information after it was altered. is key to First Capital' s motion. While AIMCO insinuates that First Capital had first hand knowledge of changes to the TIV s or loss history data see Response , pp. 19- , AIMCO cites to absolutely no direct or circumstantial evidence whatsoever in support of these
InSinuatIOns.

All First Capital Activity Subsequent to Policy Issuance Took Place in New York. (See Opening Brief, pp. 7-

met or spoke to anyone at AIMCO other than its risk manager - Ray Baldwin. (Exhibit A- , Moss
34. First Capital never

No response or dispute

Depo at 238:9- 14.

35. Mr. Baldwin met Dennis Reilly and Al Moss of First Capital for the first time on August 22 , 2000 , in New York. (Exhibit ABaldwin Depo at 252: 10- 23. 36. On or about August 23 2000 , a meeting was held in New York City to discuss among other things , National Union concerns regarding the high number of losses being experienced on the ' 37 Policy. (PI.' s Fourth Am. Cmpi. ~~ 42 44. 37. Attending that meeting were representatives of National Union , First (Id Capital , Metzger , NPS and Gruppuso.
42.
38. On or about September 27 2000 , another meeting took place at Metzger s office in New York to discuss further changes to the 37 Policy attended by: Vito Gruppuso (NPS), Ray Baldwin (AIMCO), Al Moss and Dennis Reilly (First Capital), and Don Kelly and Richie Metzger (Metzger). (Exhibit ABaldwin Depo at 269:9 - 271: 1; Deposition Testimony of Dennis Reilly (" Reilly Depo

No response or dispute

No response or dispute. Response 23 describes same meeting involving Mr. Baldwin and First Capital.

AIMCO agreed. Response , p. 23 (Meeting with National Union and the Broker defendants (defined as NPS Gruppuso , First Capital and RMA) and
Baldwin. )

No response or dispute

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at 483: 19 - 484: 17.

39. During this meeting, there was discussion No response or dispute of National Union s concerns regarding the high rate of losses on the account in addition to a request from Mr. Baldwin for greater wind coverage. (Exhibit A- , Reilly Depo

at 484:4- 17. 40. There was also discussion of AIMCO
paying an additional premium of

No response or dispute

million in exchange for certain modifications to the
$10

National Union coverage.

(Id)

41. Shortly after this meeting, National AIMCO agreed. Response , p. 25 AIMCO paid the additional $10 Union and AIMCO , represented by Mr. Baldwin , agreed to certain changes to the million premium ) No response or 37 Policy in exchange for an additional dispute to Mr. Baldwin acting on behalf $10 million in premium by payment of of AIMCO in approving the requested AIMCO. (Exhibit A- 16. ) Mr. Baldwin changes. acted on behalf of AIMCO in approving the requested changes. (Exhibit A- 17. 42. The changes agreed to by the parties No response or dispute were made part of the ' 37 Policy by incorporation of Endorsements 3 , 4 , 5 , 6 , and , issued in New York. (Exhibit A- 18.