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

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

Document 601

Filed 06/21/2005

Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2018-RPM-MJW APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a Maryland corporation, Plaintiff v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, a Pennsylvania corporation, SECURITY INSURANCE COMPANY OF HARTFORD, a Connecticut corporation, FIRST CAPITAL AGENCY, INC., d/b/a FIRST CAPITAL GROUP, a New York corporation, NATIONAL PROGRAM SERVICES, INC., a New Jersey corporation, VITO B. GRUPPUSO, a New Jersey resident, and ROGER METZGER ASSOCIATES, a New York corporation, Defendants. - and RELATED CASES. JOINT REPLY IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY JUDGMENT FILED BY DEFENDANT ROGER METZGER ASSOCIATES Defendant Roger Metzger Associates ("Metzger"), by and through its attorneys, Treece, Alfrey, Musat & Bosworth, P.C., hereby submits this Joint Reply in Support of Motions for Partial Summary Judgment Filed by Defendant Roger Metzger Associates, stating as follows:

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

Document 601

Filed 06/21/2005

Page 2 of 30

TABLE OF CONTENTS ISSUES PRESENTED FOR SUMMARY JUDGMENT ...............................................................1 ARGUMENT ..................................................................................................................................4 1. No issue of fact disputes a complete lack of evidence that Metzger ever "marketed" the Program to AIMCO or any other insured, making summary judgment on the CCPA Motion proper. ....................................................................................................................4 AIMCO's response to Metzger's Standard of Care and Ratification Motions are intertwined, as AIMCO until the time of this lawsuit maintained that it received the coverage it wanted, and was content with the benefits it reaped, through the Program. ..13 AIMCO fails to create an issue of fact regarding premium commingling which would prevent summary judgment on Metzger's Premiums Motion. ..........................................16 AIMCO in Response fails to properly addresses Metzger's argument with regard to the JSL Motion, and that motion is proper for judgment as requested. ..................................20

2.

3.

4.

CONCLUSION .............................................................................................................................28

ii

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

Document 601

Filed 06/21/2005

Page 3 of 30

ISSUES PRESENTED FOR SUMMARY JUDGMENT Plaintiff Apartment Investment and Management Company ("AIMCO") originally brought this action in October of 2001 against National Union Fire Insurance Company of Pittsburgh, PA ("National Union") in what was essentially a breach of contract case over the prepayment of premiums for a three-year, $1 million primary layer insurance policy, the payment of two "additional premiums" totaling roughly $15 million, the cancellation of coverage under that policy at the one-year anniversary, and return premiums--if any--owed to AIMCO: an issue which AIMCO and National Union have been unable to reconcile. (See generally Compl. and Jury Demand, filed with this Court on October 11, 2001.) Several years and several permutations of AIMCO's claims later, and with the inclusion of five additional defendants, this is still an action for which the primary issues are the pre-payment of a three-year insurance premium, payment of additional premiums during the coverage period, and coverage cancellation at the one-year policy anniversary, with the focus on unearned premiums. (See generally Fourth Am. Compl. and Jury Demand ("Fourth Amended Complaint"); Plaintiff's Third Supplemental Rule 26(a)(1) Disclosures, attached hereto as Exhibit 1.) As discovery and the pleadings in this matter have progressed, AIMCO has latched onto the issue of whether or not the insurance program through which it obtained this $1 million primary layer coverage (the "Program") was a proper and legal insurance program due to matters of "relatedness" between AIMCO and the other 50 entities insured through the Program, as well as the involvement of Defendant Vito Gruppuso ("Gruppuso"), who has been criminally

1

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

Document 601

Filed 06/21/2005

Page 4 of 30

convicted with regard to his insurance business, but not directly related to the Program here at issue.1 Plainly evident from the matters raised by Metzger in its various motions for partial summary judgment, and AIMCO's responses thereto, is that the Program propriety and "relatedness" issues speak to massive premium financing fraud committed by Gruppuso and Third-Party Defendant Ray Baldwin ("Baldwin") for both AIMCO and the other 50 entities in the Program unrelated to AIMCO, and are not determinative of, nor essential to, the primary breach of contract and return premium claims solely relevant in this matter as to AIMCO itself.2 Even AIMCO's own expert admits that the Program's utilization of common insurable interests can be--and with the Program's Endorsement A was--a legally appropriate insurance program. (See Deposition of Robert Quinn at 188:16-190:20, all relevant portions attached hereto as Exhibit 2.) AIMCO therefore cannot avail itself of these issues as it cannot show that AIMCO was harmed by placement in the Program with other, unrelated apartment managers, and can offer no evidence to put in dispute that Metzger had no role in, nor occasioned any damages to AIMCO with regard to, any premium payments made or premium financing obtained on AIMCO's behalf. Nevertheless, AIMCO raises these issues in its Fourth Amended Complaint (and in Response), and Metzger is obligated to request summary judgment to parse this case back down

1

Gruppuso in late May, 2005, entered a plea of guilty to federal bank fraud charges in the United States District Court for the District of New Jersey. At this time Metzger has no further details on this matter. Even so, after 57 fact and expert depositions and voluminous documentary discovery, there is not one scintilla of evidence that Metzger either knew of, or participated in, the improper premium financing activity conducted by Baldwin and Gruppuso. 2

2

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

Document 601

Filed 06/21/2005

Page 5 of 30

to its primary elements, as well as to weed out red herring arguments which are inapposite to the resolution of AIMCO's alleged damages. To accomplish this, on May 16, 2005, Metzger filed five separate motions for summary judgment: a. Motion for Partial Summary Judgment re: Ratification ("Ratification Motion"); b. Motion for Partial Summary Judgment re: Colorado Consumer Protection Act ("CCPA Motion"); c. Motion for Partial Summary Judgment re: Negligence and Negligent Misrepresentation ("Standard of Care Motion"); d. Motion for Partial Summary Judgment re: Insurance Premiums Liability ("Premiums Motion"); and e. Motion for Partial Summary Judgment re: Joint and Several Liability ("JSL Motion"). AIMCO filed a Joint Response in Opposition to Motions for Summary Judgment of First Capital Group and Roger Metzger Associates ("Response") on June 6, 2005, which ignores AIMCO's own agents' efforts to create the Program,3 fails to rebut that AIMCO has no evidence to support its allegation of damages with respect to Metzger, and fails to create any issues of fact which would prevent summary judgment on Metzger's various motions with respect to AIMCO's own alleged damages. In Response, AIMCO offers no testimony or documentary evidence to rebut any of the actual issues, primarily considering that any of the premiums for AIMCO's own insurance--the first half of the actual issues of the case--ever touched, and thus gave rise to liability against, Metzger. AIMCO also fails to cite any facts or law which would give rise to liability against Metzger for either an insurer's unilateral modification to coverage terms, or the non-renewal of AIMCO's Program coverage at the first anniversary renewal date in April of 2001. Similarly,
3

Interestingly, AIMCO claimed in a previous lawsuit in this venue that NPS was its agent on this Program, whom AIMCO directed to terminate the Security policy and move the Program to National Union. (CCPA Mot. at Ex. RR ¶ 3.) AIMCO completely backtracks from this judicial admission in the instant action,. 3

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

Document 601

Filed 06/21/2005

Page 6 of 30

Metzger had no involvement in, nor responsibility for, AIMCO's rampant and unchecked overfinancing of premiums for its insurance on the Program, the liability for which AIMCO has been sued in other forums and is essentially seeking remuneration from these Defendants by this action. For these reasons, detailed more fully below, summary judgment on the various issues raised by Metzger is appropriate. ARGUMENT Unsupported arguments of counsel do not create fact issues which can defeat summary judgment. See Matthiesen v. Banc One Mortgage Corp., 173 F.3d 1242, 1247 (10th Cir. 1999). 1. No issue of fact disputes a complete lack of evidence that Metzger ever "marketed" the Program to AIMCO or any other insured, making summary judgment on the CCPA Motion proper. In attempt to defeat Metzger's CCPA Motion, AIMCO argues that Metzger had a role in "marketing" the program, attempting to create issues of fact by assessing the production garnered in this action against a fundamental misunderstanding of the insurance industry; indeed, to the ignorance of the bases for its own claims against Metzger here. In order to sustain its CCPA claims against Metzger, AIMCO must put on evidence that Metzger "marketed" the program to AIMCO, that consumers similarly situated to AIMCO are likely to be subject to the same sort of marketing by Metzger, and that Metzger's alleged marketing significantly impacts the public as actual or potential consumers of the Metzger's services. Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 146-47 (Colo. 2003); Hall v. Walter, 969 P.2d 224, 234 (Colo. 1998). AIMCO in response to the CCPA Motion offers in its statement of facts the exact opposite of what it needs to prove here: that Metzger "marketed" the Program by looking for

4

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

Document 601

Filed 06/21/2005

Page 7 of 30

insurers to provide the Program coverage, first to Defendant Security Insurance Company of Hartford ("Security") through its managing general agent, Artis, and then to National Union. (Resp. at 3, 5-8, 18-19).4 Essentially, AIMCO is arguing an unrecognized, reverse-CCPA claim against Metzger that would belong, if anywhere, to Security or National Union. Because AIMCO attempts to overcome factual deficiencies by using Metzger's presenting the AIMCO submission to the insurance market for a carrier in the hopes of establishing a necessary element for CCPA liability, AIMCO's CCPA claim necessarily assumes that, at the time of AIMCO's request for property insurance placement through the Program, Metzger was acting as the wholesale broker for AIMCO's agent, NPS. Resp. at 35; see, e.g., Mitton v. Granite State Fire Ins. Co., 196 F.2d 988, 992 (10th Cir. 1952) ("An insurance broker is ordinarily an agent of the insured in obtaining insurance."); Jet Setting Service Corp. v. Toomey, 459 N.Y.S.2d 751 (N.Y. App. Div. 1983) ("We are well aware of the hornbook principle that an insurance broker is an agent of the insured[.]").5 Accepting this as true, then, AIMCO was admittedly not a recipient of "marketing" activity as such could only have occurred between Metzger and potential insurers like Security or National Union.

AIMCO says that Metzger's CCPA Motion contradicts sworn testimony that Metzger had no role in the creation and marketing of the Program to AIMCO or any other entity. (Resp. at 13.) AIMCO is wrong, and misunderstands its own claim. The "marketing" it complains of is marketing to insureds, not insurers. As AIMCO cites in Response ("Kelly testified that RMA 'went to the marketplace, and we selectively approached some markets in regards to trying to put together this policy[,]'" (id., emphasis added)), Metzger's statement is completely accurate and non-contradictory.
5

4

AIMCO frustrates its own assumption, however, by denying that NPS was its agent. (See Resp. at 41; Fourth Am. Compl. ¶¶ 19-21.) By AIMCO's own pleadings, then, Metzger owed AIMCO no duty whatsoever under either Colorado or New York law. (See Standard of Care Mot. in toto; § 2, infra.) 5

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

Document 601

Filed 06/21/2005

Page 8 of 30

AIMCO offers not one scintilla of evidence that it, as plaintiff on the CCPA claim, was on the receiving end of any of this "marketing" activity it alleges, much less that Metzger even had contact with AIMCO. (See Resp. at 3-25, 36-40.) In fact, AIMCO totally denies ever having contact with Metzger. (See Deposition of AIMCO 30(b)(6) designee Jeff Adler at 150:20-151:25, all relevant portions attached hereto as Exhibit 3.) Directed towards AIMCO, all evidence shows only that Metzger prepared binders that reflected the coverage various carriers were willing to provide--the authority to accept and bind rested with Baldwin and Lockton-which were delivered to AIMCO's now non-agent NPS. (See CCPA Mot. at ¶ 15; Ex. 4.) To buttress this backwards allegation, AIMCO offers that "Baldwin had no role in the formation of the Program." (Id. at 4.) Contrastingly, Tom Toomey, AIMCO's former Chief Operating Officer ("COO") and Baldwin's direct supervisor at AIMCO, described Baldwin's scope of retention and duties as follows: Q. A. Did you know that -- well, who, at AIMCO, would have retained brokers such as Lockton in the 1999/2000 time frame? It was within the scope of Ray's responsibility to build an insurance policy and program for the year. And the community inside of which he utilized was, really, his -- the brokerage community was within his view and control. Our view, my view, was focused on the credibility and quality of the carriers in terms of they had to be a certain rating. * Q. A. Q. A. * *

In 1999, did you ever have any knowledge that AIMCO was brokering insurance through Willis Corroon? I've never heard that name before, sir. Is that because you had delegated the authority to retain brokers to Mr. Baldwin on behalf of AIMCO? Mr. Baldwin's authority, kind of in his contract, was to prepare a program of insurance covering the entire company. And he was, as part of that, supposed to use an array of qualified insurance companies and brokers to assemble that program. 6

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

Document 601

Filed 06/21/2005

Page 9 of 30

Q.

A.

Q. A.

So Mr. Baldwin was required, then, to make sure that he selected qualified brokers to assist in procuring insurance for AIMCO; is that correct? He [Baldwin] was responsible for assembling of the program. And as part of that program, engaging brokers, yes. Qualified brokers, I don't know what that is. Well, you would expect Mr. Baldwin to retain reputable brokers, would you not, to work on behalf of AIMCO? Again, you're asking me to pass judgment on the brokerage community. I'm trying to tell you that he [Baldwin] was responsible for assembling the program and engaging the parties necessary to deliver that. What my scope and directions to him were that the insurance carriers were to meet a certain qualification, both financially and rating-wise. And my direction to him on brokerage was not very clear, as in none.

(Deposition of Tom Toomey at 259:14-24; 298:7-299:16, all relevant portions attached hereto as Exhibit 4 (emphasis added).) Despite this irrefutable evidence to the contrary, AIMCO totally ignores in Response the undisputed fact that its Risk Manager, Ray Baldwin, and its insurance broker, Lockton, were responsible for "marketing" the Program on behalf of, and to, AIMCO. AIMCO argues in response that "Gruppuso approached Baldwin in 1999, first to see whether Baldwin would place AIMCO into the liability program, and second, to see whether Baldwin would place some of his clients into the property program that Gruppuso was trying to put together. Baldwin told Gruppuso that if he was able to put a property program together, he would entertain quotes for AIMCO (when its current insurance expired) and his other clients." (Resp. at 4, citing Baldwin's deposition.) This fails to mention that, in fact, Baldwin was first contacted about this potential property placement for AIMCO on February 23, 1999 (CCPA Mot. at Ex. C); that regardless of AIMCO's then-current need for property insurance Baldwin signed as the exclusive broker for

7

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

Document 601

Filed 06/21/2005

Page 10 of 30

the Program within one week of that proposition (id. at Ex. E); and that Baldwin thereafter authorized Lockton to compile a submission for AIMCO's property insurance placement on or before July 16, 1999--half a year prior to its then-current property policy expiration as AIMCO continually points out in Response--for the purpose of enticing an insurer to cover the Program in the first place (id. at Exs. M, N (Baldwin authorized Lockton to compile AIMCO submission in July of 1999 so "that the [potential Program] underwriters would already have two submissions, one on AIMCO, one on Simpson, and recognize that there were real deals out there that they would be able to bind and actually work on.")). This corroborative evidence comports with Mr. Toomey's testimony that Baldwin was commissioned to assemble an insurance program for AIMCO, and all predates Gruppuso's first contact with Metzger for any purpose regarding the Program. (CCPA Mot. at Ex. O ¶ 6.) After commissioning Lockton to compile AIMCO's property information into an inducement submission to get the Program up and running in July of 1999, Baldwin then began to "market" the Program to other insureds, both his own clients through Swain & Baldwin (including other retail brokers like London American in Texas), as well as those of Lockton. (See CCPA Mot. at Exs. J, K.) This is precisely the type of marketing that AIMCO offers was occasioned by, but cites no evidence nor offers any testimony to impute such activities to, Metzger.6

AIMCO misleadingly cites to Don Kelly's deposition in an arbitration to assert that Metzger had a role in creating the Program ("NPS, [Metzger], you know, collectively everyone [First Capital] was involved here trying to put this thing together[,]" Resp. at 8-9). That selective citation has nothing to do with the creation of the Program between NPS and Baldwin from February to July of 1999, but specifically refers to obtaining responses to Artis' questions during Artis' underwriting efforts prior to insuring the Program. (See Kelly Arbitration Deposition at 69:372:9, all relevant portions attached hereto as Exhibit 5.) 8

6

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

Document 601

Filed 06/21/2005

Page 11 of 30

AIMCO's citation to Showpiece Homes Corp. v. Assurance Co. of America, 38 P.3d 47 (Colo. 2001), is inapposite to Metzger. The purpose of the Colorado Supreme Court's decision in that case was whether or not the CCPA was preempted by the Colorado Unfair Claims-Deceptive Practices Act, COLO. REV. STAT. § 10-3-1101 et seq. (2001), and, if not, whether the CCPA applied to insurers and post-binding insurer bad faith. Showpiece Homes Corp., 38 P.3d at 49. The Court ultimately concluded that the CCPA was not preempted as to insurers, and "that the CCPA applies to an insurer's post-sale or bad faith conduct and unfair claims handling practices. Accordingly, we hold that an insured, like any other consumer, may seek compensation for damages as a result of post-sale deceptive practices by an insurance company under the provisions of the CCPA." Id. at 59 (emphasis added). Initially, it must be noted that Showpiece Homes and AIMCO's citation to that case deal with insurers--not brokers--a distinct difference magnified by AIMCO but useful only to the extent AIMCO's claims touch insurer bad faith, and thus inapplicable to Metzger as a wholesale broker. "[I]nsurance contracts are not ordinary commercial contracts. Every insurer owes its insured a non-delegable duty of good faith and fair dealing. Because of the 'special nature of the insurance contract and the relationship which exists between the insurer and the insured,' an insurer's breach of this duty gives rise to a separate cause of action sounding in tort." Cary v. United of Omaha Life Ins. Co., 68 P.3d 462, 466 (Colo. 2003) (emphasis added) (quoting Farmers Group, Inc. v. Trimble, 691 P.2d 1138, 1141 (Colo. 1984)). "The duty is non-delegable so that insurers cannot escape their duty of good faith and fair dealing by delegating tasks to third parties." Id. (emphasis added).

9

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

Document 601

Filed 06/21/2005

Page 12 of 30

Colorado's statutory policy recognizes this "special relationship" by requiring that all persons providing insurance services to the public must "be at all times actuated by good faith in everything pertaining thereto." COLO. REV. STAT. § 10-1-101 (2002). That duty of good faith does not extend beyond the insurer itself unless, in certain circumstances, an insurance policy's third party administrator may be proved to have had a sufficiently special relationship with the insured upon which to ground that duty. Cary, supra at 466-69; accord Wolf v. Prudential Ins. Co., 50 F.3d 793, 798 (10th Cir. 1995). "In the typical insurance case, only the insurer owes the duty of good faith to its insured; agents of the insurance company--even agents involved in claims processing--do not owe a duty, since they do not have the requisite special relationship with the insured." Cary, supra at 466. This non-delegable duty is only extended to non-insurers in particular circumstances when a third-party administrator has been sufficiently shown to "fulfill[] virtually all of the functions normally performed by an insurance company in processing claims and determining whether to deliver insurance benefits." Cary, supra at 468; accord Wolf, supra at 797-98. The fact that the present action involves insurance does not, as AIMCO apparently contends, change the prerequisites to a CCPA claim against Metzger, as Metzger is not an insurer. (See Resp. at 38-40.) First, Showpiece Homes stands only for the proposition that AIMCO could maintain a CCPA claim against Security and National Union with the proper facts. Second, the facts on review in Showpiece Homes discuss the impact of an insurer's conduct in post-binding bad faith and claims handling--facts which deal with direct actions between the insurer and insured and, as analogous here, fully eschew Metzger by speaking only

10

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

Document 601

Filed 06/21/2005

Page 13 of 30

to AIMCO's allegations of post-binding conduct by National Union.7 Third, the "misrepresentations" which AIMCO advances in Response allegedly committed by Metzger (and First Capital) about relatedness that give rise to its CCPA claim for post-binding conduct (Resp. at 22-28) were, taking the allegations as true only for argument, directed not at AIMCO but at National Union, whose own expert defeated such a claim by testifying that Metzger's activities in brokering the Program to National Union met the industry standard of care. (Deposition of Joseph Launie at 32:20-34:20, attached hereto as Exhibit 7.) Finally, AIMCO attempts to use Showpiece Homes to evade the requirement that a private cause of action under the CCPA not be for a "purely private wrong" (Martinez v. Lewis, 969 P.2d 213, 222 (Colo. 1998)) by deconstructing AIMCO as a corporate entity, offering that the alleged "unfair and deceptive conduct ... impacted AIMCO, its 1,900 properties, its 360,000 units, and its nearly 1 million residents." (Resp. at 38.) This argument has no foundation in law or logic. Generally, a corporation seeking purely economic damages is treated under the law as a single entity, regardless of the corporate construction of that entity. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984) (affiliated entities cannot conspire for antitrust purposes because they are parts of a single entity). This is echoed in the CCPA, which defines "person" as meaning "an individual, corporation, business trust, estate, trust, partnership, unincorporated association, or two or more thereof having a joint or common interest, or any legal or commercial entity." COLO. REV. STAT. § 6-1-102(6) AIMCO's claims as to Security must fail as Security was released of any obligations to AIMCO by the Amended Findings and Order of Special Master entered in the same action in this District, Case No. 00-K-1027, in which it affirmed NPS as AIMCO's agent (Order attached hereto as Exhibit 6). 11
7

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

Document 601

Filed 06/21/2005

Page 14 of 30

(emphasis added). AIMCO, a corporate entity, is the only Plaintiff in this action, and seeks only economic damages. (See generally Fourth Am. Compl.) AIMCO, as identified plainly on the policies issued by Security and National Union, was the only primary named insured on the policy; not its "1,900 properties, its 360,000 units, and its nearly 1 million residents" as individuals. (CCPA Mot. at Exs. Z, O at ¶ 24.) AIMCO's Fourth Amended Complaint fails to allege, and discovery proves true, that no one at AIMCO but its Risk Manager/insurance consultant Ray Baldwin was involved in any communication involving Metzger during the time leading to AIMCO's placement into the Program. (See generally Fourth Am. Compl.; Ex. 3.)8 None of the other 50 entities on the Program are either party to this action, none have sued Metzger (or First Capital) for any purpose at all with regard to the insurance policy, and all such claims are now time-barred by the applicable statute of limitations. AIMCO's argument that insurers, much less wholesale brokers, are treated "differently" than any other CCPA defendant is not supported by Colorado law. Not only is AIMCO attempting to preserve a CCPA claim against Metzger which by AIMCO's own argument it lacks standing to assert, but AIMCO provides nothing to substantiate its position that AIMCO is not held to the same standard as any other CCPA claimant in seeking a barred remedy for an alleged but purely private wrong. For these reasons, Metzger's CCPA Motion should be granted.

8

AIMCO apparently disavows this fact and instead infers that, in constructing the Program, Baldwin was acting outside the scope of his agency. (See Resp. at 46.) If true, NPS and, subsequently, the wholesale brokers Metzger and First Capital, were being ordered to obtain Program insurance for AIMCO by no one. This is in direct contrast to Mr. Toomey's testimony, who describes Baldwin as essentially the "architect" of the insurance policy and the Program. (See Ex. 4.) 12

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

Document 601

Filed 06/21/2005

Page 15 of 30

2.

AIMCO's response to Metzger's Standard of Care and Ratification Motions are intertwined, as AIMCO until the time of this lawsuit maintained that it received the coverage it wanted, and was content with the benefits it reaped, through the Program. Initially, AIMCO lays out in Response that NPS was not its agent. If that is true, then

Metzger is absolved of any liability to AIMCO as a broker as no duty would flow from AIMCO through NPS to Metzger, and Metzger had no contact with AIMCO. (See Standard of Care Mot. at 15 (discussing Colorado and New York duties of brokers to their clients); Ex. 3.) Under this theory, Metzger would owe a duty only to Security, who was released of all obligations under the Program in a previous action against AIMCO. (See Ex. 6.) In an attempt to frustrate Metzger's Standard of Care Motion AIMCO's current counsel offers, with no supporting evidence as to AIMCO, that "[t]he Program was a disaster." (Resp. at 1 (emphasis added).) Contrarily, until the time of this lawsuit AIMCO continually maintained that the Program was a financial boon, borne out of the ability "to work this far out of the box because of [AIMCO's] clout in the market[.]" (Standard of Care Mot. at Ex. BB (statement made by Baldwin to Mr. Toomey; corroborated by Toomey in Ex. 4).) AIMCO's broker of record, Lockton, agreed. (See Deposition Exhibit 931, attached hereto as Exhibit 8.) So did AIMCO's General Counsel, in a judicial admission lauding National Union as providing through the Program the "appropriate coverage" for AIMCO's needs. (Standard of Care Mot. at Ex. OO ¶ 3.) This is confirmed by the fact that National Union paid all but one single, disputed claim submitted by AIMCO. Even absent these irreconcilably contradictory positions, AIMCO's argument fails for several other reasons. First, AIMCO retains no cause of action against with regard to the Security policy by virtue of estoppel, having released any claims under the Security policy for 13

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

Document 601

Filed 06/21/2005

Page 16 of 30

due consideration in another action. (See Ex. 6.) Second, AIMCO is bound by judicial admission that the insurance it authorized NPS to obtain through National Union was the insurance it desired, terminally frustrating its many arguments here that the coverage under the National Union policy was non-conforming. (See Standard of Care Mot. at Ex. OO ¶ 3; Resp. at 18-19, 24-25, 44.) Third, the only authority AIMCO cites in attempt to qualify Metzger's statement of the Colorado standard of care for insurance brokers, Golden Rule Ins. Corp. v. Greenfield, 786 F.Supp. 914 (D. Colo. 1992), requires facts for application non-existent here. (See id., Resp. at 35 (arguing that broker standard of care violated when broker's acts lead to insurer's rescission of policy).) AIMCO filed its own summary judgment motion on this very issue to prevent the untimely rescission of the Program by National Union here, and National Union has, five years from policy termination, still never performed the condition precedent to rescission: tendering all premiums paid back to AIMCO. AIMCO admits that it received the coverage it wanted; summary judgment on the Standard of Care Motion is proper. Furthermore, in an argument that encompasses both the Standard of Care and Ratification Motions, AIMCO offers that it had no knowledge of "false representations" which would give rise to the rescission remedy until National Union failed to offer a renewal quote at the policy's first anniversary. (Resp. at 49-50.) As that position implicates both a bargained-for insurance contract enforcement issues as well as the timing of rescission, it is dispositive of both of Metzger's motions. AIMCO learned of "false representations" in the summer of 2000, not long after the National Union policy incepted: namely, that National Union did not intend to honor its agreedto insurance contract without payment of additional premiums--a bad faith breach which cannot

14

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

Document 601

Filed 06/21/2005

Page 17 of 30

be imputed to a broker. (Ratification Mot. at 9-11, 16-22; Cary, supra at 659.) Indeed, the policy itself was the "false representation" that gave rise to the remedy of rescission. At that point, AIMCO had a choice: return claims paid on property losses at the time National Union demanded additional premiums, rescind the policy and sue for bad faith breach of contract, or keep the benefit of the paid claims, agree to additional premiums and insurance contract modification (including AIMCO-requested modifications in coverage), and continue to receive the benefit of the ratified, and now further modified, contract. AIMCO chose the latter. Twice. AIMCO nonetheless argues that it could not have ratified the Program while insured through National Union because the frauds which would provide AIMCO the opportunity to either rescind or ratify the Program insurance contract were not learned of until after the April 2001 policy cancellation. (Resp. at 47-50.) But AIMCO offers in its own summary judgment motion against National Union that National Union had the right to rescind the AIMCO policy in light of the alleged false data regarding AIMCO's historic losses and TIVs, and that AIMCO willingly paid additional premiums to rectify that allegedly false information and maintain coverage. In so doing, AIMCO argues that National Union ratified and affirmed the AIMCO policy by accepting such additional premiums and continuing to pay AIMCO's claims submitted during the effective policy period. (See AIMCO's Brief in Support of Its Motion for Summary Judgment on National Union's Counterclaim ("Counterclaim Brief") pp. 6-11.) These same facts created a two-way street by which the rescission remedy arose for either contracting party, and both chose to ratify.

15

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

Document 601

Filed 06/21/2005

Page 18 of 30

Focusing on the proper facts giving rise to AIMCO's opportunity to rescind, AIMCO unquestionably chose to ratify the policy with National Union. Summary judgment on the Ratification Motion is proper. 3. AIMCO fails to create an issue of fact regarding premium commingling which would prevent summary judgment on Metzger's Premiums Motion. AIMCO utterly fails to support its argument that Metzger commingled AIMCO's insurance premiums. Rather than cite to transaction records showing a money trail of premium funds going to Metzger to contradict Roger Metzger, Jr.'s sworn affidavit, AIMCO instead concedes that it can only trace those funds, and the invoices requesting payment of the same, to NPS. (Resp. at 16.) AIMCO sets out that its financed premiums for the policy at issue here went from one of AIMCO's many premium financing companies, AFCO, to AIMCO's Risk Manager, Baldwin, and from Baldwin to NPS per an NPS invoice for the policy--at the time insured through Security. (Id.) AIMCO offers no evidence, and in fact fails to even argue, that any of its financed premiums went from NPS to Metzger (see id. at pp. 16-17), or that Metzger ever invoiced AIMCO for premiums (Premiums Mot. at Exs. E-G). In fact, AIMCO's discussion regarding proof of premium transfer through Metzger has nothing whatsoever to do with AIMCO's own premiums. AIMCO sets out a series of documents from November of 1999 discussing an alleged agency agreement between NPS and Metzger (see Resp. at p. 9, Exs. 365, 427.) and, based upon this inferential agency chain, AIMCO assumes, without support, that Metzger is liable for the failure to properly forward, return, and account for AIMCO's own premiums. (Resp. at 16-17.) First, AIMCO by referring to certain exhibits and production attempts to create a fact dispute where none exists: that AIMCO's own premiums were in Metzger's hands, and were 16

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

Document 601

Filed 06/21/2005

Page 19 of 30

thereafter commingled. (See Resp. at 10.) This is false. The exhibits AIMCO offers, and the premiums they indicate, do not support this contention, and AIMCO completely fails to present a scintilla of evidence that Metzger ever touched AIMCO's own property insurance premiums: Deposition Exhibit 391: Indication of premiums for Creekwood Property Corporation, Basic Capital, Tennis Club Apartments, Tonti Realty, and Gables Residential. These are all entities AIMCO vehemently denies any relationship to. (See Resp. at Ex. V ¶ 3.) Deposition Exhibit 537: Attached schedule of payments for entities insured in the Program, dated April 10, 2000. Regardless of the fact that this document on its face does not show any premium money for AIMCO touching Metzger, "AIMCO - Owned Properties," the addition of AIMCO itself to the Program, is not even listed as having a premium on its insurance due until April 28, 2000, two and a half weeks after the memo date. Deposition Exhibit 392: Memo dated March 17, 2000, referencing a confirmation on wire transfer from NPS to Artis, the managing general agent for Security. Even though this document plainly discusses a wire transfer directly from NPS to Security, as evidenced in Exhibit 537, above, AIMCO's property insurance premium was not even due until April of 2000. (See Ex. 537.) Deposition Exhibit 493: A February 4, 2000 memo referencing NPS payments on the Program premiums. Not only does the memo predate AIMCO's effective coverage on the Program by almost a month (AIMCO's insurance through Security became effective on February 29, 2000), but the memo on its face states plainly that premiums were being funded for the referenced, AIMCO-unrelated entities directly by NPS to Artis. AIMCO's Exhibit Y, RMA005794: A November 9, 1999 memo referencing NPS payments on the Program premiums. Not only does the memo predate AIMCO's effective coverage on the Program by nearly four months, but all entities referred to in that memo are entities AIMCO vehemently denies any relationship to. AIMCO's Exhibit Y, ARTIS4170- ARTIS4171: Mostly illegible but apparently dated October 29, 1999, these unauthenticated handwritten notes reference "7. Money Flow Insureds - NPS - Metzger, 1st Capital - Artis - Legion." Not only does the memo predate AIMCO's effective coverage on the Program, but AIMCO's name does not even appear in those notes. AIMCO's Exhibit Y, RMA00006579-RMA00006594: A compilation of checks issued either by NPS to Metzger, or by Metzger to First Capital, for various 17

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

Document 601

Filed 06/21/2005

Page 20 of 30

entities on the Program, purportedly to show that Metzger received AIMCO's premiums. As before, none of these entities indicated in any of those documents are related to AIMCO per AIMCO's own explicit denials, and the only check which post-dates AIMCO's effective property coverage through Security (RMA00006594) is likewise for wholly unrelated entities to AIMCO--even though AIMCO's own premium was not due for another 20 days. (See Ex. 537.) Deposition Exhibits 356 and 357: First Capital premium invoices sent to Metzger. Once again, all are for non-AIMCO entities, and all predate AIMCO's own placement in the Program. AIMCO's Response fully ignores the fact that not even Security ever received AIMCO's own insurance premium. (See Security's Response to AIMCO's First Set of Interrogatories at Response Nos. 9, 13, relevant portions attached hereto as Exhibit 9.) Second, AIMCO hinges its theory of liability against Metzger for return premiums on a novel concept of constructive receipt that has never been applied to wholesale insurance brokers in any jurisdiction in the United States. (See Resp. at 40-42.) In attempt to support this position, AIMCO engages in a lengthy narrative regarding prior business dealings between NPS and Metzger, apparently for the suppositional purpose that a business history unrelated to the Program must equate to premium handling for AIMCO's insurance premiums here at issue. (See Resp. at 2-3; Ex. S.) Again, this bare argument is not contradictory evidence to the undisputed fact that Metzger never touched AIMCO's premiums. Finally, AIMCO's theory would require at a minimum the following facts to have occurred: (1) Metzger would have had to have invoiced NPS for the AIMCO premium; and (2) Metzger's invoice would have been for the amount that NPS actually invoiced AIMCO. The irrefutable evidence is that Metzger never sent an invoice or bill to NPS for AIMCO's premium for its property policy for Security. (See Resp. at 16; Premiums Mot. at Exs. E-G.) Evidence is also incontrovertible that Metzger was not involved in the improper AFCO Note wherein 18

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

Document 601

Filed 06/21/2005

Page 21 of 30

AIMCO, through its agent Baldwin, obtained excessive policy premiums financing by misrepresenting to AFCO that the Security policy premium was $32 million rather than $14.9 million. (See § 4, infra.) The irrefutable evidence is that Metzger had no knowledge of this transaction. (Id.) It is also irrefutable--and apparently conceded by AIMCO through the same lack of evidence--that Metzger received none of the AFCO money. (Resp. at pp. 16-17.) On this point the law is clear: every jurisdiction known to Metzger enforces that a broker is not responsible for the rogue agents of another (i.e., an unrelated broker such as NPS), particularly in aspects where the broker charges an excessive premium or unauthorized premium or collects more than is required. See, e.g., COLO. REV. STAT. § 10-2-101 et seq.; N.Y. COMP. CODES R. & REGS. tit. 11, § 20.3(a); see also Royal Indemnity Co. v. County of Niagara, 415 N.Y.S.2d 166 (N.Y. App. Div. 1979). Such is the case here. Thus, based on the irrefutable evidence, Metzger is not responsible for the AFCO Note as Metzger was not involved in procuring that financing, not invoiced for the policies represented in the AFCO Note, and did not represent to AFCO--or any others--that the premium due on the Security policy was $32 million. AIMCO knows exactly where the problem is with regard to the AFCO note as they entered into not one, but two indemnity and bonding agreements related to these transactions with NPS, Vito Gruppuso and Lockton. (See Deposition Exhibits 303 and 305, indemnity agreements attached hereto as Exhibits 10 and 11, respectively.) Because actual possession is a required element of premium liability against an insurance broker (Premium Mot. at 11-12 (citing Colorado and New York law and regulations)), and because no issue of dispute can call into question that Metzger never possessed AIMCO's property insurance premiums, summary judgment on this matter is appropriate.

19

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

Document 601

Filed 06/21/2005

Page 22 of 30

4.

AIMCO in Response fails to properly addresses Metzger's argument with regard to the JSL Motion, and that motion is proper for judgment as requested. AIMCO misconstrues Metzger's argument with regard to the applicability of joint and

several liability according to Resolution Trust Corp. v. Heiserman, 898 P.2d 1049 (Colo. 1995) against the facts of this action. Rather than saying what AIMCO believes Metzger's JSL Motion to be arguing, namely that there is insufficient evidence to request a joint and several remedy under Colorado statute, Metzger plainly argues two distinct issues: (1) that joint and several liability is a creature of Colorado statute and, to date, no choice of law controls this action; and (2) should this Court determine that Colorado law applies, then because joint and several liability has not been applied in Colorado on the peculiar facts of this case, precedent in previous attempts to apply that drastic remedy on first-impression facts in a federal case is for this Court to refer the matter to the Colorado Supreme Court for guidance. AIMCO attempts to create an issue of fact to prevent summary judgment on the JSL Motion by alluding to a host of items which on their face have no application to the Program. First, AIMCO offers Gruppuso's calendar records for the prospect that Metzger must have been collaborating on the Program both before and after July 27, 1999. (See Resp. at 3; Ex. S.) Interestingly enough, though irrelevant, is that those same records also purport to show Gruppuso meeting with Baldwin 10 times in the same period--information that is both unauthenticated and useless to create an issue of fact as to either Metzger or Baldwin. (Id.) This argument includes multiple references to the deposition record that both Metzger and First Capital had prior business relationships with Gruppuso (Resp. at 2-3, citing depositions of Don Kelly, Richard Metzger, and Dennis Reilly), again which fails to controvert the testimony and

20

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

Document 601

Filed 06/21/2005

Page 23 of 30

undisputed facts regarding this Program: Metzger had no involvement whatsoever with this Program until July 27, 1999. AIMCO also makes the same, unsupported argument that Metzger commingled AIMCO's property insurance premiums to prop up its "common plan" claim. As discussed above, this argument fails in both lack of evidence and AIMCO's inability to satisfy critical legal elements. (See § 3, supra.) Furthermore, AIMCO's Response trivializes or outright ignores several critical facts appurtenant to the analysis of its sole fault with regard to alleged damages arising from the financing of its premium in the Program. First, AIMCO plainly gave unfettered, written authorization on multiple occasions to its Risk Manager, Ray Baldwin, to negotiate and bind AIMCO to premium finance agreements. (See Deposition Exhibit 211, attached hereto as Exhibit 12; JSL Mot. at Exs. Z, X-Y, AA-BB, DD.) AIMCO does nothing to contradict this unqualified authorization issued by its COO, Tom Toomey, that as of December 7, 1999, "Ray Baldwin [wa]s authorized to negotiate and execute insurance premium finance agreements for Apartment Investment and Management Company" (Ex. 12), attempting instead to explain the excessive amounts of premium financing by relating dollar figures to layers of insurance ("AIMCO financed its premium and brokers' fees (as well as additional premiums for excess property insurance policies) through AFCO[,]" Resp. at 16, Ex. EE). This is false.

21

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

Document 601

Filed 06/21/2005

Page 24 of 30

The multiple finance agreements AIMCO executed through Baldwin were expressly for the single $1 million primary layer of property insurance available in the Program: Note A.I. Credit Note (JSL Mot. at Ex. Y) AFCO Note (JSL Mot. at Ex. AA) Date Executed By Executed 12/10/1999 Baldwin for AIMCO 03/09/2000 Peter Kompaniez, President of AIMCO 06/14/2000 Baldwin for AIMCO as "Risk Manager Consultant" Policy Borrowed For Security $1 million primary for AIMCO Security $1 million primary for AIMCO Amount $8,478,807.00 $32,122,722.00

Cananwill Note (JSL Mot. at Ex. DD)

$23,325,455.88 National Union $1 million primary (replacement coverage for Security policy) for AIMCO Total financed for AIMCO $1 million primary layer alone: $63,926,984.88

AIMCO does not dispute that the actual premium for its property coverage on the Program was $14,736,378.00 while with Security. (Resp. at 16, Ex. 120.) Nor can AIMCO argue that Baldwin's testimony can affirmatively establish the Cananwill Note as "ha[ving] nothing to do with AIMCO[,]" (id. at 17 n.3.), both because the document on its face supports that conclusion only if the financing were fraudulent in the first place, and because Baldwin continued to testify that this Cananwill note was supposed to roll into the criminally-impaired AFCO Note--which itself was only good for AIMCO's own primary property layer (id. at Ex. G pp 227-238). This does nothing to change the fact that Baldwin was again acting under AIMCO's blanket authority to negotiate and execute premium finance agreements on behalf of AIMCO, and that, in fact, "AIMCO/Real Estate Risk Management Services, Inc." (an entity incorporated by Gruppuso and Baldwin to control the Program and represented by them to be owned by AIMCO) was the named insured on the National Union policy.

22

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

Document 601

Filed 06/21/2005

Page 25 of 30

In addition, AIMCO is judicially estopped from attempting, as it does in Response, to contest that it did not authorize the switch in carriers which criminally impaired AFCO's security interest in the AFCO Note. (See Resp. at 44-45.) In a prior proceeding, AIMCO in a position statement to this Court averred that in fact AIMCO, through NPS, authorized the cancellation of the Security policy and transfer to National Union. (JSL Mot. at Ex. OO ¶ 3.) Baldwin thereafter executed the policy release terminating the Security policy on behalf of AIMCO. (See Cancellation Request/Policy Release, attached hereto as Exhibit 13.) It is uncontested that AFCO never learned of either AIMCO's authorization, or the switch in carriers, until December 8, 2000, at which point its collateral (the Security policy) had been impaired by AIMCO's cancellation for over seven months. (JSL Mot. at 23, Ex. CC.) AIMCO's Response through argument, but bereft of any facts, questions Baldwin's agency status in trying to cleave his acts imputable to AIMCO from any business related solely to his role as principal for Swain & Baldwin Insurance in attempt to defeat the JSL Motion. (See Resp. at 44-47.) Offering only bald argument that "RMA also is wrong in claiming that AIMCO somehow authorized everything that Baldwin did[,]" (Resp. at 45), AIMCO ignores evidence of blanket apparent authority for Baldwin to operate as a Program financier for AIMCO unchecked (see Ex. 12), Baldwin's verified admissions in related cases that he felt some sort of implied authority to execute multiple premium finance agreements on behalf of AIMCO-unrelated insureds on the Program without consent from or even contact with the unrelated insureds (see Baldwin's Response to Cananwill's Requests for Admissions at Response Nos. 10-30, attached hereto as Exhibit 14), as well as Mr. Toomey's testimony that Baldwin was authorized to fully act on AIMCO's behalf in assembling and procuring insurance (Ex. 4). Owing to Baldwin's

23

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

Document 601

Filed 06/21/2005

Page 26 of 30

apparent blanket authority from AIMCO to execute finance agreements and the inexplicable appearance of "AIMCO" on premium finance agreements executed by Baldwin for unrelated entities for Program insurance, sufficient evidence exists to impute the very issue AIMCO blames for the Program's downfall ("relatedness") to AIMCO's own apparent authorization. AIMCO is completely non-responsive to this matter. Regardless of what AIMCO believes to be disputed fact regarding the genesis of the Program, its Response fully eschews the essential question of the JSL Motion: what does Colorado law require for instruction on joint and several liability if a claimant's own acts, or the acts of its apparently authorized agent, are a primary contributor to the claimant's alleged damages? It is irrelevant for this analysis whether or not AIMCO currently disputes both Baldwin's agency status with AIMCO prior to January of 2000, as well as whether or not acts he authorized in July of 1999 on behalf of AIMCO impute liability to AIMCO at present without a trial on the merits. This is instead a matter of first impression in Colorado, highlighted by AIMCO's failure to cite any substantive Colorado law to the contrary. (Resp. at 46-47.) Neither the common plan statute nor Heiserman offer any guidance as to what principles of recovery would apply should a jury find Baldwin both at fault in any degree for the matters at issue here (as will be tendered to the jury with respect to Metzger, First Capital, and Security's third-party claims), as well as finding Baldwin so acting in his capacity of express or apparent authority on behalf of AIMCO. In such instance current substantive Colorado law provides no direction, and should a jury assess greater than 50% fault against Baldwin it is even conceivable that traditional principles of contributory negligence could apply and completely bar any recovery by AIMCO.

24

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

Document 601

Filed 06/21/2005

Page 27 of 30

In any event, when as before the matter of interpretation of joint and several liability under Colorado's common plan statute against first-impressions allegations and potentially unprecedented remedial application presents itself in the federal forum, the standard set by this Court is to certify the appropriate questions to the Colorado Supreme Court for guidance. See Heiserman, supra. This course requires no resolution of disputed facts, was successfully applied before, and should be followed here. For these reasons, Metzger's JSL Motion should be granted in either alternative remedy this Court deems suitable.

25

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

Document 601

Filed 06/21/2005

Page 28 of 30

CONCLUSION FOR THE FOREGOING REASONS, Metzger request that this Court: a) GRANT Metzger's Motion for Partial Summary Judgment re: Colorado Consumer Protection Act; b) GRANT Metzger's Motion for Partial Summary Judgment re: Negligence and Negligent Misrepresentation; c) GRANT Metzger's Motion for Partial Summary Judgment re: Ratification; d) GRANT Metzger's Motion for Partial Summary Judgment re: Premium Liability; e) DENY application of Colorado's "Common Plan" statute with regard to joint and several liability, or certify this matter of first impression to the Colorado Supreme Court for guidance, and for any other such relief that this Court deems just and equitable. Dated this 21st day of June, 2005. TREECE, ALFREY, MUSAT & BOSWORTH, P.C.

s/ Robert Zavaglia Paul E. Collins Robert J. Zavaglia, Jr. 999 18th Street, Suite 1600 Denver, Colorado 80202 Telephone: (303) 292-2700 Fax: (303) 295-0414 E-mail: [email protected] [email protected] Attorneys for Defendant Roger Metzger Associates

26

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

Document 601

Filed 06/21/2005

Page 29 of 30

CERTIFICATE OF SERVICE I hereby certify that on this 21st day of June, 2005, a true and correct copy of the foregoing JOINT REPLY IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY JUDGMENT FILED BY DEFENDANT ROGER METZGER ASSOCIATES was placed in the U.S. Mail, first-class postage prepaid and correctly addressed to the following: Thomas L. Roberts, Esq. ROBERTS, LEVIN & PATTERSON, P.C. 1660 Wynkoop Street, Suite 800 Denver, Colorado 80202 Karma Giulianelli, Esq. Lester Houtz, Esq. BARTLIT BECK HERMAN PALENCHAR & SCOTT 1899 Wynkoop, 8th Floor Denver, Colorado 80202 Jeffrey A. Hall, Esq. Elizabeth A. Thompson, Esq. BARTLIT BECK HERMAN PALENCHAR & SCOTT 54 West Hubbard Street, Suite 300 Chicago, Illinois 60610 Jeffrey A. Chase, Esq. Barry Schwartz, Esq. JACOBS CHASE FRICK KLEINKOPF & KELLEY LLC 1050 17th Street, Suite 1500 Denver, Colorado 80265 John T. Wolak, Esq. GIBBONS, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE, P.C. One Riverfront Plaza Newark, New Jersey 07101 James M. Miletich, Esq. MCCONNELL SIDERIUS FLEISCHNER HOUGHTALING & CRAIGMILE, LLC 4700 South Syracuse Street, Suite 200 Denver, Colorado 80237 Leonard B. Rose, Esq. Jed Reeg, Esq. LATHROP & GAGE L.C. 2345 Grand Boulevard, Suite 2800 Kansas City, Missouri 64108-2612 John R. Trigg, Esq. Julie M. Walker, Esq. Melissa Collins, Esq. WHEELER TRIGG & KENNEDY, L.L.P. 1801 California Street, Suite 3600 Denver, CO 80202 John D. Martin, Esq. OSTER & MARTIN, LLC 717 17th Street, Suite 1475 Denver, CO 80202 Charles R. Tuffley, Esq. Rozana S. Widlicka, Esq. GROTEFELD & DENENBERG, LLC 30800 Telegraph Road, Suite 3858 Bingham Farms, MI 48025 William H. Jeffress, Jr., Esq. Joe Robert Caldwell, Jr., Esq. Nicholas A. Brady, Esq. BAKER BOTTS LLP 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004 John P. Mitzner ALLMAN & MITZNER, LLC 535 16th Street, Suite 727 Denver, CO 80202

27

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

Document 601

Filed 06/21/2005

Page 30 of 30

Jeffrey W. Lorell, Esq. Marc C. Singer, Esq. SAIBER SCHLESINGER SATZ & GOLDSTEIN, LLC One Gateway Center 13th Floor Newark, New Jersey 07102

s/ Aileen Tamai ___________________________________

2