Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00725-RPM

Document 50-8

Filed 08/10/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch Civil Action No. 04-cv-725-RPM-OES THE QUIZNO'S MASTER LLC, a Colorado limited liability company and THE QUIZNO'S HOLDING COMPANY, a Nevada corporation, as assignee of and successor in interest to THE QUIZNO'S CORPORATION, a Colorado corporation, Plaintiffs, v. WESTCHESTER FIRE INSURANCE COMPANY, a New York corporation and ROYAL INDEMNITY COMPANY, a Delaware corporation, Defendants.

SECOND DECLARATION OF PATRICK E. MEYERS

1.

My name is Patrick E. Meyers. I am an individual over the age of eighteen (18)

years. I have personal knowledge of the matters set forth in my Declaration and would be willing and able to testify thereto if and when called upon to do so. 2. I am the Executive Vice President of Finance and General Counsel of The

Quizno's Master LLC and the Quizno's Holding Company, (collectively "Quizno's"). 3. As noted in my Declaration provided with Quizno's Motion for Partial Summary

Judgment, Westchester initially agreed to advance defense costs associated with the Sebesta Action. Westchester also initially agreed to advance a certain portion of the defense costs associated with the Dissenters Action. As such, the parties entered into an Interim Funding Agreement pursuant to which Westchester paid just under $300,000 (after applying a $250,000

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Case 1:04-cv-00725-RPM

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retention it maintained applied pursuant to Endorsement 6 of its Policy) of Quizno's defense costs associated with the Sebesta Action and the Dissenter's Action. Westchester made these payments in December 2002 and February 2003. Those are the only amounts Westchester has paid. 4. Westchester subsequently refused to pay any further defense costs associated with

either the Appraisal Action or the Sebesta Action even though Quizno's continued to incur defense costs associated with both of those actions. 5. From June 2003 forward, Quizno's made repeated requests to Westchester to

cover and advance defense costs associated with the Sebesta Action. At first, in June 2003, Westchester indicated a desire to change the allocation of defense costs between the Appraisal Action and the Sebesta Action. Quizno's attempted to negotiate with Westchester in this regard, but thereafter Westchester refused to even address the issue further and ignored Quizno's requests for further payment and further negotiation. 6. Quizno's also made numerous attempts to obtain Westchester's input and approval

with respect to the terms of the Sebesta Action settlement. Westchester refused to provide any feedback to Quizno's regarding the proposed settlement.

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Case 1:04-cv-00725-RPM

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I declare under penalty of perjury that the foregoing is true and correct. Executed on August 10, 2005. /s/ Patrick E. Meyers Patrick E. Meyers STATE OF COLORADO CITY & COUNTY OF DENVER ) ) ss )

Subscribed and sworn to before me this 10th day of August 2005 by Patrick E. Meyers. WITNESS my hand and official seal. My Commission Expires: ______________ /s/ Notary Public

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