Free Motion for Partial Summary Judgment - District Court of Colorado - Colorado

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Case 1:04-cv-00725-RPM

Document 41-39

Filed 07/01/2005

Page 1 of 6

LEWI LEWIS

BRUSBOI BRUSBOIS BISOAARD
ATT0RN1Y ATT0RN1YS AT LAW

SMITH

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FILE NO 2645781

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PAGE PAGES
FILE NO 2645781 WESTCHESTER FIRE INSURANCE COMPANY PROTECTION INSURANCE MANAGEMENT POLICY THE QUIZNOS INSURED QUIZNO CORPORATION POLICIE POLICIES CLAIM NO
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BRISBOI BRISBOIS

BIST3AARD

SMITH

NO913

82

Case 1:04-cv-00725-RPM

Document 41-39

Filed 07/01/2005

Page 2 of 6

LEWI LEWIS

BRISBOI BRISBOIS BISGAARD
ATTORNEY ATTORNEYS AT LAW

SMITH

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WESTCHESTER INSURANCE FIRE COMPANY PROTECTION INSURANCE OLICY MANAGEMENT P INSURED THE QUIZINOS QUIZINOCORPORATION NO POLICY DON 321635662002

P POLICYERIODJULY 2003 31 CLAIM NO X390L9630918
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IRENEHEILEMANSCHADEN KATHLEENSCHADENV RICHARDR RICHARDF SCHADEN PATRICK SCHADEN MEYER MEYERS THEQUIZNO

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DEAR MS WILSON COUNSEL WESTCHESTER TO FIRE INSURANCE OR WESTCHESTER THE INSURER CORNPANY OF IN THATCAPACITY ARE IN RECEIPT YOUR AND ITS CLAIM ADMINISTRATOR CLAIMS ACE USA ACE AND WE UNDER TO PROVIDE NOTICEOF CLAIM BROUGHT DATEDFEBRUARY 2004 PURPORTING CORRESPONDENCE WE
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THEPOLICY ENCLOSING COPY OF DEMAND LETTER 28 COMPLAINT COMPLAINTIN THE THE THEDEMAND LETTERDATEDJANUARY 2004 AND DRAFT RICHARD F IRENE HEILEMANSCHADEN KATHLEENSCHADENV RICHARD E SCHADEN ACTIONSTYLED NKA T SCHADENPATRICKMEYERS THEQUIZNO CORPORATION QUZNO HOLDINGCOMPANYHE MEYER
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Case 1:04-cv-00725-RPM
LEWI BPISBOI LEWIS BPISBOIS

Document 41-39

Filed 07/01/2005

Page 3 of 6

BISGAARD

SMITH

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GAIL J WILSON APRIL1 2004 2

PAGE

WE WESTCHESTERMUST

AND LAW COMMENT ALLRIGHTS U RIGHTNDERTHEPOLICY APPLICABLE THE COMMENTS SET INSURED F THE A FORTHELOW RELATE SUCHCOVERAGEUNDER B TO THE POLICYOR COMPANYNDTHE INDIVIDUALINSUREDS THE COMMENT AND THE COMPLAINT ALTHOUGH COMMENTS ARE AS MAY BE IMPLICATEDTHE DEMAND LETTER BY
RESERVE

AND THE COMPLAINT DO NOT WE CONTAINED THEDEMAND LETTER IN OFFERED BASED ON THE ALLEGATIONS ALLEGATION TO BE WE IN CLIENT BELIEVESUCHALLEGATIONS WISH TO IMPLY DOING THAT OR OUR CLIENTS SO WE ALLEGATION TTUE RATHER ARE WITH ISSUE ISSUES IN ACCORDANCE THI THIS OPPORTUNITY TO INFORM YOU OF POTENTIAL COVERAGE TAKING WESTCHESTERRESPONSIBILITY WESTCHESTERS AS AN INSURER THE POLICY

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AND LIMITATIONTHE LIMITATIONS POLICY TO EXCLUSION LEGAL SUBJECT ITS TERMS CONDITIONS TERM CONDITION EXCLUSIONS RELEVANT TO ITS LIMIT OF LIABILITY AND ANY APPLICABLE SUBLIMIT SUBLIMITSUNDERCOVERAGE SUBJECT

AND WHICH THE INCURRED INSUREDPERSONS PERSON FOR WHICH THEY NOT INDEMNIFIED BY THECOMPANY ARE BY MADE AGAINST SUCH KSURED PERSONS BECOME LEGALLY PERSON TO PAY OBLIGATED BYREASON OF ANY CLAIM FIRST PERIODFORANY WRONGFUL THE PERIODOR ANY APPLICABLE INSUREDPERSONS DURING POLICY PERSON DISCOVERY TO PERIOD COVERAGEROVIDES ACT ACTS TO THE END OF THEPOLICY PROVIDEOVERAGE THE P C
OR TO PERSON AS PERSONS PERMITTED TO GRANTINDEMNIFICATION THE INSURED COMPANY THE EXTENT THAT IT GRANTS TO PAY PERSON HAVE BECOME LEGALLY OBLIGATED BY REQUIRED LAW AND FORWHICH THE INSUREDPERSONS BY PERIOD OR ANY APPLICABLE THE POLICY OF ANY CLAIM FIRSTMADE AGAINST THEM DURING REASON P TO ACT ACTS PERIOD FORANY WRONGFUL TAKING PLACERIOR THE END OF THE POLICYERIOD P DISCOVERY

TAKING PLACE PRIOR

WHICH THE COMPANY F LOS DIRECT TO COVERAGEPROVIDES PROVIDE COVERAGE THECOMPANYORLOSS FOR THE CLAIM FIRST MADE AGAINST SECURITIE TO BECOME BECOMES LEGALLY OBLIGATED PAY BY REASON OF ANY SECURITIES ACT ACTS PERIODFORANY WRONGFUL THE PERIOD OR ANY APPLICABLE DISCOVERY DURING POLICY COMPANY PERIOD TO TAKING PRIOR THEEND OFTHEPOLICY PLACE WE THEREASONS SET FORTH AND REASON BASEDON OUR INVESTIGATION FOR TO WRITMG INFORMYOU THAT OUT FORTHE CLAIMS ARISING CLAIM DOE D HAVE DETERMINED THATTHEPOLICYOESNOT PROVIDE COVERAGE
ARE

BELOWWE OFTHEDEMANDLETTER OR TW DEMAND

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ON BEHALFOFBENE HEILEMANSCHADEN PREPARED

WIVE AND KATHLEENSCHADEN KATHLEEN THE FORMERWIVES OFRICHARDE SCHADENRICK QUIZNO OFTHEBOARDOFDIRECTORS THEQUIZNOS DIRECTOR OF AND CHAIRMAN C O THEPRESIDENT HIEF EXECUTIVE FFICER F SCHADEN RICHARD THE VICE OR THE COMPANY AND RICHARD

AND COMPLAINT WERE THE DEMAND LETTER

IRENE

NAME NAMES RICK THE DIRECTOROF QUIZNOS RESPECTIVELY COMPLAINT AND QUIZNO PRESIDENT SECRETARY THE INDIVIDUAL WITH RICHARD PATRICK MEYERSMEYERS AND COLLECTIVELY RICK AND RICHARD MEYER MEYER FOR QUIZNOSAND THE COMPANYTSEIF AS DEFENDANTS THE DEMAND DEFENDANT AN DEFENDANTS ATTORNEY QUIZNO

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LEUJI LEUJIS

BRISBOI BRISBOIS

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SMITH

NO

913

04

Case 1:04-cv-00725-RPM
LEWI LEWIS BRISBOIS BISOAARD BRISBOI

Document 41-39

Filed 07/01/2005

Page 4 of 6

SMRRFI R T

GAIL J WILSON

2 APRIL1

2004

PAGE

LETTER AND THE COMPLAINT SEEK TO SET ASIDETHERESPECTIVE THAT SEPARATION AGREEMENT AGREEMENTS WERE ENTERED INTO BY IRENE AND RICK AND KATHLEEN AND RICHARDSO THATTHE QUIZNOS QUIZNO STOCK MAY BE REVALUED AND THE MARITAL BASED REDISTRIBUTED ON THE RECENTDECISIONIN PROPERTY THAT VALUED QUIZNOSSTOCK AT QUIZNO
AN

3250

PER

AS SHARE

OF DECEMBER

21

2001

APPRAISAL PROCEEDING THE APPRAISAL

PROCEEDING
THE THECOURSE
OR

R THAT COMPLAINT ALLEGE ALLEGES KATHLEENMARRIEDICHARDON JANUARY 1988 AND THAT DURING OFTHEIRMARRIAGE RICHARDACQUIRED SHARE 994470 SHARESOF QUIZNOS QUIZNO STOCK APPROXIMATELY

42 37 OF THE COMPANY KATHLEEN FILED PETITION FOR DISSOLUTION ON APPROXIMATELY IN CONNECTION INTO SEPARATION FEBRUARY 2001 AND KATHLEENAND RICHARD ENTERED 27 AGREEMENT VALUED RICHARD SHARE OF RICHARDS SHARES WITH THEIR DISSOLUTION OCTOBER 2001 THE SEPARATION ON AGREEMENT STOCKAT 800 SHARE QUIZNO COMMON QUIZNOS PER

IN 2000 AND EXECUTED IRENE AND RICK WERE MARRIED ON JULY28 1989 SEPARATED IN CONNECTION WITH THEDISSOLUTION THEIR OF ON MARRIAGE AUGUST16 2000 AGREEMENT SEPARATION STOCK PURSUANT TO THE SEPARATION RICK QUIZNO STOCK RICKS QUIZNOS AND OPTIONWERE VALUEDAT OPTIONS AGREEMENT STOCK 900 B PRICE 7680000 OR APPROXIMATELYPER SHAREASEDLARGELY THE STOCKSTRADING ON THE UPON
HAD STATETHAT EACH PARTY BOTH COUPLES SEPARATION AGREEMENT LLEGEDLY AGREEMENTS A NASDAQ EXCHANGE COUPLE
ACCURATE OF THEVALUATIONS ASSETSWERE REASONABLY VALUATION OF ASSET MADE FULL DISCLOSURE THEIR ASSET ASSETSANDTHAT

OF OWNED MAJORITY ALLOUTSTANDING QUIZNO QUIZNOSCOMMON COLLECTIVELY STOCK AND RECENTLY TO FIRSTON NOVEMBER 13 QUIZNO PRIVATE COMPLETED TWOSTEP PLAN TAKEQUIZNOS STOCK AT O FORSHARE PRICE F 00 PER 2000 QTUZNOS QTUZNO ANNOUNCED TENDEROFFER SHARESOF ITSCOMMON TOTAL DECEMBER 11 2000 TENDER OFFER THE COMPANY EPURCHASED W ON R SHARE HICHEXPIRED STOCK TO OF775155 SHARES COMMON SHARE OF PURSUANT THETENDEROFFER SECONDON JUNE 22 2001 THE WITH FIRENZE INTO DEFMITIVE MERGER AGREEMENT ANNOUNCEDTHAT IT HAD ENTERED COMPANY TO WHICH THE REMAININGUBLIC OWNED BY RICHARD AND RICK PURSUANT P COMPANY WHOLLY MERGER CERTAINDISSENTING SHAREHOLDER SHAREHOLDERS WOULD BE PAID 850 PER SHARETHE SQUEEZEOUT TIGHT TIGHTS E APPRAISAL SHAREHOLDER SHAREHOLDERS THE SQUEEZEOUT TO MERGERLECTEDTO EXERCISETHEIRSTATUTORY RICHARD AND RICK BUSINES TO PURSUANT THE COLORADOBUSINESS

ACT CORPORATION AND

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DUTIE DUTIES RICHARD RICK OWED FIDUCIARY TO KATHLEENAND IRENE AND ASSERT ASSERTS COMPLAINT THAT THE OF THEIRRESPECTRVE ARRIAGES M TO THE DISSOLUTION AS THEIR SPOUSESPRIOR RESPECTIVELY ACTION OI ACTIONAS FOLLOWS FOLLOW AN INDEPENDENT EQUITABLE AGAINST ASSERT ASSERTS FOUR CAUSE CAUSES COMPLAINT THE
DECREE D TO O TO RICHARD AND RICK SEEKING SET ASIDE CERTAIN PORTIONF PORTIONSTHE DISSOLUTIONECREESRELATING THE RICHARD KICK AND FRAUD AGAINST ASSET VALUATION AND DIVISION OF THE COUPLES COUPLE MARITAL ASSETS OF MATERIAL EXISTING FACTS FACT THAT EACH MADE FALSE REPRESENTATIONS REPRESENTATION QUIZN QUIZNS ALLEGING TO ARID QUIZNOS RELATING THE CONCEALMENT AND NONDISCLOSURE RICHARD RICK QUIZNO AGAINST CIVIL IN WITH THE RESPECTIVE SEPARATION AGREEMENTAND AGREEMENTS INFORMATIONDISCLOSED CONNECTION PLAINTIFF ALL DEFENDANTS RELATINGTHE RESPECTIVE DEFENDANT TO SEPARATION AGREEMENT PLAINTIFFS AGREEMENTS

CONSPIRACY AGAINST

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AND QUIZNO QUIZNOSSTOCK

REVALUE THE SAME

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NO913

Case 1:04-cv-00725-RPM
LEWI BRLSOI LEWIS BRLSOIS
BISGAARD

Document 41-39

Filed 07/01/2005

Page 5 of 6

SMITH

UJ

WILSON APRIL1 2004 2
GAIL
3

PAGE

OFTHEQUIZNS STOCK THEAPPRAISAL IN BASEDON THEVALUATION QUIZN PROCEEDING ALTERNATIVELY PLAINTIFF PLAINTIFFS OF JUDGMENT THE DEFENDANTS DEFENDANT FORTHE AMOUNT OF DAMAGES SUFFERED AS AN DAMAGE REQUEST ENTRY AGAINST DETERMINED TRIAL AT W FEES ALONGITH COSTS EXPENSESAND ATTORNEYS COST EXPENSE ATTORNEY COVERAGE ANALYSI ANALYSIS

THE POLICYROVIDES TO INSUREDOR LOS FROMCLAIMS MADE CLAIM PROVIDE P COVERAGE INSUREDS LOSS ARISING THEM FOR ACTS THE POLICYEFINES DEFINE WRONGFID AS D ACT ACTS WRONGFUL

AGAINST

MISLEADING STATEMENTACT OMISSION ANY ERROR MISSTATEMENT
OR COMMITTED OR OR ACTUALLYALLEGEDLY NEGLECTBREACHOF DUTY

PERSON IN AS BY ATTEMPTED ANY OF THE INSUREDPERSONS THEIRCAPACITY TO SUCH OR IN AN OUTSIDE POSITION OR WITH RESPECT INSURING CLAUSE BYTHECOMPANY INSURED INSUREDS
AND
ARE

DEFINED IN CLAUSELII

THE COMPANY INSURED PERSONS ARE DEFINEDAS PERSON

BECOME

ELECTEDOR DULY WITH MADE IN DEMAND LETTERAND COMPLAINT BASED UPON REPRESENTATIONSCONNECTION AND THE ARE REPRESENTATION ENTERED INTOBYRICHARDAND RICK AND AFFORDEDNDERTHERESPECTIVE U AGREEMENT AGREEMENTS RIGHT RIGHTS SEPARATION INTO IN THE INSUREDS INSURED WIVES THE RESPECTIVE THEIRFORMER W SEPARATION AGREEMENT ERE ENTERED AGREEMENTS DIRECTOR AND OFFICERS OFFICER OF AND NOT IN THEIRRESPECTIVE AS DIRECTORS CAPACITIE CAPACITIES RESPECTIVE PERSONAL CAPACITIE CAPACITIES

OF CLAUSE CLAUSES INSURED PERSONS AND IN RESPECT INSURING PERSON WHO WERE NOW ARE OR SHALL PERSON PERSONS THE OFFICER OF TRUSTEE TRUSTEESOR OFFICERS THE COMPANY DIRECTOR DIRECTORS APPOINTED
AS

THE SCHADEN THE CLAIM CLAIMS AGAINST SCHADENSDO NOT ALLEGE WRONGFTTL ANY QUIZNOS ACCORDINGLY ALLEGED IN IN ADDITION EYERS DEFENDANT IS ACT ACTS FOR WHICH THEPOLICYROVIDES SOLELYRESPECT PROVIDE P MEYER M COVERAGE IS NO INDICATIONTHATSUCH CLAIM IS THERE OF THE CAUSE OF ACTION ASSERTING CONSPIRACY CIVIL OF OR OMISSION AS HIM FOR ACTS OR OMISSIONS BY HIM IN HIS CAPACITY DIRECTOR OFFICER ACT AGAINST BROUGHT ACT ACTS AGAINST FOR WHICH THE THI THIS DOE WRONGFUL MEYER MEYERS ACCORDINGLYMATTER DOESNOT ALLEGE QUIZNOSF POLICY PROVIDE PROVIDES COVERAGE LOS LOSS O S THAT PROVIDE PROVIDES THEPOLICYHALL PAY ON BEHALF FTHECOMPANY COVERAGE CLAIM SECURITIE SECURITIES SECURITIE TO PAY BECOME BECOMES LEGALLY OBLIGATED BY REASON OFANY SECURITIES COMPANY

WHICH THE

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OR SALE TO OUT BASED UPON ARISING OF OR ATTRIBUTABLE THEPURCHASE SECURITIE ISSUED BY THE TO OR SELLANY SECURITIES OF OR OFFER PURCHASE INVOLVE SALE OR OFFER INVOLVES COMPANY WHETHERSUCH PURCHASE MARKET WITH THE COMPANYOR OCCURS IN THEOPEN OCCUR TRANSACTION

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LEWI LEWIS

BRISBOI BRISBOIS

BISGARD

SMITH

NO

913

PE

Case 1:04-cv-00725-RPM
LEWI BRISBOI LEWIS BRISBOIS BISGAARD
GAIL WILSON
2004

Document 41-39

Filed 07/01/2005

Page 6 of 6

SMITH

21 APRIL PAGE

ARISE SCHACLENS RESPECTIVE DIVORCE PROCEEDINGS THE DEMAND LETTER AND COMPLAINT OUT OF THESCHACLENSS PROCEEDING SECURITIE BY AND ARE NOT ATTRIBUTABLE THE PURCHASE TO OR SALEOR OFFER PURCHASE TO OR SELL ANY SECURITIES THE THI THIS DOE SECURITIE COMPANY ACCORDINGLY MATTER DOES NOT CONSTITUTE SECURITIESCLAIM AND THEREIS NO
FORQUIZNOPURSUANT INSURING TO CLAUSE OFTHEPOLICY COVERAGE QUIZNOS

RESERVATION IN

OF RIGHTS RIGHT

OF OF WESTCHESTER DENIE DENIES COVERAGE IN RESPECT THE LIGHT THE FOREGOING EXPRESSLY O TERM TERMS MATTER WESTCHESTERHAS NOT ADDRESSEDTHERCOVERAGE EXCLUSION EXCLUSIONS CAPTIONED ACCORDINGLY THE WESTCHESTER PECIFICALLY RESERVE RESERVES AND CONDITIONSOF THE POLICY THIS TIME NEVERTHELESS CONDITION AT THI NEVERTHELES S ALL OF MATTER UNDEREXCLUSIONAL ACE EXPRESSLY RESERVE RESERVES T RIGHTO EXCLUDETHE CAPTIONED W WESTCHESTER RIGHTS WESTCHESTERS UNDERTHE POLICY LAW AND IN EQUITY HETHER NOT REFERENCED AT OR HEREIN RIGHT IN BASED UPON GROUNDS THANTHOSE OTHER SET FORTH THE TO EXPRESSLY INCLUDING RIGHT DENY GROUND COVERAGE ISSUE AND TO SUPPLEMENT ANDOR AMEND THIS LETTERTO ADDRESS THI ADDRES ADDITIONAL THI THIS LETTER COVERAGE ISSUES AS AND ENDORSEMENT ENDORSEMENTS BASED UPON ALL OFTHEPROVISIONS CONDITIONS CONDITION EXCLUSION EXCLUSIONS TERM TERMS THEY AY ARISE PROVISION M TO ACES ACE AND FACT THAT FACTS DEFINITION FOUNDIN THEPOLICY APPLICATION ANY ADDITIONAL DEFINITIONS ITS MAY COME ATTENTION NOTHING STATEDHEREIN AND NO FURTHERACTION TAKEN BY WESTCHESTER OR ON ITS BEHALF UNDER THE POLICY AT LAW OR EQUITYON THE SHOULD BE CONSTRUED AS WAIVER OF ANY OF ITS RIGHTS RIGHT IN THI THIS TO THE INSUREDS ENGAGINGANY PRIOR INSUREDBY BYPROVIDING OR ANY PRIOR CORRESPONDENCE CONTRARY TO PAY ANY AMOUNT TO OR ON BEHALF FUTUREDISCUSSIONS DISCUSSION WITH THEINSUREDS PAYING AGREEING OR OR OR INSURED OF THE JNSUREDS DOE JNSUREDWESTCHESTERDOES NOT WAIVE ANY SUCH RIGHTS

INFORMATION ADDITIONAL HAVE MACIC AN ERROR OR WOULD LIKE TO PROVIDE FEELFREE CONTACTTHE UNDERSIGNED TO THI THIS REGARDING CLAIM PLEASE
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