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

Case 1:04-cv-00725-RPM

Document 41-37

Filed 07/01/2005

Page 1 of 4

LEWI LEWIS

BRISBOI BRISBOIS

BISGAARD
AT LAW

SMITH

LLP

ATTORNEY ATTORNEYS

MAR15 JJN
NEW

100
PHONE

WALL

STREET

NINTH FAX

FLOOR

NEW

YORK

YORK

100053701 WWWLBBSLAWCOM

2122321300

2122321399

WEBSITE

THOMA THOMAS EMAIL

M

SANFORD

MARCH

10

2004

FILE NO 2645781

DIRECT DIAL

212 2321309 SANFORDLBBSLAWCOM

VIA AND

FACSIMILE FIRST CLAS CLASS

303

2912400

MAIL

LEONARD H

MACPHEE ESQ

PERKIN PERKINS COIE 1899 S WYNKOOPTREET 802021043 WESTCHESTERFIRE INSURANCE

SUITE 700

DENVERCO
RE

PROTECTIONINSURANCE MANAGEMENT INSURED POLICIE POLICIES CLAIM NO MATTER THE DON G21635662

COMPANY POLICY QUIZNO CORPORATION QUIZNOS
002 DON 648451

X390L9630918 WILLIAM H NICKERSON F RICHARD SCHADEN RICHARD QUIZNO CORPORATION QUIZNOS SCHADENMARK L BROMBERG ERIC
V

THE

E

LAWRENCE AND JOHN

TODD

DEAR LEN AS YOU KNOW WE ARE COUNSEL WESTCHESTERIRE INSURANCE COMPANY TO F WESTCHESTER AND ITS CLAIMS ADMINISTRATOR ACE CLAIM USA THI THIS WILL ACKNOWLEDGE OF ACE RECEIPT YOUR DATED 2 THE COMPLAINT IN CORRESPONDENCEJANUARY3 2004 ENCLOSING COPY OF THE COMPLAINT THE CAPTIONED MATTER THEACTION INDEX NUMBER 04CV0455 AND FILED IN THE DISTRICT BEARING COURT FORTHE CITYAND COUNTYF DENVER STATE OF COLORADO ALL CAPITALIZED O TERM TERMS USED HEREIN SHALLHAVE THE MEANINGS FORTHIN THE CAPTIONED SET UNLES UNLESS OTHERWISE SPECIFIED POLICIE POLICIES MEANING W NO PROVIDED WITH COPIES THE COMPLAINT ESTCHESTER POLICY ONLY COPIE OF N POLICY WESTCHESTER POLICYO D0N648451 THE 2001 02 POLICY AND COLLECTIVELY THE 200304 WITH POLICY THE POLICIES AND CERTAIN RELATED POLICIE I AND ALL OUR ANALYSIS PRELIMINARY ON BEHALF OF WESTCHESTER MUST RESERVE WE CORRESPONDENCE ANALYSIS UNDER THE POLICIES AND THE APPLICABLE POLICIE LAW THE COMMENTS COMMENT SET FORTHBELOW RELATETO SUCH RIGHT RIGHTS POLICIE QUIZNO CORPORATION QUIZNO QUIZNOS OR THE COMPANY AND COVERAGE UNDER THE POLICIES FOR THE QUIZNOS THE INDIVIDUAL DEFENDANTS AS MAY BE IMPLICATED THE COMPLAINT DEFENDANT THE COMMENT BY ALTHOUGH COMMENTS ARE AS
WE

HAVE BEEN

DON

G21635662002

THE 200304

LOS ANGELES ANGELE 2132501800

SAN FRANCISCO 4153622580

SAN

DIEGO

COSTA MESA 7145459200

SAN BERNARDINO

SACRAMENTO 9165645400

NEW

YORK

LAS

VEGA VEGAS

6192331006

9093871130

2122321300

7023669212

4850041692161

QWEST00325

Case 1:04-cv-00725-RPM

Document 41-37

Filed 07/01/2005

Page 2 of 4

LEWI LEWIS

BRISBOI BRISBOIS

BISGAARD

L

LEONARD H MARCH

MACPHEEESQ
2004

10

PAGE

OFFEREDBASED THATWE
OR OUR

ON

THE ALLEGATIONS CONTAINED IN THE COMPLAINT WE ALLEGATION

DO NOT WISH TO
ARE

SO IMPLYIN DOING

CLIENT BELIEVE SUCH ALLEGATIONS TRUE RATHERE CLIENTS TO W ALLEGATIONBE
ISSUE POTENTIAL COVERAGE ISSUES

THI THIS TO TAKING OPPORTUNITY
AS AN RESPONSIBILITY

INFORM YOU OF INSURER THE

IN ACCORDANCE WITH WESTCHESTERS WESTCHESTER

COMPLAINT THE ACTION WAS

SHARE COMPANY BROUGHT BYPLAINTIFFFORMER OWNER OF 18000 SHARES OF THE COMPANYS WHICH HE TENDERED THE COMPANYURSUANT ITS NOVEMBER 13 2000 OFFERTO TO TO COMMON STOCK P SHARE SHARES OF QUIZNOS TRADED COMMON STOCK FOR 800 ALL OUTSTANDING QUIZNO PUBLICLY PER SHARE PURCHASE OF CLAS CLASS OF SHAREHOLDERSWHO SHAREHOLDER TO THE TENDER OFFER THE ACTION PURPORTS BE ON BEHALF PURPORT A DIRECTOR DIRECTORS IN THE TENDER OFFER THE COMPLAINT NAME NAMES THE COMPANYND THE FOLLOWING PARTICIPATED CHIEF EXECUTIVE OFFICER AND OFFICERSOF QUIZNOS DEFENDANTS RICHARD E SCHADEN OFFICER PRESIDENT QUIZNO AS DEFENDANT AND CHAIRMAN OF THE L AND MARK BOARD RICHARD F SCHADENVICE PRESIDENT ECRETARY DIRECTOR S AND JOHN J TODD DIRECTORCOLLECTIVELY THE E DIRECTORRIC LAWRENCEDIRECTOR BROMBERG

INDIVIDUAL

DEFENDANTS
THE FIRSTSTEP OF

COMPANY PRIVATE THE THE OF TRANSACTION FOLLOWING EXPIRATION THE TENDER OFFER ON DECEMBER 11 2000 THE THE WHEREBY QUIZNO QUIZNOSCONSUMMATED COMPLETED SECOND STEPOF THE TRANSACTION COMPANY THAT WITH THE FIRENZE CORP COLORADO REVERSE CORPORATION WAS WHOLLYOWNED THE BY MERGER SHARE THE SQUEEZE TO WHICH THE REMAINING SHAREHOLDER RECEIVED 850 SHAREHOLDERS PER SCHADEN PURSUANT SCHADENS AND IT WAS COMPLETED OUT MERGER THE SQUEEZEOUT WAS ANNOUNCED ON MAY 22 2001 MERGER
THE TENDER OFFERWAS

TWOSTEP PLANTO

TAKE THE

ON

DECEMBER21 2001
THE

CLAS CLASS OF OF MINOR THOSE MADE IN ANOTHER MATTER BY ALLEGATION THE COMPLAINT ALLEGATIONS THAT THE PRICE IN THE SECOND STEPSQUEEZEOUT SHAREHOLDER SHAREHOLDERSPARTICIPATING MERGER PAIDIN THE DUTIE DUTIES BY THE DIRECTORSTO THE DIRECTOR AND TRANSACTION WAS INADEQUATE CONSTITUTED BREACH OF FIDUCIARY THE COMPLAINT C SEBESTAV RCHARD E SCHADEN ET AL SHAREHOLDERS EDWARD MINORITY CONSIDERATION FORTHEIR SHARES SEEK THATTHE CLASS RECEIVED INADEQUATE CLAS SHARE AND SEEKS TO ESSENTIALLY ALLEGE ALLEGES IN DISSENTER RIGHT DISSENTERSRIGHTS ACTION IN WHICH THE BOLSTERITS ALLEGATIONS ALLEGATION REFERENCINGRECENT OPINION BY IN THE SQUEEZEOUT VALUATION SHAREHOLDER SHAREHOLDERSWHO DISSENTED TO THE 850 MERGERSTEPOF THE FOR AND TRANSACTION SOUGHT THEIR STATUTORY APPRAISAL RIGHT RIGHTS THE COURT DETERMINEDTHE FAIR PRICE BE 3250 SHARE THE QUIZNOSCORPORATION V TO QUIZNO PROCEEDING PER PURPOSE PURPOSES OF THE APPRAISAL WILLIAM S THE

FAGAN ET A

DEFENDANT DEFENDANTS INCLUDING BREACH OF ASSERT ASSERTS FOUR CAUSES OF ACTION AGAINST CAUSE COMPLAINT AND ABETTING BREACH OF FIDUCIARY THE ALL DEFENDANT FIDUCIARY AS AGAINST DIRECTORDEFENDANTS AIDING DUTY VIOLATION VIOLATIONS OF ALL DEFENDANTS UNJUST ENRICHMENTAS AGAINST QUIZNO QUIZNOS AND DUTY AGAINST DEFENDANT ALLDEFENDANTS SECURITIE ACT CRS COLORADO SECURITIES AGAINST 1151501A

4850041692161

QWEST00326

Case 1:04-cv-00725-RPM

Document 41-37

Filed 07/01/2005

Page 3 of 4

LEWI LEWIS

BRISBOI BRISBOIS

BISGAARD

LLP

LEONARD H MARCH

MACPHEE ESQ
2004

10

PAGE

COVERAGE

ANALYSI ANALYSIS
AS REPORTED CLAIM

INSURED INSUREDS UNDER THE 200304 AGAINST OF THE 200304 THE NICKERSON MATTER IS EXCLUDED UNDER EXCLUSION AL POLICY POLICY HOWEVER WHICH PROVIDES THATTHE INSURER SHALLNOT BE LIABLEFORLOSS ON ACCOUNT OF ANY CLAIM MADE AGAINST LOS PROVIDE THE NICKERSON MATTER
WAS

MADE

ANY INSURED

CIRCUMSTANCER SITUATION WHICH HAS BASED UPON ARISING OF OR ATTRIBUTABLE ANY FACT OUT TO O OF WHICH THIS POLICY THI IS RENEWAL OR BEEN THE SUBJECTANY WRITTENNOTICE GIVEN OF UNDER ANY POLICY

REPLACEMENT
FACT CIRCUMSTANCE THE ARISE ARISESOUT OF THE SAME FACTS AND CIRCUMSTANCES AND ALLEGES SAME ALLEGE COMPLAINT WHICH WAS THE SUBJECTNOTICE UNDER THE OF ACT ACTS WRONGFUL AS THE ABOVE REFERENCEDSEBESTA ACTION THE NICKERSON MATTER RELATES BACK TO THE SEBESTA MATTER RELATE 20012002 POLICY ACCORDINGLY OF THE 200102 AND COVERAGE WILL BE AFFORDED UNDER THE 200102 TO CLAUSE POLICY PURSUANT ITS TERMS AND CONDITIONS AND R TO TO TERM CONDITION POLICYSUBJECT SINGLEETENTIONSHALL APPLY THESE RELATED ISSUED MATTER MATTERS PURSUANT CLAUSE OF THE 200102 TO POLICY WE REFERYOU TO CORRESPONDENCE ON BEHALF OF WESTCHESTER DATED JANUARY 2002 FEBRUARY 2002 AND MARCH 19 2002 IN WHICH IS WESTCHESTER WESTCHESTERS COVERAGE POSITION MORE FULLY FORTH WESTCHESTER SPECIFICALLY SET ADOPTAND ADOPTS OF MADE IN RESPECT THE SEBESTA MATTER TO THE NICKERSON OF ALL RESERVATIONS RIGHTS RESERVATION RIGHT INCORPORATE INCORPORATES THE
MATTER

FORITS CONSENT TO RETAIN THE LAW FIRM OF MORRISON WESTCHESTER ACKNOWLEDGES REQUEST ACKNOWLEDGE YOUR TO REPRESENT LLP FOERSTER MOFO QUIZNO QUIZNOSIN THE NICKERSON MATTER WESTCHESTER HAS RUDNICK TO REPRESENT CONSENTED TO THE RETENTIONOF THE LAW FIRM OF PIPER QUIZNO IN QUIZNOS THE ALREADY THAT ONLY THOSE REASONABLE AND CLAUSE 2D OF THE 200102 SEBESTAMATTER POLICY PROVIDE PROVIDES INSURED CLAIM FEE FEES AND EXPENSES INCURREDBY INSUREDS IN DEFENSE OF CLAIMS FALLWITHIN COST CHARGE EXPENSE NECESSARY COSTSCHARGES WHICH ARE SUBJECTCOVERAGE AS LOSS ACCORDINGLY WESTCHESTER THE DEFINITIONOFDEFENSECOSTS COST TO THAT THI W OR QUESTIONHETHER IT IS REASONABLE NECESSARY TO RETAIN NEW FIRM AT THIS JUNCTURE IS QUESTIONS ITS RIGHT CONSENT TO THE OF THE TRANSACTION AND SPECIFICALLY RESERVE RESERVES TO UNFAMILIARWITH THE FACTS FACT OF FROM QUIZNO AS TO THE NEED FOR RETENTION NEW RETENTION OF MOFO PENDING EXPLANATION QUIZNOS AN COUNSEL RESERVATION OF RIGHT RIGHTS

DUTIE DUTIES TO WESTCHESTER INDEPENDENT OF COOPERATION ACE ALL OF WESTCHESTERS WESTCHESTER RIGHTS AS THIS COVERAGE ANALYSIS PRELIMINARY THI I RESERVE RESERVES RIGHT EXPRESSLY ANALYSIS THE WHETHER OR NOT REFERENCEDHEREININCLUDING RIGHT TO UNDER ITS POLICIESAT LAW AND IN EQUITY POLICIE IN THIS LETTER THI AND TO OTHER THAN THOSE EXPRESSLY FORTH SET GROUND DENYCOVERAGE BASED UPON GROUNDS THI TO ADDRESS ADDITIONALCOVERAGE ISSUES AS THEY ADDRES ISSUE ANDLOR AMEND THIS LETTER MAY ARISE SUPPLEMENT ENDORSEMENT ENDORSEMENTS AND DEFINITIONS DEFINITION BASED UPON ALL OF THE PROVISIONS EXCLUSION PROVISION TERM CONDITION EXCLUSIONS TERMS CONDITIONS FACT TO ACES ACE AND FOUND IN THE POLICIESTHEIR APPLICATIONS ANY ADDITIONAL FACTS THAT MAY COME POLICIE APPLICATION PLEASE NOTE THATTHE INSUREDS MAINTAIN INSURED

4850041

692161

QWEST00327

Case 1:04-cv-00725-RPM

Document 41-37

Filed 07/01/2005

Page 4 of 4

LEWI LEWIS BLUSBOIS BLUSBOI

BISGAARD

1FH

LEONARD H MARCH

MACPHEE ESQ
2004

10

PAGE

BY WESTCHESTER OR ON ITS BEHALF WAIVER OF ANY OF ITS RIGHTS UNDER THE POLICY LAW OR IN EQUITY AT ON THE SHOULDBE CONSTRUEDAS RIGHT THI THIS OR ANY PRIORORRESPONDENCEINSUREDS ENGAGINGANY PRIOR TO THE INSURED BY IN CONTRARY BYPROVIDING C DISCUSSION TO OR FUTUREDISCUSSIONS WITH THE INSUREDS INSURED OR BY PAYING AGREEING PAY ANY AMOUNT TO OR ON OR BEHALF OF THE INSUREDS WESTCHESTEREXPRESSLY NOT WAIVE ANY SUCH RIGHTS DOE DOES INSURED
AND
NO

ATTENTION

STATED HEREIN NOTHING

FURTHERACTION TAKEN

TO

THE EXTENT

THAT YOU

ARE

AWARE

OF ANY INFORMATIONTHAT WOULD INDICATE THAT THE

IS PRELIMINARY COVERAGE POSITION

WITH THAT INFORMATION AS ACE NOTIFY

SOON

AS

OR US INACCURATE FACTUALLY LEGALLY OTHERWISE PLEASE PROVIDE WESTCHESTERURTHERREQUESTS THE INSUREDS F THAT INSURED POSSIBLE REQUEST

ALL IN THI AND THE UNDERSIGNED PROMPTLY REGARDINGSIGNIFICANT DEVELOPMENTTHIS DEVELOPMENTS MATTER WITH COPIE OF TO A PROVIDECE AND THE UNDERSIGNED COPIES ALL SIGNIFICANT PLEADING PLEADINGS RELATING THE

ABOVEREFERENCED
OR

ACTION

ENSURE

THAT NEITHER THE INSUREDS INSURED NOR DEFENSE COUNSEL OFFER DISCUS DISCUSS FIRST DISCUSSING SETTLEMENT SUCH THE AND SETTLEMENT

WITH

THE W ACCEPTNY SETTLEMENTTHAT MAY IMPLICATE POLICY ITHOUT A AND OBTAINING WRITTEN CONSENT TO PROCEED WITH ACE PRIOR

THE UNDERSIGNED WITH INSURER INSURERSTO WHOM

PROVIDE OF COPIEOF COPIES ALL CORRESPONDENCE FORTHTHE COVERAGE POSITIONSALLOTHER SETTING POSITION THIS THI MATTER HAS BEEN REPORTED

RESOLUTION THE OF OUR CONTINUING DIALOGUE CONCERNING AND TRUST THAT THIS WILL FACILITATE THI VARIOU VARIOUS COVERAGE ISSUE DELINEATED YOUR PRIORORRESPONDENCE ISSUES IN C OF ANALYSI THI QUIZNO ANALYSISTHIS MATTER QUIZNOS

LEN

WE

ALSO LOOK FORWARD TO

VERYTRUL

URS

THOMA THOMAS M LEWI LEWIS

SANFORD OF
BISGAARD SMITH LLP

BRISBOI BRISBOIS

BEPCM

CC

GAIL
THE 1475

J

WILSON

VICE PRESIDENT RISK

MANAGEMENT
LLC

QUIZNO MASTER QUIZNOS
LAWRENCE 80202

DENVERCO

4850041692161

QWEST00328