Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02344-RPM

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Filed 02/14/2006

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Civil Action No. 2003-cv-02344 RPM-MJW CLEMENT J. DeFRANCESCO, JR.

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Plaintiff, VS. UNUM LIFE INSURANCE COMPANY OF AMERICA, a Maine corporation, Defendant.

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DECLARATION OF MICHAEL S. BEAVER
Michael S. Beaver, being first duly sworn, hereby deposes and states: 1. I am lead counsel for UNUM Life Insurance Company of America

("UNUM") in the captioned action. I have personal knowledge of all facts stated in this Declaration. 2. I participated in oral argument on cross-motions for summary judgment on

October 12, 2005. At the time, I believed that, in view of Mr. DeFrancesco7sdeath, the rights and obligations of the parties had become fixed. That is, in t h e event that UNUM prevailed on its motion for summary judgment, I believed that UNUM owed no additional benefit payments to Plaintiff, and therefore the only remaining issue would have been the amount of the remaining overpayment. I further believed that, since there were no further benefit payments owing, if UNUM prevailed, the only way it would have been able to recover the remaining balance was to assert an affirmative claim for

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EXHIBIT

Case 1:03-cv-02344-RPM

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relief against Mr. DeFrancesco's estate. Further, in view of Mr. DeFrancesco's death, I believed that, if UNUM was to assert such an affirmative claim, it would likely have to be in a state court proceeding concerning the Estate. However, despite the fact that it was a creditor of Mr. DeFrancesco at the time of his death, UNUM had never received notice of any pending estate proceedings.
3.

Upon inquiry from the Court at the summary judgment hearing, I waived

UNUM's right to assert any kind of affirmative claim for relief to recover the remaining overpayment. I understood the Court's inquiry to concern only a "claim," and not any of UNUM's defenses. I had the authority of UNUM to waive such an affirmative claim.

I did not have the authority of UNUM to waive an offset defense.
4.

When the Court later raised the issue of the higher benefit percentage

during oral argument, I first became aware of the issue. Because I believed the obligations of the parties to be "fixed" upon Mr. DeFrancesco's death, I had not previously examined the issue.
5.

In that spontaneous exchange before the Court, I could not immediately

determine whether the higher benefit percentage would result in additional benefits that would be large enough to fully erase the previous overpayment.
6.

Thus, while the issue was unanticipated, I stated as best I could to the

Court in response to this unexpected development that, even if benefits were recalculated at the 60% level, because of "offsets," there might be no additional money owed by UNUM to Plaintiff.

Case 1:03-cv-02344-RPM

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Filed 02/14/2006

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Dated: February 14, 2005.

Micha . Beaver HOLLAND HARTLLP & 8390 East Crescent Parkway Suite 400 Greenwood Village, CO 801 1 1-2800 (303) 290-1 600

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