Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02344-RPM

Document 37-6

Filed 02/14/2006

Page 1 of 2

Michael S. Beaver, P.C.
Phone (303)290-1631 Fax (303) 290-1606

[email protected]

January 25, 2006

VIA FAX AND REGULAR MAIL
David M. Herrera David M. Herrera, LLC 3600 S. College Avenue Suite 204 Fort Collins, CO 80525 Re: Dear David:
DeFrnncesco v. UNUM Life Insurance Company of America, United States District Court for the District of Colorado

I have received and reviewed your email of January 23. I cannot respond to y o u short-notice demand for a response, since from your communication I cannot tell in what way you claim that UNUM's "responses do not conform to t h e Court's Order."
If by that you mean that UNUM does not agree with you, please just so state. If you contend, on the other hand, that UNUM has not provided you with some information that you claim should have been provided, then that i s a very different matter. If that is the case, please let us know, in writing, what information you believe not to have been forthcoming. We will then be in a position to respond, given a reasonable time within which to do so. However, at this point, it i s not clear to me what you mean.

I note that after the Court's Order resolving this case on October 18, 2005, I wrote to you three days later (on October 21) with information concerning the'recalculatioll of benefits under a 60% standard. While you took issue with that calculation some weelts later, you have never, in the intervening three months, complaii-~ed that UNUM lias provided you with insufficient information. You have stated only that you might seek "clarification" of the Court's October 18 Order.
There are two aspects il-i which your present position is unreasonable. First, if you are clailniilg that you have been provided with insufficient information, it is patently unreasonable to give UNUM 48 hours to respond to your threat of a "contempt motion," without even a description of the information that supposedly hasn't been forthcoming.

Holland &Hart LLP Attorneys a t Law
P h o n e (303) 290-1600 Fax (303) 290-1606 w w w . h o l i a n d h a r t . c o m 8390

E.

Crescent Parkway Suite 400 Greenwood Vlllage, Colorado 80111

Aspen Billlngs Boise' Boulder Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Salt

Lake City S

Case 1:03-cv-02344-RPM

Document 37-6

Filed 02/14/2006

Page 2 of 2

David M. Herrera January 25, 2006 Page 2 Second, if your threatened "contempt motion" is simply based on your different interpretation of the Court's Order (or more precisely, my statements at the October 12 summary judgment hearing), then you are engaging i n a remarlcable reversal of position. In your previous correspondence, you have talten the position that you needed "clarification" of the Court's Order. Now, having previously represented to UNUM that you see some uncertainty about the meaning of the Court's Order, you claim that the Order is so clear that failure to see it your way constitutes contempt. David, UNUM has dealt in good faith with your client throughout this litigation. UNUM could have sought judgment, under a counterclaim, for the benefits that it undisputedly overpaid to Mr. DeFrancesco. ERISA insurers have often successf~~lly asserted such claims. E.g., Smith v. Metropolitan Life Ins. Co., 2004 WL 2526333 (D. Colo. 2004) (judgment for insurer on overpayment counterclaim). UNUM decided not to pursue such a claim here, to the real benefit of Ms. DeFrancesco. But this matter should now be over, If you persist, please be advised that UNUM may very well seek an award of fees and costs against you and/or Ms. DeFrancesco.

We respectfully demand that you reconsider your position. In any event, if there is some information you claim is due to your client, you owe it to UNUM to specify what that is, and to provide a reasonable response time, before you proceed.

of Holland & Hart MSB/b cc: Brent Williams, Esq.

LLP

3506369-1 .DOC