Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02344-RPM

Document 37-4

Filed 02/14/2006

Page 1 of 2

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

[email protected]

November 15,2005

VIA FAX AND MAIL
David M. Herrera, Esq. David M. Herrera, LLC 3600 S. College Avenue Suite 204 Fort Collins, CO 80525
Re:

DeFrancesco v. UNUM Life Insurance Company of America, United States District Court for the District of Colorado

Dear David:

I have received your letter purportedly dated November 13 (although it is so dated, it is clear from the fax cover sheet that it was not in fact sent to this office until today). Your letter completely misconstrues both UNUMYsintent, and my words at the hearing on October 12. UNUM had the option of pursuing the estate of Mr. DeFrancesco for the remaining overpayment of at least $40,000.00. UNUM and other ERISA plan insurers have successfully sought to recover such overpayments in many other cases. Here, strictly as a humanitarian gesture, UNUM decided not to seek reimbursement of remaining amounts by instituting an action against the estate, in light of the circumstances.
It is deeply disappointing that, after UNUM took this unilateral step to the benefit of your client, you would now seek to misconstrue my words so as to result in something completely unintended. It is clear that, even after applying a 60% benefit percentage, UNUM still substantially overpaid benefits to Mr. DeFrancesco. Not only does your approach twist my words, but it ignores all logic; why would UNUM give up not only the right to recover the overpayment, but also give up the right to offset benefits that had already accrued? The proceeding before the Court on October 12 was not a settlement conference; it was a hearing on summary judgment motions. Statements made to the Court obviously did not constitute offers to "compromise." Frankly, I don't believe that any clarification from the Court is necessary. I am not at all certain how the Court would have jurisdiction to provide such "clarification." The time for filing a motion to amend the judgment under Rule 59 has now passed, although you had ample information to make such a motion within the time allowed by
Holland 81Hart UP Attorneys at Law
Phone (303) 290-1600 F a x (303) 290-1606 www.hollandhart.com 8390 E. Crescent Parkway S u l k 400 Greenwood Village, Colorado 80111 Aspen Billings Bo~se Boulder Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Salt Lake City Santa F

Case 1:03-cv-02344-RPM

Document 37-4

Filed 02/14/2006

Page 2 of 2

David M. Herrera November 1 5,2005 Page 2 that Rule if you had so chosen . However, if somehow you can now reopen this matter, I certainly stand ready to defend my words before Judge Matsch, and to explain why your current argument constitutes gross overreaching. If you elect this route, please advise how you plan to proceed. Finally, as long as we are on the subject of statements made by counsel, I note that you have previously informed my paralegal, Gina Nuzzo, that your client accepted UNUM's offer (extended to 'you by my email dated October 25) to forego costs in exchange for your client bringing an end to this action. Based upon your statements to Ms. Nuzzo, we prepared a settlement document and forwarded it to you on November 3. We apparently will have to look into whether your statements constitute a binding and enforceable agreement to settle. Unfortunately, Ms. Nuzzo had surgery last week, and is not currently available to provide me with a complete account concerning your statements. 1 will obtain that information as soon as possible, and will inform you as to our intentions.

~ i c h a k S. Beaver, P.C. l & of ~ o l l a n d Hart LLP MSB/b cc: Brent C. Williams, Esq.