Free Response to Motion - District Court of Colorado - Colorado

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Case 1:03-cv-02344-RPMr / r rDocument 37-3 xa/x&I s s : r r r n ~ s sooz

Filed 02/14/2006

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ATTORNEY COUNSELORAT & LAW 3600 South College, Suite 204 Fort Collins, CO 80525

FAX ONLY 303-290-1 606

November 13,2005
Mr. Michael S. Beaver, Esq. Holland & Hart LLP 8390 East Crescent Parkway, Suite 400 Greenwood Village, CO 801 11-2800 RE: DeFrancesco v UNUM, Civil -4ction No. 03-M-2344 (MJW)
Dear Mic,hael:

I have been giving careful consideration to your letter of October 21,2005 regarding the benefits due to the Estate of Clement DeFrancesco. With all due respect, I believe your analysis has a significant problem.
Ar the hearing before Judge Matsch, you stated that UNUM was not seeking reimbursement for any amounts overpaid because of SSDl benefits. As a result, The Court ordered that UNT,3I recalculate the

amount of monthly benefits owed to Mr. DeFrancesco, offset by the award of Social Security benefits under the terms of the amended policy with a effective date of October 1,2001. Yet, your letter is n offsetting due to overpayments, not just .for the difference between disability benefits and SSDI.

It seems to me that since UWM represented in open Court that it was foregoing recovery of overpayments, then UNUM cannot now claim an offset due to overpayments. UNUM was ordered to calculate the difference in monthly benefits and pay that difference to DeFrancesco. Do you think we need to ask for clarification from the Court?
My calculation is as follows:
Effective October 1,2001, the basic monthly benefit of $2,122.64 was reduced by $1,456.00 for a net amount per month due to DeFrancesco of $666,64. The monthly offset commenced on July 1,2002. I have attached a spreadsheet that shows my calculations including the recovery by UNUM of workers compensation. I calculate the amount due to be $15,558.09. I welcome your thoughts.

Sincere1y yours,
A

David M. Herrera

Fort Collins, Colorado 970-490-9999 @ Fax 970-472-5365 9 E-Mail: [email protected]

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Case XtI/X',LI C S : T T Rn,L E i L O O T 9 ON1:03-cv-02344-RPMT / l T Document SOOZ

37-3

Filed 02/14/2006

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DeFrancesco v. UNUM 03-M-2344 (MJW) Starting Month 711/2002 1

LTD Eleneftit
JulO1 2002 Aug 01 2002 Sep 01 2002 Oct 01 2002 Nov 01 2002 Dec 01 2002 Jan 01 2003 Feb 01 2003 Mar 01 2003 Apr 01 2003 May 03 2003 Jun 01 2003 Jut 01 2003 Aug 01 2003 Sep 01 2003 Oct 01 2003 Nav 01 2003 Dec 01 2003 Jan 01 2004 Feb 01 2004 Mar 01 2004 Apr 01 2004 May 01 2004 Jun 01 2004 JulO1 2004 Aug 01 2004 Sep 01 2004 Oct 01 2004 Nov 01 2004 Dec 01 2004 Jan 01 2005 Feb 01 2005 Mar 01 2005 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64 2,122.64

SSDl Setoff Difference Balance 666.64 1,456.00 666.64 666.64 1,333.28 1,456.00 1.999.92 1,456.00 666.64 2,666.56 1.456.00 666.64 3,333.20 1,456.00 666.64 3,999.84 1,456,OO 666.64 4,666.48 1,456.00 666.64 5,333.12 1,456.00 666.64 1,456.00 666.64 5,999.76 666.64 6,666.40 1,456.00 1,456.00 666.64 7,333.04 7,999.68 1,456.00 666.64 1,456.00 666.64 8,666.32 1.456.00 666.64 9,332.96 1,456.00 666.64 9,999.60 1,456.00 666.64 10,666.24 11,332.88 1,456.00 666.64 1,456.00 666.64 11,999.52 666.64 12,666.16 1,456.00 1,456.00 666.64 13.332.80 13,999.44 . 1,456,OO 666.64 14.666.08 1,456.00 666.64 1,456,OO 666.64 15.332.72 1,456.00 666.64 15.999.36 1,456.00 666.64 16,666.00 1,456.00 666.64 17,332.64 1,456.00 666.64 17,999.28 1,456.00 666.64 18,665.92 1,456.00 666.64 19.332.56 19,999.20 1,456.00 666.64 666.64 20,665.84 1,456.00 1,456.00 666.64 21,332.48 21,999.12 1,456.00 666.64
,

Less WC Overpayments

Adjusted Amount Due

-644 1-03 $15,558.09

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