Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02344-RPM

Document 37-2

Filed 02/14/2006

Page 1 of 2

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

October 2 1, 2005
VIA PAX AND MAIL

David M. Herrera, Esq. David M. Herrera, LLC 3600 S. College Avenue Suite 204 Fort Collins, CO 80525 Re: Dear David: Pursuant to the Court's Order dated October 18, 2005, we write to provide you with an explanation of how, if at all, benefits payable under the relevant Plan would change if the 60% benefit percentage was applied, based upon amendment of the Policy effective October 1, 200 1. Applying a 60% benefit percentage (assuming for purposes of analysis that this percentage would have been applied to Mr. DeFrancesco's claim), the basic monthly benefit would have been $2,122.64. Two offsets would be applied: (1) the SSDI offset which we were litigating; and (2) the workers' comp offset, which was undisputed. The remaining monthly benefit, but for the overpayment resulting from SSDI retroactive payment, would have been $320.82. However, UNUM would have been entitled to offset this amount in order to recover the overpayment resulting from the abovereferenced SSDI retroactive payment, until the overpayment of $43,925.18 was recovered. See Oct. 1, 2001 Policy at p. 003 1 (LTD-CLM-2). That did not occur. Thus, no additional paylneilt is due. This is the same reason that Mr. DeFrancesco did not receive a "minimum benefit" under the Plan, even under the previous benefit calculation. The amended Policy provides that "Unum may apply this amount toward an outstanding overpayment." Policy at 0043. As I indicated at the hearing, UNUM has voluntarily decided not to pursue a claim or counterclaim for reimbursement. However, just as before, UNUM is entitled to offset any payments otherwise due to recover the overpayment. Obviously, in view
Holland & Hart u Attorneys at Law p
f ' l i o ~ l e(303) 290-1600 F a x (303) 290-1606 www.hollandhart.com 8390

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

E. Crescent Parkway Suite 4 0 0 Greenwood Village, Colorado 80111

Aspen Bllllngs Boise Boulder Cheyenne Colorado Springs Denver Denver Tech Center lackson Hole Salt Lake Clty Santa Fe

Case 1:03-cv-02344-RPM

Document 37-2

Filed 02/14/2006

Page 2 of 2

David M. Herrera October 2 1, 2005 Page 2 of subsequent developments, the full amount of the overpayment will never be recovered. The estate of Mr. DeFrancesco still reaps a substantial benefit from UNUM's decision not to pursue a claim for the remaining balance. Please feel free to contact me should you have any further questions.

of Holland & Hart

LLP

cc:

Brent C. Williams, Esq.

3467057-1 .DOC