Free Motion for Contempt - District Court of Colorado - Colorado

Case 1:03-cv-02344-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No: 03-M-2344 (MJW) CLEMENT J. DEFRANCESCO, JR. Plaintiff, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, A MAINE CORPORATION, Defendant.

MOTION FOR ISSUANCE OF CONTEMPT CITATION COMES NOW the Plaintiff estate, through its attorney David M. Herrera, and moves this Honorable Court to issue a contempt citation against the Defendant for indirect contempt of a court order pursuant to the Court's inherent power to enforce its orders and as grounds therefore, Plaintiff states as follows: 1. The undersigned certifies as required by D.C. Colo. L.R. 7.1A. that he has

attempted to confer with Defendant's counsel by electronic mail. Plaintiff's Counsel has also previously conferred through correspondence with Defendant's Counsel regarding this matter. Defendant's counsel has responded as to his clients' position opposing the Plaintiff's position. 2. The Court issued an Order in the above captioned matter dated October

18, 2005 entitled Order On Cross Motions For Summary Judgment. The Court's order stated that, "UNUM shall recalculate the amount of monthly benefits owed to Mr. DeFrancesco, offset by the award of Social Security benefits under the terms of the 1

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amended policy with an effective date of October 1, 2001, and the difference between this recalculated amount and the amount already paid to Mr. DeFrancesco shall be paid to the Estate." (emphasis added) 3. Defendant stated, in response to the Court's questioning, that "Unum has

elected not to pursue" overpayments. See, Page 3:12-14, CM/ECF document no. [#33]. TRANSCRIPT of Cross Motions for Summary Judgment held on 10/12/05 before Judge Richard P. Matsch. Prepared by: Federal Reporting Service, Inc. Pages: 1-40. (certified copy). 4. Later, the following colloquy occurred between the Court and Defendant's counsel: 1 THE COURT: And, then the--if I were to agree with the

2 defendant's position on that, and also affirm the setoff 3 decision in July, and if it is the fact, as I think it is,

4 that the benefits under the amended policy are different from S the I think it's 60 per cent instead of 50 per cent, you'd go 6 back and apply that to what the claimant--or what the insured 7 received from the date of the amendment? 8 MR. BEAVER: Absolutely, Your Honor. If there's been

9 some kind of calculational10 11 THE COURT: Yes. MR. BEAVER: --absolutely, it would be corrected. It

12 would be very small, because as a result of these offsets,

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13 Mr. DeFrancesco was entitled to receive, if anything, only a 14 minimum contract benefit. So, we'd be talking only a few 15 dollars a month. 16 17 THE COURT: Well, dollars are dollars. MR. BEAVER: Absolutely, Your Honor. If there's a

18 calculational error, it should be corrected. 19 THE COURT: Yes. All right. Well, I don't intend to do

20 calculations. I would just do it by instruction.... See, Page 34:1-20, CM/ECF document no. [#33]. TRANSCRIPT of Cross Motions for Summary Judgment held on 10/12/05 before Judge Richard P. Matsch. Prepared by: Federal Reporting Service, Inc. Pages: 1-40. (certified copy). 5. Referring to the October 12, 2005 hearing, Defendant's counsel clearly

intended to tell the Court that no collection of overpayments would be made. 1. 2. 3. 4. 5. THE COURT: Oh, and you waived that? MR. BEAVER: We're not going to pursue it Your Honor. THE COURT: All right. So, we're beginning in July, okay. MR. BEAVER: Right. THE COURT: It's clear now.

See, Page 26:1-7, CM/ECF document no. [#33]. TRANSCRIPT of Cross Motions for Summary Judgment held on 10/12/05 before Judge Richard P. Matsch. Prepared by: Federal Reporting Service, Inc. Pages: 1-40. (certified copy).

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On or about October 21, 2005, Defendant's counsel recalculated the amounts due but has refused to make such payment to the Estate, instead offsetting against amounts claimed to be overpaid. Exhibit 1 6. Plaintiff's counsel wrote back to Mr. Beaver explaining that the

calculations appeared to warrant a payment of $15,558.09 in accordance with the Court's order. Exhibit 2 7. Mr. Beaver replied on November 15, 2005, that Plaintiff's counsel had

misconstrued his words at the October 12, 2005 hearing and that it was not the intention of Unum to forego collection on the overpayment. Exhibit 3 8. Plaintiff's Counsel again wrote to Mr. Beaver seeking clarification and

asserting that both Mr. Beaver's oral representations and the Court's Order were clear and unambiguous requiring payment to Plaintiff of the calculated underpayment. Exhibit 4 9. Defendant's counsel wrote on November 23, 2005 asserting once again

that the plain language statements made to the Court were not intended. Exhibit 5 10. The Defendant is in contempt of the above stated court order in that it has

failed to comply with the Court's order. A district court has broad discretion in using its contempt powers to require adherence to court orders and a review of a district court's finding of contempt is limited to determining whether the court abused its discretion. O'Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d 1204, 1209 (10th Cir.1992); United States v. Riewe, 676 F.2d 418, 420-21 (10th Cir.1982). In civil contempt cases the proof of contempt must be clear and convincing. Heinold Hog Market, Inc. v. McCoy,

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700 F.2d 611, 614 (10th Cir.1983); United States v. Professional Air Traffic Controllers Organization, Local 504, 703 F.2d 443, 445 (10th Cir.1983). To make a prima facie showing of contempt, however, the party seeking a finding of contempt bears the burden of persuading the court of defendant's failure to comply, and need not prove ability to comply. Heinold at 615. The defendant then bears the burden of producing sufficient detailed evidence of inability to comply. Id. The party seeking a finding of contempt would then have the additional burden of persuading the court the defendant is able to comply. Id. In this case, it is clear that Defendant`s Counsel intended to and did lead the Court and Plaintiff's Counsel to believe that there would be no attempt to collect overpayments. There is now no doubt that Plaintiff has offset monthly benefits against overpayments in direct contradiction to his statements to the Court and contrary to the Court's Order. The choice to waive collection of overpayments was made by Defendant's counsel. Generally speaking, a party who takes deliberate action with negative consequences ... will not be relieved of the consequences [by Rule 60(b)(1) ] when it subsequently develops that the choice was unfortunate." 7 Moore, Federal Practice ¶ 60-22 [2], p. 60-182. Similarly, Rule 60(b)(1) relief is not available for a party who simply misunderstands the legal consequences of his deliberate acts. In Otoe County Nat'l Bank v. W & P Trucking, 754 F.2d 881, 883-84 (10th Cir.1985) Cashner v. Freedom Stores, Inc. 98 F.3d 572, *577 (C.A.10 (N.M.),1996)

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WHEREFORE, the Plaintiff prays that the Court find that the Defendant UNUM Life Insurance Company Of America is in contempt of the October 18, 2005, court order and that the Court issue a contempt citation to Defendant UNUM Life Insurance Company Of America regarding this matter. The Plaintiff also prays that the Court will find in favor for the Plaintiff for reasonable sanctions including damages related to this matter. Respectfully submitted the 25th day of January, 2006 The Law Office of David M. Herrera /s/David M. Herrera, #12818 Law Office of David M. Herrera 3600 South College Avenue Suite 204 Fort Collins, Colorado 80525 Phone Number (970) 498-9999 Fax Number (970) 472-5365 E-Mail: [email protected] CERTIFICATE OF SERVICE I hereby certify that on this 25th day of January, 2006, I electronically filed the foregoing MOTION FOR ISSUANCE OF CONTEMPT CITATION with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael Beaver [email protected] /s/David M. Herrera___________________ David M. Herrera Law Office of David M. Herrera, LLC 3600 S College Avenue Suite 204 Fort Collins, CO 80525 Telephone: 970-498-9999 Fax: 970-472-5365

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