Marcia Chambers Photo
Walsh,DaRos,Opie
The Branford Board of Selectmen Wednesday night approved an “offer to compromise” that could lead to two last financial reckonings in the controversial Tabor case — a $3 million settlement with the Marcus Law Firm and a $4.5 million settlement with the town’s insurance carriers.
The “offer” is a legal procedure that paves the way for the town to reach a settlement with the town’s former law firm and its insurance companies in cases that began two years ago. The town sued the Marcus Law Firm back then for malpractice in the way it handled the Tabor eminent domain case.
“This is an effort to encourage settlement,” said town attorney William H. Clendenen, Jr. after he, R. Bartley Halloran, who represents the town in the Marcus case, and the three selectmen held a 25-minute executive session meeting Wednesday night at the Canoe Brook Senior Center. Republican Third Selectman John Opie, who has publicly pressed for settlement in the Marcus case, provided the unanimous board vote.
The Tabor case began in 2003 when the town moved to take by eminent domain 77 acres of open space on Tabor Drive because of its proximity to the town’s contaminated town dump. New England Estates, (NEE) a developer hoping to build condos there, sued the town after the town seized the land. It won a $12.4 million judgment at the trial level. The Connecticut Supreme Court unanimously overturned that judgment in what was a major victory for the town. NEE recently sought to get the case before the United States Supreme Court, but eventually agreed to a settlement with the town. The original case is now formally over.
Now these final two lawsuits are front and center. If the offers are accepted, and they may not be, these cases would be the last legal business in the drawn-out saga of lawsuits and local controversies that arose out of the Tabor case.
The Marcus Law firm and the insurance companies have 60 days to answer or the offer lapses. If the offer is accepted, “then it is over. That is why I had to go to the board of selectmen for approval,” Halloran said. His specialty is legal malpractice.
If the offers are rejected then after trial the court examines the record to determine if the town made an offer of compromise which the defendant failed to accept. The statute says “if the plaintiff recovers an amount equal to or greater than the sum specified in the offer of compromise, then the court shall add to the amount so recovered eight percent annual interest on said amount….”
“It is mandatory,” Halloran said in an interview in the hallway. The reason for an offer of compromise, the attorneys said, is to put the interest issue on the table. Interest adds up and this is one way to pressure the law firm and the insurance companies to think hard about the offer, the attorneys observed.
The Marcus Suit
The Marcus Law firm inherited the Tabor cases when Ed Marcus became town counsel in 2005. The case was handled by two different law firms at the time. He took both cases, assigning them to David Doyle, his chief litigator. After the $12.4 million jury verdict, the town of Branford sued the Marcus Law Firm, asserting the firm engaged in legal malpractice that led to the multi-million jury judgment against the town.
When the lawsuit against his firm was filed, Marcus accused DaRos of playing politics and said his firm had been treated “in a vindictive and malicious fashion. “ The town’s lawsuit asserts that the Marcus firm failed to keep their client, the town, and subsequent attorneys informed of key dates and actions regarding expert witnesses in the Tabor case and that its records were incomplete and disorganized. Marcus rejects this version of the events.
In the two years of litigation against the Marcus law firm, the firm’s attorneys, Murolo & Murolo of Cheshire, have moved slowly and cautiously in producing evidence. Court papers show repeated efforts on Halloran’s part to get information as part of the routine discovery process. The firm has dragged its feet on two key fronts: depositions and producing records connected to the case, including e- mails, calendars, telephone records and other key documents.
For example, Doyle’s attorneys did not make it easy for him to be deposed, a required step in a civil action. According to court records, Halloran noticed Doyle’s deposition on December 11, 2008, four months after the lawsuit was filed. Doyle was scheduled to be deposed on February 10, 2009. His attorney canceled the deposition. Next Doyle was supposed to be deposed on May 28, 2009. His attorney canceled that one as well. He was next scheduled for June 24, 2010, and was again canceled by his attorney. He was eventually deposed under oath but it took numerous court filings to get there.
At one point Halloran argued to the court that Attorney George Royster of Halloran & Sage in Hartford, the town’s chief malpractice expert in the Marcus case, could not complete his final evaluation of the Marcus firm and issue his report until he was able to review “the calendars and other documents withheld by the Marcus Law Firm.” Halloran asked the court in Oct. 2009, to require the law firm to provide the documents.
Six months later, in April, 2010, Royster issued his report. It found that Branford lost the Tabor court case and faced a $12.4 million jury judgment because it relied on negligent lawyers. Royster will testify at trial if the case is not settled.
Halloran told reporters that he learned only a few weeks ago that the Marcus Law Firm’s insurance policy was in the amount of $3 million. That may account for the delay in filing the offers of compromise.
The Arrowood Case
In a second case, this one against the town’s insurers, the selectmen approved another “offer to compromise” to allow Arrowood Indemnity Co. and American Alternative Insurance Co., (AAI) its umbrellas company, to settle their case for $4.5 million.
The town’s insurance coverage in 2003 did not include eminent domain takings. However, the town has sued to recover funds based on a secondary case, one brought by New England Estates to build the hundreds of condos it wanted to build on the Tabor site. This case centered on purported violations of the developer’s civil rights. It is this case that the town has cited in seeking insurance compensation.
AIA maintains it does not have to pay claims involving eminent domain.
A Third Settlement, Too?
A third offer of compromise involves the H.D. Segur Insurance Co., the town’s insurance agent. The town’s attorneys said Wednesday that it didn’t matter to them whether AAI or Segur or AAI paid the $4.5. million to end the case. They could also split the difference. There is a dispute between the two companies over which one is responsible, Clendenden said. AAI says it did not receive notice about the Tabor lawsuits from the Segur agent.
Segur is also charged with filing late, an action that also precludes insurance coverage.
“The time is ripe,” Clendenen said as he left the meeting.
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"John Opie, who has publicly pressed for settlement in the Marcus case,"
An interesting choice of words....
It was I who questioned what legal opinion was rendered prior to launching this ill-conceived, and potentially very costly venture. Billing records would indicate that no actual research was done until long after the suit was launched.
Once set in motion and the Town committed, the tax payers had better hope we win. It is somewhat akin to having a tiger by the tail...the ramifications of letting go (or losing) can be devastating.
Voting in favor of the offer to settle should not be considered as support for the law suit but instead simply a procedural matter. Should we, by some chance win and the award exceed the offer amount, it would be in the best interest of the Town. Should we lose, it has no impact what so ever.