Ooida Risk Retention Group v. Bourdeaux, et al

MOTION for Summary Judgment re Breach of Contract and Duty to Cooperate

D. Neb.June 22, 2017

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Scott W. McMickle, Esq. Admitted Pro Hac Vice Casey D. Baker, Esq. (NSBN 9504) McMICKLE, KUREY & BRANCH, LLP 200 S. Main Street Alpharetta, GA 30009 Telephone: (678) 824-7800 Facsimile: (678) 824-7801 swm@mkblawfirm.com cbaker@mkblawfirm.com Matthew C. Addison (NSBN 4201) McDONALD CARANO WILSON LLP 100 West Liberty Street, 10th Floor Reno, Nevada 89501 Telephone: (775) 788-2000 Facsimile: (775) 788-2020 maddison@mcdonaldcarano.com Attorneys for Plaintiff OOIDA Risk Retention Group, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA OOIDA RISK RETENTION GROUP, INC. Plaintiff, vs. MARC A. BORDEAUX, an individual; ROBERT M. BURTS, an individual; DOES 1- V, Defendants. Case No.: 3:15-cv-00081-RCJ-VPC OOIDA’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON BURTS’S BREACH OF CONTRACT AND GOOD FAITH AND FAIR DEALING CLAIM AND OOIDA’S DUTY TO COOPERATE CLAIM Plaintiff OOIDA Risk Retention Group, Inc. (“OOIDA”) hereby moves the Court for partial summary judgment on Burts’s Breach of Contract and Good Faith and Fair Dealing claims and OOIDA’s Duty to Cooperate Claim. This opposition is based on the points and authorities below, all papers and pleadings on file herein, and all argument and evidence adduced at the several hearings in this case. Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 1 of 25 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 POINTS AND AUTHORITIES I. INTRODUCTION Burts concedes, and in fact, argues that there were and are no factual issues regarding the applicability of the employment exclusions in OOIDA’s policy. Thus, any discovery conducted by defense counsel Christian Moore (“Moore”) and Richard Verlander (“Verlander”) in the underlying tort suit was irrelevant to the applicability of those exclusions. Accordingly, since there were no factual issues litigated in the underlying tort suit that would control the outcome of the employment exclusions, there was no actual conflict of interest. Without an actual conflict of interest, no duty to appoint Cumis/Hansen counsel could have arisen, and no breach of the duty to defend could have occurred. As a result, Burts’s breach of contract and breach of the duty of good faith and fair dealing claims fail. In addition to Burts’s concession that there are no fact questions, and, therefore, no actual conflict of interest, it is notable that Burts’s counsel never told Moore or OOIDA that any conflict allegedly existed. Also, Moore, when confronted with all of these facts, has clearly stated that no conflict existed. 1 Moreover, Burts’s counsel acknowledge that they are not aware of anything that Moore did that was improper or otherwise breached any duty that Moore owed to Bordeaux. Furthermore, it is undisputed that OOIDA did not interfere with or direct the discovery process in any way, however slight. Instead of acknowledging the foregoing, Burts’s counsel has sought to inundate the Court with irrelevant and mischaracterized facts that have no relevance to the precise legal issue before 1 Mr. Moore has impeccable ethical credentials, and is keenly aware of when and under what circumstances he would have a conflict of interest. (See OOIDA’s Undisputed Fact No. 7, below.) Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 2 of 25 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Court, i.e., was an actual conflict of interest present that obligated OOIDA to offer independent counsel to Bordeaux? The answer is simple, if there are no factual disputes (which Burts admits) that controlled the outcome of the employment exclusions in OOIDA’s policy, there was no actual conflict of interest. Moreover, it is beyond dispute that neither the filing of a declaratory judgment action nor defending its insured under a reservation of rights can constitute a breach of an insurer’s duty to defend. Thus, none of Burts’s allegations, whether taken together or separately, can justify or excuse Burts’s breach of his duty to cooperate by settling the case without OOIDA’s consent. In any event, even though OOIDA prevails as a matter of law on these bases, OOIDA suggests that consideration of this Motion and any of the other motions addressing coverage issues would not be an efficient use of the courts resources until after it has first considered OOIDA’s Motion for Summary Judgment to Bar the Enforceability of any Future Judgment Obtained by Burts (ECF No. 190). This is because, if the Court determines that no future judgment can ever be enforceable against OOIDA, all coverage issues become moot and the case simply ends. II. STATEMENT OF UNDISPUTED MATERIAL FACTS A. OOIDA’s Statement of Undisputed Material Facts OOIDA submits that the following material facts are undisputed or cannot reasonably be disputed. 1. On May 1, 2014, Burts filed a complaint against Bordeaux (and others) seeking to recover for injuries allegedly resulting from a motor vehicle accident that occurred on July 19, 2013 in Mercer County, Pennsylvania (the “Underlying Lawsuit”). (ECF No. 30 at ¶ 12; ECF No. 32 at ¶ 9.) Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 3 of 25 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. At the time of the accident described above, there was in place a Liability Policy numbered PL199510834C, issued by OOIDA to MARC A. BORDEAUX dba GRAPHIC CONCEPTS as the named insured (“Policy”). (ECF No. 32 at ¶ 7; ECF No. 36.) 3. OOIDA hired attorney Moore and his firm (which included Burts’s counsel’s wife, Donna Glogovac, working directly with Moore on the defense of the case)2 (who had no prior relationship with OOIDA) to defend Bordeaux in the underlying tort suit prior to Bordeaux settling that case without OOIDA’s knowledge or consent. (ECF No. 30 at ¶¶ 16-18; see also ECF No. 36-2 at 2.) 4. Moore and Verlander were generally aware of the declaratory judgment action but never received a copy of the ROR either prior to or while they were representing Bordeaux. (See Transcript of Motion for Sanctions on May 3-4, 2017, a true and correct copy of the relevant portions of which is attached hereto as EXHIBIT “1,” at 55:6-11; 72:2-22; see also Deposition of Richard Verlander, a true and correct copy of the relevant portions of which are attached hereto as EXHIBIT “2” at 20:3-21:20.) 5. OOIDA did not have any input into or control over any discovery conducted by Moore and Verlander in the tort suit, nor did OOIDA do or instruct Moore and Verlander to do anything improper, however slight, in their defense of Bordeaux. (Exhibit “2” at 7:11-25; see also Deposition of Christian Moore, a true and correct copy of the relevant portions of which are attached hereto as EXHIBIT “3” at 17:12-18:14; 29:3-18.) 2 Mrs. Glogovac testified that OOIDA did nothing improper, however slight, and that OOIDA had no input in the handling of the tort suit. (See Deposition of Donna Glogovac, a true and correct copy of the relevant portions of which are attached hereto as EXHIBIT “10” at 9-10.) Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 4 of 25 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. OOIDA’s coverage counsel, Marsha Stephenson (“Stephenson”), did not have any input into or control over any discovery conducted by Moore and Verlander in the tort suit, nor did Moore or Verlander ever collaborate with Stephenson or OOIDA regarding discovery in order to defeat coverage. (Exhibit “2” at 11:9-13:8; Exhibit “3” at 70:16-72:9.) 7. Neither Bordeaux, Burts’s attorneys, nor Robert Cox (“Cox”) ever claimed or suggested to Moore or Verlander that they were improperly using discovery in the tort suit to develop coverage defenses for OOIDA to the detriment of Bordeaux, or that they had done or were doing anything improper in their handling of the case. (Exhibit “2” at 13:12-14:19; 15:7-15. Exhibit “3” at 16:23-17:4; 38:22-25; 47:16-23; 49:24-51:9; 52:13-53:1; 54:2-21; 57:1-58:19; 68:18-23.) 8. Neither Bordeaux, Burts’s attorneys, nor Cox ever informed Moore that he had a conflict in his representation of Bordeaux. (Exhibit “3” at 19:23-20:3.) 9. Moore, who is a former 12-year (the lifetime limit) member of the Northern Nevada Disciplinary Board and has regularly lectured attorneys on the topic of ethics, testified unequivocally as recently as the May 3, 2017 hearing that he did not believe (and even with the benefit of hindsight and specific knowledge of Burts’s counsel’s claims, still does not believe) he had a conflict of interest as a result of any discovery he and Verlander were conducting. (See Exhibit “3” at 24:22-25:6; 38:6-14; see also, Exhibit “1” at 81:4-23.) 10. Burts’s counsel, through their attorney, as recently as the May 3, 2017 hearing, confirmed their position that Moore had a “blatant conflict of interest” in his representation of Bordeaux, even though they had never informed him of same. (See Exhibit “1” at 94:18-20.) 11. Nevertheless, Burts’s counsel acknowledge that they are not aware of anything that Moore did that was improper or otherwise breached any duty that Moore owed Bordeaux. Scott Glogovac (“Glogovac”) stated as follows at Moore’s deposition: Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 5 of 25 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q Did it surprise you that Mr. Glogovac is asserting you violated rules of ethics in your representation of Mr. Bordeaux? MR. GLOGOVAC: I’ve never made such an assertion, for the record. I’m not defending this deposition or handling it, but that’s an outright misstatement, Mr. McMickle, and you know it. MR. MCMICKLE: I don’t know it. (See Exhibit “3” at 51:14-21.) 12. Neither Bordeaux, Burts’s attorneys, nor Cox ever demanded, requested, or intimated to Moore that OOIDA must or should provide Cumis/Hansen counsel for Bordeaux in the tort suit. (Exhibit “3” at 68:24-69:16.) 13. Cox was and is a personal friend of Burts’s attorney, Thomas Brennan (“Brennan”). (See Deposition of C. Robert Cox, a true and correct copy of the relevant portions of which are attached hereto as EXHIBIT “4” at 12:18-20.) 14. At the request of Burts’s attorneys, and in particular Brennan, Cox represented Bordeaux for purposes of consummating his settlement with Burts and thereby resolving and assigning any claims Bordeaux may have had against OOIDA. (Exhibit “1” at 84:16-86:17; Exhibit “3” at 46:19-49:23; Exhibit “4” at 8:3-7; 12:12-14; 27:10-21.) 15. On or about July 1, 2015, while OOIDA was still defending Bordeaux in the Underlying Lawsuit pursuant to a reservation of rights, Burts and Bordeaux entered into a Stipulated Settlement Agreement without OOIDA’s consent or knowledge, settling the liability claims asserted in the Underlying Lawsuit. (ECF No. 30 at ¶ 18; ECF No. 36-2 at 2; ECF No. 32 at ¶ 13.) Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 6 of 25 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. Cox, on behalf of Bordeaux, in a July 6, 2015 email in response to Moore’s and Verlander’s letter dated July 2, 2015, instructed Moore and Verlander not to contest Burts’s damages at the September 10, 2015 prove up hearing. (True and correct copies of the above- referenced letter and email are attached hereto as EXHIBIT “5”.) 17. In response to Cox’s email, Moore and Verlander wrote Cox on July 6, 2015, informed him that they were withdrawing from their representation of Bordeaux, and requested that Cox substitute himself in as Bordeaux’s counsel in the tort suit. (A true and correct copy of the above-referenced July 6, 2015 letter is attached hereto as EXHIBIT “6”.) 18. As part of what Sean Rose described as a “nice connive” designed to “put the turd” in OOIDA’s pocket, Cox, in a letter dated July 8, 2015 that was substantially drafted by Brennan, refused to substitute himself in as defense counsel in the tort suit. (True and correct copies of the July 8, 2015 letter and the July 7, 2015 email from Brennan drafting it, along with the “nice connive” email, are attached hereto as EXHIBIT “7”.) 19. Cox did not undertake to provide any defense to Bordeaux in the tort suit. (Exhibit “4” at 8:19-23, 27:10-21; Exhibit “7”.) 20. On September 6, 2016, Burts and Bordeaux inexplicably filed a stipulation in the state court vacating the state court judgment. (See ECF No. 110-1, at page 56 of 71.) III. LAW AND ANALYSIS A. Standard of Review Summary judgment is appropriate only when the record, read in the light most favorable to the non-moving party, shows “there is no genuine issue as to any material fact and … the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those necessary to the proof or Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 7 of 25 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defense of a claim, as determined by reference to substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). B. OOIDA Did Not Breach its Duty to Defend Burts’s breach of contract claim and breach of good faith and fair dealing claim are both based on the following substantive allegations: 9. […] OOIDA advised Bordeaux that it would provide a defense to him in the Underlying Action. While a lawyer was subsequently retained by OOIDA for Bordeaux in that action, OOIDA engaged in numerous actions that were contrary to the interests and reasonable expectations of Bordeaux, including, but not limited to: (i) wrongfully asserting numerous inapplicable or unenforceable defenses to coverage; (ii) based upon those provisions, maintaining its purported right at any time to refuse to defend and/or indemnify Bordeaux in the Underlying Action; (iii) asserting the right to seek reimbursement from Bordeaux of all loss, costs and expenses it incurred in the Underlying Action; (iv) instituting this federal court action seeking, based upon the above-referenced inapplicable or unenforceable defenses to coverage, to deny any defense or indemnity obligation to Bordeaux in the Underlying Action; and (v) improperly attempting to utilize defense counsel purportedly retained to represent Bordeaux’s interests in the Underlying Action to further its interests in this action. 10. This conduct by OOIDA unfairly and unreasonably exposed to [sic] Bordeaux to substantial personal liability and potential financial devastation in the Underlying Action. Bordeaux was thus left with no reasonable alternative other than to attempt to protect and preserve his financial interests through settlement negotiations with Burts. 11. Bordeaux thus consulted independent counsel, and, with the assistance of that counsel, and incomplete good faith, entered into the July 1, 2015 Settlement Agreement with Burts. […] (Answer to First Amended Complaint and Counterclaim, ECF No. 32 at 9.) Notably, Burts’s counterclaim does not contain even a single allegation that could be reasonably construed to raise a claim or issue of OOIDA failing to provide independent counsel for Bordeaux. Nevertheless, Burts has summed up his claim as follows: Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 8 of 25 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “[…] Ooida breached the insurance contract and, in particular, it’s duty to defend, and its duty of good faith and fair dealing by refusing to provide Bordeaux with Cumis/Hansen counsel after an actual conflict of interest arose due to defense counsel engaging in discovery that allowed it to control the coverage issue, coupled with Ooida defending under a reservation of rights and having filed this declaratory relief action.” (ECF No. 179 at 12:19-23 (emphasis added).) “The coverage issue” referred to by Burts is the applicability of the employment exclusions in the Policy. However, as proven below, no conflict was possible under the undisputed facts of this case, and no duty to appoint Cumis/Hansen counsel was ever triggered. As a result, no breach by OOIDA was possible, and Burts’s claims therefore fail. 1. Cumis/Hansen Counsel was not Required Because No Conflict of Interest Existed In both Nevada and California an insured may demand independent defense counsel, paid for by the insurer, when retained defense counsel has an actual conflict of interest in his dual representation of the insurer and the insured. See Gray Cary Ware & Friedenrich v. Vigilant Ins. Co., 114 Cal. App. 4th 1185, 1190, 8 Cal. Rptr. 3d 475 (Ct. App. 2004) (where “an insurer provides a defense under a reservation of rights, a conflict of interest may arise between the insurer and its insured, providing the insured with the right to demand independent counsel.”). In California, such counsel is commonly known as Cumis counsel, after the case of San Diego Navy Federal Credit Union v. Cumis Insurance Society, Inc., 208 Cal. Rptr. 494, 162 Cal. App. 3d 358 (Ct. App. 1984). In California, Cumis was ultimately superseded and codified by statute at Cal. Civ. Code § 2860, which provides in pertinent part as follows: For purposes of this section, a conflict of interest does not exist as to allegations or facts in the litigation for which the insurer denies coverage; however, when an insurer reserves its rights on a given issue and the outcome of that coverage issue can be controlled by counsel first retained by the insurer for the defense of the claim, a conflict of interest may exist. Cal. Civ. Code § 2860(b) (emphasis added). Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 9 of 25 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nevada adopted the Cumis rule and the California approach in 2015 in the case of State Farm Mutual Automobile Insurance Co. v. Hansen, 131 Nev. Adv. Op. 74, 357 P.3d 338 (Sept. 24, 2015).3 Substantively, [T]he Cumis rule is not based on insurance law but on the ethical duty of an attorney to avoid representing conflicting interests. For independent counsel to be required, the conflict of interest must be significant, not merely theoretical, actual, not merely potential. James 3 Corp. v. Truck Ins. Exch., 91 Cal. App. 4th 1093, 1101 (2001), as modified (Aug. 23, 2001) (emphasis added). Consistent with Cal. Civ. Code § 2860, a conflict may be present “where the insurer reserves its rights on a given issue and the outcome of that coverage issue can be controlled by the insurer's retained counsel.” James 3 Corp., 91 Cal. App. 4th at 1101 (emphasis in original). But it is clear that […] not every conflict of interest entitles an insured to insurer-paid independent counsel. Nor does every reservation of rights entitle an insured to select Cumis counsel. There is no such entitlement, for example, where the coverage issue is independent of, or extrinsic to, the issues in the underlying action […] Id. at 1102. Importantly in this case, The duty to appoint independent counsel is not triggered at the moment defense counsel makes a tactical decision giving rise to a conflict. Instead, the parties' respective interests must be analyzed to determine if they can be reconciled or if there is a conflict of interest which puts appointed counsel in the position of having to choose which master to serve. Fed. Ins. Co. v. MBL, Inc., 219 Cal. App. 4th 29, 42, 160 Cal. Rptr. 3d 910 (2013) (emphasis added). 3 Hansen was not decided until September 2015. Thus, the law in Nevada was unsettled at the time Burts alleges a conflict arose in this case. Nevertheless, the undisputed facts show that Burts’s claim fails, in any event, because no conflict in fact existed. Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 10 of 25 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. No Fact Issues Exist Regarding the Employment Exclusions Burts concedes, and indeed argues, that no fact issues exist as to whether or not the employment exclusions apply in this case.4 (See Burts’s Motion for Partial Summary Judgment Re: “Employment” Exclusions, ECF 177.) In his Motion, Burts states: This motion is made on the ground that no genuine issue of material fact exists with respect to the “employment” exclusions, and that, as a matter of law, none of those exclusions is applicable to Burts’ state court personal injury claims against Bordeaux. (Id. at 2:8-10.) Burts further states “the ‘employment’ exclusions to the liability coverage of Bordeaux’s policy with OOIDA are not, as a matter of law, applicable to Burts’ state court personal injury claims against Bordeaux,” (id. at 4:23-25) (emphasis added), and “Burts is therefore entitled to judgment as a matter of law that the ‘employment’ exclusions to the liability coverage of Bordeaux’s policy do not preclude coverage for his state court personal injury claims against Bordeaux” (id. at 24:21-23) (emphasis added). This admission and argument by Burts ends the inquiry and is fatal to his case. As noted above, in order for a conflict of interest to exist defense counsel must be able to control the outcome of the coverage issue through discovery or otherwise. James 3 Corp., 91 Cal. App. 4th at 1101 (2001). If, as both parties agree, there are no factual issues related to the applicability of the employment exclusions and that determination can be made as a matter of law, then Moore and Verlander could not possibly have controlled the outcome of that coverage issue through any means, including discovery. Accordingly, they could not possibly have been conflicted in their dual representation of OOIDA and Bordeaux such that they were ever put in the position of having to choose which master to serve. Fed. Ins. Co., 219 Cal. App. 4th at 42. 4 As discussed in OOIDA's Motion for Partial Summary Judgment on the employment exclusions filed on June 22, 2017 (ECF No. 189), OOIDA agrees with Burts that no factual issues exist with regard to those exclusions, but disagrees as to their applicability. Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 11 of 25 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Bordeaux Denied the Precise Fact Burts Claims his Counsel Were Attempting to Establish Even if that issue could have been controlled by Moore and Verlander, the facts show unequivocally that if there was ever any confusion about whether or not Burts’s employment status was going to be an issue that was litigated in that case, all doubt was removed by Moore when, early in the case, he responded to the following discovery request from Burts: If you contend that ROBERT M. BURTS was your employer or an employee of Graphic Concepts on July 19, 2013, produce any documents which demonstrate the existence of such a relationship. Moore, on behalf of and at the direction of Bordeaux, responded as follows: A response is not required because this responding Defendant does not make the above stated contention. (See Defendant’s Response to First Request for Production of Documents, a true and correct copy of which is attached hereto as EXHIBIT “8” at 2; see also Moore’s handwritten notes, true and correct copies of which are attached here as EXHIBIT “9”; see also Exhibit “3” at 26:21- 27:21, where Moore explains that he received that information from Bordeaux.) Graphic Concepts, the DBA of Bordeaux, was a named insured. As such, Moore, whom Burts alleges was somehow able to “control” the issue and was attempting to defeat coverage under the employment exclusions, took the unequivocal position in discovery that no employee- employer relationship existed between the parties. According to Burts, the absence of that legal relationship means that the employment exclusions cannot possibly apply to preclude coverage as a matter of law. (See Burts’s Motion for Partial Summary Judgment Re: “Employment” Exclusions (ECF 177) at 3:16-19 (“These exclusions have one basic component in common: the person making the claim against the ‘insured’ must have been an employee of the ‘insured; in connection with the accident or loss out of which that person’s claim arises. If no such Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 12 of 25 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employment relationship existed, none of the exclusions applies.”).) This single discovery response by Moore on behalf of Bordeaux defeats Burts’s entire argument and completely negates the allegation in paragraph 9(v) of his counterclaim that OOIDA was “improperly attempting to utilize defense counsel purportedly retained to represent Bordeaux’s interest in the Underlying Action to further its interests in this action.” (See also Exhibits “2” and “3”, where Moore and Verlander each unequivocally deny any collusion or improper interactions with OOIDA or Stephenson as alleged.) With respect to this particular allegation, Burts has offered only speculation, innuendo, and unsupported accusations that any such activity ever took place. In fact, Burts’s entire argument is truly incredible. Without so much as a shred of proof of wrongdoing in support of his claim, Burts asks the Court to conclude that OOIDA, which was not involved in the discovery process in the tort suit (and should not be, according to Burts), should somehow have been able to identify and act upon a purported conflict of interest that was never brought to its or its retained counsel’s attention by Bordeaux or Burts’s lawyers, and that Moore himself did not believe existed. Burts’s position is not only internally inconsistent, it simply defies logic. In any event, because Burts cannot produce any admissible evidence to contradict Moore’s and Verlander’s testimony his claim must fail. c. Any Conflict was Merely Theoretical and Burts’s Employment Status was Never a Litigated Issue in the Case Burts’s own argument and Moore’s unrefuted testimony show that: (1) any conflict of interest was theoretical, at best; and (2) no actual conflict ever could have developed as a result of defense counsel’s discovery activity because whether a legal employer-employee relationship existed between Burts and Bordeaux was extrinsic to the actual issues in the tort suit. Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 13 of 25 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, Burts has repeatedly argued that the discovery being conducted by Moore and Verlander about the relationship between Burts and Bordeaux was not in any way relevant to the underlying tort action. (See, e.g., ECF No. 135 at 14, n.6 (“[t]he existence of such a relationship would do nothing to eliminate Bordeax’s liability…”); see also ECF No. 179 at 6:9-10 (“[w]hether they are partners, siblings or whatever relationship is irrelevant to Bordeaux’s liability for Burts’s injuries.”).) But Burts either fails to grasp, or is intentionally muddying, the difference between the issue Moore and Verlander were actually litigating (i.e., the broad nature of the relationship between Burts and Bordeaux) and the issue he argues would trigger a defeat of coverage (i.e., a legal employer-employee relationship). To the extent Burts believes the latter to be irrelevant in the tort suit, he is correct. At his deposition, Moore testified as follows: THE WITNESS: […] the relationship between Mr. Burts and Mr. Bordeaux was an integral fact to the circumstances to the accident, and whether or not there was a legal status of employer-employee, that’s a nonissue. We don’t care about that. What we do care about is, if it comes to the point of having to explain to the jury why in the heck are those guys together to begin with at the time of the accident, what is it about the relationship what would give leverage by Mr. Burts, the plaintiff, over my client, Mr. Bordeaux, so that Mr. Bordeaux found himself in the circumstances that he did, maybe that relationship could have come up, but as far as drawing a legal conclusions, we weren’t drawing any legal conclusions. (Exhibit “3” at 28:3 - 28:17) (emphasis added). At the May 3, 2017 hearing in this matter, Moore added further context to his previous testimony when he testified in response to the Court’s inquiry as follows: Okay. So one of the statements that Mr. Burts' counsel in this case has repeatedly made is that Lemons Grundy propounded improper written and deposition discovery concerning a business relationship between Burts and Bordeaux for no other apparent reason but to defeat coverage under the OOIDA policy. What do you know about that? What improper conduct were you engaging in? Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 14 of 25 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A Well, clearly, your Honor, we did not engage in improper conduct. There was a very important reason we were trying to find out what the nature was of the relationship between Mr. Burts and Mr. Bordeaux, and that was because, under the facts of the underlying accident, Mr. Burts apparently was sleeping at the time, Mr. Bordeaux was the only one driving - […] Well, my client had told me that what had happened was that Mr. Burts was abusing him, was beating him up, had taken his medications. My client said he didn't want to be the guy who was driving, but he was the one who he felt was not in control, and that he fell asleep because his medications were taken away. Now, as unique a fact pattern as that is, that's what my client was telling me, and I needed to explore what was the nature of the relationship, why would they - why would my client be involved in that kind of relationship, why wouldn't he just say, "Hey, I'm not going to do this, I'm not going to drive," and do that sort of thing. So it was important for us to get the bigger picture, and, to be clear, your Honor, this was discovery. I did not know what Mr. Burts counsel would do to counter that, other than when I had a conversation with Mr. Rose, Mr. Rose had intimated that it was ridiculous to suggest that that's the theme. And that's fine. If the opposing side thought that a unique defense was one which they could just ignore and discount, I was fine with that, because maybe if they ignored and discounted, we would be able to take advantage of that one day, and I could defend my client in a manner that people thought was not defensible. So it was therefore important for us to be able to find out what was the nature of the relationship between the two, employer-employee. Maybe that would impact things, but, truly, it was more what was the integral fact, what was the integral fact of the nature between the two. And I really didn't care that much who actually had what type of employer-employee relationship, we were more interested in finding out what all the surrounding circumstances were of the relationship so that when it came time to try to see what we could do to try to defend our client on a liability basis, that we would have the surrounding facts why this amazing circumstance may actually be a reason why Mr. Burts had more control at the time than he professed when he thought he was sleeping. (Exhibit “1” at 44:6 - 46:9.) Moore’s testimony shows beyond any doubt that whether or not a legal employer- employee relationship existed between Burts and Bordeaux-which contention Moore and Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 15 of 25 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bordeaux had of course already denied-was not the actual issue, or even relevant to the actual issue being litigated through their discovery efforts. As explained by Moore, the actual issue was the broader inquiry regarding the general nature of the relationship between the parties that would lead to a scenario where, as alleged by Bordeaux, Burts was able to exert such control and leverage over him. Whether Burts believes that defense counsel’s theory was viable is inconsequential. What matters is that under both Burts’s analysis and Moore’s testimony, whether or not a legal employer-employee relationship existed between the parties was completely irrelevant to the tort suit. As a result, it was necessarily “independent of, or extrinsic to, the issues in the underlying action.” James 3 Corp., 91 Cal. App. 4th at 1102; see also Hansen, 357 P.3d at 343 (“…there is no conflict if the reservation of rights is based on coverage issues that are only extrinsic or ancillary to the issues actually litigated in the underlying action.”) (emphasis added). d. Any Facts Were Beyond Counsel’s Control The existence and nature of any business relationship between Burts and Bordeaux were, and always have been, historical facts that either existed or did not. As such, they were beyond the control of defense counsel, in any event, and could not possibly have given rise to any conflict of interest. James 3 Corp., 91 Cal. App. 4th 1100. Moore explained this concept perfectly during his May 3, 2017 testimony, as follows: The reason I ask the question, sir, is I don't do the insurance defense work that you do, but if my understanding of the analysis in Hansen that talks about an actual conflict, I'm a little puzzled by a line of questioning that could establish a defense to coverage, that if you have another reason for asking it, you can also ask that same line of questioning that could establish a defense to coverage. If that is -- in your estimation, that is not a conflict because you have another reason for asking, that it's okay? A If it is a line of questioning that is integral to the very defense my own client has asked me to pursue, it becomes impossible to defend a client. Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 16 of 25 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 If one is constantly second-guessing, "Well, gee, maybe this particular fact or facts that may come out might be used by someone else in another context on the coverage issue," clearly I will avoid asking questions if it is apparent that, you know what, this gets into an area that is not going to be good for the defense of my client, or an area where it is the kind of information that ordinarily would not be discovered unless I'm asking that kind of question. In this case, the questioning over the relationship that existed between Mr. Burts and Mr. Bordeaux was integral, certainly, to the defense of my client, and I think you've heard why, but also it's the kind of information that's going to be either -- either it's red or blue or whatever, the facts were what the facts were, and I'm not second-guessing what the impact may be on coverage. Exhibit “1” at 82:3-83-5 (emphasis added) Moore’s analysis and approach is consistent with controlling authority on the subject. See Fed. Ins. Co. v. MBL, Inc., 219 Cal. App. 4th 29, 42, 44, 160 Cal. Rptr. 3d 910, 921 (2013) (no conflict because “either the loss arose out of a government claim to remediate pollution or it did not, and there is nothing which counsel, whether retained or independent, could do to change the answer to that question.”). And because Moore and Verlander could not have controlled the underlying facts of the relationship between the parties no conflict was possible. Id. 2. Bordeaux was Required to but Never Requested Cumis/Hansen Counsel It cannot be disputed that Moore and Verlander did not have, and could not have had, any conflict of interest arising out of the discovery they were conducting. But even if Bordeaux believed that a conflict of interest had existed, he was obligated to provide OOIDA with notice and an opportunity to cure any perceived conflict before he breached his duty to cooperate by entering into the stipulated settlement. See Fed. Ins. Co., 219 Cal. App. 4th at 42 (“…the parties’ respective interests must be analyzed to determine if they can be reconciled or if there is a conflict of interest which puts the appointed counsel in the position of having to choose which master to serve.”). If the parties’ interests could not be reconciled and there was, in fact, a conflict of interest, Bordeaux was then required to demand Cumis counsel and give OOIDA a Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 17 of 25 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasonable amount of time to comply with his request. This is because OOIDA’s duty to defend is an ongoing duty, any alleged breach of which is subject to being cured at any time prior to the final adjudication of the case. Lambert v. Commonwealth Land Title Ins. Co., 53 Cal. 3d 1072, 1077, 811 P.2d 737, 739 (1991); United Nat'l Ins. Co. v. Frontier Ins. Co., 120 Nev. 678, 687, 99 P.3d 1153, 1158 (2004); see also Jones v. Hyatt Ins. Agency, Inc., 356 Md. 639, 649, 741 A.2d 1099, 1104 (1999) (“a breach of the duty to defend can be cured at any time prior to termination of the underlying litigation.”). This concept is consistent with Bordeaux’s own duties of good faith and fair dealing as a party to the insurance contract. E.g. Tibbs v. Great Am. Ins. Co., 755 F.2d 1370, 1375 (9th Cir. 1985); see also, Bergerud v. Progressive Cas. Ins., 453 F. Supp. 2d 1241, 1246 (D. Nev. 2006) (“In Nevada, the covenant of good faith and fair dealing is implicit in every insurance contract.”). Here, because Bordeaux failed to give OOIDA an opportunity to cure its alleged conflict or to demand Cumis counsel, and because OOIDA was in fact providing a defense to him, under no circumstances can OOIDA be responsible for any judgment resulting from the settlement agreement. Dynamic Concepts, Inc. v. Truck Ins. Exch., 61 Cal. App. 4th 999 (1998). C. Bordeaux Breached His Duty to Cooperate by Settling the Tort Suit Without OOIDA’s Consent or Participation Under both the Policy and the law, OOIDA had the “right and duty to defend” the underlying litigation. (ECF No. 30 at ¶ 8; see also ECF No. 36 at 11, 20.) This means that so long as OOIDA was fulfilling its contractual duty to defend Bordeaux, it had the corresponding right to control the defense of the litigation and Bordeaux was required to comply with all of his contractual duties (i.e. conditions precedent to coverage), including the “consent to settle” clause, the cooperation clause, and the “no action” clause. (See ECF No. 30 at p. 4; ECF No. 36 at 16- 17); see also, Crowley Mar. Corp. v. Fed. Ins. Co., 373 F. App’x 782 (9th Cir. 2010); Universal Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 18 of 25 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Underwriters Ins. Co. v. M.F. Salta Co., 215 F. App’x 573 (9th Cir. 2006); Mercado v. Allstate Ins. Co., 340 F.3d 824 (9th Cir. 2003); Safeco Ins. Co. of Am. v. Superior Court, 71 Cal. App. 4th 782 (1999); Las Vegas Star Taxi v. St. Paul Fire & Marine Ins. Co., 714 P.2d 562 (1986). Here, there is no dispute that OOIDA was at all times fulfilling its contractual duty to defend Bordeaux in the tort suit. (See, e.g., ECF No. 30 at ¶¶ 16-18; see also EFC No. 36-2 at 2.) Therefore, as part of the Policy conditions, Bordeaux was not permitted to unilaterally settle the underlying tort suit without OOIDA’s consent or participation. E.g., Hamilton v. Maryland Cas. Co., 27 Cal. 4th 718 (2002); 21st Century Ins. Co. v. Superior Court, 240 Cal. App. 4th 322 (2015); Fuller-Austin Insulation Co. v. Highlands Ins. Co., 135 Cal. App. 4th 958 (2006); Low v. Golden Eagle Ins. Co., 2 Cal. Rptr. 3d 761 (Ct. App. 2003); Safeco Ins. Co. of Am. v. Superior Court, 71 Cal. App. 4th 782 (1999); Dynamic Concepts, Inc. v. Truck Ins. Exch., 61 Cal. App. 4th 999 (1998). As the courts have made clear, “[w]hen the insurer provides a defense to its insured, the insured has no right to interfere with the insurer’s control of the defense, and a stipulated judgment between the insured and the injured claimant, without the consent of the insurer, is ineffective to impose liability upon the insurer.” Safeco, 71 Cal. App. 4th at 787; see also 21st Century, 240 Cal. App. 4th at 327 (“Hamilton holds that when the insured goes behind the insurer’s back, so to speak, and enters into a stipulated judgment, ‘a defending insurer cannot be bound by a settlement made without its participation and without any actual commitment on its insured’s part to pay the judgment.’”). In fact, courts in both California and Nevada routinely grant summary judgment to insurers on claims for indemnity and bad faith when the insured unilaterally settles an underlying tort claim while the insurer is defending (regardless of whether the defense is under a reservation of rights). E.g., Crowley, 373 F. App’x at 782; Universal, 215 F. App’x at 573; Mercado, 340 F.3d 834; 21st Century, 240 Cal. App. 4th at 322; Fuller-Austin, Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 19 of 25 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 135 Cal. App. 4th at 958; see also Las Vegas Star, 714 P.2d at 562 (affirming summary judgment for insurer because insured settled tort suit in breach of conditions precedent to coverage); Holland v. State Farm Mut. Auto. Ins. Co., No. 2:12-cv-01058-LDG-GWF, 2014 WL 1268712 (D. Nev. Mar. 27, 2014) (granting summary judgment for insurer in UM case because insured breach conditions precedent to coverage). Here, Burts claims that Bordeaux was free to settle the underlying tort suit with him, and that OOIDA should be bound by that settlement, for various reasons: OOIDA reserved its rights; OOIDA filed this declaratory judgment action; Moore and Verlander had conflicts of interest; and they were engaging in discovery for the sole purpose of helping OOIDA defeat coverage. (See ECF No. 179 at 12:19-23; see also ECF No. 32 at 9.) However, none of those alleged wrongdoings, even if true, permitted him to unilaterally settle the underlying tort suit without OOIDA’s consent or participation. This is because: (1) it is the “bright-line rule that the insurer must have completely abdicated its duty to defend before it will be held liable for…a settlement [entered into without the insurer’s consent]”, Universal, 215 F. App’x at 574 (emphasis added); and (2) it is undisputed that OOIDA was actively providing a defense to Burts. First, courts have applied this bright-line rule to hold that an insurer who defends its insured under a reservation of rights or who files a declaratory judgment action is not bound by a unilateral settlement, because neither reserving rights nor seeking a declaratory judgment constitutes a breach of the duty to defend. E.g., Fuller-Austin, 135 Cal. App. 4th at 984-85; Safeco, 71 Cal. App. 4th at 785, 787-90; Dynamic Concepts, 61 Cal. App. 4th at 999; Probuilders Specialty Ins. Co. v. Double M. Constr., No. 2:13-CV-2156 JCM (NJK), 2015 WL 1202803, at *3-5 (D. Nev. Mar. 17, 2015) (rejecting arguments that insurer breached duty to defend by reserving rights and filing declaratory judgment action, because “[s]o long as [insurer] continues to defend [insured] in the [tort] action, it has not breached the contract”); see also Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 20 of 25 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brewington v. State Farm Mut. Auto. Ins. Co., 96 F.Supp. 3d 1105 (D. Nev. 2015) (an insurer may “judicially test the meaning of an insurance contract where there is no controlling authority in the jurisdiction.”). This eliminates subsections of (i) through (iv) of paragraph 9 of Burts’s counterclaim, which eliminates his breach of contract and good faith and fair dealing claims altogether. Moreover, an insured’s belief that the insurer is handling the defense poorly does not permit the insured to unilaterally settle. E.g., Universal, 215 F. App’x at 574; Safeco, 71 Cal. App. 4th at 787-90. As one court explained, “[n]either the adequacy of the representation nor the effectiveness of the defense is relevant to the question of whether the insured can enter into a binding a settlement without the insurer’s consent.” 21st Century, 240 Cal. App. 4th at 328. (“Simply alleging the details of said alleged errors in hyperbolic and accusatory terms does not avoid the rule of Hamilton.”). Second, and perhaps most importantly, even when an insured is entitled to Cumis counsel due to a conflict of interest, the insured cannot bind the insurer to a settlement that the insurer has not consented to or participated in. E.g., Crowley Mar., 373 F. App’x at 782; Safeco, 71 Cal. App. 4th at 787-90; Dynamic Concepts, 61 Cal. App. 4th at 999. This is because even when the insured is entitled to be defended by Cumis counsel, the insured and its counsel are still required to cooperate with the insurer in the defense of the suit. See, e.g., Cal. Civ. Code § 2860(f). The Dynamic Concepts case is illustrative of this point. There, the court ultimately held that an insurer faced with a demand and short deadline to appoint Cumis counsel does not breach “any legal obligation to defend [its insured] when it offer[s] to fully defend at its own expense through appointed counsel pending further coverage analysis of the Cumis issue.” Dynamic Concepts, 61 Cal. App. 4th at 1010. In reaching its conclusion, the court reasoned in part as follows: Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 21 of 25 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No reason exists to allow insureds who face the prospect of no defense or indemnity for uncovered claims to “set up” insurers by making Cumis demands with unreasonably short deadlines, especially where the issues listed in the underlying litigation do not coincide with the issues raised in the reservation of rights and where the insurer agrees to provide a full and complete defense without regard to coverage. Id., at 1006. The facts in this case are even more egregious than in Dynamic Concepts. In that case, the insured through its “personal attorney” had at least demanded that Cumis counsel be appointed. Here, however, no such demand or request was ever made or even implied by Bordeaux or anyone on his behalf. Further, it is undisputed that, like in Dynamic Concepts, OOIDA was providing a defense to Bordeaux without regard to coverage and the issues raised in the ROR did not coincide with the issues in the litigation. (See Section II.B.1, infra.) Thus, if the insurer’s failure in Dynamic Concepts to respond to a short deadline on a Cumis issue it was squarely confronted with did not free its insured to unilaterally settle, it is likewise clear that an insured such as Bordeaux, who allegedly believed but never communicated that he was owed Cumis counsel, is similarly restrained. D. Burts Mooted his Claims When he Vacated his Judgment Without a valid, final judgment, no bad-faith claim is possible. E.g., Hughes v. Mid- Century Ins. Co., 38 Cal. App. 4th 1176, 1184-85 (1995) (“holding that third-party could not maintain a bad faith claim against insurer because underlying judgment was not final when the bad faith claim was filed”); see also Wilson v. Bristol W. Ins. Group, No. 2:09-CV-00006-KJD- GWF, 2009 WL 3105602, at *5 (D. Nev. Sept. 21, 2009) (bad faith action was “premature, until there is a final judgment in the underlying bodily injury action.”). At its most basic level this is because an insurer’s duty to indemnify does not arise until there is a judgment against the insured. E.g., State v. Pac. Indem. Co., 63 Cal. App. 4th 1535, 1546 (1998) (“The duty to Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 22 of 25 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 indemnify arises after liability is established”); United Nat’l Ins. Co. v. Frontier Ins. Co., Inc., 99 P.3d 1153, 1158 (Nev. 2004). Here, Burts inexplicably vacated his state court judgment in the middle of these proceedings. Accordingly, to the extent Burts’s claims may have been ripe at one time, they are no longer viable as a matter of law and must be dismissed. IV. CONCLUSION Because there are no fact issues regarding the applicability of the employment exclusions in the Policy, no conflict could have existed in the tort suit. Without a conflict, no duty to appoint Cumis/Hansen counsel could have arisen or been breached. Defense counsel could not have controlled the underlying facts in any event, and the facts show that Burts’s employment status was never an actual issue in the litigation. Further, if Bordeaux believed that his attorneys were conflicted, he had an obligation to give OOIDA notice and an opportunity to cure that perceived conflict. Neither he nor anyone else ever did that, nor did anyone ever demand that OOIDA appoint Cumis/Hansen counsel. By settling the tort suit without OOIDA’s consent or participation, Bordeaux irrevocably breached his duty to cooperate under the Policy. As a result, Bordeaux, and by extension Burts, is not entitled to any coverage whatsoever. Further, because he has now vacated his state court judgment, Burts’s claims are moot and must be dismissed.5 WHEREFORE, OOIDA prays that Burts take nothing by way of his Motion and that same be denied with prejudice; and for such other, further, and additional relief as seems just to the Court in the premises. 5 All exhibits hereto are authenticated in the Declaration of Casey D. Baker attached hereto as EXHIBIT “11”. Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 23 of 25 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 22nd day of June, 2017. McMICKLE, KUREY & BRANCH, LLP /s/Casey D. Baker SCOTT W. MCMICKLE, ESQ. Admitted Pro Hac Vice CASEY D. BAKER, ESQ. State Bar No. 9504 200 South Main Street Alpharetta, GA 30009 Telephone: 678-824-7800 Facsimile: 678-824-7801 swm@mkblawfirm.com cbaker@mkblawfirm.com MATTHEW C. ADDISON, ESQ. State Bar No. 4201 100 West Liberty Street, 10th Floor Reno, Nevada 89501 Telephone: 775.788.2000 Facsimile: 775.788.2020 maddison@mcdonaldcarano.com Attorneys for Plaintiff OOIDA Risk Retention Group, Inc. Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 24 of 25 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE Pursuant to F.R.C.P. 5(b), I hereby certify that I am an employee of MCMICKLE, KUREY & BRANCH, LLP and that on this 22nd day of June, 2017, I caused to be served a copy of the foregoing: OOIDA’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON BURTS’S BREACH OF CONTRACT AND GOOD FAITH AND FAIR DEALING CLAIM AND OOIDA’S DUTY TO COOPERATE CLAIM Placing an original or true copy in a sealed envelope placed for collection and mailing in the United States Mail, at Alpharetta, Georgia, postage prepaid, following ordinary business practices; __________ Facsimile transmission only, pursuant to the amended Eighth Judicial District Court Rule 7.26 X Case Management/Electronic Case Filing (CM/ECF) __________ Hand Delivery - Receipt of Copy addressed as follows: Sean P. Rose, Esq. ROSE LAW OFFICE 150 W. Huffaker Lane, Suite 101 Reno, NV 89511 Attorneys for Defendant Robert M. Burts Thomas R. Brennan, Esq. DURNEY & BRENNAN 6900 S. McCarran Blvd., Suite 2060 Reno, NV 89509 Attorneys for Defendant Robert M. Burts Scott A. Glogovac, Esq. GLOGOVAC & PINTAR 427 W. Plumb Lane Reno, NV 89509 Attorneys for Defendant Robert M. Burts Matthew C. Addison, Esq. McDonald, Carano & Wilson, LLP 100 West Liberty Street 10th Floor Reno, NV 89501 Attorneys for Plaintiff OOIDA Risk Retention Group, Inc. Mark Wenzel, Esq. Bradley, Drendel & Jeanney P.O. Box 1987 Reno, NV 89505 Attorneys for Defendant Marc A. Bordeaux Wayne A. Shaffer, Esq. Janice Hodge, Esq. Laxalt & Nomura, Ltd. 9600 Gateway Drive Reno, NV 89521 Attorneys for Christian Moore /s/ Casey D. Baker Casey D. Baker Case 3:15-cv-00081-RCJ-VPC Document 191 Filed 06/22/17 Page 25 of 25 44 1 55EXHIBIT Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 1 of 15 1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEFORE THE HONORABLE VALERIE P. COOKE, MAGISTRATE JUDGE 0O0 2 3 4 OOIDA RISK RETENTION GROUP, INC. , 5 Plaintiff, 3 : 15-CV-81-RCJ-VPCNo. 6 May 3, 2017-vs- 7 MARC A. BORDEAUX, an individual; ROBERT M. BURTS, an individual; et al. , Reno , Nevada 8 9 10 Defendant . 11 12 TRANSCRIPT OF MOTION FOR SANCTIONS 13 14 APPEARANCES : 15 FOR THE PLAINTIFF AND COUNTERDEFENDANT : SCOTT McMICKLE and CASEY D. BAKER Attorneys at Law Alpharetta , Georgia16 17 MATTHEW ADDISON Attorney at Law Reno , Nevada18 19 20 FOR DEFENDANTS, INTERESTED PARTIES and COUNTERCLAIMANT BURTS: MARGO PISCEVICH , SCOTT A. GLOGOVAC, THOMAS R. BRENNAN, SEAN P. ROSE, ALEX J. FLANGAS, MARK C. WENZEL and JAN JENSEN Attorneys at Law Reno , Nevada 21 22 f 23 Margaret E. Griener, CCR #3, FCRR Official Reporter Reno , Nevada 24 Reported by: 25 MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 2 of 15 -4 4-1 1 counsel in this case has repeatedly made is that Lemons Grundy 2 propounded improper written and deposition discovery 3 concerning a business relationship between Burts and Bordeaux 4 for no other apparent reason but to defeat coverage under the 5 OOIDA policy. 6 What do you know about that? What improper conduct 7 were you engaging in? Well, clearly, your Honor, we did not engage in improper8 A 9 conduct . 10 There was a very important reason we were trying to 11 find out what the nature was of the relationship between 12 Mr. Burts and Mr. Bordeaux, and that was because, under the 13 facts of the underlying accident, Mr. Burts apparently was 14 sleeping at the time, Mr. Bordeaux was the only one driving - 15 Q Right . 16 - and why was he the only one driving.A 17 Well - and, again, to be clear, I understand all 18 the privileges had been waived, all the communications in this 19 matter 20 Q Yes. 21 - so I can talk about it.A 22 Well, my client had told me that what had happened 23 was that Mr. Burts was abusing him, was beating him up, had 24 taken his medications . My client said he didn ' t want to be 25 the guy who was driving, but he was the one who he felt was MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 3 of 15 45 -| 1 not in control, and that he fell asleep because his 2 medications were taken away. 3 Now , as unique a fact pattern as that is , that ' s 4 what my client was telling me, and I needed to explore what was the nature of the relationship, why would they -- why5 6 would my client be involved in that kind of relationship, why wouldn't he just say, "Hey, I'm not going to do this, I'm not7 8 going to drive , " and do that sort of thing . 9 So it was important for us to get the bigger 10 picture, and, to be clear, your Honor, this was discovery. I 11 did not know what Mr. Burts counsel would do to counter that, 12 other than when I had a conversation with Mr. Rose, Mr. Rose 13 had intimated that it was ridiculous to suggest that that's 14 the theme . 15 And that ' s fine . If the opposing side thought that 16 a unique defense was one which they could just ignore and 17 discount, I was fine with that, because maybe if they ignored 18 and discounted, we would be able to take advantage of that one 19 day, and I could defend my client in a manner that people 20 thought was not defensible. 21 So it was therefore important for us to be able to 22 find out what was the nature of the relationship between the 23 two , employer-employee . Maybe that would impact things, but, 24 truly, it was more what was the integral fact, what was the 25 integral fact of the nature between the two. MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER ' (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 4 of 15 -4 6-1 1 And I really didn ' t care that much who actually had 2 what type of employer-employee relationship, we were more 3 interested in finding out what all the surrounding 4 circumstances were of the relationship so that when it came 5 time to try to see what we could do to try to defend our 6 client on a liability basis, that we would have the 7 surrounding facts why this amazing circumstance may actually 8 be a reason why Mr. Burts had more control at the time than he 9 professed when he thought he was sleeping. 10 Did Mr. Brennan or Mr. Rose at the time you were pursuingQ 11 . this discovery that you've described, did they ever confront 12 you or accuse you or challenge you and say that you were 13 really subverting Mr. Bordeaux's interests and really trying 14 to finagle a way out of coverage? Did they ever tell you 15 that? 16 Not in that fashion , and when I say in that fashion , noA 17 one ever said, "Hey, what you're doing is unethical." No one 18 ever said, "Hey, you know, you're killing your guy, you're 19 having a problem. " 20 They did, as I understand it, I was not present but 21 Mr. Verlander told me, they did pull Mr. Verlander aside and 22 "Hey, you're asking questions that can impact coverage,"say, 23 so they did communicate that. 24 There was a phone call, I believe, after the 25 deposition of one of the witnesses that I recall where MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 5 of 15 55 -i 1 gathers in the ordinary course, then that ' s something that is 2 not going to trigger me to say, "Gee, I can't go there." 3 Well, the employee-employer relationship would definitelyQ 4 affect coverage, would it not? 5 I don't know if that's necessarily true.A 6 Well, sir, you received a copy of the reservation ofQ 7 rights letter . 8 No, I did not.A 9 You never received it from OOIDA?Q 10 Not at the point in time when I'm still defending myA 11 client . 12 Did Ms . Stephenson ever contact you to defend this case?Q 13 She did contact me , yes , to - I think she was involvedA 14 in engaging our firm. 15 And did she ever tell you that she was coverage counselQ 16 for OOIDA? 17 I understood she was coverage counsel.A 18 Did she ever tell you what their concerns were and whyQ 19 they thought there was a coverage dispute? 20 A No, I don't remember having that kind of discussion. 21 And did you ever - well, at 16.1 you have to produce theQ 22 policy and any reservation of rights letter, isn't that 23 correct? 24 We do produce those if we had them.A 25 I had requested from OOIDA the documentation that MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 6 of 15 -72 -i 1 Q Not actually. Let me ask it differently. 2 Did you make a specific inquiry of OOIDA as to 3 whether they had a reservation of rights letter? 4 No, not a specific inquiry.A Instead we asked for the 5 correspondence that would have been exchanged with our client 6 which routinely would have that kind of information. 7 I think, counsel, you're under the impression that 8 we have an affirmative duty to say, "Oh, by the way, is there 9 a reservation of rights letter? Are you sure that you don ' t 10 have a reservation of rights letter?" 11 My concern is , because I ' m trying to help my client , 12 that if there is no reservation of rights letter , I don ' t want 13 to inject myself into the process. 14 So what we do routinely is we simply ask, "Please 15 give us a copy of all correspondence with the client and the 16 policy," and, presumably, if there is one, we'll get that. If 17 one is not present, that does not trigger us to go through and 18 follow up on that. 19 Also, to be blunt, there was the declaratory relief 20 action that happened shortly after that, so it was pretty '21 clear that to the extent there was any documentation, it was 22 going to be obtained anyway. 23 Let me go back and ask my question, sir.Q I ' m going to 24 ask it very specifically so if I'm unclear, please stop me. 25 With regard to the state court action, when it is MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 7 of 15 81 -i 1 not to, but you say to establish a relationship. That's not 2 what we ' re doing . We ' re trying to find out what is the nature 3 of the relationship . 4 Q Okay. Okay. So if you're asking questions to find out 5 what is the nature of that relationship because you want to 6 explore it and find out, but as you explore that nature of the relationship, as you're doing that, you establish more -7 8 As you're doing that, the questioning ends uppardon me. 9 producing more and more facts that will establish a defense to 10 coverage under the insurance policy because of the answers 11 that you are obtaining while you're trying to find out what 12 the relationship is, the answers to the questions are creating a defense to the insurance policy, do you believe that that13 14 puts you in a conflict? 15 Not by itself, no, because there are certain integralA 16 facts that I can be asking that any reasonable person would be 17 asking that aren ' t secrets , that other people can be asking . 18 the way I'm answering your questionIn other words, 19 is that it really is an incomplete hypothetical because 20 certainly we can ask questions that we just need to have to 21 defend our client, and if some of those answers because of the 22 truth have facts pan out a certain different way then that ' s 23 the way it is . 24 I think the suggestion is that - I'm sorry, I may be at risk of presuming too much from your question here.25 MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 8 of 15 82 -i 1 Well, the line of questioning really - I'm not sure youQ 2 I think maybe your presumption is correct.are . 3 The reason I ask the question, sir, is I don't do 4 the insurance defense work that you do, but if my 5 understanding of the analysis in Hansen that talks about an 6 actual conflict, I'm a little puzzled by a line of questioning 7 that could establish a defense to coverage, that if you have 8 another reason for asking it, you can also ask that same line 9 of questioning that could establish a defense to coverage. 10 If that is - in your estimation, that is not a 11 conflict because you have another reason for asking, that it's 12 okay? 13 If it is a line of questioning that is integral to theA 14 very defense my own client has asked me to pursue, it becomes 15 impossible to defend a client. 16 If one is constantly second-guessing, "Well, gee, 17 maybe this particular fact or facts that may come out might be 18 used by someone else in another context on the coverage 19 issue," clearly I will avoid asking questions if it is 20 apparent that, you know what, this gets into an area that is 21 not going to be good for the defense of my client, or an area 22 where it is the kind of information that ordinarily would not 23 be discovered unless I'm asking that kind of question. 24 In this case, the questioning over the relationship 25 that existed between Mr. Burts and Mr. Bordeaux was integral, MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 9 of 15 -83 -i 1 certainly, to the defense of my client, and I think you've 2 heard why , but also it ' s the kind of information that ' s going 3 to be either either it's red or blue or whatever, the facts 4 were what the facts were, and I'm not second-guessing what the 5 impact may be on coverage. 6 Let me ask one more. Did you ever look at theQ 7 reservation of rights letter, sir, in this case, ever? It was 8 produced so I'm wondering if you ever looked at it. 9 You know, I believe that it was after we were alreadyA 10 disengaged. It was at that point in time. 11 So your firm never did produce a copy of a reservation ofQ 12 rights letter under Rule 16-1, did you? 13 I don ' t think we ever had one ,A so that would be yes . We 14 don ' t produce what we don ' t have . 15 And you never did make a formal, specific -Q 16 He has answered that question aboutTHE COURT: 17 five times . 18 MR . FLANGAS : Okay . I'm sorry . 19 BY MR. FLANGAS : 20 In connection with the reservation of rights letter, itQ 21 has an exception specifically for the employer-employee 22 relationship . 23 Had you known about that at the time the depositions 24 were taken, would it have caused you any concern about asking 25 about the relationship between these parties , specifically MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 10 of 15 8 4 -I 1 with regard to an employer-employee relationship and 2 partnership? 3 No , I don ' t think so .A 4 When Mr. Brennan came to you, called you and notified youQ that there was some concern on his part, and that he was going5 6 to involve Mr. Cox, you understood that the purpose of 7 involving Mr. Cox was as an independent counsel for Mr. Burts; 8 is that correct? Or Mr. Bordeaux; is that correct? 9 You've asked so many questions -A 10 I'm sorry, was that a long one?Q 11 A So many statements. I'm sorry, I don't think I can - Repeat your question, sir, and let's12 THE COURT: 13 wrap it up, please. 14 MR. FLANGAS: Yes, your Honor. 15 BY MR. FLANGAS: 16 When Mr. Brennan contacted you about Mr. Cox, youQ 17 understood the reason he was contacting you was to talk about 18 getting independent counsel for Mr. Bordeaux. 19 A Yes. 20 Did you understand that that was in the nature of CumisQ 21 counsel? 22 A No . That ' s not in the nature of Cumis counsel . 23 What did you understand the reason for Mr. Cox was if notQ 24 for Cumis counsel? 25 Because Mr. Cox could do something which I clearlyA MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 11 of 15 85 -i 1 couldn ' t do, and that is be involved in any dispute between 2 Mr . Bordeaux and Mr . Bordeaux ' s insurer , OOIDA . 3 But that doesn ' t mean he ' s functioning as what I 4 call Cumis counsel . Cumis counsel , so you explain -- how I'm 5 using the term, it's when the insurer engages the Cumis 6 counsel . 7 Would the function of that attorney be functionallyQ 8 different than what Mr. Cox was doing from your understanding 9 merely because of who retained them? 10 Oh, they would have different functions .A 11 So that I can - so that you can explain for us so theQ 12 Court can understand what your understanding was of Mr . Cox ' s 13 role, how would an independent person paid for by the 14 insurance company to represent Mr . Bordeaux have been 15 different from your understanding of what Mr. Cox was going to 16 do for Mr. Bordeaux? How would that have differed in terms 17 that of lawyer's duties? 18 Well, you asked a really big question here.A If I can 19 break it down. 20 Maybe the best way to answer that is that it was 21 apparent to me that Mr. Cox is being engaged so that he can 22 advise Mr. Bordeaux specifically regarding his claims against 23 OOIDA, which is different than Cumis counsel being engaged for 24 the purpose of providing a defense to the tinderlying case. 25 They ' re very different roles . So that ' s part of why MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 12 of 15 •8 6-1 1 I'm answering the question that I am, does that make sense. 2 You didn't understand Mr. Cox to be involved in any formQ 3 of defense. 4 I did not understand him to be involved in any form ofA 5 defense . Instead, it was pretty apparent to me that he's only 6 being engaged for the purpose of facilitating Mr. Bordeaux's 7 claims against OOIDA, which in turn I presumed would allow an 8 assignment to take place to Mr. Burts, which, if that gets my 9 clients out of harm's way, that's fine with me. 10 Q Did you - 11 But let ' s be candid on what was going on .A 12 Did you feel that was improper for Mr. Brennan to beQ 13 bringing Mr. Cox into the matter? 14 Mr. Brennan has to represent his client, Mr. Burts,A so 15 that's not improper. But, to be clear, that's not necessarily 16 because he ' s doing it because he ' s trying to protect 17 Mr . Bordeaux . 18 MR. FLANGAS: Thank you. Nothing further. 19 THE COURT: Thank you, sir. 20 Mr. McMickle, any questions? 21 Your Honor, I think I can clearMR. McMICKLE : 22 up their great consternation about what Mr. Cox told 23 Mr . Moore . 24 I'm looking at a July 8, 2015 letter from 25 Mr. Cox to Mr. Moore that it's I believe these e-mails are MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 13 of 15 -94 -i 1 "According to Burts it had become apparent 2 that OOIDA 'was using defense counsel to obtain facts 3 to defeat coverage and had no intention of 4 indemnifying Bordeaux for Burts ' damages , Burts ' 5 counsel approached Bordeaux ' s defense counsel about 6 settlement and inquired as to Bordeaux ' s. personal 7 counsel in light of the blatant conflict of 8 interest. " 9 I am not quoting from anything - a letter or 10 anything else, that is a quote. In fact, I have a footnote, 11 and the footnote says, 12 "Burts does not provide a letter between 13 counsel or a declaration respecting this discussion ; 14 rather, Burts attaches at Exhibit 18 billing records 15 of Lemons Grundy and directs the court to certain of 16 the 62 pages of billing statements . . . which the Court 17 declines to do so . " 18 MS. PISCEVICH: I appreciate that, your Honor, 19 but it is my client ' s perspective and their belief that there 20 was a blatant conflict of interest. 21 THE COURT: Right, I understand. 22 And I think that that ' s argumentMS. PISCEVICH: 23 not anything more than that. 24 What they ' re saying is that they were using 25 defense counsel, in their opinion, to get facts about an MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 14 of 15 -376 -1 1 MR . ROSE : Okay . 2 THE COURT: Thank you. 3 All right. Thank you very much. Court is 4 adj ourned . 5 MR. McMICKLE: Thank you, your Honor. 6 -oOo- 7 8 I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.9 /s /Margaret E. Griener 5/24/201710 Margaret E. Griener, CCR #3, FCRR Official Reporter11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER (775) 329-9980 Case 3:15-cv-00081-RCJ-VPC Document 191-1 Filed 06/22/17 Page 15 of 15 662 95EXHIBIT Case 3:15-cv-00081-RCJ-VPC Document 191-2 Filed 06/22/17 Page 1 of 11 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Richard G. Verlander III February 19, 2016 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA -oOo- 00IDA RISK RETENTION GROUP, INC. , Case 3 : 15 -CV- 00081 -MMD-VPC No. Plaintiff , vs . an individual ; an individual ; MARC A. BORDEAUX, ROBERT M. BURTS, DOES I-V, Defendants . VIDEO- RECORDED DEPOSITION OF RICHARD G. VERLANDER III Friday, February 19, 2016 Reno, Nevada Reported By: PEGGY B. HOOGS, CCR #160, RDR, CRR CALIFORNIA CSR #5958 Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-2 Filed 06/22/17 Page 2 of 11 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Richard G. Verlander III February 19, 2016 7 Fair enough?1 2 A Yes . And at any time before your firm officially3 Q 4 withdrew from representing Mr. Bordeaux in the tort 5 action, did Mr. Rose, Mr. Glogovac, Mr. Brennan or 6 Mr. Cox ever suggest to you that either you or the 7 Lemons, Grundy had breached any ethical violations or 8 done anything improper, however slight, in the defense of 9 Mr . Bordeaux? 10 A No. Do you believe that OOIDA or any11 Q 12 representative of OOIDA tricked you or your firm in any 13 way with regard to your handling of Mr. Bordeaux ' s 14 defense in this matter? 15 A No. Did you see or hear of anything that your16 Q 17 firm did in the handling of Mr. Bordeaux's defense that 18 you would be -- believe to be improper in any way, 19 however slight? 20 A No. Did you say anything that OOIDA may have done21 Q 22 or not done with regard to Lemons, did I sayGrundy 1 s 23 that right -- Lemons, Grundy's handling of the tort suit 24 that was in any way improper, however slight? 25 A No. Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-2 Filed 06/22/17 Page 3 of 11 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Richard G. Verlander III February 19, 2016 11 If you'd go to Exhibit 13, please.1 Q 13, you said?2 A Yes, sir. Page 8.3 Q Let me give you a little explanation,4 5 Richard. It says "Plaintiff's Motion to Compel." It was 6 improperly titled. It should have been "Defendants 7 Motion to Compel . " That was the source of my confusion.8 A If you look at page 8, line 26, you see there9 Q 10 it says "they were conducting discovery for no other 11 apparent purpose but to defeat coverage under the OOIDA 12 policy"? I do .13 A When they're referring to "they," they're14 Q 15 talking about you and Mr. Moore? I see that .16 A Is that a false accusation?17 Q Absolutely.18 A If you'll flip to page 9, line 8 to 10, it19 Q 20 says "the only reason to obtain such information, " which 21 is referenced in the first part of the paragraph, " would 22 be in support of OOIDA' s claim that business enterprise 23 exclusion applied and defeat coverage." Is that a false statement?24 It is .25 A Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-2 Filed 06/22/17 Page 4 of 11 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Richard G. Verlander III February 19, 2016 12 Did you ever hear or see anybody at Lemons,1 Q 2 Grundy communicating with OOIDA about coverage issues? 3 A No. If you look at page 12 of Exhibit 13,4 look atQ 5 lines 6 to 21 -- if you don't mind, just read through 6 that for a moment -- they say on line 20 to 21 "Clearly, 7 the only reason for pursuing this extensive line of 8 questioning was to obtain evidence to defeat coverage." Is that another false statement?9 It is .10 A i f you don 1 111 Go back to page 11 for a moment,Q 12 mind. Lines 8 through 14, if you don't mind reading that 13 and I'll ask you a quick question. I'll submit to you that this "review/14 Now, 15 analyze issues regarding declaratory relief action, " We can look it up if16 that's an entry by Donna Glogovac. 17 you want, but we've established that. Do you have any reason to believe, however18 19 slight, that Donna Glogovac was doing something designed 20 to subvert the interests of Mr. Bordeaux to favor OOIDA 21 in the coverage action? 22 A No. So the allegations about what she's doing23 Q 24 there, those are false? To the best of my knowledge, yes.25 A Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-2 Filed 06/22/17 Page 5 of 11 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Richard G. Verlander III February 19, 2016 13 If you look at page 12, line 22, to page 13,1 Q 2 line 5, a summary of that is that Burts counsel is 3 alleging that you were asking questions designed to 4 develop facts to defeat coverage, which was a blatant 5 breach -- a claimed blatant breach of OOIDA' s duty to 6 defend. Is that false?7 It is .8 A Look at Exhibit 20, please.9 Q 10 A 20? Yes, sir.11 Q During or after Mr. Burts' deposition, did12 13 Sean Rose and/or Mr. Brennan or Mr. Glogovac take you 14 outside and say to you something to the effect of "What 15 are you doing? You can't be involved in the coverage 16 issue"? I don't believe it was expressed in those17 A 18 words necessarily with respect to coverage. They did not 19 want me to pursue a line of questioning related to the 20 relationship between Burts and Bordeaux. And did they suggest to you that if you did,21 Q 22 that it would be improper? I don't think it was couched in those terms.23 A As best as you can recall, what was it that24 Q 25 they actually told you? Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-2 Filed 06/22/17 Page 6 of 11 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Richard G. Verlander III February 19, 2016 14 That they did not want me to pursue a line of1 A 2 questioning related to the relationship between Bordeaux 3 and Burts. And when you say "they, " who is they?4 Q That would have been Sean Rose and5 A 6 Thomas Brennan . Okay. Did they say anything to the effect of7 Q 8 "You're trying to litigate your client out of coverage"? 9 A No. Did they say anything that might be10 Q 11 interpreted -- let me back up. 12 Sean Rose has represented to the federal 13 judge that they communicated that you were trying to 14 litigate your client out of coverage. I ' m trying to 15 figure out if there's any truth to that whatsoever. Do you have any recollection of him16 17 suggesting anything to you along the lines of "You're 18 trying to litigate your client out of coverage"? 19 A No. Would you flip to Exhibit 21, please. Look20 Q 21 at page 2, the third full paragraph. Would you read that for me, please. I just22 23 need you to read the first two or three sentences. Okay. this is a letter from Mr. Rose copied to24 Now, 25 Mr. Brennan, Glogovac and Mr. Burts Mr. Glogovac and Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-2 Filed 06/22/17 Page 7 of 11 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Richard G. Verlander III February 19, 2016 15 1 Mr. Burts, but it's to me and another lawyer in my 2 office, and he's talking about when he refused to give 3 consent to obtain military records and disability claim 4 records in the tort suit. Okay? Is that kind of the way 5 you're reading it? 6 A Yes . And he says here "we refused to consent"7 Q 8 "one of the reasons we refused to consent was because it 9 was clear defense counsel was not acting in good faith, 10 as they were using discovery in the tort action to obtain 11 evidence to support the declaratory relief action and to 12 defeat coverage." Did he ever communicate that to you as a13 14 reason that he wasn't consenting? 15 Not at all.A Q Go to Exhibit 22, if you don't mind.16 In fact, in the tort case, to get records17 18 that you believed to be relevant to various issues 19 regarding Mr. Burts claims, you had to file a motion to 20 compel? I did.21 A And the -- and your reply brief in the motion22 Q 23 to compel is in front of you. Is it correct to note that the first thing24 25 you had to do in the reply brief was make correction to Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-2 Filed 06/22/17 Page 8 of 11 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Richard G. Verlander III February 19, 2016 20 1 EXAMINATION 2 BY MR. BRENNAN: Mr. Verlander, during the time you3 Q 4 represented Mr. Bordeaux, did you understand that OOIDA 5 was providing a defense to Mr. Bordeaux under a 6 reservation of rights? At some point I understood that, yes.7 A Do you know when?8 Q 9 A No. And at the point that you understood it, what10 Q 11 was your understanding of the rationale behind OOIDA 's 12 reservation of rights? Virtually none. I just knew that it existed.13 A 14 I can 1 1 hear your answer .Q I ' m sorry. I said virtually none. I just knew that they15 A 16 were -- at some point I was aware that there was a 17 reservation of rights, and that's -- you know, that we 18 were defending subject to the reservation of rights. You didn 1 t know what the reasons that OOIDA19 Q 20 gave were for doing so under a reservation of rights? 21 A No. MR. McMICKLE : Object to the form.22 23 MR. BRENNAN: I'm sorry. I couldn't hear 24 you. MR. McMICKLE: Object to the form.25 Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-2 Filed 06/22/17 Page 9 of 11 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Richard G. Verlander III February 19, 2016 21 1 BY MR. BRENNAN: So did you continue, then, defending2 Q 3 Mr. Bordeaux without apprising yourself of what the -- 4 what OOIDA was reserving its rights on, what facts they 5 were reserving their rights on? I continued to give the best defense I knew6 A 7 how to Mr. Bordeaux, yes. Can you answer my question, though?8 Q I did answer your question.9 A Could you answer it, please?10 Q I think I did.11 A Okay. Did you continue to defend12 Q 13 Mr. Bordeaux without apprising yourself of the reasons 14 that OOIDA gave for defending under a reservation of 15 rights? 16 Yes .A Did you feel that you had any duty to apprise17 Q 18 yourself of what those reasons were in order to protect 19 your client? 20 A No. 21 When you -- you are the lawyer in the officeQ 22 who took both the Davis deposition and the Bordeaux 23 deposition; is that correct? It is .24 A Did you prepare for those depositions?25 Q Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-2 Filed 06/22/17 Page 10 of 11 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Richard G. Verlander III February 19, 2016 42 1 STATE OF NEVADA ) SS . 2 COUNTY OF WASHOE ) I, PEGGY B. HOOGS, a Certified Court Reporter3 4 in and for the County of Washoe, State of Nevada, do 5 hereby certify that on Friday, February 19, 2016, at the 6 offices of Laxalt & Nomura, 9600 Gateway Drive, Reno, I reported the deposition of RICHARD G. VERLANDER7 Nevada, 8 III in the matter entitled herein; that said witness was 9 duly sworn by me; that, before the proceedings 10 completion, the reading and signing of the deposition 11 were requested by counsel for the respective parties; 12 that the foregoing transcript, consisting of pages 1 is a true and correct transcript of the13 through 40, 14 stenographic notes of testimony taken by me in the 15 above -captioned matter to the best of my knowledge, skill 16 and ability. I further certify that I am not an attorney17 18 or counsel for any of the parties, nor a relative or 19 employee of any attorney or counsel connected with the 20 action, nor financially interested in the action. Dated at Reno, Nevada, this 26th day of21 22 February, 2016. 23 Peggy B. Hoogs, CCR #160, RDR 24 25 Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-2 Filed 06/22/17 Page 11 of 11 443EXHIBIT Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 1 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA -oOo- 00IDA RISK RETENTION GROUP, INC. , Case 3 : 15- Cv - 0 0 0 8 1 - MMD - VPC No. Plaintiff , vs . MARC A. BORDEAUX, an individual; ROBERT M. BURTS, an individual; DOES I-V, Defendants . VIDEO -RECORDED DEPOSITION OF CHRISTIAN MOORE Friday, February 19, 2016 Reno , Nevada Reported By: PEGGY B. HOOGS, CCR #160, RDR, CRR CALIFORNIA CSR #5958 Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 2 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 16 (Exhibit 2 was marked.)1 2 MR. McMICKLE: Wayne, I've got an extra copy 3 if you want to have him study that. MR. SHAFFER: Absolutely.4 5 BY MR. McMICKLE: You tell me when you're ready.6 Q I've read this.7 A MR. McMICKLE: Wayne, is this8 MR. SHAFFER: That's fine.9 10 BY MR. McMICKLE: Is there anything in this document that is11 Q 12 not true? 13 No.A Did you receive this on or about14 Q 15 December 11th? I believe I did.16 A Q Okay . Thank you .17 And did you ever respond to it and object to18 19 it or respond in any way? I don't believe I had a response. I know I20 A 21 did not send any objection. 22 Q Okay . Thank you . At any time before you officially withdrew23 24 from representing Mr. Bordeaux in the underlying tort 25 suit, did Sean Rose, Scott Glogovac, Tom Brennan or Bob Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 3 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 17 1 Cox ever suggest to you that either you or your firm had 2 breached any ethical duty or done anything improper, 3 however slight, in the defense of Mr. Bordeaux? 4 A No. Did Donna Glogovac ever express any concern,5 Q 6 however slight, with your handling or Richard Verlander's 7 handling or anybody's handling at Lemons, Grundy of the 8 defense of Mr. Bordeaux in the tort suit? 9 A No. Has she ever expressed a concern to this day?10 Q 11 A No. Do you believe that OOIDA -- when I say12 Q 13 "OOIDA," you know who I'm talking about, the insurance 14 company plaintiff in the declaratory judgment action -- 15 do you believe that OOIDA or any representative thereof 16 tricked you in any way in your handling of the defense of 17 Mr. Bordeaux? 18 A No. Are you aware of anything that OOIDA did in19 Q 20 the -- while you were handling the defense of Bordeaux 21 that was in any way improper, however slight? 22 A No. Now, had you represented or been hired by23 Q 24 OOIDA to represent an insured at any point prior to this 25 case, "this case" being the tort case? Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 4 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 18 1 A No. Did OOIDA make any sort of promise of2 Q 3 business or any sort of reward or anything for that 4 matter in order to get you to do or take certain actions 5 within the declaratory judgment action? 6 A No. Within the tort case?7 Q Excuse me . 8 A No. In your opinion was there anything peculiar9 Q 10 or out of the ordinary with OOIDA' s communications to 11 either your firm or you or anything peculiar about the 12 docs -- the documents that were provided by OOIDA to 13 either you or your firm? 14 A No. (Exhibit 3 was marked.)15 16 MR. McMICKLE: The Bates number, you guys 17 will see on here, is an internal Bates number from my 18 firm. We've Bates -numbered every document that Lemons, 19 Grundy produced. 20 Are you okay, Wayne? 21 MR. SHAFFER: Yes. 22 BY MR. McMICKLE: Is Exhibit 3 a June 5 letter you sent to23 Q 24 Mr. Bordeaux? 25 Yes .A Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 5 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 19 And in this letter, toward the bottom of the1 Q 2 first page, is that where you is that sort of standard 3 language you send to an insured in every case where 4 you're hired by an insurance company to represent an 5 insured? 6 A Yes . And are the -- is the protocol that you7 Q 8 reference in that paragraph the protocol that you follow 9 in every case? 10 Yes .A And is it the same protocol that you followed11 Q 12 in this case? 13 A Yes . And it is typically your policy or it is your14 Q 15 policy to recommend independent counsel if you're 16 informed of a conflict? If I'm informed of a conflict that involves17 A 18 the scope of my representation of my client, yes. There 19 may be another conflict that exists between my client and 20 the insurer that does not necessarily impact the scope of 21 my representation. Understood.22 Q Before you withdrew from representing23 24 Bordeaux in the tort case, were you ever informed by 25 Mr. Rose, Mr. Glogovac, Mr. Brennan or Mr. Cox or anyone Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 6 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 20 1 else that you had a conflict in your representation of 2 Mr. Bordeaux? 3 A No. So if they have represented to the Court that4 Q 5 they specifically told you you had a conflict, would that 6 be untrue? MR. SHAFFER: Object to the form.7 8 Argumentative. He's here to state factually what he can I'd prefer not to have him opine9 recall about the case. 10 about other people's conduct. MR. McMICKLE: Fair enough.11 12 BY MR. McMICKLE: I'll read you some allegations, and you can13 Q 14 tell me whether or not they're accurate. We'll do that 15 in a moment if that's better for you. is it your testimony that16 Just so I'm sure, 17 OOIDA never asked you or even insinuated to you that you 18 should do anything in the case that you believe violated 19 the rules of ethics? That is accurate.20 A (Exhibit 4 was marked.)21 22 BY MR. McMICKLE: Showing you Exhibit 4, which is just the23 Q 24 Answer to the Complaint in the underlying tort suit, does 25 that look familiar, vaguely? Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 7 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 24 1 and that is Defendant 1 s FirstMr . Bordeaux 1 s 2 Interrogatories in the underlying tort suit . Does that appear to be what it purports to3 4 be? 5 A Yes . Did Donna Glogovac primarily draft this6 Q 7 discovery? 8 A Yes . Did you instruct her to include or not9 Q 10 include anything specific in these first interrogatories? Nothing that I can recall.11 A What I do remember is that we did have a12 13 general set which was focused on discovering information 14 about the nature of the plaintiff Mr. Burts' claims and 15 particular emphasis on his damages. As I sit here, there may have been a point or16 17 two that we may have refined because of the facts of the but I don't remember that specifically.18 case, Is it correct to say that she primarily19 Q 20 drafted them and then you reviewed them? 21 A Yes . There's been an allegation that the request22 Q 23 in this interrogatory regarding Mr. Burts' relationship 24 with Mr. Bordeaux was a blatant conflict of interest. Do you disagree or agree with that comment?25 Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 8 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 25 I would certainly disagree.1 The nature ofA 2 the relationship between Mr. Bordeaux, our client, and 3 the plaintiff, Mr. Burts, was an integral fact to the 4 defense of our client and the claims asserted by 5 Mr. Burts because of the circumstances of the accident 6 itself. Q Chris, if you don't mind, would you flip back7 8 to Exhibit 7. 9 A Sure . Exhibit 7, again, is the Plaintiff's First10 Q 11 Request for Production of Documents served by Mr. Rose in 12 this case. 13 Would you look at the second page . 14 I ' m there .A Yes . Numbers 2 and 3, Request No. 2 and 315 Q and 16 I'll paraphrase -- one reads -- refers to or is a request 17 related to partnership, ownership or other interests in 18 the truck, and then No. 3 relates to the employment 19 relationship between Burts and Mr. Bordeaux and/or 20 Graphic Concepts. 21 A Yes . Okay. And was that discovery served by22 Q 23 Mr. Rose -- was it served on September 16 of 2014? 24 It presumably was served on or about that.A 25 If we look at the Certificate of Service, that might help Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 9 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 26 1 us answer the question. It looks like it was mailed on the 16th,2 3 according to the Certificate of Service. And I'll state to you that Donna Glogovac4 Q 5 signed Exhibit 8, which were Mr. Bordeaux's First 6 Interrogatories to the Plaintiff, on September 23rd. Would it be fair to state that Mr. Bordeaux ' s7 8 interrogatories went to Mr. Burts after Mr. Burts had 9 served discovery upon Mr. Bordeaux? Counsel, just so we're clear, I10 MR . SHAFFER : 11 think you referenced Ms. Glogovac signing the document. 12 You're referring to the Certificate of Service, correct , 13 or the Certificate of Mailing? The last page, you're correct.14 MR. McMICKLE : I guess Chris Moore signed page 9 and15 That's correct. 16 Donna Glogovac signed the certificate. (Exhibit 9 was marked.)17 Is this 9?18 MR. BRENNAN: 19 MR. McMICKLE: Yes. 20 BY MR. McMICKLE: Chris, I'm going to show you what's been21 Q 22 marked as Exhibit 9. It appears to me that these are the 23 handwritten responses to Plaintiff's First 24 Interrogatories and Request for Production of Documents 25 presumably that Mr. Bordeaux wrote out. Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 10 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 27 Do you know that to be the case?1 I know that's not the case because that is my2 A 3 handwriting. Okay. Fair enough.4 Q Where did you get this information?5 I would have obtained it from Mr. Bordeaux.6 A Q Okay. Would you look at -- there's little7 8 Bates numbers at the bottom. Look at -12335 . I'm there.9 A Request No. 3 is the request that relates to10 Q 11 employer -employee issues, and tell me what your 12 handwriting says. You're asking about Request No. 3. It looks13 A 14 like that starts around line 8, and then there's a line 15 around 11 that says "Response." Is that your question?16 Would you just read your handwriting17 Q Yes . 18 there just so it's in the record. "A response is not required because19 A Sure . 20 this responding defendant does not make the above stated 21 contention. " Okay. And as far as you were concerned, is22 Q 23 that the last time Mr. Burts' employee or employment if any, with Mr. Bordeaux or Graphic Concepts24 status, 25 would need to be discussed in the case because it's not Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 11 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 28 1 an issue in the case? MR. SHAFFER: The objection's vague.2 3 I don't know if I can answerTHE WITNESS: 4 that because, again, the relationship between Mr. Burts 5 and Mr. Bordeaux was an integral fact to the 6 circumstances of the accident, and whether or not there 7 was a legal status of employer- employee , that's a 8 nonissue. We don't care about that. What we do care about is, if it comes to the9 10 point of having to explain to the jury why in the heck 11 are those guys together to begin with at the time of the 12 accident, what is it about the relationship that would 13 give leverage by Mr. Burts, the plaintiff, over my 14 client, Mr. Bordeaux, so that Mr. Bordeaux found himself 15 in the circumstance that he did, maybe that relationship 16 could have come up, but as far as drawing a legal 17 conclusion, we weren't drawing any legal conclusion. 18 BY MR. McMICKLE : Okay. And the information you wrote in your19 Q 20 handwriting on Exhibit 9, it's my understanding that came 21 directly from Mr. Bordeaux? 22 A Yes . Do you have any reason to believe that he was23 Q 24 lying to you or not telling you the truth? 25 A No. Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 12 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 29 (Exhibit 10 was marked.)1 2 BY MR. McMICKLE : Exhibit 10 is Mr. Bordeaux's Response to the3 Q 4 First Request for Production of Documents served by 5 Mr. Burts, as well as his Answers to the First 6 Interrogatories; is that That's what it looks like.7 A I'm sorry, Chris,8 If you'll look on page 3Q it appears that the statement9 page 2 , Request No . 3 10 that you made in handwriting on the prior exhibit is what 11 actually made it into the final request. 12 A Yes . Okay. Did OOIDA try to influence you in any13 Q 14 way in the response to that request? They were not involved in this process .15 A No. Okay. Did they even know that this response16 Q 17 was being given before it was given? I don't see how they would.18 A 19 What was Mr. Bordeaux's story about what heQ 20 believed caused the accident? MR. SHAFFER: Object to the form as far as21 22 narrative, but go ahead. THE WITNESS: Mr. Bordeaux communicated to me23 24 that he had fallen asleep immediately prior to losing 25 control of the vehicle that resulted in the accident Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 13 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 38 1 discovery responses needed to be supplemented or to see 2 what the status was of discovery, to review that document 3 to see if there was something germane in that document 4 for the purpose of defending our client, but that was all 5 that I can think of . So on lines 13 through 15 on page 11 of6 Q 7 Exhibit 13, Mr. Glogovac, Mr. Brennan, and Mr. Rose say 8 "There is absolutely no reason why Bordeaux's defense 9 counsel should be reviewing and analyzing issues 10 regarding the declaratory relief action. That is a 11 blatant conflict of interest." Do you disagree with that statement?12 I do not know who actually authored those13 A I do know whoever wrote those words is wrong.14 words . I can tell you who signed the brief.15 Well,Q 16 since I don't have the rest of it, I can ' t . Touche. I'll supplement it.17 Have you ever seen a case where a lawyer on18 19 one side is alleging that the bad act of the other side 20 was actually committed by somebody he's married to? 21 A No. Did Scott Glogovac ever call you and tell you22 Q 23 anything like, "Hey, you're having my wife do something 24 that's improper"? 25 A No. Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 14 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 46 1 A 19 . 2 Q 19 . Does that appear to be call log records for3 4 both yourself and Mr. Verlander for this case? 5 It appears to be phone log notes that I wouldA and that looks like it goes -- the first6 have generated, 7 section of the exhibit, and then I see on the second 8 section there are notes that appear to be from 9 Mr. Verlander. 10 Do you keep -- what do you call -- let's justQ 11 talk about your section. How do you refer to this in the 12 office? 13 Just as phone log notes.A Okay. And do you do this on every case?14 Q Virtually every case.15 A Was there any particular reason you did it in16 Q 17 this case? No particular reason.18 A Why don ' t you take a minute and look at the19 Q 20 phone log, I would suggest page 4 or Bates No. -12314 of 21 Exhibit 19. It may refresh your recollection in terms of 22 who received the call and that sort of business, from 23 Mr. Brennan. So take a moment, if you will. Actually, 24 it's over on the next page. I'm sorry. 25 I see there ' s an entry dated December 9thA Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 15 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 47 1 reflecting a phone conversation I had with Mr. Brennan. 2 Yes, I see that. 3 So you're on page -12316 of Exhibit 19?Q 4 A Yes . And the December 9, 2014, entry, is that the5 Q 6 one you're referring to? 7 Yes, that's the entry that I was referringA I just don't remember right now if there was a8 to . 9 subsequent communication with Mr. Brennan before we sent 10 the January 13 letter or if it's a December 9th 11 conversation that is the conversation being referred to 12 in the December 13 letter -- pardon me -- January 13 13 letter. It well could be. I just don't remember if 14 there was any intervening conversation. I don ' t think 15 there was that I had. So in this conversation that you had with16 Q 17 Mr. Brennan, did he allege that you were improperly 18 conducting discovery on behalf of OOIDA and subverting 19 the interests of Mr. Bordeaux? 20 A No. Did he suggest that you had done anything21 Q 22 improper, however slight? 23 A No. 24 So when you learned that the lawyers forQ 25 Mr. Burts wanted to communicate with Mr. Bordeaux about Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 16 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 48 1 possibly doing a covenant not to execute and whatever 2 else is referenced in the first paragraph of page 1 of 3 Exhibit 18, is it at that point that you determined that 4 there may be a conflict and that you needed to advise 5 Mr. Bordeaux to seek his own personal counsel? I previously informed Mr. Bordeaux that if6 A 7 there were a conflict, he should have personal counsel . our very first letter to our clients as a matter8 In fact, 9 of course tells our clients that. 10 There had been, previous to December 9th, 11 conversations I had with Mr. Bordeaux wherein the topic 12 of him having different counsel came up. Quite obviously 13 he had been sued directly by his insurer, so presumably 14 he was going to be pursuing separate counsel for that if 15 he so chose. So I'm trying to answer your question fully 16 by saying the topic had been addressed even before that 17 phone conversation. And even before the letter in January?18 Q 19 A Yes . January 13th that's Exhibit 18?20 Q 21 A Yes . 22 Do you recall any conversation, over theQ 23 phone or otherwise, with Mr. Brennan after December 9th 24 of 2014 regarding this consent judgment /covenant not to 25 execute business? Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 17 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 49 I note we had a phone conversation on1 A 2 February 27th where I have a notation that Mr. Brennan 3 called to see how he can refer attorney Bob Cox to 4 represent Mr. Bordeaux as personal counsel. 5 I don't profess that my phone log notes are 6 always capturing everything that was said in a 7 conversation, so he may have said something in addition 8 to that . Can you think of anything at the moment?9 Q 10 Not at the moment .A Okay. Is it correct to say that the reason11 Q 12 you referred to Mr. Bordeaux hiring personal counsel in 13 Exhibit 18 was so that that personal counsel could assist 14 or advise Mr. Bordeaux with regard to the consent 15 judgment /covenant not to execute being pursued by 16 Mr. Brennan? 17 A Yes. Q Was there any other reason?18 Other than we felt it was a good idea for him19 A 20 to have personal counsel anyway. To be blunt, it is 21 something we embrace when we have a client who has 22 personal counsel if there's any kind of dispute with an 23 insurer. Q Okay. Now, if you'll look at -12316 of24 25 Exhibit 19, it looks like on February 4th you have a Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 18 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 50 1 conversation with Scott Glogovac by phone. 2 A Yes . It looks like he's kind of feeling out the3 Q saying he's been contacted to be coverage counsel4 case, 5 for the plaintiffs, which I guess would be Mr. Burts? That was my understanding.6 A And he asked basic background questions?7 Q 8 Correct .A How do you handle -- since you're9 Q 10 representing Mr. Bordeaux and a lawyer for Mr. Burts 11 calls you, how do you handle that with -- given the fact 12 that Mrs. Glogovac is working for you? What protocol or 13 what -- how do you handle that? My experience with both Donna as well as her14 A is they're both very professional,15 husband, Mr. Glogovac, 16 and I cannot think of or imagine a circumstance where 17 they would have ever discussed anything having to do with 18 an active case in my office. So that certainly was and 19 is not a concern. The phone call from Mr. Glogovac was one that20 21 seemed to me more inquiring about some basic background 22 questions. It was, in fact, unclear to me if he was 23 really going to be representing Mr. Burts and involved. 24 I did not have that impression at that time. Was there any claim by Mr. Glogovac that you25 Q Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 19 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 51 1 or anybody at your firm had acted improperly in any way, 2 however slight, in the defense of Mr. Bordeaux? 3 A None . Did Mr. Glogovac, at any time while you were4 Q 5 representing Mr. Bordeaux, claim or even suggest to you 6 that you or anybody at your firm was improperly using 7 discovery in the tort suit to develop coverage defenses 8 for OOIDA to the detriment of your client? 9 A No. 10 Have you asked Donna Glogovac if she hasQ 11 discussed anything about the coverage case with her 12 husband? I have not .13 A Did it surprise you that Mr. Glogovac is14 Q 15 asserting you violated rules of ethics in your 16 representation of Mr. Bordeaux? 17 MR . GLOGOVAC : 1 1 ve never made such an 18 assertion, for the record. I'm not defending this 19 deposition or handling it, but that's an outright 20 misstatement, Mr. McMickle, and you know it. MR. McMICKLE : I don't know it.21 MR. GLOGOVAC: Yeah, you know it.22 23 No, I don't, but thank you forMR. McMICKLE: 24 clarifying. 25 Well, don't ask questions thatMR. GLOGOVAC: Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 20 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 52 1 assume facts not in evidence. You've led this entire 2 deposition with questions that suggest facts that may or 3 may not be true, so we've let that go, but you've 4 crossed the line with that one. MR. McMICKLE: Thank you.5 6 BY MR. McMICKLE: In your opinion -- well, I'll leave that one7 Q 8 for now. So on page -12316 of Exhibit 123089 excuse of Exhibit 19, do you see a February 24th10 me 11 conversation with Mr. Glogovac? I do .12 A And at this point, February 24, you had13 Q 14 already told Mr. Bordeaux that he should get personal 15 counsel with regard to the consent judgment /covenant not 16 to execute; is that correct? 17 A Yes . In that February 24th conversation did18 Q 19 Mr. Glogovac suggest that you or Lemons, Grundy or 20 anybody working for Lemons, Grundy had acted improperly 21 in any way, however slight, with regard to the defense of 22 Mr. Bordeaux? 23 A No. Did he ask you to do anything or take any24 Q 25 specific action? Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 21 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 54 1 to Mr. Glogovac and Mr. Brennan. If you'll flip to page 2, Exhibit 21, the2 3 third full paragraph. That starts with the phrase "In your letter"?4 A That ' s correct . Would you read that5 Q 6 paragraph, please. I've read the paragraph.7 A So Mr. Rose, if I can paraphrase, is saying8 Q 9 that one of the reasons that they refused to cooperate 10 with regard to military records and disability claim 11 records in the tort suit was because it was clear that 12 defense counsel, you, was not acting in good faith. Did they ever tell you that?13 14 A No. It says - - goes on to say that you were not15 Q 16 acting in good faith "as they, " which would be your firm, 17 "were using the discovery in the tort action to obtain 18 evidence to support the declaratory judgment action and 19 to defeat coverage." Is that a false representation?20 It's an outrageous false representation.21 A 22 Q I agree . Let's go back to Exhibit -- I didn't write23 24 the exhibit number on this text. What ' s the one below 25 that, if you don't mind? What exhibit number was that? Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 22 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 57 If that was my last phone call with1 A 2 Mr. Glogovac, it would have to be. 3 Do you recall any call from Mr. GlogovacQ 4 where he was telling you or communicating to you that 5 what Mr. Verlander did at the deposition of Mr. Burts was 6 improper in any way? 7 A No. Q Then Mr. Rose, in paragraph 21 to -- line 218 9 to 24 on page 1 of Exhibit 20, he says, "Again, they say 10 we've got a plan. It's all part of a plan. We say but, 11 yeah, you're going down a road that you're trying to 12 litigate your client out of coverage. You can ' t do 13 that." Did Mr. Rose ever say that to you?14 15 A No. Did you ever respond to him that16 Q "We've got a 17 plan. It's all part of a plan"? 18 A No. Did you tell Mr. Glogovac that you got a plan19 Q 20 and that everything we're doing is part of a plan? Not in that sense. I mean, I cannot imagine21 A 22 that coming up, but I'm just being careful because 23 there's some ambiguity in that question, but I can't 24 think of anything like that. Let me ask a different one.25 Q Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 23 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 58 Did Mr. Glogovac ever tell you, "You're going1 2 down a road that you're trying to litigate your client 3 out of coverage . You can't do that"? 4 A No. Did he ever tell you that anything like that,5 Q 6 that could be similar to that? 7 A No. So as far as you know, that is a false8 Q 9 representation? MR. SHAFFER: Object to the form,10 11 characterization. He's here to state facts, and what 12 that leads to is someone else's opinion. You can ask him 13 if he said it or if that's correct or not, but Well, I think that's a fair14 MR. McMICKLE : 15 question, with all due respect. I'd like him to answer 16 it . 17 I don't profess to know theTHE WITNESS: 18 entire context, it ' s notbut based on what I see here, 19 accurate. 20 BY MR. McMICKLE: Do your phone logs show any conversation with21 Q deposition that, again, was22 Mr. Glogovac after Mr. Burts 23 on February 26th of 2015? 24 I do not see that, nor do I have anyA 25 recollection of a phone conversation with Mr. Glogovac Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 24 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 68 And why could you no longer represent1 Q 2 Mr. Bordeaux? Because there was nothing further we could do3 A 4 to help him in defending the case. Plus, Mr. Bordeaux's 5 personal counsel, Mr. Cox, had communicated to us that we 6 should do nothing further in this matter. Have you ever had an insured's personal7 Q 8 counsel tell you to stand down and take no further action 9 to defend an insured? 10 A No. Have you ever heard of it?11 Q I don't remember hearing of it. I could12 A 13 have. When I say "it" I mean a situation like this.14 Q 15 Is that fair? We have a unique16 That's what I understood.A 17 situation here. And, again, at the time that you filed this18 Q 19 motion, had Mr. Brennan, Mr. Cox, Mr. Rose or 20 Mr. Glogovac or anybody associated with them suggested 21 that you or anyone at LGE, or at Lemons, Grundy, had done 22 anything improper, however slight? 23 A No. Did any of the aforementioned lawyers ever24 Q 25 tell you that OOIDA should have provided Cumis counsel to Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 25 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 69 1 Mr . Bordeaux? 2 A No. When I say "Cumis counsel," do you know what3 Q 4 I mean? I do .5 A Just so there's a clear record, what do you6 Q 7 understand that to mean? I understand Cumis counsel refers to a8 A 9 California case where a determination was made in the 10 state of California that if there is a type of conflict 11 between an insurer and its insured that impacts the 12 defense in a certain way, that the insurance company 13 should defer to the insured's wishes as to who would be 14 hired to represent the insured at the expense of the 15 insurance company. Q Thank you .16 (Exhibit 26 was marked.)17 18 BY MR. McMICKLE : Start looking through those if you don't19 Q 20 mind. Do you want this copy?21 MR. SHAFFER: What is it?22 It's a series of emails23 MR. McMICKLE: 24 between Chris Moore and Marsha Stephenson. 25 ///// Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 26 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 70 1 BY MR. McMICKLE : That's 26?2 Q 3 A Yes . Chris, would you also pull out Exhibit 13:4 Q 5 It's going to be the Plaintiff's Motion to Compel. I have Exhibit 13 and Exhibit 26 in front of6 A 7 me . MR. SHAFFER: If we could just wait a bit8 I'd like to briefly review this for a moment.9 more, MR. McMICKLE: Sure. Just tell me when.10 Wayne, if you want to get the contents of11 12 what I'm going to be asking about, if you'll look at 13 Exhibit 13, page 11, you'll understand the context. 14 MR. SHAFFER: I'm ready. 15 BY MR. McMICKLE: Chris, I hate to ask you to read, but instead16 Q 17 of me reading into the record, it ' s a little more 18 efficient to have you read it. If you'd look at lines -- beginning on line19 20 8, page 11 of Exhibit 13 to line 5 of page 12 of Exhibit I think you already read that text once, but21 13, 22 You are correct; I've already read that.A Okay. The lawyers for Mr. Burts have23 Q 24 asserted that "there are multiple references to 25 communications between Mr. Moore and Ms. Stephenson where Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 27 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 71 1 it is obvious they are inappropriately coordinating 2 gathering information to support OOIDA' s declaratory 3 relief action and defeat coverage." Is that a false statement?4 It is false.5 A Okay. Do you say anything in the emails that6 Q 7 are part of Exhibit 26 that would support that statement 8 to the federal court? Nothing that I would think could reasonably9 A I certainly don't see how a coordinating10 support that. 11 takes place if I'm just saying what is available to Just like Mr. Brennan12 anyone who were to call and ask. 13 called me or Mr. Glogovac called me or Mr. Rose called 14 me, I would certainly extend courtesies and tell them 15 what was scheduled. Fair enough.16 Q Is it entirely false to say that you were17 18 collaborating with Ms. Stephenson -- That is entirely false.19 A Let me finish just -- is it entirely false to20 Q 21 say that you were collaborating with Ms. Stephenson 22 regarding what discovery should be conducted to defeat 23 coverage? That is entirely false.24 A Let me ask you this: If what they're saying25 Q Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 28 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 72 1 is true, which it's not, but let's just say, if they're 2 alleging that you intentionally collaborated with 3 Ms . Stephenson to subvert the interests of 4 Mr . Bordeaux Is that how you read this?5 I do .6 A would that be a violation of the rules of7 Q 8 ethics? 9 A Yes . (Exhibit 27 was marked.)10 11 BY MR. McMICKLE : Showing you Exhibit 27, is that some initial12 Q 13 disclosures 14 A Yes . -- filed by the plaintiff in the tort suit?15 Q 16 A Yes . If you'll flip to page 5 and 6 of that17 Q 18 document 19 A I'm at page 5 . -- do you see the Computation of Special20 Q 21 Damages there? 22 A Yes . And it goes on to the next page, and one of23 Q 24 the claimed special damages of Mr. Burts was a $1353 25 charge from the Sharon Regional Health System. Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 29 of 30 OOIDA Risk Retention Group, Inc. vs Bordeaux and Burts Christian Moore February 19, 2016 92 1 STATE OF NEVADA ) SS . 2 COUNTY OF WASHOE ) I, PEGGY B. HOOGS, a Certified Court Reporter3 4 in and for the County of Washoe, State of Nevada, do 5 hereby certify that on Friday, February 19, 2016, at the 6 offices of Laxalt & Nomura, 9600 Gateway Drive, Reno, 7 Nevada, I reported the deposition of CHRISTIAN MOORE in 8 the matter entitled herein; that said witness was duly 9 sworn by me; that, before the proceedings' completion, 10 the reading and signing of the deposition were requested 11 by counsel for the respective parties; that the foregoing 12 transcript, consisting of pages 1 through 90, is a true 13 and correct transcript of the stenographic notes of 14 testimony taken by me in the above-captioned matter to 15 the best of my knowledge, skill and ability. I further certify that I am not an attorney16 17 or counsel for any of the parties, nor a relative or 18 employee of any attorney or counsel connected with the 19 action, nor financially interested in the action. Dated at Reno, Nevada, this 29th day of20 21 February, 2016 22 Peggy B. Hoogs, CCR #160, RDR 23 24 25 Hoogs Reporting Group 775-327-4460 Case 3:15-cv-00081-RCJ-VPC Document 191-3 Filed 06/22/17 Page 30 of 30 444 99EXHIBIT Case 3:15-cv-00081-RCJ-VPC Document 191-4 Filed 06/22/17 Page 1 of 6 1ROBERT COX 07/14/2016 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF NEVADA 3 oOo 4 5 OOIDA RISK RETENTION GROUP, INC., Case No. : 6 3 : 15-cv-00081-RCJ-VPC Plaintiff, 7 -vs- MARC A. BORDEAUX, an individual; ROBERT M. BURTS, an individual; DOES I-V, 8 9 10 Defendants . 11 AND RELATED COUNTERCLAIM 12 13 14 15 VIDEOTAPED DEPOSITION OF C. ROBERT COX 07/14/2016 Reno, Nevada16 17 18 19 20 21 22 23 24 REPORTED BY: KRISTINE BOKELMANN NV CCR #165, CA #5979 25 MOLEZZO REPORTERS 775 322-3334 Case 3:15-cv-00081-RCJ-VPC Document 191-4 Filed 06/22/17 Page 2 of 6 ROBERT COX 07/14/2016 8 1 counsel? I did not.2 A And is it correct to say that your 4 representation of Mr. Bordeaux was confined to the 5 settlement agreement that was ultimately signed by Mr. 6 Bordeaux? 3 Q 7 A That ' s correct . 8 Q Okay. And when I say the settlement 9 agreement , I'm referring to Exhibit 54, sir. A Unless you want me to look at it, it appears 11 to be the document to me. 10 12 Q Yeah, I don't want you to have to read it. I will purport to you that that's what's been provided to me as the - A That is the settlement agreement, yes. Q Okay. And was that your signature on the last 13 14 15 16 17 page? 18 A It is . 19 Q Okay. So is it correct to say that you were not engaged in any way to be Mr. Bordeaux's defense lawyer in the tort suit filed by Mr. Burts? A I was not, and he was aware of that, of 20 21 22 23 course . 24 Yes, sir. Did you enter into any retention or retainer agreement with Mr. Bordeaux? Q 25 MOLEZZO REPORTERS 775 322-3334 Case 3:15-cv-00081-RCJ-VPC Document 191-4 Filed 06/22/17 Page 3 of 6 12ROBERT COX 07/14/2016 1 I was familiar with such settlementA 2 agreements, but in connection with this, no research 3 into such documents or - Was there any guiding precedent that you can4 Q 5 think of in Nevada - or Nevada - excuse me 6 regarding settlement agreements of that type? A If there is, I'm not familiar with it, though 8 I'm familiar with this type of agreement being entered. Q Okay. Did you look at any specific Nevada law 10 or California law regarding settlement agreements? A I did not. 7 9 11 12 So who contacted you and asked you to represent Mr. Bordeaux? Mr. Tom Brennan contacted me. Q 13 14 A 15 Q And - 16 A He didn't ask me to represent him. He asked if I might be interested in a pro bono representation. Q Okay. And is it correct to say that you and Tern Brennan are good friends? A We are good friends. Q Okay. And do you all actually vacation together from time to time? A We've never vacationed together. Maybe one time we have, but our families haven't vacationed together . 17 18 19 20 21 22 23 24 25 MOLEZZO REPORTERS 775 322-3334 Case 3:15-cv-00081-RCJ-VPC Document 191-4 Filed 06/22/17 Page 4 of 6 27ROBERT COX 07/14/2016 improper?1 2 A That ' s true . 3 Q Okay. Do you believe that it was bad faith 4 for OOIDA to file a dec action while the tort suit was 5 pending? 6 I have no opinion on that. Have you asked anyone whether or not that's A 7 Q 8 proper or not? 9 I have not.A Q Okay. Did you provide advance notice to OOIDA that you were going to enter into the settlement agreement? 10 11 12 13 Well, I felt they were in contact with Chris Moore and Mr. Verlander, and it was clear to them, I believe, that I was meeting with Mr. Bordeaux for the purpose of extracting him from this litigation and not becoming his counsel in the tort action. So since there's communication from OOIDA to A 14 15 16 17 18 each of their counsel handling the tort action, I would say I thought certainly OOIDA was informed what was 19 20 happening .21 22 Q Understood. But is it correct to say you never did anything directly yourself to communicate with OOIDA? 23 24 25 I've had no communication with OOIDA or any ofA MOLEZZO REPORTERS 775 322-3334 Case 3:15-cv-00081-RCJ-VPC Document 191-4 Filed 06/22/17 Page 5 of 6 ROBERT COX 07/14/2016 73 1 )STATE OF NEVADA ) ss . 2 )COUNTY OF WASHOE 3 I, KRISTINE BOKELMANN, a Certified Court 4 Reporter in and for the County of Washoe, State of 5 Nevada, do hereby certify: 6 That on Thursday, July 14th, 2016, at the hour 7 of 1:35 p.m. of said day, at McDonald Carano Wilson, 100 8 West Liberty Street, Reno, Nevada, personally appeared 9 C. ROBERT COX, who was duly sworn by me to testify the 10 truth, the whole truth, and nothing but the truth, and 11 thereupon was deposed in the matter entitled herein; 12 That the deposition was taken in verbatim 13 stenotype notes by me, a Certified Court Reporter, and 14 thereafter transcribed into typewriting as herein 15 appears; 16 That the foregoing transcript, consisting of 17 pages 1 through 74, is a full, true, and correct 18 transcription of my stenotype notes of said deposition, 19 to the best of my knowledge, skill and ability. 20 Dated at Reno, Nevada, this 22nd day of July, 21 2016. 22 23 24 KRISTINE A. BOKELMANN, CCR #165 25 MOLEZZO REPORTERS 775 322-3334 Case 3:15-cv-00081-RCJ-VPC Document 191-4 Filed 06/22/17 Page 6 of 6 44EXHIBIT 5 Case 3:15-cv-00081-RCJ-VPC Document 191-5 Filed 06/22/17 Page 1 of 3 Case 3:15-cv-00081-MMD-VPC Document 70-5 Filed 12/21/15 Page 2 of 2 c Lemons, Grundy &. Eisenberg July 2, 2015 VIA E-MAIl & U.S. MAIl experience • results Marc Bordeaux 9455 Skyvlsta Parkway Apt 34 B Reno, NV 89506 marc.bordeaux@aol.com C. Robert Cox, Esq. Maupin, Cox & LeGoy 4785 Caughlin Parkway P.O. Box 3000 Reno, NV 89520 crcox@rpplrenplaw.com i Attorneys at Law i 6005 Plumas Street Re: Marc Bordeaux dba Graphic Concepts adv. Burts, Robert M. Case No.: CV14-00941 . Claim No.; 162623 LGE File No.: 50.7606 Third Floor Reno, NV 89519 Ti 775.786.686$ Dear Messrs. Bordeaux and Cox: Ft 775.786.9716 On July 1, 2015 we received service of Plaintiff Robert Burts' Motion to Set Hearing for the Court to Fix Damages Based upon a Stipulated Settlement Agreement. We have notified Mr. Bordeaux's insurer, OOIDA, of the motion and the settlement agreement, and calendared the deadline for the opposition to this motion as Monday, July 20, 2015. Edward }. Lemons David R. Grundy * Robece L Eisenberg We are writing to ask if Mr, Bordeaux wants us to oppose the timing of the hearing sought by the motion as premature because we are still seeking evidence that could be used to diminish Mr. Burts' damages. Also, does Mr, Bordeaux want us to dispute the damages claimed by Mr. Burts? In light of the deadline for the opposition to the pending motion, we request that you provide the requested guidance by Friday. July 10, 2015, Christian L, Moore I 1 Alice Campos Mercado Douglas R. Brown Todd R. Alexander Richard G. Veilander Catyn 5. Tijsseling Brandt H.Butko Sincerely, ! Christian L, Moore, Esq, Richard G, Verlander, Esq, i* OF COUW6L CLM/RGV/jcb WWW.LGE.NET MCL-000062 Case 3:15-cv-00081-RCJ-VPC Document 191-5 Filed 06/22/17 Page 2 of 3 Case 3:15-cv-00081-MMD-VPC Document 70-6 Filed 12/21/15 Page 2 of 2 From: Bob Do* crcox@mdlawllrm.com Subject: Re: Bordeaux adv, Burts Date: July 6. HO.16 at 10:47 AM To: susand@l30.rwt, r3v@l30.not Cc: marc.bordea_ux@aol.com, Richard O. Verlander rgv@lge.net, Heather Motta hmolta@mclrenolaw,com Mr. Verlander, In response to your communication below, please be advised that after consulting with Mr. Bordeaux, he has stated that he does not want you or your firm to dispute the damages in this case on his behalf. As he also informed your office when called on this issue, all communications to or with him should be directed to me and not him. Thanks for your cooperation in this matter. Sincerely, C. Robert Cox Sent from my iPhone i On Jul 2, 2015, at 3:25 PM, Susan Davis wrote: Gentlemen: Attached is Mr. Verlander's letter to you dated July 2, 2015 in the above- referenced matter. If you have any questions, please give Mr. Verlander a call. Susan G. Davis, PP, PIS, CU Secretary to Douglas R, Brown and Todd R. Alexander Lemons, Grundy 8t Eisenberg 6005 Plumas Street, Third Floor | Reno, NV 89519 1 775.786.6868 | f775-786.9716 | www.lpe.net PERSONAL AND CONFIDENTIAL: The information contained in this message may be privileged, confidential and protected front disclosure. Ifyou are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. Ifyoubelleve you have received this e-mail message In error, please email the sender at susand@lae.net. i <2015-07-02 RGV Itr to Bordeaux & Cox.pelf> MCL-000022 Case 3:15-cv-00081-RCJ-VPC Document 191-5 Filed 06/22/17 Page 3 of 3 446WEXHIBIT Case 3:15-cv-00081-RCJ-VPC Document 191-6 Filed 06/22/17 Page 1 of 2 Lemons, Grundy& Eisenberg July 6, 2015 VIA E-MAIL ONLY experience • results C. Robert Cox, Esq. Maupin, Cox & LeGoy 4785 Caughlin Parkway P.O. Box 3000 Reno, NV 89520 crcox(S)mclrenolaw.com Attorneys at Law 6005 Plumas Street Re: Marc Bordeaux dba Graphic Concepts adv. Burts, Robert M. Case No.: CV14-00941 Claim No.: 162613 LGE File No.: 50.7606 Third Floor Reno, NV 89519 T: 775.786.6868 Dear Mr. Cox: F: 77:5.786.9716 Thank you for your rapid reply via email to our office's letter dated July 2, 2015 to you and Mr, Bordeaux. Because we have been instructed by you and Mr. Bordeaux that our firm is not to dispute the damages in this case on behalf of Mr. Bordeaux, and all communications to or with Mr. Bordeaux should be directed to you not to Mr. Bordeaux, it is apparent there is nothing further for our office to do in this matter. We are therefore withdrawing from representing Mr. Bordeaux, and ask that you please complete the accompanying substitution of counsel form by obtaining Mr. Bordeaux's signature, executing the form yourself, and returning the document to our office for completion. Additionally, in light of Mr. Bordeaux's instruction that we not dispute the damages in this case, we will be withdrawing our motion to compel. Please do not hesitate to contact the undersigned if you have any questions or concerns. Edward J. Lemons David R. Grundy * Robert L. Eisenberg Christian L, Moore Alice Campos Mercado Douglas R. Brown Todd R. Alexander Richard G. Verlander Caryn S. Tijsseling Sincerely, Brandt H. Butko 2 /christian L. Moore, Esq. Richard G. Verlander, Esq. * OF COUNSEL CLM/RGV exhibits 3b B _ WWW.LGE.NET LGE010886 Case 3:15-cv-00081-RCJ-VPC Document 191-6 Filed 06/22/17 Page 2 of 2 44 99EXHIBIT 7 Case 3:15-cv-00081-RCJ-VPC Document 191-7 Filed 06/22/17 Page 1 of 3 Case 3:15-cv-00081-MMD-VPC Document 70-8 Filed 12/21/15 Page 2 of 2 ! ! 1 I > From: Sean Rose seafi@roselawnevada.corn Subject: Re: Bordeaux adv Burts Date: July 7, 201$ at S:$8 AM To: BtwnanolflOB tibfennan6192@aol.com Co: Bob Cox crcox@mclrenolaw.com, Sean Rose roselawl @sbcglobal,nel i I i Totally agree. Put the turd in their pocket. Nice connive trb.i I Sean P. Rose, Esq. Rose Law Office 150 W. Huffaker Lane, suite 101 Reno, Nevada 89511 775-824-8200 (office) 775-657-8517(fax) 775-845-9522 (cell) Sent from my iPhone On Jul 7, 2015, at 5:47 AM, Tom Brennan wrote: • , . • * I'm thinking our response would be something along the lines of your his personal counsel and are advising him vis a vis his insurance, coverage since the ins company has filed s dec relief action agains him. You are not insurance counsel. To protect himself Bordeaux entered into this agreement and since the agreement with plaintiffs holds him harmless from any judgement, the only reason for the damages to be contested is to protect the insurance company and Bordeaux should not have to incur costs for that and if they ( Chris Moore) want to do that they should contact the carrier..thought$? Tom Brennan On Jul 6, 2015, at 7:30 PM, Cox, Bob wrote: Hey guys, See Verlander letter below and give me your thoughts. CR MCl-000023 Case 3:15-cv-00081-RCJ-VPC Document 191-7 Filed 06/22/17 Page 2 of 3 Case 3: 15-cv-00081-M M D-VPC Document 70-7 Filed 12/21/15 Page 2 of 2i cc MAUPIN, COX & LeGOY Attorneys At taw 4785 CasgMin Paikway Reno, Nevada 89519 Telephone (775)827.2000 Facsimile (775)827-2185 RO. Box 30000 Reno, Nevada 89520 wwwmctoenolaw.com C. Robert Cox, Esq. E-Mail: cmx@mclr