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Case 1:08-cv-23343-WMH Document 100
Entered on FLSD Docket 05/05/2011 Page 1 of 33
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
MAPLEWOOD PARTNERS, L.P.,
MAPLEWOOD MANAGEMENT, L.P.,
and MAPLEWOOD HOLDINGS, LLC,
CASE NO. 08-23343-CIV-HOEVELER
Magistrate Judge Bandstra
Plaintiffs,
vs.
INDIAN HARBOR INSURANCE COMPANY,
Defendant.
________________________________________/
SUPPLEMENTAL AMENDED COMPLAINT
Plaintiffs, MapleWood Partners, L.P. (“Partners”), MapleWood Management, L.P.
(“Management”),
and
MapleWood
Holdings,
LLC
(“Holdings”)
(collectively,
“the
Policyholders”), sue Defendant, Indian Harbor Insurance Company (“the Insurer”), and allege:
NATURE OF ACTION, JURISDICTION AND VENUE
1.
This is an action seeking damages for breach of contract arising out of the failure
of the Insurer to comply with its defense and indemnity obligations under the Financial Services
Liability Policy described below.
2.
This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1),
(c)(1) (2005), as this is a suit between parties that are citizens of different states, and the amount
in controversy exceeds $75,000, exclusive of interest and costs.
3.
Partners, Management, Holdings, and all the members of and/or partners in
Partners, Management, and Holdings are citizens of states other than the states in which the
Insurer is incorporated and maintains its principal place of business.
4.
Venue is proper in this Court, as the Insurer does business in this District, the
Policyholders reside and conduct business in this District, and the insurance policy that is at issue
in this action was issued and delivered in this District.
THE PARTIES
5.
Partners is a Delaware limited partnership that provides financial advisory
services in exchange for a fee to companies that include Julio & Sons; MapleWood Equity
Partners, L.P.; and MapleWood Equity Partners (Offshore), Ltd. (all described below). Partners
is the named insured under the insurance policy that is at issue in this action. Partners’ principal
place of business is Miami-Dade County, Florida.
6.
Management is a Delaware limited partnership that acts as funds manager in
exchange for a fee for MapleWood Equity Partners, L.P., and MapleWood Equity Partners
(Offshore), Ltd. (both described below). Management is a limited partner of MapleWood Equity
Partners, L.P., and a shareholder of MapleWood Equity Partners (Offshore), Ltd. Management
is also the managing member of Julio Investors, LLC (described below).
Management’s
principal place of business is Miami-Dade County, Florida.
7.
Holdings is a Delaware limited liability company. Holdings is the general partner
in Partners and Management. Holdings’ principal place of business is Miami-Dade County,
Florida.
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8.
During the period relevant to this action, the members of Holdings were Robert
V. Glaser, a citizen of Florida; Robert J. Reale, a citizen of Florida; Joseph DaGrosa, a citizen of
Florida; and Glen Dell, a citizen of Florida. Each of these individuals also is a limited partner of
Management and of Partners.
9.
Day-to-day management decisions at Holdings, Management, and Partners were
made by the managing partner/managing member, Robert V. Glaser. More significant decisions
were taken by the Executive Committee or the Investment Committee (whose relevant members
are identified below).
10.
Holdings, Management, and Partners are obligated to indemnify their past,
present and future directors, officers, partners, principals, members, trustees, and employees for
Loss resulting from Claims, as those terms are defined in the Policy.
11.
Holdings, Management, and Partners are obligated to reimburse Julio & Sons
Company (discussed below) for Loss resulting from Claims, as those terms are defined in the
Policy.
12.
The Insurer is a North Dakota corporation, with its principal place of business at
70 Seaview Avenue, Stamford, Connecticut. The Insurer engages in the business of selling
contracts of insurance in the Southern District of Florida and elsewhere.
RELEVANT NONPARTIES
13.
MapleWood Equity Partners, L.P. (“Equity”), is an equity investment fund
organized as a Delaware limited partnership.
14.
Management is the general partner of Equity, whose principal place of business is
Miami-Dade County, Florida.
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15.
Endorsement No. 4 of the insurance policy at issue in this action expressly
includes Equity as a scheduled Investment Fund.
16.
MapleWood Equity Partners (Offshore), Ltd. (“Offshore”), is an equity
investment fund organized under the laws of the Cayman Islands.
17.
Management is a shareholder and manager of Offshore, whose principal place of
business is Miami-Dade County, Florida.
18.
Endorsement No. 4 of the insurance policy at issue in this action expressly
includes Offshore as a scheduled Investment Fund.
19.
Julio & Sons Company (“Julio & Sons”) is a Delaware corporation with its
principal place of business in Dallas County, Texas.
20.
Julio & Sons, formerly known as Lucky Boy Corp., is the sole shareholder of
direct and indirect subsidiaries that operate the Uncle Julio’s chain of Mexican restaurants.
21.
Pursuant to contracts, and in exchange for a fee, Partners provides advisory
services to Julio & Sons.
22.
As defined in the Investment Fund Management and Professional Liability
coverage part of the insurance policy that is at issue in this action, Julio & Sons is a Portfolio
Entity.
23.
Pursuant to an agreement, Julio & Sons advanced all Defense Expenses, as that
phrase is defined in the Policy, that the Policyholders incurred in the underlying claims and
lawsuits that are at issue in this action, because the Insurer has not paid Loss as the policy and
applicable law provide.
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24.
The Policyholders are obligated on receipt of money from the Insurer, to
reimburse Julio & Sons for all Defense Expenses and other Loss that Julio & Sons advances to or
on behalf of the Policyholders in connection with the underlying claims and lawsuits that are at
issue in this action.
25.
Julio Investors, LLC (“Julio Investors”), is a Delaware limited liability company
with its principal place of business in Miami-Dade County, Florida.
26.
Julio Investors is majority owner of Julio & Sons.
27.
Management is the managing member of Julio Investors.
28.
Equity and Offshore own 100 percent of Julio Investors.
29.
Robert V. Glaser (“Glaser”) was, at all times relevant to this lawsuit, the
managing member of Holdings, a limited partner of Management and Partners, and an employee
of Partners.
30.
Glaser was, at all times relevant to this lawsuit, chairperson of the Executive
Committee and the Investment Committee of Partners, Management, and Holdings, and the
director of Offshore.
31.
Glaser has also been a director of Julio & Sons and Uncle Julio’s since February
32.
Robert J. Reale (“Reale”) was, at all times relevant to this lawsuit, a member of
2007.
Holdings, a limited partner of Management and Partners, and an employee of Partners.
33.
Reale, at all times relevant to this lawsuit, served on the Executive Committee and
the Investment Committee of Partners, Management, and Holdings.
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34.
Reale was a director of Julio & Sons and Uncle Julio’s from December 2001 to
May 2005.
35.
Joseph DaGrosa (“DaGrosa”) was, at all times relevant to this lawsuit, a member
of Holdings and a limited partner of Management and Partners. For at least part of the relevant
period, DaGrosa also was an employee of Partners.
36.
DaGrosa, at various times relevant to this lawsuit, served on the Executive
Committee and the Investment Committee of Partners, Management, and Holdings.
37.
Glen Dell (“Dell”) was, at all times relevant to this lawsuit, a member of Holdings
and a limited partner of Management and Partners.
38.
Dell served on the Executive Committee and the Investment Committee of
Partners, Management, and Holdings beginning prior to the time relevant to this lawsuit and
ending in 2001.
39.
Lt. Gen. Burton C. Glosson, U.S. Air Force, Retired, (“Glosson”) was, at all times
relevant to this lawsuit, an indirect limited partner in Equity.
40.
Glosson has been a director of Julio & Sons and Uncle Julio’s since April 2004.
41.
Rick Levitt (“Levitt”) has been a director of Julio & Sons and Uncle Julio’s since
December 2001.
42.
Levitt was an employee of Partners from 2002 to 2007.
43.
Bill Tillett (“Tillett”) has been a director of Julio & Sons and Uncle Julio’s since
December 2001.
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44.
Tillett was an employee of Partners during a period beginning prior to the time
relevant to this lawsuit and ending March 31, 2002.
45.
Tillett was a member of Holdings and a limited partner of Management and
Partners during a period beginning prior to the time relevant to this lawsuit and ending December
28, 2001.
46.
Tillett served on the Executive Committee and the Investment Committee of
Partners, Management, and Holdings during a period beginning prior to the time relevant to this
lawsuit and ending December 28, 2001.
47.
Greg Morris (“Morris”) was chief financial officer of Julio & Sons from
December 2003 to August 2006.
48.
Morris previously was an employee of Partners.
49.
Morris served on the Investment Committee of Partners, Management, and
Holdings during a period beginning prior to the time relevant to this lawsuit and ending in
December 2003.
50.
Abdo Shashy (“Shashy”) was president, chief executive officer, a minority
shareholder, and a director of Julio & Sons from 1997 to November 2006, as well as a director of
Uncle Julio’s.
51.
Gerald Green (“Green”) was vice president of Julio & Sons from 1997 to
November 2006.
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FACTUAL ALLEGATIONS
The Insurance Contract
52.
Because MapleWood was dissatisfied with the claims handling of its predecessor
insurer, AIG, in 2006, MapleWood determined to replace the expiring AIG policy with a like
policy sold by a different insurer.
53.
Following submission of comprehensive information detailing the Policyholders’
ownership and structure, the Insurer accepted the risk and issued to the Policyholders a Financial
Services Liability Policy bearing Policy No. ELU094980-06 (“the Policy”). A copy of the
Policy is attached as Exhibit A.
54.
The Policy incepted November 4, 2006, with a stated expiration date of
November 4, 2007.
55.
The Policy was extended by endorsement through November 4, 2008.
56.
The Policy is a claims-made policy.
57.
The Policy includes three coverage parts that are applicable to the suits and claims
that are at issue in this action: Investment Advisers Management Liability (“IAML”), Investment
Advisers Professional Liability (“IAPL”), and Investment Fund Management and Professional
Liability (“IFMPL”).
58.
The IAML, IAPL, and IFMPL coverage parts each have a separate maximum
limit of liability of $5,000,000 per policy period.
59.
The Policy has an aggregate limit of liability of $5,000,000 per policy period for
all Claims.
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60.
The IAML, IAPL, and IFMPL coverage parts each have a separate retention of
$250,000 per Claim, though only a single retention applies to related claims.
61.
The Policy recognizes that a single claim may be covered under more than one
coverage part.
62.
Under the Policy, Defense Expenses exhaust the limits of liability.
63.
The Policy defines “Defense Expenses,” in pertinent part as “reasonable legal fees
and expenses incurred in the defense of any Claim.”1
64.
The Policy defines “Claim” as: “(1) any written notice received by an Insured
that any person or entity intends to hold any Insured responsible for a Wrongful Act; (2) any
civil proceeding in a court of law or equity, or arbitration; or (3) any criminal proceeding which
is commenced by the return of an indictment.”
65.
The Insurer has taken the position that any allocation between covered and
uncovered claims, and/or between covered and uncovered persons or entities, should apply to
amounts within the retention to the same extent that it applies to amounts in excess of the
retention.
66.
The Policy is silent as to the calculus for allocating between covered and
uncovered claims, and between covered and uncovered entities, other than to state that:
If both Loss covered by this Policy and loss not covered by this Policy are
incurred, either because a Claim made against the Insured contains both covered
and uncovered matters, or because a Claim is made against both the Insured and
others not insured under this Policy, the Insured and the Insurer will use their
best efforts to determine a fair and appropriate allocation of Loss between that
portion of Loss that is covered under this Policy and that portion of loss that is not
covered under this Policy. Additionally, the Insured and the Insurer agree that in
determining a fair and appropriate allocation of Loss, the parties will take into
1
In all quotations from the Policy, the boldface, capitalized rendering of defined terms is in the original.
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account the relative legal and financial exposures of, and relative benefits
obtained in connection with the defense and/or settlement of the Claim by the
Insured and others.
In the event that an agreement cannot be reached between the Insurer and the
Insured as to an allocation of Loss . . . the Insurer shall advance that portion of
Loss which the Insured and the Insurer agree is not in dispute until a final
amount is agreed upon or determined pursuant to the provisions of the Policy and
applicable law.
67.
Although “loss” is not affirmatively defined, it is functionally defined as
an amount that is not “Loss.” Because the allocation clause is triggered only when the coverage
claim includes “Loss” and mere “loss,” a coverage claim for Defense Expenses, which is defined
in the Policy as a species of Loss (and, thus, as an amount not constituting mere “loss”),
cannot trigger the allocation clause. Similarly, the Policyholders’ liability incurred in settling a
Claim alleging a Wrongful Act -- such as the Policyholders’ settlement of the RRGC claim -cannot trigger the allocation clause because Loss is defined to also include a settlement of a
Claim alleging a Wrongful Act.
The Investment Advisers Management Liability Coverage Part
68.
For purposes of the IAML coverage part, the Policy defines “Insured” as: “the
Insured Persons and the Adviser.”
69.
For purposes of the IAML coverage part, the Policy defines “Insured Person,” in
pertinent part as: (1) any past, present or future director, officer, or member of the Board of
Managers of the Adviser; (2) those persons serving in a functionally equivalent role for the
Named Insured or any Subsidiary operating or incorporated outside the United States.”
70.
The phrase “Board of Managers” is not defined in the Policy.
71.
For purposes of the IAML coverage part, the Policy defines “Adviser,” in
pertinent part as: “the Named Insured…”.
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72.
Under the IAML coverage part, the Insurer promises to “pay on behalf of the
Insured Persons Loss resulting from Claims first made against the Insured Persons during the
Policy Period ... for Wrongful Acts, except for Loss which the Adviser is permitted or required
to pay on behalf on behalf of the Insured Persons as indemnification.”
73.
Under the IAML coverage part, the Insurer also promises to “pay on behalf of the
Adviser Loss which the Adviser is required or is permitted to pay as indemnification to: (1) the
Insured Persons resulting from Claims first made against the Insured Persons; or (2) the
Adviser resulting from Claims first made against the Adviser; during the Policy Period for
Wrongful Acts.”
74.
For purposes of the IAML coverage part, the Policy defines a “Wrongful Act” as:
“(1) with respect to any Insured Person of the Adviser, any actual or alleged act, error,
omission, misstatement, misleading statement or breach of duty but solely by reason of his or her
status as such; and (2) with respect to the Adviser, any actual or alleged act, error, omission,
misstatement, misleading statement or breach of duty by the Adviser.”
75.
The Policy defines “Interrelated Wrongful Acts” as: “Wrongful Acts which are
based on, arising out of, directly or indirectly resulting from, in consequence of, or in any way
involving any of the same or related or series of related facts, circumstances, situations,
transactions or events.”
76.
The Policy defines “Loss” as: “damages, judgments, settlements or other amounts
(including punitive or exemplary damages where insurable by law) in excess of the Retention
that the Insured is obligated to pay, and Defense Expenses, whether incurred by the Insurer or
the Insured, in excess of the Retention. Loss will not include: (1) the multiplied portion of any
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damage award; (2) matters which are uninsurable under the law pursuant to which this Policy is
construed; and (3) fines, penalties or taxes imposed by law.”
77.
Partners is an Adviser, as that term is defined in the IAML coverage part.
78.
Glaser, Tillett, Levitt, and Reale are Insured Persons, as that phrase is defined in
the IAML coverage part.
79.
Partners incurred Loss resulting from Claims first made against it during the
Policy Period for Wrongful Acts, as those terms are defined in the IAML coverage part.
80.
Partners is required or permitted to indemnify Glaser, Tillett, Levitt, and Reale for
any Loss they incurred during the Policy Period for Wrongful Acts, as those terms are defined in
the IAML coverage part.
81.
Glaser, Tillett, Levitt, and Reale incurred Loss resulting from Claims first made
against them during the Policy Period for Wrongful Acts, as those terms are defined in the IAML
coverage part.
82.
Under the terms of the IAML coverage part, those to whom the Insurer owes
reimbursement for Loss, including Defense Expenses and indemnity, are Glaser, Tillett, Levitt,
Reale, and Partners.
The Investment Advisers Professional Liability Coverage Part
83.
For purposes of the IAPL coverage part, the Policy defines “Insured” as: “the
Insured Persons and the Adviser”; defines “Insured Person” as “any past, present or future
director, officer, partner, principal, member, trustee or employee of the Adviser”; and defines
“Adviser,” in pertinent part as: “the Named Insured …”.
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84.
Under the IAPL coverage part, the Insurer promises to “pay on behalf of the
Insureds Loss resulting from Claims first made against the Insureds during the Policy Period
... for Wrongful Acts.”
85.
For purposes of the IAPL coverage part, the Policy defines a “Wrongful Act” as:
“(1) any actual or alleged act, error, omission, misstatement, misleading statement or breach of
fiduciary duty or other duty committed by any Insured in the performance of, or failure to
perform, Professional Services; and (2) any actual or alleged libel, slander, or oral or written
publication of defamatory or disparaging material committed by any Insured in the performance
of Professional Services.”
86.
The Policy further defines “Professional Services” as: “(1) financial, economic or
investment advice given or investment management services performed for others for a fee or
commission by the Adviser or on behalf of the Adviser by any person or entity; (2) the
provision of computer and Internet services, administrative services, and publications prepared
or written by any Insured, provided such services are performed in connection with the
Adviser’s financial or investment operations; or (3) the selection, oversight and direction by any
Insured of any person or entity performing Professional Services on behalf of the Adviser.”
87.
Holdings, Partners, and Management are Advisers, as that term is defined in the
IAPL coverage part.
88.
Glaser, Tillett, Levitt, Reale are Insured Persons, as that phrase is defined in the
IAPL coverage part.
Page 13 of 33
89.
Glaser, Tillett, Levitt, Reale, Holdings, Partners, and Management incurred Loss
resulting from Claims first made against them during the Policy Period for Wrongful Acts, as
those terms are defined in the IAPL coverage part.
90.
Under the terms of the IAPL coverage part, those to whom the Insurer owes
reimbursement for Loss, including Defense Expenses and indemnity, are Glaser, Tillett, Levitt,
Reale, Holdings, Partners, and Management.
The Investment Fund Management and Professional Liability Coverage Part
91.
For purposes of the IFMPL coverage part, the Policy in pertinent part defines
“Insured” as: “(1) the Named Insured; (2) the Insured Persons; (3) each Investment Fund; (4)
the general partner or managing general partner of each Investment Fund that is organized as a
limited partnership; and (5) the managing member of each Investment Fund that is organized as
a limited liability company…”.
92.
An “Insured Person” is defined as: “any past, present or future director, officer,
principal, member, trustee or employee of: (1) an Investment Fund; (2) the general partner or
managing general partner of each Investment Fund that is organized as a limited partnership;
and (3) the managing member of any Investment Fund organized as a limited liability
company.”
93.
It is undisputed Offshore and Equity are the Investment Funds.
94.
It is also undisputed that, as defined in this coverage part, that Uncle Julio’s is an
insured “Portfolio Company.”
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95.
Under the IFMPL coverage part, the Insurer promises to “pay on behalf of the
Insureds Loss resulting from Claims first made against the Insureds during the Policy
Period ... for Wrongful Acts.”
96.
The IFMPL coverage part defines a “Wrongful Act” as: “(1) any actual or alleged
act, error, omission, misstatement, misleading statement or breach of fiduciary duty or other duty
committed by an Insured in the performance of, or failure to perform, Professional Services;
(2) any actual or alleged libel, slander, or oral or written publication of defamatory or
disparaging material committed by an Insured in the performance of Professional Services; (3)
any actual or alleged act, error, omission, misstatement, misleading statement or breach of
fiduciary duty or other duty committed by an Insured Person in his or her capacity as a director,
officer, member of the Board of Managers, general partner, or managing general partner of an
Investment Fund; (4) any matter asserted against an Insured Person solely by reason of his or
her status as a director officer, member of the Board of Managers, general partner, or managing
general partner of an Investment Fund; and (5) any actual or alleged act, error, omission,
misstatement, misleading statement or breach of duty by an Insured Person in his or her
Outside Capacity.”
97.
The IFMPL coverage part defines “Professional Services” as: “(1) advisory or
other services performed by an Investment Fund or on behalf of an Investment Fund by any
person or entity, provided such services are performed in connection with the management or
operation of such Investment Fund[;] … or (3) the selection, oversight and direction by any
Insured of any person or entity performing Professional Services on behalf of an Investment
Fund.”
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98.
The Policy further defines “Outside Capacity” as: “service by an Insured Person
as a director, officer, trustee, regent, governor or member of the Board of Managers of an
Outside Entity, but only during the time that such service is at the specific request of an
Insured Entity”; and defines “Insured Entity” as: any Insured that is organized as corporation,
limited liability company or limited partnership.”
99.
Glaser, Management, and Holdings are Insured Persons, as that phrase is defined
in the IFMPL coverage part.
100.
Equity and Offshore are Investment Funds, as that phrase is defined in the IFMPL
coverage part.
101.
Partners is the Named Insured under the Policy, and Uncle Julio’s an Outside
102.
Glaser, Partners, Management, Holdings, Equity, and Offshore incurred Loss
Entity.
resulting from Claims first made against them during the Policy Period for Wrongful Acts, as
those terms are defined in the IFMPL coverage part.
103.
Under the terms of the IFMPL coverage part, those to whom the Insurer owes
defense and indemnity are Glaser, Partners, Management, Holdings, Equity, and Offshore.
Conditions Precedent to Coverage
104.
All premiums due under the Policy have been timely and fully paid.
105.
The Policy was in full force and effect at all times material to this action.
106.
The Policyholders provided timely notice of all claims and lawsuits relevant to
this action.
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107.
No exclusions from coverage in the Policy apply to the Policyholders’ claims at
issue in this action.
108.
The applicable retention has been met and exceeded by the Policyholders’
covered Loss and Defense Expenses, as those terms are defined by the Policy and applicable law,
and by payments made in settlement of the RRGC action.
109.
The Policyholders satisfied all conditions precedent to coverage under the Policy.
The Underlying Claims and Suits
110.
The underlying claims and/or lawsuits at issue in this coverage action are:
(1) Retail and Restaurant Growth Capital, L.P. v. MapleWood Partners, L.P., et al., Case No.
DC-07-01391-G (Dist. Ct., Dallas County, Tex.) (the “RRGC Action”); (2) Shashy, et al. v.
MapleWood Partners, L.P., et al., Case No. 07-05846 (Dist. Ct., Dallas County, Tex.) (the
“Shashy and Green Action”); (3) Julio & Sons Company, et al. v. Shashy, et al., AAA No. 50180-T-00406-07 (American Arbitration Association, Miami, Florida) (the “Shashy and Green
Arbitration”) (the Shashy and Green Action and the Shashy and Green Arbitration, collectively,
are hereinafter referred to as “the Shashy and Green Matter”); and (4) a supplemental
counterclaim filed by Gerald Green in the Shashy Arbitration (the “Green Option Claim”).
111.
The parties agree that the RRGC Action and the Shashy and Green Matter
constitute a single Claim, as that term is defined by the Policy and applicable law.
112.
The Insurer, however, has taken the position that the Shashy and Green Matter, on
the one hand and the Green Option Claim on the other, constitute separate Claims, as that term is
defined by the Policy and applicable law, and has thus sought to apply two deductibles.
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113.
Under the terms of the Policy and applicable law, the Shashy and Green Matter
and the Green Option Claim constitute a single Claim.
The RRGC Action
114.
On or about February 15, 2007, Retail and Restaurant Growth Capital, L.P.
(“RRGC”), filed a lawsuit (Case No. DC-07-1391-G) in Texas state court against Partners,
Holdings, Management, Julio & Sons, and Glaser.
115.
On March 28, 2008, RRGC filed a Second Amended Petition, which became the
operative pleading as of the date the RRGC action settled.
116.
Pursuant to an agreement, RRGC lent money to Uncle Julio’s and received cash
fees, warrants to buy the company’s stock, and interest.
117.
RRGC alleged, among other things, that Partners, Holdings, Management, Julio &
Sons, and Glaser violated the agreement by causing Uncle Julio’s to guarantee leases as part of
Julio Investors’ acquisition of Tia’s, a Mexican restaurant.
118.
RRGC alleged that Partners, Holdings, Management, Julio & Sons, and Glaser
caused Uncle Julio’s to provide cash from its operations to advance money to Tia’s.
119.
RRGC alleged that Partners, Holdings, Management, Julio & Sons, and Glaser
entered into dealings with their affiliates that were not arm’s-length transactions on reasonable
business terms.
120.
RRGC alleged a cause of action for breach of contract against Uncle Julio’s.
121.
RRGC alleged a cause of action for breach of fiduciary duty against Uncle Julio’s,
and it officers, directors, and controlling shareholders.
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122.
RRGC alleged a cause of action for fraud against Partners, Holdings,
Management, Julio & Sons, and Glaser.
123.
RRGC alleged a cause of action for negligent misrepresentation against Partners,
124.
RRGC alleged violations of the Texas Blue Sky Law by Partners, Holdings,
Management, Julio & Sons, and Glaser.
125.
RRGC alleged violations of the Texas Business and Commerce Code by Partners,
126.
RRGC sought economic damages of as much as $10,000,000, and punitive
damages of as much as $20,750,000.
127.
RRGC also sought interest, attorney’s fees, costs, an accounting, and appointment
of a receiver.
128.
On August 25, 2008, the Texas court, granting a motion objecting to jurisdiction,
dismissed all claims against Glaser without prejudice.
129.
Partners, Holdings, Management, Julio & Sons, and Glaser incurred substantial
attorney’s fees and costs in defending the RRGC Action, all of which constitute Loss under the
Policy.
130.
On or about September 3, 2010, the RRGC action settled. In connection with the
settlement, the Julio’s Parties (which included various MapleWood’s entities) incurred covered
Loss and Defense Expenses, as those terms are defined by the Policy.
131.
The Insurer paid $250,000.00 toward the settlement, which has been fully funded.
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132.
After the filing of this suit, the Insurer unilaterally determined to pay and paid a
tiny fraction (roughly 6%) of the total Loss incurred by the Policyholders, claiming this was its
“good faith” effort to first improperly allocate, and then to arrive at an interim “undisputed”
allocation.
The Shashy and Green Matter
133.
On June 19, 2007, Shashy and Green, individually and on behalf of Julio & Sons,
filed a lawsuit (Case No. 07-05846) in Texas state court against Partners, Investors, Holdings,
Management, Uncle Julio’s (as nominal defendant), Glaser, Glosson, Levitt, Morris, Reale, and
Tillett.
134.
Shashy and Green alleged in the suit that the MapleWood-related entities and
individuals violated a stockholder’s agreement by failing to reelect Shashy to the board of
directors of Julio & Sons in February 2007 and by failing to renew his employment agreement in
December 2006.
135.
Shashy and Green also alleged in the suit that the MapleWood defendants wasted
corporate assets by making a purportedly unsound investment in the Tia’s restaurant in 2003, and
that they later diverted resources from Uncle Julio’s in order to keep Tia’s afloat.
136.
Shashy and Green asserted a cause of action for breach of fiduciary duty owed to
Uncle Julio’s against Partners, Investors, Holdings, Management, Glaser, Glosson, Levitt,
Morris, Reale, and Tillett.
137.
Shashy and Green asserted a cause of action for breach of fiduciary duty to
minority shareholders against Partners, Investors, Holdings, Management, Glaser, Glosson,
Levitt, Morris, Reale, and Tillett.
Page 20 of 33
138.
Shashy and Green asserted a cause of action for conversion against Partners,
Investors, Holdings, Management, Glaser, and Morris.
139.
Shashy and Green asserted a cause of action for statutory theft against Partners,
Investors, Holdings, Management, Glaser, and Morris.
140.
Shashy and Green asserted a cause of action for breach of the duty of due care
against Glosson, Levitt, and Tillett.
141.
Shashy and Green asserted a cause of action for conspiracy against Partners,
Investors, Holdings, Management, Glaser, Glosson, Levitt, Morris, Reale, and Tillett.
142.
Shashy and Green sought appointment of a receiver.
143.
Shashy and Green alleged that Uncle Julio’s suffered $26,000,000 in economic
damages.
144.
Partners, Investors, Holdings, Management, Uncle Julio’s, Glaser, Glosson,
Levitt, Morris, Reale, and Tillett incurred substantial attorney’s fees and costs in defending the
Shashy and Green Action.
145.
In October 2007, the Shashy and Green Action was stayed and referred to
arbitration.
146.
By letter dated November 28, 2007, the Policyholders notified the Insurer that on
November 26, 2007, the Policyholders filed a counterclaim against Shashy and Green with the
American Arbitration Association.
147.
In the arbitration, Holdings, Management, Partners, Julio & Sons, Julio Investors,
Glaser, Levitt, Glosson, Tillett, Morris, and Reale sought damages from and an injunction
against Shashy and Green for breach of contract, fraud, violation of a noncompetition covenant,
Page 21 of 33
mismanagement, breach of fiduciary duty, tortious interference, misappropriation of company
funds, unauthorized expenditure of company assets, ignoring direction of the board of directors,
and providing company information to third parties.
148.
In the arbitration, Shashy and Green asserted as counterclaims the affirmative
claims they had made in the Shashy Action.
149.
The Shashy and Green Arbitration was mediated on April 1-2, 2008.
150.
As a result of the mediation, the parties reached a confidential settlement.
151.
In the settlement of the Shashy and Green Arbitration, Partners, Investors,
Holdings, Management, Uncle Julio’s, Glaser, Glosson, Levitt, Morris, Reale, and Tillett
incurred covered Loss and Defense Expenses, as those terms are defined by the Policy and
applicable law.
152.
The Insurer unilaterally applied the same allocation method and fraction amount
of 6% of the total Loss to the Shashy and Green matter as it did to the RRGC action.
The Green Option Claim
153.
On May 9, 2008, following settlement of the Shashy and Green Arbitration,
Green filed counterclaims against Partners, Investors, Holdings, Management, Julio & Sons,
Levitt, Glosson, Tillett, and Glaser – the same defendants as those in the Shashy and Green
Matter.
154.
Green alleged that, pursuant to a December 17, 2001, agreement, he held options
to buy Julio & Sons stock.
155.
Julio & Sons took the position that Green’s stock options expired when he failed
to exercise them within 90 days of the termination of his employment by Julio & Sons.
Page 22 of 33
156.
Green sought a declaratory judgment against MapleWood, Management,
Holdings, Julio & Sons, and Julio Investors that his options were valid as of April 2, 2008.
157.
Green asserted a cause of action for statutory fraud against Julio & Sons.
158.
Green asserted a cause of action for breach of fiduciary duty to minority
shareholders against MapleWood, Management, Holdings, Julio & Sons, Julio Investors, Glaser,
Glosson, Levitt, and Tillett.
159.
Green asserted violations of the Florida Blue Sky Law by Julio & Sons, Glosson,
and Levitt.
160.
Green asserted a cause of action for negligent misrepresentation against Julio &
Sons, Glosson, and Levitt.
161.
Green asserted equitable and promissory estoppel against Julio & Sons.
162.
Green sought economic damages of $665,400, as well as unspecified punitive
damages, interest, attorney’s fees, and costs.
163.
The Green Option Claim was arbitrated by the same panel that heard the Shashy
and Green Arbitration.
164.
On October 22, 2008, the arbitration panel issued its final award, in which it
denied Green’s stock option claim.
165.
The panel also denied all requests for an award of attorney’s fees and costs, and
required each side to pay 50 percent of the arbitration fees and expenses.
166.
Partners, Investors, Holdings, Management, Julio & Sons, Levitt, Glosson, Tillett,
and Glaser incurred substantial Defense Expenses in defending the Green Option Claim. Since
Page 23 of 33
the Insurer treated this dispute as a separate Claim with a separate deductible, however, it refused
to reimburse any of the Loss incurred.
Notice to the Insurer and Its Response
The RRGC Action
167.
The Policyholders gave the Insurer notice of the RRGC Action by letter dated
February 19, 2007.
168.
By letter dated June 20, 2007, the Insurer acknowledged receiving notice of the
claim and reserved its right to contest coverage.
169.
In its June 20, 2007, letter, the Insurer, subject to a reservation of rights,
acknowledged that Partners qualified as an Insured under the IAML coverage part, but asserted
that Holdings, Management and Julio & Sons did not qualify as Insureds.
170.
With respect to Partners, the Insurer concluded that the RRGC Action constituted
a Claim for a Wrongful Act under the Policy, but reserved its right to deny coverage for Glaser.
171.
The Insurer also acknowledged that Partners and Glaser qualified as Insureds
under the IAPL coverage part, but denied coverage for Holdings, Management, and Julio &
Sons.
172.
The Insurer also claimed that it was not clear whether the RRGC Action asserted
a covered claim against Partners or Glaser under the IAPL coverage part.
173.
As for the IFMPL coverage part, the Insurer concluded that Partners,
Management, and Glaser qualified as Insureds, but denied coverage for Holdings and Julio &
Sons.
Page 24 of 33
174.
With respect to Partners, Management, and Glaser, the Insurer reserved its rights
to deny coverage.
175.
By letter dated October 12, 2007, the Policyholders challenged the coverage
position the Insurer articulated in its June 20, 2007, letter.
176.
By letter dated November 5, 2007, the Policyholders provided the Insurer with a
preliminary litigation budget for defense of the RRGC Action.
177.
By letter dated November 13, 2007, the Insurer responded to the Policyholders’
October 12, 2007, letter, reaffirmed the coverage positions it asserted in its June 20, 2007, letter,
and denied coverage for fees and expenses incurred in connection with the Policyholders’
prosecution of counterclaims.
178.
By letter dated December 12, 2007, the Policyholders responded to the Insurer’s
information requests raised in its November 13, 2007, letter.
179.
By letter dated February 4, 2008, the Insurer consented to the retention of
Akerman Senterfitt and Kessler Collins as defense counsel for the Policyholders and reaffirmed
denial of coverage for fees and costs incurred in connection with counterclaims.
180.
Contrary to the express provisions of the Policy and more than a year post-tender,
the Insurer also tendered an interim funding agreement under which it would pay 50 percent of
defense counsel’s fees and costs.
181.
Without conceding an allocation was permissible, and in order to avoid a dispute,
by letter dated March 20, 2008 the Policyholders proposed a 70 percent, rather than 50 percent,
allocation in the interim funding agreement.
Page 25 of 33
182.
By letter dated May 12, 2008, the Insurer acknowledged receipt of the Second
Amended Petition in the RRGC action and reaffirmed the coverage positions asserted in its June
20, 2007, and November 13, 2007, letters.
183.
Subsequent efforts by the Policyholders to avoid a litigated resolution failed: The
Insurer agreed only to pay approximately 6% of Loss, and only above a retention which, while
stipulated to be $250,000.00, was effectively treated by the Insurer as $1,000,000.00.
The Shashy and Green Matter
184.
The Policyholders gave the Insurer notice of the Shashy and Green Action by
letter dated June 21, 2007.
185.
The Insurer responded to notice of the claim by retaining coverage counsel, who
by letter dated July 9, 2007, announced their representation and reserved the Insurer’s right to
contest coverage.
186.
In its July 9, 2007, letter, the Insurer agreed that the Shashy and Green Matter and
the RRGC Action “are deemed to be a single Claim under the Policy,” and thus subject to a
single retention of $250,000.00.
187.
The Insurer also took the position that Partners qualified as an Insured under the
IAML coverage part, but denied coverage for Julio Investors, Holdings, Management, and Julio
& Sons.
188.
The Insurer acknowledged that Glaser and Reale likely qualified as Insured
Persons under the IAML coverage part, but denied coverage for Glosson, Levitt, Tillett, and
Morris.
Page 26 of 33
189.
The Insurer acknowledged that the Shashy and Green Action was a Claim for a
Wrongful Act against Partners, but reserved its right to deny coverage as to Glaser and Reale.
190.
The Insurer acknowledged that Partners qualified as an Insured under the IAPL
coverage part, but denied coverage for Julio Investors, Holdings, Management, and Julio & Sons.
191.
The Insurer acknowledged that Glaser and Reale likely qualified as Insured
Persons under the Policy, but denied coverage for Glosson, Levitt, Tillett, and Morris.
192.
The Insurer questioned whether the Shashy and Green Action constituted a Claim
against Partners, Glaser, and Reale under the IAPL coverage part.
193.
The Insurer recognized that Partners, Management, and Glaser qualified as
Insureds under the IFMPL coverage part, but denied coverage for Julio Investors, Holdings, Julio
& Sons, Glosson, Levitt, Tillett, Morris, and Reale.
194.
The Insurer also acknowledged that the Shashy and Green Action might constitute
a Claim against Glaser for a Wrongful Act under the IFMPL coverage part, but as to all other
defendants in the Shashy Action, the Insurer reserved its right to deny coverage.
195.
By letter dated December 4, 2007, the Insurer reaffirmed the coverage position it
advanced in its July 9, 2007, letter as to whether Glaser and Reale are covered under the IAML
coverage part, but raised new questions as to the status of Glaser and Reale as Insured Persons
under the IAML coverage part.
196.
In part, the Insurer requested detailed information regarding the management
structure of Partners, though this information was already in its possession, residing in its
underwriting file.
Page 27 of 33
197.
By letter dated February 4, 2008, almost eight months after tender of the claim,
the Insurer consented to the retention of Akerman Senterfitt and Kessler Collins as defense
counsel for the Policyholders. The Insurer proposed the same interim funding agreement it had
tendered in the RRGC Action and raised the same irrelevant issues concerning allocation of
defense fees and costs.
198.
By letter dated March 20, 2008, again seeking to avoid a suit, the Policyholders
proposed a 70 percent, rather than 50 percent, allocation of the defense fees and costs.
199.
By letter dated March 28, 2008, the Insurer stated that it would attend the Shashy
and Green mediation scheduled for April 1-2, 2008, at which the matter was resolved by a
confidential settlement.
200.
The Insurer has refused to indemnify Partners, Investors, Holdings, Management,
Julio & Son’s, Glaser, Glosson, Levitt, Morris, Reale, and Tillett in connection with the Shashy
and Green litigation, arbitration, mediation and settlement.
201.
By letter dated April 11, 2008, the Policyholders challenged the Insurer’s decision
to deny indemnity regarding the Shashy and Green litigation, arbitration, mediation and
settlement.
202.
By letter dated April 18, 2008, the Insurer acknowledged receipt of the April 11,
2008, letter and denied indemnity for the settlement under the IAPL coverage part.
203.
The Insurer denied coverage under the IAML coverage part as to Glaser, Tillett,
Levitt, and Reale.
204.
With regard to Partners, the Insurer recognized that some portion of legal fees and
expenses incurred in defense of the counterclaim potentially could be attributed to Partners under
Page 28 of 33
the IAML coverage part, but claimed there was no basis for attributing any part of the settlement
to Partners under this coverage part.
205.
The Insurer asserted that coverage under the IFMPL coverage part would likely
be limited to some portion of the defense expenses attributable to Glaser and Glosson, but that it
would not allocate any portion of the settlement to Glaser.
206.
The Insurer claimed that the settlement did not give rise to covered Loss.
207.
The Insurer refused coverage for certain defense expenses incurred by the
Policyholders in the process of reaching settlement. Though four firms participated in the
settlement and approximately $828,000 in fees were billed, the Insurer asserted that it is
obligated to pay only Ackermann’s and Kessler Collins’ fees, which accounted for only about 12
percent of the total.
208.
By letter dated May 27, 2008, the Policyholders contested the coverage position
the Insurer took in its April 18, 2008, letter. Subsequent efforts to reach an agreement failed.
The Green Option Claim
209.
By letter dated May 16, 2008, the Policyholders gave the Insurer notice of the
Green Claim.
210.
By letter dated June 13, 2008, the Insurer acknowledged its receipt of notice of
the Green Claim and reserved its rights to contest coverage.
211.
While the Insurer conceded covered Loss in the form of Defense Expenses was
incurred, it took the position in its June 13, 2008, letter that the Shashy and Green claims
constitute separate claims and that separate $250,000 deductibles would therefore apply.
Page 29 of 33
212.
The Insurer asserted that position even though Green was a party to both claims
and even though Green first raised the issue of the stock options as part of his demand for
settlement in the mediation of the Shashy and Green Matter.
213.
Further, in the mediated settlement of the Shashy and Green Matter, the parties
specifically agreed that Green could file an option claim only before the same arbitration panel
that was assigned the Shashy and Green Arbitration.
214.
Additionally, the settlement agreement expressly provided that if Green were to
prevail in the Green Option Claim, he would receive the same terms and conditions as those
agreed to in the Shashy and Green settlement.
215.
Despite its assertion that the Shashy and Green claims are “legally and factually
distinct,” the Insurer in regard to the Green Option claim reserved “all rights and coverage
defenses identified in [its] prior correspondence regarding the Shashy arbitration, except as noted
below.”
216.
The Insurer further stated that “[t]he only respect in which Indian Harbor’s
position [regarding the Green Option Claim] differs from the position taken in connection with
claims previously asserted in the Shashy arbitration pertains to Mr. Glaser’s status as an Insured
under the IFMPL coverage part. Because Mr. Glaser apparently served as a director of an
Outside Entity (Julio & Sons) during the period in which some of the allegedly wrongful conduct
in this matter occurred, the Green Claim may constitute a Claim against Mr. Glaser for a
Wrongful Act in his Outside Capacity.”
217.
By letter dated July 1, 2008, the Policyholders challenged the Insurer’s position
that the Shashy and Green Matter and the Green Option Claim constitute separate claims.
Page 30 of 33
218.
By letter dated July 15, 2008, the Insurer reaffirmed its position that the Shashy
Green Matter and the Green Option Claim constitute separate claims, thus paying nothing to the
Policyholders.
General Allegations
219.
Because of the Insurer’s failure to indemnify the Policyholders for covered Loss,
the Policyholders have been forced to retain undersigned counsel to represent its interests in this
action and has agreed to pay counsel a reasonable fee for their services.
220.
All conditions precedent to the institution of this action have been performed,
waived, or excused.
COUNT I – BREACH OF CONTRACT
221.
The Policyholders reallege Paragraphs 1 through 220.
222.
Enforceable Contract: At all times material to this action, the Policyholders were
insured by the Insurer under Policy No. ELU094980-06, which is an enforceable contract under
the laws of the State of Florida.
223.
Duty: The insurance contract obligated the Insurer to perform certain duties,
including the duty to timely pay Loss including Defense Expenses, and, to seek allocation in
good faith and only if required by the Policy.
224.
Breach: The Insurer, through its agents, servants and/or employees, failed to
perform its duties under the insurance contract, and thus breached the contract, by those acts or
omissions alleged in Paragraphs 1 through 220, including without limitation its refusals to make
any payment, and full and timely payment of the Policyholders’ Defense Expenses and other
covered Loss.
Page 31 of 33
225.
Damage: As a direct, foreseeable and proximate result of the Insurer’s breach of
its duties under the Policy, the Policyholders have suffered and continue to suffer damages.
WHEREFORE, Plaintiffs, MapleWood Partners, L.P., MapleWood Management, L.P.,
and MapleWood Holdings, LLC, demand judgment against Defendant, Indian Harbor Insurance
Company, for damages, pre- and post-judgment interest, attorney’s fees pursuant to Section
627.428 of the Florida Statutes, costs, and any further relief this Court deems equitable, just, and
proper.
TRIAL BY JURY
The Policyholders demand trial by jury of all issues so triable as a matter of right.
DATED this 5th day of May, 2011.
Respectfully submitted,
John W. Schryber
[email protected]
Jeffrey L. Schulman
[email protected]
DICKSTEIN SHAPIRO LLP
1825 Eye Street N.W.
Washington, DC 20006
Phone: 202-420-2200
Fax: 202-420-2201
/s/ R. Hugh Lumpkin
R. Hugh Lumpkin, Esq.
Florida Bar No. 308196
[email protected]
Michael F. Huber, Esq.
[email protected]
Maria R. Caldera, Esq.
[email protected]
VER PLOEG & LUMPKIN, P.A.
100 S.E. Second Street
Thirtieth Floor
Miami, FL 33131-2151
Phone: 305-577-3996
Fax: 305-577-3558
Attorneys for Plaintiffs
Page 32 of 33
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served via transmission
of Notices of Electronic Filing generated by CM/ECF on this 5th day of May, 2011 on all
counsel of record on the Service List below.
/s/ R. Hugh Lumpkin
R. Hugh Lumpkin
SERVICE LIST
Cathy A. Simon, Esq.
[email protected]
Elizabeth Sarah Gere, Esq.
[email protected]
Steven W. McNutt, Esq.
[email protected]
TROUTMAN SANDERS, LLP
401 9th Street, N.W., Suite 1000
Washington, DC 20004-2134
Phone: 202-662-2000
Fax: 202-274-2994
Michael J. Higer, Esq.
[email protected]
HIGER, LICHTER & GIVNER, LLP
18305 Biscayne Boulevard
Suite 402
Aventura, FL 33160-2172
Phone: 305-356-7544
Fax:305-933-0998
Attorneys for Defendant Indian Harbor Insurance Company
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