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United States District Court District of New Hampshire Case 1:13-cv-00401-PB Document 17-1 Filed 09/09/14 Page 1 of 9 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE ) ROGER A. SEVIGNY, in his official capacity ) as INSURANCE COMMISSIONER OF THE ) STATE OF NEW HAMPSHIRE, as ) LIQUIDATOR OF THE HOME ) INSURANCE COMPANY, ) ) Plaintiff, ) ) Civil Action No. 13-401-PB v. ) ) THE UNITED STATES OF AMERICA and ) ERIC H. HOLDER, JR., in his official capacity ) as ATTORNEY GENERAL OF THE ) UNITED STATES, ) ) Defendants. ) AFFIDAVIT OF PETER A. BENGELSDORF, SPECIAL DEPUTY LIQUIDATOR, IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I, Peter A. Bengelsdorf, depose and say: 1. I was appointed Special Deputy Liquidator of The Home Insurance Company (“Home”), by the Insurance Commissioner for the State of New Hampshire, as Liquidator (“Liquidator”) of Home, in 2003. I submit this affidavit in support of the Liquidator’s Motion for Summary Judgment. The facts and information set forth are either within my own knowledge gained through my involvement with this matter, in which case I confirm that they are true, or are based on information provided to me by others, in which case they are true to the best of my knowledge, information, and belief. 2. On June 13, 2003, the Superior Court for Merrimack County, New Hampshire (“Supervising Court”), declared that Home was insolvent and appointed the Insurance Commissioner of the State of New Hampshire and her successors as its Liquidator. A copy of Case 1:13-cv-00401-PB Document 17-1 Filed 09/09/14 Page 2 of 9 the Supervising Court’s Order of Liquidation dated June 13, 2003 is attached as Exhibit 1. The plaintiff, Roger A. Sevigny, is the present Insurance Commissioner as Liquidator of Home. 3. Under the New Hampshire Insurers Rehabilitation and Liquidation Act, N.H. RSA 402-C (“Act”), the Liquidator has exclusive authority, subject to oversight of the Supervising Court, to conduct the liquidation. The liquidation proceeding is the proper forum for all claims against Home. The Act requires that the Supervising Court fix a deadline for filing of claims, and the claim filing deadline for Home was June 13, 2004. See Order of Liquidation ¶ bb. As a result of the liquidation, many claims under Home’s policies are being handled by insurance guaranty associations established under the laws of the various states. 4. The United States, through the United States Department of Justice (“DOJ”), filed seven proofs of claim with the Liquidator during 2003, 2004 and 2005. 5. Six of the United States’ proofs of claim asserted known claims against Home. Copies of those proofs of claim with descriptive attachments (but not supporting documentation) are attached as Exhibits 2 through 7. 6. The first known claim was by the United States Department of Labor for Longshore and Harbor Workers Compensation Act assessments. Exhibit 2 (the proof of claim dated June 26, 2003 and supplemental proofs of claim dated February 2, 2005 and April 8, 2005). The Liquidator allowed that claim in the full amount of $2,672,527 and assigned it to Class III priority. The United States’ challenged the assigned priority but the Liquidator’s position has been upheld under both federal and state law. See Solis v. Home Ins. Co., 848 F.Supp.2d 91 (D. N.H. 2012) (federal law); Order, Merrimack County Superior Court, October 8, 2013 (state law) (attached as Exhibit 8). 2 Case 1:13-cv-00401-PB Document 17-1 Filed 09/09/14 Page 3 of 9 7. The other five known claims were “third party” claims; that is, claims by the United States against persons allegedly insured by Home that the United States has asserted directly in the Home liquidation pursuant to N.H. RSA 402-C:40, I: a. The first third party claim was on behalf of the United States Environmental Protection Agency (“EPA”) concerning a claim by the EPA against Home insureds Lillian Wiesner, John Massei and Executeam Corp. Exhibit 3 (proof of claim dated June 10, 2004). The EPA and Home’s insureds settled their claims in a consent judgment entered September 26, 2012. Under the terms of that judgment, the EPA will receive a $606,000 payment under the Home policies from the New York Liquidation Bureau (the New York guaranty association). The EPA has advised that it will withdraw its claim in the Home liquidation following receipt of payment from the New York Liquidation Bureau. b. The second claim was on behalf of the EPA concerning a claim by the EPA against Paul Sauget, an owner and officer of Home insured Sauget & Company. Exhibit 4 (proof of claim dated June 10, 2004). On March 31, 2010, the United States, Sauget’s estate, the Liquidator, and others entered into a settlement pursuant to which the proof of claim was allowed as a Class II claim in the amount of $4,125,000. The settlement agreement was approved by the Supervising Court on June 3, 2010. The United States will accordingly share in distributions to Class II claimants with allowed claims, including the interim distribution, on the allowed $4,125,000 amount. c. The third claim was on behalf of the EPA concerning a claim by the EPA against Home insureds Ace-Manzo Inc., and Dominick and Carmella Manzo. Exhibit 5 (proof of claim dated June 10, 2004). In March of 2011, the United States entered into a 3 Case 1:13-cv-00401-PB Document 17-1 Filed 09/09/14 Page 4 of 9 consent decree with the Manzos. The coverage underlying Home’s policy was not exhausted by payment under the consent decree. The Liquidator accordingly issued a notice of determination denying the United States’ claim on June 28, 2013. The determination was approved by the Supervising Court on November 13, 2013. d. The fourth claim was on behalf of the EPA concerning claims by the EPA, the US Department of the Interior (“DOI”), the US Department of the Navy, and the National Oceanic and Atmospheric Administration (“NOAA”) relating to Home insured R. Lavin & Sons, Inc. (“Lavin”). Exhibit 6 (proof of claim dated June 10, 2004). On September 30, 2008, Lavin and the Liquidator entered into a settlement of all claims under the Home policies pursuant to which Lavin’s own claim was allowed as a Class II claim in the amount of $2,346,774. The Supervising Court approved the settlement on February 23, 2009. The settlement recognized that, pursuant to orders in Lavin’s bankruptcy case, the United States will receive part of the amounts paid on Lavin’s claim by the Home estate, and the settlement was conditioned upon withdrawal by the United States of its proof of claim in the Home estate. The United States withdrew its proof of claim on December 5, 2008. e. The fifth claim was on behalf of the EPA concerning a claim by the EPA against Home insured Azusa Pipe and Tube Bending Corp. (“Azusa”). Exhibit 7 (proof of claim dated November 14, 2005). On January 9, 2012, counsel for the EPA advised that its claim against Home is contingent since the interim remediation at the site of concern is currently being funded by other potentially responsible parties. The Liquidator agreed to defer determination of EPA’s proof of claim pending further developments. There is no present claim. 4 Case 1:13-cv-00401-PB Document 17-1 Filed 09/09/14 Page 5 of 9 8. To the extent the claims discussed in paragraphs 5 through 7 have been allowed at Class II priority, the United States will receive the same percentage distributions from the Home estate as all other allowed Class II claims. The Liquidator does not anticipate that the assets of Home will be sufficient to make any distribution on claims assigned to priorities below Class II. 9. The United States also filed a “protective” proof of claim dated June 10, 2004 on behalf of the EPA, the DOI, the NOAA, the Department of Defense and other unnamed agencies. A copy of the protective proof of claim is attached as Exhibit 9. 10. The object of an insurer liquidation is to determine claims, collect assets and distribute the assets to those with allowed claims in accordance with the statutory priorities. The New Hampshire Act provides for interim distributions of assets and for “early access” distributions to state insurance guaranty associations that have paid claims under policies issued by the insolvent insurer. Unlike general distributions, early access distributions are subject to statutorily-required “claw back” agreements under which guaranty associations will return distributions if necessary to pay claims of the same or higher priority. The guaranty associations that have received early access distribution from the Home estate have all entered such “claw back” agreements with the Liquidator. 11. The Liquidator has made nine early access distributions to state insurance guaranty associations. At the Liquidator’s request, the Supervising Court’s orders approving the first six early access distributions provided that they were subject to receipt of a waiver of Federal Priority Act claims from the United States. A copy of the Supervising Court’s Order Approving Sixth Early Access Distribution dated March 17, 2010 is attached as Exhibit 10. (The five orders approving the preceding early access distributions are substantially similar.) 5 Case 1:13-cv-00401-PB Document 17-1 Filed 09/09/14 Page 6 of 9 12. The Liquidator requested limited releases of claims under the Priority Act from the United States with respect to the first six early access distributions. The United States entered six release agreements with the Liquidator to permit the first six early access distributions.
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