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BOYKIN et al v. ILLINOIS UNION INSURANCE COMPANY et al Complaint

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Case 2:11-cv-00326-SRC -MAS Document 1
Filed 01/19/11 Page 1 of 22 PageID: 1
Dughi & Hewit, P.e. 340 North Avenue Cranford, New Jersey 07016 908.272.0200 RLH-3813 Attorneys for Plaintiffs, Edward P. Boykin, Phyllis A. Boykin, Azis S. Hasan, Carol A. Hasan, Ronald K. Walker and Jane e. Walker
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
EDWARD P. BOYKIN, PHYLLIS A. BOYKIN, AZIZ S. HASAN, CAROL A. HASAN, RONALD K. WALKER, and JANE C. WALKER, as assignees of DAVID M. CONNOLLY, Plaintiffs, v. ILLINIOS UNION INSURANCE COMPANY, MONTY L. DAVIS, MARY R. DAVIS, RICHARD L. BERGMARK, TONI L. BERGMARK, Defendant
Civil No.:
COMPLAINT
COMPLAINT Plaintiffs, Edward P. Boykin and Phyllis A. Boykin (the "Boykins"), Azis S. Hasan and Carol A. Hasan (the "Hasans"), and Ronald K. Walker and Jane C. Walker (the "Walkers") (collectively, the "Plaintiffs"), by and through their attorneys, Dughi & Hewit, P.C., by way of Complaint, state as follows:
Case 2:11-cv-00326-SRC -MAS Document 1
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THE PARTIES 1. At all times material hereto, the Boykins were citizens of the State of Florida,
residing at 14 Via Marino, in the City of Palm Coast. 2. At all times material hereto, the Hasans were citizens of the State of Florida,
residing at 2 Laguna Court, in the City of Palm Coast. 3. At all times material hereto, the Walkers were citizens of the State of Florida,
residing at 10 Via Marino, in the City of Palm Coast. 4. Upon information and belief, David M. Connolly ("Connolly") is a citizen of New
Jersey, residing at 106 Stanie Brae Drive, in the Borough of Watchung, and the president of Connolly Properties, Inc. ("Connolly Properties"). 5. Upon information and belief, Defendant lllinois Union Insurance Company
("lllinois Union") is a corporation organized and existing under the laws of the State of lllinois with its principal place of business in the State of lllinois. 6. Upon information and belief, Defendants, Monty L. Davis and Mary R. Davis (the
"Davises") are citizens of the State of Texas, residing at 19827 Cypress Church Road, Cypress, Texas. 7. Upon information and belief, Defendants Richard L. Bergmark and Toni M.
Bergmark (the "Bergmarks") are citizens of the State of Texas, residing at 60 Tiel Way, Houston, Texas.
JURISDICTION AND VENUE
8.
Jurisdiction is conferred on this Court pursuant to 28 U.S.C. § 1332 in that this is
an action between citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs. The Plaintiffs are all residents of the State of Florida. Upon
2
Case 2:11-cv-00326-SRC -MAS Document 1
Filed 01/19/11 Page 3 of 22 PageID: 3
information and belief, Connolly is a resident of the State of New Jersey. Upon information and belief, the Davises and the Bergmarks are all residents of the State of Texas. Upon information and belief, lllinois Union is a corporation organized and existing under the laws of the State of lllinois with its principal place of business in the State of lllinois. 9. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(a)(I) and (2), in
that Connolly resides in this District and a substantial part of the events or omissions giving rise to the claims asserted herein occurred in this District. GENERAL ALLEGATIONS 10. lllinois Union Insurance Company ("lllinois Union") issued a Business and
Management Indemnity Policy, bearing policy number BMI20062163 (the "lllinois Union Policy"), for the benefit of Connolly Properties and Connolly. 11. The lllinois Union Policy covers Connolly for claims made under the lllinois
Union Policy during the policy period of December 12, 2008 to December 12, 2009 (the "Policy Period"). 12. The lllinois Union Policy has a $1,000,000 limit of liability under the
"Management Insureds and Company Coverage Section." 13. Upon information and belief, the remaining limits on the lllinois Union Policy are
$746,453.68 (the "Remaining Policy Limits"). 14. Under the "Insuring Clauses" of the lllinois Union Policy, lllinois Union shall
"pay the Loss of the Management Insureds for which the Management Insureds are not indemnified. by the Company and which the Management Insureds have become legally obligated to pay by reason of a Claim first made against the Management Insureds during the
3
Case 2:11-cv-00326-SRC -MAS Document 1
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Policy Period, . . . and reported to the Insurer pursuaut to subsection El herein, for auy Wrongful Act taking place prior to the end of the Policy Period." (Emphasis in original).
15.
Connolly is au "Insured" under the illinois Union Policy, due to his role as a
"Mauagement Insured" (defined in the illinois Union Policy to include all General Partners, Directors, Officers, Mauagers, aud employees of Connolly Properties). 16. The Plaintiffs fust made a claim covered by the illinois Union Policy against
Connolly during the Policy Period and filed a Complaint in the United States District Court, District of New Jersey, entitled, Edward P. Boykin, et ai. v. Connolly Properties, Inc., et ai., Civil Action No. 09-5267 (DRD) (the "Underlying Litigation") against Connolly and Connolly Properties, seeking monetary relief for wrongful acts committed during the Policy Period. 17. The Complaint in the Underlying Litigation qualifies as a "Claim" under the
illinois Union Policy: "a civil proceeding against any Insured seeking monetary damages or nonmonetary or injunctive relief, commenced by the service of a complaint or similar proceeding." 18. Pursuaut to Judge Debevoise's October 25, 2010 Order (the "Underlying
Judgment") in the Underlying Litigation, judgment was entered in the amount of $1,368,502 plus interest against Connolly, aud in favor of the Plaintiffs as follows: (1) in favor of the Boykins aud against Connolly in the amount of $487,500 plus interest; (2) in favor of the Hasans and against Connolly in the amount of $496,002 plus interest; and (3) in favor of the Walkers aud against Connolly in the amount of $385,000 plus interest. 19. The Underlying Judgment is based on conduct that is covered by the illinois The
Union Policy aud Connolly is legally obligated to pay the Underlying Judgment.
Underlying Judgment qualifies as a covered "Loss" under the illinois Union Policy: "Loss meaus damages, judgments, ... awarded by a court."
4
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20.
Connolly's actions that precipitated the finding of liability qualify as "Wrongful
Acts" covered under the illinois Union Policy: "Wrongful Act means any actual or alleged error, omission, misleading statement, misstatement, neglect, breach of duty or act allegedly committed or attempted by: a) any of the Management Insureds, while acting in their capacity as such." 21. In connection with the Underlying Litigation, Connolly and the Plaintiffs entered
into an Assignment Agreement (the "Assignment Agreement"), pursuant to which Connolly assigned to the Plaintiffs all of Connolly's rights and claims against illinois Union for, among other things, coverage for the Underlying Judgment as well as for extra-contractual damages. 22. 23. A true copy of the Assignment Agreement is attached as Exhibit A. On or about September 8, 2009, the Davises and the Bergmarks filed an action
against Connolly in the United States District Court, District of New Jersey, alleging that Connolly misappropriated the Plaintiffs' funds. 24. On or about February 11, 2010, the United States District Court, District of New
Jersey entered partial summary judgment against Connolly, finding Connolly liable to the Davises and the Bergmarks for breach of fiduciary duty and conversion. In a second Opinion and Order entered on September 2, 2010, United States District Court, District of New Jersey entered a Final Judgment against Connolly and in favor of the Davises and the Bergmarks in the total amount of $1,045,000. FIRST COUNT
BREACH OF CONTRACT
25.
The Plaintiffs repeat and reallege the allegations set forth in the preceding
Paragraphs of this Complaint with the same force and effect as if each were fully set forth at length herein.
5
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26.
The illinois Union Policy is a valid and enforceable contract, pursuant to which
illinois Union, among other things, is obligated to indemnify Connolly for any Loss incurred during the Policy Period. 27. By reason of illinois Union's failure to indemnify Connolly for a Loss incurred
during the Policy Period, illinois Union has materially breached the illinois Union Policy and has directly and proximately caused Connolly significant damages and loss in an amount to be determined at trial, which claims Connolly has assigned and transferred to the Plaintiffs. 28. Connolly assigned any and all claims for coverage under the illinois Union Policy
to the Plaintiffs. WHEREFORE, the Plaintiffs demand judgment against illinois Union as follows: a. b. Declaring that the illinois Union Policy covers the Underlying Judgment; Declaring that Connolly's interest in the Remaining Policy Limits, which has been assigned to the Plaintiffs, is superior to that of the Davises and the Bergmarks; c. d. Ordering specific performance of the illinois Union Policy; Ordering illinois Union to indemnify Connolly pursuant to the illinois Union Policy; e. f. g. h. Awarding compensatory damages; Awarding pre- and post-judgment interest; Awarding the Plaintiffs their attorneys' fees, costs, and disbursements; and Granting other such relief as this Court deems just and proper.
6
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SECOND COUNT BREACH OF FIDUCIARY DUTY - COMPENSATORY DAMAGES
29.
The Plaintiffs repeat and reallege the allegations set forth in the preceding
Paragraphs of this Complaint with the same force and effect as if each were fully set forth at length herein. 30. Policy. 31. lllinois Union breached its fiduciary duty to Connolly by, among other things, lllinois Union owed a fiduciary duty to Connolly with regard to the lllinois Union
failing and refusing to indemnify Connolly for covered Loss under the lllinois Union Policy. 32. As a direct and proximate result of this breach by lllinois Union, the Plaintiffs, as
assignees of Connolly's rights and claims against lllinois Union, have been and continue to be damaged in an amount to be determined at trial. 33. Connolly assigned any and all claims for breach of fiduciary duty to the Plaintiffs.
WHEREFORE, the Plaintiffs demand judgment against lllinois Union as follows: a. b. c. Awarding compensatory damages; Awarding pre- and post-judgment interest; Declaring that Connolly's interest in the Remaining Policy Limits, which has been assigned to the Plaintiffs, is superior to that of Davises and Bergmarks; d. e. Awarding the Plaintiffs their attorneys' fees, costs, and disbursements; and Granting other such relief as this Court deems just and proper.
7
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TIDRDCOUNT BAD FAITH, BREACH OF FIDUCIARY DUTY AND BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING - PUNITIVE DAMAGES
34.
The Plaintiffs repeat and reallege the allegations set forth in the preceding
Paragraphs of this Complaint with the same force and effect as if each were fully set forth at length herein. 35. dealing. 36. Connolly and/or Connolly Properties at all times relevant hereto performed any The lllinois Union Policy included an implied covenant of good faith and fair
and all duties and obligations under the lllinois Union Policy. 37. At all times relevant hereto, lllinois Union, by its acts and omissions, acted in bad
faith and breached its fiduciary duties and the covenant of good faith and fair dealing, including but not limited to the following: a. Prior to entry of the Underlying Judgment, the Plaintiffs offered to Connolly to
settle and resolve the claims asserted in the Underlying Litigation for an amount within the remaining limits of the lllinois Union Policy, which offer Connolly promptly forwarded to lllinois Union and demanded that lllinois Union resolve and settle the Plaintiffs' claims within the limits of the lllinois Union Policy; b. With knowledge of a strong likelihood that a judgment would be entered against
its insured Connolly for an amount in excess of the remaining limits on the lllinois Union Policy based on conduct covered by the lllinois Union Policy, lllinois Union did not settle or resolve the claim but instead placed its interests ahead of its insured's interests and continued to wrongfully deny coverage and wrongfully and unreasonably refuse to settle; and
8
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c.
With knowledge of a strong likelihood that a judgment would be entered against
its insured Connolly for an amount in excess of the remaining limits on the lllinois Union Policy based on conduct covered by the lllinois Union Policy and with knowledge of multiple claimants making claims against Connolly, which claims were also covered by the lllinois Union Policy, who would also make claim to the remaining limits of the lllinois Union Policy, lllinois Union did not even make any attempt to enter into settlement discussions with the Plaintiffs or other claimants to explore if the case could be settled or resolved with all claimants for any amount less than the remaining limits on the policy. Instead, lllinois Union placed its interests ahead of its insured's interests and continued to wrongfully deny coverage and wrongfully and unreasonably refuse to settle or even to explore settlement opportunities, all to the detriment of its insured Connolly. 38. The acts and omissions of lllinois Union constitute bad faith, breach of fiduciary
duty and breach of the implied covenant of good faith and fair dealing. 39. As a direct and proximate result of lllinois Union's bad faith and the breach(es) of
its fiduciary duty and implied covenant of good faith and fair dealing, judgments were entered against its insured Connolly for amounts in excess of the remaining limits on the lllinois Union Policy, causing Connolly significant damages. 40. lllinois Union's bad faith and the breach(es) of its fiduciary duty and implied
covenant of good faith and fair dealing constitute sufficiently wrongful conduct to entitle its insured Connolly to punitive damages. 41. Connolly assigned any and all claims for bad faith, breach of fiduciary duty and
breach of implied covenant of good faith and fair dealing and for extra-contractual claims, extracontractual damages and punitive damages to the Plaintiffs.
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WHEREFORE, the Plaintiffs demand judgment against lllinois Union as follows: a. b. c. Awarding compensatory damages; Awarding punitive damages; Declaring that Connolly's interest in the Remaining Policy Limits, which has
been assigned to the Plaintiffs, is superior to that of the Davises and the Bergmarks; d. e. f. Awarding pre-and post-judgment interest; Awarding the Plaintiffs their attorneys' fees, costs, and disbursements; and Granting such other relief as this Court deems just and proper.
FOURTH COUNT DECLARATORY,lUDGMENT
42. The Plaintiffs repeat and reallege the allegations set forth in the preceding
Paragraphs of this Complaint with the same force and effect as if each were fully set forth at length herein. 43. The only current property right or other right of Connolly in the Remaining Policy
Limits is his rights and cause of action against lllinois Union for coverage and for breach of contract, breach of fiduciary duty, bad faith and breach of the covenant of good faith and fair dealing ("Connolly Rights"). 44. A creditor can secure an interest in such Connolly Rights by, among other things,
a legal proceeding to compel turn over of such rights and cause of action, which has not been done by any party, or by Connolly assigning the Connolly Rights. 45. Connolly assigned the Connolly Rights (as well as any and all rights, claims and
causes of action for extra-contractual claims and punitive damages) to the Plaintiffs. 46. The Plaintiffs own all of the Connolly Rights.
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47.
Any proceeding to attempt to enforce rights under the lllinois Policy, to turn over
the Remaining Policy Limits or to secure an interest in the Remaining Policy Limits requires Connolly as an indispensable party. Any such proceeding in a jurisdiction which does have personal jurisdiction over Connolly would be and is null and avoid for purposes of declaring rights or priority to the Remaining Policy Limits. 48. The Plaintiffs' interest in the Remaining Policy Limits, by and through the
assignment of the Connolly Rights, is superior to the interest, if any, of the Davises and the Bergmarks to such funds.
WHEREFORE, the Plaintiffs demand judgment against the Davises and the Bergmarks
as follows: a. b. Declaring that the Plaintiffs have an interest in the Remaining Policy Limits; Declaring that the Plaintiffs' interest in the Remaining Policy Limits is superior to
the interest, if any, of the Davises and the Bergmarks to such funds; c. d. e. Awarding the Plaintiffs judgment in the amount of the Remaining Policy Limits; Awarding the Plaintiffs their attorneys' fees, costs, and disbursements; and Granting such other relief as this Court deems just and proper.
FIFTH COUNT
CONSTRUCTIVE TRUST
49.
The Plaintiffs repeat and reallege the allegations set forth in the preceding
Paragraphs of this Complaint with the same force and effect as if each were fully set forth at length herein. 50. The Underlying Judgment is a Loss covered under the lllinois Union Policy.
11
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51.
As the Underlying Judgment is a Loss covered under the lllinois Union Policy,
lllinois Union must hold the Remaining Policy Limits in trust for the benefit of Connolly, whom lllinois Union is obligated to indemnify. 52. lllinois Union is a constructive trustee of the Remaining Policy Limits for the
benefit of Connolly. WHEREFORE, the Plaintiffs demand judgment against lllinois Union as follows: a. Connolly; b. c. d. Awarding the Plaintiffs judgment in the amount of the Remaining Policy Limits; Awarding the Plaintiffs their attorneys' fees, costs, and disbursements; and Granting such other relief as this Court deems just and proper.
DEMAND FOR JURY TRIAL
Imposing a constructive trust on the Remaining Policy Limits for the benefit of
The Plaintiffs demand a trial by jury.
Respectfully submitted, DUGHI & HEWIT, P.C., Attorneys for Plaintiffs, Edward P. Boykin, Phyllis A. Boykin, Aziz S. Hasan, Carol A. Hasan, Ronald K. Walker, and Jane C. Walker
By:
Russell L. Hewit (RLH -- 3813) Dughi & Hewit, P.c. 340 North Avenue Cranford, New Jersey 07016 908.272.0200
Dated: January 19, 2011
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Exhibit A
Assignment Agreement from Connolly to the Boykin Parties
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ASSIGNMENT AGREEIHENT
This Assignment Agreement ("Assignment Agreement" or "Agreement") made this __ of December 2010, by and among David M. Connolly ("Connolly" or "Assignor"), on the one hand, and Edwal'd Boykin, Phyllis Boykin, Aziz Ha.all, Carol Hasan, Ronald Walker and Jane Walker (jointly "Boykin Plaintiffs" or "Assignee"), on the other hand, WITNESSETH:
WHEREAS Connolly andlor Connolly P!'Operties, Inc. ("Connolly Properties")
purchased certain policies of insurance known as Business and Management Indemnity Policies f!'Om Illinois Union Insurance Company ("Illinois Union"), including but not limited to policy number BM120062 J63 (all policies of insurance issued by JIIinois Union to Connolly, including both known andlor identified policies and policy number BMJ2OQ62163 as well as unidentified andlor unknown policies are referred to jointly as "Illinois Union Policies"); and WHEREAS the BoyJdn Plaintiffs asserted claims for damages a~d loss against Connolly, including but nol.limited to claims asserted in a lawsuit entitled Edward P. Boykin el al. v. Connolly Properties, Tnc" ct al. Civil Action No. 09-5267 (ORD), in the United States District Court for the District of New Jersey ("Lawsuit"). which claims were and are covered under
Dlinojs Union Policies; and
,
WHEREAS Connolly timely tendered the claims to Illinois Union and demanded defense and indemnity of the claims under the Illinois Union Policies, and Illinois Union provided defense but not indemnity ot' the claims and reserved its rights to deny and wrongfully denied coverage for indemnity and damages arising from these claims under the IIlinoi. [Jninn Policies in breach of its contractual obligations; and
Assignmenl Agreement
Connolly and the Boykin Plaintiffs Page I of9
476BOtOOO6 7lS077Sv2
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Filed 01/19/11 Page 15 of 22 PageID: 15
WHEREAS notwithstanding that the Boykin Plaintiffs' claims exceeded the limits of the Illinois Union PCllicies, the Boykin Plaintiffs offered to Connolly to compromise. settle and resolve the claims against Connolly for an amount within what Were the remaining limits of the Illinois Union Policies, which offer would have avoided Connolly being exposed to damages in excess of the Jimits of the Dlinois Union Poticies; and WHEREAS Connolly communicated to flIinoi. Union the offer by the Boykin Plaintiffs to seWe within the limits of the Illinois Union Policies and avoid damages in excess of the limits of the Illinois Union Policies "nd consented
[0
and requested that Illinois Union settle the claims
of the Boykin Plaintiffs for an amount within the remaining limits of the lIiinois Union Policies; and WHEREAS Illinois Union knew or should have known that there was an overwhelming likelihood lhallhe Boykin Plaintiffs would obtain a judgment against Connolly for an amount in excess of the limits of [he Diinois Policies' limits based Oil claims covered by the Illinois Union Policies, yet refused to settle the claims of the Boykin Plaintiffs within the limits of its policies and continued to wrongfully deny coverage for the claims for the Boykin Plaintiffs damages, exposing Connolly to a high likelihood of a jUdgment in excess of policy limits in breach of Illinois Union's fiduciary duty to Connolly as Connolly's insurer and in breach of' its duty of fair dealing and good failh; ""d WHEREAS in the Lawsuit, the district court entered an order granting the Boykin Plaintiffs summary judgment against Connolly for $1,368,000 (the "Boykin Judgment" or
"Order'), un amount in excess of the rcnul.lniug limits of [he IlHnojs Union 'POliCies,
unnecessarily exposing Connolly to damages in eXcess oflhe limits of the rIlinois Union Policies; and
Assignment Agreement
Connolly and [he Boykin PI.intiffs
Page2of9
4768010006 nsn77Sv2
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WHEREAS the Boykm Judgment also divested the Boykin Plaintiffs of their interests in the Hillside Valley Investment Trust (the ''Trust'') and those interests reverted to Connolly; and WHEREAS Connolly tendered the Boykin Judgment to Illinois Union for payment, and lllinois Union has refused to pay the Boykin Judgment or the remaining limits of the Illinois Union Policy in breach ofDlinois Union's fiduciary duty to Connolly as Connolly's insurer and in breach of its duty of fair dealing and good faith, and Illinois Union continues to wrongfully deny coverage for the claims of the Boykin Plaintiffs under the IllinoiS Union Policies; and WHEREAS Connolly and the Boykin Plaintiffs have rCllched agreement on the terms of Connolly' agreement to assign and transfer to the Boykin Plaintiffs any and aJl rights and claims against BIinois Union (a) in any way related to, under or arising ftom breach of the Jilinois Union Policies, (b) for coverage under the IllinOis Union Policies, (e) to any and all proceeds due under the fIlinois Union Policies, (d) for extra-contractual damages, punitive damages and any and all other available remedies and relief arising from
or in breach of Illinois Union's fiduciary duty to
Connolly as Connolly's insurer and in breach of irs duty of fair dealing and good faith; and WHEREAS, in addition to the assignments and transfers related If) the Illinois Union Policies, Connolly also agrees to assign and transfer to the Boykin Plaintiffs the interests that the Boykin Plaintiffs were divested of in the Trust under the terms of the Order; and NOW, THEREFORF.. Connolly and the Boykin Plaintiffs agree to the following tonns and conditions.
1.
Recitations. The recitations in the WHEREAS clauses are incorporated into the
body of this Agreement"" rcpl'Cscntntions ortl.e parties. 2. Assignment of Insurance Hights. Connolly irrevocably assigns, transfers and
delivers to the Boykin Plaintiffs to the maximum extent permitted by law, outright and free of
Assignment Agreement
Connolly and the Boykin Plaintiffs Page 3 of9
476SOIQC()(j 7lS0778v2
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any and all liens, clnims and encumbrances, any and all rights, claims, causes of action and entitlements (u) to any and all proceeds due, payable or [0 be paid under the lIIinois Union Policies, (b) to any and all claims for insurance coverage under the lIIinois Union Policies, (c) to any and all claims arising from breach of the lllinois Union Policies, (d) to any and all claims for extra-contractual damages. punitive damages lind any and all other available remedies and relief arising from Illinois Union's breach of its fiduciary duty co Connolly us Connolly'S insurer and/or arising froOl its breach of its duty of fair dealing and good faith (jointly. the "Assigned Claims"). The Assigned Claims include any and all rights. claims, causes of accion and entitlements arising from or relaled in any way to any claims Connolly had. has or may have against Illinois Union for any reason. 3. Assignment of Interests in and to HUis/de. Connolly irrevocably assigns.
transfers and delivers to lhe Boykin Plaintiffs to the maximum extent permitted by law. outright and free of any and all liens, any and all shares, membership interests. partnership interests. ownership interests and any and ull claims. encumbrances. rights, causes of action and entitlements previously owned or held by the Boykin Plaintiffs, which he received pursuant to the (erms of the Order divesting Che Boykin Plaintiffs of their interests in the Trust ("Boykin Hillside Interests"). 4. k..,.rfion and Filing of Claims/Costs of Pursuing ASSigned Claims. The
Boykin Plaintiffs are authorized by ConnoUy to assen and prosecute. and shall assen and prosecute, che Assigned Claims us assignee as though ConnoUy was asserting and prosecuting the Assigned Claims in it, own righ' and name, and the Boykin Plamuf!s shall be solely entitled to any recovery on the ASSigned Claims. In the event that formal litigation is filed, the Boykin Plaintiffs shalI caption the case in the name of the Boykin Plaintiffs, individually and as assignee
Assignment Agreement Connolly and the Boykin Plaintiffs
Page4of9
476&0l0006 725077Rv2
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of Connolly and shall also recite In tile pleadings that the Assigned Claims have been assigned by Connolly to the Boykin Plaintiffs, The Boykin Plaintiffs shall be solely responsible for the costs, including but not limited to attorneys fees and expenses and costs, incun'ed in asserting and prosecuting the Assigned Claims, 5. Representations of Connolly. Connolly represents and warrants that (1) he owns
the Assigned Claims, he bas not released tile Assigned Claims lind he has the right and authority to assign and transfer the Assigned Claims and the Boykin Hillside Interests to the Boykin Plaintiffs, and (2) he has not assigned, pledged, transferred or otherwise encumbered any of the Assigned Claims and the Boykin Hillside Interests and he assigns them to the Boykin Plaintiffs free and cleur of any and all liens, claims and encumbmnces of any third partiers, Connolly shall not assign or transfer to any other persons or entities the Assigned Claims or the Boykin Hillside Interests and shall not assign to any other persons or entities any other rights or claims (a) to any proceeds due, payable or to be paid under the Illinois Union Policies, (b) for any other claims for insur-dnce coverage under the Illinois Union Policies, (c) for any other claim~ ",ising from breach of the Illinois Union Policies, Cd) for any other claims for extra-contractual damages, punitive damages or any other available remedies or relief against Illinois Union for any reason or (e) to the Boykin Hillside Interests, Connolly represents and wan'ants that he has no assets or income, and that he has no current right or entitlement to future assets or income, except as expressly listed in his Asset Disclosures he previously disclosed to the Doykin Plaintiffs, ConnOJlyrecognlzes,underslands and agrees that if there is a misrepresentation in his Asset Disclosures that the Agreement to look to Illinois Union and the Boykin Hillside Interests for relief and not to pursue relief from
Assignment Agreement Connolly and the Boykin Plaintiffs
PageS of9
4i6RnJOQOG 1250719v2
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Connully as set forth In paragraph 7 shall be void and unenforceable and thaI the Boykin Plaintiffs shall have the right to pursue recovery from Connolly. 6, CooperaliolL Connolly shall cooperate with the Boykin Plaintiffs in the
prosecution of the ASSigned Claims, including but not Umited to (1) providing the Boykin Plaintiffs and/or their attorneys and representatives with access to and copies of books, records, documents, data, storage media, communications and other materials, whether created or stored in hard copy or electronic or computer format, relevant to the Assigned Claims, (2) authorizing and insl.nlcling his employees or employees of entities under his control, with relevant knowledge about the Assigned Claims to meet with the Boykin Plaintiffs and/or their attorneys and representatives upon reasonable notice and at reasonable times, in order to respond to discovery requests and to prepare and prosecute the Assigned Claims, and (3) cooperating in the scheduling and appearance at deposition, heating, arbitration or trial and, in such event, to meet with the Boykin Plaintiffs and/or their attorneys and representatives to prepare for such deposition, hearing, arbitration or trial. In the event Connolly is contacted by Illinois Union or persons acting on it.. bebalf or is contacted by any person concerning or related to the Assigned Claims, Connolly shall make no comment about the Assigned Claims and shall refer any such persons to the Boykin Plaintiffs. Connolly shall not provide any docllments or wlitings concerning the Assigned Claims to any persons, except in response to valid subpoena or COUlt order and, even then, only after first providing copies to the Boykin Plaintiffs and/or his attorneys and a reasonable opportunity to review prior to production, nor shall Connolly discu"s ur ,-,ummem on the Assigned Claims, in writing or orally, to any other person, excluding, his lawyers, tax advisors and spouse, except in the presences of the Boykin Plaintiffs or their attorneys.
Assignment Agreement
Connolly and the Boykin Plaintiffs Page 60f9
,(768010006
7250718v2
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7.
Agreement to Look to Illinois Union and Hillside Interests Only for Relief.
The Boykin Plalntiffs agree that they shall not seek relief or recovery from Connolly with regard to any and all claims against Connolly asserted in Ihe Lawsuit amI/or to which they are entitled under the Boykin Plaintiffs' Judgment. but shall limit their recovery solely to what they receive from !IIinois Union and the Hillside Inrcresl,. To the extent that the Boykin Plaintiffs can release any and all chlims against Connolly asserted in the Lawsuit and to which they are entitled underthe Boykin Plaintiffs' Judgment without impairing or limiting in any way Connolly's rights and claims against lIlinois Union (which have been assigned to the Boykin Plaintiffs) and/or the Boykin Plaintiffs' rights and claims against Illinois Union pursuant to the Assigned Claims. d,CY release such claims against Connolly. If, however. for any reason, such a release impairs or limits in any way the rights and claims of the Boykin Plaintiffs against IllinOis Union pursuant to the ASSigned Claims, then they do not release Connolly, but agree to look solely to Illinois Union and the Boykin flillside Interests for relief and recovery. The Boykin Plaintiffs further agree that they will not seek ta collcct or recover manies or payment of the judgment from Connolly but will look to Illinois Union to satisfy the judgment.. IJpon resolution of the Assigned Claims with Illinois Union, by way of verdict, court order or settlement, the Boykin Plaintiffs will execute and provide to Connolly a warrant to satisfy judgment.
A.
Authority. Connolly has the full right and authOlity to assign and transfer 10 the
Boykin Plaintiffs the Assigned Claims and the Boykin Hillside Interest. B. Binding. This Assignment Agrc:ement is binding upon and shaJl inure to the
benefit of the parties and their successors and assigns.
Assignment Agreement Connolly and the Boykin Plaintiffs Page 7 of9
47680101106 nS017Bv2
Case 2:11-cv-00326-SRC -MAS Document 1
Filed 01/19/11 Page 21 of 22 PageID: 21
C.
Entire Agreement. Tlus Assignment Agreement is the entire agreement between
the parties and there are no oral agreements. This Assignment Agreement represents the complete understanding between the parties and supersedes nny and all previous negotiations, represenrations or agreemenrs
as to the subject matter of this Assignment Agreement. This
Assignment Agreement may nO[ be amended except by a written instrument signed by all parties. D. Preservation of Agreement. If a court or other hearing officer of competent
jurisdiction holds any part of this Agreement to be invalid or unenforceable, the remainder of the Assignment Agreement shall remain in full force and effect.
E.
Countcmarts. This Assignment Agreement mny be signed in counterparts, each
of which is deemed nn original, and all of which taken together constitute one and the same agreement. F. Additional Documents. The Parties agree to execute and deliver to each other
any documents reasonably necessary to effectuate the terms of this Assignment Agreement. G. New Jersey Law. The law of the State of New Jersey shall apply in the
interpretation and enforcement of this Assignment Agreement without regard to choice of law principles. H. Signatory for Boykin Plaintiffs. Louis Modugno, attorney for the Boykin
thi~
Plaintiffs. is authorized to sign
A..ignment Agreement on behalf of each and everyone of
the Boykin Plaintiffs and to bind them to the terms of this Assignment Agreement. The NOW, THEREFORE, clause and signature pnge is the next immediate page.]
ASSignment Agreemclu
Connolly and Ihe Boykin Plointilfs Page 8 019
4768WOOO67'J.S071BIlZ
Case 2:11-cv-00326-SRC -MAS Document 1
Filed 01/19/11 Page 22 of 22 PageID: 22
NOW, THEREFORE, David M. Connolly, on the one hand, and Edward Boykin, Phyllis Boykin, Azi.2. Hasan, Carol Hasan, Ronald Walker and Jane Walker, by and through their attorney, Louis Modugno, on the other hand, sign this Assignment Agreement intending to be legally bound by all of its terms and conditions.
ASSIGNORS; DAVID M. CONNOLLY
David M. Connolly, Individually Dated: December &, 2010
ASSIGNEES: LOUIS MODUGNO, ATIORNEY FOR AND ON BEHALF OF EDWARD BOYKIN, PHYLLIS BOYKlN, AZIZ HASAl'l, CAROL HASAN, RONALD ~ALKER, ANI}1ANB WALKER
,'/"
/1-:/J ~ ~
Louiii Modugno, AltoOley for and on behalf of Edward Boykin, Phyllis Boykin, Aziz Hasan, Carol Hasan, Ronald Walker, and Jane Walker
.p,ll- :
;C,""i ?,
.)011
Assignment Agreement Connolly alld the Boykin Plaintiffs Page 9 of9
4768010006 72S07']S ...;l

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