---------- Forwarded message ----------
<The Desk of Ted Whidden>
Date: Fri, Oct 8, 2010 at 10:59 PM
Subject: Fwd: ACF1001306 Theodore & Kenneth Whidden v. Frank Delgado
Delivery Service, Inc. d/l 08/29/10
To: Marlen Ruiz
I have received the following today. Unfortunately, the management at
Aequicap are not working in as they should. I still think you may
have some legal recourse if they continue behaving in this manner.
This seems to be a tricky situation dealing with them. Mr Pecoraro
makes a number of mis-statements in his letter, and thus far I cannot
recall a letter or discussion with these people that did not include
an element of deception. Please do not rely on his statements,
otherwise you trip and stumble into the arena of confusion from where
they appear to operate.
As you will see the claims manager Pecoraro
dances around the subject,
but in the midst of it he states the wreck of August 29, 2010 with
your driver Frank Delgado
(Yera) is covered under your policy. It is
somewhat hard to get out of it, but he advises:
There is an MCS-90 endorsement separately attached to the Truckers
policy, and as such, this endorsement will afford coverage for this
interstate commerce trip.
The short answer above is there is indeed coverage if in no other
place under this MCS-90 endorsement. Could you please send us copy of
this endorsement? Despite the statement of Pecoraro
we have not
received copy of the policy they are required under law to provide.
This is a mis-statement being followed up by the state investigators.
You will further read in Pecoraro
's letter where he shifts liability
to us. As stated in my letter(s) to you we anticipated this, as the
underwriter and agent is trying to protect themselves and not you.
Ask your legal counsel. If they try to shift liability to us as they
have you lose a host of defenses in this case and the costs to the
truck owner sky-rockets. I made this fairly clear in the demand
letter that I sent to you by registered/certified mail. By the way,
you signed for that letter personally on October 5, 2010. The clock
is now ticking on your compliance with the same letter.
Unfortunately, the claims people followed the steps that we figured
they would. This makes the letter/demand valid in all respects.
Over the near period we have no desire to address liability with your
underwriter/claims agent. Since they have stated in writing we are
liable, then you are fully responsible for the cost of defense and
discovery in this matter. It is outlined somewhat in the demand
letter that you signed for.
Moving forward what we will see is the claims agent (Aequicap) must
submit copy of their file to the state investigative agencies by
October 17, 2010. I sent you copy of the notice the state gave me in
this regard. All of their file and documents are discoverable at that
point. Their handling of the claim/case is subject to a great number
of problems. We shall see how the state chooses to deal with them.
Meanwhile, no matter what happens your driver/company is fully
responsible for the wreck and damages. Mr. Pecoraro
's game that he is
playing will potentially cause him to lose his license and a host of
other fall-out issues surrounding him and his operation.
Unfortunately, this all developed because no one stepped up and
admitted liability. Mr. Pecoraro
's statements about the tail-lights
are false and he knows it. His investigator, Mr. Brill, came out and
did an investigation and light test that was fully recorded by both he
and I. Brill will now be torn between telling the truth and/or
supporting the misrepresentation that Pecoraro
has put in his letter.
This is unfortunate. Meanwhile, we have no intention to argue
liability, because until you provide us the demand documents, and
Aequicap submits their file to the state, the liability shift to us
has no effect except to potentially incriminate your claims
The investigator, Mr. Brill, stated clearly that no matter what the
outcome your driver struck us from behind on a clear, open stretch of
road. There is no way (according to Mr. Brill) that the
driver/company can sidestep liability. That makes all the rest of
this a game. A very expensive game, because no matter what all this
dancing around the subject does the end result never changes.
I would encourage you to seek guidance. Your claims agent is not
working in your favor, and has already made interesting steps to
side-step their responsibility to you.
I remain available to discuss a reasonable settlement if/when level
headed people of integrity are available for the discussion.
Meanwhile, I look forward to the documents demanded, and required by
you to prepare under state law. Documents will be considered due/late
on October 26, 2010, based on your certified receipt being signed
October 5, 2010.
Mr. Whidden, I have your letters dated September 19
written to Tower Group and AequiCap Claim Services. Pursuant to
your request, I am emailing you our response to your most recent
According to my review of the claim file, you were correctly
early on by both AequiCap Claim Representatives that there is a
coverage issue involved in this claim. The coverage issue has to do
with the Truck driven by Mr. Yera not being listed on the policy.
a result, we commenced our investigation, and are continuing to
this claim under a reservation of rights as to the Truckers
policy. During the course of our investigation, we determined this
Truck was on an interstate commerce trip hauling goods under Oliva
Delivery Services Motor Carrier Authority. There is an MCS-90
endorsement separately attached to the Truckers policy, and as such,
this endorsement will afford coverage for this interstate commerce
trip. A Coverage Disclosure Affidavit and copy of the policy was
to your former legal representative, Mr. Coy Browning.
As you know, we had an appraiser assess the damage to the 1993 Chevy
Blazer, 16' trailer, and 1986 Porsche that was on the trailer at the
time of this crash. We also retained Mr. David Brill
, who is a
certified accident reconstructionist, and with your permission he
inspected both vehicles and the trailer. We took a statement from
Truck driver and obtained your version of the accident as well. As
you know, there were no known disinterested witnesses to this
accident, and the FHP officer that handled this accident neither
observed the trailer lights being on when he arrived at the scene,
did he test whether they were working. And according to Mr. Brill's
inspection, the dimensions of the Porsche blocked the view of the
Based on the results of our investigation, it is our position this
trailer was not illuminated or visible while being operated on this
dark, unlighted section of I-10, and that this lack of illumination
was the cause of this accident. As a result, we are herewith denying
liability for this claim. Finally, according to the police report,
you are not listed as the owner of the Chevy Blazer or trailer that
was damaged in this accident. However, since you have possession of
the Blazer and trailer, and you advised us Mr. Browning is not
representing you or your brother, this denial applies to all claims,
including your brother's bodily injury claim and property damage
for the damage to his 1986 Porsche.
Mr. Whidden, if you feel compelled to respond to this email, I
respectfully ask that you please direct all correspondence
to my attention and also refrain from making defamatory comments.
John R. Pecoraro
Vice President, Claims