State of Vermont United States District Court
Chittenden County, SS. U.S. Court House, Burlington
EDWARD BRADY and Case No: 2:2008cv00158
ROSEMARY BRADY,
Of Ferrisburgh, Addison County,
Plaintiffs
JOAN LORING WING
of Rutland, Rutland County,
LISA CHALIDZE of Benson, Rutland County
PIETRO J.LYNN
of South Burlington, Chittenden County
LYNN, THOMAS & MIHALICH, P.C.,
a Vermont corporation with principal place of
business in Burlington, Chittenden County;
GREGORY S. CLAYTON,
of Barnet, Caledonia County;
ATEN CLAYTON & EATON PLLC,
a foreign corporation with principal place of
Business in Littleton, New Hampshire;
ONE BEACON INSURANCE GROUP, LTD.,
a foreign corporation with principal place of
Business in Canton, Massachusetts;
YORK INSURANCE COMPANY OF MAINE,
a foreign corporation with principal place of
Business in Canton, Massachusetts;
J.W. & D.E. RYAN. INC.,
a Vermont corporation with principal place of
Business in Vergennes, Addison County;
PEERLESS INSURANCE COMPANY,
A foreign corporation with principal place of
business in Keene, New Hampshire;
Defendants
COMPLAINT WITH JURY TRIAL DEMAND
The plaintiffs complain as follows, incorporating the allegations of each Count into each successive Count:
Count-1. INTENTIONAL MISREPRESENTATIONS BY JOAN LORING WING
She had a conflict of interest in her conducting mediation business and her position as chair of the Ethics Board of the State of Vermont.
On December, 9, 2004, plaintiffs and their then attorney (now a defendant) Lisa Chalidze appeared in Rutland before mediator, Joan Loring Wing. Plaintiffs were asked by her to sign a mediation agreement which stated that parties acknowledged that, although the mediator, Joan Loring Wing, is a licensed attorney, she does not practice law and is not acting as an advisor to any of the parties. The above statements by Atty. Wing are lies and misrepresentations.
Plaintiffs after the mediation found out Atty. Wing was practicing law. She admitted at a hearing before Judge Norton that when she says she does not practice law that means she does practice law but not mediation law. “Where does it say that in the mediation agreement?,” plaintiff asked on cross examination. Wing said “It does not say that. It is my interpretation.” Regardless of her interpretation, the fact remains she lied when she stated she did not practice law which plaintiff relied upon.
If plaintiffs had known that mediator Wing was practicing law they would have inquired of her as to what type of law she practices, what lawyers and insurance companies she had or does have business or connections with. Plaintiffs found out after December 9, 2004 mediation that Atty. Wing had connections with a law firm run by her relatives that represented Liberty Mutual group that owned Peerless Insurance Company. Peerless was a company involved in plaintiffs above case that Atty. Wing was mediating and she therefore certainly had a conflict of interest. If plaintiffs had known about the above they would have objected to her being the mediator in their case.
At the settlement conference the mediator Wing, said to our then attorney Chalidze, “Here is the settlement your clients agreed on.” Attorney Chalidze examined the papers and asked plaintiffs to sign them. Plaintiff examined the document and said “This is not what we agreed to. It states we agreed to indemnify the plumber, whose negligence caused the water damage to plaintiff’s property.” Plaintiffs stated they would not sign. The moderator stated “Don’t worry. This is the usual clause in this type of case.” Plaintiffs stated they would not sign because signing would mean they would result in getting zero for their losses and said they were going home. Atty. Wing then said, “Stay I will be back shortly.” When the mediator returned she stated that the indemnification clause had been eliminated and plaintiffs could then sign. When mediator Wing stated to plaintiffs that the clause stating plaintiffs indemnify the plumber was the usual clause in our type of case, she knew or certainly should have known as an attorney that indemnifying the plumber is not the usual clause.
Mediator Wing violated her own mediation agreement which stated she is not acting as an advisor to any of the parties. Not true, she advised the plaintiffs, who are parties, that the above clause was the usual clause. This was the wrong advice and misrepresentation.
Mediator Wing was acting for the benefit of defendant’s insurance companies and their lawyers, Lynn and Clayton. Plaintiffs, on the date of mediation, did not know that in addition to having a mediation business, Atty Wing was chair of the Vermont Ethics Board and Atty. Clayton who represents one Beacon Insurance Company was also a member of the same ethics board as mediator Wing. Atty Clayton tried to have plaintiffs sign a agreement to indemnify defendant Ryan and mediator Wing tried to help him by giving false advice to plaintiffs.
On May 23, 2005, plaintiff and defendant attorneys representing defendant’s insurance companies appeared before Judge Norton. Before he entered the court room, the court attendant called our case and attorney Clayton followed him to the judge’s chambers. Plaintiff tried to follow but was not permitted by the attendant to enter even though he indentified himself to the court attendant. When Judge Norton came out of chambers, he stated to Atty. Clayton to call mediator Wing to the stand. Plaintiffs were surprised because no notice had been previously given that any non parties would be called as a witness. Judge Norton previously notified plaintiffs by mail that only oral argument was to take place based upon documents previously filed. In spite of the above, Atty. Clayton called to the stand mediator Wing and said to the Judge you know Mrs. Wing, chair of the Vermont Professional Responsibility Board. She says no criminal threats were ever made to plaintiffs on December 9, 2004. She then took the stand as a voluntary witness for Attorney Clayton and the insurance company defendant he represents. Atty. Wing who is connected with Atty Clayton on the Vermont Ethics Board said she was present at all times when plaintiffs and Atty. Clayton were together at the mediation and had no meetings or contact with each other outside her presence.
Judge Norton then said Atty. Wing could step down. Plaintiff then said “Wait a minute Judge, don’t we have the right of cross examination?” He then recalled Atty. Wing to the stand. Plaintiff then on cross examination stated to Mrs. Wing, “You are under oath, do you deny that a woman knocked on the door at the mediation hearing and said you were wanted on the telephone and you then left the room?” Her answer was she could not deny leaving the room. She could not remember.
We the plaintiffs remember and are certain that mediator Wing did leave the room and it was then that Atty. Clayton banged his fist on the table and said if we the plaintiffs did not settle the case that day he would charge us with criminal fraud. Atty. Clayton denied he used the word criminal fraud but admits he said that if plaintiffs did not settle the case that day he would charge plaintiffs with fraud, omitting the word criminal.
On September 11, 2007, once again Atty. Clayton made threats to the plaintiffs, this time before Judge Katz. He made a motion to the court that if the plaintiffs did not sign releases he submitted to them that the court hold plaintiffs in contempt and send them to jail. Judge Katz refused to hold plaintiffs in contempt of court and refused to send plaintiffs to jail and also refused to order plaintiffs to sign releases Atty. Clayton submitted. In spite of the above, Judge Norton ignored the threats by Atty. Clayton. He also was guilty of wrongful conduct. Even the tape recordings were changed and tampered with. Remarks by the Judge and plaintiff were altered and loud noise erased statements of plaintiff.
On our appeal to the Vermont Supreme Court, we raised the issue of conflict of interest concerning the court and Atty. Wing by reason of her being chair of the Vermont Professional Responsibility Board and her mediation business. The court failed to make a ruling. Instead, the court ruled that plaintiffs were more to blame than the defendants in that plaintiffs were to prepare the releases but failed to do so. The court is wrong. Although the December 9, 2004 agreement stated plaintiffs were to prepare releases, that meant their attorney was to prepare them, especially since their attorney said to plaintiffs as they were leaving the mediation on December 9, 2004 that they can expect to get the releases in two or three days. Instead of our Atty. Chaldize preparing releases, the defendant’s attorneys for the insurance companies prepared them about three days after the mediation and sent them to plaintiffs’ attorney. Plaintiffs’ attorney, then with her letter attached, sent the releases to plaintiffs on December 22, 2004 which plaintiffs received two days before Christmas.
She stated that she would notarize them by talking to plaintiffs on the telephone. We understood this request was not legal and was we believe requested hoping we would not bother to read the releases carefully, which we found changed the amount to be paid to plaintiffs and reinstated what we refused before at mediation on December 9, 2004, a clause that plaintiffs would indemnify the defender Ryan Incorporated and their insurance company for any claims held by anyone against said defendants.
Plaintiffs contacted their attorney and asked her why she was asking us to sign releases that were contrary to the mediation agreement of December 9, 2004. “You must be in bed with the defendant’s insurance companies and their lawyers”, plaintiff said. She made no reply and plaintiff told her they were going to notify the court and ask that we get a jury trial because defendant’s attorneys Clayton and Lynn had broken the mediation agreement.
Plaintiff also contacted the above defendant’s attorneys and informed them we would not sign their releases because they did not conform with the December 9, 2004 agreement. Instead of correcting the releases they prepared, these attorneys for the insurance companies made a motion that the court order plaintiffs to sign defendants releases which was not in conformity with the December 9, 2004 agreement. Therefore, the Vermont Supreme Court judges are in error when they say we were at fault for not preparing releases because it is clear defendants would not have signed releases we would have prepared. The defendants tried to con us three times without success and the Vermont Supreme Court in effect says because plaintiffs did not prepare the releases it is all right for the insurance companies and their attorneys to try conning the plaintiffs.
Because of lack of due process and constitutional rights being violated, the plaintiffs file this complaint with the United States District Court. The plaintiffs request a jury trial and the determination of the amount to be paid by defendants including compensatory and punitive damages and emotional distress.
Count 2- PROFESSIONAL NEGLIGENCE AND INTENTIONAL MISREPRESENTATION BY ATTORNEY CHALIDZE.
The plaintiffs hired defendant Attorney Chalidze to sue CU York Insurance Company (One Beacon Group) and J.W. & D.E. Ryan, Inc. for losses arising out of water damages to plaintiffs’ home on Button Bay Road in Ferrisburgh, Vermont and damages to some of the contents, including antique furniture and art.
The plaintiffs appeared on December 9, 2004 in Rutland for a scheduled mediation conference. At the conference, the plaintiffs reminded their Attorney, Chalidze that CU York Insurance Company (One Beacon Insurance Group) owed plaintiffs money for punitive as well as compensatory damages. Attorney Chalidze stated to plaintiffs that they do not in Vermont consider punitive damages.
The statement given to plaintiffs is not legally correct. The plaintiffs, if given the opportunity to do so, would have proceeded to outline the details to the mediator of plaintiffs’ claim for punitive damages which would have included the following: The water damage to plaintiffs’ house was so tremendous that they could not use the bedrooms to sleep in and plaintiffs were compelled to sleep in the TV room (which was not damaged). The plaintiffs, after the water damages to their home, asked their insurance company, One Beacon, if they would pay plaintiffs for expenses of sleeping at a motel. One Beacon Insurance Company told the plaintiffs that their insurance policy did not cover those costs. Plaintiffs found out later that such costs were covered in their insurance policy. For a week following the water damage, plaintiff, Edward Brady, had to sleep on a chair in the TV room and he awakened several times a night complaining of numbness and pain. Plaintiff contacted his doctor, a cardiologist, concerning the above and was told that under no circumstances should he sleep in a chair as he could have a stroke with his condition. When plaintiffs found out that One Beacon lied and that motel bills were covered by their insurance company and complained again to One Beacon Insurance Company, they then reimbursed plaintiffs for some of the motel bills plaintiffs had paid.
An investigator for One Beacon Insurance Company told the plaintiffs (before their suit) he could not understand why One Beacon Insurance Company was giving the plaintiffs such a hard time with their claims, in as much as the expert One Beacon hired stated in his report that Ryan Plumbing’s negligence was the sole cause of the water damages to plaintiffs property. Plaintiffs asked for a copy of the report and the investigator stated that plaintiffs should contact Mrs. Sasserville of the One Beacon Claims Department and ask her for a copy because he was not able to supply him with a copy. Plaintiff contacted Mrs. Sasserville of One Beacon Claims Department and asked her for a copy. She told the plaintiff “Why should I give it to you? You didn’t pay for it!” Plaintiff told her, “I thought we were on the same side!” She then hung up.
Plaintiff, at another time, contacted One Beacon Insurance Company’s claims department regarding payment of damages to wall-to-wall carpeting and damages to the flooring under the carpeting in the bedroom. Mrs. Sasserville of the claims department stated they only are required to pay for one of the above, not both, under the insurance policy.
When plaintiffs took two antique chairs that were water damaged by Ryan’s plumbing company, to have them repaired by an antique restorer, One Beacon only paid plaintiffs for cost of gasoline and nothing for their time and expenses in packing and taking them to the restorer in Pennsylvania., whereas, One Beacon paid more than the amount for costs of shipping the chairs back to plaintiffs by a professional shipping company. One Beacon claimed plaintiffs’ time and expenses were not collectable.
Several weeks prior to the date of mediation of December 9, 2004, and again on the date of mediation, plaintiffs reminded their Atty. Chalidze of their entitlement of punitive damages and compensatory damages for loss of value concerning art and antiques rather than defendants claims to only costs of repairs, which is false. Our attorney failed to assert these claims on behalf of plaintiffs.
If the plaintiffs had known about the lies and deliberate misrepresentation of the Attorney Chalidze, they would not have even settled the case at all but would have demanded a jury trial and would have fired their attorney. Her actions show her cooperation with the defendants rather than her clients, as shown by the above.
Defendant One Beacon Insurance Company, defendant Ryan and his insurance company, Peerless, their attorneys and plaintiffs’ Attorney Chalidze maliciously attempted to con the plaintiffs to sign releases that changed the December 9, 2004 agreement. Plaintiffs told their attorney that she should notify the court that the mediation failed because defendants breached their agreement and the case should be scheduled for jury trial. She failed to do what was asked.
Also, plaintiffs’ attorney failed to contact attorneys Clayton and Lynn and ask them why they changed the terms of the agreement and tell them that plaintiffs were not going to sign the revised releases that were not in accordance with the mediation agreement. Instead of correcting the changed releases, attorneys Clayton and Lynn filed a motion with the Vermont Superior Court to force the plaintiffs to sign the revised releases.
Plaintiffs relied on their Attorney Chalidze’s statement to plaintiffs that One Beacon and Ryan had each offered to pay them $40,000.00 each to settle the claims, and her representation to plaintiffs that punitive damages could not, in Vermont, be considered as damages at mediation.
The release documents submitted to plaintiffs, prepared by the attorneys for the defendants’ insurance companies, were ambiguous as to the amount to be paid to the plaintiffs and, therefore, the interpretation of such should be resolved against the defendants who created the ambiguity.
If the plaintiffs had know that punitive damages are considered as damages in Vermont, contrary to what Attorney Chalidze told the plaintiffs, and that the attorneys for defendants’ insurance companies and Ryan would submit releases stating that One Beacon would pay $30,000.00 and defendant Ryan and their insurance company $10,000.00, instead of $40,000.00 each as plaintiffs’ attorney told plaintiffs before they signed the agreement, they would never have signed the agreement at the mediation.
Defendant Chalidze supported the efforts of CU York and Ryan to force the Bradys to sign overly broad releases. Defendant Chalidze supported these efforts because a consummated settlement would yield her a contingency fee. After several month of litigation, the Court ordered the Bradys to sign narrowed releases that the Court deemed consistent with the settlement agreement. The Bradys appealed on the grounds that the attempt by CU York and Ryan to make them sign overly broad releases constituted a breach of the settlement and left them free to disavow it. The Vermont Supreme Court denied the appeal, holding that the Bradys could not complain about releases submitted by their opponents when the settlement agreement made the Bradys responsible for drafting the releases.
Knowing that the settlement agreement said the Bradys would draft the releases, a lawyer representing the Bradys with the same degree of skill, care, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in Vermont would have (a) prepared releases, (b) kept the releases within the scope of the settlement agreement, not broadened them as attorneys Clayton and Lynn did, and (c) not supported the efforts of CU York and Ryan to force the Bradys to sign the releases that Attorneys Clayton and Lynn submitted.
Attorney Chalidze is, therefore, liable to the plaintiffs for punitive damages because of her deliberate misrepresentations, damages for emotional distress, attorney fees, costs and time spent by plaintiffs in preparing motions and time appearing in Court, time defending motions made by Attorney Clayton and Attorney Lynn which violated the terms of the settlement agreement, losses incurred due to attorney Chalidze’s professional negligence and intentional misrepresentation.
COUNT 3- BREACH OF CONTRACT BY DEFENDANT CHALIDZE IN BRADY V. CU YORK INSURANCE ET AL
Defendant Chalidze contracted to represent the Bradys in Brady v. CU York Insurance. This contract obliged Attorney Chalidze to draft releases when the settlement agreement imposed this duty on the Bradys. By not drafting the releases, Attorney Chalidze breached her contract. Attorney Chalidze is, therefore, liable to the Bradys for the same damages described in Count 2.
COUNT 4-MALICIOUS PROSECUTION BY DEFENDANTS LYNN, CLAYTON, ONE BEACON AND RYAN
The plaintiffs hired defendant Chalidze to sue CU York Insurance Company and One Beacon Insurance Group (collectively “CU York”), and J. W. and D.E. Ryan, Inc, (“Ryan”) because Ryan had negligently repaired plumbing in the plaintiffs’ home and water damage resulted. Ryan had not paid for the damage, and CU York had agreed to pay for only some of the damage.
Brady v. CU York Insurance et al. was settled in mediation on December 9, 2004. The settlement agreement said the Bradys would prepare general releases, presumably through their counsel, defendant Chalidze, who said to Bradys when they were leaving the mediation building that she would prepare the releases and plaintiffs would have them in a few days. Instead, CU York and Ryan submitted general releases prepared by defendants Clayton and Lynn respectively, which did not conform with the mediation settlement.
The general release prepared by defendant Clayton violated the settlement agreement by including the release of all causes of action, claims known or unknown by plaintiffs against One Beacon and others from the beginning of the world to the date plaintiffs signed the release. The general release prepared by defendant Lynn violated the settlement agreement by including a clause under which the Bradys would indemnify Ryan from all claims.
Under the indemnity clause prepared by Lynn, CU York could have exercised its subrogation rights by suing Ryan to recoup what it paid to the Bradys in settlement. Plaintiffs refused to sign the releases prepared by defendants Clayton and Lynn. On behalf of CU York and Ryan, defendants Clayton and Lynn moved to force plaintiffs to sign the releases they had submitted. The Court eventually (a) decided the releases violated the settlement, (b) refused to order plaintiffs to sign the releases submitted by defendants Clayton and Lynn.
Like earlier drafts, the releases that the court ordered the plaintiffs to sign released CU York and Ryan and their agents from liability for everything until the date of signature. The plaintiffs refused to sign the narrowed releases because so doing would release CU York and Ryan and their agents from liability for the settlement enforcement litigation that was not even anticipated when the case was heard in mediation.
Eventually, the Court allowed the Plaintiffs to not sign the releases as submitted by defendants. To oppose the motions of CU York and Ryan, plaintiff, Edward Brady, had to spend substantial time and incur expenses writing memoranda to the court and appearing in court. Had defendants Clayton and Lynn submitted releases that comported with the settlement, the Bradys would not have had to spend time and incur expenses opposing the overly broad releases. When moving to force the Bradys to sign the overly broad releases, defendants Clayton and Lynn (a) lacked probable cause for their motions and (b) acted maliciously.
Judge Norton refused to compel the plaintiffs to indemnify Ryan and Peerless Insurance Company, as requested by defendants, and refused to release non-parties not named in the suit, which defendants had requested of the Court. The Court also stated that attorney fees requested by plaintiffs’ attorney Chalidze be held in escrow pending the outcome of plaintiffs’ claims against her.
At the motion hearing before Judge Norton on May 23, 2005, the Judge stated that the hearing was limited to only the issue of threats. The plaintiffs stated to the Court that there were also other issues, including the terms of the agreement which had been changed. Plaintiffs went into detail but a portion of the tape, plaintiff has since found out, had been tampered with, including some remarks by the Judge and by the plaintiffs.
Judge Norton, on May 23, 2005 stated “Where there’s an issue of enforceability of a mediation agreement, I know there’s not a Vermont case on it that I am aware of. I will give the Brady’s, as well as the defendants, ten days to submit a memo of law on the issue of enforceability of mediation agreements. I will give you that opportunity and will take the matter under advisement.”
Plaintiff wrote to the Court and stated that he could not find any law on the enforceability of mediation. Is there any law? Apparently Attorney Clayton could not find any either because he never sent plaintiffs a copy of the memo that he was supposed to send to the Court. The Court never sent plaintiffs his ruling in any concerning enforceability.
On Count 2 and 3- Attorney Chalidze is liable to the plaintiffs for $80,000.00 plus interest, costs and attorney fees and the value of their time and costs because of Attorney Chalidze’s representation to plaintiffs at the mediation conference that the plaintiffs would receive, before Christmas, $40,000.00 from each of the defendant insurance companies. She is also liable for punitive damages and damages for emotional distress because she maliciously and falsely told the plaintiffs at the mediation that punitive damages are not, in Vermont, considered for damages, and for other claims set forth.
She is liable to plaintiffs for their losses due to her false representations, including attorney fees, costs and time plaintiffs incurred defending defendant’s motion to compel plaintiffs to sign releases that falsely changed the terms of the December 9, 2004 settlement agreement.
On Count 4- The defendants Lynn, Clayton, One Beacon, and Ryan, because of their malicious prosecution are liable to the plaintiffs for attorney fees, costs, time spent in preparing answers to defendants’ motions to force plaintiffs to sign releases that were not in accord with the mediation agreement and contained provisions requiring plaintiffs to release defendants and others, not parties to the suit, for all claims of wrongful conduct form the beginning of the world until the day plaintiffs sign the releases. Plaintiffs refused to sign because that is not what they agreed to at mediation, December 9, 2004. Defendants are also liable to plaintiffs for costs and time they spent going to and from the Court and time spent at the Court hearings. Because of defendants’ malicious prosecution the plaintiffs are also entitled to punitive damages and damages for emotional distress.
Count 5-VIOLATION OF THE VERMONT ELDERLY ABUSE LAW BY ATTORNEY GREGORY S. CLAYTON AND HIS CLIENT, C.U. YORK INSURANCE COMPANY, AND ONE BEACON INSURANCE GROUP.
Attorney Clayton made threats on December 9, 2004 to the plaintiffs that he would charge them with criminal fraud if they did not settle their case that day. Attorney Clayton has denied that he threatened plaintiffs with criminal fraud but has admitted that, if they did not settle their case that day, he would charge them with fraud and sue them for all payments his client, One Beacon Insurance Company, had paid the plaintiffs, together with interest, costs and attorney fees. Plaintiff Rosemary Brady was so upset that she began to cry.
On September 11, 2007 Attorney Clayton again violated Vermont’s Elderly Abuse Law when he, before Judge Katz, attempted to coerce plaintiffs to sign releases he presented to the Court or, if plaintiffs refused to sign, they be held in Contempt of Court and go to jail. Judge Katz refused to hold plaintiffs in Contempt of Court and refused to put plaintiffs in jail and refused to order the plaintiffs to sign releases submitted by the defendants.
The plaintiffs are entitled to a jury trial to determine the amount of compensation to be paid plaintiffs for Attorney Clayton’s violation of the Vermont Elderly Abuse Law and a jury trial is demanded on all counts and issues.
______________________
Edward J. Brady, Pro Se
_______________________
Rosemary B. Brady, Pro Se
Wrongful Judges involved are:
Paul L. Reiber, Chief Justice of Vermont Supreme Court
Denice R. Johnson, Associate Justice
Brian Burgess, Associate Justice