text:
Talk:This Spartan Life
|This article is of interest to the following WikiProjects:
- 1 High importance
- 2 Players "unaware" of show's filming
- 3 Cast changes
- 4 Editing TSL Wikipedia
- 5 Site Down
- 6 Festival Nemo Links
- 7 Fyb3roptik has a Wiki now
- 8 Doctor Octobit
- 9 Cleanup
- 10 Sections to be added
- 11 Failure to update
- 12 citation
- 13 Start Class
- 14 Webisodes and Review
- 15 Cleanup and Sources
- 16 To-do
- 17 Prep for Legendary Release
- 18 Fair use rationale for Image:Damian-octobit-halo-3-versions.png
- 19 Name Etymology
- 20 Major Update?
- 21 Assessment comments
High importance[edit]
I'm marking this as high importance due to its AMAS Mackie award and the fact that it's the first notable machinima talk show. — TKD::Talk 01:07, 17 June 2006 (UTC)
Players "unaware" of show's filming[edit]
I've edited the section re: players firing on the show personnel. While quite funny, I very much doubt the players (e.g. attackers in the Bob Stein interview, "bargain hunters" in the episode 2 monologue, etc.) were truly unaware of the show's filming. Note that the host was never killed, that many attackers were very slow to attack, or repeatedly displayed terrible aim (as Damien notes in the Bob Stein interview), etc.
The final killer in the Ahwesh interview was obviously part of the show, since it was filmed from the attacker's perspective. "Poopydoodoo" (ILL Clan interview) was a bit contrived, especially given his voice was on the show soundtrack, and how he "coincidentally" showed up at the final credits. And the cameraman killing in the Marty O'Donnell interview (part two) was done (as I recall) by members of the "bodyguard competition", not uninvited guests.
Obvious or otherwise, I don't want to throw down suppositions or "original research", so I just made it more ambiguous. — Wisq 16:41, 20 June 2006 (UTC)
Cast changes[edit]
~Halo Physcist- Warrior 3000
~Kamikaze Sal=Almighty Sal(Im Kamikaze Sal I Got my Name Changed)
~Xpert Theif V2 changed his name to x8 Bit Thiefx, but he also mentioned that he might changed it agian DS.
-Sal —The preceding unsigned comment was added by AlmightySal (talk • contribs) .
- Thanks for detailing what needs to be changed. I'll add the Halo Physicist. However, the official site crew list still lists KamikazeSal. If this can be updated, then we can update here. Everything on Wikipedia nereds to be verifiable. Thanks. — TKD::Talk 23:15, 21 June 2006 (UTC)
Editing TSL Wikipedia[edit]
From now on please email me about any changes to the wiki so I can approve. email@example.com
I am the Techinical Director of the show and will comply with Wiki Standards.
220.127.116.11 05:05, 17 July 2006 (UTC)Fyb3roptik
- Nobody owns articles.--Drat (Talk) 05:38, 17 July 2006 (UTC)
- We're happy that you take an interest in ensuring that the content of Wikipedia is accurate. You're free to correct any errors that you see, but keep in mind that one of Wikipedia core, non-negotiable policies is that content must be verifiable, meaning basically that it has to have been published by a reputable source; for certain types of information, this may be the show's website itself (however, certain areas, like critical reception, require third-party sources). Content also has to be written from a neutral point of view. — TKD::Talk 04:00, 18 July 2006 (UTC)
Site Down[edit]
This Spartan Life is down for the time being since they are getting new severs, (they sight that the show has grown so much that they need new severs to handle all the traffic), TSL will be down until they get the replacement severs up and running.
EDIT- The severs are back online now --Downskated 06:13, 26 September 2006 (UTC)
Festival Nemo Links[edit]
For almost 30 minutes I've been scanning any TSL-related sites, but I have yet to come up with a reference to Festival Nemo that I could link to. Are homepage news archive links acceptable, or should I get a Festival Nemo official link? --Chromium 01:07, 22 September 2006 (UTC)
Fyb3roptik has a Wiki now[edit]
I think that we should link Fyb3ropik's i would do expect i don't know how to link, since i'm a wiki noob. —Preceding unsigned comment added by Downskated (talk • contribs)
- I've redirected it to her. Sorry, but it's likely that there aren't any verifiable, eliable sources about the character. — TKD::Talk 11:08, 22 September 2006 (UTC)
- Hmm ... if we managed to get an official statement from the creators, would that rectify the problem? —Preceding unsigned comment added by Downskated (talk • contribs)
Doctor Octobit[edit]
Doctor Octobit isn't his real name, and i'm pretty sure that is in reference to the fact that he play 8 bit music, since octo is reference to 8, which octo is 8 in german, were one of the 8 bit music is from and after talking with chris he confirms that i am right about the meaning of octobit, i am going to edit accordingly. —Preceding unsigned comment added by Downskated (talk • contribs)
I tagged this article for cleanup primary because it's too list-heavy at the moment. Wikipedia prefers flowing prose whenever possible. — TKD::Talk 11:19, 22 September 2006 (UTC)
- Yes, I noticed that, and I've been trying to correct it. Do we really NEED every last person listed for their contribution? I think that this function is best left to the show, and we should focus on the encyclopedic details (producer, director, music by - uh, that's just 1 credit) and not everyone else. I know this will earn the ire of the gamers, however, that is no matter. --Chromium 18:55, 22 September 2006 (UTC)
- I'm trying to burn it down also, but i'm also adding information at the request of chris burke, whom i'm in AIM contact with when i am doing my edits and additions, at the same time i am going to try clean up the listing problem we have, there is also a discussion at the This Spartan Life fourms http://www.thisspartanlife.com/forums/index.php?topic=707.0
- Oh, and if no one minds, I think in a day or so I'm going to remove the lists; we're better off without them for the short run. Just getting them out of the way will help us realize how short this article really is. --Chromium 20:03, 22 September 2006 (UTC)
- I took the liberty of eliminating the lists myself. They're in this revision if anyone wants them. Perhaps an episode list would be nice eventually, but the one we had was poorly formatted and a bit distracting. — TKD::Talk 00:47, 23 September 2006 (UTC)
- Thank you! --Chromium 00:53, 23 September 2006 (UTC)
- Oh, and if no one minds, I think in a day or so I'm going to remove the lists; we're better off without them for the short run. Just getting them out of the way will help us realize how short this article really is. --Chromium 20:03, 22 September 2006 (UTC)
- I think that this is of decent-enough quality not to need a cleanup tag for now. — TKD::Talk 02:16, 23 September 2006 (UTC)
- I think we need to include the Cast list again; it doesn't seem like the people who actually do this should be left out of the page. Just a thought for discussion. --Chromium 06:34, 23 September 2006 (UTC)
Sections to be added[edit]
I've been thinking about the sections this article should and shouldn't have; I can't think very clearly about this, as I am just one person, and "be bold" and "be a page-purging, junk-adding vandal" are a hop, skip and a jump away, so I don't think I alone should decide this. Thoughts? --Chromium 00:16, 23 September 2006 (UTC)
- I was thinking of an outline roughly along the following lines:
- Format. Here, the overall show format and recurring segments would be described.
- Characters. Prose descriptions of recurring characters.
- Background and production. How the show was conceived and is made.
- Reception. Reviews, awards, etc.
- — TKD::Talk 00:47, 23 September 2006 (UTC)
- Agreed. That would solve the fact that people keep wanting to mention Body Count and Meet Teh Leet while simultaneously making this look half-decent, and (if the producer gets the time to give the pictures to us) we could put in pictures for the characters, possibly. --Chromium 00:53, 23 September 2006 (UTC)
- The next time i talk to chris i'll ask about the production, since my knowledge on how they make it is vague at best, i'll try to do stuff to the characters section, thought i think that we don't really need to do to much to the character section besides adding better written information
--Downskated 02:34, 23 September 2006 (UTC)
- Try to find articles where he's interviewed, so that the information is verifiable. — TKD::Talk 02:37, 23 September 2006 (UTC)
- That's going to become a bother, but rules are rules. I don't suppose that interviewing him and having a transcript available at their site is verifiable? Or might that concieveably work? --Chromium 02:47, 23 September 2006 (UTC)
- Try to find articles where he's interviewed, so that the information is verifiable. — TKD::Talk 02:37, 23 September 2006 (UTC)
Failure to update[edit]
apperently all the work that we did chro, it didn't upload for somereason, why i don't know --Downskated 04:20, 23 September 2006 (UTC)
- well since i had to correct a editing confilict chro you should check all your corrections to see if they carried over. --Downskated 04:45, 23 September 2006 (UTC)
I was trying to track done citation that TSL was at Nemo Festival the best i could come up with was this http://translate.google.com/translate?hl=en&sl=fr&u=http://iarvers.free.fr/spip/isaevent.php3&sa=X&oi=translate&resnum=5&ct=result&prev=/search%3Fq%3DFestival%2BNemo%2Bthis%2Bspartan%2Blife%26hl%3Den%26lr%3D%26safe%3Doff%26sa%3DG and here is the french link http://iarvers.free.fr/spip/isaevent.php3 sorry i speak german not french --Downskated 07:19, 23 September 2006 (UTC)
Start Class[edit]
Does this article still constitute start-class? The official guide says that most articles that require cleanup start at B-class, and this doesn't anymore. If it needs work, Downskated and I have been told that we will get pictures and more information soon from Chris Burke, the host, so this won't be short for long. --Chromium 21:04, 23 September 2006 (UTC)
- It's probably B-class by now, and I've changed the rating as such. But it's got a ways to go before GA or A-Class. It's in better shape than it was 48 hours ago, though. Just keep looking for references. — TKD::Talk 21:42, 23 September 2006 (UTC)
- Now THERE'S something I can do. --Chromium 21:50, 23 September 2006 (UTC)
If you have any questions about this text/ interview about TSL, feel free to ask me, I did it! and there is no specific website for the Festival Nemo that is organised by ARCADI and the link is www.arcadi.fr, i hope it can help you somehow... isabelle http://iarvers.free.fr
- Rest assured, at some point, I will ... can't know too much about TSL or Chris in general. Thanks. --Chromium 02:20, 26 September 2006 (UTC)
Webisodes and Review[edit]
I was think that i should expand the wiki and include a section on the webepiosdes, but part of the problem is that they can no longer be viewed, since this is the case where TSL interview probably its most famous guest Korn, Chris did mention that he wanted me at least mention the webisodes which have done in the first paragraph, also i would like to mention here that i have had a few independent people look at this wiki, (of various level of prehand knowledge, of the subject (if you would like i could name them)) but from the person who little about video games, and nothing about machinima could understand what the article was about, i have had 2 people state that it wasn't indepth enough, and was too short, and i had a person call this "the prefect wiki article, and that all wiki articles should try to reach this" (and this guy hasn't even seen TSL), so TKD what should we do??? --Downskated 06:12, 26 September 2006 (UTC)
- Some of these are already linked, but you should incorporate more material from these links: Institute for the Future of the Book, Institute for the Future of the Book 2, Publish.com, Globe and Mail, Austin Game Conference, brief mention in USA Today.Note that the Institute for the Future of the Book links are blogs,but the "professional research" exception of WP:RS probably applies. — TKD::Talk 10:20, 26 September 2006 (UTC)
- I just threw in the Publish.com article, or one bit of it anyway, and I plan to get around to the rest sooner or later. I'm also going to go in soon and strike a happy medium between the elegant yet not very professional character list and the more functional and less good-looking character paragraph. There's a way, I know it. --Chromium 23:02, 26 September 2006 (UTC)
- Possibly, a group shot of Damian and the major characters together? That would save space; that's how it's done in the Red vs. Blue article. — TKD::Talk 23:26, 26 September 2006 (UTC)
- I just threw in the Publish.com article, or one bit of it anyway, and I plan to get around to the rest sooner or later. I'm also going to go in soon and strike a happy medium between the elegant yet not very professional character list and the more functional and less good-looking character paragraph. There's a way, I know it. --Chromium 23:02, 26 September 2006 (UTC)
Possibly. I'd have to ask Chris Burke for that, and he's usually very very busy ... next time I'm in a filming session for TSL I'll make a special request for him to get a group shot of the characters. --Chromium 23:53, 26 September 2006 (UTC)
- Another source: Kakiseni (middle third of the article). — TKD::Talk 02:05, 27 September 2006 (UTC)
- Two more: Edge, Workspace Unlimited. — TKD::Talk 02:05, 27 September 2006 (UTC)
- I've been thinking - can I make a composite image out of the available ones? Or is that a legal no-no? --Chromium 19:08, 27 September 2006 (UTC)
- I don't think that it's totally verboten. Something trivial like placing screenshots side by side would probably be okay, but a collage probably wouldn't. I'm wondering: There probably is a shot of at least Damian and Fyb3roptik and/or Octobit together somewhere in the episodes, no? — TKD::Talk 01:21, 28 September 2006 (UTC)
- Found another source, the one that one Isabelle Arvers who has stopped by this page in the past did. It's really good, I plan to work the material in soon. Here.--Chromium 19:19, 27 September 2006 (UTC)
- Yay; another list has bitten the dust. However, the stub left in its place is not exactly much better. --Chromium 23:07, 27 September 2006 (UTC)
- I've been thinking - can I make a composite image out of the available ones? Or is that a legal no-no? --Chromium 19:08, 27 September 2006 (UTC)
Cleanup and Sources[edit]
Alright, to get this article to go up a little in quality, I've redoubled my efforts to comply with Wikipedia's standards. I just finished remaking the characters section, complete with a new picture, and everything's more or less not as "list-y". Anything else while I'm at it? --Chromium 16:59, 2 October 2006 (UTC)
ok can i get the source that says the show atarted in 2004 when halo 2 was released, since that is news to me, i thought that this spartan life was created when there was slow down in work for Bong + Dern, at which point TSL was kicked around, but i want a source saying that it started in 2004, since that would that it was 1 and 1/2 years from start of idea, and release of episode 1, which i don't think happened. —Preceding unsigned comment added by Downskated (talk • contribs)
- Well, Halo 2 was released in November 2004, so it'd be 8 months, not a year and a half. — TKD::Talk 10:26, 3 October 2006 (UTC)
- Katundu source, first response paragraph. [1] --Chromium 19:40, 3 October 2006 (UTC)
- So, moving right along, what else needs to be done? We've removed all of the lists and such, so those aren't a problem anymore; aside from more sources (we will have a new one tomorrow, an audio source) are there more things we could do? --Chromium 19:30, 4 October 2006 (UTC)
Huge new audio source. [2] A little over an hour, not MUCH new information, but it's still a nice thing to have. --Chromium 21:31, 5 October 2006 (UTC)
Hey i chated with chris and he confirmed partitionaly what was said but i've since modifed it, so i this is usless now. --Downskated 05:09, 6 October 2006 (UTC)
I went through the article. The biggest problem is that there are going to need to be better sources for some assertions. The show itself can't be a source for anything in the reception section. The other thing to be careful of (and I excised a few instances) is to maintain an even tone. The phrase "the likes of" is too informal. My recent sweep of the article was more concerned with formatting references consistently, though, aso don't take what I did as the end-all. I'll see what I can do as far as finding more comprehensive secondary coverage. — TKD::Talk 09:24, 15 October 2006 (UTC)
- ok, but i don't understand why the part about the webesiodes needs citation, there are sources for it, i'll get them, but i know that there is first party sources, and the fact that everyone that works with this spartan life has seen these webesipsodes. ok you request a citation about the spike tv stuff well i found it (not very good though), http://3dfilmmaker.com/2006_01_01_archive.html its the forth from the bottom (dated Friday, January 06, 2006), additionally you ask me to source the statement about gamers providing backdrop, i'm i have that source saved on my computer, in my chat logs with the show creator chris burke, is that a good enough source? PS- i could probably pound out all the sources required just give a little while to do it. --Downskated 09:39, 16 October 2006 (UTC)
- It's not that I doubt that a lot of this stuff is true; it's that we need sources so that other people can verify that it;s true. Chat logs are never acceptable as sources. I still need to do a sweep of what I know exists in terms of reliable sources. However, I may not get to that until this weekend. — TKD::Talk 08:58, 17 October 2006 (UTC)
- don't rush, i'm still think over ways to include several things that i would like to add, but i'm debating on how to add them, also i'm think about mentioning all the awards that TSL has won. --Downskated 05:58, 18 October 2006 (UTC)
- It's not that I doubt that a lot of this stuff is true; it's that we need sources so that other people can verify that it;s true. Chat logs are never acceptable as sources. I still need to do a sweep of what I know exists in terms of reliable sources. However, I may not get to that until this weekend. — TKD::Talk 08:58, 17 October 2006 (UTC)
Prep for Legendary Release[edit]
There is a high great likelyhood that with the release of the halo 3 and its This Spartan Life content that there will be a surge in the viewership of This Spartan Life, should this wiki be prepared in any sort of manner to get it ready for that possibility. --Downskated 06:19, 7 September 2007 (UTC)
- Is there any substantially new verifiable information from reliable sources? — TKD::Talk 11:09, 7 September 2007 (UTC)
Fair use rationale for Image:Damian-octobit-halo-3-versions.png[edit]
Image:Damian-octobit-halo-3-versions.png is being used on this article. I notice the image page specifies that the image is being used under fair use but there is no explanation or rationale as to why its use in this Wikipedia article constitutes fair use. In addition to the boilerplate fair use template, you must also write out on the image description page a specific explanation or rationale for why using this image in each article is consistent with fair use.
Please go to the image description page and edit it to include a fair use rationale. Using one of the templates at Wikipedia:Fair use rationale guideline is an easy way to insure that your image is in compliance with Wikipedia policy, but remember that you must complete the template. Do not simply insert a blank template on an image page.
If there is other fair use media, consider checking that you have specified the fair use rationale on the other images used on this page. Note that any fair use images lacking such an explanation can be deleted one week after being tagged, as described on criteria for speedy deletion. If you have any questions please ask them at the Media copyright questions page. Thank you.
BetacommandBot (talk) 19:25, 22 December 2007 (UTC)
Name Etymology[edit]
The name (This Spartan Life) is a play off of a real show hosted by NPR radio host Ira Glass called This American Life. It would be worthy of mentioning.JayAlto (talk) 04:18, 26 September 2008 (UTC)
Major Update?[edit]
Considering This Spartan Life is now on Halo Waypoint and that they are making new episodes, should this article be updated? I believe so. This page hasn't been updated for about a year. 188.8.131.52 (talk) 21:21, 25 July 2010 (UTC)
Assessment comments[edit]
These have been moved here from a subpage as part of a cleanup process. See Wikipedia:Discontinuation of comments subpages.
More third party sources will be needed for GA/FA. The short, one-paragraph subsections describing the characters should be merged. in one larger section; stubby sections don't go over well during GA/FA candidacy. — TKD::Talk 09:42, 25 September 2006 (UTC)
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November 30, 2010
OMEGA ADVISORS, INC., PLAINTIFF,v.FEDERAL INSURANCE COMPANY, DEFENDANT.
Plaintiff Omega Advisors, Inc. ("Omega" or "Plaintiff") brings this action against defendant Federal Insurance Company ("Federal" or "Defendant") alleging that Federal breached a duty to indemnify Omega for a loss allegedly covered under an insurance policy. Presently before the Court is Federal's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons below, Defendant's motion is granted.
I. Background*fn1
According to the complaint, Omega and its subsidiaries were insured under a Financial Institution Bond policy of insurance issued by Federal bearing Bond number 81391640 DFI (the "Policy"). The Policy was in force during the following periods: April 13, 2007 to April 13, 2008; May 13, 2008 to April 13, 2009; and April 13, 2009 to April 13, 2010. Among other things, the Policy provided coverage for employee dishonesty and had a single loss limit of $5 million and an aggregate limit of $5 million.
Clayton Lewis was a senior employee of Omega who was head of Omega's Emerging Markets Group. During his employment with Omega, Lewis was tasked with evaluating an investment opportunity in privatization securities issues by the Republic of Azerbaijan (the "Azeri Investment"). In connection with this investment, the Republic of Azerbaijan issued two types of securities, "Vouchers" and "Options." Vouchers were sold to Azeri citizens and could be used to bid for state-owned companies in government-sponsored privatization auctions. Vouchers could be sold in the secondary market, but Voucher holders who were not Azeri citizens could exercise the Vouchers only if they purchased one Option for each Voucher they wished to exercise.
This investment was introduced to Omega and Lewis by a Czech businessman, Viktor Kozeny. Lewis was responsible for evaluating the proposal, making recommendations to Omega about the proposal, overseeing due diligence, negotiating the terms of the investment and ensuring that Kozeny complied with such terms. After studying the investment, Lewis advised Omega and its clients that he considered the investment "the best opportunity he had ever seen." Compl. ¶ 14.
Consequently, Omega and its clients committed approximately $164 million to the Azeri investment. Lewis was charged with overseeing the investment on behalf of Omega and its clients, and he had control of the Omega funds allocated for the purchase of the Vouchers and Options. However, the complaint alleges that Lewis conspired with Kozeny and "engaged in serious wrongdoing with respect to the Azeri Investment." Id. ¶ 18.
On February 10, 2004, Lewis pleaded guilty in United States District Court in the Southern District of New York to a charge that he violated and conspired to violate the Foreign Corrupt Practices Act in connection with the Azeri investment. In October 2005, the United States government unsealed the Information to which Lewis had pleaded guilty. In his plea, Lewis admitted that, prior to Omega's investment, Lewis had been told by Kozeny of corrupt arrangements with Azeri government officials and, further, that Lewis was aware of payments to Azeri officials in connection with purchases of the Vouchers. Lewis also pleaded guilty to a charge of perjury in New York state court in connection with his testimony before a grand jury.
On February 2, 2006, Omega filed an action in the Southern District of New York against Lewis captioned Omega Advisors, Inc. v. Lewis, Civil Action No. 06-834 (the "New York Action"). Affidavit of Michael Simmons ("Simmons Aff.") at Ex. 2. That action alleged that "Lewis committed fraud, and breaches of contract and fiduciary duty, which caused Omega damages in excess of $485 million." Id., Ex. 2 at ¶ 4. The complaint sought damages "in excess of $465 million" for fraud and breach of fiduciary duty and damages "in excess of $30 million" for breach of contract. Id. 17-18. The complaint also alleged that Lewis conveyed approximately $15 million to one or more trusts for his or his family's benefit fraudulently intending to preclude recovery by Omega, and Omega sought an order restraining Lewis from disposing his interest in the trust and/or setting aside the conveyance.
In 2007, Omega entered into a non-prosecution agreement with the United States Attorney for the Southern District of New York pursuant to which Omega agreed to pay $500,000 to the Department of Justice in connection with Lewis's action. Omega then paid this amount.
Shortly thereafter, by letter dated August 2, 2007, Omega notified Federal of a claim under the Policy. Omega advised Federal that is was seeking reimbursement from Federal for monies paid to the United States and for legal fees and costs incurred in connection with the U.S. government's investigation. That letter also advised Federal that Omega had filed a civil lawsuit against Lewis and planned to tender a formal claim with respect to Omega's losses relating to the Azeri Investment.
Omega filed its proof of claim with respect to its Azeri Investment losses on November 28, 2007. In this proof of claim Omega asserted "(i) a potential loss based on the assertion that Lewis profited from defrauding Omega by retaining funds by Omega for the Vouchers and/or Options, and that Lewis received from Kozeny a significant quantity of Options and/or Vouchers and/or other things of value in compensation for his participation in the scheme; (ii) reimbursement for legal fees and expenses incurred in connection with its discussions, meetings, presentations, etc., with the United States Attorney's office; and (iii) recover of the $500,000 paid to the U.S. government." Compl. ¶ 27. Omega specifically advised Federal that, with respect to the fraud that Lewis allegedly perpetrated on Omega, that "the current state of facts may not squarely fall within the Bond's requirement for 'discovery of loss,'" but "counsel's investigation continues." Id. ¶ 28. Federal acknowledged this claim and took the position that, with respect to any fraud that Lewis may have perpetrated on Omega, Omega should have provided notice to Federal at the time it filed its civil suit in February 2006. Federal also requested further information about the claim, however, as of November 2007 Omega did not have any further details or evidentiary support of Lewis's misconduct. As such, by letter dated September 25, 2008, Federal advised Omega that it was closing the file on the matter.
At an unspecified time in "late 2008," Omega obtained information from an unspecified criminal case related to the Azeri privatization program. Compl. ¶ 32. Upon review of these materials, Omega discovered that (1) Kozeny gave Lewis millions of dollars worth of Vouchers and/or Options for either no consideration or at prices far less than prevailing market prices and below the price paid by Omega; (2) Lewis sold some of these illicitly obtained Vouchers and Options to Omega at a large markup, secretly profiting approximately $5 million; (3) Lewis received from Kozeny a kick-back of an amount equal to 4% of Omega's potential profit in the Azeri Investment. On February 26, 2009, Omega provided Federal with this newly-learned information and made a specific claim under the Policy. Federal responded by letter dated May 27, 2009, disclaiming any coverage under the Policy, "principally on the ground that the 2009 Claim was untimely in that Omega had been aware of the relevant facts at least as far back as February 2, 2006 when it filed the Complaint" in the civil action. Id. ¶ 37.
Omega brings this suit alleging that Federal breached its obligations to Omega under the Policy by (1) refusing to pay for losses arising from Lewis's alleged misconduct on the ground that Plaintiff was obligated to provided notice of claim in 2006, at the time it filed its federal lawsuit against Lewis; and (2) rejecting Omega's 2009 claim as untimely. Omega seeks damages in the amount of $5 million.
II. Legal Discussion A. Motion to Dismiss Standard
Under Federal Rule of Civil Procedure 12(b)(6), a court may grant a motion to dismiss if the complaint fails to state a claim upon which relief can be granted. The Supreme Court refashioned the standard for addressing a motion to dismiss under Rule 12(b)(6) in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Twombly Court stated that, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Id. at 555 (internal citations omitted); see also Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.2007) (stating that standard of review for motion to dismiss does not require courts to accept as true "unsupported conclusions and unwarranted inferences" or "legal conclusion[s] couched as factual allegation[s]." (internal quotation marks omitted)). Therefore, for a complaint to withstand a motion to dismiss under Rule 12(b)(6), the "[f]actual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact) ..." Twombly, 550 U.S. at 555 (internal citations
More recently, the Supreme Court has emphasized that, when assessing the sufficiency of a civil complaint, a court must distinguish factual contentions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A complaint will be dismissed unless it "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 570). This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Fowler v. UPMC Shadyside, 578 F.3d 203, 2009 WL 2501662, *5 (3d Cir. August 18, 2009) (citations omitted).
B. Analysis
Federal argues that there are three grounds for dismissal of Omega's complaint, each of which rely upon a central assertion by Defendant that Plaintiff "discovered" its allegedly covered "loss" no later than February 2, 2006, the date it filed the New York Action. With regard to the discovery of loss, the bonds provide as follows:*fn1
This Bond applies only to loss first discovered by an officer of the ASSURED during the BOND PERIOD. Discovery occurs at the earlier of an officer of the ASSURED being aware of: a. facts which may subsequently result in a loss of a type covered by this Bond, or
b. an actual or potential claim in which it is alleged that the ASSURED is liable to a third party, regardless of when the act or acts causing or contributing to such loss occurred, even though the amount of loss does not exceed the applicable DEDUCTIBLE AMOUNT or the Financial Interest in the ASSURED, or the exact amount or details of loss may not then be known.
Affidavit of Michael Maillet ("Maillet Aff.") at Exs. 5 to 9.
The bonds further provide that they do "not directly or indirectly cover: a. loss not reported to the COMPANY in writing within (60) days after termination of this Bond as an entirety." Id. As such, Federal's first argument is that Omega's loss is excluded from coverage under the bonds because Omega's August 2007 notice of claim was filed more than sixty days after the expiration of the bond period of the bond in effect at the time Federal alleges Omega discovered the loss.
Federal next argues that dismissal is warranted because Omega's notice of its claim was untimely. The bonds expressly require that "[t]he ASSURED shall give the COMPANY notice at the earliest practicable moment, not to exceed sixty (60) days after discovery of a loss." Id. Federal argues that Omega's notice was untimely and, further, under New York law Federal is not required to prove it was prejudiced by the untimely notice.
Last, Federal points to a provision in the bond that require that legal proceedings be commenced within two years of discovery of loss. In this regard, the bonds state: "Legal proceedings for the recovery of any loss under this Bond shall not be brought prior to the expiration of sixty (60) days after the proof of loss is filed with the COMPANY or after the expiration of twenty-four (24) months from the discovery of such loss." Id. Thus, according to Federal, Omega's action is untimely under the bond, as Federal argues that Omega's time to commence suit expired on February 2, 2008.
The three grounds for dismissal raised by Federal -- policy exclusion, untimely notice and untimely commencement of suit -- are affirmative defenses. The Third Circuit has noted that "[g]enerally speaking, [courts] will not rely on an affirmative defense . to trigger dismissal of a complaint under Rule 12(b)(6)." Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997). However, "when an affirmative defense is 'apparent on the face of a complaint', it may be appropriate for a court to dismiss an action pursuant to a Rule 12(b)(6) motion." Id. In determining whether an affirmative defense provides an appropriate basis for dismissal on a 12(b)(6) motion, in addition to the allegations in the complaint a court may properly consider matters of which a court may take judicial notice. See O'Boyle v. Braverman, 337 F. App'x 162, 164 (3d Cir. 2009). As such, a court may consider, for example, public records, including judicial proceedings. Id. Judicial notice, however, should be used "sparingly" in the early stages of a case. Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3rd Cir. 2007). "Only in the clearest of cases should a district court reach outside the pleadings for facts necessary to resolve a case at that point." Id.
As noted above, central to Federal's motion is the question of when "discovery" of Omega's loss occurred. The bonds at issue are discovery bonds, that is, they covered losses that were discovered during the bond period, regardless of when such losses were sustained. Under the bonds, discovery of a loss occurred when Omega became aware of "facts which may subsequently result in a loss of a type covered by this Bond . . . regardless of when the act or acts causing or contributing to such loss occurred, even though . . . the exact amount or detail of loss may not then be known." Maillet Aff. at Exs. 5 to 9. To constitute "discovery" of a loss, an insured must the insured must possess "more than mere suspicions of employee dishonesty or fraud." Resolution Trust Corp. v. Fidelity and Deposit Co. of Maryland, 205 F.3d 615, 630 (3d Cir. 2000); see also Utica Mut. Ins. Co. v. Fireman's Fund Ins. Companies, 748 F.2d 118, 121 (2d Cir. 1984) ("mere suspicions do not trigger the notice requirement").*fn2 "Courts long have recognized the principle that unsupported suspicions of employee misconduct do not constitute discovery in the fidelity bond context." Id.
Federal argues that Omega discovered its loss no later than February 2, 2006, the date it filed the New York action. In this regard, Federal points to specific allegations in the complaint from that action, of which this Court takes judicial notice:
45. On information and belief, Lewis profited directly from defrauding Omega by retaining certain of the funds paid by Omega for the Vouchers and/or Options. In addition, on information and belief, Lewis received from Kozeny a significant quantity of Options and/or Vouchers and/or other things of value in compensation for his participation in the scheme.
55. Moreover, on information and belief, as a result of Lewis's wrongful acts Omega paid excessive prices for Vouchers and/or Options.
70. At all relevant times, Lewis owed fiduciary duties to Omega. Lewis's duties as a fiduciary arose from his status as an employee of Omega Advisors, his position as an agent for Omega, and his position as an investment advisor to Omega, in which capacities he was entrusted with faithfully managing Omega's financial affairs. Lewis breached his fiduciary duties to Omega by, among other things:
a. knowingly inducing Omega to enter into an investment that it never would have made had it known of Kozeny's claims of corrupt arrangements with the Azeri Officials;
b. knowingly causing Omega to purchase Vouchers and/or Options under terms and conditions and/or from sources that violated the terms of Omega's Agreements with Oily Rock and Minaret;
c. knowingly profiting at Omega's expense in connection with Omega's purchases of Vouchers and/or Options; and
d. concealing from Omega Kozeny's claims of corrupt arrangements with the Azeri Officials, and his own knowledge and awareness thereof.
Simmons Aff. at Ex. 2.
Federal also points to a Memorandum of Law dated August 24, 2006 that was filed by Omega in the New York action in opposition to a motion to dismiss. In that memorandum, of which the Court also takes judicial notice, Omega stated the following with respect to the claims it asserted against Lewis in that action:
Plaintiffs' complaint sets out in detail defendant's misconduct, including that Lewis violated the contractual and common law fiduciary duties he owed to plaintiffs as an employee of Omega advisors and as Investment Advisor to the plaintiff funds. The complaint alleges:
iii) Lewis profited from his relationship with Kozeny by siphoning funds from plaintiffs' investment into Lewis' own pockets and by accepting privatization instruments from Kozeny. (Simmons Aff., Ex. 3 at 2).
Additionally, in describing the parameters of Kozeny's alleged fraud, Omega stated the following with respect to Lewis's involvement in that fraud:
In utter disregard of his duty as a fiduciary, Lewis allowed this to happen. And he was well paid for his silence. As the complaint alleges, Lewis, with Kozeny's assistance, helped himself to both cash out of Omega's investment pool and was further remunerated in Vouchers and Options by Kozeny. (Id. at 6).
The memorandum of law also included the following statements concerning Lewis's alleged wrongful conduct and damages suffered by Omega:
Even if their entire investment were not lost, plaintiffs sustained damages due to the markups charged on the options they purchased. . . Finally, plaintiffs lost the money embezzled by Lewis. All of these damages were directly and proximately caused by Lewis's misconduct.
Lewis concealed staggering mark-ups of the financial instruments Omega purchased, corrupt relationships with Azeri officials and violations of United States law to induce Omega to invest in Azeri privatization, knowing that Omega would not have invested had Lewis disclosed this information. Moreover, the fact that Lewis was profiting from the fraud by skimming funds and financial instruments out of Omega's investment and into his own account.
The complaint alleges that Kozeny illicitly sold Omega options from his own stockpile and at incredible mark-ups, even though he had explicitly agreed to purchase them only from the government or on the open market and not to charge Omega any mark-up. Lewis knew that Kozeny was engaging in this practice, but he did nothing to alert Omega. Indeed, he took his own cut from Kozeny.
As a direct result of Lewis' fraud and his breach of contractual and common law fiduciary duties, Omega was directly caused to overpay significantly for its options, overpayments that resulted in an immediate loss to Omega of tens of millions of dollars. Thus, Lewis's failure to disclose the conspiracy he had joined with Kozeny and the overpayment scheme he was perpetrating as part of that conspiracy was the direct and proximate cause of these enormous losses. (Id. at 7-15) (citations omitted).
Under New Jersey law, "'[d]iscovery' of a loss under a fidelity bond occurs when the insured learns facts or obtains knowledge which would justify a careful and prudent person in charging another with dishonesty or fraud." National Newark and Essex Bank v. American Ins. Co., 76 N.J. 64, 80, 385 A.2d 1216, 1224 (N.J. 1978). New York law defines such discovery similarly: "A loss is 'discovered' once an insured has obtained facts sufficient to cause a reasonable person to recognize that there has been dishonesty or fraud resulting in loss."
Commodore Intl. v National Union Fire Ins. Co., 184 A.D.2d 19, 21, 591 N.Y.S.2d 168 (App. Div. 1992).*fn3 Applying these standards here, the Court finds that Omega's discovery of loss occurred no later than February 2, 2006.
Omega argues that as of February 2006, when it commenced the New York action, it "merely had indirect indications of Lewis's misconduct," and "did not have sufficient facts in its possession to determine there would be a loss covered under the policy." Pl. Brf. at 12. However, as made clear by the filing of a federal lawsuit containing the allegations detailed above, Omega had more than mere suspicions that Lewis engaged in wrongdoing. It had knowledge of facts sufficient to charge Lewis with fraud and dishonesty in federal court in February 2006. Indeed, the bonds do not require absolute proof of a loss or the amount of the loss. Rather, they require only that the insured become aware of "facts which may subsequently result in a loss of a type covered by" the bonds "even though . . . the exact amount or detail of loss may not then be known." Maillet Aff. at Exs. 5 to 9. By "presenting to the court" the complaint and the memorandum of law in the New York action, Omega's counsel certified that "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . the factual contentions have evidentiary support or . will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed. R. Civ. P. 11. Therefore, the Court finds that Omega discovered its loss no later than February 2006.
Having made that determination, the Court now turns to Federal's first argument for dismissal, specifically, that the loss is excluded from coverage under the terms of the bond. Having discovered the loss in February 2006, the loss is covered by the bond with the Bond Period of April 13, 2005 to April 13, 2006. See Maillet Aff., Ex. 5 at 16 (bond applies to loss discovered during bond period). This bond expressly excludes from coverage "loss not reported to [Federal] in writing within sixty (60) days after termination of this bond as an entirety." Id. at 12. As such, the coverage under the bond was available for losses that were discovered during the bond period and reported to Federal by June 12, 2006. Omega discovered its loss during the bond period, but did not report the loss to Federal until 2007. Consequently, under the express terms of the bond, the loss is excluded from coverage.
The Court rejects Omega's contention that it experiences two separate and independent losses in connection with Lewis's conduct. Omega asserts that the loss reported by it to Federal in 2009 with respect to Lewis's alleged participation in fraudulent activity with Kozeny and companies controlled by Kozeny is distinguishable from the loss discovered in February 2006. This alleged loss is premised on Omega's discovery in late 2008 that Kozeny gave millions of dollars worth of Vouchers and/or options to Lewis for no consideration or at prices below prevailing market prices; that Lewis sold some of these to Omega at a massive markup; and that Kozeny gave Lewis an interest in the future profits of Minaret Group Ltd., a company controlled by Kozeny, derived from the sale of Omega's Voucher's and Options. Compl. ¶ 32.
Each of Federal's bonds provides a "Single Loss Limit of Liability" for employee dishonesty in the amount of $5,000,000. The term "Single Loss" is defined as s. Single Loss means all covered loss, including court costs and attorneys' fees incurred by [Federal] under General Agreement E., resulting from:
(1) any one act of burglary, robbery or attempt at either, in which no Partner or Employee is implicated, or
(2) any one act or series of related acts on the part of any natural person resulting in damage, destruction, or misplacement of Property, or
(3) all acts other than those specified in s. (1) and s.(2), caused by any natural person or in which such person is implicated, or
(4) any one event not specified in s.(1), S.(2) or S.(3).
Ex. 5 at 11. Under this provision, all acts of Clayton Lewis in connection with the Azeri Investment that caused loss to Omega resulted in a single loss. Therefore, under the bonds, there cannot be a newly discovered loss separate and distinct from the loss discovered by Omega in 2006. Cf. F.D.I.C. v. Fidelity & Deposit Co. of Maryland, 45 F.3d 969, 974 (5th Cir. 1995) (later discovered acts were part of same loss discovered during bond period if they "arose out of the same pattern of conduct or scheme that was originally discovered.")
As the above analysis is dispositive of the motion, the Court need not reach Defendant's remaining arguments.
III. Conclusion
For the reasons above, Defendant's motion to dismiss shall be granted. An appropriate Order accompanies this Opinion.
/s/JOEL A. PISANO United States District Judge
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decided: August 24, 1989.
HESS BROTHERS, PETITIONER,v.WORKMEN'S COMPENSATION APPEAL BOARD (GORNICK), RESPONDENTS
John P. Thomas, Allentown, for petitioner.
F. Paul Laubner, Samuel A. Scott, Allentown, for Paul Gornick.
Doyle and McGinley, JJ., and Barbieri, Senior Judge.
[ 128 Pa. Commw. Page 242]
Hess Brothers (Employer) appeals an order of the Workmen's Compensation Appeal Board (Board) reversing a referee's decision granting Employer's petition for termination on the basis that Mary Anne Gornick (Claimant), the widow of Paul Gornick (Decedent), was living in a meretricious relationship under Section 307 of The Pennsylvania Workmen's Compensation Act (Act).*fn1 We affirm.
Employer filed a petition on January 25, 1984, for termination of compensation benefits payable to Claimant as of January 15, 1978, on the grounds that Claimant was living in a meretricious relationship. The referee took testimony at hearings dated February 13, 1984, February 22, 1984, and August 29, 1984, and on October 15, 1985, issued a decision sustaining Employer's petition effective January 23, 1984, and denying the petition as of January 15, 1978, to January 22, 1984. (Referee's Decision, October 15, 1985, at 3-4.)
The referee made these relevant findings of fact:
1. The husband of Claimant Mary Anne Gornick, Paul Gornick, died on June 13, 1975 due to a work-related injury, as a result thereof a Compensation Agreement dated July 29, 1975 was entered into by Claimant and Defendant employer/insurer providing for payment of compensation to Claimant at the rate of $164.80 per week from June 13, 1975 to September 30, 1978 in her on [sic] behalf and that of her minor son, Paul, Jr., at which latter
[ 128 Pa. Commw. Page 243]
date Paul, Jr. attained the age of 18, whereafter Claimant was to receive compensation at the rate of $140.08 per week for the duration of widowhood.
2. Claimant, presently 49 years of age, has not formally remarried following the death of her husband on June 13, 1975.
3. Claimant Mary Anne Gornick and her deceased husband purchased a two story row house located at 1123 Union Street, Allentown, Pennsylvania on January 16, 1969, and Claimant, her husband, and 2 children resided at said location to the time of her husband's death and Claimant and her 2 children continued to reside at said location thereafter to December 1980.
4. A man, then married to one other than Claimant, resided at the Union Street single family dwelling with Claimant from January 1978 to December 19, 1978, at which time the divorce of said man became final, and he continued living at said location to December 1980.
5. Claimant and the then unmarried male purchased a single family dwelling on November 20, 1980 as joint tenants with the right of survivorship, and Claimant and the unmarried male and Claimant's son have resided at the purchased residence from December 1980 to the present.
6. Claimant and the unmarried male jointly entered into two mortgage agreements as mortgagors for the residence purchased on November 20, 1980, the second mortgage being satisfied on January 17, 1983.
7. Claimant and the unmarried male maintain a joint checking account with either to draw on said account, and checks drawn on the account by both Claimant and the unmarried male are used for purposes both related and non-related to the residence.
8. Claimant cooks evening meals for herself, her son and the unmarried male, and the 3 usually eat together.
9. Claimant and the unmarried male, together with Claimant's son and others, went on vacation together in 1980.
[ 128 Pa. Commw. Page 24410]
. Claimant sold the property at 1123 Union Street on May 5, 1981.
11. Claimant contends that she never had sexual relations with the unmarried male, they never held themselves out as husband and wife, and they never go out together socially except for having dinner together on one occasion, and the Referee rejects Claimant's testimony as not being reliable or trustworthy.
12. Claimant has been living with a man in meretricious relationship and not married on and before January 23, 1984 and continuing to the present.
Referee's Decision at 3-4.
Claimant appealed the referee's decision and the Board reversed, stating:
[T]he burden of proof in this matter was on the Defendant, as the moving party, to prove that Claimant was involved in a meretricious relationship; it was not the Claimant's burden to prove that she was not so involved.
Having carefully reviewed the entire record in the case at bar, it is the determination of this Board that Defendant wholly failed to meet its burden of proof. There is not a scintilla of relevant evidence, testimonial or other, on the ultimate issue in this matter: Is Claimant living with a man in a meretricious relationship? Yes, Claimant is living with a man to whom she is not married. Whether or not the relationship is carnal in nature cannot be determined from the record. Clearly, because the Decision and Order of the Referee are not supported by substantial evidence, they cannot stand.
Opinion of the Board, August 19, 1987, at 2-3.
Our scope of review is limited to determining whether the Board committed an error of law, made fact findings supported by substantial evidence, or violated constitutional rights. Gabriel v. Workmen's Compensation Appeal Board (No. 1 Contracting Corp.), 102 Pa. Commonwealth Ct. 470, 518 A.2d 895 (1986). Employer argues solely that
[ 128 Pa. Commw. Page 245]
the Board erroneously reversed the referee because the referee's findings were supported by substantial evidence.
Fundamental to workmen's compensation law, is that it is solely within the referee's discretion to find facts, and, if the facts as found by the referee rest on competent evidence, neither the Board nor this Court may disturb them. Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). The referee, as factfinder, has exclusive province over questions of credibility and evidentiary weight. In the exercise of broad discretion, the referee may accept or reject the testimony of any witness, including a medical witness, in whole or in part. Mardee Sportswear v. Workmen's Compensation Appeal Board (Franglo, Inc.), 98 Pa. Commonwealth Ct. 327, 511 A.2d 905 (1986).
The referee factually determined that Claimant was living in a meretricious relationship based upon undisputed testimony that Claimant, her adult son, and an unmarried male reside together in a home, title to which is held by Claimant and the unmarried male, as joint tenants with the right of survivorship; that Claimant and the unmarried male maintain at least one joint bank account, with either party to sign; that Claimant cooks for herself, her son, and the unmarried male; and that they usually eat together. Claimant testified she never had sexual relations with the unmarried male; they never held themselves out as husband and wife; and that they do not go out together socially.
[ 128 Pa. Commw. Page 246]
The referee rejected Claimant's testimony as unreliable and not trustworthy. The Board acknowledged the referee's credibility determination, but concluded that the referee's conclusion was not supported by substantial evidence. We have reviewed the testimony and find that it does not constitute such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Lehman v. Workmen's Compensation Appeal Board Page 246} (Temple University Hospital), 64 Pa. Commonwealth Ct. 381, 439 A.2d 1362 (1982).
In BethEnergy Mines, Inc. v. Workmen's Compensation Appeal Board (Sadvary), 117 Pa. Commonwealth Ct. 465, 543 A.2d 1268 (1988), appeal granted, 520 Pa. 608, 553 A.2d 969, 972 (1988). The referee found that a meretricious relationship existed between a widow and an unmarried male and the Board accepted this finding, but found that the economic effect of terminating benefits to a forty-eight year old widow living in an economically depressed area, who had not worked in fifteen years, and who was now totally dependent upon these benefits for support, would be devastating. The Board found that the claimant had ceased her meretricious relationship with the filing of the employer's termination petition and that it would exercise its "discretionary" authority under Section 307 and deny Employer's petition. Id., 117 Pa. Commonwealth Ct. at 467, 543 A.2d at 1269. Our Court reversed the Board's decision stating:
We recognize the good intentions of the Board, but such intentions are just as likely to create arbitrary chaos in an attempt to achieve social justice as to achieve such justice. Far better for the legislature to rectify the harsh results of Section 307(7) by bringing the statute into conformity with the modern age than to permit the Board to substitute itself for the legislature as the arbitrator of morality on a case by case basis according to its own views.
BethEnergy, 117 Pa. Commonwealth Ct. at 469, 543 A.2d at 1270.
The matter sub judice, is distinguishable. In BethEnergy, substantial evidence supported the referee's finding that the claimant was living in a meretricious relationship.*fn2 Similarly,
[ 128 Pa. Commw. Page 247]
in Jones Motors v. Workmen's Compensation Appeal Board (Moyer), 51 Pa. Commonwealth Ct. 210, 414 A.2d 157 (1980);*fn3 Nevius v. Workmen's Compensation Appeal Board (I. Reindollar and Sons, Inc.), 52 Pa. Commonwealth Ct. 418, 416 A.2d 1134 (1980);*fn4 and Workmen's Compensation Appeal Board v. Worley, 23 Pa. Commonwealth Ct. 357, 352 A.2d 240 (1976)*fn5 there was no question that the claimant had engaged or was engaging in a meretricious relationship to warrant the termination of benefits.
After a thorough review of the record we conclude as a matter of law that there was not substantial evidence to support the referee's finding that Claimant was involved in a meretricious relationship. Accordingly, because we find no substantial evidence in the record to support the referee's findings, we affirm the Board's order.
[ 128 Pa. Commw. Page 248]
AND NOW, this 24th day of August, 1989, the order of the Workmen's Compensation Appeal Board dated August 19, 1987, at No. A-90824, is hereby affirmed.
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Appeal from the Superior Court of Cook County; the Hon. WALKER
BUTLER, Judge, presiding. Judgment affirmed.
Plaintiff sought a declaratory judgment, injunctive and other relief against defendants, the Village of Oak Lawn, its officials, and Chicago Bridge and Iron Company, a designer and builder of elevated water tanks, after the village had let a contract for the repair of its water tower to the Bridge and Iron Company. Plaintiff had submitted a lower bid or quotation for this work and brought his complaint on the sole ground that municipal contracts let to other than the lowest bidder were "in violation of the Statutes of the State of Illinois, Smith-Hurd Ill. Rev Stats, ch 24, § 23-100." The Bridge and Iron Company moved to dismiss the complaint on the theory that it did not state a cause of action in that the statute does not impose a duty on municipal corporations to require competitive bidding on repair contracts of this type. On the date set for hearing on the motion to dismiss, plaintiff of his own volition sought and obtained leave to file his amended complaint instanter which set forth essentially the same allegations as the original complaint except that instead of alleging that the award of the contract to the defendant Chicago Bridge and Iron Company was in violation of statute plaintiff alleged that the mere letting of a contract to a higher bidder constituted fraud. Again defendants filed a motion to dismiss for the reason that the amended complaint did not state a cause of action. At the hearing on the motion, plaintiff argued that the mere allegation in his complaint that the contract was not awarded to the lowest bidder created a question of fact for the jury on the issue of fraud. This contention was rejected and, plaintiff electing to stand on his amended complaint, the court "ordered, adjudged and decreed that:
"1. The Amended Complaint herein be, and it hereby is, dismissed with prejudice and without further leave to amend, upon the motion of defendants, Village of Oak Lawn and the individual Trustees thereof;
"2. The motion of defendant, Chicago Bridge & Iron Company, for summary judgment be, and it hereby is, granted and judgment be, and it hereby is, entered for defendants.
"3. The costs of the defendants herein be paid by plaintiff."
Plaintiff appeals.
It being conceded that there is no duty imposed by statute or otherwise upon municipal corporations to let a contract for the repair of municipally owned property upon competitive bidding or to let such a contract only to the lowest bidder, the question to be determined is whether the court properly decided the amended complaint to be insufficient at law to state a cause of action, and whether the record, consisting of the pleadings and various documents and affidavits, justified the court in entering summary judgment for the Bridge Company.
Briefly summarized, the amended complaint alleged that plaintiff and his wife Ruth, co-partners doing business as Bacon Manufacturing Company, were residents of the Village of Oak Lawn and were solicited on November 4, 1960 by various officials of the village to submit a quotation for certain repairs on the Oak Lawn water tower; that pursuant to such solicitation his company received from the village officials a copy of a letter dated June 19, 1959, addressed to the Village of Oak Lawn by the Chicago Bridge and Iron Company, which contained an inspection report setting forth the type and degree of repairs required as to the water tower (a copy of this letter was attached and incorporated by reference as a part of the amended complaint). Plaintiff further alleged that pursuant to the request of the village officials he submitted a bid to furnish labor and materials, as required, at the price of $6775; that on November 12, 1960 he received a letter from the village manager advising him that the village president and board of trustees had awarded the contract to the Chicago Bridge and Iron Company; and that upon inquiry he learned that the Bridge Company's contract price was approximately $11,150, a figure far in excess of his bid for the same work.
Plaintiff charged fraud in only two paragraphs of his amended complaint, and in the most general terms; those two paragraphs read as follows:
"10. The contract entered into between the Chicago Bridge & Iron Company and the Village of Oak Lawn is fraudulent. That as some evidence of the fraudulent nature of the transaction referred to is the immense proportionate difference between the bid submitted by Bacon Manufacturing Company in the amount of $6,775 and that of Chicago Bridge & Iron Company approximating $11,150.
"13. That the entire actions of the defendants are fraudulent, capricious and in total disregard of their public responsibilities."
[2-4] The law is well settled in this State that a party charging fraud must allege facts which, if taken to be true or established by competent evidence, would constitute fraud. In Carroll v. Caldwell, 12 Ill.2d 487, 147 N.E.2d 69 (1957), the court said (p 494):
"Fraud is never presumed and can be alleged or proved, both at law and in equity, only by allegation and proof of facts constituting the fraud. (Anderson v. Anderson, 339 Ill. 400; 19 ILP, Fraud, sec 36). Statements by way of general conclusions of fraud are not sufficient in a pleading. The allegations relied upon by the plaintiff, conditioned as they are on what the defendant may or may not have believed, amount to no more than an argumentative conclusion of fraud and are thus not sufficient to charge the actual fraud necessary to raise a constructive trust. . . ."
To the same effect is Owens v. Green, 400 Ill. 380, 392-393, 81 N.E.2d 149 (1948), which is relied on in Chicago Heights v. Public Service Co. of Northern Illinois, 345 Ill. App. 393, 103 N.E.2d 519 (1952), where the court held (p 400) that the mere charge of fraud is not enough.
[5-8] The single legal issue presented here is whether, in the conceded absence of legal requirements for any competitive bidding, an allegation that a public contract was not given to the party making the lowest dollar proposal is sufficient at law to set forth a cause of action for fraud. We think this issue was conclusively determined in Smith v. Board of Education, 405 Ill. 143, 89 N.E.2d 893 (1950), in which the rule was expressly stated (p 148) that the fact that a public contract was not awarded to the lowest bidder does not sustain an allegation that the contract was fraudulently entered into. A formal competitive bidding procedure is not involved in the instant proceeding; in fact, it is conceded that there is no requirement for competitive bidding, and therefore, as stated in the Smith case, the remaining question to be determined is whether the allegations of the complaint are sufficient to charge the village trustees with fraud in awarding the contract for repair of the water tower to the Chicago Bridge and Iron Company. The language of the court in the Smith case (pp 148-149) is relevant:
"While the words, `fraud,' `fraudulently,' and `conspiracy,' are used repeatedly, a careful reading of the complaint compels the conclusion that these charges are based on two main allegations, first, that the Board of Education eliminated competitive bidding, and second, that the contract was awarded for a substantially larger sum than might have been bid by other contractors. In the absence of allegations of facts showing fraudulent acts or conduct in connection with the awarding of the contract, this was not sufficient to charge fraud. . . . Neither does the mere fact that the contract was not awarded to the lowest bidder sustain an allegation that the contract was fraudulently entered into by the parties. (Hallett v. City of Elgin, 254 Ill. 343.) The presumption obtains that the actions of public officials, in the performance of their official acts, are done in good faith and with honest motives. (Chicago Park Dist. v. Herczel & Co., 373 Ill. 325.) It is not enough to merely use the terms `fraud' or `fraudulently' in a complaint, because the unexplained use of such terms alleges nothing. Such allegations must include the facts upon which they are based, and a general charge that a party acted fraudulently or was guilty of fraud is not good pleading for the reason that only a conclusion of the pleader is stated. (Owens v. Green, 400 Ill. 380.) . . ."
Other cases cited in the Smith decision indicate that the rules there enunciated by the court have been consistently followed in this State.
With respect to the declaratory judgment in favor of the defendant Chicago Bridge and Iron Company, it appears that that company had originally constructed the water tower and satisfactorily repaired it on a previous occasion. Plaintiff's bid (designated as a quotation) was an informal one-sheet statement containing three single-line items, followed by the total:
"Repair to Water Tower $3525.00 Painting of Interior Only $1700.00 Painting of Exterior Only $1550.00 _________ $6775.00"
In contrast, the bid of Chicago Bridge and Iron Company was a four-page document setting out in detail what repairs were necessary, how they would be effected, what materials and parts would be furnished, and what type and grade of steel and paint would be used. The charge for the decorative exterior painting was approximately the same as plaintiff's, but the charge for repairs and functional interior painting was $9640 as against plaintiff's estimate of $5225. Two other companies also submitted bids for the repair of the water tower, but there is nothing of record as to any of the details or the amounts of their bids. In letting a contract, the total cost of the work is but one of many factors to be considered; in construction work it is important to assess a contractor's ability to perform the work its equipment, the skill of its workmen, its experience, its reputation, its financial responsibility. The Bridge Company had previously made satisfactory repairs to the water tower, had demonstrated the competency of its work, and in addition had gained familiarity with the job. The village officials accepted the bid of a firm with which they had had past satisfactory relationships. Had they let the contract solely on the basis of total cost, they would have been acting blindly and irresponsibly; no details were supplied in plaintiff's bid, and the officials had no way of knowing what type of repair work plaintiff planned to do. The old adage, pennywise can be pound-foolish, is still good economics. Refusal to accept the lowest dollar bid is not fraud per se, and an allegation of such and all inferences a plaintiff may seek to insinuate therefrom are more than offset by the presumption that public officials act in good faith and with honest motives. Smith v. Board of Education, cited above, p 148; People ex rel. Adamowski v. Daley, 22 Ill. App.2d 87, 92, 159 N.E.2d 18 (1959). We think that the trial court was correct in deciding, in an action where time was an important consideration the safety of a village water supply is in peril while this matter continues in litigation that the facts alleged in the amended complaint were not sufficient to constitute a claim in fraud; thus a trial of that alleged issue is obviated. The public interest requires that such dilatory litigation should be disposed of summarily by motion.
For the reasons indicated, the judgment of the Superior Court, both as to the dismissal of the complaint and as to the entry of summary judgment in favor of the Chicago Bridge and Iron Company, is affirmed.
Judgment affirmed.
BRYANT and BURKE, JJ., concur.
© 2002 VersusLaw Inc.
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SPE spoons in a couple of months ago and receive help primarily with information. They have commercial finance (who gave). Try to raise in a way to benefit.
So, these women, yankele honor nature? Women's sprinters? And he knows this runner? See those muscles?
What's weird is the New Zealand for teh-I wonder if araura our deer agrees that can run it.
So here's what I got in my head first. I did see his picture. Who wants to deal with is too fast.
And in the matter of the task: in my opinion it's not just running but walking very fast. If you do a quick account 1000 km at 13-12 days (his plan) is about 180 miles a day.
He intends to spend on the road approximately 12-13 hours a day it's rate of about six kph, unlike mortals, he can do it for 13 hours.
A day almost two weeks in a row. Definitely a crazy gym terms too.
They (he and his partner, Zemi) didn't know about Carlos Goldberg, thought he'd be the first in the world to do for this rate.
Now they have a goal: to walk the path in 12 days, eight hours, ו49 minutes, or Carlos remains the owner.
Here's the finish AT Carlos after 65 days and broke the fastest:


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