Accounts clash in SigEp suit

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Photo by Sarah Eckinger .

This article has been updated to reflect the version published in print on Tuesday, Jan. 21

A week after details surrounding lawsuits against 86 Sigma Phi Epsilon fraternity members revolving around the 2011 Harvard-Yale tailgate crash emerged, the national fraternity has declared that it is in the process of procuring insurance coverage for the defendants.

Conflicting accounts of events over the two-year timeline have surfaced, with the national SigEp organization maintaining that it began making efforts to secure coverage for its fraternity members immediately following the accident in 2011. However, the plaintiffs’ lawyers claim that the national fraternity disavowed responsibility — by way of its insurance policy — for the injury of Sarah Short SOM ’13 and death of Nancy Barry at the tailgate, leading the plaintiffs to file suit against the 86 individual members, in addition to the national organization.

Central to the differing accounts of events around the multiple lawsuits is the question of whether the national fraternity’s insurance policy will cover the actions of the local chapter and its members.

“The [insurance] policy clearly states that chapter members and the chapter are covered in the policy,” Brian Warren, national Sigma Phi Epsilon chief executive officer, told the News Monday.

Warren echoed a Thursday press release from SigEp, asserting that the national fraternity will work to provide insurance through Liberty Surplus Insurance Corporation, for the 86 members targeted in the suits.

But Warren declined to discuss why the plaintiffs chose to sue the 86 members, rather than continuing a previous suit filed earlier in 2013 against the national fraternity.

The attorneys of Short and the Barry estate — Joel Faxon and Paul Edwards, respectively — claim that the suits were filed against the 86 individuals because the national fraternity’s insurance contains an exclusion for rented motor vehicles and actions in violation of national fraternity policy. Faxon said that Harold Friedman, a lawyer representing the national fraternity but compensated by Liberty Mutual, “took the position that the use of bulk quantities of alcohol [at the tailgate] was in violation of [SigEp national] policy” in a deposition of then-SigEp President Patrick Dolan ’13.

Faxon pointed to a Dec. 23, 2013 letter obtained by the News to national Sigma Phi Epsilon Director of Risk Management Kathy Johnston describing the fraternity’s insurance policy with Liberty Surplus. In it, Copernicus Gaza — a lawyer for the insurance firm — stated that defendants are only insured if “they were both acting within the scope of their duties as fraternity members and in compliance with SigEp National’s risk management guidelines at the time of the accident.”

“To the extent any individual defendant was acting outside the scope of his duties as a fraternity member, or was acting not in compliance with SigEp National’s risk management guidelines, no coverage would be available,” Gaza wrote.

The national fraternity also lists its risk management guidelines online in a 20-page document stating that “the purchase and/or use of a bulk quantity of alcoholic beverages (i.e. kegs or case(s) or beer/wine) is prohibited.” At the time of the accident, Brendan Ross ’13 was transporting kegs in the U-Haul truck that struck Short and Barry.

This fact, Faxon alleged, allowed the national fraternity to claim that it was not responsible for the local chapter and that its insurance would not cover damages stemming from the tailgate accident. As a result, Short and the Barry estate were left to sue the local chapter, their attorneys said. But the local chapter, in turn, can only be sued by way of its members because of a law defining it as a voluntary association, according to both Faxon and Edwards.

When asked about the above events, Warren said that the national organization has “already secured insurance coverage for many of the individuals” and that he believed it inappropriate to go into further detail. The Dec. 23 letter from Gaza further states that the coverage provided to the fraternity and its members is “excess” over “any of the other insurance” held by the members, including any form of homeowner’s or automobile insurance — meaning that the national fraternity’s insurance would only pay damages after the defendants’ insurance companies had already paid.

Thomas Cooper, an employee at Liberty International Underwriters to whom the 86 members were told to forward documents about any insurance policies held by them or their parents, declined to comment.

In the Dec. 23 letter, Johnston was instructed by Liberty Surplus to forward an affidavit to the 86 members acknowledging that they were named as defendants in the case because of their membership in the fraternity, and that the fraternity had sought liability insurance on their behalf. Furthermore, the members were asked to acknowledge that the insurance company sought information regarding their home insurance situations.

In addition to working to procure insurance for the 86, Liberty Surplus also retained a lawyer, Jeremy Platek, to represent the members in court. According to documents filed with the Connecticut Judicial Branch early last week, Platek — who could not be reached for comment — is currently representing 84 of the 86.

On Monday, Faxon said the vast majority of the 86 defendants hold pre-existing applicable insurance policies, either individually or through their parents.

Including the most recent lawsuits, Short and the Barry estate have collectively sued four times since the 2011 incident, naming Ross, the fraternity, all members of the local chapter at the time, the University, the city of New Haven and U-Haul as defendants.

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