Beruflich Dokumente
Kultur Dokumente
Plaintiff,
CAUSE NO.:
vs. 1:08-cv-1747 SEB-TAB
Defendants.
----------------------------~/
Ai"iSWER, AFFJRMA TIVE DEFENSES, COUNTERCLAIMS AND CROSS-
CLAIMS TO THE AMENDED CROSS CLAIMS AND TIDRD-P ARTY CLAIMS
BY THE ESTATE OF GERMAINE TOMLINSON AND TOMISUE HILBERT BY
DEFENDANTS GERMAINE TOMLINSON INSURANCE TRUST DATED
JANUARY 23, 2006, BY J. B. CARLSON, TRUSTEE, Ai"iD
THE CARLSON MEDIA GROUP
COME NOW the Germaine Tomlinson Insurance Trust dated January 23, 2006
("Tomlinson Trust" or "Trust"), its Co-Trustee, lB. Carlson, and Carlson Media Group
counsel, and make their Answer, Affirmative Defenses, Counterclaims and Cross-claims
"Estate") and Tomisue Hilbert, collectively the "Tomlinson Defendants", and say:
1 The Germaine Tomlinson Insurance Trust dated January 23, 2006 ("Tomlinson Trust"), its Co-Trustee,
lB. Carlson, and Carlson Media Group ("CMG"), only, were collectively referred to as the "Defendants"
in the "ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS BY DEFENDANTS
GERMAINE TOMLINSON INSURANCE TRUST DATED JANUARY 23, 2006, by J. B. CARlSON,
TRUSTEE, AND THE CARLSON MEDIA GROUP", (Doc.IS), and that designation is continued here.
See ~ 63, below.
1
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September 29, 2008, as alleged in rhetorical paragraph no. 3. Defendants are without
sufficient information to admit or deny the remaining allegations set forth in Cross-claim
rhetorical paragraph no. 3 by the Tomlinson Defendants and according deny same.
no. 5 concerning the genuine grief expressed by Mr. Carlson over the loss of his valued
friend and trusted business associate and former Carlson Media Group Vice Chairman,
Germaine "Suzi" Tomlinson. Defendants deny all the rest and remainder of the
2
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allegations set forth in Cross-claim rhetorical paragraph no. 10 and show the court that
12. Defendants deny the allegations set forth in rhetorical paragraph no. 12 in
14. Defendants deny the allegations set forth in rhetorical paragraph no. 14 in
3
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17. Defendants deny the allegations set forth in rhetorical paragraph no. 17 in
18. Defendants deny the allegations set forth in rhetorical paragraph no. 18 in
19. Defendants deny the allegations set forth in rhetorical paragraph no. 19 in
20. Defendants deny the allegations set forth in rhetorical paragraph no. 20 in
21. A person has an insurable interest in the life of another where there is
reasonable probability that he or she will benefit from the latter's remaining alive or lose
by his death.' Such an interest need not be susceptible to definite pecuniary estimation or
providing life insurance has an insurable interest in his employee. Prime Mortgage USA,
Inc. v. Nichols, 885 N.E.2d 628 (Ind.Ct.App.2007). The statute defines "employee" to
include a director of the corporation and Germaine "Suzi" Tomlinson was a director of
Defendant Carlson Media Group on the date the policy of insurance issued. Defendants
deny all the rest and remainder of the allegations set forth in rhetorical paragraph no. 21
2 With respect to life insurance, any reasonable expectation of pecuniary benefit or advantage from the
continued life of another creates an insurable interest in such life. Hilliard v, Jacobs, 874 N.E.2d 1060
(Ind.Ct.App.2007)
4
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rhetorical paragraph no. 22. Defendants are without sufficient information to admit or
deny the remainder of the allegations set forth in Cross-claim rhetorical paragraph no. 22
23. Defendants deny making or authorizing any such instruction from any of
the Defendants to Germaine "Suzi" Tomlinson concerning the insurance contract or Trust
instrument as alleged in rhetorical paragraph no. 23. Defendants are without sufficient
information to admit or deny the remainder of the allegations set forth in Cross-claim
rhetorical paragraph no. 23 by the Tomlinson Defendants and according deny same.
25. Defendants deny the allegations set forth in rhetorical paragraph no. 25 in
28. Defendants deny the allegations set forth in rhetorical paragraph no. 28 in
5
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29. Defendants deny the allegations set forth in rhetorical paragraph no. 29 in
31. Defendants deny the allegations set forth in rhetorical paragraph no. 30 in
32. Defendants admit to the jurisdiction of this Court in these proceedings and
claims. Defendants are without sufficient information to admit or deny the remaining
Defendants and according deny same. 28 U.S.C §§ 1332(a) and 1367 speak for
themselves.
33. Defendants admit to the venue of this action in the United States District
Court for the Southern District ofIndiana. 28 U.s.e. §1391(a)(2) speaks for itself.
Defendants and according deny same. I.C. §§29-1-13-3 and 29-1-13-10 speak for
themselves.
6
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Defendants and according deny same. I.C. §§29-1-7.5-3 and 29-1-31-1 speak for
themselves.
7
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8
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56. Defendants admit in part and deny in part the allegations set forth in
rhetorical paragraph no. 56 by the Tomlinson Defendants. Defendants admit that Carlson
Media Group, Inc. is a Delaware corporation created on April 20, 2001. The company
also established itself in Indiana on June 21, 2001. The Defendants deny all the rest and
remainder of the allegations set forth in rhetorical paragraph no. 56 by the Tomlinson
Defendants.
57. Defendants deny that CMG is the alter ego of Mi. Carlson and deny that
9
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no. 57 by the Tomlinson Defendants. Defendants admit that Mr. Andrew Kovacs served
as the accountant for CMG for a time but Defendants deny all the rest and remainder of
58. Defendants admit that the Germaine Tomlinson Insurance Trust dated
January 23, 2006, is a Delaware Statutory Trust. Defendants further admit that Mr.
Carlson and Resident Limited, Inc. are Co-trustees at the date of this Answer.
Defendants show that Ms. Michelle Harra, the Wilmington Trust Company was Co-
Trustee on January 23, 2006. Defendants deny all the rest and remainder of the
as Co-trustee of the Germaine Tomlinson Insurance Trust dated January 23, 2006 during
the period from January 23,2006 to (approx.) February 12,2009. Defendants are without
sufficient information to admit or deny the remaining allegations set forth in Cross-claim
rhetorical paragraph no. 59 by the Tomlinson Defendants and according deny same.
Germaine Tomlinson Insurance Trust dated January 23, 2006 at the date of this Answer
information to admit or deny the remaining allegations set forth in Cross-claim rhetorical
10
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62. Defendants deny that Mr. Carlson was the agent of Wilmington.
Defendants are without sufficient information to admit or deny the remaining allegations
set forth in Cross-claim rhetorical paragraph no. 62 by the Tomlinson Defendants and
Tomlinson Insurance Trust dated January 23, 2006 ("Tomlinson Trust"), its Co-trustee,
lB. Carlson, and Carlson Media Group ("CMG"), collectively the "Defendants". (Doc.
15). Wilmington Trust Company, Ms. Harra, and Resident Limited, Inc., Wilmington's
"Defendants". This Answer speaks only for the Germaine Tomlinson Insurance Trust
dated January 23, 2006 ("Tomlinson Trust"), its Co-trustee, J.B. Carlson, and Carlson
64. Defendants deny the allegations set forth in rhetorical paragraph no. 64 in
11
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71. Defendants admit the allegation set forth in rhetorical paragraph no. 71 by
74. Defendants admit that Germaine "Suzi" Tomlinson was a trusted and
valuable member of the Board of Directors of CMG in 2005 and 2006 and a considerable
12
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information to admit or deny the remaining allegations set forth in Cross-claim rhetorical
76. Defendants deny the allegation set forth in rhetorical paragraph no. 76 in
78. Defendants deny the allegation set forth in rhetorical paragraph no. 78 in
January 28, 2006, but Defendants deny all the rest and remainder of the allegations set
Mr. Carlson to find a way to generate large sums of money with minimal effort in a
relatively short period of time" as set forth in rhetorical paragraph no. 81 in the cross-
claim. Defendants are without sufficient information to admit or deny the remaining
13
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82. Defendants deny the allegation set forth in rhetorical paragraph no. 82 in
Defendants and according deny same. Exhibit 2 to the cross-claim speaks for itself.
Defendants and according deny same. Exhibit 2 to the cross-claim (Doc. 190-2) speaks
for itself.
Defendants and according deny same. Exhibit 2 to the cross-claim speaks for itself.
Defendants and according deny same. Exhibit 2 to the cross-claim speaks for itself.
14
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Defendants and according deny same. Exhibit 2 to the cross-claim speaks for itself.
90. . Defendants admit that the transaction, including the formation and
documentation of the Trust and purchase' of the insurance contract was the product of the
a trust to hold a policy of insurance on the life of the Vice Chairman of CMG in January,
2006. Defendants are without sufficient information to admit or deny the remaining
instrument was made, from 2005 to 2006, to accurately reflect the date of the Trust.
Defendants are without sufficient information to admit or deny the remaining allegations
set forth in 'Cross-claim rhetorical paragraph no. 91 by the Tomlinson Defendants and
15
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96. Defendants deny the allegation set forth in rhetorical paragraph no. 96 in
the Tomlinson Defendants' cross-claim. Defendants further state that at all times
relevant herein, by its terms, the Tomlinson Trust was revocable by its Settlor (Ms.
Tomlinson) and Ms. Tomlinson retained authority to amend the Tomlinson Trust,
including the right to changes its named beneficiary during her lifetime, and she chose
not to make any changes or alterations to the Tomlinson Trust or its named beneficiaries
16
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allegations set forth in Cross-claim rhetorical paragraph no. 100 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 101 by the Tomlinson
102. Defendants admit the allegations set forth in rhetorical paragraph no. 102
103. Defendants admit the allegations set forth in rhetorical paragraph no. 103
allegations set forth in Cross-claim rhetorical paragraph no. 104 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 105 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 106 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 107 by the Tomlinson
17
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allegations set forth in Cross-claim rhetorical paragraph no. 108 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 109 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 110 by the Tomlinson
111. Defendants admit the allegations set forth in rhetorical paragraph no. III
allegations set forth in Cross-claim rhetorical paragraph no. 112 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 113 by the Tomlinson
114. Defendants admit that Plaintiff American General acted in bad faith with
regard to its duty of payment under the policy of insurance following the accidental death
deny the remaining allegations set forth in Cross-claim rhetorical paragraph no. 114 by
18
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allegations set forth in Cross-claim rhetorical paragraph no. 115 by the Tomlinson
116. Defendants admit the allegations set forth in rhetorical paragraph no. 116
117. Defendants admit the allegations set forth in rhetorical paragraph no. 117
118. Defendants admit the allegations set forth in rhetorical paragraph no. 118
119. Defendants admit the allegations set forth in rhetorical paragraph no. 119
allegations set forth in Cross-claim rhetorical paragraph no. 120 by the Tomlinson
with LaSalle and Wilmington, to arrange financing for the Policy but deny any
participation by Co-trustee Mr. Carlson in the effort other than mere acquiescence to the
sufficient information to admit or deny the remaining allegations set forth in Cross-claim
rhetorical paragraph no. 121 by the Tomlinson Defendants and according deny same.
arrange financing for the Policy but deny that Mr. Carlson, Co-trustee, or CMG actively
participatedin the effort. Defendants are without sufficient information to admit or deny
19
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the remaining allegations set forth in Cross-claim rhetorical paragraph no. 122 by the
123. Defendants admit that the Supplemental to the Trust was made on or about
January 24, 2006, and that this Supplemental instrument was named "The Germaine
further show that Mr. Carlson was not named a Trustee of the Sub-Trust and asserted no
control of authority over this Sub-Trust. Defendants are without sufficient information to
admit or deny the remaining allegations set forth in Cross-claim rhetorical paragraph no.
allegations set forth in Cross-claim rhetorical paragraph no. 124 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 125 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 126 by the Tomlinson
Defendants and according deny same. Exhibit 3 to the Cross-claim (Doc. 190-3) speaks
for itself.
allegations set forth in Cross-claim rhetorical paragraph no. 127 by the Tomlinson
20
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128. Defendants deny the allegations set forth in rhetorical paragraph no. 128 in
allegations set forth in Cross-claim rhetorical paragraph no. 129 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 130 by the Tomlinson
Defendants and according deny same. Exhibit 3 to the cross-claim speaks for itself.
allegations set forth in Cross-claim rhetorical paragraph no. 131 by the Tomlinson
Defendants and according deny same. Exhibit 3 to the cross-claim speaks for itself.
allegations set forth in Cross-claim rhetorical paragraph no. 132 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 133 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 134 by the Tomlinson
Defendants and according deny same. Defendants further reiterate that Co-Defendant,
21
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allegations set forth in Cross-claim rhetorical paragraph no. 135 by the Tomlinson
Defendants deny all the rest and remainder of the allegations set forth in rhetorical
allegations set forth in Cross-claim rhetorical paragraph no. 136 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 138 by the Tomlinson
Defendants and according deny same. Defendants further state that the Policy benefit
was preserved as an asset of the Trust by the sole efforts of the Trust, through its Co-
Trustee, Mr. Carlson, and CMG, and not by the Tomlinson Defendants.
139. Defendants state that the Policy benefit was preserved as an asset of the
Trust by the sole efforts of the Trust, through its Co-Trustee, Mr. Carlson, with CMG,
and not by the Tomlinson Defendants. Defendants are without sufficient information to
admit or deny the remaining allegations set forth in Cross-claim rhetorical paragraph no.
allegations set forth in Cross-claim rhetorical paragraph no. 140 by the Tomlinson
22
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141. Defendants admit in part, the allegations set forth in rhetorical paragraph
no. 141 concerning the genuine grief expressed by Mr. Carlson over the loss of his valued
friend and trusted business associate, Germaine "Suzi" Tomlinson: Defendants deny all
the rest and remainder of the allegations set forth in rhetorical paragraph no. 141.
allegations set forth in Cross-claim rhetorical paragraph no. 142 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 143 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 144 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 145 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 146 by the Tomlinson
147. Defendants admit that the obligation to LaSalle and Coventry were
satisfied by the sole efforts of the Defendants on or about October 14, 2008, and that the
Policy benefit was preserved for the Trust. Defendants are without sufficient information
23
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to admit or deny the remaining allegations set forth in Cross-claim rhetorical paragraph
148. Defendants admit that the Defendants are indebted in the approximate
attorneys' fees, all incurred in preserving the Policy for the Trust but Defendants are
without sufficient information to admit or deny the remaining allegations set forth in
Cross-claim rhetorical paragraph no. 148 by the Tomlinson Defendants and according
deny same.
149. Defendants admit that the death claim policy to Plaintiff, American
General, was tendered through Wilmington on or about October 7, 2008. Defendants are
without sufficient information to admit or deny the remaining allegations set forth in
Cross-claim rhetorical paragraph no. 149 by the Tomlinson Defendants and according
deny same.
allegations set forth in Cross-claim rhetorical paragraph no. 150 by the Tomlinson
allegations set forth. in Cross-claim rhetorical paragraph no. 151 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 152 by the Tomlinson
24
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allegations set forth in Cross-claim rhetorical paragraph no. 153 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 154 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 155 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 156 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 157 by the Tomlinson
158. Defendants admit the allegations set forth in rhetorical paragraph no. 158
allegations set forth in Cross-claim rhetorical paragraph no. 159 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 160 by the Tomlinson
25
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allegations set forth in Cross-claim rhetorical paragraph no. 161 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 162 by the Tomlinson
163. Defendants deny the allegations set forth in rhetorical paragraph no. 163 in
allegations set forth in Cross-claim rhetorical paragraph no. 164 by the Tomlinson
allegations set forth in Cross-claim rhetorical paragraph no. 165 by the Tomlinson
166. Defendants admit the allegations set forth in rhetorical paragraph no. 166
allegations set forth in Cross-claim rhetorical paragraph no. 167 by the Tomlinson
allegation that Germaine Tomlinson died intestate and accordingly deny same.
Defendants deny all the remaining allegations set forth in rhetorical paragraph no. 168 in
26
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169. Defendants deny the allegations set forth in rhetorical paragraph no. 169 in
and including no. 169, above, in this, their answer to rhetorical paragraph no. 170.
17L Defendants admit the allegations set forth in rhetorical paragraph no. 171
172. Defendants admit the allegations set forth in rhetorical paragraph no. 172
173. Defendants admit the allegations set forth in rhetorical paragraph no. 173
174. Defendants admit the allegations set forth in rhetorical paragraph no. 174
175. Defendants admit the allegations set forth in rhetorical paragraph no. 175
176. Defendants admit the allegations set forth in rhetorical paragraph no. 176
178. Defendants admit that American General is in breach of the Policy for its
failure to pay the policy proceeds as required by the Policy but deny that the Policy
proceeds are payable to the Tomlinson Defendants or the heirs of Germaine Tomlinson as
27
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Defendants deny all the remaining allegations set forth in rhetorical paragraph no. 178 in
179. Defendants deny the allegations set forth in rhetorical paragraph no. 179 in
Insurance Trust dated January 23, 2006 ("Tomlinson Trust"), its Co-Trustee, J.B.
Carlson, and Carlson Media Group ("CMG"), only, and hereafter collectively referred to
as the "Defendants", jointly, together with their attorneys' fees and all costs and expenses
of this litigation, and for all other just and proper relief.
and including no. 179, above, in this, their answer to rhetorical paragraph no. 180 in the
181. Defendants admit the allegations set forth in rhetorical paragraph no. 181
182. Defendants .admit that American General breached its duty of good faith
and fair dealing in the course of its underwriting of the Policy, and by its failure to
investigate any matter pertaining to the Policy during its two-year contestability period,
Defendants deny this duty was owed to the Tomlinson Defendants as alleged in rhetorical
28
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184. Defendants contend that American General owed no duty to Ms. Hilbert in
the sale, underwriting, or administration of the policy or death claim benefit, as alleged in
contend that such duty was owed to the Defendants by American General.
185.. Defendants contend that American General owed no duty to Ms. Hilbert
and deny that American General breached any duty to the Tomlinson Defendants or
caused the Tomlinson Defendants any harm as alleged in rhetorical paragraph no. 185 in
186. Defendants contend that American General owed no duty to Ms. Hilbert as
the remaining allegations set forth in the Tomlinson Defendants' counterclaim against
American General in rhetorical paragraph no. 187 and according deny same.
Insurance Trust dated January 23, 2006 ("Tomlinson Trust"), its Co-Trustee, J.B.
Carlson, and Carlson Media Group ("CMG"), only, and hereafter collectively referred to
as the "Defendants", jointly, together with their attorneys' fees and all costs and expenses
of this litigation, and for all other just and proper relief
29
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and including no. 187, above, in this, their answer to rhetorical paragraph no. 188 in the
dated January 23, 2006 (<<TomlinsonTrust"), its Co-Trustee, J.B. Carlson, and Carlson
Media Group ("CMG"), only, and hereafter collectively referred to as the "Defendants".
forth in rhetorical paragraph nos. 1 thru 169, above, in this their answer to rhetorical
paragraph no. 189 in the Tomlinson Defendants' cross-claim. Defendants deny all the
rest and remainder of the allegations in rhetorical paragraph no. 189 in the Tomlinson
Defendants' cross-claim.
forth in rhetorical paragraph nos. 134 thru 169, above, in this their answer to rhetorical
paragraph no-.189 in the Tomlinson Defendants' cross-claim. Defendants deny all the rest
and remainder of the allegations in rhetorical paragraph no. 190 in the Tomlinson
Defendants' cross-claim.
191. Defendants deny the allegations in rhetorical paragraph no. 191 in the
192. Defendants deny the allegations in rhetorical paragraph no. 192 in the
30
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194. Defendants deny the allegations in rhetorical paragraph no. 194 in the
195. Defendants deny the allegations in rhetorical paragraph no. 195 in the
196. Defendants deny the allegations in rhetorical paragraph no. 196 in the
197. Defendants deny the allegations in rhetorical paragraph no. 197 in the
198. Defendants deny the allegations in rhetorical paragraph no. 198 in the
199. Defendants deny the allegations in rhetorical paragraph no. 199 in the
200. Defendants deny the allegations in rhetorical paragraph no. 200 in the
201. Defendants admit that the Tomlinson Trust (Doc. 117-2) was revocable by
the Settlor during her lifetime" and further admit that the Settlor never revoked the Trust
during her lifetime. Defendants deny all the rest and remaining allegations in rhetorical
202. Defendants .deny the allegations in rhetorical paragraph no. 202 in the
203. Defendants deny the allegations in rhetorical paragraph no. 203 in the
3 The Trust (Doc. 117-2) states at ~8 Upon written instructions of the Settlor [Germaine Tomlinson], the
Trustee [Wilmington] shall dissolve, wind-up and terminate the Trust and file a certificate of cancellation
in accordance with Section 3810 of the Act. (Title 12 of the Delaware Code, Section 3810 et seq.)
31
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Insurance Trust dated January 23, 2006 ("Tomlinson Trust"), its Co-Trustee, IE.
Carlson, and Carlson Media Group ("CMG"), only, and hereafter collectively referred to
as the "Defendants", jointly, together with their attorneys' fees and all costs and expenses
of this litigation, and for all other just and proper relief.
forth in rhetorical paragraph nos. 1 thru 169, above, in this their answer to rhetorical
paragraph no. 204 in the Tomlinson Defendants' cross-claim. Defendants deny all the
rest and remainder of the allegations in rhetorical paragraph no. 204 in the Tomlinson
Defendants'. cross-claim.
205. Defendants deny the allegations in rhetorical paragraph no. 205 in the
206. Defendants are without sufficient information to admit .or deny the
allegations set forth in rhetorical paragraph no. 206 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 207 in the Tomlinson Defendants'
counterclaim and according deny same. Further, Indiana Code § 35-41-2-3(a) and § 34-
208: Defendants deny the allegations in rhetorical paragraph no. 208 in the
32
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209_ Defendants deny the allegations in rhetorical paragraph no. 209 in the
210. Defendants deny the allegations in rhetorical paragraph no. 210 in the
211_ Defendants deny the allegations in rhetorical paragraph no. 211 in the
212. Defendants deny the allegations in rhetorical paragraph no. 212 in the
213. Defendants deny the allegations in rhetorical paragraph no. 213 in the
214. Defendants deny the allegations in rhetorical paragraph no. 214 in the
Insurance Trust dated January 23, 2006 ("Tomlinson Trust"), its Co-Trustee, IB.
Carlson, and Carlson Media Group ("CMG"), only, and hereafter collectively referred to
as the "Defendants", jointly, together with their attorneys' fees and all costs and expenses
of this litigation, and for all other just and proper relief.
forth in rhetorical paragraph nos. 1 thru 169, above, in this their answer to rhetorical
paragraph no. 215 in the Tomlinson Defendants' cross-claim. Defendants deny all the
rest and remainder of the allegations in rhetorical paragraph no. 215 in the Tomlinson
Defendants' cross-claim.
33
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forth in rhetorical paragraph nos. 188 to and including 214, above, in this their answer to
rhetorical paragraph no. 216 in the Tomlinson Defendants' cross-claim. Defendants deny
all the rest and remainder of the allegations in rhetorical paragraph no. 216 in the
allegations set forth in rhetorical paragraph no. 217 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 218 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 219 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 220 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 221 in the Tomlinson Defendants'
222. Defendants deny the allegations in rhetorical paragraph no. 222 in the
34
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allegations set forth in rhetorical paragraph no. 223 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 224 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 225 in the Tomlinson Defendants'
226. Defendants deny the allegations in rhetorical paragraph no. 226 in the
227. Defendants deny the allegations in rhetorical paragraph no. 227 in the
228. Defendants deny the allegations in rhetorical paragraph no. 228 in the
229. Defendants deny the allegations in rhetorical paragraph no. 229 in the
230. Defendants deny the allegations in rhetorical paragraph no. 230 in the
231. Defendants admit that the Tomlinson Trust (Doc. 117-2) was revocable by
the Settlor during her lifetime and further admit that the Settlor never revoked the Trust
during her lifetime. (see ~201, above). Defendants deny all the rest and remaining
35
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232. Defendants .deny the allegations in rhetorical paragraph no. 232 in the
233. Defendants deny the allegations in rhetorical paragraph no. 233 in the
Tomlinson Defendants' cross-claim and request that the court enter judgment on the
Tomlinson Defendants' counterclaim for the Germaine Tomlinson Insurance Trust dated
January 23, 2006 ("Tomlinson Trust"), its Co-Trustee, J.B. Carlson, and Carlson Media
Group ("CMG"), only, and hereafter collectively referred to as the "Defendants", jointly,
together with their attorneys' fees and all costs and expenses of this litigation, and for all
forth in rhetorical paragraph nos. 1 thru 169, above, in this their answer to rhetorical
paragraph no. 234 in the Tomlinson Defendants' cross-claim. Defendants deny all the
rest and remainder of the allegations in rhetorical paragraph no. 234 in the Tomlinson
Defendants' cross-claim.
allegations set forth in rhetorical paragraph no. 235 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 236 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 237 in the Tomlinson Defendants'
36
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allegations set forth in rhetorical paragraph no. 238 in the Tomlinson Defendants'
239. Defendants deny the allegations in rhetorical paragraph no. 239 in the
240. Defendants deny the allegations in rhetorical paragraph no. 240 in the
241. Defendants deny the allegations in rhetorical paragraph no. 241 in the
allegations set forth in rhetorical paragraph no. 242 in the Tomlinson Defendants'
243. Defendants deny the allegations in rhetorical paragraph no. 243 in the
244. Defendants deny the allegations in rhetorical paragraph no. 244 in the
Insurance Trust dated January 23, 2006 ("Tomlinson Trust"), its Co-Trustee, J.B.
Carlson, and Carlson Media Group ("CMG"), only, and hereafter collectively referred to
as the "Defendants", jointly, together with their attorneys' fees and all costs and expenses
of this litigation, and for all other just and proper relief.
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forth in rhetorical paragraph nos. 1 thru 169, above, in this their answer to rhetorical
paragraph no. 245 in the Tomlinson Defendants' cross-claim. Defendants deny all the
rest and remainder of the allegations in rhetorical paragraph no. 245 in the Tomlinson
Defendants' cross-claim.
allegations set forth in rhetorical paragraph no. 246 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 247 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 248 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 249 in the Tomlinson Defendants'
allegations set forth in rhetorical paragraph no. 250 in the Tomlinson Defendants'
Insurance Trust dated January 23, 2006 ("Tomlinson Trust"), its Co-Trustee, J.B.
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Carlson, and Carlson Media Group ("CMG"), only, and hereafter collectively referred to
as the "Defendants", jointly, together with their attorneys' fees and all costs and expenses
of this litigation, and for all other just and proper relief.
forth in rhetorical paragraph nos. 1 thru 169, above, in this their answer to rhetorical
paragraph no. 251 in the Tomlinson Defendants' cross-claim. Defendants deny all the
rest and remainder of the allegations in rhetorical paragraph no. 251 in the Tomlinson
Defendants' cross-claim.
252. Defendants admit the allegations set forth in rhetorical paragraph no. 252
allegations set forth in rhetorical paragraph no. 253 in the Tomlinson Defendants'
254. Defendants admit the allegations set forth in rhetorical paragraph no. 254
allegations set forth in rhetorical paragraph no. 255 in the Tomlinson Defendants'
256. Defendants deny the allegations set forth in rhetorical paragraph no. 256 in
257. Deferidants deny the allegations set forth in rhetorical paragraph no. 257 in
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allegations set forth in rhetorical paragraph no. 258 in the Tomlinson Defendants'
259. Defendants deny the allegations set forth in rhetorical paragraph no. 259 in
allegations set forth in rhetorical paragraph no. 260 in the Tomlinson Defendants'
Insurance Trust dated January 23, 2006 ("Tomlinson Trust"), its Co-Trustee, J.B.
Carlson, and Carlson Media Group ("CMG"), only, and hereafter collectively referred to
as the "Defendants", jointly, together with their attorneys' fees and all costs and expenses
of this litigation, and for all other just and proper relief.
Defendants upon which relief may be granted. Germaine Tomlinson was Settlor of the
Germaine Tomlinson Insurance Trust dated January 23, 2006. Mrs. Tomlinson, as
Settlor, retained the exclusive authority to name her beneficiaries under the Trust until the
date of her death. Mrs. Tomlinson named her Trust Beneficiaries which did not include
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the Tomlinson Defendants and the Tomlinson Defendants have no claim to the benefits
2. The Tomlinson Defendant cannot contest the terms of the Trust because
the Settlor's intentions with regard to the Trust are determined with reference to the
written terms of the Trust which could be altered only by the Settlor during her lifetime
but which were never altered by the Settlor during her life.
benefit from the Trust under the terms of the "Separation Agreement and General
Release" executed by Germaine Tomlinson in favor of CMG and the Tomlinson Trust on
October 20,2006.
5. Defendants reserve the right to amend their Answer and assert any and all
Affirmative Defenses that may become apparent during the course of their investigation
and discovery.
Insurance Trust dated January 23, 2006 ("Tomlinson Trust"), its Co-Trustee, J.B.
Carlson, and Carlson Media Group ("CMG"), only,. and hereafter collectively referred to
as the "Defendants", jointly, together with their attorneys' fees and all costs and expenses
of this litigation, and for all other just and proper relief.
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For their counterclaim against the Estate of Germaine "Suzi" Tomlinson (the
"Estate") and Tomisue Hilbert ("Mrs. Hilbert"), jointly and severally, the Germaine
Tomlinson Insurance Trust, dated January 23, 2006 (the "Tomlinson Trust"), by and for
its Trustee JB Carlson, and the Carlson Media Group (collectively referred to herein as
28 USe. §1367.
because a substantial part of the events or omissions giving rise to the claims herein
under a Trust Agreement dated January 23, 2006, as amended, with its situs located in
Newark, Delaware.
laws of the State of Delaware and the State ofIndiana with its principal place of business
in Indianapolis, Indiana.
the State of Texas with its principal place of business in Houston, Texas.
Tomlinson") began attending the Carlson Media Group Board of Directors' meetings.
7. In late 2002, Ms. Tomlinson was elected to the Carlson Media Group
Board of Directors.
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8. During her time on the Board of Directors, Ms. Tomlinson served as the
Vice Chairman.
Group Board of Directors. She was also active in the promotion and business
10. Beginning in 2001 and continuing through 2004 the CMG Board of
Directors discussed and approved the purchase of "key person" life insurance contracts
11. On or about January 23, 2006, the Tomlinson Trust was created. The Trust
Agreement (Doc. 117-2) was signed by Ms. Tomlinson as Settlor and Michele C. Harra,
Financial Service Officer of the Wilmington Trust Company as its Trustee and Jason C.
Bolf, as Co-trustee. Jason C. Bolf is now known as JB Carlson, Defendant and Counter-
claimant.
12. The Tomlinson Trust Agreement identifies and designates the Carlson
Media Group ("CMG") as the beneficial owner of life insurance proceeds on the life of
Ms. Tomlinson.
("American General") issued life policy No. UM0036206L (the "Policy") to the
Tomlinson Trust. A true and accurate copy of the Policy is designated in the record as
Doc. 15-2.
14. The policy is an Indiana insurance policy governed by Indiana law. See
15. Since the inception of the Policy in January 2006, all Policy premiums
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have been paid in full by or on behalf of CMG and the Trust, only. All Policy premiums,
being in the amount of$855,146.90, were accepted and retained by American General.
16. At the time the Policy was issued, Ms. Tomlinson was an active member
of the CMG Board of Directors and was active III promoting the company and
17. The face value of the Policy (Doc. 15-2) is $15,000,000.00. See Policy,
18. The Tomlinson Trust (Doc. 117-2) was prepared by Wilmington Trust
Company ("Wilmington") in. concert with and under the direction of Coventry Capital I,
19. Coventry arranged the premium finance loan for CMG with LaSalle.
20. The Premium Finance Loan for the Policy, payable by CMG, was in the
amount of One million Two Hundred Seventy-Seven Thousand, One Hundred Fifty-nine
21. By its loan terms, LaSalle was granted a security interest in the policy.
22. The American General Policy premiums were paid by the Tomlinson
23. The Settlor and insured, Ms. Germaine Tomlinson, did not pay and did not
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25.. Under the terms of its Premium Loan Agreements with LaSalle, CMG had
two (2) options as of September 30, 2008: (a) repay the loan in the due amount of One
Million Two Hundred Sixty-four Thousand Five Hundred Nine and 71/100 Dollars
26. On September 30, 2008, the Note and Security Agreement between
of the policy, CMG, with the assistance of Mr. Carlson, Co-trustee of the Tomlinson
Trust, took steps to protect the Policy and to preserve the value of the policy against
foreclosure by LaSalle under the terms of its Loan and Security Agreements.
28. Following negotiation and with the assistance of brokers, CMG and the
Trust entered into lending agreements with outside lenders to provide financing to
LLC ("OBF"), that CMG and Mr. Carlson each provide guarantees for the full and
30. The OBF bridge financing was intended to provide protection of the
Policy against foreclosure until the completion of claims processing of the Germaine
31. Under the terms of the OBF financing, OBF was granted a security
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32. Following the filing of suit by AIG (Doc. 12) to dispute the CMG death
benefit claim, CMG and its guarantors were required to re-negotiate additional terms with
33. On or about July 24, 2009, based on the further negotiated financing terms
between OBF, CMG and the Trust's guarantors, CMG, the Trust and Me. Carlson, in his
dual capacities, granted OBF a judgment against the Trust, its Policy, CMG, and Mr.
Carlson, individually and in his capacity as Co-trustee, in the amount of Four Million Six
($4,632,391.17), plus interest under Minnesota law, and accrued attorneys fees to the date
34. On July 24, 2009, the Trust, CMG and Mr. Carlson, both individually and
as Co-trustee, entered into a settlement agreement with SID Investments, LLC, and Mr.
James Burchard to resolve matters relating to services by SID Investments and Mr.
Burchard to the Trust, and CMG related to the negotiation of the bridge financing to
preserve and protect the Policy against foreclosure by LaSalle, which settlement cost the
Trust, CMG and Mr. Carlson One Million Two Hundred Seventy Thousand Dollars
($1,270,000.00), plus interest under Minnesota law, and accrued attorneys fees incurred
35. The actions taken by the Trust, CMG, and Mr. Carlson, individually and
as Co-trustee, were taken to establish the trust and Policy and to protect the Policy against
foreclosure by the premium finance lender and its successors lender, and to provide for
the defense of American General's claims in its efforts to deny the Policy.
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including Mr. Carlson, both as Co-trustee and individually, for all incurred liabilities,
establish, preserve, and protect the Policy against foreclosure, including all incurred and
guaranteed expense for financing the policy premiums and defense of the Policy against
WHEREFORE, Defendants respectfully request that the court enter judgment for
Defendants, jointly and severally, and against the Tomlinson Defendants, and each of
them, on Defendants' counterclaims for repayment and indemnity for the costs and
amount to be determined at trial, together with Defendants' attorneys' fees and all costs
and expenses of this litigation, and for all other just and proper relief
("Wilmington"), jointly and severally, the Germaine Tomlinson Insurance Trust, dated
January 23, 2006 (the "Tomlinson Trust"), by and for its Trustee J. BiCarison, and the
follows:
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U.s.C. §1367.
because a substantial part of the events or omissions giving rise to the claims herein
under a Trust Agreement dated January 23, 2006, as amended, with its situs located in
Newark, Delaware. The Trust agreement was signed by Ms. Tomlinson as Settlor and
Trustee and Jason C. Bolf, as Co-trustee. Jason C. Bolf is now known as J. B. Carlson.
under the laws of the State of Delaware and the State of Indiana with its principal place
of business in Indianapolis, Indiana and is the beneficial owner of the Tomlinson Trust.
serves as Co-Trustee of the Tomlinson Trust since its inception on January 23, 2006.
attending the CMG Board of Directors' meetings and in late 2002, Ms. Tomlinson was
purchase of a life insurance contract on Ms. Tomlinson and other directors and
employees.
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registered III Pennsylvania with its principal offices located in Fort Washington,
Pennsy lvania.
the consent of Germaine Tomlinson, on a plan to purchase life insurance on the life of
Germaine Tomlinson, then a CMG Director and Vice Chairman of the CMG Board.
insurance company organized under the laws of the State of Texas with its principal place
the state of Delaware with its principal place of business in Wilmington, Delaware.
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17. Wilmington is a Trustee of the Tomlinson Trust and sole Trustee of The
18. The purpose of the Tomlinson Trust was to own the contract of insurance
purchased on the life of theCMG Vice Chairman, for which CMG was the beneficial
owner, all upon the recommendation of Coventry, LaSalle, and Wilmington to CMG and
Germaine Tomlinson.
19. The purpose of the Sub-Trust was to provide for financing of the insurance
premium through LaSalle for the insurance contract purchased from American General
and owned by the Tomlinson Trust, all upon the recommendation of Coventry, LaSalle
and Trustee of the Tomlinson Trust and the Sub-Trust during the period from its
provide the premium financing for purchase of the life insurance policy to be owned by
Tomlinson and CMG that the Sub-Trust be established to provide for financing the policy
to Germaine Tomlinson and CMG that a policy of insurance be purchased on the life of
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Vice Chairman Germaine Tomlinson; that CMG be identified in the Trust as the policy
beneficiary; that Wilmington serve as Trustee; and that LaSalle provide the premium
25. On or about January 28, 2006, American General issued life policy No.
UM0036206L (the "Policy") to the Tomlinson Trust. A true and accurate copy of the
26.. The Tomlinson Trust designates CMG as the beneficial owner of life
insurance proceeds under the American General Policy of insurance on the life of
Germaine Tomlinson.
27. On December 31, 2008, American General filed suit against the Trust,
CMG and Mr. Carlson, as Co-trustee, to avoid paying the Trust's claim against the Policy
and claiming that the policy should be declared void ab initio and that CMG lacked an
and benefits from the establishment of the Tomlinson Trust and the purchase and
financing of the American General insurance policy on the life of Germaine Tomlinson.
29. CMG paid the policy premiums through the Trust and CMG remains
30. Coventry, LaSalle and Wilmington each owed a duty to CMG in the
conduct of their due diligence including but not limited to the recommended
establishment of the Tomlinson Trust and recommended purchase of the insurance policy
and the recommended premium fmancing arrangements for the Policy and duty to
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competently determine and advise whether CMG had a recognizable and non-contestable
31. Neither Coventry, LaSalle, nor Wilmington ever discussed with CMG,
Mr. Carlson, or the Tomlinson Trust regarding the risk that an insurance carrier could
contest the insurable interest in Germaine Tomlinson by CMG or that such insurable
interest was uncertain, or the likelihood of dispute in the event of claim against the policy
32. Neither CMG nor Mr. Carlson had any experience in insurance trusts of
the type being recommended by Coventry, LaSalle, and Wilmington, and relied, to their
detriment, and had a right to rely, on the skill and expertise of Coventry, LaSalle, and
33. Neither CMG nor Mr. Carlson knew, or in the exercise of diligence, could
have known that the work by Coventry, LaSalle and/or Wilmington was negligently
performed when the Tomlinson Trust was established or when the insurance Policy was
purchased ..
34. The Tomlinson Trust, CMG and Mr. Carlson first became aware of the
contest by American General regarding the Policy, its coverage, valuation and contest
over the question of insurable interest and related allegations by review of the American
35. Coventry retained sole and exclusive possession of the original Policy
documents, contracts, and records relating to the Transaction and did not disclose all the
documents and information in the Transaction to the Tomlinson Trust or CMG at the date
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the Policy issued. Documents were later disclosed to CMG and the Tomlinson Trust by
36. Coventry, LaSalle and Wilmington each breached their fiduciary duties to
38. Coventry breached its contract to CMG in the transaction and its efforts in
39. Coventry, LaSalle and Wilmington were each negligent in the conduct of
their due diligence in determining whether CMG had an insurable interest in the life of
Germaine Tomlinson.
40. Coventry, LaSalle, and Wilmington breached its duty to the Tomlinson
Trust, CMG, and Me Carlson, both as Co-Trustee and President ofCMG by its negligent
and unreasonable due diligence in the establishment of the Tomlinson Trust and the
LaSalle and Wilmington, acting individually and in concert in the establishment of the
Tomlinson Trust, and its Sub-Trust, and the premium financing Notes and Agreements,
the Trust, its Co-trustee and CMG have been caused to incur damages,. substantial cost,
and expense in their defense to the suit by American General contesting the Policy and
LaSalle and Wilmington, acting individually and in concert in the establishment of the
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Tomlinson Trust, and its Sub-Trust, and the premium fmancing Notes and Agreements,
and as a further consequence of the refusal of American General to pay the claim under
the Policy, the Tomlinson Trust, CMG, and Mr. Carlson, as Co-trustee, President of
CMG, and individually, have been required to incur substantial liability, exceeding
$5,902,391.10 plus accrued interest and attorneys' fees, in the establishment of the Trust
and Policy and for defense against the American General lawsuit and preservation of the
Policy by refmancing of the premium loans and they remain jointly and severally liable
WHEREFORE, Defendants respectfully request that the court enter judgment for
Defendants, jointly and severally, and against Coventry Capital I, LLC, LaSalle Bank,
N.A., and Wilmington Trust Company, and each of them, on Defendants' cross-claims
for their damages including but not limited to repayment and indemnity for the costs and
expenses incurred inthe establishment, protection, and defense of the Tomlinson Trust
and Policy, including all its preservation costs and expenses, in an amount to be
determined at trial, together with Defendants' attorneys' fees and all costs and expenses
of this litigation, and for all other just and proper relief.
Respectfully submitted,
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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing has been filed electronically this
26th day of October, 2010. Notice of this filing will be sent to the following parties by
operation of the Court's electronic filing system. Parties may access this filing through
the Court's system.
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