February 5, 1999
VIA FEDERAL EXPRESS
Judith E. Morris, MD
261 Bumstead Rd.
Monson, MA  01057
     RE:  Judy E. Morris, MD, et al v. Jack Taylor, McGrath Agency, et
al.

Dear Dr. Morris,
    Pursuant to our telephone conversation earlier today, I reiterate my
request that you present in writing any settlement demand ---monetary or
otherwise ---you wish for my client, Jack Taylor to consider.  Upon
receipt of any such demand, I will fulfill my obligation to present it
to my client and will thereafter respond to you in writing.
                                        Very truly yours,

                                        Carolyn G. Sullivan

(This was related to the telephone call we had had as a follow-up to our
meeting.  She contends that her client has no responsibilities to me AT
ALL, and the fact that he had written one letter to UNUM and discussed
my case with my former employer was going above an beyond his duties as
the selling agent of the policies, i.e. his job ended once the policy
was sold.  She hoped I would dismiss him from the case IN RETURN FOR an
affidavit in support of my claim and a PROMISE to voluntarily testify.
Well, I did some research and found that agents do INDEED have
responsibilities for what they sell.  Furthermore I resented the fact
that now that he'd been sued he was willing to help ONLY if I would drop
my claims against him.  There was no spontaneous effort on his part to
right a wrong.  No ethics or sense of justice.  And even when I asked
him to discuss his obligations with some of the agents I'm in touch with
on this list, I was met with considerable resistance.  I.E. Jack Taylor
wants to pretend he has no legal, ethical or moral obligations once he
sells and collects commissions on these policies and he wasn't willing,
except with great reluctance to hear from some of the more reputable
agents I've been in touch with.  This further supports our theories of
negligent procurement in that Jack Taylor wishes to remain INTENTIONALLY
ignorant of the problems associated with the products he sells.  However
during this phone conversation where Carolyn Sullivan kept pressing me
to make a financial demand, I hesistated, not because I don't think I'm
entitled to considerable damages (and unfortunately in this society,
money is how these damages are compensated) for the betrayal of Jack
Taylor, but because I am not in the habit of DEMANDING considerable
amounts of money from people, EVEN IF I think they are guilty.  I think,
and I think that a jury will find, that by Jack Taylor's acts and
omissions, he was indeed part of a Racketeering enterprise that
consisted of selling policies of insurance the company had no intention
of honoring.  Jack Taylor was enriched by the sale of these policies.
And his offer to stop selling UNUM comes far too late for those of us
who are already being victimized.

DEFENDANT JACK TAYLOR'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT
TO RULE 12(b)(6).
Defendant Jack Taylor of the McGrath-Burnham Group (MGB) moves this
Court to dismiss all claims asserted against him by plaintiff Judy
Morris, MD, in the above-captioned complaint.  As grounds for his
motion, Taylor states the following:

(1) In her complaint, plaintiff has failed to allege sufficient facts
against Jack Taylor that, if accepted as true, demonstrate a duty was
owed to her and breached by defendant Jack Taylor and that she was
damaged therefrom;
(2) In her complaint, plaintiff has failed to allege sufficient facts
against Jack Taylor that, if accepted as true, state a claim for which
relief may be granted on her allegations of misrepresentation;
(3) In her complaint, plaintiff has failed to allege sufficient facts
against jack Taylor that, if accepted as true, state a claim for which
relief may be granted on her allegations of violations of G.L. cc93A,
175 & 176;
(4) In her complaint, plaintiff has failed to allege sufficient facts
against Jack Taylor that, if accepted as true, state a claim for which
relief may be granted on her allegations of negligent and intentional
infliction of emotional distress;
(5) In her complaint, plaintiff has failed to allege sufficient facts
against Jack Taylor that, if accepted as true, state a claim for which
relief may be granted on her allegations of conspiracy and other acts
summarized in paragraph seventeen of her complaint;
(6) Plaintiff's claim must be dismissed for lack of personal
jurisdiction.

A memorandum of law further explaining Jack Taylor's position that Dr.
Morris's complaint does not state a claim upon which relief can be
granted is submiteed in conjunction with this motion.

REQUEST FOR ORAL ARGUMENT
Jack Taylor respectfully requests that the Court grant oral argument on
this motion.
Respectfully submitted,
Jack Taylor, By His Attorneys,
Carolyn G. Sullivan, Keith L. Sachs, Melick and Porter


--

DEFENDANT JACK TAYLOR'S MEMORANDUM IN SUPPORT OF HIS MOTION TO DISMISS
PLAINTIFF'S COMPLAINT PURSUANT TO RULE 12(b)(6)

I.  Introduction
Defendant Jack Taylor of the McGrath-Burnham Group (MBG) moves this
Court to dismiss all claims asserted against him by plaintiff Judy
Morris, MD., in the above-captioned complaint.  As grounds for this
motion , Taylor states the following:

(1) In her complaint, plaintiff has failed to allege sufficient facts
against Jack Taylor that, if accepted as true, demonstrate a duty was
owed to her and breached by defendant Jack Taylor and that she was
damaged therefrom;
(2) In her complaint, plaintiff has failed to allege sufficient facts
against Jack Taylor that, if accepted as true, state a claim for which
relief may be granted on her allegations of misrepresentation;
(3) In her complaint, plaintiff has failed to allege sufficient facts
against jack Taylor that, if accepted as true, state a claim for which
relief may be granted on her allegations of violations of G.L. cc93A,
175 & 176;
(4) In her complaint, plaintiff has failed to allege sufficient facts
against Jack Taylor that, if accepted as true, state a claim for which
relief may be granted on her allegations of negligent and intentional
infliction of emotional distress;
(5) In her complaint, plaintiff has failed to allege sufficient facts
against Jack Taylor that, if accepted as true, state a claim for which
relief may be granted on her allegations of conspiracy and other acts
summarized in paragraph seventeen of her complaint;
(6) Plaintiff's claim must be dismissed for lack of personal
jurisdiction..

II.  Background

On November 19, 1998, plaintiff Judy Morris, MD., (Dr. Morris) filed
this action against defendant UNUM Life Insurance Company of America
(UNUM) and fifty-eight other defendants.  defendant Jack Taylor among
them.  Dr. Morris's complaint, comprised of 300 pages, alleges, in its
most basic form, a claim against UNUM for denying Dr. Morris disability
benefits under two such UNUM policies to which she was an "insured."
Beyond this basic element of her claim, Dr. Morris goes on to allege
racketeering, conspiracy and attempted homocide (Footnote 1).
(Footnote 1) As stated by Dr. Morris, "[a]though plaintiff's underlying
claim is Breach of Contract, she contends that UNUM, in concert with all
defendants breached her contract willfully, intentionally, maliciously,
and as part of an organized Racketeering Enterprise involving multiple
schemes." (Complaint at p. 6, paragraph 2A).

In Judy 1990, Dr. Morris allegedly consulted an insurance agent,
defendant Betty Rae Poppo of Springfield, Massachusetts, regarding the
purchase of disability insurance (Complaint at p. 90, paragrah 34.3.A.1)
According to Dr. Morris, Ms. Poppo sold her a UNUM Individual disability
insurance policy.  (Id. at p. 91, paragraph 34.3.A.3)

According to her complaint, in 1995 Dr. Morris was diagnosed with
Chronic Fatigue and Immune Dysfunction Syndrome (CFS) and Fibromyalgia.
(Complaint at p. 83, paragraph 34.1.C)  She further alleges that on
October 28, 1996 she had to leave her employment as an emergency room
physician due to her condition. (Id. at p.84, paragraph 34.1.E)  Dr.
Morris states that in November 1996, after leaving her position, she
learned of a group disability policy held by her employer, Harrington
Memorial Hospital (HMH). (Id. at p. 92. paragraph 34.3.B.1) Defendant
Jack Taylor sold the group policy to HMH. (Id. at p. 199, paragraph
76.2.b).

After leaving HMH, Dr. Morris sought disability coverage under the two
UNUM policies. (Complaint at p. 120, paragraph 55.D)  UNUM denied Dr.
Morris's claim.  Dr. Morris sought Jack Taylor's assistance in
recovering from UNUM. (Id. at pp. 199-200, paragraph 76.2.b).  Jack
Taylor, accoding to Dr. Morris, did "in good fatih attempt to help [her]
when she had difficulty by writing a letter in support of her claim to
UNUM." (Id. at p. 200, paragraph 76.2.b). Dr. Morris alleges that after
writing the letter to UNUM, Jack Taylor offered no further assistance.
(Id.)

III.  Motion to Dismiss Standard
A defendant may move to dismiss an action against it based only on the
pleadings for "failure to state a claim upon which relief can be
granted." Fed. R. Civ. P 12(b) (6).  In its analysis of the motion, the
court must accept "all well-pleaded facts as true and....draw all
reasonable inferences in favor of the [plaintiff]." Washington Legal
Foundation v. Massachusetts Bar Foundation, 993 F. 2d 962, 971 (1st
cir). 1993, citing Coyne v. city of somerville, 972 F. 2d 220, 442-443
(1st cir. 1992).  Although the Court must accept well-pleaded facts as
true, it cann't "accept a complainant's unsupported conclusions or
interpretations of law."
Id., citing United States v AVX Corp., 962 F. 2d 108, 115 (1st cir,
1992).  Further, the Court cannot credit the bald assertions or mere
specious allegations made in the complaint.  See Conley v. Gibson, 355
U.S. 41, 45-46 (1957); see also United States v. AVX Corp., 962 F. 2d
108, 115 (1st Cir. 1989) ("[E]mpirically unverifiable conclusions, not
'logically compelled, or at least supported, by the stated facts,'
deserve no deference.") quoting Dartmouth Review v. Dartmouth College,
889 F. 2d 13, 16 (1st Cir. 1989).

IV.  Argument

Under Massachusetts law, a claim against an insurance agent may be made
in either contract or tort.  Rayden engr. Corp. v. Church, 337 Mass.
652, 659-660 (1958).  In order to succeed on a contract threory, a
plaintiff must show that the agent violated a duty established between
the parties.  Flattery v. Grefory, 397 mass. 143, 145 (1986). In order
to succeed on a tort theory, a plaintiff must show that the agent
violated a duty imposed by law.  Id.  This duty has been imposed on
agents whose relationship with a claimant is by the claimant merely
being a third party beneficiary to the policy pprocured or was to be
procured for the insured.  Rae v. Air-Speed, Inc., 386 Mass. 187, 192
(1982).

A broker or agent hired to procure insurance is obligated to exercise
due care in procuring the requested coverage.  See, e.g., Hartford
National Bank & Trust Co. v. United Truck Leasing Corp., 24 Mass. App.
Ct. 626, 630 (1987); Construction Planners, Inc. v. Dobax Ins. Agency,
Inc., 31 Mass. App. Ct. 672. 677-676( 1991) . The broker or agent must
exercise "reasonable skill and ordinary diligence."  Hartford National
Bank & Trust Co., supra at 630.  The agent has a duty to exercise due
care and diligence in implementing the agency and carrying out the
client's instructions.  See., e.g. Rayden Engineering Corp.v Church, 337
Mass. 652, 661-662 (1958); Rae v. Air-Speed, Inc. 386 Mass. 187, 192
(1982).  The duty is one of reasonableness under the circumstances.
Rayden, supra at 661-663.

As a general rule,  However an insurance agent "assumes no duty to
advise the insured merely by such [agency] relationship.' 16A J.A.
Appleman, Insurance Law and Practice  8836, pp. 64-65(1981) & Supp.
1996.  That rule applies when no "special circumstances of assertion,
representation and reliance" exist to support the imposition of an
additional duty.  Bicknell, Inc. v. Havlin, 9 Mass. App. Ct. 497,
500-501 (1980), quoting Rapp v. Lester L. Burdick, Inc., 336 Mass. 438,
442 (1957).  See also McCue v. Prudential Ins. Co. of america, 371 Mass.
659, 661 (1976); Robinson v. Charles A Flynn Insurance., 39 Mass. App.
Ct. 902 (1995); B. Harnett, Responsibilities of Insurance Agents and
Brokers  3.12 [1](1995) (citing cases).


The facts recited by Dr. Morris demonstrate that she and Taylor has no
contractual relationship.  Dr. Morris secured her own UNUM disability
policy through her insurance agent, Betty Rae Poppo, not Jack Taylor.
The only role Jack Taylor played as an agent discharging his duties
among the plaintiff's prolix of unfounded allegations of conspiracy
theory is that he procured the UNUM disability policy for Dr. Morris's
employer, HMH.  Even if one could assume a duty to plaintiff as a
beneficiary to her employer's disability policy, she alleges no facts
that amount to a breach of that duty.

Dr. Morris does not -- in any one of the 301 pages of her complaint ---
allege that Taylor procured an improper policy on her employer's
behalf.  Nor does Dr. Morris allege that her employer requested a policy
with certain benefits but that Taylor failed to procure such a policy.
No allegation in the complaint suggests that Taylor acted improperly at
the inception of his relationship with HMH.  There are simply no claims
in the complaint against Taylor that form the basis of any traditional
"errors and omissions" causes of action against an insurance agent.

At no time prior to her filing a claim did Dr. Morris deal in any way
with Taylor.  This is not only a fact, but Dr. Morris makes no
allegation in her complaint to the contrary.  After filing her claim,
Dr. Morris solicited Taylor for assistance in attempting to have UNUM
honor her claim.  It is solely in this regard that Dr. Morris seeks to
hold Taylor liable.  Footnote 2.
(Footnote 2)  Plaintiff's additional "breach of contract theories (see
Complaint at p. 121, paragraph 55. F.) are wholly unfouded and need not
be given deference by this Court.  See Conley v. Gibson, 355 U.S. 41,
45-46(1967); United States v. AVX Corp. , 962 F. 2d 108, 115 (1st cir.
1989).

Upon reading Dr. Morris's complaint and accepting all reasonable
inferences as true, it becomes manifest that the only allegation she
makes against Jack Taylor specifically is that he failed to offer
unending assistance to her in her efforts to have UNUM honor her claim.
Dr. Morris does not allege that Taylor failed to process her claim
form.  She does not allege that Taylor did not assist her at all; in
fact, Dr. Morris admits that Jack Taylor did "in good faith attempt to
help [her] when she had difficulty by writing a letter in support of her
claim to UNUM." (Complaint at p.200, paragraph 76.2.b.).  Dr. Morris
alleges that after writing the letter to UNUM, Jack Taylor offered no
further assistance. (Id.)  Even accepting as true Dr. Morris's
allegation that Taylor failed to offer her further assistance, she
states no claim upon which relief can be granted.  Jack Taylor had no
duty, contractual or otherwise, to pressure UNUM into honoring Dr.
Morris's claim.  Further, Jack Taylor had no power to insist that UNUM
pay Dr. Morris her claimed benefits.

In this regard, Dr. Morris is equally unable to demonstrate Jack
Taylor's liability under G.L. c. 93A and G.L. cc 175 & 176, listed
respectively as paragraphs 56 and 57 of plaintiff's complaint.  There is
no specific allegation or colorable evidence that Jack Taylor acted in
an unfair or deceptive manner.  Certainly, there is not colorable
evidence that even had Taylor acted in such a manner that his alleged
actions were the proximate cause of plaintiff's damages.  Any injury or
loss or money or property not proximately caused by an alleged unfair or
deceptive act or practice will not support a G.L. c. 93A Claim.  Walsh
v. Chestnut Hill Bank & Trust Co., 414 Mass. 283 (1993).

B.  No Claims For Which Relief May be Granted are Stated In Paragraph
76.2 Of Plaintiff's Complaint.

Plaintiff's other claims in paragraph 76.2 of her complaint are
similarly without merit.  Plaintiff claims that the UNUM policy at issue
contains a two-year limitation of benefits and that such a limitation is
"probably illegal under the Americans with Disabilities Act of 1990."
(Complaint at p. 199, 76.2.b.)  Dr. Morris alleges that Jack Taylor sold
the policy to HMH despite the "probably" illegal limitation. (Id.)
Plaintiff fails to direct this Court to any precedent demonstrating the
illegality of both such a limitation and the sale of such a policy.
Accordingly, plaintiff has failed to state a claim upon which relief may
be granted because it is "beyond doubt that plaintiff can prove no set
of facts in support of h[er] claim which would entitle h[er] to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Dr. Morris further alleges that Jack Taylor failed to inform her that
another UNUM claimant with CFS was only paid benefits for the
above-mentioned two-year period.  (Id. at p. 200, 76.2.b)  Dr. Morris
alleges that Taylor knew this at the time he was assisting her with her
claim. (Id.)  In this regard, Dr. Morris attempts to claim a
misrepresentation theory against Jack Taylor as stated in paragraph
76.2.  A claim for misrepresentation "requires that a plaintiff show a
false statement of material fact made to induce the plaintiff to act and
reliance on the false statement by plaintiff to h[er] detriment."
McEneaney v. Chestnut Hill Realty Corp., 38 Mass. app. Ct. 573, 575
(1995).  Even assuming the truth of such an omission, there is no
allegations that Taylor made an affirmative represetnation to the
contrary upon which plaintiff relied.  The alleged omission alone does
not give rise to a misrepresentation claim.  Additionally, Taylor was
not the proximate cause of Dr. Morris's claimed damages.  This claim
must be dismissed.

C.  Palintiff's Claims Asserted In Paragraphs 17, 43, & 67-70 of Her
Complaint Are Wholly Meritless and Must Be Dismissed Against Defendant
Jack Taylor.

In addition to the baseless claims discussed above, plaintiff seeks to
hold Jack Taylor liable as part of an industry-wide, government
supported conspiracy to line the pockets of UNUM and other insurers.
Such bald allegations cannot be given any deference by this Court.  See
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also United States v.
AVX Corp., 962 F. 2d 108, 115 (1st Cir. 1989) ("[E]mpirically
unverifiable conclusions, not 'logically compelled, or at least
supported, by the stated facts,' deserve no deference."), quoting
Dartmouth Review v. Dartmouth College, 889 F. 2d 13, 16 (1st cir. 1989).

On page nineteen, paragraph seventeen of her complaint, plaintiff
compresses the next 280 pages of legal conclusions and meritless
allegations into two sentences:

"Plaintiff will prove by a preponderance of the evidence that UNUM
Insurance Company, in concert with government regulatory agencies, sales
agents, employers, and others have engaged in and are continuing to
engage in a pattern of criminal behavior involving rampant mail fraud,
wire fraud, extortion, obstruction of justice, intimidation of
witnesses, violations of numerous state and Federal laws and homocide.
Their sole motive being profiting at the misfortune of their own
disabled policyholder." (Complaint p. 19, paragraph 17).

Despite her claims, plaintiff fails to offer even a scintilla of
evidence that Jack Taylor was a party to a conspiracy in violation of
RICO.  Without question, Dr. Morris has failed to allege any acts by
jack Taylor in connection with such a conspiracy.  Throughout her
complaint, plaintiff alleges that UNUM employed tactics designed to wear
down claimants and drive them to suicide and other acts of desperation.
The plaintiff fails, however, to assert how Jack Taylor participated in
such a scheme.  Without any supportable assertions regarding his role,
plaintiff's allegation that Jack Taylor co-conspired wit UNUM and others
amounts to nothing more than "bald assertions, unsupportable
conclusions, periphrastic circumlocutions and the like" that this Court
cannot credit.  Aulson v. Blanchard, 83 F. 2d 1, 3 (1st Cir. 1996)
Accordingly, all claims against Jack Taylor must be dismissed.  Footnote
3
[(Footnote 3 is just a summary of claims against  other defendants and
I'm not going to retype them here as they take up a whole page and a
half, and I'm getting tired and a stiff neck-JM)]

D.  The Action Must Be Dismissed In Toto Against Jack Taylor Even If
Only the Federal Claims Are Dismissed.

In her complaint Dr. Morris alleges jurisdiction based on both diversity
of Citizenship, 28 U.S.C.  1332, and federal question , 28 U.S. C.
1331.  Without the federal claims, however, plaintiff's claim of
diversity on its own would fail as both she and Taylor aare citizens of
Massachusetts.  The federal rules require complete diversity to exercise
such jurisdiction.  See Lundquist v. Precision Valley Aviation, Inc.,
946 F.2d 8.10(1st Cir. 1991) ("Under 28 U.S.C.  1332 (a)(1), there is
diversity of citizenship if the plaintiff is a 'citizen' of a different
state than all of the defendants.")  see also Borrows v. Robson, 993 f.
Supp. 17, 18 (D. Mass. 1997)  Therefore, even if only plaintiff's
federal claims are dismissed from this action under Fed. R. Civ. P.
12(b)(6), the action must be dismissed in toto against Jack Taylor.

The diversity principle is also subject to discussion in 28 U.S.C. 
1367, the supplemental jurisdiction statute.  Under 28 U.S.C.  1367(b)
claims over which the court had jurisdiction solely by operation of 
1331 should be dismissed when exercising supplemental jurisdiction would
be inconsistent with the requirements of 1332.  Further, according to
28 U.S.C.  1367(c)(3), the distric courts may decline supplemental
jurisdiction if the claims over which it had original jurisdiction have
been dismissed.  These principles further establish that plaintiff's
state-law claims should also be dismissed for failure to state a claim
upon which relief may be granted

V.  Conclusion
Based on the foregoing, Dr. Morris does not state against defendant Jack
Taylor any claim upon which relief can be granted.  Accordingly,
defendant Jack Taylor respectfully requests that his motion to dismiss
the complaint against him be ALLOWED.

Respectfully submitted,
Jack Taylor
by his Attorneys,
Carolyn G. Sullivan
Keith L. Sachs
Melick and Porter

[Ms. Sullivan did also submit a affidavit which fairly accurately
reflected the fact the she and Jack Taylor did indeed make an effort and
meet with me and Jack Artale to confer per local rule 7.1(a)(2) but were
unable to reach consensus without litigation.]




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The URL for this document is:
http://graham.main.nc.us/~bhammel/INS/DOCS/motdis020599.html
Created: February 12, 1999
Last Updated: May 28, 2000