Select Board:
As a resident of Hopkinton (since November of 2004), I wanted to make the select board and the residents of this town aware of the potential impact to the town of Hopkinton and its residents due to your recent actions, as well as the actions of police chief Bennett, in your capacities as officials of this town.
For background, I have been in the insurance industry for over 30 years handling and leading claims for large global insurers, which included handling and managing claims on behalf of public entities. However, I am sending this letter in my capacity as a concerned resident only. I was able to review the insurance coverage available for the town of Hopkinton recently after making a FOIA request, as I was concerned and felt it was in the interest of the residents of this town to understand the potential exposure to civil claims and/or litigation seeking compensatory and potentially punitive damages related to the alleged criminal acts of former police officer and SRO Jay Porter, the release of personal identifiable information (“PII”) of the victim of Jay Porter’s alleged acts and the termination of Tim Brennan. Should claims be pursued by one or both and the insurance available to the town ultimately proves to be limited or restrictive in coverage or policy limits available for the potential exposures, that burden will fall on the town residents as taxpayers.
At a very high level, when a claim or lawsuit is filed against a public entity, public officials, departments and/or boards, the claims are submitted to the public entities’ insurance carrier to defend and indemnify the public entity. The insurance carrier will review the allegations and damages sought to determine if coverage is available under the policies issued to the public entity and will either accept and defend outright, defend under a reservation of rights, or deny coverage.
Potential exposure exists to the town, officials, departments and boards of the town for a.) the alleged acts of Jay Porter back in 2004 and continuing impact; and b.) the public disclosure of the victim’s identity, PII, as well as the disclosure of the identities and PII of the victim’s children. Potential exposure also exists to the town, the select board, Chief Joseph Bennett and possibly others for wrongful termination, retaliation and defamation of Tim Brennan.
The victim and Tim Brennan could seek compensatory damages, consisting of economic damages (medical costs, lost wages etc.) and non-economic damages for pain and suffering, emotional distress and mental anguish, as well as punitive damages. Absent a settlement, the amount of damages awarded will be determined by a jury of our peers. The current litigation environment is resulting in record-setting verdicts that are often driven by bad facts that anger the jurors. I would suggest to you that you have seen a sampling of a jury of our peers at the recent select board meetings, and they are angry.
The town has the following insurance coverage available effective from 7/1/23 – 7/1/24:
- Primary General Liability (“GL”) coverage of $1,000,000 per occurrence/$3,000,000 aggregate. Defense costs are in addition to the policy limits.
- Cyber Liability, including Multimedia Liability (“Cyber”) coverage of $1,000,000 per claim and in the aggregate. Defense costs erode the policy limit; in other words, any money spent to defend and investigate a claim or lawsuit depletes the $1,000,000 policy limit.
- Public Officials Liability, including Employment Practices Liability (“EPL”) of $1,000,000 per claim/$3,000,000 aggregate. There is also a separate $150,000 per-person back wages limit. Defense costs are in addition to the policy limits.
- Umbrella Liability coverage (“Umbrella”) of $5,000,000 per occurrence or claim and in the aggregate for any scheduled underlying insurance. The GL and EPL policies are scheduled on the Umbrella policy, but the Cyber policy is not. Should any of the claims under the GL or EPL exceed the $1,000,000 limit for each, they would impact the $5,000,000 Umbrella limits that are shared by both. In other words, the $5,000,000 Umbrella limits are capped at a total of $5,000,000 above one or both the GL and/or EPL policies.
In summary, total policy limits potentially available for the town in the current policy period are $8,000,000.
Potential Limitations / Exposure to Residents
Assuming the claims are fully covered and are limited to $8,000,000 in the current policy year (not a safe assumption on either), any amount above $8,000,000 in the aggregate would fall on the town and ultimately the residents.
Most Cyber policies cover compensatory, punitive, exemplary, or multiplied damages. The town’s policy has total limits available of $1,000,000 assuming there are no other claims against the current policy year. Any settlement or award for multimedia liability above $1,000,000, or the amount left intact after expenses incurred to defend, would fall on the town and ultimately the residents.
Cyber policies often exclude coverage for conduct based on, arising out of, or relating to any criminal, intentional, dishonest, fraudulent or knowing wrongful act, error or omission, or any willful violation of any statute, rule or law by an Insured, but often only excludes if a final and non-appealable adjudication adverse to the Insured(s) establishes such conduct.
In other words, if the Chief, the Town and/or Amy Ritterbusch are found guilty of a criminal, intentional, fraudulent or knowing disclosure of the Victim’s ID/PII or of a willful violation of any statute, rule or law, there would be no coverage under the Cyber policy and any settlement or award would fall on the town and ultimately the residents.
Most Primary GL, EPL and Umbrella policies exclude coverage for punitive or exemplary damages. Any settlement or award of punitive damages would not be covered by these policies and would therefore fall on the town and ultimately the residents.
Any settlement or award of back wages in excess of $150,000 for Tim Brennan would fall on the town and ultimately the residents.
Lastly, most policies for public entities contain consent clauses, which means the insurance carrier is required to get the Insured’s (Town of Hopkinton) consent before settling any claims. However, the clause also contains a limitation that the Insured’s (Town of Hopkinton) consent shall not be unreasonably withheld, otherwise any award that exceeds the amount of the settlement recommended by the insurance carrier will fall on the town and ultimately the residents. Let’s hope the town listens to their insurance carrier when and if they believe settlements should be reached.
The potential for future civil claims or litigation clearly exists. The potential for a very large uninsured exposure to the residents of this town clearly exists should claims be pursued. My hope is that you will seek guidance from your insurance carrier and the lawyers they will likely recommend to you who specialize in handling civil litigation for sexual abuse, invasion of privacy, wrongful termination, retaliation and defamation. The carrier and the lawyers retained to defend the town will understand the underlying facts and true exposure for what is currently known and what may be learned through discovery and will provide their expertise and guidance on how to limit the exposure to the town and the residents of this town. Please listen to them.
Respectfully submitted,
Dave Crowe, Hopkinton
Dave….this is an incredibly cogent letter. The Chief and the Select Board have put the residents of Hopkinton in a very precarious and potentially costly position. Were the SB and the Chief just negligent or did they display reckless intent? There is NO doubt the Select Board and the Chief are culpable on wrongful termination, as well as the public disclosure of a victim.
There is clearly no confidence in any of the Board members or the Chief. They need to exit stage right before they do any more harm to the Town. All of them should resign immediately.
“THINKING”
May their have conjecturally been ‘NonFeasance’ on the conjectural part of our ‘Town Manager’?
Depending on what advice, or non-advice, he gave to the ‘Board Of Selectmen’?
That may come out in the Sgt’s, Termination Hearings? Plus future numerous Court Actions?
Plus conjecturally similar on what the ‘Town Counsel’ suggestively advised the ‘Board Of Selectmen’?
I miss the old days when we had a ‘Town Admin’ for #16 Years.
…and the hits just keep on coming!
Just when you though it couldn’t get any worse. Thank you Dave for bringing such a complex subject to us in a form that we all can understand clearly.
Great letter Dave!
Any payouts due to litigation against the town would be paid out of a special assessment to citizens property taxes. The most recent census data I can find shows 6,674 homes in Hopkinton. If the town was ordered to pay out $10M above what is covered by their insurance, the average home owner would be on the hook for about $1,500. Remember this is for the average home owner (median value of $704,000). if your home is valued at $1.5M you are going to end up paying a much larger portion of the settlement than someone whose home is valued at $500k. Don’t forget, the Porter trial hasn’t even begun. Those damages will also need to be paid out as well.
What a total mess we residents are in! Any new schools and additions should be put on a way-back burner. No expenses should be brought forward until we residents understand how much our taxes will increase by this mess getting settled!
There are a lot of very smart people in this town, and Dave Crowe is clearly one of them. Most of the time, the residents of this town go about their busy lives, and are not aware of what is going on “under the hood” of town government. Not any more. Thanks to HopNews, we are getting a shining beacon that is lighting up dark corners that previously were hidden. And the residents are not happy with what they are seeing. One of my favorite moments was when town officials tried to paint HopNews as being “in the wrong” by submitting a “false” invoice. In other words, shoot the messenger instead of acknowledging that the financial controls in this town could be better. Otherwise, how did this invoice get paid? This is just one example out of many where we owe a tremendous debt of gratitude to HopNews for exposing the Truth with a capital “T”. Thank you, HopNews!
*”Excellent Article and Posts”*
Yes this may be a ‘BIG FINANCIAL BLOW” to the Taxpayers/Owners of Property of Hopkinton!
Plus Real Estate Professional in Town? Can you say “Disclaimer” in Real Estate Sales???
“Plus who would wish to move to Hopkinton, when they find this big “Financial Liability” over their heads,on potential Real Estate they may wish to purchase in Hopkinton? Residential and Commercial Real Estate.
Plus may present Owners of Residential and Commercial Real Estate in Hopkinton, face ”major Legal Liability”? If they do not DISCLAIM this very bad financial news IMO, in their Real Estate Disclaimer if they may wish to Sell their Property? Residential or Commercial.
Time for our Town Govt, to put their ‘Thinking Caps On’, if they can find them?, and lessen this Monstrous $$ Liability to Hopkinton Taxpayers! A judicious Settlement for both Party’s on the Police Sargent they wrongfully Terminated IMO, to start!
Dave – Thank you for sharing all of this. You spent a lot of time researching our town’s specific insurance policy and laying out how it works. I’ve read it several times because I’m not familiar with how these work, and because the financial ramifications were alarming.
I wonder if the Select Board even knew all of this before they received your letter. They should have; however, that would tell us they knew their decisions had severe financial implications for the residents they were elected to serve. If they didn’t, then it just adds to the long list of negligent decisions.
The BOS had many residents speak out at their meetings that shared opinions on the Brennan case; however, they also heard from EXPERTS in the areas surrounding this case, including a woman who works with sexual assault, rape & sex-trafficked victims, a man who works in law enforcement and handles cases like this in arbitration, several lawyers, and they’ve received letters from rape survivors. Nothing mattered.
The expert advice should have mattered. Not because it was free, or because it was from their residents, but because it was factual, proven information on areas the BOS should NOT be expected to know, and should have sought out experts in the first place (would have been a fraction of the wasted $30,000).
It’s baffling that all of these people were “free resources,” but the BOS only went through the motions of appearing to listen.
And then there’s your expertise. You have explained our insurance policy in a way I doubt anyone has ever had it so clearly explained.
You have seen all their decisions go against what experts suggested and now tied it to how this could affect every resident.
Thank you for the time you invested in helping us understand this. What will it take for every Hopkinton resident to look at the bigger picture of the incompetence of our Select Board and realize this isn’t just about one case?
Who remembers the Peter Pocaro lawsuit against the SB and the town?
Dave,
Thank you for your clear and concise explanation of how this might work. While I’m not going to repeat what has already been stated because it couldn’t be stated better, I do think the residents should start considering filing a lawsuit against the SB and Bennett.
Maybe this is premature, but in no way should we be responsible for paying out of our pocket for the criminal acts by these parties and the flat out INCOMPETENCE!