Civ. A. No. 89-2180-N | D. Mass. | Jul 15, 1991
ORDER RE: MOTION TO DISSOLVE EX PARTE ATTACHMENTS OF DEFENDANTS ARSENAL AUTO REPAIRS, INC., ZAREH TIRINKIAN, LENA TIRIN-KIAN, JACK MARKARIAN, PETER MARKARIAN, TARJA MARKARIAN, AND HAROUTIOUN MARKARIAN (DOCKET ENTRY # 217)
The Aetna Casualty & Surety Company (hereinafter “Aetna”) brought this action
The complaint in the instant action was filed on October 2, 1989. On the same day the plaintiff, Aetna, filed forty-five ex parte motions for trustee process and attachment with respect to bank accounts and real estate of the defendants. These motions were allowed by the district judge to whom this case is assigned without a hearing. The above named defendants (hereinafter the “Arsenal defendants”), whose assets have been attached, have moved to dissolve the ex parte trustee process and attachment orders on the basis that the plaintiff cannot prove the existence of a reasonable likelihood of recovering a judgment against the Arsenal defendants. Specifically, the Arsenal defendants moved to dissolve the following attachments: (1) the ex parte attachment by trustee process of Lena Tirinkian for Coolidge Bank and Trust (Docket Entry # 41); (2) the ex parte attachment on the real estate of Lena and Zareh Tirinkian consisting of 102 Long Meadow Road, Belmont, Massachusetts (Docket Entry # 58); (3) the ex parte attachment on real estate of Zareh Tirinkian held as trustee consisting of 59 Channing Street, Belmont, Massachusetts (Docket Entry # 59); (4) the ex parte attachment by trustee process of Arsenal Auto Repairs, Inc. (hereinafter “Arsenal”) for Coolidge Bank and Trust (Docket Entry # 06); (5) the ex parte attachment by trustee process of Zareh Tirinkian for Coolidge Bank and Trust (Docket Entry # 20); (6) the ex parte attachment of the 1976 Rolls Royce, VIN 24110 belonging to Zareh Tirin-kian (Docket Entry # 54)
Pursuant to the request of the parties, this court held numerous evidentiary hearings with respect to this motion.
DISCUSSION
Fed.R.Civ.P. 64, which governs the procedure pursuant to the prejudgment remedies of attachment and trustee process, provides in pertinent part:
all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held, existing at the time the remedy is sought.
Id. Mass.R.Civ.P. 4.1 and 4.2 articulate the state statutes controlling motions for attachment and trustee process. In order to enter an order of approval of an attachment or trustee process, the court must find the existence of a reasonable likelihood that the plaintiff will recover judgment in
Mass.R.Civ.P. 4.1(g) and 4.2(h) provide the procedure with respect to the dissolution of ex parte attachments.
This court is of the opinion that the affidavits submitted by the defendants (Docket Entry ## 218; 219; 220; 221; and 222) are sufficient to challenge the findings necessary to impose an ex parte attachment. This court will, accordingly, adjudge the testimony presented at the numerous evi-dentiary hearings as if the plaintiff had sought the instant attachments with notice and a hearing. The burden, accordingly, rests upon the plaintiff to demonstrate the necessary predicates for the attachments.
I. Reasonable Likelihood of Recovering Judgment
“[T]he central question on the motion for approval of attachment is whether plaintiffs are likely to prevail on the merits and obtain damages in the necessary amount.” Anderson Foreign Motors Corp. v. New England Toyota Distributor, Inc., 475 F. Supp. 973" court="D. Mass." date_filed="1979-08-29" href="https://app.midpage.ai/document/anderson-foreign-motors-inc-v-new-england-toyota-distributor-inc-1688151?utm_source=webapp" opinion_id="1688151">475 F.Supp. 973, 978 (D.Mass. 1979); Anderson Foreign Motors Corp. v. New England Toyota Distributor, Inc., 492 F. Supp. 1383" court="D. Mass." date_filed="1980-07-10" href="https://app.midpage.ai/document/anderson-foreign-motors-inc-v-new-england-toyota-distributor-inc-2308829?utm_source=webapp" opinion_id="2308829">492 F.Supp. 1383 (D.Mass.1980) (affirming order of attachment issued in 1979). A showing of reasonable likelihood of success on the merits is a prerequisite for court approval of an attachment. Boston Trading Group, Inc. v. Carter, 561 F. Supp. 1175" court="D. Mass." date_filed="1983-04-18" href="https://app.midpage.ai/document/boston-trading-group-inc-ex-rel-collora-v-carter-8880514?utm_source=webapp" opinion_id="8880514">561 F.Supp. 1175, 1176 (D.Mass.1983). Mass.R.Civ.P. 4.1 and 4.2 are silent as to the quality of evidence or quantum of proof required to obtain court approval of an attachment.
Aetna filed the instant action against the Arsenal defendants and others based on violations of: RICO, sections 1962(c) and (d), (Counts I, II, IV, V, VI, VII, VIII and IX); civil conspiracy (Count X); common law deceit (Count XI); and Mass.Gen.L. ch. 93A, §§ 2 and 11 (Count XIII); breach of contract (Count XIV); breach of fiduciary duty against the “appraiser defendants” (Count XII).
A. RICO Claim
Several of the counts in the amended complaint, as noted above, allege violations of RICO based upon the defendants “racketeering” activity in connection with the submission of fraudulent insurance claims. The plaintiffs allege, in “Chain VIII” and Count VI of the amended complaint, that the Arsenal defendants engaged in several schemes to defraud Aetna in connection with the submission of fraudulent insur-
The plaintiff, in order to state a claim under RICO, must allege: (1) the existence of an enterprise engaged in or affecting interstate or foreign commerce; (2) a pattern of racketeering activity; (3) a nexus between the pattern of racketeering activity and the enterprise; and (4) a resulting injury to its business or property. See Sedima, S.P.R.L. v. Imex Co., 473 U.S. 479" court="SCOTUS" date_filed="1985-07-01" href="https://app.midpage.ai/document/sedima-s-p-r-l-v-imrex-co-111508?utm_source=webapp" opinion_id="111508">473 U.S. 479, 496-98, 105 S. Ct. 3275" court="SCOTUS" date_filed="1985-07-01" href="https://app.midpage.ai/document/sedima-s-p-r-l-v-imrex-co-111508?utm_source=webapp" opinion_id="111508">105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) (stating elements of RICO violation); see also Lincoln House, Inc. v. Dupre, 903 F.2d 845" court="1st Cir." date_filed="1990-05-16" href="https://app.midpage.ai/document/lincoln-house-inc-v-paul-w-dupre-541943?utm_source=webapp" opinion_id="541943">903 F.2d 845, 846 (1st Cir. 1990) (discussing proof necessary to establish violation of RICO).
(1) Enterprise
With respect to the instant defendants, the plaintiff charges that Arsenal constitutes an enterprise and that P & B, Atlas, and Arsenal form an association in fact enterprise. “The term ‘enterprise’ is defined as including ‘any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.’ ” United States v. Turkette, 452 U.S. 576" court="SCOTUS" date_filed="1981-06-17" href="https://app.midpage.ai/document/united-states-v-turkette-110529?utm_source=webapp" opinion_id="110529">452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981) (quoting 18 U.S.C. § 1961(4)). “Section 1961(4) describes two categories of associations that come within the purview of the ‘enterprise’ definition. The first encompasses organizations such as corporations and partnerships, and other ‘legal entities.’ The second covers ‘any union or group of individuals associated in fact although not a legal entity.’ ” Id. at 581-82, 101 S. Ct. 2524" court="SCOTUS" date_filed="1981-06-17" href="https://app.midpage.ai/document/united-states-v-turkette-110529?utm_source=webapp" opinion_id="110529">101 S.Ct. at 2528.
The existence of such an “enterprise” is proved by evidence of a continuing organization and by proof that the individual associates function as an ongoing unit. Id. at 583, 101 S. Ct. 2524" court="SCOTUS" date_filed="1981-06-17" href="https://app.midpage.ai/document/united-states-v-turkette-110529?utm_source=webapp" opinion_id="110529">101 S.Ct. at 2528. The enterprise “is an entity separate and apart from the pattern of activity in which it engages ... [t]he existence of [which] ... at all times remains a separate element which must be proved ...” Id. at 583, 101 S. Ct. 2524" court="SCOTUS" date_filed="1981-06-17" href="https://app.midpage.ai/document/united-states-v-turkette-110529?utm_source=webapp" opinion_id="110529">101 S.Ct. at 2528.
Arsenal, having been a company organized for the purpose of performing mechanical and body work on automobiles, constitutes an “enterprise” for RICO purposes.
The testimony of Mr. Tirinkian as well as that of Robert Hanna, an employee of Aet-na, are sufficient to demonstrate a reasonable likelihood of success in establishing an enterprise consisting of a network of at least one corrupt appraiser and Arsenal autobody.
Although clearly issues of fact and law remain to be finally determined, the plaintiffs have, based upon the evidence presented at the hearings in question, sufficiently demonstrated a reasonable likelihood of success in establishing the existence of an enterprise through an association in fact involving P & B, Atlas, Arsenal and at least one Aetna appraiser.
In addition, the plaintiffs have provided sufficient evidence for this court to conclude that they have demonstrated a reasonable likelihood of success in establishing that the purpose of the enterprise was to defraud the plaintiff.
(2) Pattern of Racketeering Activity
The definition of a pattern requires at least two acts of racketeering activity within a ten year period. 18 U.S.C. § 1961(5). “The target of [RICO] is thus not sporadic activity. The infiltration of legitimate business normally requires more than one ‘racketeering activity’ and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce a pattern.” Eastern Corporate Federal Credit Union v. Peat, Marwick, Mitchell & Co., 639 F. Supp. 1532" court="D. Mass." date_filed="1986-07-30" href="https://app.midpage.ai/document/eastern-corporate-federal-credit-union-v-peat-marwick-mitchell--co-1746115?utm_source=webapp" opinion_id="1746115">639 F.Supp. 1532, 1534 (D.Mass.1986) (citations omitted). A pattern may be established by allegations of: long term racketeering activity; continuing racketeering activity which is part of an entity’s regular course of business; a long-term association that exists for criminal purposes; or where the acts alleged are part of a regular way of conducting an ongoing noncriminal business. H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229" court="SCOTUS" date_filed="1989-06-26" href="https://app.midpage.ai/document/h-j-inc-v-northwestern-bell-telephone-co-112323?utm_source=webapp" opinion_id="112323">492 U.S. 229, 109 S.Ct. 2893, 2902, 106 L.Ed.2d 195 (1989).
In determining whether the acts alleged are sufficient to support a claim of racketeering activity, the court must consider the following factors: “(1) the number of independent victims; (2) the number of participants; (3) the purpose of the activity; (4) the result of the activity; (5) the method of commission; (6) the number of transactions; (7) whether the scheme is open-ended; and (8) the duration of the activity.” Framingham Union Hospital, Inc. v. Travelers Insurance Co., 721 F. Supp. 1478" court="D. Mass." date_filed="1989-09-27" href="https://app.midpage.ai/document/framingham-union-hospital-inc-v-travelers-insurance-1419994?utm_source=webapp" opinion_id="1419994">721 F.Supp. 1478, 1484 (D.Mass.1989); see State Farm Mutual Automobile Insurance Co. v. Rosenfield, 683 F. Supp. 106" court="E.D. Pa." date_filed="1988-01-11" href="https://app.midpage.ai/document/state-farm-mutual-automobile-insurance-v-rosenfield-2268167?utm_source=webapp" opinion_id="2268167">683 F.Supp. 106, 110 (E.D.Pa.1988) (discussing requirements of proof for demonstration of pattern of racketeering activity).
The separate acts of racketeering must also reflect “continuity” and “relationship” in order to establish a pattern. “Continuity may be inferred from all of the surrounding circumstances, including the acts themselves or the nature of the enterprise.” H.J., Inc. v. Northwestern Bell Telephone Co., 109 S. Ct. 2893" court="SCOTUS" date_filed="1989-06-26" href="https://app.midpage.ai/document/h-j-inc-v-northwestern-bell-telephone-co-112323?utm_source=webapp" opinion_id="112323">109 S.Ct. at 2902. In addition, a relationship may be demonstrated through establishment of “the same or similar purposes, results, participants, victims, or methods of commission, or [that the
Application of these factors to the instant action dictates that the plaintiff has demonstrated at least a reasonable likelihood of success on the merits of establishing the existence of a pattern of racketeering activity.
Specifically, the evidence presented at the hearings on the instant motion showed the following. Initially, with respect to the defendants, the Markarians, the testimony indicated that the Markarians submitted claims to Aetna with respect to two Mercedes: one claim for a 1970 Mercedes in March of 1988 and one for a 1981 Mercedes in December of 1988. (June 29, 1990 transcript, p. 38).
Further, Mr. Hanna testified that the Markarians received two checks for $5,000 and one for $2108.45 in connection with one of the above two claims; and one check for $5,000 and one for $1761.36 in connection with the other claim in an effort to avoid the requirement that an agent is forbidden from issuing a check for an amount greater than $5,000. (August 22, 1990 transcript, pp. 102-114).
The following alleged accidents occurred with respect to the vehicles owned by the Tirinkians: (1) one involving a 1986 Mercedes in approximately September of 1988 when Mr. Tirinkian had the car and the “glass was broken”; (2) one involving the Mercedes on April 9, 1989, when Mr. Tirin-kian took the car to a movie theater; (3) one involving a green Rolls Royce on approximately January 13, 1988 when Mr. Tirinkian was in an accident; (4) one when Mr. Tirinkian had the green Rolls Royce shipped from Boston to Florida in November of 1988; (5) one when the green Rolls Royce was shipped from Florida to Boston in May of 1989; (6) one involving Mr. Tirin-kian’s white Silver Shadow Rolls Royce on June 4, 1988; and (7) one involving the white Rolls Royce when Vachig Petrosyans had the car on June 23, 1988.
Mrs. Tirinkian testified that she never saw any of the damage to the cars from any of the above alleged accidents.
With respect to the claim for the damage to the 1986 Mercedes in September of 1988, Mr. Tirinkian testified that the vehicle was damaged while parked. He could not, however, identify a specific individual by name who saw the damaged vehicle at the time
Mr. Tirinkian testified, with respect to the accident involving the green Mercedes in April of 1989, that he was alone when the accident occurred. Brian Louiseau completed the appraisal for the green Mercedes in conjunction with that accident. (June 29, 1990 transcript, p. 211 and July 27, 1990 transcript, p. 171). When questioned, however, Mr. Tirinkian was unable to point to any receipts or invoices for parts or work in connection with the damage repair on the Mercedes after the April, 1989 accident. (June 29, 1990 transcript, p. 212). Further, Mr. Tirinkian could name only one other individual who had seen the damage to the Mercedes, and that person was not called to testify. In addition, Mr. Tirinkian did not have any pictures or other documentation of the damage. (June 29, 1990 transcript, p. 213).
With respect to the alleged accident involving the green Rolls Royce in January of 1988, Mr. Tirinkian testified that he was driving the car on Route 93 in New Hampshire when he lost control on the ice. (June 29, 1990 transcript, pp. 184-6). Mr. Tirinki-an submitted an accident claim as a result of that occurrence through an insurance carrier other than Aetna. Subsequently, Mr. Tirinkian submitted a workman’s compensation claim as a result of that alleged accident through Aetna. (June 29, 1990 transcript, p. 188). Mr. Tirinkian received $8,500 from that claim. He did not, however, present an appraisal demonstrating the damages caused by the accident. In addition, there were no witnesses to the accident. (June 29, 1990 transcript, p. 190).
With respect to the claim for the damage to the green Rolls Royce allegedly occurring during transit from Boston to Florida in November of 1988, Mr. Tirinkian testified that the car was repaired under his supervision at the Hi-Tech Chassis Body Shop in Pompano Beach, Florida. (June 29, 1990 transcript, p. 222).
Carole Chrzanowski, an employee of Forge Motors Auto Transport (“Forge Transport”), testified that the spoiler on the green Rolls Royce was cracked prior to the time the vehicle was transported. (July 27, 1990 transcript, pp. 68 and 74). Moreover, plaintiff’s Exhibit #5, which was marked for identification, acknowledging the damaged condition prior to transport, bears Mr. Tirinkian’s signature.
Mr. Rossell was also shown plaintiffs Exhibit # 5, a Forge Transport document, and he indicated that that document differed from the one he was shown by Mr. Tirinkian at the time of the inspection insofar as it did not include the handwritten remarks on the form provided by Mr. Tirin-kian and that the document provided by Mr. Tirinkian was yellow or off-white in color. (August 22, 1990 transcript, pp. 130-2; see plaintiff’s Exhibit ## 5; 8 (Forge documents from November, 1988 and May, 1989, marked for identification)). Mr. Rossell further testified that the mileage of the vehicle, as reflected on the transport document was 22,542 while the mileage on the appraisal is stated as 22,-755. (August 22, 1990 transcript, p. 136). In addition, Mrs. Tirinkian submitted a rental receipt for a vehicle allegedly rented from Vahe’s Auto Repair in Massachusetts from November 23, 1988 through December 28, 1988, yet Mr. Tirinkian testified that the Tirinkians were in Florida during at least a portion of that time period.
Mr. Rossell could not identify anything which would indicate that a reinspection of the green Rolls was conducted in December of 1988 or January of 1989. (August 22, 1990 transcript, p. 139). In addition, Mr. Tirinkian could not point to anything other than a document labeled as an appraisal documenting the reinspection. (October 2, 1990 transcript, p. 252; see Plaintiff’s Exhibit # 6 (appraisal dated December 12, 1988, marked for identification)).
Mr. Tirinkian testified that approximately thirteen thousand dollars was owed to him by Aetna, but never paid, for the damage caused to the green Rolls when it was subsequently shipped from Florida to Boston in 1989. (June 29, 1990 transcript, p. 163). Mr. Tirinkian, as in the situation when the car was originally shipped from Boston to Florida, signed a “Forge Motor Auto Transport Vehicle Delivery and Inspection Report” indicating that he received the car in good condition. (June 29, 1990 transcript, p. 232).
Ms. Chrzanowski testified that the car was received in damaged condition prior to the shipment of the vehicle from Florida to Boston. (July 27, 1990 transcript, p. 80). Mr. Hanna also testified that most of the damage found by the adjuster upon inspection after shipment of the Rolls Royce from Florida to Boston was the same as that observed by the adjuster in Florida.
Lena Tirinkian again signed a completed work claim form, this time indicating that all of the repair work was completed at Watertown Foreign Car Center. (June 29, 1990 transcript, p. 234). Mr. Tirinkian, however, indicated that the body work was completed at Arsenal. (June 29, 1990 transcript, p. 235). Again, Mr. Tirinkian could not point to any records to substantiate expenditures in parts, etc. to complete the work. (June 29, 1990 transcript, p. 238). Brian Louiseau completed the appraisal and a reinspection with respect to that claim.
Mr. Tirinkian testified that, with respect to the white Rolls Royce accident in June of 1988, he was driving the vehicle when he was hit from behind. (June 29, 1990 transcript, pp. 135-37). There were, however, no witnesses to that accident, and the police did not go to the scene of the accident. (June 29, 1990 transcript, p. 192). Steven Dexter appraised the white Rolls twice after that accident.
Vachig Petrosyans was allegedly the driver of the 1976 white Rolls Royce, Silver Shadow (belonging to Mr. Tirinkian) in an accident that occurred on June 23, 1989. That vehicle was the subject of one of the attachments at issue in the defendant’s motion to vacate the ex parte attachments (Docket Entry # 217).
In addition, Mohammad Haghighi testified to several instances where he, with the help of Peter Arhaggelidis, Sean Halloran, and P & B or Rodeo, staged a fraudulent accident and submitted a claim to Aetna for the staged accident. (October 2, 1990 transcript, pp. 167-78). As a result of that action, Mr. Haghighi received checks from Aetna in the approximate amount of $5,600 and $800. (October 2, 1990 transcript, pp. 173 and 176).
This court further notes the testimony of Mr. Timothy Cummings at the hearing on January 17, 1991. Mr. Cummings asserted his right not to answer counsel’s questions under the fifth amendment when asked whether he had ever staged any fraudulent claims with Zareh Tirinkian, Lena Tirinkian, Arsenal Auto Repairs, Inc. d/b/a Arsenal Autobody, Tarja Markarian, Jack Markarian, or Haroutioun Markarian a/k/a Peter Markarian.
In addition, this court notes, but does not find it necessary at this time to recount in detail, the existence of other claims filed by other defendants in which the Arsenal defendants are at least tangentially implicated.
The above elicited testimony is sufficient to demonstrate a reasonable likelihood of success on the merits in establishing a pattern of racketeering activity. The testimony indicates that the defendants fraudulently tried on multiple occasions to collect from Aetna on numerous vehicles. The claims were submitted over an extended period of time and involved the use of the United States mails. The testimony also indicates a commonality among the independent claims, thus meeting the requirement that the acts be “related.” The testimony, accordingly, establishes at least a reasonable likelihood of success in demonstrating numerous schemes to defraud the plaintiff which results in a violation of RICO, notwithstanding that the insurance company was the victim in each instance. See State Farm Mutual Automobile Insurance Co. v. Rosenfield, 683 F. Supp. 106" court="E.D. Pa." date_filed="1988-01-11" href="https://app.midpage.ai/document/state-farm-mutual-automobile-insurance-v-rosenfield-2268167?utm_source=webapp" opinion_id="2268167">683 F.Supp. at 110 (four acts of mail fraud over two year
(3) Nexus
The plaintiff must also demonstrate a nexus between the pattern of racketeering activity and the enterprise. The plaintiff demonstrated at least a reasonable likelihood of success in proving the existence of a sufficient nexus between the racketeering activity and the enterprise’s affairs. “It is only when the predicate acts are unrelated to the enterprise or the actor’s association with it that the nexus element is missing.” State Farm Mutual Automobile Insurance Co. v. Rosenfield, 683 F. Supp. 106" court="E.D. Pa." date_filed="1988-01-11" href="https://app.midpage.ai/document/state-farm-mutual-automobile-insurance-v-rosenfield-2268167?utm_source=webapp" opinion_id="2268167">683 F.Supp. at 110. Such is not the situation in this case.
(4) Resulting Injury
The plaintiff has sufficiently demonstrated a reasonable likelihood of success in establishing a resulting injury caused by the defendants’ acts of racketeering. Although the specific amount of injury is not clear, the testimony does depict losses incurred by the plaintiff as a result of the predicate acts of racketeering. (See Affidavit of Robert Hanna, Docket Entry # 60; testimony of Robert Hanna; and testimony discussed supra).
While clearly questions of law and fact exist concerning the allegations against the defendants, this court concludes, in light of the testimony and other evidence adduced at the hearings held in this matter, that Aetna demonstrated sufficient evidence to support the required finding of Aetna’s reasonable likelihood of recovering judgment in this action against the Arsenal defendants.
II. Amount of Attachment
Aetna asserts, in support of the instant motion, that the damages sustained as a result of the defendants’ allegedly wrongful and deceptive practices exceed the amount of the attachments at issue. Aetna also states, in support of the attachments, that it is entitled to treble damages as well as attorneys fees in a civil RICO action.
The defendants contend, on the contrary, that the plaintiff has provided no factual or evidentiary support for the amount of damages caused by the defendants’ actions.
As previously discussed, the party seeking an attachment must set forth with specificity the underlying facts in support of the attachment. This requirement includes proof of the reasonable likelihood of plaintiff’s recovery of a judgment equal to or greater than the amount of the attachment. Mass.R.Civ.P. 4.1. The attachments at issue in the instant motion include the following: (1) attachment on trustee process of the bank account of Arsenal Auto Repair, Inc. at Coolidge Bank and Trust in the amount of $17,041.69; (2) attachment on trustee process of the bank account of Zareh Tirinkian and Lena Tirinkian at the Coolidge Bank and Trust in the amount of $3,097.52; (3) attachment on trustee process of the account of Tarja Markarian and Peter Markarian a/k/a Haroutioun Markarian at the Bank of New England in the amount of $1,208.10 (June 29, 1990 transcript, p. 19); (4) attachment on the real estate of Zareh Tirinkian and Lena Tirinkian located at 102 Longmeadow Road, Belmont, Massachusetts in the amount of $438,960.00;
While this court does not find as specific proof of damages in this action as it would like, it does find the existence of evidence sufficient to demonstrate a likelihood of proving an amount of damages in excess of the amount of the attachments at issue.
III. Amount of Liability Insurance
A court must find, prior to approving an attachment, the plaintiff’s reasonable likelihood of recovering judgment equal to or greater than the amount of the attachment sought over and above “any liability insurance shown by the defendant to be available to satisfy the judgment.” Mass.R.Civ.P. 4.1(c).
No proof of the existence of any liability insurance has been demonstrated in this action. The defendant is responsible for showing the availability of liability insurance to satisfy the judgment or to offset the amount of the attachment. Mass. R.Civ.P. 4.1(c). Given that the defendants fail to present specific facts to warrant a finding to the contrary, this court concludes that the plaintiff has satisfied the insurance requirement insofar as the amount of the attachment sought exceeds the liability insurance available, if any.
CONCLUSION
The Motion to Dissolve Ex Parte Attachments of Defendants Arsenal Auto Repairs, Inc., Zareh Tirinkian, Lena Tirinkian, Jack Markarian, Peter Markarian, Tarja Markarian, and Haroutioun Markarian (Docket Entry #217) is, therefore, DENIED in accordance with the above discussion. The motion is, however, MOOT insofar as it concerns the attachment of the 1976 Rolls Royce, VIN 24110 belonging to Zareh Tirinkian (Docket Entry # 54; see Docket Entry #754).
. The defendant subsequently, on January 15, 1991, filed a motion to dissolve the ex parte attachment of Zareh Tirinkian’s 1976 Rolls Royce, VIN 24110 to which the plaintiff assented. (Docket Entry # 754). The instant motion is, therefore, moot at this time insofar as it concerns the above stated attachment.
. This court recognizes that the ex parte motions for attachment and attachment by trustee process include an amount far in excess of the value of the property actually attached. For purposes of the present motion, this court will base its analysis on the value of the property actually attached.
. This court held evidentiary hearings with respect to the motion in question on the following dates: June 29, 1990; July 27, 1990; August 22, 1990; October 2, 1990; January 16, 1991; January 17, 1991; and January 29, 1991.
. For purposes of the instant motion, the court will refer to the attachments and attachments by trustee process collectively as attachments unless otherwise specifically stated.
. The plaintiff s original complaint was filed on October 2, 1989. Subsequently, on April 26, 1991, this court allowed the plaintiffs motion to amend the complaint to the extent that it pertained to the existing defendants. This court, accordingly, will refer to the amended complaint, rather than the original complaint, when it is necessary to refer to the complaint. Count III was deleted from the amended complaint.
. 18 U.S.C. § 1962(c) provides in pertinent part:
It shall be unlawful for any person employed or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.
Id. Section 1962(c) recognizes only an action against a defendant who, through a pattern of racketeering activities participates in the affairs of an enterprise other than itself. Such a claim cannot proceed if only one entity is identified as serving in both the perpetrator and enterprise roles.
. The body shop’s activities also have the requisite nexus with interstate commerce. The nexus may be demonstrated merely by proving that the defendants used an instrumentality of interstate commerce in executing their fraudulent scheme. The testimony and other evidence in this action demonstrates such a nexus in that the claims and loss notices were sent through the United States mails.
. Haroutioun Markarian left Arsenal in March of 1988 and went to Quality European Auto-body, Inc. where he was a partner with John Garabedian. (June 29, 1990 transcript, p. 48; p. 50). He then left Quality in October of 1988 and returned to Arsenal. (June 29, 1990 transcript, p. 51). Haroutioun Markarian, as of January 16, 1991, worked at Hi-Tech Autobody in Cambridge, Massachusetts as a body shop manager. (June 29, 1990 transcript, pp. 47-8; January 16, 1991 transcript, p. 91).
. In addition, Mr. Tirinkian testified that he knew several of the Aetna appraisers, in particular, Tim Cummings, Steven Dexter, and Brian Louiseau, through his work at Arsenal. (June 29, 1990 transcript, pp. 170-1).
. Mrs. Markarian testified that she had no personal knowledge of the accidents in question, but that her husband, Mr. Markarian informed her of the occurrences. (June 29, 1990 transcript, p. 25).
. In addition, a completed work form stating that the work in question was completed at Hi-Tech bearing the signature of Lena Tirinkian was marked as plaintiffs exhibit # 7 for identification.
. Mr. Nersissian stated that he knew Mr. Tirin-kian through the Armenian church (July 27, 1990 transcript, p. 10). He also stated that Mr. Tirinkian paid for his flight to Boston to testify in this matter.
. There was, however, some confusion with respect to the numerous carbon copies of the form in question which may indicate that the damage was noted on the original form kept in the possession of Forge Transport while not on the copy provided to the customer, in this case, Mr. Tirinkian. (See July 27, 1990 transcript, pp. 68-80).
. Aetna paid Mr. Tirinkian the amount of $450 as a result of that rental claim. (August 22, 1990 transcript, p. 177).
. Mr. Hanna also testified that some of the damage, in particular the damage to the front spoiler, was the same as the damage that occurred in January of 1988. (August 22, 1990 transcript, p. 61).
. The reinspection in August, 1989, indicates that the damage observed by the original appraiser was repaired. (August 22, 1990 transcript, p. 65).
. The appraisal completed by Steven Dexter in connection with this claim was marked for identification as Plaintiffs Exhibit #3. That appraisal was for $12,024.28 (June 29, 1990 transcript, pp. 195-6).
. See supra note 1 (issue of attachment on 1976 white Rolls Royce moot).
. Mr. Ashton testified, however, that he inspected a "tan” Rolls, not a white Rolls. (July 27, 1990 transcript, pp. 131-2).
. See supra note 1 with respect to the attachment on the white Rolls. Mr. Ashton testified that the $48,500 value was the stated value established by a different appraiser. He further explained that a stated value is determined by establishing what the vehicle is worth on the open market. (July 27, 1990 transcript, p. 135).
. This court notes, after extensive review of the transcripts and exhibits in this matter, that it found Mr. Dubois to be a credible witness. In addition, this court notes that it need not, for the purposes of the instant motion, discuss the testimony of Mr. Dubois in any further detail.
. It is a well recognized principal of law that a court may appropriately draw adverse inferences from the refusal of a person to testify in a civil proceeding. See Baxter v. Palmigiano, 425 U.S. 308" court="SCOTUS" date_filed="1976-04-20" href="https://app.midpage.ai/document/baxter-v-palmigiano-109429?utm_source=webapp" opinion_id="109429">425 U.S. 308, 318-19, 96 S. Ct. 1551" court="SCOTUS" date_filed="1976-04-20" href="https://app.midpage.ai/document/baxter-v-palmigiano-109429?utm_source=webapp" opinion_id="109429">96 S.Ct. 1551, 1557-58, 47 L. Ed. 2d 810" court="SCOTUS" date_filed="1976-04-20" href="https://app.midpage.ai/document/baxter-v-palmigiano-109429?utm_source=webapp" opinion_id="109429">47 L.Ed.2d 810 (1976) (permitting court to draw adverse inference from refusal to testify in civil proceeding). This court now draws those inferences, and concludes for purposes of the instant motion, that Mr. Cummings did participate in staging such fraudulent schemes and in taking bribes and/or kickbacks from the Arsenal defendants.
. After exhaustive review of the transcripts with respect to the present motion, this court notes that several other witnesses asserted their rights under the fifth amendment and declined to answer when questioned by counsel. This court does not, at this time, however, deem it necessary to rely on the testimony and inferences that may be drawn from the assertion of the rights under the fifth amendment with respect to those additional witnesses for the purposes of the motion in question.
. In light of this finding with respect to the plaintiffs claim under 18 U.S.C. § 1962(c), this court need not, and therefore, will not address the likelihood of success on the merits of the other claims.
. The property is encumbered by approximately $150,000 in mortgages and has an assessed value of approximately $403,300, resulting in approximate equity of $253,300.
. The property is encumbered by approximately $150,000 to $200,000 in mortgages and has an
. The property is encumbered by approximately $180,000 in mortgages and has an assessed value of approximately $274,500, resulting in an estimated equity of $94,500.
. The complaint delineates approximately $72,-285 in checks paid by the plaintiff to the Arsenal defendants for claims addressed at the hearings held on the instant matter. When trebled, that results in approximately $216,855. In addition, the plaintiff has asserted the bases for additional damages as well as approximately $300,000 in attorneys’ fees exclusive of investigative costs.
. This court also notes the potential for greater liability on the part of the Arsenal defendants, because all of the defendants are jointly and severally liable in this type of action.