Stonington's insurance to pay for town's legal costs in lawsuit about Haberek's cellphone use

Stonington - The Connecticut Interlocal Risk Management Agency, the town's insurance carrier, will provide an attorney to defend the town in the Tracy Swain lawsuit and will likely cover any damages or settlement the town has to pay, according to town officials.

While the town could be off the hook in terms of having to pay lawyers or Swain, any loss could affect the rates it pays for its insurance coverage in the future. A CIRMA spokeswoman did not respond to a phone message this week.

Swain, of Pawcatuck, has sued the town and First Selectman Ed Haberek, charging that he sent her sexually graphic photos of himself using his town-issued BlackBerry in January 2010. Haberek has said the allegations are false.

Attorney Michael Ryan of Stamford filed an appearance on behalf of the town in New London Superior Court this week. Meanwhile, Haberek has hired New London attorney Dado Coric to defend him. Coric also filed his appearance this week.

Meanwhile, Swain's attorney, Scott Camassar of North Stonington, filed a Request for Admissions this week.

The request asks Haberek to answer a list of questions about the alleged incident. Camassar said it is designed to get certain undisputed facts into the record so attorneys do not have to spend time on discovery and depositions seeking that information.

The questions ask Haberek if the town had a computer and Internet use policy for employees, whether Haberek has use of a BlackBerry, computer or cellphone issued by the town and what was the phone number assigned to his BlackBerry.

Attached to the request was the summary of a $276.70 bill for Haberek's BlackBerry during the period in question.

It shows that in a one-month period he sent 969 text messages and received 701. It also shows he sent two PIX-FLIX messages, which is the way Swain and Camassar allege the message was sent. The date, time, recipient and content of those messages are not shown.

Camassar said the town did not provide him with the details of the bills such as the phone numbers, email addresses date and times of each contact.

The request also asks Haberek if he sent Swain two photos via his phone or BlackBerry on the date in question, if they were sent via Facebook message, if they were sexually graphic in nature and if they were of himself. It also asks if such activity is a violation of town policy.

Camassar has already offered the town two ways out of the lawsuit.

In the first, Haberek must turn over the photos that he allegedly sent to Swain on Jan. 12, 2010; admit that he used the BlackBerry to do so; and provide documentation about the time he sent the photos and where he was at the time.

In the second option, Haberek must agree to pay for an analysis of his BlackBerry, computer and other devices that were in his possession on Jan. 12, 2010, by an independent computer forensics expert. Haberek must also consent to the release of material seized by state police with a search warrant after Swain made a complaint about the incident. Police found that no crime had been committed.

He also must agree to an attachment of his property and assets unless he demonstrates proof of adequate insurance to cover any potential damages that could be awarded by a jury.

Haberek has fought Swain's legal attempt to obtain evidence of the photos from Verizon, the town's cellphone provider.

j.wojtas@theday.com

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