Lawyers for Steve Moore will be in court Thursday, in an attempt to compel former Vancouver Canucks owner John McCaw Jr. to testify in September, when Moore’s lawsuit against Todd Bertuzzi goes to trial.
Two other high-profile witnesses – NHL commissioner Gary Bettman and deputy commissioner Bill Daly – plan to attend and testify without a court order.
Tim Danson, Moore’s lead lawyer, will argue a motion in the Ontario Superior Court of Justice to force McCaw, a multimillionaire businessman who lives in Seattle, to testify.
Originally, Bettman and Daly were included in the motion because they had also declined requests to come to the trial. However, the NHL executives later changed their minds. Daly said in an e-mail Tuesday that both he and Bettman “have indicated a willingness to participate as required.”
Moore is seeking more than $38-million in a lawsuit against Bertuzzi and the Canucks after an on-ice attack by Bertuzzi, who played for Vancouver at the time, during a game against the Colorado Avalanche on March 8, 2004.
The incident left Moore with a severe concussion and three fractured vertebrae, and ended his NHL career. He is seeking damages from the attack, plus the loss of income from hockey and from a planned career in business because of the reported effects of the injuries.
Danson wants to question Bettman and Daly about several matters, including the league’s refusal to pay a $220,000 (U.S.) disability payment unless Moore drops his lawsuit against Bertuzzi and the Canucks.
Court documents released Tuesday show Moore asked Bettman and Daly in 2008 to waive the standard clause in the NHL’s disability insurance agreement with the players, which says claimants must drop any litigation against the league or its teams in order to receive the payment.
Bettman and Daly declined to do so.
“The collectively bargained disability insurance payment is expressly conditioned on the player signing a release,” Daly said in an e-mail. “That is a routine provision and is done for obvious reasons, including to avoid the potential of double recovery for a single incident or disability.”
Bertuzzi’s attack on Moore came in the latter’s 69th NHL game. According to the NHL’s disability policy with both Hartford Financial Services Group Inc. and Lloyd’s of London, if Moore had managed to play one more game to hit 70, the payout for permanent disability would have risen to $370,000.
If McCaw cannot be forced to attend the trial in Toronto, Danson will ask the court to force him to testify under oath “at a suitable location.”
McCaw owned the Canucks at the time of the attack, which was in retaliation for a bodycheck Moore made in a previous game on then-Vancouver star Markus Naslund. McCaw completed his sale of the team to the current owners (the Aquilini family) in 2006, but agreed to pay half of any judgment a court may award in Moore’s favour against the Canucks.
McCaw’s approval is needed for any settlement with Moore. Also, the Canucks and Bertuzzi agreed to share any judgment costs, although the nature of the arrangement is not known.
Bertuzzi, 39, continues to play in the NHL, spending the last five seasons with the Detroit Red Wings.
A major part of Danson’s legal strategy concerns the unwritten “code” among NHL players, coaches and managers which allegedly calls for retribution for any hits on a star player that cause injury (Naslund suffered a concussion and elbow injury when Moore hit him) and compels NHLers to keep quiet about what is said in dressing rooms and on the benches.
Danson notes in his motion that McCaw “did nothing to stop or discourage the promised retribution, despite clear warnings from the media, the NHL and their own knowledge of the dynamics of hockey and its ‘code.’”
This lack of action, Danson said, “constituted a clear green light to effect the promised retribution against Steve Moore.”
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