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Judge seeks $6.8m from Herald's insurer

Cites failure to settle defamation case

Judge Ernest B. Murphy Judge Ernest B. Murphy

Superior Court Judge Ernest B. Murphy, who recently collected a $3.41 million check from the Boston Herald as a result of a libel suit, is now demanding another $6.8 million from the newspaper's insurance company.

Murphy's lawyer, Stephen J. Brake, made the demand in a letter sent to Mutual Insurance Co. last month, accusing the company of "unfair and deceptive" practices for failing to settle the defamation case before trial and then appealing the libel verdict to the state's highest court.

Brake said that if Mutual had acted in good faith, it would have concluded -- especially after the jury's verdict -- that the Herald's liability was clear and that an appeal "had no realistic prospect of success."

Brake also wrote that Murphy "has suffered and continues to suffer real damage as a result of the gross disregard of his rights to be treated fairly by Mutual."

On Thursday, the Bermuda-based insurance company countered with a federal lawsuit against Murphy, urging a judge to declare that the company is not liable and owes Murphy nothing.

In its suit, Mutual said it "did not control the Herald's defense or its decision to litigate rather than to settle what the Herald believed to be hotly disputed claims."

The insurance company wrote that it had "a good faith belief that liability was not reasonably clear" and that the newspaper was justified in appealing the $2.01 million verdict awarded in 2005 by a jury that found the Herald and its reporter, David Wedge, had libeled Murphy in a series of stories.

Mutual wrote that after the Supreme Judicial Court upheld the verdict in May and denied a petition to hear the case again, the company promptly paid the Herald $3.41 million, which was given to Murphy to cover the award, plus interest, that had accrued since the verdict.

When asked yesterday about Murphy's new demand, George Regan, a spokesman for Herald publisher Patrick J. Purcell, said, "On the subject of Judge Murphy, we have nothing else to say."

Boston attorney Joseph S. Sano, who filed the suit on behalf of Mutual, did not return telephone calls yesterday.

Though Murphy won his case against the Herald, he has not emerged unscathed. The Commission on Judicial Conduct filed charges last month with the Supreme Judicial Court alleging that Murphy sent letters to the Herald that constitute "willful misconduct which brings the judicial office into disrepute."

Murphy sent the letters to Purcell after the verdict, requesting a private meeting to discuss getting more money from the tabloid, according to the commission.

"You will bring to that meeting a cashiers check, payable to me, in the sum of $3,260,000," wrote Murphy in a handwritten letter on Superior Court stationery. "No check no meeting. You will give me that check and I shall put it in my pocket."

In another letter, Murphy wrote, "It would be a mistake, Pat, to show this letter to anyone other than the gentleman whose authorized signature will be affixed to the check in question. In fact, a BIG mistake." A date has not yet been set for Murphy's hearing on the misconduct charges.

Earlier this month, Governor Deval Patrick rejected an appeal by Murphy to retire early with a lucrative disability pension based on his contention that he has post-traumatic stress disorder as a result of the defamation case.

Yesterday, Brake said Murphy is pushing his claim against Mutual because he believes the company violated state law in its dealings with him.

"What it really is about for him is the harm caused to him personally and his family," Brake said. "He's pursuing the insurance company for its cavalier handling of his claim and its dismissiveness in the face of overwhelming evidence that the Herald was going to be found liable. . . . It's the right thing to do."

Brake said Mutual had responded to Murphy's $6.8 million demand letter by offering him $100.