Lyons Insurance Agency, Inc. v. Kirtley

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
)
LYONS INSURANCE AGENCY, )
INC., )
)
Plaintiff, )
) C.A. No. N18C-09-040 CLS
v. )
)
ROGER KIRTLEY, and )
THE SAFEGARD GROUP, INC., )
)
Defendants. )
)
Date Submitted: December 6, 2018
Date Decided: March 18, 2019
On Defendant’s Motion to Dismiss Counts III, IV, and V, and Plaintiff’s Partial
Motion for Judgment on the Pleadings.
DENIED.
Michael P. Kelly, Esquire, Andrew S. Dupre, Esquire, and Janine L. Faben,
Esquire, McCarter & English, LLP, 405 North King Street, 8th Floor, Wilmington,
Delaware, 19801. Attorneys for Plaintiff Lyons Insurance Agency, Inc.
Oderah C. Nwaeze, Esquire, and Mackenzie M. Wrobel, Esquire, Duane Morris
LLP, 222 Delaware Avenue, Suite 1600, Wilmington, Delaware, 19801. Attorneys
for Defendants Roger Kirtley and The Safegard Group, Inc.
Scott, J.
Background
This case presents a familiar trope often heard in Delaware Courts; that of the
former employee moving onto greener pastures, taking part of the business with him.
Defendant Roger Kirtley was employed as an insurance producer and risk advisor
by Plaintiff, Lyons Insurance Agency, Inc. (Lyons), from 2004 until 2018. The
nature of Kirtley’s work was as a sales agent for the Agency. In 2018, Kirtley left
Lyons for a different insurance broker, The Safegard Group, Inc. (Safegard).
While employed at Lyons, Kirtley signed an Employment Agreement.
Pertinent to this action are the Agreement’s provisions concerning confidential
information, post termination obligations, and the incorporation of the company’s
Employee Manual.
The confidential information provision seeks to prevent employees from
sharing Lyons’s confidential information from disclosure and/or unauthorized use.
The post termination provision contains a buy-out option in the event an employee
decides to continue working in the insurance industry. The provision states:
“following termination of employment from [Lyons] for any
reason whatsoever, and for a period of two years thereafter, should
Employee accept employment with another broker . . . and that act of
employment . . . results in the movement of an account, that was
generated by Employee, from Company to another broker, then
Employee shall pay to Company an amount equal to Ninety Percent
(90%) of the current “Book of Business Value.”
2
Sometime after Kirtley’s departure from Lyons, a number of Lyons’s
insurance clients ended their brokerage relationship with Lyons, and moved to
Safegard. The circumstances surrounding these “moved clients” are the basis for
Counts I through IV of Lyons’s Complaint.
Parties Assertions
Defendants Kirtley and Safegard filed a Motion to Dismiss Counts III through
V of the Complaint. These claims are Count III: Unjust Enrichment against Kirtley
and Safegard, Count IV: Tortious Interference against Safegard, and Count V:
Breach of Contract as to Advances against Kirtley.
With respect to Count III, Kirtley takes the position that Unjust Enrichment
cannot be pleaded in the alternative to breach of contract where a contract controls
the relationship of the parties. Kirtley argues the Employment Agreement addresses
the harm alleged in the Complaint, therefore a claim for unjust enrichment cannot
be sustained against him. Defendants also take the position that the unjust
enrichment claim against Safegard is an impermissible attempt to recover contract
damages from a non-party to the contract.
Lyons argues Count III is correctly pleaded as an alternative theory of
recovery to the Breach of Contract claim against Kirtley in Count I. Lyons alleges
Defendants misused Lyons’s confidential information in courting the moved clients
3
in addition to the claim Kirtley breached the Employment Agreement by failing to
pay the 90% buy-out fee.
With regard to Count IV, Safegard argues Lyons has failed to meet the
pleading requirement to sustain a claim for tortious interference. Safegard states
Plaintiff has not provided factual support for the claim that Safegard’s conduct was
improper or wrongful, and therefore the claim must be dismissed. Lyons contends
the pleading standard suggested by Safegard applies to claims for fraud and
negligence, and is therefore inapplicable to this case.
Counts V and VI relate to advances paid to Kirtley while still employed by
Lyons. Lyons alleges that under an implied and/or oral contract it paid Kirtley
advances against anticipated future commissions and revenues. Lyons claims
Kirtley has failed to repay these advances, in breach of the parties’ contract, or in
the alternative, Kirtley has been unjustly enriched by failing to repay these advances.
Defendants argue there is no express contractual agreement concerning the
repayment of advances, and absent such language Lyons cannot sustain a breach of
contract claim for their repayment.
Standard of Review
The test for sufficiency of a complaint challenged by a Rule 12(b)(6) motion
to dismiss is whether a plaintiff may recover under any reasonably conceivable set
4
of circumstances susceptible of proof under the complaint. 1 In making its
determination, the Court must accept all well-pleaded allegations in the complaint
as true and draw all reasonable factual inferences in favor of the non-moving party.2
The complaint must be without merit as a matter of fact or law to be dismissed. 3
Therefore, if the plaintiff may recover under that standard of review, the Court must
deny the Motion.4
Discussion
Unjust enrichment is “the unjust retention of a benefit to the loss of another,
or the retention of money or property of another against the fundamental principles
of justice or equity and good conscience.”5 If the relationship between the parties is
comprehensively governed by contract, the contract alone must provide the measure
of the plaintiff’s rights, and a claim for unjust enrichment will be denied. 6 Unjust
enrichment may be pleaded as an alternative theory of recovery to a breach of
1
Spence v. Funk, 396 A.2d 967, 968 (1978); see Cambium Ltd. v. Trilantic Capital
Partners III L.P., 2012 WL 172844, at *1 (Del. 2012)(citing Cent. Mortg. Co. v.
Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 537 (Del. 2011)).
2
Ramunno v. Cawley, 705 A.2d 1029, 1034-36 (Del. 1998); Nix v. Sawyer, 466 A.2d
407, 410 (Del. Super. Ct. 1983).
3
Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52 (Del. 1970).
4
Spence, 396 A.2d at 968.
5
Nemec v. Shrader, 991 A.2d 1120, 1130 (Del. 2010) (Quoting Fleer Corp. v. Topps
Chewing Gum, Inc., 539 A.2d 1060, 1062 (Del. 1988)).
6
Nemec v. Shrader, 991 A.2d 1120, 1130 (Del. 2010) (Quoting BAE Sys. Info. &
Elec. Sys. Integration, Inc. v. Lockheed Martin Corp., 2009 WL 264088, at *8 (Del.
Ch. 2009).
5
contract claim, but the right to do so “does not obviate the obligation to provide
factual support for each theory” independently.7
Lyons’s Complaint states they suffered financial harm as a result of Kirtley’s
failure to pay the buy-out fee for the moved clients as set forth in the Employment
Agreement. The Answer admits Kirtley signed the Employment Agreement, but
denies the validity and enforceability of the Agreement.8 Kirtley admits he
developed a book of business in the course of his employment with Lyons9, while
simultaneously claiming that “book of business”10 is an undefined term in the
Employment Agreement.11
Dismissal is only appropriate when it is certain there is no set of facts which
could be proved to support the claim asserted. Until it is clear the Agreement is valid
and enforceable as the exclusive measure of the plaintiff’s rights, there are material
facts in issue, and dismissal at this stage is premature. Therefore, the Motion to
Dismiss the Unjust Enrichment claim against Defendant Kirtley is Denied
Safegard cites MetCap for the principal that to sustain a claim for unjust
enrichment, there must be a direct relationship between the parties to prevent a
7
BAE Sys. Info. & Elec. Sys. Integration, Inc. v. Lockheed Martin Corp., 2009 WL
264088, at *8 (Del. Ch. 2009).
8
Answ. at 6, 21.
9
Answ. at 7.
10
Is there really an argument that the meaning of this term is unclear?
11
Answ. at 11.
6
litigant from circumventing basic contract principals in an attempt to hold a nonparty
liable for contract damages.
However, if a nonparty to a contract knowingly facilitates prohibited
activities, a claim for unjust enrichment may survive a motion to dismiss. In
Fitzgerald v. Cantor, the Court determined that the relationship element necessary
for unjust enrichment is a simple relationship between the plaintiff’s
impoverishment and defendants’ enrichment. Fitzgerald involved individual
Limited Partners of the Plaintiff Limited Partnership, whose actions were alleged to
be in breach of their fiduciary duties. The Limited Partners controlled a separate
enterprise which developed competing software for a direct competitor of the
Plaintiff. While the Limited Partnership Agreement governed the relationship
between the Limited Partners and Plaintiff, the Court refused to dismiss unjust
enrichment claims against parties where no contract governed their relationship. For
purposes of the motion to dismiss, the Court accepted as true the claim that neither
the direct competitor, nor the development enterprise could retain any benefit
resulting from the success of the software justifiably, because the competitor knew
that the developers were prohibited from producing a product that would compete
with Plaintiff's core business.12
12
Fitzgerald v. Cantor, 1998 WL 326686, at *7 (Del. Ch. 1998) (internal quotations
omitted).
7
Accepting Lyons’s claims as true, Safegard has been enriched due to their
actions, and Lyons has been impoverished. Additionally, Plaintiff alleges Kirtley
used Lyons’s confidential information for Safegard’s benefit, and that Safegard
knew that Kirtley was prohibited from using that information. It is reasonably
conceivable at this stage that Safegard’s enrichment is not justified and against the
fundamental principles of justice or equity and good conscience. Therefore, the
Motion to Dismiss the Unjust Enrichment claim against Safegard is Denied.
Count IV of the Complaint claims Tortious Interference with contract and
Prospective Economic Relations against Safegard. In their Motion to Dismiss,
Safegard correctly points out that these are two similar, but not identical causes of
action. In order to sustain a claim for tortious interference with a contract, there
must be 1) a contract, 2) about which defendant knew and 3) an intentional act that
is a significant factor in causing the breach of such contract 4) without justification
5) which causes injury.13 Interference with prospective business relations requires
1) a reasonable probability of a business opportunity, 2) intentional interference by
a defendant with that opportunity, 3) proximate causation, and 4) damages. 14 The
primary differences between the claims are the existence of a contract, and that
tortious interference with prospective business relations must be considered in light
13
Triton Const. Co., Inc. v. Eastern Shore Elec. Services, Inc., 2009 WL 1387115,
at *17 (Del. Ch. 2009) (internal quotations omitted).
14
Id.
8
of a defendant’s privilege to compete or protect his business interests in a fair and
lawful manner.15
As to Lyons’s claim Safegard interfered with the Employment Agreement, the
focus is on whether Safegard wrongfully induced Kirtley to breach the Agreement.16
Similarly, the focus of the Interference with Economic Relations claim is whether or
not Safegard and Kirtley leveraged confidential information in courting the moved
clients. For both claims, the claimant alleging tortious interference bears the burden
of proving improper interference carried out by the Defendant.17 Whether they have
met that burden is typically a question of fact for the fact finder.18 However, to
survive a Motion to Dismiss Plaintiff must only demonstrate there is a reasonably
conceivable set of circumstances which would permit recovery.19
Whether or not Safegard intentionally induced Kirtley to breach his
Employment Agreement, is a material issue of fact. The same is true with regard to
whether or not Defendants leveraged confidential information in courting the moved
clients. Citing Jadczak v. Assurant, Inc., Defendants argue allegations based on
“information and belief” are vague and conclusory, and therefore insufficient to give
15
Id.
16
See ASDI, Inc. v. Beard Research, Inc., 11 A.3d 749, 751 (Del. 2010).
17
World Energy Ventures, LLC v. Northwind Gulf Coast LLC, 2015 WL 6772638,
*8 (Del. Super. Ct. 2015).
18
Id. (citing Lipson v. Anesthesia Servs., P.A., 790 A.2d 1261, 1286
(Del.Super.2001)).
19
Spence v. Funk. At 968.
9
rise to a claim.20 This proposition relates to a claim for negligence, which invokes a
more rigorous pleading standard.
This Court’s rules require fraud, negligence or mistake to be pleaded with
particularity.21 Malice, intent, knowledge and other condition of mind need only be
averred generally.22 The allegations as set forth in the Complaint are sufficient to put
Defendants on notice that their actions related to the moved clients are the basis for
Lyons’s Tortious Interference claims, and it is reasonably conceivable that such
actions may entitle Lyons to recover for those actions. Therefore, Safegard’s Motion
to Dismiss the Tortious Interference claims in Count IV is Denied.
Kirtley relies on the Supreme Court’s decision in Casey Employment Servs.,
Inc. v. Dali, to suggest Lyons’s breach of contract claim as to advances paid to
Kirtley must be dismissed. The Casey decision however, stands for the notion that
if the express language of the contract calls for repayment of such payments, then
the terms are enforceable.23 Lyons asserts the advances paid to Kirtley are addressed
by language contained in the Employment Agreement. If true, Lyons may be able
to recover under a theory of breach of contract. Therefore, Kirtley’s Motion to
Dismiss Count V is Denied.
20
Jadczak v. Assurant, Inc., 2010 WL 445607, at *1 (Del Super. Ct. 2010).
21
Super Ct. Civ. R. 9 (b).
22
Super Ct. Civ. R. 9 (b).
23
Casey Employment Servs., Inc. v. Dali, 634 A.2d 938 (Del. 1993).
10
Lyons’s Motion for Partial Judgment on the Pleadings
On a Motion for Judgment on the Pleadings under Superior Court Civil Rule
12 (c) the Court must accept all the complaint’s well-pled facts as true and construe
all reasonable inferences in favor of the non-moving party.24 The motion will be
granted when no material issues of fact exist, and the moving party is entitled to
judgment as a matter of law.25
It is undisputed Kirtley signed the Employment Agreement in the course of
his employment with Lyons. However, Kirtley disputes the obligations imposed by
that Agreement. Additionally, it is uncertain what confidential information, if any,
was compromised, and whether or not that information is, in fact, confidential.26
Therefore, Plaintiff’s Motion for Partial Judgment on the Pleadings is Denied.
For the foregoing reasons, Defendants’ Motion to Dismiss, and Plaintiff’s
Motion for Partial Judgment on the Pleadings are DENIED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.
24
Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at
*6 (Del. Super. Ct. Jan. 17, 2014).
25
Id.
26
See Lyons Ins. Agency, Inc. v. Wilson, 2018 WL 4677606, at *8 (Del. Ch. Sept.
28, 2018) Vice Chancellor Glasscock observed brokers' client lists are common
knowledge in the industry, as distinguished from proposals, policies, and other
similar, confidential information.
11