REINELDO URGELLES v. COMBINED INSURANCE COMPANY OF AMERICA

Third District Court of Appeal
State of Florida
Opinion filed March 24, 2021.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D20-1121; 3D20-1122
Lower Tribunal No. 20-7330
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Family Heritage Life
Insurance Company of America, et al.,
Appellants,
vs.
Combined Insurance Company of America,
Appellee.
Appeals from a non-final order from the Circuit Court for Miami-Dade
County, Martin Zilber, Judge.
Shapiro, Blasi, Wasserman & Hermann, P.A., and Adam S. Chotiner
(Boca Raton); Phillips Murrah P.C., and Michele C. Spillman (Dallas,
Texas), Pro Hac Vice, for appellant Family Heritage Life Insurance
Company of America; Tripp Scott, P.A., and Stephanie C. Mazzola,
Catalina M. Avalos and Sarah M. Leon (Fort Lauderdale), for appellants
Reineldo Urgelles and Antonio Pineda.
Lewis Brisbois Bisgaard & Smith, LLP, Miguel A. Morel and Kristen
Perkins (Fort Lauderdale); Lewis Brisbois Bisgaard & Smith, LLP, David L.
Luck and Jenna L. Fischman, for appellee.
Before LOGUE, HENDON and GORDO, JJ.
GORDO, J.
In these consolidated appeals, Family Heritage Life Insurance
Company of America, Reinaldo Urgelles, and Antonio Pineda, appeal the
trial court’s entry of a temporary injunction against them. We have
jurisdiction. See Fla. R. App. P. 9.130(a)(3)(B). Because the trial court
made the requisite findings and did not abuse its discretion in entering the
temporary injunction, we affirm.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Combined Insurance Company of America, the plaintiff below, is in
the business of selling, through its agents, supplemental accident, health,
and life insurance products throughout North America. Family Heritage is a
direct competitor of Combined.
Urgelles and Pineda are former employees of Combined. Both were
members of a special team at Combined called Division 48, which is made
up of Spanish-speaking employees who target Spanish-speaking markets.
It is undisputed that Combined invests significant resources into Division 48
and that all employees of that Division receive specialized training.
Prior to his termination in September of 2019, Urgelles was the
Senior Executive Market Director for Combined’s Division 48 and had
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around 400 employees reporting to him. Following his termination,
Urgelles began working at Family Heritage. In November of 2019, Pineda,
a sales associate, left Combined and joined Family Heritage, under
Urgelles.
As part of his employment with Combined, Urgelles was in
possession of a document called the Alpha Roster. This list contained the
names and contact information for the agents in Division 48. While still at
Combined, Urgelles emailed himself a copy of this confidential document to
his personal email account. Although the contact information for each
Combined agent is accessible through the State’s licensure website, the
fact that they are members of Division 48 is not public information and is
known only to those at Combined in possession of the Alpha Roster.
Both Urgelles and Pineda signed employment agreements with
Combined, which contained confidentiality clauses and restrictive
covenants. In the confidentiality provision, Urgelles and Pineda
acknowledged that they would be receiving confidential information from
Combined and agreed not to disclose or use that information to compete
against Combined. The restrictive covenants prohibited Urgelles and
Pineda from directly or indirectly, alone or with others, soliciting employees
or policyholders of Combined within the Florida market for two years
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following employment. They also acknowledged that a breach of the
confidentiality clause or restrictive covenants would result in irreparable
harm, which would not be adequately remedied through monetary relief. 1
Following the loss of several employees and policyholders to Family
Heritage, Combined sent cease and desist letters to Urgelles and Family
Heritage in November of 2019. After Pineda left Combined for Family
Heritage and it lost additional policyholders and employees, Combined sent
a cease and desist letter to Pineda in December of 2019. Thereafter,
Combined filed suit, alleging tortious interference as to all and breach of
contract against Urgelles and Pineda, and seeking injunctive relief.
Combined later filed a motion requesting an injunction.
The trial court held a two-day evidentiary hearing on the motion.
Combined presented evidence, through the testimony of its corporate
representative and an assistant vice president that Division 48 was one-of-
a-kind and that the agents in this division received extensive, specialized
training. It presented evidence that it took measures to protect its
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The agreements provided: “[A] breach by the Employee of any of the
covenants or agreements set forth [in preceding paragraphs, relating to
goodwill, confidentiality, unfair competition, and restrictive covenants],
would cause each of the Combined Companies irreparable damage that
could not adequately be compensated for by only monetary compensation.”
They further stated that “in the event of any such breach” Combined could
apply for and would be entitled to injunctive relief.
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confidential information, including the Alpha Roster; that Urgelles had
emailed it to his personal email and was in possession of it; and that
disclosure of this roster to a direct competitor would be disastrous.
Combined also brought forth evidence that once Urgelles began working
for Family Heritage, approximately 150 agents left Combined and began
working at Family Heritage. Further, there was evidence that Urgelles and
Pineda both solicited Combined’s agents and policyholders to leave
Combined for Family Heritage. At the hearing’s conclusion, the court
granted the temporary injunction, and entered a written injunction order
specifying its findings.
The trial court’s detailed order makes findings in support of its
conclusions that Combined had a substantial likelihood of success on the
merits, lacked an adequate remedy at law, had a likelihood of irreparable
harm absent the entry of an injunction, and that the injunction would serve
the public interest. The order then enjoins Urgelles, Pineda and Family
Heritage from the following:
(a) Soliciting or attempting to solicit on behalf of
another insurer, any insurance of the kind or
character sold by Combined (including but not
limited to accident & health, Medicare Supplement
and life insurance) to any of Combined’s
policyholders in the state of Florida; (b) Inducing, or
attempting to induce, any of Combined’s
policyholders within the state of Florida to cancel,
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lapse or fail to renew their policies with Combined;
(c) Directly or indirectly inducing or attempting to
induce any of Combined’s directors, officers, sales
representatives, agents or other employees in the
state of Florida to terminate their employments with
Combined or to sell insurance for any other
company; (d) Directly or indirectly divulging or
disclosing the identities, skills, talents, knowledge,
experience, compensation, and preferences of any
Combined Division 48 employees or any other
confidential information of Combined acquired
during Urgelles and Pineda’s employment with
Combined; and (e) Destroying, hiding, deleting,
retaining or altering any document or electronically
stored information relevant, or which could lead to
the discovery of relevant information, to the subject
matter of this lawsuit.
The order further required Urgelles and Pineda to cease and desist
from the use of confidential information and return anything confidential in
their possession, and Family Heritage to cease and desist from benefitting
from Urgelles and Pineda’s breaches.
STANDARD OF REVIEW
The lower tribunal’s findings of fact on preliminary injunctions are
subject to an abuse of discretion review and are left undisturbed so long as
they are supported by competent, substantial evidence. See, e.g., Quirch
Foods LLC v. Broce, 45 Fla. L. Weekly D2336, at *6 (3d DCA Oct. 14,
2020). Related questions of law are reviewed de novo. Id.
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LEGAL ANALYSIS
I. Whether the Issuance of the Temporary Injunction was Proper
To obtain a temporary injunction, Combined was required to prove
“(1) a substantial likelihood of success on the merits, (2) a lack of an
adequate remedy at law, (3) the likelihood of irreparable harm absent the
entry of an injunction, and (4) that injunctive relief will serve the public
interest.” Id. at *7 (quoting Scott v. Trotti, 283 So. 3d 340, 343 (Fla. 1st
DCA 2018)).
1. Substantial Likelihood of Success on the Merits
Combined presented evidence that following Urgelles’s departure to
Family Heritage, about 150 Combined agents left to work for Family
Heritage. It also presented evidence that Urgelles received compensation
from Family Heritage for the recruitment of at least one former Combined
employee and that another former Combined agent now working for
Urgelles at Family Heritage had solicited a Combined policyholder. As for
Pineda, Combined presented evidence that he solicited a Combined agent
to work for Family Heritage. Further, there was evidence that Urgelles and
Pineda were in possession of and had impermissibly used the Alpha
Roster, Combined’s confidential information.
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The trial court found that Urgelles and Pineda “violated their
employment agreements with Combined” by soliciting or attempting to
solicit Combined’s employees and policyholders and by having used or
disclosed Combined’s confidential information and trade secrets. Based on
this finding, which was supported by competent, substantial evidence,
Combined established that it had a substantial likelihood of success on the
merits.
2. Lack of an Adequate Remedy at Law
It is well-established that where a party demonstrates that a violation
of an enforceable restrictive covenant in an employment agreement has
occurred, an injunction is proper and there is no adequate remedy at law.
See, e.g., Reliance Wholesale, Inc. v. Godfrey, 51 So. 3d 561, 566 (Fla. 3d
DCA 2010) (“[A]lthough a trial court may award damages for a breach of an
employee's agreement not to compete, ‘the normal remedy is to grant an
injunction. This is so because of the inherently difficult, although not
impossible, task of determining just what damage actually is caused by the
employee’s breach of the agreement.’” (quoting Capraro v. Lanier Bus.
Prods., Inc., 446 So. 2d 212, 213 (Fla. 1985))).
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3. Likelihood of Irreparable Harm
Section 542.335, Florida Statutes, permits the entry of injunctions for
violations of restrictive covenants. Subsection 542.335(1)(j) provides, in
relevant part, that “[t]he violation of an enforceable restrictive covenant
creates a presumption of irreparable injury to the person seeking
enforcement of a restrictive covenant.” An enforceable restrictive covenant
is one in which “the contractually specified restraint is reasonably
necessary to protect [a] legitimate business interest.” § 542.335(1)(c), Fla.
Stat. The statute then provides a non-exhaustive list of “legitimate
business interests,” which includes trade secrets, valuable confidential
business or professional information, goodwill, and specialized training. Id.
at § 542.335(1)(b). To establish this presumption, the party seeking
enforcement of the restrictive covenant must show that it protected a
legitimate business interest and that it was violated. See TransUnion Risk
& Alt. Data Sols., Inc. v. Reilly, 181 So. 3d 548, 550 (Fla. 4th DCA 2015)
(citation omitted).
Combined established, and the trial court found, that its restrictive
covenants sought to protect trade secrets, confidential information,
specialized training, and goodwill with policyholders. Appellants failed to
rebut that presumption. We conclude there is competent, substantial
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evidence Combined would be irreparably harmed if Appellants were not
enjoined from further breaches.
4. Public Interest in Issuing an Injunction
“Public policy in Florida favors enforcement of reasonable covenants
not to compete.” Quirch Foods, 45 Fla. L. Weekly D2336, at *10 (citation
omitted). “[E]nforcement of a covenant not to compete protects proprietary
business interests and the enforcement of contracts.” Id. (citation omitted).
“[T]he public has a cognizable interest in the protection and enforcement of
contractual rights.” Id. (citation omitted). As we previously stated in Quirch
Foods, there are many benefits to the public interest in courts upholding
enforceable agreements. See id. As in that case, “neither the trial court
nor Appellants have identified any public policy reason that would
‘substantially outweigh the need to protect the legitimate business interest
or interests’” of Combined. Id. (quoting § 542.335(1)(i), Fla. Stat.).
II. Whether the Trial Court Properly Enjoined Family Heritage
Family Heritage argues that the injunction is improper because it is
impermissibly broad. Proof of the benefit received from the former
employees’ breaches, however, is sufficient under Florida law to maintain
an injunction against the new employer, particularly where the employer
was on notice of the violations. Cf. USI Ins. Servs. of Fla., Inc. v. Pettineo,
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987 So. 2d 763, 767 (Fla. 4th DCA 2008). “There is no doubt that a court
can enjoin others who were not parties to the non-compete agreement” as
long as they “receive notice and have an opportunity to be heard.”
Leighton v. First Universal Lending, LLC, 925 So. 2d 462, 465 (Fla. 4th
DCA 2006). “The Court can enjoin non-parties to the non-compete
agreement, such as a family member of the signator or an alter ego
corporation, where the nonparty is either under the signator’s control or
otherwise being used to aid or abet the signator in violating the non-
compete clause.” Winmark Corp. v. Brenoby Sports, Inc., 32 F. Supp. 3d
1206, 1221 (S.D. Fla. 2014) (citations omitted). An “injunction not only
binds the parties . . . , but also those identified with them in interest, those
in privity with them, and those represented by them or subject to their
control.” Channell v. Applied Rsch., Inc., 472 So. 2d 1260, 1263 (Fla. 4th
DCA 1985) (citations omitted).
There was evidence in the record that Family Heritage knew of and
was benefiting from Urgelles’s and Pineda’s breaches of their employment
agreements. Indeed, Combined sent Family Heritage a cease and desist
letter, advising it that Urgelles was not complying with the restrictive
covenants in his employment agreement and had been recruiting
Combined employees to join Family Heritage. Even after this letter was
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sent, Urgelles and Pineda continued to solicit employees and policyholders
from Combined on behalf of Family Heritage. Despite having been on
notice of Urgelles’s and Pineda’s breaches, there was no evidence that
Family Heritage made efforts to stop the breaches from continuing. In fact,
on at least one occasion, Family Heritage compensated Urgelles for having
recruited a Combined agent. We find the trial court’s injunction order
proper in scope in enjoining Family Heritage and those acting on its behalf
or subject to its control from further benefiting from Urgelles’s and Pineda’s
breaches.
CONCLUSION
Combined made a prima facie showing of the violation of a restrictive
covenant and the elements for issuance of a temporary injunction were
satisfied. The trial court’s findings were supported by competent,
substantial evidence. As such, the trial court did not abuse its discretion in
entering the temporary injunction.
Affirmed.
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