United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER SUSTAINING PLAINTIFF'S
MOTION REGARDING EXPERT TESTIMONY AND REPORT AND DENYING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
D. NOCE UNITED STATES MAGISTRATE JUDGE.
action is before the Court on the motions of defendant
AssuredPartners of Missouri, LLC, for summary judgment (Doc.
40) and the motion of plaintiff Andrew Niemeier to exclude
the expert testimony and report of Lewis E. Melahn (Doc. 43).
A hearing was held on the motions on January 25, 2019.
MOTION FOR SUMMARY JUDGMENT
following facts are uncontroverted for purposes of the motion
for summary judgment, unless otherwise noted. Plaintiff
Andrew Niemeier was hired by defendant AssuredPartners of
Missouri, LLC, on June 28, 2016. (Docs. 42 and 53, ¶ 1).
At that time, plaintiff had Life & Health and Property
& Casualty insurance licenses, allowing him to sell those
insurance products, including employee benefits
(“EB”) products. (Id. at ¶ 2). He
understood his employment agreement prohibited him from
making comments that could damage or disparage
AssuredPartners. (Id. at ¶ 5). Defendant's
Employee Handbook does not refer to the Missouri Insurance
Producers Act or insurance producer licensing. (Docs. 53 and
61, ¶¶ 3-4).
parties agree that insurance brokers or
“producers” can be licensed to sell more than one
type of insurance, but AssuredPartners producers primarily
focus on either EB, Property & Casualty, or personal
lines. They are expected to have a license in their focus
area, and plaintiff admitted that if he had to choose, he
would focus on EB. (Id. at ¶¶ 6-10). At
AssuredPartners, if more than one person was responsible for
selling a deal, producers could split the commissions in a
practice called “joint venturing, ” but there was
no obligation to split commissions when the incoming business
was under $5, 000 and related to the focus area of the
producer bringing in the business. (Id. at
¶¶ 11-13, 17). However, if a producer brought in
business above $5, 000 in revenue, AssuredPartners required
that producer to coordinate with Lynne Scott, whose role was
to service the needs of new and incoming business, to select
an EB producer to “team sell” the business.
(Id. at ¶¶ 15-16). This would then result
in a commission split. (Id.). The producers are
supported by a team of individuals to handle administrative
needs in a practice called “team-selling, ” a
practice used by plaintiff's prior two employers.
(Id. at ¶¶ 20-22).
maintains that deals under the $5, 000 revenue threshold
would still need to be serviced by a broker licensed in that
focus area, while plaintiff denies that the policy requires
the producer sourcing the incoming business to be licensed in
that focus area. (Id. at ¶¶ 17-18).
Plaintiff testified that the policy “[d]oesn't
allude to that at all, ” and “if you sourced a
deal that, as it reads, [is] outside of your discipline and
it fell below that $5, 000 threshold, you were working
directly with the team and I would assume you were
compensated accordingly.” (Doc. 53, Ex. 1 at 123). The
company's “Producer Commission Splits Policy”
states in relevant part:
All Commercial P&C and Group Employee Benefits accounts
less than $5, 000 in revenue do not require producers to
co-produce, regardless of discipline. All Commercial P&C
accounts < [(under)] $5, 000 will be managed through Penny
Bailey. All Group Employee Benefits Accounts < $5, 000 in
revenue will be managed through Lynne Scott.
(Doc. 53 at Ex. 6).
fall of 2016, plaintiff observed co-workers Rick Frechmann,
John Breslin, Chris Fox, and John Hensel discussing benefits
coverage with prospective clients without possessing the
requisite licenses, which plaintiff believed was illegal.
(Docs. 42 and 53, ¶ 25). Plaintiff believes that general
conversations regarding benefits coverage could be legal, but
providing information on a “plan-specific” basis
is illegal. (Id. at ¶ 23). Plaintiff also
objected to Frechmann and Breslin receiving commissions for
EB deals when not licensed in EB at the time of the deals.
(Id. at ¶¶ 26-28). Plaintiff believed each
of these co-workers engaged in illegal conduct by discussing
EB coverages with multiple businesses when they were not
licensed in EB. (Id. at ¶¶ 29-32). The
specific actions are described as follows.
claims that Frechmann, who was not licensed in EB when
plaintiff was employed by AssuredPartners, discussed EB
coverage with Lanter Distributing, Liviara, Total Access
Urgent Care, Granny 8 Mortgage, and an unnamed business in
Springfield, Missouri. (Docs. 42 and 53, ¶ 29).
Frechmann brought the Lanter business in somehow, then worked
with two EB-licensed producers, Chase Butler, and Scott, with
plaintiff testifying that Butler “had not been involved
after the sale” and that Frechmann was
“continuing to give advice . . . to people at
Lanter.” (Id. at ¶¶ 36-37; Doc. 53,
Ex. 1 at 180, 85). Frechmann received compensation for the
Lanter EB revenue, with the parties disputing whether he
split the commissions with the EB producers. (Docs. 42 and
53, ¶¶ 40-42).
regard to Liviara, Frechmann approached plaintiff for
assistance in bringing Liviara's EB business to
AssuredPartners. (Id. at ¶ 43). The parties
agree that Frechmann informed plaintiff he spoke with Liviara
regarding its current EB manager and AssuredPartners' EB
capabilities. (Id. at ¶ 44). However, plaintiff
asserts that Frechmann further discussed data analytics
related to EB plans that were not actually available to them,
as well as the difference between “tweaking” the
EB plan they already had versus new coverage. (Id.).
The parties also dispute plaintiff's firsthand knowledge
of these communications. (Id. at ¶ 45).
Plaintiff claims Frechmann directly informed him of these
conversations. (Id.). Then plaintiff was brought in
and handled the EB side, after which point plaintiff admits
Frechmann did not have any further improper communications
with Liviara. (Id. at ¶ 50).
also asked his Property & Casualty client, Total Access
Urgent Care, if they would be interested in using
AssuredPartners for EB needs. (Id. at ¶¶
52-53). They agreed, and Frechmann and plaintiff had several
conversations where plaintiff explained certain aspects of EB
to Frechmann in advance of Frechmann's conversation with
Total Access, but plaintiff was not a party to this
conversation with Total Access or brought in for the Total
Access pitch. (Id. at ¶¶ 53-57). However,
Frechmann brought in other EB producers, Scott, Butler, and
Hennessey, to land and manage Total Access's EB business.
(Id. at ¶¶ 58-59). Plaintiff was not a
party to any conversations with Total Access, nor did Scott
tell plaintiff any details about the communications with
Total Access, but plaintiff asserts that Frechmann told him
he presented the option of being self-funded to Total Access,
which plan may or may not have involved insurance.
(Id. at ¶¶ 60-65).
respect to Granny 8 Mortgage, the parties agree that Granny
8's CEO sent Frechmann an email inquiring whether
AssuredPartners provided EB. (Id. at ¶ 66). The
parties dispute what occurred next. Defendant claims
Frechmann informed Granny 8 he would need to grab a teammate
and then approached plaintiff to pitch to Granny 8.
(Id. at 67). Plaintiff claims, however, that while
Frechmann eventually informed Granny 8 that he should bring
in a specialist, he did not approach plaintiff until after
detailed conversations with Granny 8 about a specific
disability insurance program, including provisions in the
insurance policy and the definition of
“disability.” (Id. at ¶¶
67-69). Plaintiff was not a party to Frechmann's
conversation with Granny 8 but later went on a pitch with
Frechmann to Granny 8 at Frechmann's request, where
plaintiff led the EB discussions. (Id. at
Frechmann informed plaintiff he had a conversation with an
unnamed company in Springfield regarding EB, and then a
second conversation with that company based on
plaintiff's advice to Frechmann about technical aspects
of EB. (Id. at ¶¶ 73-74). A Property &
Casualty producer, Joleen Mayfield, assisted Frechmann with
soliciting the Property & Casualty business, and the
presentation would have discussed EB but “not in the
traditional sense.” (Id. at ¶¶
78-79). Plaintiff was not present for either conversation and
was not aware of whether a formal pitch was made or another
EB producer was brought in, nor can plaintiff recall whether
he saw the presentation to this company. (Id. at
¶¶ 75-76, 80). However, he asserts, based on his
conversations with Frechmann, that Frechmann acted illegally
by having technical conversations about EB with this company
without an EB license. (Id. at ¶¶ 77, 81).
same month he learned of plaintiff's lawsuit, Frechmann
obtained his EB licenses. (Docs. 53 and 61, ¶¶
7-11). The parties agree he had received commissions on EB
revenue despite not having life and health licenses.
(Id. at ¶ 8). Frechmann testified that he had
“been looking to get [the EB licenses] for a while,
” but he “kept putting it off” because he
was too busy, but he “forced [his] schedule to open up
for a period of time” in September 2017, shortly after
this case was filed, in order to do so, because he
“thought it was time.” (Id. at
claims that Breslin, who was not licensed in EB when
plaintiff was employed by AssuredPartners, discussed EB
coverage with Great Clips, Slider House, and Bank of
Washington. (Docs. 42 and 53, ¶ 30; Doc. 61, ¶ 6).
Great Clips was a P&C client that reached out to Breslin
for EB assistance. (Docs. 42 and 53, ¶ 83). Plaintiff
asserts Breslin had illegal conversations with Great Clips
regarding EB coverage, though the parties agree plaintiff was
not a party to these conversations. (Id. at ¶
82). Breslin told Great Clips that AssuredPartners could
assist with EB coverage and contacted plaintiff to handle the
prospective EB business. (Id. at ¶ 84).
Plaintiff attended multiple meetings and participated in
multiple phone conversations with Great Clips during which
Breslin did nothing illegal. (Id. at ¶¶
85-87). Breslin sent an email to plaintiff stating
“[t]his account has obviously become a stress and
distraction for the both of us” and that it had
“been a death by cuts.” (Docs. 53 and 61, ¶
47). He said he was going to “write a document to Robin
and the team [at Great Clips] later today.”
(Id. at ¶ 49). The parties dispute who handled
the policy rate negotiations with Great Clips. (Docs. 42 and
53, ¶ 89). Plaintiff received 50 percent of the EB
commissions from Great Clips, while Breslin received the
other 50 percent. Plaintiff claims that Breslin discussed
compensation for services rendered to Great Clips and should
not have received 50% of the commissions on EB products
because he was not licensed in EB. (Id. at
¶¶ 88, 91).
respect to Slider House, Breslin informed plaintiff he had
been in communication with Slider House before asking
plaintiff's help in bringing in their EB business, and
these conversations “in a small way” discussed
technical aspects of AssuredPartner's EB practice.
(Id. at ¶ 93). Specifically, Breslin detailed
AssuredPartner's ability to provide Affordable Care
Act-compliant plans, though defendant denies that Breslin
discussed ACA-compliant plans. (Id. at ¶¶
94-95). Plaintiff was not present at the initial
conversations but claims Breslin personally shared with him
the details of these conversations with Slider House.
(Id. at ¶ 94). Plaintiff did attend a later
meeting with Breslin and Slider House, where plaintiff
discussed EB and Breslin said nothing illegal. (Id.
at ¶¶ 96-97).
Breslin engaged plaintiff in a deal with Bank of Washington
early on, but a meeting never materialized. (Id. at
¶ 99). The parties agree that Breslin labelled the deal
as an “EB deal” in AssuredPartners' system.
(Id. at ¶ 98). Plaintiff claims and defendant
disputes that Breslin told plaintiff he had detailed
conversations with an individual at Bank of Washington about
EB capabilities of AssuredPartners. (Id. at
¶¶ 98, 100-101).
claims that Fox discussed EB coverage with Natoli Engineering
prior to obtaining his EB license. (Id. at ¶
31). Plaintiff explained certain technical EB concepts and
talking points to Fox, who then informed plaintiff that he
had “at least” a phone conversation with Natoli.
(Id. at ¶ 102). Plaintiff was not present for
this conversation but claims that based on his conversation
with Fox after the Natoli phone call, he “felt”
like Fox had spoken to Natoli about technical things
surrounding EB, such as brokerage compensation and the
premium Natoli was paying on its plan. (Id. at
claims that Hensel, who was not licensed in EB when plaintiff
was employed by AssuredPartners, discussed EB coverage with
Harley Davidson and Bender Construction. (Id. at
¶ 32). Plaintiff led the conversation with Bender, and
Hensel said nothing illegal during the meeting. (Id.
at ¶ 107). Plaintiff could not specifically identify any
illegal actions taken by Hensel other than plaintiff
believing that Hensel provided an illegal level of detail and
improperly positioned himself about having EB expertise.
(Id. at ¶ 106). However, plaintiff admitted he
knew nothing specifically that Hensel said to either company
that was illegal or that he suspected was in violation of the
law. (Id. at ¶ 108).
Other Allegedly Illegal Conduct
plaintiff makes a variety of allegations regarding other
co-workers' activities. He alleges that after he left,
Carol Stojeba received commissions for a P&C deal when
she was not licensed in P&C, though he did not know how
she framed her conversation with the client. (Id. at
¶¶ 109-10). He also claims that Michael Behan was
illegally paid on an EB deal without a license, but his only
basis for this is that Behan was on the team for that
client-which also was a P&C client. (Id. at
has an “open door policy” for reporting illegal
activity to supervisors, human resources, or an “Ethics
AlertLine” hotline, where employees should be able to
voice any concern, for any reason, without fear of adverse
action. (Id. at ¶ 113; Doc. 61, ¶ 54).
Kearns stated that if an employee perceives that an activity
is illegal, then the employee should report it. (Docs. 53 and
61, ¶ 52).
did not make a complaint to human resources or the ethics
hotline, nor did he file a complaint with the Missouri
Department of Insurance. (Id. at ¶ 117-18).
Instead, he spoke with his supervisor, Nick Hejna, three
times about his concerns. (Id. at ¶ 120).
First, plaintiff raised the issue of Breslin's lack of
license via text message in August or September 2016. (Docs.
42 and 53, ¶ 121; Docs. 53 and 61, ¶¶ 22-23).
The text message stated: “how do we handle splitting EB
revenue when the other producer isn't licensed? Breslin
is P&C only.” (Docs. 42 and 53, ¶ 123). Hejna
responded that Breslin would become licensed in EB before the
end of the year. (Docs. 42 and 53, ¶ 125; Doc. 61,
in January 2017, plaintiff approached Hejna in person,
complaining that Fox, Frechmann, and Breslin were “all
out engaging in a level of soliciting business . . . without
licenses” and that Breslin and Frechmann were not
licensed in EB but receiving commissions on EB deals. (Docs.
42 and 53, ¶¶ 126-28). Plaintiff testified that
Hejna “seemed to understand what [plaintiff] was
saying” with regard to his reports of illegal conduct
on the part of these producers. (Id. at ¶ 129).
During this meeting, Hejna informed plaintiff that other
employees were making comments about him. (Id. at
on February 15, 2017, plaintiff met with Hejna again,
reporting that some producers were "breaking the
law.” (Id. at ¶ 132). Plaintiff believes
and defendant does not dispute that he specifically mentioned
Breslin and Frechmann, and plaintiff's objection that
these producers were receiving commissions on EB deals when
they were not licensed as EB producers. (Id. at
¶ 133). Hejna informed plaintiff that Scott had reached
out to him that with regard to a specific client, she felt
plaintiff was not involving her the way she thought plaintiff
should, and that Scott wanted a fee agreement and wanted to
know why plaintiff had not given it to her yet. (Id.
at ¶ 144).
parties dispute other alleged communications at this February
meeting. Defendant claims that Hejna had received feedback
from eight AssuredPartners employees that they were
displeased with plaintiff's comments about his perception
of the company's inadequacies. (Id. at ¶
146). Defendant claims that Hejna warned plaintiff
“this would be the last conversation [they] would have
regarding [plaintiff's] attitude and approach to
communicating with those in [AssuredPartners]. If further
action is required, it will lead to termination.”
(Id. at ¶ 147). Plaintiff claims, on the other
hand, that Hejna only informed him that he had received
“feedback from people . . . around comments that
[plaintiff] had made about, again, where the firm was headed,
specific to why producers were still unlicensed when that was
supposed to be remedied, and why in the employee benefits
practice people - like Joe Hennessey and Carol Stojeba were
still allowed to, in [plaintiff's] words, kind of do
whatever they wanted ...