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Niemeier v. Assuredpartners of Missouri, LLC

United States District Court, E.D. Missouri, Eastern Division

March 19, 2019

ANDREW NIEMEIER, Plaintiff,
v.
ASSUREDPARTNERS OF MISSOURI, LLC, Defendant.

          MEMORANDUM AND ORDER SUSTAINING PLAINTIFF'S MOTION REGARDING EXPERT TESTIMONY AND REPORT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. MOTION FOR SUMMARY JUDGMENT

         The 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).

         The 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).

         Defendant 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).

         In the 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.

         A. Frechmann

         Plaintiff 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).

         With 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).

         Frechmann 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).

         With 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 ¶¶ 70-72).

         Finally, 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).

         In the 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 ¶¶ 12-14).

         B. Breslin

         Plaintiff 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).

         With 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).

         Finally, 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).

         C. Fox

         Plaintiff 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 ¶¶ 103-06).

         D. Hensel

         Plaintiff 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).

         E. Other Allegedly Illegal Conduct

         Finally, 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 ¶ 111).

         AssuredPartners 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).

         Plaintiff 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, ¶ 23).

         Second, 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 ¶ 143).

         Third, 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).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The 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&#39;s comments about his perception of the company&#39;s inadequacies. (Id. at &para; 146). Defendant claims that Hejna warned plaintiff &ldquo;this would be the last conversation [they] would have regarding [plaintiff&#39;s] attitude and approach to communicating with those in [AssuredPartners]. If further action is required, it will lead to termination.&rdquo; (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 ...


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