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Albright v. Alliant Specialty Insurance Services, Inc.

United States District Court, W.D. Washington, Tacoma

July 11, 2018

TODD ALBRIGHT, an individual, Plaintiff,

          ORDER ON CROSS MOTIONS [DKT. #S 38, 71, 104]

          Ronald B. Leighton United States District Judge.

         THIS MATTER is before the Court on Plaintiff Albright's Motion for Partial Summary Judgment on Choice of Law [Dkt. #38] and Defendants' Motion for Summary Judgment [Dkt. #71].

         Albright is a Tacoma-based insurance broker and a Vice President of Illinois-based Arthur J. Gallagher Risk Management Services. He specializes in brokering insurance policies for Native American tribal entities in Oklahoma, Washington, and California. Defendant Jeff Martins is an Executive Vice President, and Defendant Robert Shearer is a Vice President, at Defendants Alliant Specialty Insurance Services, Alliant Insurance Services, and Tribal First (collectively, “Alliant”). Alliant has long competed with Albright in the specialized tribal insurance market.

         Alliant had long-standing business relationships with two non-party insurance brokerages, Scott McCoy Insurance and Bomford Couch and Wilson. These relationships were governed by co-brokerage agreements (CBAs). McCoy also had a similar CBA with the Gallagher's Tacoma office (where Albright worked) and it shared with that office revenue it earned from Alliant accounts. However, Alliant did not allow Albright personally to work on any of its accounts.

         In 2016, Gallagher acquired (or merged with; it is not clear) McCoy and Bomford. Gallagher and McCoy terminated their existing CBAs (including the one between McCoy and Gallagher Tacoma). Alliant similarly sought to enter new CBAs with McCoy and Bomford to govern their relationship going forward, apparently in light of those entities' new relationship with Gallagher. Shearer was charged with drafting new CBAs (one for McCoy and one for Bomford, though both were now part of Gallagher). He forwarded drafts to a group of high level Alliant, McCoy, Bomford, and Gallagher employees in three states (Washington, Oklahoma, Illinois, and California) for review.

         The draft CBAs spelled out Alliant's continuing desire not to work with its competitor, Albright, even though it would continue to work with McCoy and Bomford:

Broker agrees that it will assign only competent, licensed personnel to perform any direct or indirect work or services under this agreement. Broker understands and agrees that under no circumstances will it assign or allow Todd Albright to perform any task under this Agreement. Todd Albright is expressly precluded from representing Alliant, or any of its products, services, or trade names, including Tribal First, for any purpose whatsoever.

[Dkt. # 38 at page 3]

         Albright obtained a copy of this draft at his Tacoma office. He complained to Gallagher's in-house counsel that the language defamed him. That attorney relayed these concerns to Alliant's counsel, and the final version of each CBA places the “Albright exclusion” several paragraphs below the “licensed and competent” requirement. Albright concedes that the final version of the CBAs is not defamatory.

         Nevertheless, Albright claims the damage was done. He sued Shearer, Martins[1], and Alliant for defamation and defamation per se. He claims the draft language defamed him, and that they damaged his reputation when they sent it to his peers, by implying that he is not licensed and not competent. He claims damage is presumed, but also claims he lost $12, 500 he would have earned if he had not been excluded from some deals. Albright also asserts a tortious interference claim (alleging that Alliant interfered with his relationship with McCoy), and a sort of catch-all negligence claim, alleging that someone at Alliant had a duty to see that such drafts were not tortiously circulated, and they failed.

         Defendants seek summary judgment on all of Albright's claims. They argue first that the statement was not defamatory, either on its face or by implication. It is instead a valid, additional requirement for those who can work on its accounts: the broker must be 1) competent, 2) licensed, and 3) not Todd Albright. Alliant argues that this does not imply that Albright is either unlicensed or incompetent[2]. They also argue that the draft language was privileged as a matter of law-they and those they sent it to have a common business interest in sharing information, and such communications are not defamatory as a matter of law (unless it is shared maliciously). Defendants also argue that the CBAs are not tortious because excluding a broker from working on a certain account is not an improper conduct, an element of improper interference that Albright must establish. They claim Albright had no right to work on Alliant accounts and he only “lost” money they were never going to let him earn because of that exclusion, not because of draft contract language they once proposed using to implement that exclusion.

         Albright argues that the common interest privilege extends only to members of a single corporate entity, and the draft CBAs are between three different corporate entities. He also claims he needs additional discovery into whether Defendants circulated the draft language maliciously. Albright further argues that pending depositions are likely to shed light on whether Defendants engaged in improper conduct, such as acting outside of industry norms with the intent to harm Albright, and thus summary judgment on his tort claims would be improper before further discovery.

         Albright also filed his own summary judgment motion, asking the Court to determine as a matter of law that the laws of each of the states where Alliant forwarded the drafts-Illinois, California, and Oklahoma-apply to his defamation claims. He apparently seeks to recover punitive damages under the laws of the three non-forum states (punitive damages are not recoverable in Washington) but it is not clear why the Court would need to apply three (or four) sets of laws to these claims, and (other than punitive damage availability) Albright does not demonstrate that the choice of law is outcome determinative[3].

         Alliant claims that such a cumbersome choice of law analysis is unwarranted where the outcome in each case is the same: the communications were privileged and they were not defamatory as a matter of law.

         I. ...

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