Submitted Date: December 6, 2018
Defendant's Motion to Dismiss Counts III, IV, and V, and
Plaintiff's Partial Motion for Judgment on the Pleadings.
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.
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.
L. Scott, Jr. Judge.
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.
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
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
"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."
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.
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.
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.
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 in addition to the claim Kirtley breached the
Employment Agreement by failing to pay the 90% buy-out fee.
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.
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.
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 of circumstances
susceptible of proof under the complaint. 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.The complaint must be without merit as a
matter of fact or ...