ORDER ON DEFENDANTS' MOTION FOR SUMMARY
Motion for Summary Judgment of Defendants Berman &
Simmons, P.A. and William Robitzek (together
"Defendants") is before the court for decision.
Oral argument was held November 6, 2018, at which point the
court took the Motion under advisement, Factual
1987 to 2000, Plaintiff, Russell Chretien, worked as an
agency manager for Allstate Insurance Company
("Allstate"). (Defendants' Supporting Statement
of Material Facts) (Supp'g S.M.F.) ¶ 1.) In 2006,
Mr. Chretien entered into an Exclusive Agency Agreement
("EAA") with Allstate. (Supp'g S.M.F. ¶
governed the work relationship between Allstate and Mr.
Chretien and included a Termination Payment Provision
("TPP') in the event the EAA was terminated.
(Supp'g S.M.F ¶ 4.) If triggered the TPP would
provide Mr. Chretien with payment equal to his eligible
earned insurance premiums multiplied by 1.5 over a 12-month
period. (Supp'g S.M.F ¶ 4.) The EAA alternatively
allowed for Mr. Chretien to sell his book of business to a
buyer approved by Allstate instead of collecting the TPP
payment. (Supp'g S.M.F ¶ 4.) The EAA placed
restrictive covenants on Mr. Chretien and his employees not
to disclose confidential information both before and after
termination. (Supp'g S.M.F ¶ 4.) The EAA could be
terminated in the following ways: l) by mutual agreement; 2)
by either party, with or without cause, by providing 90-day
notice; and 3) by Allstate for cause. (Supp'g S.M.F
2010, Mr. Chretien planned to expand his agency by purchasing
books of business from other Allstate agents. (Opposing
Statement of Material Facts (Add. S.M.F.) ¶ 162.)
Acquisition of these books was subject to the EAA. (Add.
S.M.F. ¶ 162.)
to giving Mr. Chretien approval for these purchases, Allstate
incorporated a new coverage program and discontinued its
Deluxe Plus Plan. (Add. S.M.F. ¶ 164.) This new program
resulted in certain Allstate insureds losing their coverage.
(Add. S.M.F. ¶ 164.) The new program concerned Mr.
Chretien and he shared this concern with Allstate. (Add.
S.M.F. ¶ 167.) Concurrently, Mr. Chretien helped two
customers whose policies had not been renewed appeal their
non-renewals with the Maine Bureau of Insurance. (Add. S.M.F.
¶ 168.) These appeals were sustained in favor of the
customers in June 2011. (Add. S.M.F. ¶ 168.) In light of
this outcome, Allstate abandoned its new coverage program in
Maine. (Add. S.M.F. ¶ 169.)
denied Mr. Chretien's plan to purchase the additional
books of business. Plaintiffs Additional Statement of
Material Facts (Add. S.M.F.) ¶ 171.
spring of 2011, Mr. Chretien began speaking with United
Insurance Group ("United") about potentially
affiliating with United rather than Allstate. (Supp'g
S.M.F. ¶ 18.) On September 30, 2011 Mr. Chretien
accepted a position with United as a vice-president.
(Supp'g S.M.F. ¶ 23.) That same day, Mr. Chretien
notified Allstate that he would no longer be an exclusive
agent of Allstate by sending a 90-day written notice of
termination pursuant to the EAA. (Supp'g S.M.F. ¶
25.) In his termination notice, Mr. Chretien claimed he was
the victim of whistleblower retaliation for supporting the
Allstate customers in their appeals of Allstate's
nonrenewals of coverage. (Supp'g S.M.F. ¶ 26.)
December 20, 2011, prior to the 90-day termination initiated
by Mr. Chretien, Allstate terminated Mr. Chretien's
Allstate agency, (Supp'g S.M.F. ¶ 38.) Allstate
cited Mr. Chretien's simultaneous employment with the
United as the reason for the termination. (Supp'g
S.M.F. ¶ 38.) Allstate's termination letter stated
that Mr. Chretien was required to comply with the
confidentiality and non-solicitation provisions of the EAA
and immediately return all of Allstate's property.
(Supp'g S.M.F. ¶ 39.) As for compensation, Allstate
indicated that Mr. Chretien could either take his TPP or sell
his book of business before April 1, 2012. (Supp'g S.M.F.
December 22, 2011, Mr. Chretien sent a letter to his Allstate
customers which included information about his new United
Agency Insurance business. (Supp'g S.M.F. ¶¶
40-41.) Mr. Chretien officially opened his United Insurance
branch by January 1, 2012. (Supp'g S.M.F. ¶ 44.)
January 5, 2012, Allstate sent Mr. Chretien a cease and
desist letter, alleging that he was violating the restrictive
covenants of the EAA. (Supp'g S.M.F. ¶ 47.)
Allstate's letter informed Mr. Chretien that if he was in
violation of the EAA covenants, Allstate may "withhold
any or all remaining termination payments, and £]
pursue injunctive relief, monetary damages, attorney fees,
and expenses." (Supp'g S.M.F. ¶ 48.)
the week of January 16, 2012, Mr. Chretien met with Attorney
William Robitzek of Berman & Simmons to discuss Mr.
Chretien's dispute with Allstate. (Supp'g S.M.F.
¶ 52.) As a result, Mr. Chretien retained the Berman
& Simmons firm and attorney Robitzek to represent him in
connection with claims by and against Allstate.
January 31, 2012, Allstate filed a complaint against Mr.
Chretien and three of his employees in federal court.
(Supp'g S.M.F. ¶ 54.) Allstate's complaint
alleged four causes of action against Mr. Chretien: l) breach
of contract, 2) misappropriation of trade secrets and
confidential information, 3) unfair competition, and 4)
tortious interference. (Supp'g S.M.F. ¶ 55.)
March 5, 2012, Mr. Chretien through attorney Robitzek
answered Allstate's Complaint and asserted a counterclaim
under the following theories of liability: 1) breach of
contract, 2) tortious interference, 3) unfair competition, 4)
conversion, 5) fraud, and 6) violation of Maine's
Whistleblowers' Protection Act, 26 M.R.S. §§
831 et seq. (Supp'g S.M.F. ¶ 59.)
Robitzek did not file a Whistleblower Protection Act claim
with the Maine Human Rights Commission (MHRC) on behalf of
Mr. Chretien. (Add. S.M.F. ¶ 200.)
statute, as a result of attorney Robitzek's failure to
file a complaint on behalf of Mr. Chretien with the MHRC
within 300 days of the alleged discriminatory act, Mr.
Chretien could not recover compensatory and punitive damages
and attorney's fees under the Maine Whistleblowers'
Protection Act in his counterclaim against Allstate. (Add.
S.M.F. ¶ 201.) See 5 M.R.S. §§ 4611, 4622(1).
The reason is that Whistleblowers' Protection Act claims
are subject to the MHRC process, see 26 M.R.S. § 834-A
("Arbitration before the Maine Human Rights
Commission"). A Whistleblowers' Protection Act claim
must be filed with the MHRC, in the same way as other
employment discrimination claims must be, in order to
preserve the claimant's ability to recover compensatory
and punitive damages and attorney fees in a subsequent action
summer of 2012, Allstate agreed to a confidential settlement
with the three employees that were named as defendants in the
January 31 Complaint, and the case proceeded between Allstate
and Mr. Chretien only. (Supp'g S.M.F. ¶
63.) Around that time, Allstate offered to settle
with Mr. Chretien by paying his TPP amount minus $40, 000. In
July 2012, Mr. Chretien offered to settle all of his claims
for $445, 000 (Supp'g S.M.F. ¶¶ 85, 102, 109).
No settlement was reached and the parties entered into
mediation on November 27, 2012. (Supp'g S.M.F. ¶
67.) No settlement was obtained during mediation. (Supp'g
S.M.F. ¶¶ 68-71.)
December 20, 2012, Allstate amended its complaint to add an
additional breach of contract claim. (Supp'g S.M.F.
¶¶ 60-61.) On January 3, 2013, and March 21, 2013,
Attorney Robitzek sent letters to Mr. Chretien, warning Mr.
Chretien of the risks of going to trial and encouraging him
to settle for $300, 000. (Supp'g S.M.F. ¶¶
April 2013, attorney Robitzek became aware that his failure
to file a complaint with the Maine Human Rights Commission
precluded Mr. Chretien from recovering compensatory and
punitive damages and attorney fees on Mr. Chretien's
Whistleblowers' Protection Act claim. (Add. S.M.F. ¶
208.) However, attorney Robitzek did not inform Mr. Chretien
of his realization for more than a year, until May 2014.
(Add. S.M.F. ¶ 225.)
12, 2013, both parties filed for summary judgment.
(Supp'g S.M.F. ¶¶ 81-82.) Magistrate Judge
Kravchuk's November 2013 recommended decision on the
cross-motions granted summary judgment to Mr. Chretien on
Allstate's claims for unfair competition and tortious
interference, and granted summary judgment to Allstate on Mr.
Chretien's counterclaims for tortious interference,
unfair competition, conversion, and fraud. (Supp'g S.M.F.
motion for summary judgment sought judgment as well on Mr.
Chretien's whistleblower counterclaim, based on
Allstate's contention that Mr. Chretien was not an
employee of Allstate and therefore not entitled to protection
under the Act, but Magistrate Judge Kravchuk recommended
denying Allstate's motion in that regard, based on her
conclusion that independent contractors could be protected by
the Act. (Add. S.M.F. ¶ 228 & Tab 9).
Hornby affirmed and adopted Magistrate Judge Kravchuk's
recommended decision in December 2013. (Supp'g S.M.F.
after this on May 22, 2014, Attorney Robitzek advised Mr.
Chretien in a letter that he had not filed the Whistleblower
Protection Act claim with the Maine Human Rights Commission
within the 300-day deadline. (Supp'g S.M.F. ¶ 94);
see (Def's Tab(B).) Attorney Robitzek's letter
explained that this would likely result in Mr. Chretien
losing his ability to make a claim for compensatory and
punitive damages, and attorney fees on the
Whistleblowers' Protection Act counterclaim. (Supp'g
S.M.F. ¶ 94.) Attorney Robitzek's letter also
addressed the potential conflict of interest this created and
informed Mr. Chretien that he could seek new counsel.
(Supp'g S.M.F. ¶ 94.) Mr. Chretien decided to
continue with Attorney Robitzek and proceed to trial, which
was scheduled to begin in less than two weeks. (Supp'g
2, 2014, during a conference, the trial judge, Magistrate
Judge John Nivison, decided to allow Mr. Chretien to proceed
and present evidence on his Whistleblowers' Protection
claim, but only for limited equitable relief, including front
pay and back pay, and not for compensatory damages, punitive
damages, and attorney's fees. (Supp'g S.M.F. ¶
5, 2014, after three days of trial, Attorney Robitzek gave
Mr. Chretien a letter discussing settlement. (Supp'g
S.M.F. ¶ 107; Tab 1 (S)) In this letter Attorney
Robitzek explained the state of the whistleblower claim
(limitation on damages and attorney's fees), advised Mr.
Chretien to obtain independent counsel for settlement,
discussed what damages could be awarded to both Mr. Chretien
and Allstate at trial and the risks associated with
continuing the trial. (Supp'g S.M.F. ¶¶
108-111; Tab l(S) at 2-3) The letter indicated that best case
outcome for Mr. Chretien would be a verdict in the one
million dollar range and the worst case outcome would be a
verdict for Allstate of several hundred thousand dollars.
Tab1 (S) at 3. However, Mr. Chretien claims that there was
little downside risk in an adverse verdict because he was
prepared to declare bankruptcy if the verdict went against
him, although he had also been working to avoid bankruptcy.
(Add. S.M.F. ¶ 260); Defendant's Reply Statement of
Material Facts (Rep. S.M.F.) ¶ 260.
6, 2014, two of the trial jurors reported to Judge Nivison,
what they believed to be inappropriate behavior by Mr.
Chretien during his testimony. (Supp'g S.M.F.
¶¶ 114-16). Judge Nivison interviewed each juror
individually about the juror's report with counsel
present. (Supp'g S.M.F. ¶ 117.) The jurors appeared
not to have a favorable impression of Mr. Chretien, but it
was not clear that the jury was leaning against Mr. Chretien.
(Add. S.M.F. ¶ 117).
6, 2014, the parties attended a settlement conference with
Judge Kornreich. (Supp'g S.M.F. ¶ 119.) Attorney
Paul Brown attended the settlement conference as a
representative of Mr. Chretien. (Supp'g S.M.F. ¶
119.) Judge Kornreich recommended a specific dollar payment
by Allstate to Mr. Chretien for purposes of settling all
claims and counterclaims between them. (Supp'g S.M.F.
¶ 124.) He told Mr. Chretien that "he had to push
Allstate hard to get up to that offer and that Allstate would
not go any higher than [the recommended amount]-that was
Allstate's "final number." (Id.) It
was understood by Judge Kornreich and the parties that Mr.
Chretien could not recover compensatory and punitive damages
and attorney fees on his whistleblower claim. (Add. S.M.F.
Chretien and Allstate agreed to settle all claims and
counterclaims between them for the dollar payment by Allstate
to Mr. Chretien that Judge Kornreich had recommended and for
a release and dismissal of all ...