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Patrick L. Prindle, Esq. (State Bar No. 87516) THE REED LAW FIRM First National Bank Building 401 W. “A” Street, Suite 2315 San Diego, CA
92101 (619) 232-1300 Attorneys for Plaintiff Michael T. Brown |
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
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Michael
T. Brown Plaintiff, v. ALLSTATE INSURANCE COMPANY, a corporation; KEN
BAKER, an individual; JIM TOMASELLO, an individual, ROBERT GICK, an
individual; and DOES 1 through 50, inclusive, Defendants, |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
CASE NO. 716633 COMPLAINT FOR:
DEPT: JUDGE |
Plaintiff, MICHAEL T. BROWN, alleges as follows:
I.
GENERAL ALLEGATIONS
1. Defendant, ALLSTATE INSURANCE
COMPANY (hereinafter “ALLSTATE”) is, and at all times herein mentioned was, a
corporation operating and doing business in the State of California, and in San
Diego County, California. At all times
herein mentioned, Does 1 through 50 were employees and officers of the
defendant ALLSTATE. The acts herein
alleged occurred with the County of San Diego, State of California.
2. At all times relevant hereto,
defendants KEN BAKER and JIM TOMASELLO were residents of the State of
California.
3. At all times relevant hereto,
defendants DOES 1 through 50 were employees, agents and/or officers of
defendant ALLSTATE. Plaintiff is
ignorant of the true names and capacities of Defendants sued herein as DOES 1
through 50, and therefore sues these defendants by such fictitious names. Plaintiff will pray leave of this Court to
amend this complaint to allege the true names and capacities when the same have
been ascertained.
4. Plaintiff is informed and believes,
and based thereon alleges, that each of the defendants named herein was at all
times relevant to this action, an agent, employee, or officer of defendant
Allstate, and was acting with the course and scope of that relationship. Plaintiff is further informed and believes,
and therefore alleges, that each of the defendants herein gave consent to,
ratified, and/or authorized the acts alleged herein to each of the other defendants.
FIRST CAUSE OF ACTION
TERMINATION IN VIOLATION OF PUBLIC POLICY
(as to Defendant ALLSTATE INSURANCE COMPANY)
5. From March, 1993, Plaintiff Michael
T. Brown was employed by defendant ALLSTATE as an investigator and vendor
pursuant to its “QVC” program, and in that capacity was an integral part of the
business carried on by ALLSTATE.
6. In that capacity, ALLSTATE maintained
pervasive control over the method and manner in which Plaintiff performed work
on its behalf, including but not limited to directing Plaintiff as to the time
and place services were to be performed; the nature and extent of services to
be performed; and the content of, and opinions expressed in, reports that the
Plaintiff was required to prepare for ALLSTATE regarding investigations
performed at its direction. ALLSTATE demanded that
Plaintiff include inaccurate and false information in reports in order that
ALLSTATE would have a basis upon which to deny otherwise acceptable claims made
by its Insureds. Moreover,
ALLSTATE demanded that Plaintiff abandon performing work for all others, and
that Plaintiff devote his entire attention and business to work performed on
behalf of ALLSTATE.
7. Beginning
in or about Fall, 1996, Plaintiff observed that ALLSTATE was systematically and
unjustifiably denying claims filed by its Insureds; and that ALLSTATE was not
providing coverage for losses that were covered by its policies of insurance.
8. On or about March 17, 1997,
plaintiff mailed to KEN BAKER and JIM TOMASELLO, a letter dated August 1, 1996,
and advised ALLSTATE that it was, as a custom and practice, violating various
provisions of the California Insurance Code, including but not limited to
Section 790, et seq. A true and correct
copy of the letter is attached hereto as Exhibit 1, and incorporated herein by
this reference as though set forth at length.
Moreover, the acts of ALLSTATE violated the California Unfair
Competition Act (UCA), found at Business and Professions Code, Section 17200 et
seq.
9. Plaintiff is informed and believes,
and based thereon alleges, that within days of receiving the letter attached
herein as Exhibit 1, ALLSTATE instructed its adjusters that Plaintiff was not
competent to perform plumbing investigations and repairs and terminated its
employment relationship with Plaintiff.
10. As a proximate result of defendant’s
conduct as described herein, and in retaliation and violation of a fundamental,
substantial, and well established public policy, plaintiff was terminated from
his employment.
11. As a result of defendant’s conduct,
plaintiff has suffered harm, including loss of earnings and other employment
benefits, humiliation, embarrassment and mental anguish, and was injured in his
health, strength, and activity, all of which have caused and continue to cause
substantial mental distress and pain and suffering all to his damage in an
amount to be shown according to proof at the time of trial.
12. In so doing the acts set forth above,
ALLSTATE knew that plaintiff would be required to participate in said improper
activities or in the alternative, suffer the risk of being retaliated against
by having reported said improper activities, so as to not become implicated in
the same. Notwithstanding this
knowledge, defendant ALLSTATE despicably and in conscious disregard of
plaintiff’s rights, caused plaintiff to be terminated during May, 1997. This oppressive conduct was authorized and
ratified by defendants ALLSTATE, ROBERT GICK, JIM TOMASELLO, and KEN BAKER, and
other officers and agents of defendant ALLSTATE, whose names are unknown to
plaintiff. Defendant’s conduct warrants
the assessment of punitive damages in an amount according to proof at the time
of trial.
SECOND CAUSE OF ACTION
BREACH OF IMPLIED CONTRACT OF CONTINUED EMPLOYMENT
(as to Defendant ALLSTATE INSURANCE COMPANY)
13. Plaintiff incorporates herein by
this reference each and every paragraph herein previously alleged, and
incorporates the same herein as though set forth at length.
14. In or about March, 1993, Plaintiff and
Allstate entered an implied-in-fact employment agreement. The terms of that agreement included that
Plaintiff would not be terminated without good cause, that the employment
relationship would continue as long as Plaintiff performed his job duties
satisfactorily, and that Plaintiff would be supported in his attempts to
perform the job satisfactorily and in accordance with the law, including but
not limited to those laws referred to herein.
15. Further, based on Plaintiff’s
experience and knowledge of insurance industry practices, Plaintiff is informed
and believes, and based thereon alleges, that forcing an employee to violate
the law, including but not limited to those statutes herein above described,
and/or terminating an employee for failing and refusing to violate the law is
inappropriate to the practices of the insurance industry. Based thereon, Plaintiff further alleges
that such conduct violates the implied-in-fact employment agreement.
16. Plaintiff was employed by defendant
ALLSTATE for a period in excess of four years, consistently received excellent
performance evaluations, and was assured on numerous occasions that he would
not be terminated arbitrarily and that it was expected of him to be loyal and
honest in his dealings with defendant ALLSTATE.
17. Based on the oral representations
and promises of defendant ALLSTATE as set forth above, Plaintiff had an
employment contract with ALLSTATE that he would be employed by defendant so
long as his performance was satisfactory, and that defendant would not
discharge him without good and just cause.
18. The terms of the employment contract
included that defendant would not terminate or discharge plaintiff without good
cause and fair warning based on objective, and reasonable job evaluation.
19. Plaintiff at all times fulfilled his
duties and conditions under the contract and has been ready, willing and able
to continue performing them in a competent and satisfactory manner.
20. Notwithstanding the implied promises
to terminate the employment contract only for good cause, on or about May,
1997, defendant ALLSTATE terminated plaintiff’s employment specifying the cause
for termination was on the pretextual grounds that Mr. Brown had terminated the
employment relationship.
21. As a proximate result of defendants’
breach of employment contract, plaintiff has suffered and continues to suffer
loss of earnings and other employment benefits to his damage in the amount
according to proof at the time of trial.
THIRD CAUSE OF ACTION
BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
(as to ALLSTATE INSURANCE COMPANY)
22. Plaintiff incorporates herein by
this reference each and every allegation contained in the general allegations
and the First and Second Causes of Action, as though set forth at length.
23. The employment agreement referred to
above contained an implied covenant of good faith and fair dealing, which
covenant obligated defendant ALLSTATE to perform the terms and condition of the
agreement fairly and in good faith and to refrain from doing any act that would
prevent or impede plaintiff from performing any or all of the condition of the
contract that he agreed to perform or any act that would deprive plaintiff of
the benefits of the contract.
24. Plaintiff was employed by defendant
for a period in excess of four years and reasonably relied upon the provisions
of his employment contract regarding the causes for which he could be
discharged. Plaintiff reasonably
believed that defendant would apply to its policies even-handedly to afford
plaintiff the protection of those procedures if defendant believed there was
cause to discharge plaintiff.
25. Plaintiff performed all the duties
and condition of the employment agreement.
26. Defendant knew that plaintiff had
fulfilled all his duties and conditions under the contract.
27. Defendant breached the implied
covenant of good faith and fair dealing under the employment agreement by
discharging plaintiff intentionally, maliciously, and without probable cause,
in bad faith and for reasons extraneous to the contract, namely reporting
violations of the Insurance Code. In
fact, defendants discharged plaintiff not because his performance was
unsatisfactory, but because plaintiff, in good faith and in reasonable and
appropriate business-like manner, had attempted to notify the appropriate
officers and agents of defendant ALLSTATE regarding the alleged improper
activities being committed by employees and agents of said corporation. Such
motives were retaliatory in nature and extraneous to the employment
relationship and were intended to deprive plaintiff of the benefits thereof.
28. As a proximate result of defendant’s
breach of the implied covenant of good faith and fair dealing, Plaintiff has
suffered and continues to suffer losses in earnings and other employee
benefits, to his damage in a sum according to proof at the time of trial. As a further proximate result of defendant’s
breach of the implied covenant of good faith and fair dealing, plaintiff has
incurred reasonable attorneys’ fees in attempt to secure the benefits owed him
under the employment contract.
FOURTH CAUSE OF ACTION
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.
(As to Defendants ALLSTATE, BAKER, TOMASELLO, GICK and
DOES 1-50)
29. Plaintiff incorporates, and
realleges by this reference, each and every allegation of the general
allegations and in addition thereto, each and every allegation contained in his
First, Second and Third Causes of Action, as though set forth at length.
30. At all times herein mentioned,
defendant ALLSTATE and DOES 1-50 in doing the things herein alleged, were acting
within the course and scope of their employment, agency and with consent of
their co-defendants.
31. Plaintiff was terminated shortly
after he reported the alleged improper activities which he believed were in
violation of public policy as well as the California Insurance Code, including
but not limited to Section 790 et seq.
32. The above conduct by defendants was
intentional and malicious, and done for the purpose of causing plaintiff
anguish, humiliation, emotional and physical distress. Defendants’ acts were done in a reckless
disregard of the consequences to plaintiff.
33. Defendant’s conduct as herein above
alleged, was outside the risks inherent in the employment situation and said
acts were done because plaintiff had reported alleged improper activities by
other ALLSTATE employees, which he believed were in violation of the California
Insurance Code, and were done in contravention of public policy.
34. As a proximate result of the
aforementioned acts, plaintiff suffered humiliation, mental anguish, emotional
and physical distress, all to plaintiff’s damage and amount to be proven at the
time of trial.
35. By reason of the above-mentioned
acts, plaintiff is informed and believes, and based thereon alleges, that he
will thereby be prevented from attending to his occupation for a period of time
and in the manner which he cannot yet ascertain, and will thereby sustain
further loss of earnings.
36. The aforementioned acts of
defendants were willful, despicable, malicious. oppressive, and in
contravention of public policy, and thereby justify an award of exemplary
damages.
FIFTH CAUSE OF ACTION
DEFAMATION
(as to Defendants ALLSTATE, BAKER, TOMASELLO, GICK and
DOES 1 through 50)
37. Plaintiff reincorporates, and
realleges by this reference, each and every allegation as set forth in the
general allegations and his First, Second, Third, and Fourth Causes of Action,
as though set for at length.
38. At all times herein mentioned,
defendant ALLSTATE conducted business in the County of San Diego, and DOES 1
through 50 were agents and employees of defendant ALLSTATE, residing within the
State of California. On or about June
and July, 1997, defendant ALLSTATE informed members of the public not employed
by defendant ALLSTATE that plaintiff was not competent to perform work required
by his business and trade, and that ALLSTATE would not pay for work performed
by Plaintiff.
39. The words were a false statement
because Plaintiff was, and at all times herein mentioned has been, competent to
perform work and services as a plumber.
40. The words were understood by those
who heard them in a way that defamed plaintiff because of the fact that it
accused Plaintiff of being incompetent to perform work in his business and
trade.
41. As a result of the above-described
words, Plaintiff has suffered general damages to his reputation in an amount
according to proof at the time of trial.
42. As a further proximate result of the
above-described words, Plaintiff has suffered damages to his profession and
occupation, all to his injury in a sum according to proof at the time of trial.
43. The above-described words were
spoken by ALLSTATE with malice, and/or oppression and fraud, or with a
conscious disregard to Plaintiff’s rights, and thus entitle Plaintiff to an
award of exemplary and punitive damages according to proof at time of trial.
SIXTH CAUSE OF ACTION
INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC
ADVANTAGE
(as to ALLSTATE INSURANCE COMPANY and DOES 1-50)
44. Plaintiff reincorporates, and
realleges by this reference, each and every allegation as set forth in the
general allegations and his First, Second, Third, Fourth, and Fifth Causes of
Action, as though set forth at length.
45. At all times relevant to this
litigation, certain actual and prospective economic and business relationships
were in existence between Plaintiff and various third parties. The actual and prospective economic
relationships arose from Plaintiff’s time and effort spent developing said
relationships, and from Plaintiff’s expertise, skill, reputation, good name,
and experience. The actual and
prospective economic relationship resulted in expressions of desire by third
parties to do business with Plaintiff in the future, such relationships resulting
in economic benefit to Plaintiff through his receipt of profits from the
provision of plumbing repair services.
46. At all times relevant hereto,
defendants, and each of them, by virtue of the relationship existing by and
between themselves and Plaintiff, or through other means, had knowledge of
those actual and prospective economic relationships between Plaintiff and third
parties, and intended to interfere with those relationships through various
wrongful acts including, but not limited to, the misrepresentation of
Plaintiff’s competency to perform the duties and tasks associated with his
trade.
47. As a direct and proximate result of
the tortious interference by defendants, and each of them, Plaintiff’s
prospective economic relationships have been, and continue to be, damaged and
disrupted. Due to the prospective
nature of the relationships and wrongful acts by defendants, and each of them,
and the scope of defendant’s acts of interference, Plaintiff is uninformed of
the names, and number of each such actual and prospective client that he has
lost as a result of defendants’ wrongful interference. As a direct and proximate result of the
actual interference by defendants, and each of them, with the aforesaid
prospective economic relationships, Plaintiff has sustained damages in an
amount to be shown according to proof at the time of trial.
48. The conduct of defendants, and each
of them, was wanton, willful, malicious, oppressive, and despicable, and
justifies an award of punitive damages in an amount sufficient to punish,
deter, and make an example of defendants, and to be shown according to proof at
the time of trial.
SEVENTH CAUSE OF ACTION
UNFAIR COMPETITION – B&P CODE, SECTION 17200
(as to Defendant ALLSTATE INSURANCE COMPANY and DOES 1-50)
49. Plaintiff reincorporates, and
realleges by this reference, each and every allegation as set forth in the
general allegations and his First, Second, Third, Fourth, Fifth, and Sixth
Causes of Action, as though set forth at length.
50. Following Plaintiff’s termination, and
continuing thereafter, defendants, and each of them, repeatedly made statements
to existing and potential customers of Plaintiff, consisting of false and
defamatory representations that 1) Plaintiff was not competent to perform the
duties of his trade; that Plaintiff was not an acceptable contractor for which
defendants would reimburse its insureds if they chose to retain Plaintiff; and,
expressly and implicitly stating that Plaintiff performed inferior work which
would not be approved by defendants for reimbursement to its insureds.
51. Additionally, Plaintiff is informed
and believes, and based thereon alleges, that defendants, and each of them,
authored, published, circulated, and disseminated false and misleading writings
and memoranda which represented, expressly and implicitly, that Plaintiff
performed inferior work which would subject its insureds to damages.
52. The foregoing statements and
writings were defamatory and untrue, and clearly exposed Plaintiff to contempt
and ridicule because they portray Plaintiff to be incompetent, that Plaintiff
performed inferior work, and that Plaintiff engaged in deceitful business
practices.
53. The aforesaid misleading and
defamatory statements and writings have been heard and read by persons who have
an existing economic relationship with Plaintiff. Defendants, and each of them, made the above-described misleading
and defamatory publications with malice and oppression, and with the intent to
injure the reputation of Plaintiff with his existing and potential customers.
54. Plaintiff is informed and believes,
and based thereon alleges, that the aforesaid activities were initiated by
defendants, and each of them, as part of an overall scheme to gain an unfair
advantage over Plaintiff, to drive Plaintiff out of business, and to prevent
Plaintiff from doing business in Southern California.
55. The acts and practices described
above were and are likely to mislead the general public and therefore
constitute unfair and misleading practices within the meaning of Business and
Professions Code, Section 17200.
56. As a direct and proximate result of
the above-mentioned acts of defendants, and each of them, Plaintiff has been
damaged in an amount to be shown according to proof at the time of trial. These damages include, but are not limited
to, loss of sales to existing and prospective customers, loss of business and
personal reputation, and the expenditure of time and effort in counteracting
such statements and actions.
57.
As a further proximate result
of defendants’ conduct as hereinabove described, Plaintiff has also incurred,
and continues to incur, attorneys’ fees and costs in connection with the
prosecution of this action. Pursuant to
California Business and Professions Code, Section 17200, Plaintiff is entitled
to recovery of those fees and costs as damages.
58. The foregoing acts of defendants,
and each of them, were willful, oppressive, and malicious. Plaintiff is, therefore, entitled to recover
punitive damages in an amount sufficient to punish and set an example of
defendants, and in an amount to be shown according to proof at the time of
trial.
EIGHTH CAUSE OF ACTION
UNFAIR COMPETITION – B&P CODE SECTION 17200
(as to Defendant ALLSTATE INSURANCE COMPANY and DOES 1-50)
59. Plaintiff reincorporates, and realleges
by this reference, each and every allegation as set forth in the general
allegations and his First, Second, Third, Fourth, Fifth, Sixth, and Seventh
Causes of Action, as though set forth at length.
60. The above-described statements made
to Plaintiff’s customers, potential customers, and to the general public as
hereinafter alleged, were false and/or misleading and likely to mislead and
deceive members of the general public.
61. Defendants, and each of them, knew,
or in the exercise of reasonable care should have known, that such statements
were false and/or misleading and so acted in violation of Business and
Professions Code, Section 17500.
62. The statements were made or
disseminated with the intent to directly or indirectly enter into obligations
relating to Plaintiff’s plumbing business.
63. As a proximate result of the actions
of defendants, as aforesaid, Plaintiff has been damaged as described herein,
and in an amount to be shown according to proof at the time of trial.
64. The foregoing acts of defendants,
and each of them, were willful, oppressive, and malicious. Plaintiff is, therefore, entitled to recover
punitive damages in an amount sufficient to punish and set an example of
defendants, and in an amount to be shown according to proof at the time of
trial.
NINTH CAUSE OF ACTION
CIVIL CONSPIRACY
(as to ALLSTATE INSURANCE COMPANY and DOES 1-50)
65. Plaintiff reincorporates, and
realleges by this reference, each and every allegation as set forth in the
general allegations and his First, Second, Third, Fourth, Fifth, Sixth,
Seventh, and Eighth Causes of Action, as though set forth at length.
66. Commencing on or before May, 1997,
defendants, and each of them, entered into a conspiracy to wrongfully interfere
with Plaintiff’s prospective economic relationships, all as more particularly
alleged herein.
67. As a direct and proximate result of
the conspiracy between and among the defendants, and each of the, as set forth
herein, and the acts done pursuant thereto, Plaintiff has been damaged in
amount to be shown according to proof at the time of trial.
68. The conduct of the defendants, and
each of them, was wanton, willful, malicious, oppressive, and despicable, and
justifies an award of punitive damages sufficient to deter, punish, and make an
example of defendants, and in an amount to be shown according to proof at the
time of trial.
WHEREFORE,
Plaintiff MICHAEL T. BROWN prays for judgment as follows:
As
to Plaintiff’s FIRST through NINTH CAUSES OF ACTION:
1. General damages in an amount to be
shown according to proof at the time of trial;
2. Medical
and related expenses, according to proof at the time of trial;
3. For loss of wages, loss of value of time from
usual occupation, and impairment of earning capacity, both past and future, to
be shown according to proof at the time of trial;
4. Punitive damages in an amount to be
shown according to proof at the time of trial;
5. Prejudgment interest as allowed by
law;
6. Attorneys’ fees as allowed by law;
7. Plaintiff demands trial by jury;
8. Costs of suit incurred herein; and
9. For such other and further relief as the Court may deem just and proper.
THE REED
LAW FIRM
DATED: December 18, 1997 By:________________________________
Patrick
L. Prindle
Attorney
for Plaintiff