Posts tagged with "defenses"

Defeating Governmental Immunity: Navigating the Uphill Climb

Lawsuits against the State of Connecticut or its local municipalities are notoriously difficult to pursue from a legal perspective, in large part due to various statutory protections and administrative hurdles put in place by the legislature.  For example, a plaintiff seeking to initiate a personal injury case against her own town must adhere to strict time limitations and procedural requirements in order to have her case successfully get into court and survive the scrutiny of a judge, well before she ever comes close to having a “day in court” before a jury of her peers.

Unless the site of a plaintiff’s injury falls within one of a few narrow exceptions (such as an injury on a “public highway,” which would invoke the protections and mechanisms of Connecticut’s “highway defect statute,” or Connecticut General Statutes Section 13a-149), a plaintiff is entitled only to proceed against a state or municipality under the Political Subdivision Liability Statute (Connecticut General Statutes Section 52-557n).

Section 52-557n, however, contains its own pitfalls for prospective plaintiffs.  The statute provides that a town or political subdivision may be liable for negligent acts of its employees, officers, or agents except if such actions or omissions constitute criminal conduct or willful misconduct, or, significantly, if such negligent acts or omissions require the exercise of judgment or discretion as an official function of the job responsibility.

The latter part of this test is key – and is a gold mine for municipalities (and their lawyers) seeking to invoke the governmental immunity doctrine and escape liability for the negligence of its employees, even if such negligence is established by an injured person.  What the provision states, in plain language, is that a town may well be free and clear from liability if the task that was performed negligently was a task that required an exercise of judgment on the part of the town employee.

Take the hypothetical example of a plaintiff who was injured when she slipped on ice on the front steps of City Hall.  The evidence suggests that the maintenance workers either knew or should have known that ice had built up on the steps, that they were expecting the public to be walking in and out of the building, and that someone clearly “dropped the ball” in making sure that the ice was scraped off and that salt or sand was applied generously to the area.  Instead, nothing was done, nothing was scraped, no sand or salt was used, no warning signs were posted, and the ice remained for several business days before this plaintiff came along and fell on her very first visit to City Hall.

Even with these simplified facts (which appear at first blush to be quite damaging to the City), the City will surely investigate the existence of any policy, procedure, and practice of those maintenance workers who were assigned to the front steps of the building.  In this case, the City will attempt to prove by a preponderance of the evidence that “judgment” and “discretion” of the City employees were required to be exercised to keep those steps free of snow and ice.  On the contrary, a plaintiff will seek to demonstrate that the actions (or omissions) of the City workers were “ministerial” – that is, the workers had a clear directive to do something (e.g. to clear the ice at certain times, in a certain manner, with no exercise of judgment) and yet they failed to carry out that task, resulting in the plaintiff’s injury.

When the proverbial dust settles, if no clear, articulated policy existed to clear the steps, to inspect the steps on a scheduled basis, or to take preventative measures against ice buildup, a municipal defendant in this instance would likely argue (perhaps successfully) that the maintenance workers were required not to follow any protocol, but only to “use their judgment and discretion” in determining what needed to be kept safe and clear for pedestrian traffic.

An unknowing plaintiff (or perhaps an inexperienced attorney) who advances her case against a town believing that a jury would be shocked if there is no snow removal policy might find herself equally shocked when or if it is determined that any negligence was of a “discretionary” nature and governmental immunity therefore applies, subject to other very narrow legal exceptions not discussed here.

A savvy plaintiff, in discovery and at the very outset of the lawsuit, might request that the town admit, under oath and in writing, to the existence of a clear and articulated policy (even if it is unwritten) with regard to the safety issue which resulted in her injury.  While towns (and their attorneys) are often eager to show that preventative measures are and were in place, in this instance, they may well eliminate – as a matter of law – their own sacred protection of governmental immunity at trial.  With a valid legal admission of a clear and articulated policy, a municipal defendant is effectively hamstrung – it cannot simultaneously admit to the existence of a policy and directive while claiming that its employees were simply exercising their own judgment.  Dramatically and emphatically, the curtain of governmental immunity draws away, paving the way for a plaintiff to reach the eyes and ears of a jury.

An injured person seeking legal assistance as against the state or a municipality faces a virtual hornet’s nest of obstacles and legal entanglements.  A trusted, informed advocate is essential to place such a claim in the best possible legal position.  The invitation is open to consulting with attorneys at our firm who are experienced in this type of civil litigation.

If you have questions regarding any personal injury matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

Enforceability of Non-Solicitation Agreement for Potential Clients of Former Employer

Webster Financial Corporation v. McDonald, 2009 Conn. Super. LEXIS 169

USI Insurance Services of Connecticut, Inc., formerly Webster Insurance, Inc., employed Mr. William McDonald as a senior vice president at its Westport, CT office. The company had Mr. McDonald sign an employment agreement dated February 11, 2003 that contained non-compete and non-solicitation clauses in the event of his termination. The agreement prohibited Mr. McDonald from soliciting any of USI’s contacts that had been clients or potential clients in the twelve months prior to his termination and established a geographical limit of twenty-five miles within USI’s Westport office. As for the time limitation, the covenant was applicable for the great period of two years following Mr. McDonald’s termination or as long as he received benefits from a deferred compensation plan. Mr. McDonald resigned on September 21, 2007 and began to work at Shoff Darby, Inc., an industry competitor well within the prohibited twenty-five radius of USI’s Westport office. At his new firm, Mr. McDonald proceeded to solicit and sell insurance products to USI’s former and current clients. Additionally, he contacted several USI employees and urged them to leave the company to seek employment with Shoff Darby.
USI sued Mr. McDonald and asked the court to enforce the provisions of the restrictive covenant. Mr. McDonald presented two defenses to the court, arguing that the agreement was overly broad and therefore unenforceable. He claimed that the prohibition of potential clients and the potential unlimited duration made the non-compete agreement unreasonable and unenforceable. USI asserted the validity of the agreement and emphasized to the court that it contained a “blue pencil” provision that authorized the court to amend the time and/or geographical limitation in order to comply with Connecticut law. Mr. McDonald countered this argument stating that this legal procedure would require the court to essentially rewrite the non-compete contract, an act forbidden under Connecticut law.
The court found in favor of USI with regard to the issue of the agreement’s enforceability with its holding stating, “taking the covenant as whole, nothing on the face of the contract renders the covenant unenforceable as a matter of law”. While deliberating about the claim that the prohibition on potential clients was unreasonable, the court stated that there is no direction or precedent from the Connecticut Appellate Courts and that the Superior Courts throughout the state were divided on the issue. This court took the approach used in Cuna Mutual Life Ins. Co. v. Butler (2007 Conn. Super. LEXIS 1623) that such limitations on potential clients are reasonable so long as they are “readily identifiable and narrowly defined”. The court concluded that the potentially unlimited applicable duration of the agreement was not “per se unreasonable” because the agreement as a whole contained several other definitive restrictions such as the twenty-five radius from the Westport office and the limited group of clients for the anti-solicitation clause.

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Contract Principles in Connecticut Non-Compete Agreements: Consideration and the Parol Evidence Rule

Contract Principles in Connecticut Non-Compete Agreements: Consideration and the Parol Evidence Rule
United Rentals, Inc. v. Bastanzi, 2005 U.S. Dist. LEXIS 45268

This federal case involved an employee, one Mr. Jeffrey Bastanzi that started his own company in direct competition with his employer while still in its employment, allegedly in violation of a non-compete agreement signed by both parties. Mr. Bastanzi worked for United Rentals, Inc. from July 2003 to March 30, 2005 as a salesperson in the company’s Gainesville, Florida office. United Rentals is a Delaware corporation with principle business operations in Connecticut that rents and sells equipment and contractor supplies (including but not limited to safety equipment, hand tools, anchoring systems, hard hats, and silk fencing). Mr. Bastanzi was provided with United Rentals’ “Business Ethics Policy” and “Conflict of Interest Policy” on the first day of employment wherein the latter contained a clause stating “no employee shall own or have an interest, directly or indirectly, in any competing enterprise or activity, which conflicts or might conflict with United Rentals’ interests, except with the written approval of the Chief Operating Officer”. Ten months into the job, on May 10, 2004, United Rentals had Mr. Bastanzi sign a “Confidentiality and Non-Competition Agreement” containing non-compete, non-disclosure, and non-solicitation clauses. The covenant established a duration of twelve months, a geographical limitation of seventy-five miles in any direction of United Rentals’ Gainesville office, and stipulated that the company be entitled to injunctive relief in the event Mr. Bastanzi violated the agreement.
United Rentals alleged that Mr. Bastanzi breached the agreement by operating his own competing business, B&S Industrial and Contractor Supplies, LLC, while still employed by the company and within the twelve months following his termination. Mr. Bastanzi started B&S with his wife in 2004 and began contacting United Rentals’ vendors to inquire about becoming a distributor for their products. B&S continued to grow at a steady pace and eventually Mr. Bastanzi’s co-workers informed management that he was operating a competing business on the side. United Rentals terminated Mr. Bastanzi after it conducted an investigation into the matter and found the allegations to be true. At this point Ms. Bastanzi began to work full time at his new company B&S, at that time making approximately $30,000.00 in monthly sales. United Rentals proceeded to sue Mr. Bastanzi for breach of the non-compete agreement to which he offered three defenses to the court: 1) the agreement lacked consideration, 2) he signed the restrictive covenant under duress, and 3) the agreement was incomplete.
The court found in favor of United Rentals, ordered the enforcement of the non-compete agreement, and invalidated all of Mr. Bastanzi’s defenses. It concluded that there was indeed adequate consideration in the non-compete agreement that would make it binding upon the parties. Mr. Bastanzi received continued employment at United Rentals at a mutually agreed upon salary plus the added benefit of a conditional severance package, while United Rentals in return received Mr. Bastanzi’s services and the benefit(s) of the restrictive covenant. Citing a previous federal case, Sartor v. Town of Manchester (312 F. Supp.2d 238 (D. Conn. 2004)), the court stated that, “Connecticut recognizes that continued employment is adequate consideration to support non-compete covenants with at-will employees”.
Next, the court concluded that Mr. Bastanzi did not meet the burden of proof with respect to his claim that he signed the agreement under duress. Mr. Bastanzi failed to impress upon the court that United Rentals committed any “wrongful act or threat” in conjunction with him signing the non-compete agreement. Courts have the authority to invalidate a contract/agreement if there is sufficient evidence that one or more of the parties engaged in fraud or wrongful acts, but in the face of insufficient evidence, the court would not invalidate the agreement between United Rentals and Mr. Bastanzi.
Thirdly, the court rejected Mr. Bastanzi’s claim that the non-compete agreement was an incomplete document and therefore not binding upon the parties. To come to this conclusion, the court applied a very important contract principle, that of the Parol Evidence Rule. The rule prohibits the use of evidence outside the content contained within the four corners of the contract/agreement concerning matters discussed and governed by the finalized document. Mr. Bastanzi told the court that he received oral representations from management before he was hired stating he would not have to sign a non-compete agreement with United Rentals. The finalized document signed by Mr. Bastanzi and United Rentals however did not reflect any of these oral representations and there was not sufficient evidence that the terms of the non-compete agreement were designed to render the alleged representations binding upon the parties. Considering this and applying the parol evidence rule, the court ultimately concluded that the agreement was complete and Mr. Bastanzi’s claim lacked merit.

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Court Enforces Non-Compete and Rejects “Ambiguous Language” and “Unreasonable Restrictions” Defenses

Court Enforces Non-Compete and Rejects “Ambiguous Language” and “Unreasonable Restrictions” Defenses
Century 21 Access America v. Lisboa, 2003 Conn. Super. LEXIS 2085

Century 21 Access America was a residential real estate sales company based in Milford, Connecticut that employed Ms. Nereida Lisboa as a salesperson from April 2002 until April 2003. Her employment was contingent upon signing an Independent Contractor Agreement on April 24, 2002 wherein paragraph twelve constituted a non-compete clause. The restrictive covenant prohibited Ms. Lisboa for a period of two years from working at a competing company located within fifteen miles of Milford, Connecticut. Once Ms. Lisboa voluntarily terminated her employment with Century 21, she immediately began to work for William Raveis Real Estate, a direct competitor located directly across the street. Century 21 sued Ms. Lisboa for breach of the non-compete agreement and requested that the court enforce the provisions of the covenant.
Connecticut courts have the authority to exercise equitable power to order a temporary injunction pending final determination of the order, upon the moving party demonstrating that it will incur irreparable harm in the absence of such an injunctive order. The court found that an injunction was warranted and proper in this case and as such, granted Century 21’s request for an injunctive order to restrain Ms. Lisboa from further violations of the covenant not to compete. Ms. Lisboa offered several defenses to invalidate the agreement, including a claim that the language of the agreement was ambiguous and another claim that the provisions were unreasonable. The court ultimately rejected both of these assertions and held in favor of Century 21.
The challenging party bears the burden of proof to show that an agreement is invalid and should not be binding upon the signatory parties. The court found no merit in Ms. Lisboa’s claim that the agreement was ambiguous and that she was not obligated to refrain from any specific business activity. The court stated that “although the covenant is neither a model of clarity or precise craftsmanship, the defendant [Ms. Lisboa] fails to demonstrate how the covenant’s language, in and of itself, is ambiguous”.
The court further dissected Ms. Lisboa’s defenses and shot down her claim that the restrictions were unreasonable. It is well established in Connecticut law that a company has a proprietary right to its clients and is thus entitled to protection for that right. Century 21 had a legitimate business interest worthy of protection based on the fact that Ms. Lisboa could use information gained from Century 21’s client lists and the time she spent with the company to solicit business for herself and her new company to the detriment of Century 21. The company was well within its rights to employ reasonable restrictions to protect this legitimate business interest. Ms. Lisboa’s license to engage in the real estate industry is valid throughout the state of Connecticut and the covenant only restricted her business activities within a relatively small area with a fifteen-mile radius. This, in combination with a limited time restriction, made the court conclude that the geographical restriction was in fact reasonable and enforceable.
The court identified a legitimate business interest that required protection and concluded that the provisions of the covenant not to compete were reasonable, leading it the grant Century 21’s request for injunctive relief in the form of enforcement of the non-compete agreement.
If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

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