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LIAN v. SEDGWICK JAMES OF NEW YORK

January 27, 1998

PHILIP E. LIAN, Plaintiff, against SEDGWICK JAMES OF NEW YORK, INC., SEDGWICK JAMES OF CONNECTICUT, INC., and BRIAN INNES, Defendants.


The opinion of the court was delivered by: CHIN

 Chin, D.J.

 In this employment defamation case, plaintiff Philip E. Lian alleges that he was defamed when his supervisor sent an e-mail to other members of the department stating that the supervisor and plaintiff had agreed that plaintiff would begin seeking other employment. Plaintiff alleges that there was no such agreement. Yet, he promptly tendered his resignation. He then commenced this lawsuit for libel and intentional infliction of emotional distress, alleging that the e-mail was defamatory.

 Defendants move for summary judgment. Because no reasonable jury could find that the e-mail was defamatory or that defendants' conduct exceeded all bounds of decency, defendants' motion is granted and the complaint is dismissed.

 BACKGROUND

 Plaintiff is a licensed insurance agent who has been in the business of selling insurance since 1982. Defendants Sedgwick James of New York ("Sedgwick NY") and Sedgwick James of Connecticut ("Sedgwick CT") are, respectively, a New York corporation and a Connecticut corporation, both of which provide institutional insurance brokering services. Defendant Brian Innes was employed by Sedgwick CT as the Managing Director of Sales of the New York Metro Region Group.

 Plaintiff was hired by Sedgwick NY in September of 1995. Initially, he worked as an insurance salesperson in the National Accounts Division. In January of 1996, he was reassigned to a newly-created marketing group, the New York Metro Region Group, where he continued to work as an insurance salesperson. At the time of plaintiff's reassignment, Richard Mitarotonda was the Managing Director of Sales and plaintiff's supervisor.

 Innes replaced Mitarotonda as Managing Director of Sales of the New York Metro Region Group on April 15, 1996, becoming plaintiff's new supervisor. From the record, it is apparent that tensions developed between plaintiff and Innes almost immediately after Innes assumed his new position. The two met several times between mid-April 1996 and June 3, 1996, the date of plaintiff's resignation. It is undisputed that during these meetings, Innes repeatedly expressed concern about the manner in which plaintiff was handling certain transactions and other client matters. In particular, Innes complained that plaintiff was not following company procedure and that as a result, plaintiff's transactions were "fraught with E&O concern." *fn1" (Wolff Aff., Exh. 11, Innes Dep. at 173). The parties do disagree, however, on the substance of their discussions about plaintiff's continued employment with the company.

 According to Innes, at an April 30, 1996 meeting, he suggested that plaintiff begin looking for other employment. At the conclusion of this meeting, Innes wrote a "Memo to File," in which he documented his concerns about "the manner in which [plaintiff was] representing our company, the type of business being generated using our name, . . . and the possibility of E&O exposure because procedures are not being followed." (Wolff Aff., Exh. 4). Innes testified at his deposition that he forwarded the memo to Ann McFadden, the director of Human Resources at Sedgwick NY, for placement in plaintiff's personnel file.

 Plaintiff, on the other hand, contends that during the April 30, 1996 meeting, Innes never advised him to begin looking for work elsewhere. Rather, according to plaintiff, at that meeting, Innes merely told plaintiff that he wanted him to concentrate his efforts on his New York area business and to forego his established client base located outside of the New York area. Plaintiff purportedly told Innes that he had no objection to this "change of direction." (Wolff Aff., Exh. 10, Lian Dep. at 386-92). For purposes of this motion, I accept plaintiff's description of the meeting and I assume that he was not told at the meeting to begin looking for other work.

 On May 3, 1996, during a telephone conversation with Innes, plaintiff claims to have reiterated his assent to limiting his business activity to New York area clients. Plaintiff maintains that during this telephone conversation, he expressed his desire to continue working at Sedgwick NY for at least the remainder of 1996. Plaintiff adamantly insists that at no time did Innes terminate his employment or seek his resignation. Again, I accept these allegations for purposes of this motion.

 The events that followed the May 3, 1996 telephone conversation are not disputed. Later that afternoon, Innes distributed the following e-mail message to at least ten Sedgwick employees, including members of plaintiff's sales group and the head of Sedgwick NY's Human Resources department, Ann McFadden:

 
I have today agreed with Phil Lian that he will begin to seek employment and opportunity outside of Sedgwick effective immediately. We have agreed that he may remain on the payroll for 60 days (including, not in addition to, any accrued vacation time) to effect this transition and to use his office on the 3rd floor only to arrange interviews, etc.
 
Phil has agreed he is NOT to transact any further business in the name of Sedgwick. We have agreed to assist in the transition of business he has generated to his new employer, i.e. we will honor Letters of Appointment he may produce. These measures are necessary to protect our E&O exposure.
 
We both hope the process will not take 60 days but have also agreed it will not take longer as far as Sedgwick is concerned -- the end of June ...

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