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Kuhbier v. McCartney, Verrino & Rosenberry Vested Producer Plan

United States District Court, S.D. New York

March 8, 2017

ANDREAS KUHBIER, Plaintiff,
v.
MCCARTNEY, VERRINO & ROSENBERRY VESTED PRODUCER PLAN; MCCARTNEY, VERRINO & ROSENBERRY VESTED PRODUCER PLAN ADMINISTRATOR; MCCARTNEY, VERRINO & ROSENBERRY INSURANCE AGENCY; MCCARTNEY & ROSENBERRY GROUP, INC., Defendants.

Elizabeth E. Hunter, Esq. William D. Frumkin, Esq. Frumkin & Hunter LLP Goshen, NY White Plains, NY Counsel for Plaintiff

Michael J. Cannon, Esq. Lorin A. Donnelly, Esq. Milber Makris Plousadis & Seiden, LLP Woodbury, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS UNITED STATES DISTRICT JUDGE

         Plaintiff Andreas Kuhbier (“Plaintiff”) filed suit against Defendants McCartney, Verrino & Rosenberry Vested Producer Plan; McCartney, Verrino & Rosenberry Vested Producer Plan Administrator; McCartney, Verrino & Rosenberry Insurance Agency; and McCartney & Rosenberry Group, Inc. alleging, among other things, that Defendants breached their obligations under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), with respect to certain amounts owed to him under a qualifying plan, and that Defendants similarly breached their contractual obligations to Plaintiff. Plaintiff also alleges that Defendants failed to comply with a document request under ERISA and that Defendants breached other contractual obligations set forth in Plaintiff's employment agreement. Plaintiff moves for partial summary judgment with respect to his claim for unpaid distributions under ERISA, and Defendants cross-move for summary judgment on the same claim as well as for Plaintiff's breach of contract claims. For the following reasons, Plaintiff's Motion is granted in part and denied in part, and Defendants' Motion is denied.

         I. Background

         A. Factual Background

         The following facts are taken from the Parties' respective statements pursuant to Local Rule 56.1 and the documents submitted by each side in support of their Motions.

         Defendant McCartney & Rosenberry Group, Inc. (“McCartney & Rosenberry” or the “Agency”) was, at all relevant times, engaged in the insurance agency business. (See Defs.' Statement of Material Facts (“Defs.' 56.1”) ¶ 7 (Dkt. No. 82); Pl.'s Counter-Statement Pursuant to Local Rule 56.1 (“Pl.'s Resp. 56.1”) ¶ 7 (Dkt. No. 93); see also Decl. of Lorin A. Donnelly (“Donnelly Decl.”) Ex. I (Dkt. No. 81).) Verrino & Associates, Inc. (“Verrino & Associates”), a former defendant in this case, was also engaged in the insurance agency business. (See Defs.' 56.1 ¶ 6; Pl.'s Resp. 56.1 ¶ 6; see also Donnelly Decl. Ex. H.)

         Plaintiff began working as an independent contractor for Verrino & Associates in May 2005, (see Donnelly Decl. Ex. E (“McCartney Tr.”), at 27-28; Donnelly Decl. Ex. H; see also Defs.' 56.1 ¶ 10; Pl.'s Resp. 56.1 ¶ 10), and, at the same time, became an independent contractor for McCartney & Rosenberry, (see McCartney Tr. 27-28; Donnelly Decl. Ex. I; see also Pl.'s Statement Pursuant to Local Rule 56.1 (“Pl.'s 56.1”) ¶ 3 (Dkt. No. 88); Defs.' Local Rule 56.1 Resp. to Pl.'s Statement of Material Facts (“Defs.' Resp. 56.1”) ¶ 3 (Dkt. No. 90); Defs.' 56.1 ¶ 11; Pl.'s Resp. 56.1 ¶ 11). On May 3, 2005, Plaintiff entered into producer agreements with both Verrino & Associates and McCartney & Rosenberry. (See Donnelly Decl. Exs. H, I; see also Donnelly Decl. Ex. F (“Verrino Tr.”), at 26; Pl.'s 56.1 ¶ 3; Defs.' Resp. 56.1 ¶ 3; Defs.' 56.1 ¶ 12; Pl.'s Resp. 56.1 ¶ 12.) Plaintiff's work as a producer consisted of soliciting consumers for insurance and selling insurance. (See Donnelly Decl. Ex. D (“Kuhbier Tr.”), at 20; see also Defs.' 56.1 ¶ 14; Pl.'s Resp. 56.1 ¶ 14.) Plaintiff was paid by commission. (See Verrino Tr. 28; see also Defs.' 56.1 ¶ 19; Pl.'s Resp. 56.1 ¶ 19.)

         1. The 2009 Agreement

         On January 1, 2009, McCartney & Rosenberry acquired the outstanding stock of Verrino & Associates. (See Verrino Tr. 17-19; Donnelly Decl. Ex. G; see also Defs.' 56.1 ¶ 8; Pl.'s Resp. 56.1 ¶ 8.) Later, in February 2009, Plaintiff, now an employee of McCartney & Rosenberry, (see Verrino Tr. 31-32; see also Defs.' 56.1 ¶ 20; Pl.'s Resp. 56.1 ¶ 20), entered into a new producer agreement (the “2009 Agreement”) with McCartney & Rosenberry that was retroactive to January 2009 and superseded the prior producer agreements, (see Donnelly Decl. Ex. K (“2009 Agreement”); see also Kuhbier Tr. 46-47; Pl.'s 56.1 ¶ 4; Defs.' Resp. 56.1 ¶ 4; Defs.' 56.1 ¶ 30; Pl.'s Resp. 56.1 ¶ 30). The 2009 Agreement included three schedules-A, B, and C-when it was signed. (See Kuhbier Tr. 49-51; McCartney Tr. 48; 2009 Agreement; see also Pl.'s 56.1 ¶ 5; Defs.' Resp. 56.1 ¶ 5; Defs.' 56.1 ¶ 31; Pl.'s Resp. 56.1 ¶ 31.) Most relevant here, the 2009 Agreement provides that the producer “may participate in [McCartney & Rosenberry's] Vested Producer Plan, subject to the terms and conditions set forth in SCHEDULE B hereto.” (2009 Agreement 3; see also Defs.' 56.1 ¶ 36; Pl.'s Resp. 56.1 ¶ 36.) Schedule B of the 2009 Agreement, entitled “Vested Producer Plan, ” provides that “[o]n the seventh (7th) anniversary of the Employment Date, Producer shall become eligible to participate in [McCartney & Rosenberry's] Vested Producer Plan as follows.” (2009 Agreement, at Schedule B; see also Pl.'s 56.1 ¶¶ 7-8; Defs.' Resp. 56.1 ¶¶ 7-8; Defs.' 56.1 ¶ 39; Pl.'s Resp. 56.1 ¶ 39.) The Vested Producer Plan is set forth as follows:

a. [McCartney & Rosenberry] will maintain an ongoing and updated listing of Producer's accounts, which [McCartney & Rosenberry] will provide to Producer for review on a periodic basis. All such accounts coded to Producer (excluding any Life, Health or Employee Benefit policies) shall be referred to herein as Producer's Book of Business.
b. Upon the Producer's retirement or death (“Termination Date”), [McCartney & Rosenberry] shall pay to Producer (or his/her estate) a bonus amount equal to thirty-five percent (35%) of the sum of all gross commissions paid to [McCartney & Rosenberry] with respect to Producer's Book of Business over the prior 12-month period. Such bonus shall be payable in equal monthly installments on the first of each month for 60 months following the Termination Date.
c. Any violation of Sections 5 or 6 of this Agreement by Producer will result in forfeiture of the bonus payable under the Vested Producer Plan and will require Producer to immediately return all payments already received.
d. The Employment Date shall be the date hereof; provided, however, if Producer had been engaged previously on a continuous basis as an independent contractor prior to the date hereof, the Employment Date, shall be deemed to have commenced on the date of the Producer's first independent contract agreement.
e. The parties intend that this Vested Producer Plan comply with Section 409A of the Internal Revenue Code, the applicable Treasury Regulations promulgated thereunder and Internal Revenue Service Notice 2005-1, and shall be interpreted consistently therewith.

(2009 Agreement, at Schedule B.) Section 5 of the 2009 Agreement prohibits Plaintiff from disclosing confidential information or using confidential information for his own benefit without the express consent of McCartney & Rosenberry. (See Id. at 2; see also Defs.' 56.1 ¶ 33; Pl.'s Resp. 56.1 ¶ 33.) Section 6 of the 2009 Agreement prohibits Plaintiff for a period of five years from soliciting or attempting to influence any accounts handled by McCartney & Rosenberry, or soliciting or attempting to persuade any other producer or salesperson of McCartney & Rosenberry to work for or represent another insurance broker, insurance agent, or insurance company. (See 2009 Agreement 2; see also Defs.' 56.1 ¶ 34; Pl.'s Resp. 56.1 ¶ 34.) Schedule C of the 2009 Agreement provides that with respect to item (d) of the Vested Producer Plan, Plaintiff's first contract date was May 5, 2005. (See 2009 Agreement, at Schedule C; see also Pl.'s 56.1 ¶ 78; Defs.' Resp. 56.1 ¶ 78; Defs.' 56.1 ¶ 43; Pl.'s Resp. 56.1 ¶ 43.)

         The 2009 Agreement also addresses the issue of amendment. Specifically, the 2009 Agreement states that “[t]his written Agreement contains the entire Agreement between the parties and shall supersede any and all other agreements between the parties.” (2009 Agreement 3; see also Pl.'s 56.1 ¶ 61; Defs.' Resp. 56.1 ¶ 61.) The 2009 Agreement goes on to stipulate that “no waiver or modification of this Agreement or any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the parties to be charged therewith.” (2009 Agreement 3; see also Pl.'s 56.1 ¶ 62; Defs.' Resp. 56.1 ¶ 62.)

         Beyond the Vested Producer Plan, the 2009 Agreement includes a number of other relevant provisions. Among other things, the 2009 Agreement provides that the producer (Plaintiff) was “an at-will employee whose employment with [McCartney & Rosenberry] shall be terminable by either party at any time and for any reason, subject to applicable law.” (2009 Agreement 1; see also Pl.'s 56.1 ¶ 69; Defs.' Resp. 56.1 ¶ 69; Defs.' 56.1 ¶ 32; Pl.'s Resp. 56.1 ¶ 32.) The 2009 Agreement stipulates also that “[McCartney & Rosenberry] shall reimburse Producer for reasonable and necessary business expenses in accordance with SCHEDULE A.” (2009 Agreement 2; see also Defs.' 56.1 ¶ 35; Pl.'s Resp. 56.1 ¶ 35.) The 2009 Agreement offers, separate from the Vested Producer Plan, participation in a “[s]imple IRA” whereby a producer may contribute his or her own pre-tax income to the retirement plan and McCartney & Rosenberry will contribute up to $6, 000. (See 2009 Agreement, at Schedule A; see also Defs.' 56.1 ¶ 37; Pl.'s Resp. 56.1 ¶ 37.) Finally, paragraph 10 of Schedule A to the 2009 Agreement provides that the producer is “required to produce a minimum of $50, 000 in new Property & Casualty insurance premiums per month. [McCartney & Rosenberry] shall review production on a monthly basis and reserves the right to adjust the amount drawn against future commissions if Producer does not meet the sales goals or fulfill his/her obligations under this contract.” (2009 Agreement, at Schedule A; see also Defs.' 56.1 ¶ 38; Pl.'s Resp. 56.1 ¶ 38.)

         In addition to Plaintiff, the Vested Producer Plan was offered to at least two other employees: Brian Berkson and Allen Mednick. (See Verrino Tr. 63-64; see also Pl.'s 56.1 ¶ 15; Defs.' Resp. 56.1 ¶ 15; Defs.' 56.1 ¶ 46; Pl.'s Resp. 56.1 ¶ 46.)

         On January 4, 2010, Plaintiff signed an amendment to the 2009 Agreement, Schedule D, which amended paragraph 10 of Schedule A and required Plaintiff to now produce “a minimum of $7500 in gross new Property & Casualty insurance revenue per month.” (2009 Agreement, at Schedule D; see also Defs.' 56.1 ¶ 48; Pl.'s Resp. 56.1 ¶ 48.) On January 15, 2010, Plaintiff signed another amendment that, among other things, removed the provision allowing for reimbursement of certain expenses. (See 2009 Agreement, at Schedule E; see also Defs.' 56.1 ¶ 50; Pl.'s Resp. 56.1 ¶ 50.) A Schedule F removing the Vested Producer Plan was presented to Plaintiff by Defendants in November 2011. (See Kuhbier Tr. 114, 118; see also Pl.'s 56.1 ¶ 63; Defs.' Resp. 56.1 ¶ 63.) In January 2012, Defendants asked Plaintiff to sign Schedule F, (see Kuhbier Tr. 115-16; see also Pl.'s 56.1 ¶ 64; Defs.' Resp. 56.1 ¶ 64), but Plaintiff refused and never signed Schedule F, (see Kuhbier Tr. 117; McCartney Tr. 87-88; see also Pl.'s 56.1 ¶ 67; Defs.' Resp. 56.1 ¶ 67; Defs.' 56.1 ¶ 52; Pl.'s Resp. 56.1 ¶ 52).

         2. Administration of the Vested Producer Plan

         The benefits provided by the Vested Producer Plan are paid out of McCartney & Rosenberry's general account. (See McCartney Tr. 105-06; Verrino Tr. 90; see also Pl.'s 56.1 ¶ 19; Defs.' Resp. 56.1 ¶ 19.) The terms of the Vested Producer Plan were determined by various owners of McCartney & Rosenberry after consultation with an attorney. (See McCartney Tr. 28, 65; see also Pl.'s 56.1 ¶ 20; Defs.' Resp. 56.1 ¶ 20.)

         To qualify for benefits under the Vested Producer Plan, a producer must have worked for at least seven years from his or her initial date of employment, must no longer be working at McCartney & Rosenberry, and must not have violated Sections 5 and 6 (the confidentiality and non-compete clauses) of the 2009 Agreement. (See McCartney Tr. 81; see also Pl.'s 56.1 ¶ 32; Defs.' Resp. 56.1 ¶ 32.) Scot McCartney, one of the owners of McCartney & Rosenberry, also added that the process for determining whether a producer qualified for benefits under the Vested Producer Plan included “making sure that they did their job, and so on and so forth.” (McCartney Tr. 81; see also Defs.' Resp. 56.1 ¶ 32.)

         The first two steps involve simply verifying that the producer had worked for at least seven years and was no longer with McCartney & Rosenberry. (See McCartney Tr. 81, 96; see also Pl.'s 56.1 ¶¶ 33-34; Defs.' Resp. 56.1 ¶¶ 33-34.) Determining compliance with Sections 5 and 6, however, is more complicated. McCartney testified that the owners would be generally responsible for ensuring that an otherwise qualified producer had not violated Sections 5 and 6 during his or her tenure and was not doing so after terminating his or her employment. (See McCartney Tr. 98, 101-03; see also Pl.'s 56.1 ¶¶ 35-36; Defs.' Resp. 56.1 ¶¶ 35-36; Defs.' 56.1 ¶ 56; Pl.'s Resp. 56.1 ¶ 56.) Though there is no formal system for monitoring compliance with Sections 5 and 6, McCartney testified that he is careful to hire trustworthy employees so as to avoid any issues with those provisions. (See McCartney Tr. 77-78; see also Pl.'s 56.1 ¶ 37; Defs.' Resp. 56.1 ¶ 37.) Beyond that, McCartney sometimes directs employees to alert him if they have heard of an account leaving, (see McCartney Tr. 105; see also Pl.'s 56.1 ¶ 38; Defs.' Resp. 56.1 ¶ 38; Defs.' 56.1 ¶ 57; Pl.'s Resp. 56.1 ¶ 57), and John Verrino, another owner, testified that he might become suspicious of a violation if he started to see “systematic things happen to [the producer's] book, ” such as “cancellations com[ing] in” or loyal clients leaving, (Verrino Tr. 78; see also Pl.'s 56.1 ¶ 40; Defs.' Resp. 56.1 ¶ 40). Both McCartney and Verrino indicated that they would investigate if they ever suspected a violation of Sections 5 or 6. (See McCartney Tr. 78; Verrino Tr. 90; see also Pl.'s 56.1 ¶ 41; Defs.' Resp. 56.1 ¶ 41.)

         Once it is determined that a producer is eligible to receive benefits under the Vested Producer Plan, the next step is to calculate the amount of benefits. (See McCartney Tr. 96-97; see also Pl.'s 56.1 ¶ 44; Defs.' Resp. 56.1 ¶ 44.) The amount to be paid to a qualifying producer under the Vested Producer Plan is calculated at 35% of the commissions earned by the producer for McCartney & Rosenberry during the 12-month period preceding his or her retirement or death. (See 2009 Agreement, at Schedule B.) Though there is some dispute as to how the amount is calculated, the Parties are in agreement that the amount is derived, at least in part, from the computer-generated “Producer Reports” or “Production Reports, ” distributed monthly to producers as a way to track the producers' commissions. (See McCartney Tr. 65-68; Verrino Tr. 74; see also Pl.'s 56.1 ¶¶ 26-27, 31; Defs.' Resp. 56.1 ¶¶ 26-27, 31; Defs.' 56.1 ¶¶ 62-63; Pl.'s 56.1 ¶¶ 62-63.) From those reports, the Agency determines the “total amount of commission paid to the [A]gency that's reflected in [the producer's] [B]ook of [B]usiness, ” or, in other words, the amount of commission paid to the Agency that is attributable to the producer. (See McCartney Tr. 72; see also Pl.'s 56.1 ¶ 47; Defs.' Resp. 56.1 ¶ 47.) The Parties agree that not all commission earned by the producer is included when calculating the 35% payout, but they disagree as to some of the categories of accounts that are excluded. (See Defs.' 56.1 ¶ 67; Pl.'s Resp. 56.1 ¶ 67; see also Pl.'s Mem. of Law in Opp'n to Mot. for Summ. J. (“Pl.'s Opp'n”) 3 n.1 (Dkt. No. 92).)

         3. Plaintiff's Performance At and Departure From the Agency

         Throughout his time at the Agency, Plaintiff was among the producers who were unable to meet his production goals. (See McCartney Tr. 86, 88-89, 91, 125; Verrino Tr. 123-24; see also Defs.' 56.1 ¶ 68; Pl.'s Resp. 56.1 ¶ 68.) According to Defendants, for a period of time, the owners held weekly meetings with producers to discuss their performance, (see McCartney Tr. 40-41; see also Defs.' 56.1 ¶ 27), but these producer-only meetings did not last Plaintiff's entire term of employment, (see McCartney Tr. 41-42; see also Kuhbier Tr. 67-68; Pl.'s Resp. 56.1 ¶ 27).

         Plaintiff testified, however, it was not until October 2010, when the owners presented Plaintiff with the amendment to the 2009 Agreement removing the provisions related to expense reimbursement, that he became aware that the owners were dissatisfied with his performance. (See Kuhbier Tr. 105-07; see also Pl.'s Resp. 56.1 ¶ 69.) A letter from April 2011 indicates that McCartney and Verrino met with Plaintiff around that time to discuss the fact that he had not met his production goals. (See McCartney Tr. 124-25; Donnelly Decl. Ex. R; see also Defs.' 56.1 ¶ 81; Pl.'s Resp. 56.1 ¶ 81.) Plaintiff further attested that in November 2011, he met with McCartney and Verrino to discuss performance issues related to his inability to retain and sign new clients. (See Kuhbier Tr. 111; see also Defs.' 56.1 ¶ 84; Pl.'s Resp. 56.1 ¶ 84.) At this meeting, McCartney and Verrino discussed with Plaintiff the possibility of removing him from the Vested Producer Plan. (See Kuhbier Tr. 118; McCartney Tr. 84-85; see also Pl.'s 56.1 ¶ 63; Defs.' Resp. 56.1 ¶ 63; Defs.' 56.1 ¶ 85; Pl.'s Resp. 56.1 ¶ 85.)

         At any rate, there is no dispute that in January 2012, one of the owners wanted to terminate Plaintiff's employment, although the Agency ultimately decided to retain Plaintiff. (See Verrino Tr. 131-32; see also Pl.'s 56.1 ¶ 71; Defs.' Resp. 56.1 ¶ 71.) It was shortly after this decision that the owners approached Plaintiff with Schedule F, which purported to eliminate the Vested Producer Plan, and asked for his signature on the amendment. (See Kuhbier Tr. 115- 16; McCartney Tr. 139; see also Pl.'s 56.1 ¶¶ 65-66; Defs.' Resp. 56.1 ¶¶ 65-66.) Plaintiff refused to sign Schedule F. (See Kuhbier Tr. 117; McCartney Tr. 89; see also Pl.'s 56.1 ¶ 67; Defs.' Resp. 56.1 ¶ 67.) On January 13, 2012, Plaintiff received the following letter from McCartney and Verrino:

This letter will serve as an acknowledgment that you have refused to sign Amendment “F” of your producer contract that was given to you on Jan 9th, 2012. This amendment specifically refers to the removal of your “Producer Vested” retirement plan.
. . . .
It is important to note that this plan differs from your deferred compensation plan, which is provided to you and is offered to all employees. In addition, this plan was designed to give you an additional enhancement to your contract in order to encourage the longevity of your employment at [McCartney & Rosenberry]. . . .
This letter will also serve as notice the [sic] you are in violation of your producer contract dated Jan 9th, 2009, for “Lack of production” and it is imperative that you attempt to fix the situation immediately as your future with [McCartney & Rosenberry] is in jeopardy.

(Donnelly Decl. Ex. V; see also Pl.'s 56.1 ¶ 68; Defs.' Resp. 56.1 ¶ 68; Defs.' 56.1 ¶ 87; Pl.'s Resp. 56.1 ¶ 87.)

         By letter dated June 20, 2012, Plaintiff resigned from his position at McCartney & Rosenberry. (See Donnelly Decl. Ex. W; see also Pl.'s 56.1 ¶ 82; Defs.' Resp. 56.1 ¶ 82; Defs.' 56.1 ¶ 101; Pl.'s Resp. 56.1 ¶ 101.) In a letter dated the same day, McCartney acknowledged receipt of Plaintiff's resignation and asked that Plaintiff's last day at work be moved up from July 3, 2012 to June 29, 2012. (See Donnelly Decl. Ex. X; see also Pl.'s 56.1 ¶ 85; Defs.' Resp. 56.1 ¶ 85; Defs.' 56.1 ¶ 102; Pl.'s Resp. 56.1 ¶ 102.) McCartney also attached a copy of the 2009 Agreement and stated: “We trust that you will uphold your obligations of your contract, particularly those items that make reference to your responsibilities once you have left [McCartney & Rosenberry].” (Donnelly Decl. Ex. X; see also Pl.'s 56.1 ¶ 85; Defs.' Resp. 56.1 ¶ 85; Defs.' 56.1 ¶ 102; Pl.'s Resp. 56.1 ¶ 102.)

         Plaintiff never received any benefits under the Vested Producer Plan. (See Verrino Tr. 159; see also Pl.'s 56.1 ¶ 121; Defs.' Resp. 56.1 ¶ 121; Defs.' 56.1 ¶ 103; Pl.'s Resp. 56.1 ¶ 103.) Defendants assert that Plaintiff never received any benefits under the Vested Producer Plan because he failed to reach his sales objectives at the Agency as set forth in the 2009 Agreement. (See Defs.' 56.1 ¶ 103.)

         Verrino testified that it had never come to his attention, nor had he ever suspected, that an employee violated Sections 5 or 6 of the 2009 Agreement. (See Verrino Tr. 77-78; see also Pl.'s 56.1 ¶ 89; Defs.' Resp. 56.1 ¶ 89.) Verrino also testified that he never suspected or believed that Plaintiff had violated Sections 5 or 6. (See Verrino Tr. 156-57; see also Pl.'s 56.1 ¶ 90; Defs.' Resp. 56.1 ¶ 90.)

         4. Plaintiff's Post-Termination Activity

         During the course of this litigation, Defendants obtained, through discovery, certain of Plaintiff's cell phone records for the period of June 1, 2012 through December 31, 2012. (See Decl. of Elizabeth E. Hunter, Esq., in Supp. of Pl.'s Mot. for Partial Summ. J. (“Hunter Decl.”) ¶¶ 20-21 (Dkt. No. 86); see also Pl.'s 56.1 ¶¶ 98-99; Defs.' Resp. 56.1 ¶¶ 98-99.) The requested phone records relate to calls made by Plaintiff to three different numbers, belonging to the “Highway Rehab” account, Peerless Insurance Company, and Griffin Landscaping. (See Hunter Decl. ¶ 19; Decl. of Andreas Kuhbier in Supp. of Pl.'s Mot. for Partial Summ. J. (“Kuhbier Decl.”) ¶ 12 (Dkt. No. 87); see also Pl.'s 56.1 ¶ 97; Defs.' Resp. 56.1 ¶ 97.)[1] The records indicate that Plaintiff made three calls ...


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