Pombriant v. Blue Cross/Blue Shield of Maine

562 A.2d 656, 1989 Me. LEXIS 192

• Court: Supreme Judicial Court of Maine
• Decided: July 14, 1989
• Status: Published

Opinions

GLASSMAN, Justice.

The defendant, Blue Cross/Blue Shield of Maine (Blue Cross), appeals from a judgment for the plaintiff, Paul Pombriant, entered on a jury verdict in the Superior Court (Androscoggin County, Cole, J) awarding Pombriant compensatory and punitive damages for Blue Cross’s tortious interference with a contract between Pom-briant and Bennett Industries (Bennett) and the breach of a contract between Pom-briant and Blue Cross. Blue Cross challenges the sufficiency of the evidence to support the awards and contends a double recovery of compensatory damages was awarded to Pombriant. We affirm the judgment.

I

The jury would have been warranted in finding, inter alia, the following facts: Both Pombriant and the Bill Johnson Insurance Agency, Inc. (Johnson) are licensed insurance brokers. Bennett is a shoe manufacturing and importing business. Although its manufacturing arm is located in Maine, its executive headquarters is located in Lynn, Massachusetts. Prior to 1983, Johnson had been the broker of record for Bennett and placed Bennett’s insurance with Aetna Life and Casualty (Aetna).¹ By a letter dated March 28, 1983 signed by its executive vice president of finance, Donald Miller, Bennett changed its broker of record to Pombriant. This letter was on file with Blue Cross. Pombriant continued Bennett’s insurance coverage with Aetna.

In 1983 Blue Cross initiated a new program, managed by Lynn Edwards (Edwards), providing for the first time that Blue Cross Vould pay a commission to brokers. In furtherance of this program, Blue Cross signed agreements with a limited number of brokers providing that its insurance in Maine would be sold only through these brokers. Pombriant and Johnson both had such an agreement with Blue Cross. In 1983, Edwards issued to all the brokers for Blue Cross a “Quote Protocol” setting out the procedure to be followed when requests for quotes on the same business were received from one or more of its brokers.²

Beginning in August 1988 a district manager of Blue Cross contacted Pombriant several times about the possibility of Blue Cross making a proposal for Bennett’s insurance for 1984. By a letter dated January 6, 1984, Johnson forwarded to Blue Cross a letter signed by Clifton Whitney as vice-president of manufacturing for Bennett, stating that Johnson had been appointed as of January 5,1984 the broker of record for Bennett. The district manager showed this letter to Pombriant. Pombriant insisted that the district manager accompany him to the Portland office of Blue Cross to examine the March 1983 letter appointing Pombriant Bennett’s broker of record and reminded the district manager of the many telephone calls he had made to Pombriant seeking the insurance coverage of Bennett. From the district manager’s assurance, “Paul, you’re our man,” Pombri-ant understood that when furnished with the necessary data, Blue Cross would furnish Pombriant quotations for Bennett’s insurance coverage. To avoid any further misunderstanding, a letter dated January 13,1984 signed by Miller was forwarded to Blue Cross affirming that Pombriant was Bennett’s broker of record for its insurance programs and would remain so*and further stating that “this letter supersedes any and all previous letters.”

Shortly thereafter, Pombriant received the necessary census and experience data from Aetna and met with Blue Cross representatives on February 8 at which time the data was furnished Blue Cross and the nature of the proposal for insurance coverage of Bennett by Blue Cross was discussed. Pombriant later learned that Aet-na by mistake had also furnished this information to Johnson. After Blue Cross advised Pombriant they would not give a proposal on the Bennett business, Pombriant learned that a proposal on this business had been furnished by Blue Cross to Johnson. Pombriant immediately contacted the district manager and was assured that a proposal would also be furnished to Pom-briant. When Pombriant went to the office of Blue Cross to pick up the proposal, he was advised by the district manager that he could not be given one. Pombriant reminded the district manager that he was the broker of record for all of Bennett’s insurance programs and asked why the protocol established by Blue Cross was not being followed, he was referred to Edwards. Edwards advised Pombriant there was confusion as to who was the broker of record for Bennett. Almost immediately a telephone message from Bennett was left in the office of Edwards advising her that Johnson was not the broker of record for Bennett. That same day a letter was sent by Federal Express to Edwards confirming that Pombriant not Johnson was the broker of record for Bennett for all its insurance programs and that all information, requests, proposals and any other matters pertaining to insurance for Bennett was to go through Pombriant’s office.

Pombriant never received a proposal from Blue Cross on Bennett’s insurance. By a letter dated March 5, 1984, Edwards advised Pombriant that Blue Cross was that week issuing its only proposal on the Bennett insurance coverage to another broker. On March 14, Pombriant’s attorney sent a Mailgram to Blue Cross indicating that if the Bennett insurance business was placed through Johnson it would represent a breach of Pombriant’s contract. The Bennett insurance coverage by Blue Cross for 1984 was placed through Johnson, who received $12,371.63 over a four-year period as a brokerage fee for such placement. Blue Cross removed Pombriant from its list of approved brokers. In 1983 Pombriant had received $15,000 as a brokerage fee for the placement of Bennett’s coverage with Aetna for that year. He had also incurred some expenses in traveling to and from Lynn, Massachusetts to service the account. The jury also heard testimony that the Bennett account was the only account Pombriant had lost in the ten years he had been in business, and since his removal from the list of Blue Cross approved brokers, he was unable to place any insurance with Blue Cross.

By his complaint against Blue Cross, Pombriant sought compensatory and punitive damages from Blue Cross for its alleged willful and tortious interference with Pombriant’s contract with Bennett and for Blue Cross’s breach of contract with Pom-briant. After a trial, by a special verdict form the jury found that Blue Cross had intentionally and improperly interfered with Pombriant’s business relationship with Bennett and awarded Pombriant $12,-371.63 as compensatory damages; that Blue Cross had breached its contract with Pombriant and awarded Pombriant $100,-000 for that breach of contract and awarded an additional $250,000 to Pombriant as punitive damages. Judgment was entered for Pombriant in the amount of $362,-371.63, plus interest and costs. After a hearing, the trial court denied Blue Cross’s motion for a judgment notwithstanding the verdict or a new trial, and Blue Cross appeals.

II

Blue Cross first contends that because the evidence is insufficient to support the jury’s finding that Blue Cross tor-tiously interfered with Pombriant’s contractual relationship with Bennett, the trial court erred in denying Blue Cross’s motion for a judgment notwithstanding the verdict. We disagree.

In reviewing the denial of Blue Cross’s motion for a judgment notwithstanding the verdict we determine whether by any reasonable view of the evidence, including the inferences to be drawn therefrom, taken in the light most favorable to Pombriant, the verdict can be sustained. Buchanan v. Martin Marietta Corp., 494 A.2d 677, 678 (Me.1985). The judgment in favor of Pom-briant must stand unless it is clearly erroneous. Cyr v. Michaud, 454 A.2d 1376, 1380 (Me.1983). We have long recognized that if a person by fraud or intimidation procures the breach of a contract that would have continued but for such wrongful interference, that person can be liable in damages for such tortious interference. MacKerron v. Madura, 445 A.2d 680, 683 (Me.1982).

Contrary to the assertions of Blue Cross, intimidation is not restricted to “frightening a person for coercive purposes.” See Taylor v. Pratt, 135 Me. 282, 195 A. 205 (1937) (intimidation for physician-defendant to tell plaintiff’s employer he would withdraw all prescriptions and see that none of his patients had prescriptions filled at employer’s pharmacy so long as plaintiff employed at pharmacy); MacKerron v. Madura, 445 A.2d at 683 (allegation that defendant police officer advised plaintiff attorney’s client defendant would seek to have criminal charges against client dismissed if attorney withdrew from case included essential element of intimidation). Our examination of the record discloses that the evidence presented to the jury would reasonably support a finding that Blue Cross procured the breach of contract between Pombriant and Bennett by the intimidating means of making it clear to Bennett that the only manner in which it could avail itself of Blue Cross’s lower rates for the desired insurance would be by using the brokerage services of Johnson; and, but for such wrongful interference by Blue Cross, the contract between Bennett and Pombriant would have continued. Accordingly» we find no error in the trial court’s denial of Blue Cross’s motion for a judgment notwithstanding the verdict of the jury in that regard.

Ill

Blue Cross also contends that the evidence was not sufficient to support the award of punitive damages and the “unusual legal status” of Blue Cross precludes such an award. We disagree.

“[P]unitive damages are available based upon tortious conduct only if the defendant acted with malice.” Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me.1985). The requirement of express or actual malice exists when the defendant’s tortious conduct is motivated by ill will toward the plaintiff. Id.; Ramirez v. Rogers, 540 A.2d 475, 478 (Me.1988). Proof of this conduct must be by clear and convincing evidence. Tuttle v. Raymond, 494 A.2d at 1362-63. The evidence in this case establishes that Blue Cross intended to mislead Pombriant and ensure that he did not get the information furnished to Johnson in order to prevent Pombriant from placing Bennett’s insurance coverage with Blue Cross, and in fact the conduct of Blue Cross did prevent Pom-briant from so doing, resulting in a financial loss to Pombriant. Our review of the record discloses that the factfinder could reasonably have been persuaded that it was highly probable that Blue Cross acted with malice toward Pombriant and therefore an award of punitive damages was permissible. See Taylor v. Commissioner of Mental Health and Mental Retardation, 481 A.2d 139, 153 (Me.1984). We find no merit in the further contention of Blue Cross that as a nonprofit corporation it has an “unusual legal status” akin to a municipal corporation that precludes the award of punitive damages, as such damages cannot be awarded against municipal corporations or government agencies.

IV

Blue Cross finally contends that the damages awarded Pombriant for its breach of its contract with Pombriant should be set aside as duplicative of the damages awarded to Pombriant for Blue Cross’s tortious interference with the contract between Pombriant and Bennett or because the amount of the damages rested upon speculation and conjecture. We disagree.

We have previously stated that the purpose of compensatory damages in a contract case is to place the plaintiff in the same position he would have been absent the breach of contract. Forbes v. Wells Beach Casino, Inc., 409 A.2d 646, 654 (Me.1979). The general rule of law requiring a party claiming damages for a wrong suffered to establish the amount to a reasonable certainty does not require absolute certainty. We stated in Merrill Trust Co. v. State of Maine, 417 A.2d 435, 440-41 (Me.1980):

Damages are not fatally uncertain for the reason that the amount of the loss sustained is incapable of exact proof by mathematical demonstration. The triers of facts are allowed to act upon probable and inferential as well as direct and positive proof. They are permitted to make the most intelligible and probable estimate which the nature of the case will permit, given all the facts and circumstances having relevancy to show the probable amount of damages suffered. A monetary award based on a judgmental approximation is proper, provided the evidence establishes facts from which the amount of damages may be determined to a probability.

See also King v. King, 507 A.2d 1057, 1059 (Me.1986) (recoverable damages need not be proved to mathematical certainty but grounded in facts already in evidence).

The parties agreed that a special verdict form be used by the jury providing for a separate finding as to the damages for the tortious interference of the contract between Pombriant and Bennett and for the breach by Blue Cross of its brokerage contract with Pombriant. Each of the awards enumerated in this form was grounded on a separate and distinct contract. Although there were two separate contracts, on the evidence in this case Blue Cross’s tortious interference with Pombriant’s contract with Bennett could only be effected by Blue Cross simultaneously breaching its own contract with Pombriant. By Blue Cross’s refusal to provide Pombriant with a price quotation for Bennett’s insurance coverage, Blue Cross not only tortiously interfered with Pombriant’s contract with Bennett but breached its own brokerage contract with Pombriant. The special verdict form provided for the allocation of the compensatory damage award to Pombriant between the two contracts. Blue Cross did not, and does not now, object to the trial court’s instructions to the jury on compensatory damages. The jury allocated $12,-371.63 as compensatory damages for the interference with Pombriant’s contract with Bennett and $100,000 for Blue Cross’s breach of its contract with Pombriant.

In support of the award of compensatory damages in the amount of $112,371.63, the jury could have found that Johnson had realized $12,371.63 in commissions from Blue Cross for the placement of part of Bennett’s insurance coverage with Blue Cross; that in 1983 Pombriant had earned $15,000 in commissions for the placement of Bennett’s insurance coverage; that he had incurred some expenses in traveling from Maine to Lynn, Massachusetts, during 1983 to service that account; that in the ten years he had been in business as an independent broker he had lost only this one client; that he was on good terms with and had expected to continue as broker of record for Bennett; and that because of Blue Cross’s breach of its brokerage contract with Pombriant, Pombriant could no longer place any insurance coverage with Blue Cross. On this evidence the jury’s award to Pombriant of total compensatory damages in the amount of $112,371.63 for his loss over a reasonable period of time of profits from commissions that he would have received in placing Bennett’s insurance cannot be said to rest on speculation or conjecture nor be a double recovery of compensatory damages for Blue Cross’s tortious interference with Pombriant’s contract with Bennett and Blue Cross’s breach of its contract with Pombriant. Accordingly, the trial court properly denied Blue Cross’s motion for a judgment notwithstanding the verdict or a new trial.

The entry is:

Judgment affirmed.

McKUSICK, C.J., and ROBERTS and WATHEN, JJ., concur.

1 . A broker becomes a representative of a company when it obtains from the company a broker of record letter. This allows the broker exclusive access to census data, such as age, sex and marital status, concerning employees to be covered by the insurance; and access to the company’s insurance experience data, including the amount of premiums paid and number and amount of insurance claims made by the company. It further allows the broker the exclusive right to present this information together with the company’s insurance requirements to an insurance company in order to secure a price at which the insurance company can provide the requested coverage.

2 . The "Quote Protocol” provided, inter alia, that if the brokers each had a broker of record letter from the proposed insured, if the insurance had been placed in the previous year by one broker, he would be assumed to be the broker of record. In case a proposal had been delivered and a dispute arose, "the proposal with original presenter will stand unless the new entrant can prove previous year placement of the group's health insurance business and can obtain a currently dated appointment as broker of record.”