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Multifamily Captive Group, LLC v. Assurance Risk Managers

June 15, 2009

MULTIFAMILY CAPTIVE GROUP, LLC, A MARYLAND CORPORATION; AND SAMANTHA GUMENICK, AN INDIVIDUAL, PLAINTIFF,
v.
ASSURANCE RISK MANAGERS, INC., A COLORADO CORPORATION; LISA ISOM, AN INDIVIDUAL; CALIFORNIA APARTMENT ASSOCIATION, A CALIFORNIA ASSOCIATION, DEFENDANT.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on a motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56. Plaintiffs Multifamily Captive Group ("MCG") and Samantha Gumenick ("Gumenick") (collectively "plaintiffs") move for summary judgment on their unjust enrichment/restitution claim, asserting that there is no genuine issue of material fact that defendants Lisa Isom ("Isom") and Assurance Risk Managers, Inc. ("ARM") (collectively "defendants") received a benefit from plaintiffs' efforts, the benefit was received at the expense of plaintiffs, and it is unjust for defendants to retain this benefit. For the reasons set forth below, plaintiffs' motion is DENIED.

BACKGROUND*fn1

MCG is a Maryland corporation offering insurance programs tailored to the needs of multifamily and real property owners and managers. (First Amended Complaint ("FAC"), filed May 15, 2008, at ¶¶ 1, 10.) According to the Complaint, MCG "brings together experts in residential and commercial real estate with authorities in insurance program management. (Id. ¶ 10.)

In early 2003, CAA, an association of owners, managers, and vendors of rental property located throughout California, began considering providing property and general liability insurance to its members. (Decl. of Vicki Walters in Supp. of Mot. for Summ. J. ("Walter Decl."), Filed Feb. 3, 2009, at ¶ 3.) Through August 2005, CAA and Gumenick discussed a captive insurance program and/or the possibility of a sponsored property and liability program instead of a captive insurance program. (Id. at ¶¶ 6-7.) As of December 2005, CAA had not adopted a program and began contemplating selecting a broker or agency that would work with CAA to provide a property and general liability insurance program for CAA members. (Id. at ¶ 8.)

According to plaintiffs, "[o]n or about October 1, 2006, Plaintiffs and CAA, by its Senior Vice President of Operations, Vicki Walter, entered into an oral agreement whereby Plaintiffs would serve as the exclusive broker for the creation, sale, and marketing of the Insurance Programs." (Pls.' Opp'n to CAA's MSJ and Cross-req. for Partial Summ. J. ("MPSJ"), filed April 2, 2009, at 4.) Plaintiffs maintain that they "continuously worked on CAA's behalf to establish the Insurance Programs" between October 2006 and May 2007. (Id. at 6.)

According to Isom, an insurance broker and president of ARM, defendants first became involved with CAA when Gumenick contacted Isom in August of 2006. (Decl. of Lisa Isom in Opp'n to Pls.' Cross-req. for Partial Summ. J. ("Isom Decl.") at ¶ 4.) Isom contends that Gumenick represented to Isom that she was a "consultant," and they began discussing workers' compensation programs for CAA in August 2006. (Id. at ¶¶ 3-4.) Further, Isom maintains that at no time did Gumenick advise her or ARM that Gumenick and/or MCG had an exclusive agreement or relationship with CAA relative to the development of an insurance program. (Id. at ¶¶ 5-6.)

Isom and Gumenick worked together for about one month; then Gumenick ceased all communication with Isom. (Id.) Defendants assert that from approximately September 2006 until late April 2007, defendants and plaintiffs had not communicated regarding the development of an insurance program. (Id. at ¶ 7.)

Plaintiffs maintain that, as of late April 2007, Isom and ARM were aware Gumenick had an exclusive agreement with CAA to develop insurance on their behalf. (Pls.' Reply Mem. In Resp. to Isom and ARM's Opp'n to Cross-Req. for Partial Summ. J. ("Reply Mem."), filed July 3, 2009, at 2.) Further, plaintiff contends that Isom sent the following email to Gumenick to reassure her Isom and ARM would not cut plaintiffs out of any deal defendants made with CAA.

I apologize for not calling you early today, however, was just getting ready to call you and actually had a telephone call with Vicki [Walter]. We had several very positive conversations over the past few days and I would like to discuss all possibilities that you are working on, as well as, some ideas we have been working on as well.

As I explained yesterday late afternoon, I would like to get up-to-date with you and what you have been workings [sic] on and certainly do not want to disturb those ideas or plans, however, I would like to continue my efforts to provide this as an option to the Association [CAA]. It is exciting and I want you to feel assured that my intention is to not leave you out of this option.

When you have some time, please give me a call and we can discuss in more detail. If you would feel more comfortable in calling me with Vicki on the call, please do so.

Thanks Lisa Isom Assurance Risk Managers (Ex. 116 to Dep. of Lisa Isom ("Isom Dep.") Mar. 16, 2009.)

Defendants contend that Gumenick called Isom, a few days after the April 26, 2007 e-mail, and told Isom that Gumenick "no longer desired to work with [Isom] or ARM, stating that if [Gumenick] wanted to include [Isom] in discussions concerning the development of an insurance program, she would have returned [Isom's] calls." (Isom Decl. ΒΆ 10.) Soon thereafter, in May 2007, Isom began contacting brokers with whom Gumenick had been working. (See Ex. 203 to Isom Dep. (May 18, 2007 email, to which ...


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