Reviello v. Bankers Life & Cas. Co.

JOHN REVIELLO, Plaintiff, v. BANKERS LIFE AND CASUALTY COMPANY andCNO FINANCIAL GROUP, INC., Defendants.

Civil No. 3:17-CV-01707

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

July 7, 2020

Judge Jennifer P. Wilson

MEMORANDUM

In this removal action, Plaintiff, John Reviello ("Reviello"), pursues state-law claims against Defendants, Bankers Life and Casualty Company ("Bankers Life") and CNO Financial Group, Inc. ("CNO Financial"). Bankers Life meanwhile pursues counterclaims against Reviello. Pending before the court is Defendants' motion for summary judgment on Reviello's claims. (Doc. 24.) Those claims center around a debt that Bankers Life believes Reviello owes but has not paid since he was terminated from his role as an independent contractor insurance agent. In turn, because Reviello did not pay the debt, Bankers Life reported the information to third parties, including credit-reporting agencies. And, at least according to the allegations in the complaint, that information has harmed Reviello, resulting in damages. For the following reasons, the court will grant Defendants' motion.

PROCEDURAL HISTORY

A. Reviello's Complaint

On or about June 14, 2017, Reviello filed a complaint against Defendants in the Court of Common Pleas of Luzerne County, Pennsylvania. (Doc. 1-3, pp. 1-28.)¹ In order to provide context, the court provides the following summary of Reviello's allegations.

Beginning in 2012, Reviello worked as an insurance agent for Defendants. (Id. at 5, 19.) Defendants would pay Reviello commissions on sales of their underwritten insurance policies. (Id.) In 2013, however, Defendants terminated Reviello from his position. (Id.) After the termination, Reviello began planning to start his own insurance company. (Id.)

As part of his new business, Reviello offered insurance products underwritten by third-party insurance companies. (Id.) After he entered into sales agreements with those third-party companies, however, he was either denied the ability to sell the products or denied the benefit of receiving advanced commissions on the products sold. (Id. at 6, 20.) According to Reviello, that occurred because Defendants made a "derogatory remark" on his VectorOne "Debit-Check" credit report. (Id.)

In brief, the "Debit-Check" report contains information regarding an insurance agent's credit worthiness, business dealings, and reputation. (Id.) Insurance companies and underwriters who consider selling products through insurance agents "will rely on information contained in a Debit-Check report when deciding whether to deal with an agent and on what terms." (Id.) "If there are negative or derogatory remarks in a Debit-Check report, it acts as a blacklist for the insurance agent." (Id.) With respect to the alleged "derogatory mark," Reviello avers that Defendants represented that he defaulted on his business obligations and owed money. (Id.)

Reviello disputed the representation that he owed Defendants money. (Id.) In furtherance of his dispute, Reviello sent correspondence to VectorOne on July 5, 2016, stating that the information on his report was inaccurate. (Id.)² He further requested that the information be removed. (Id.) VectorOne subsequently sent correspondence to Defendants asking them to investigate. (Id. at 6, 20-21.) On July 28, 2016, Defendants replied and requested that the information remain on Reviello's report. (Id. at 7, 21.) According to Defendants, the information had been verified and was accurate. (Id.) In turn, VectorOne allowed the information to remain on Reviello's report. (Id.)

Towards the end of 2016, Reviello sent Defendants and VectorOne additional correspondence regarding the disputed information that remained on his report. (Id.) In response to Reviello's correspondence, VectorOne asked Defendants to provide an explanation for the information no later than November 8, 2016. (Id.) Defendants, however, did not respond. (Id.) In Reviello's view, the non-responsiveness signaled knowledge of falsity of the information that Defendants initially reported and reaffirmed. (See id. at 7-8, 21.) Furthermore, Reviello perceived that Defendants maliciously reported and then verified the information "to damage [his] reputation, business relationships, and ability to successfully sell insurance products." (Id. at 8, 22.)

Based on these allegations, Reviello asserts state-law claims for defamation per se (Count I), defamation (Count II), commercial disparagement (Count III), interference with contractual relationships (Count IV), and interference with "perspective (sic) economic gain" (Count V). (Id. at 8-12, 22-26.) Reviello also avers that Defendants violated the Illinois Uniform Deceptive Trade Practices Act ("UDTPA") (Count VI). (Id. at 12-13, 26-27.) For relief, Reviello pleaded a request for "judgment in excess of $50,000," to include recovery of actual damages, compensatory damages, punitive damages, and attorneys' fees and costs. (Id. at 13, 27.)

B. Removal to Federal Court

On July 10, 2017, Defendants answered the complaint. And, on or about August 18, 2017, Reviello filed a reply. (Doc. 1-3, pp. 29-50, 53-57.) On the same date that he filed his reply, Reviello answered Defendants' requests for admissions, admitting that he actually seeks damages in excess of $75,000, exclusive of interest and costs. (Doc. 1-4, pp. 10-11.) Thus, it was confirmed that the amount-in-controversy requirement for purposes of diversity jurisdiction was satisfied.

Defendants received Reviello's admissions on or about August 22, 2017. (Doc. 1, ¶ 4.) In turn, on September 20, 2017, because complete diversity of citizenship also existed between Reviello and Defendants, Doc. 1, ¶¶ 11-15, Defendants removed the case to this court. (Doc. 1.) See 28 U.S.C. § 1332 (codifying diversity jurisdiction); see also 28 U.S.C. § 1446(b)(3) ("[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant . . . of a copy of . . . other paper from which it may first be ascertained that the case is one which is or has become removable."); Essenson v. Coale, 484 F. Supp. 987 (M.D. Fla. 1994) (denying motion to remand where the initial pleading did not allege damages in excess of the jurisdictional amount-in-controversy requirement, but the defendant timely removed upon receipt of an offer of judgment that satisfied the threshold amount).

C. Defendants' Amended Answer With Additional Defenses And Bankers Life's Counterclaims

With the court's permission, Doc. 19, Defendants filed an amended answer to the complaint. (Doc. 17-1.) In the same pleading, Bankers Life asserts counterclaims against Reviello for breach of contract, breach of fiduciary duty, misappropriation of trade secrets under the Federal Defend Trade Secrets Act, and misappropriation of trade secrets under the Pennsylvania Uniform Trade Secrets Act. (Id. at 40-43.) Furthermore, in relevant part, Defendants assert the following defenses: statute of limitations; justification; privilege; qualified privilege; truth of statements; and common interest. (See id. at 30-32.) On March 12, 2019, the pleadings closed when Reviello answered Bankers Life's counterclaims. (Doc. 20.)

D. Defendants' Motion For Summary Judgment

On September 26, 2019, after discovery closed, see Doc. 23, Defendants filed the pending motion for summary judgment on Reviello's claims. (Doc. 24.) Contemporaneously with their motion, Defendants filed a statement of material facts, supporting brief, and evidentiary exhibits. (See Docs. 25-27.) Reviello then sought multiple extensions of time to respond to Defendants' motion, which the court granted. (See Docs. 28-36.) Pursuant to the final order granting Reviello's request for an extension time, his "response" and "all associated documents" were due on or before November 14, 2019. (Doc. 36.) Reviello did not comply.

On November 15, 2019, Reviello filed an untimely brief in opposition - a brief that also does not comply with the formatting requirements of Local Rule 5.1. (Doc. 37.) Given the untimeliness of the brief, the court could, but will not, deem the motion uncontested. M.D. Pa. L.R. 7.6. In addition to filing a late brief, Reviello did not respond to Defendants' statement of material facts, file his own counterstatement of material facts, or supply the court with any of his own evidence. See M.D. Pa. L.R. 7.6, 56.1; see also Fed. R. Civ. P. 56. The court will take this into account in the discussion that follows.

Finally, on November 26, 2019, Defendants filed their reply brief. (Doc. 38.) Since then, no further filings or submissions have been made or attempted. The motion is ripe for review.

FACTUAL BACKGROUND FOR PURPOSES OF THE PENDING MOTION³

CNO Financial is an indirect parent company of Bankers Life. (Doc. 25, ¶ 11; Doc. 25-3.) Bankers Life provides individuals with insurance and financial products. (Doc. 25, ¶ 1; see Doc. 20, ¶ 7.) In furtherance of its business, Bankers Life utilizes insurance agents to provide its products to clients. (Id.) In that role,the insurance agents serve as independent contractors on behalf of Bankers Life. (Id.)

On September 19, 2012, Reviello began working for Bankers Life as an independent contractor insurance agent. (Id. ¶ 2; see Doc. 20, ¶ 6.) Reviello worked in Bankers Life's Wilkes-Barre, Pennsylvania branch office. (Doc. 25, ¶ 2; see Doc. 37, p. 2.) The relationship between Bankers Life and Reviello was governed by an Agent Contract. (Doc. 25, ¶ 3; see Doc. 20, ¶ 14.) In part, Paragraph 22 of the Agent Contract provided:

(a) Either party may terminate this contract at will, without cause, by giving notice to the other party of the intention to terminate this Contract.

. . . [and]

(f) Upon termination of this Contract for any reason, all indebtedness of Agent to the Company shall immediately become due and payable.

(Doc. 25, ¶ 4.)

On or about February 26, 2013, Bankers Life terminated Reviello's Agent Contract. (Doc....