UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

James Walsh, Plaintiff

v. Case No. 12-cv-72-SM Opinion No.

Zurich American Insurance Company; American Zurich Insurance Company; and Universal Underwriters Insurance Company, Defendants

O R D E R

Following a jury verdict in plaintiff’s favor, the

defendants, Zurich American Insurance Company, American Zurich

Insurance Company, and Universal Underwriters Insurance Company

(collectively “Zurich”), moved for judgment as a matter of law

with respect to each of the plaintiff’s claims. See Fed. R. Civ.

P. 50(b). Walsh objects and moves for an award of attorneys’

fees. After hearing the matter, and for the following reasons,

the court denies Zurich’s motion for judgment as a matter of law,

and grants Walsh’s motion for attorneys’ fees.

The defendants seek judgment as a matter of law on

plaintiff’s breach of contract and wage claims on grounds that

1) the record fails to support the necessary finding that the

parties achieved a meeting of the minds with respect to an August

2008 incentive payment plan (that the jury found constituted a binding contract); 2) the jury’s finding that Zurich withheld

wages from Walsh “willfully and without good cause” is

inconsistent with New Hampshire law and is not supported by the

evidence of record; and 3) even under a subsequent, February

2009, incentive plan, there “is simply no basis upon which to

find that Walsh was entitled to payments” based upon a deal

Zurich entered with the Great American Insurance Company

(“GAIC”).

In response to Walsh’s motion for attorneys’ fees, Zurich

echoes its motion for judgment notwithstanding the verdict,

arguing that, because there is insufficient evidence to support

Walsh’s wage claim, and no evidence tending to show that Zurich’s

failure to pay the contested amount was “[willful] and without

good cause,” Walsh is not entitled to attorneys’ fees under the

governing state statute: N.H. Rev. Stat. Ann. ch. 275:53.

Background

The jury heard evidence supporting facts consistent with the

verdict as follows. After leaving Zurich’s employment in October

of 2010, Walsh filed suit seeking wages he claimed he was owed as

an employee of Zurich. Walsh testified that Zurich proposed, and

he accepted, a salary incentive compensation plan in August of

2008 (the “Incentive Plan”). Walsh thereafter sold insurance

2 products in reliance on the Incentive Plan’s terms.

Specifically, Walsh claimed he was entitled to be compensated

under the Incentive Plan for a significant deal that he began

negotiating in September of 2008 with Automobile Protection

Corporation (“APCO”), and that he closed in December of 2008.

The APCO deal would generate approximately $132,000,000 in

premiums for Zurich each year for up to five years, and generated

approximately $77,000,000 in premiums in 2009. Under the

Incentive Plan, Walsh was entitled to incentive salary payments

equivalent to 1.125% of all premiums realized from sales made

through the alternative distribution channel (“ADC”) program he

managed. The APCO deal generated premiums realized from sales

made through the ADC program.

Zurich refused to pay Walsh on the APCO deal under the terms

of the Incentive Plan. Instead, it paid Walsh under a different

plan that it claims was a “final” incentive plan agreed to by

Walsh and Zurich in February of 2009, after Walsh closed the APCO

deal (the “Replacement Plan”). The Replacement Plan provided for

a much lower incentive compensation rate — only $1,000 per

$1,000,000, or .1%, of ADC premiums realized. Walsh also claimed

incentive payments related to a subsequent deal with GAIC

pursuant to the terms of the Replacement Plan, but Zurich refused

to make that incentive payment as well.

3 Before giving the case to the jury, the court granted

Zurich’s motion for judgment as a matter of law on a claim by

Walsh for wrongful termination. After four days of trial, the

jury found by special verdict “that defendants breached the

August 2008 Incentive Plan by failing to fully compensate [the

plaintiff] for the APCO deal.” The jury also found that Zurich

withheld from Walsh “compensation that he was due for the APCO

deal willfully and without good cause.” The jury further found

that Zurich “breached the February 2009 [Replacement] Plan by

failing to fully compensate [Walsh] on the GAIC deal” and,

thereby, withheld from Walsh “compensation that he was due for

the GAIC deal willfully and without good cause.”

Legal Standard

“The standard for granting a Rule 50 motion [for judgment as

a matter of law] is stringent.” Malone v. Lockheed Martin Corp.,

(1st Cir. 2010). A court may set aside a jury’s

verdict and award judgment as a matter of law only “when the

evidence points so strongly and overwhelmingly in favor of the

moving party that no reasonable jury could have returned a

verdict adverse to that party.”

In making that

determination, the court must “view the evidence in the light

most favorable to the verdict, making no determination[] of [its]

own as to the credibility of witnesses or the weight of the

4 evidence.” Rodriguez-Garcia v. Miranda-Marin,

(1st Cir. 2010). The court may not, therefore, “displace a

jury’s verdict merely because [the court] disagrees with it or

would have found otherwise in a bench trial.” Ahern v. Scholz,

(1st Cir. 1996) (internal citation omitted).

Put differently, Rule 50 relief is warranted only if the evidence

“is so one-sided that the movant is plainly entitled to judgment,

for reasonable minds could not differ as to the outcome.” Gibson

v. City of Cranston,

(1st Cir. 1994); see also

Murray v. Ross-Dove Co.,

(1st Cir. 1993) (proper

to allow motion where evidence “would not permit a reasonable

jury to find in favor of the plaintiffs on any permissible claim

or theory”). Under the rule, the burden is on the moving party

to “specify . . . the law and facts that entitle [it] to the

judgment.” Coons v. Indus. Knife Co.,

(1st Cir.

2010) (quoting Fed. R. Civ. P. 50(a)(2)).

Zurich asserts that the record evidence fails to support the

jury’s verdict in favor of Walsh. The jury was carefully

instructed that it must find that the parties reached a meeting

of the minds with respect to the Incentive Plan (which point

Zurich vigorously contested) before it could be considered an

enforceable contract between Walsh and Zurich. The jury was also

instructed that for Walsh to be entitled to payment under the

5 subsequent Replacement Plan for the GAIC deal, the GAIC deal must

have come within the scope of the plan’s terms, and Walsh or

someone under his management or control must have played a role

in producing the deal. And, the meaning of the phrase “willfully

and without good cause,” as it is used in New Hampshire’s wage

and hour law, was explained to the jury.

After having been fully instructed, the jury expressly found

that Zurich breached the Incentive Plan by failing to fully

compensate Walsh for the APCO deal; that Zurich breached the

Replacement Plan by failing to fully compensate Walsh for the

GAIC deal; and, on both counts, that Zurich withheld compensation

owed Walsh both willfully and without good cause. The evidence

produced at trial adequately supports the jury’s verdict and

Zurich has failed to demonstrate otherwise.

Meeting of the Minds as to the Incentive Plan

The defendants contend that there is insufficient evidence

in the record to support the jury’s finding that Zurich and Walsh

reached a meeting of the minds with respect to the terms of the

Incentive Plan such that it became the operative contract

controlling Walsh’s incentive payment for the APCO deal (which

closed in December of 2008).

6 As determined by the Supreme Court of New Hampshire, and as

explained in the jury instructions, an “employer’s unilateral

promulgation to present at-will employees of a statement of

intent to pay and provide such economic benefits may be

recognized under New Hampshire law as an offer to modify their

existing relationship by means of a unilateral contract, which

offer is subject to such an employee’s acceptance by continued

performance of his duties.” Panto v. Moore Bus. Forms, Inc.,

(1988). Because “compensation and fringe benefits

are usual incidents of this contractually governed economic

relationship, it is generally true that a statement on these

subjects by the party who pays the compensation can be viewed

objectively . . . as meant to be a subject of binding agreement.”

(citation omitted). As with any other contract, for

an offer and acceptance to form a unilateral contract, there

“must be a meeting of the minds in order to form a valid

contract. A meeting of the minds is present when the parties

assent to the same terms,” which “is analyzed under an objective

standard.” Chisholm v. Ultima Nashua Indus. Corp.,

(2003) (citations omitted).

To support its contention that the parties never reached a

meeting of the minds with respect to the Incentive Plan, Zurich

relies on the same arguments it made to the jury at trial —

7 arguments that were plainly (and supportably) rejected. First,

Zurich contends that the written Incentive Plan that Walsh

claimed he and various Zurich officers and agents agreed upon

could not have been relied upon as evidence of a “meeting of the

minds” because the document was plainly marked “draft” at the

bottom of each page.

Second, defendants point to trial evidence, and an alleged

absence of testimony from Walsh and other current and former

Zurich executives, to support its argument that no reasonable

jury could have concluded that the parties reached a meeting of

the minds as to the Incentive Plan. For example, defendants

contend that Walsh’s testimony did not establish that the parties

reached a meeting of the minds because, in an August 14, 2008,

meeting, at which Walsh claims that he, Kane (an executive with

salary setting authority), and Stoothoff (Walsh’s immediate

superior) met to finalize his sales goals and incentive

percentages, the only specific language Walsh attributed to Kane

was, “Here’s how we’re thinking of paying you. Does this look

right,” as he handed Walsh an early copy of the Incentive Plan.

(emphasis supplied). That statement, the defendants argue,

reflects ongoing negotiations, not a meeting of the minds.

8 Zurich also points to the following statements, among

others, adduced at trial from Walsh that it claims support its

theory that the Incentive Plan was never finalized: (1) Walsh

testified he was “not sure” whether the Incentive Plan had been

“implemented . . . through the company’s incentive group”; (2)

“[w]hether [the Incentive Plan] was finalized in Zurich’s mind

because it didn’t go through [human resources] or anything else,

I can’t attest to that”; (3) “Mr. Stoothoff and Mr. Kane may have

— once that meeting ended and we agreed to a plan, they may have

had other things to do with it”; and (4) “I never heard of

anything being final. I mean, that’s backroom [human resources]

or accounting. Whoever does that, I don’t know.”

The defendants further argue that Stoothoff admitted on

cross examination that the Incentive Plan was not final, that he

had no authority to bind Zurich to the agreement, that he had

never received approval from Kane to finalize the agreement, and

that the plan was still in draft form when he left Zurich at the

end of August 2008. Similarly, according to Zurich, Diane

Eldridge, who worked in Zurich’s human resources department,

confirmed during her testimony that the Incentive Plan was a

draft that had never been approved by Zurich, and Kane gave no

testimony that he gave final approval to implement the Incentive

Plan.

9 The defendants also argue, seemingly for the first time in

this motion, and certainly more explicitly than they argued at

trial, that an August of 2008 email exchange among Walsh, Kane,

Stoothoff, and Eldridge, in which Walsh asked to reconcile the

definition of “alternative distribution channel” as it was used

in one part of the plan, evidences a rejection of the Incentive

Plan and a counteroffer by Walsh that Zurich never accepted.

Zurich further alleges that the contrast in the volume and

specificity of the confirmation emails exchanged regarding the

Replacement Plan compared to those regarding the Incentive Plan

is persuasive evidence that the parties never reached a meeting

of the minds with respect to the Incentive Plan.

In opposing the defendants’ motion, Walsh first points out

that Zurich’s denoting a document as a “draft” is not

determinative, because the documentary evidence showed that the

Replacement Plan that Zurich argued was the only incentive plan

the parties had mutually accepted, was also marked as a “draft.”

Walsh also presented evidence that all incentive plans for sales

managers were matrix plans like the Incentive Plan.

On the specific question of whether the parties reached a

meeting of the minds with respect to the Incentive Plan, Walsh

presented an email chain starting on August 22, 2008, in which

10 Eldridge circulated a draft of the Incentive Plan that contained

the payment matrix that Walsh, Kane, and Stoothoff had agreed on

the week before. Kane was copied on the email. Walsh responded,

pointing out that the definition of “Alternative Distribution

Channel” needed to be amended to match his anticipated sales

responsibilities as properly set out elsewhere in the agreement.

Kane responded, indicating that he thought Walsh was correct, but

that he should work it out with Stoothoff if he could not reach

Kane. On August 27, 2008, Eldridge responded to Walsh that she

had “updated the plan to include [his] edits . . . .” Walsh

pointed out that in her response, Eldridge did not refer to the

Incentive Plan at that time as a “draft.”

Walsh also provided the jury with an email from earlier in

the day on August 27, from Kane, reporting up to his superiors,

including Craig Fundum, head of Zurich Direct Markets, that with

respect to the new Alternative Distribution Channels for Finance

& Insurance (“F&I”), the “[s]tructure and resource allocation”

was “[c]ompleted with key appointment of Jim Walsh — national F&I

manager.” He further reported that “[i]nitial visits with

customers are underway with positive initial reactions.” That

email followed a meeting held earlier in the day to “finalize

this plan” as stated in an email from Eldridge to Stoothoff and

Walsh, who was at corporate headquarters for the very purpose of

11 finalizing Walsh’s incentive plan. Walsh testified that Eldridge

pulled out the Incentive Plan at the August 27 meeting, that

Stoothoff called in to finalize the plan, as he said he would in

the email to Eldridge, and Walsh left Eldridge’s office

understanding that his incentive plan was agreed upon and in

place. Zurich never contradicted that understanding — until

after the big sale to APCO was closed, that is.

As the defendants point out, email traffic regarding Walsh’s

incentive quieted until after the APCO deal was signed. At that

point, Walsh emailed Eldridge stating, “I have a few questions

for you about my plan for 2009 . . . . Will the plan below

[referring to the Incentive Plan] go into effect starting 1-1-

2009?” Eldridge’s response did not deny that the Incentive Plan

was final, nor did she contend that it was still under

consideration. Rather, Walsh testified that she conveyed to him

that “it’s her understanding that [his] 2009 incentive plan will

begin April 1, 2009, with first payment in May, since [his]

supplemental payment [was] in lieu of incentive.”

The jury also saw an email chain between Kane and Walsh from

January 2009, after the APCO deal was signed. In response to

Kane’s oral demand that Walsh propose a new incentive plan

(because Kane refused to pay him pursuant to the Incentive Plan

12 on the APCO deal), Walsh identified the matrix included in the

Incentive Plan labeled as his “current pay plan” in the email.

Kane did not respond with surprise, and did not suggest that no

incentive plan had been agreed upon. Rather, he responded “we

will work it out . . . you’re doing a great job,” but noted,

“[O]ne thing that needs to change is no one is on a 250k salary

(unless you are [Craig] Fundum) so that won’t work.” (emphasis

supplied).

Kane also admitted during his testimony that in December of

2008, after the APCO deal was signed, he told Walsh, “You’re

going to make a lot of money on this deal.” From that statement,

in addition to the emails, the jury could reasonably infer that

as of December 2008, when the APCO deal was closed, Walsh had an

incentive pay entitlement in place as described in the Incentive

Plan.

In addition to the documentary evidence presented at trial,

Walsh testified that he and Kane, who Zurich conceded had

authority to bind the company with respect to Walsh’s incentive

pay, had indeed reached a mutual agreement on the terms of the

Incentive Plan in August of 2008, and that Walsh had accepted the

terms by going out and landing the biggest sales deal in Zurich’s

history.

13 With respect to the August 14 meeting, at which Walsh, Kane,

and Stoothoff agreed to the terms of Walsh’s incentive plan,

Walsh testified that the conversation started with Kane putting a

pay plan including the incentive terms in front of him and

stating, “here’s how we’re thinking about paying you. Does this

look right?” Walsh explained that the conversation continued,

with him, Kane, and Stootoff discussing the dollar amount of his

sales goal. They settled on a goal of $8 million in sales, to

which Walsh replied, “Yeah, I can agree with that.” Walsh

further testified that in that meeting, he, Kane, and Stootoff

agreed to the matrix box that contained his sales goals and

corresponding incentive payment percentages, all as set out in

the Incentive Plan. Zurich made the point multiple times during

the trial that Kane was the “only person that could approve a

plan” for Walsh.

Based on that and other evidence, the jury could have

reasonably concluded that Walsh and Zurich, through Kane, reached

a meeting of the minds as to the Incentive Plan, and that Walsh

reasonably relied upon that agreement in continuing to work.

And, that when the magnitude of the APCO deal became apparent,

Kane and others at Zurich decided to renege on the agreement

simply because they thought, after the fact, that Walsh should

not earn as much as the agreement provided (certainly not as much

14 as they earned). Therefore, taking the evidence about the

Incentive Plan in the light most favorable to the verdict, as

this court must, there is no basis upon which to grant the

defendants’ motion for judgment as a matter of law on the

plaintiff’s breach of contract claim with respect to the

Incentive Plan as it applied to the APCO deal.

APCO Compensation Withheld Willfully and Without Good Cause

Next the defendants contend that the jury’s finding, that

Zurich “withheld from [the] plaintiff compensation that he was

due for the APCO deal [under the Incentive Plan] willfully and

without good cause,” is inconsistent with both New Hampshire wage

law and the evidence of record.

Under New Hampshire law, “[i]f an employer willfully and

without good cause fails to pay an employee wages as required

under . . . this section, such employer shall be additionally

liable to the employee for liquidated damages in the amount of 10

percent of the unpaid wages for each day except Sunday and legal

holidays . . . or in an amount equal to the unpaid wages,

whichever is smaller . . . .” N.H. Rev. Stat. Ann. 275:44(IV).

The Supreme Court of New Hampshire has “construed ‘willfully and

without good cause’ as a ‘single phrase meaning voluntarily, with

knowledge that the wages are owed and despite financial ability

15 to pay them.’” Chisholm,

(quoting Ives v.

Manchester Subaru, Inc.,

(1985)). The

defendants, however, point to another New Hampshire statute that

provides: “In a case of a dispute over the amount of wages, the

employer shall pay, without condition and within the time set by

this subdivision, all wages, or parts thereof, conceded by him to

be due, leaving to the employee all remedies he might otherwise

be entitled to, including those provided under this subdivision,

as to any balance claimed.” N.H. Rev. Stat. Ann. 275:45(I). The

Supreme Court of New Hampshire has made it clear that the

liquidated damages provision “was not intended to impose

liability where the employer’s refusal to pay wages is based upon

bona fide belief that he is not obligated to pay them.” Ives,

. However, it is up to the jury to determine

whether the employer had a “good faith belief” that it did not

owe the disputed wages because, for example, it claimed that the

document providing for payment was not an enforceable contract.

See Chisholm,

.

The jury’s award of liquidated damages, then, is plainly

consistent with New Hampshire law, so long as the factual record

supports the jury’s explicit finding that the defendants

“willfully and without good cause” failed to pay Walsh his

incentive payment for the APCO deal under the Incentive Plan.

16 Put another way, this court will not disturb the jury’s verdict

if there is sufficient evidence supporting its finding that

Zurich knew it owed Walsh under the Incentive Plan for the APCO

deal but refused to pay him despite its financial ability to do

so.

The defendants argue, essentially, that because Zurich

disputed in good faith that the Incentive Plan was an enforceable

contract, it could not possibly have breached the agreement

willfully and without good cause. Zurich further asserts that

there is no evidence in the record to suggest that its dispute

was anything but bona fide and in good faith. The jury, of

course, disagreed.

The record evidence supports the jury’s conclusion that

Zurich acted “willfully and without good cause” in failing to pay

Walsh on the APCO deal. First, the jury could reasonably accept

Walsh’s testimony. That is, that he and Kane met in Zurich’s

Overland Park, Kansas, headquarters in January of 2009; that Kane

told Walsh that “he was not going to pay [Walsh] on the pay plan

that they promised and agreed to back in August. [Kane] said it

needed to change;” and that Walsh was “shocked,” and said,

“Dennis, what do you mean you’re not going to pay me on the pay

plan that we all agreed to back in August? I took the chance by

17 going out and doing this big deal. If I don’t make this deal, I

don’t make any money. I could have went [sic] after three or

four, and we wouldn’t be having this conversation because the pay

plan would have stayed the same.” Walsh further testified that

Kane responded, “[T]hat’s irrelevant. You signed a big deal.

I’m not going to allow this pay. I’m not going to allow you to

get paid on this plan going forward. It’s not going to happen.”

Walsh further testified that he and Kane met on three separate

occasions and had conversations much like that one. When asked

if Kane ever said that he had not agreed to the Incentive Plan,

Walsh testified that Kane never said they had not agreed to it.

Walsh’s testimony, in the context of the January 2009 email chain

between Walsh and Kane described above, in which Walsh refers to

the Incentive Plan as his “current plan,” — a characterization to

which Kane did not object — also supports the jury’s finding.

Thus, if the jury believed Walsh’s testimony, it could

properly conclude that Kane very well knew that Zurich owed Walsh

compensation under the Incentive Plan for the APCO deal, but

refused to pay him, notwithstanding Zurich’s ability to do so.

Properly viewed, there was sufficient evidence in the record to

permit the jury to determine that Zurich, through Kane, acted

willfully in failing to pay Walsh and without any good faith

belief that the Incentive Plan was not the operative and binding

18 compensation contract. The jury could easily have accepted what

was readily apparent from the evidence — Zurich agreed to a deal

it later regretted when the incentive earned by Walsh struck Kane

as “too much,” because other higher-ups in Zurich (including him)

did not earn as much. Kane, it seems, reneged for reasons he

likely thought at the time benefitted him personally. The

picture painted by the evidence is one not complimentary of

either Kane, other management personnel, or Zurich itself — the

evidence showed the jury, rather compellingly, that rather than

celebrate the huge benefit to the company occasioned by Walsh’s

historic sale, Zurich sought to renege on the compensation it

promised to pay the deal’s generator. In the rough and tumble of

corporate business perhaps that type of conduct is no longer

considered shocking, but still, the law can provide relief, and

the jury rightly provided that relief.

GAIC Deal Covered by the Replacement Incentive Plan

Next, defendants argue that there is insufficient evidence

to support the jury’s finding that Zurich breached the subsequent

Replacement Plan, which prospectively reduced Walsh’s incentive

pay to “$1,000 per $1,000,000 on alternative distribution premium

as described in the definition.” Zurich refused to pay Walsh any

incentive on the reinsurance policy that Zurich sold to GAIC,

resulting in a $101 million premium payment from GAIC to Zurich

19 in August 2010. Zurich says the GAIC deal did not fall within

the scope of activity contemplated by the Replacement Plan.

Moreover, says Zurich, Walsh did not participate in the

negotiation or closing of the deal.

Defendants argue that the GAIC deal did not fit within the

definition of “alternative distribution channel,” and it did not

involve “sale and servicing of Company accounts” as contemplated

in the Replacement Plan. That plan provides in relevant part:

Alternative Distribution Channel incentive pay shall be paid on net dealer, third party administrator, agency business and original equipment manufacturer remit . . . sold through Alternative Distribution Channels per the financial statement.

Incentive on Alternative Distribution production shall be paid at $1,000 per $1,000,000 on alternative distribution premium as described in the definition.

. . .

“Alternative Distribution Channels” mean all F&I business not distributed by Zurich Direct Markets Sales Forces, i.e. General Agents, Banks, Third Party Administrators, Original Equipment Manufacturers.

(emphasis supplied).

Zurich contends that premium revenue realized from the GAIC

deal did not derive from “General Agents, Banks, Third Party

Administrators, or Original Equipment Manufacturers,” because

GAIC was an insurance company, and so is not covered by the

20 Replacement Plan. First, based on the language of the

Replacement Plan, it is clear that “General Agents, Banks, Third

Party Administrators, or Original Equipment Manufacturers” are

given as examples of the sources from which Alternative

Distribution Channel revenue could originate; those examples did

not constitute an exclusive list. Rather, business coming in

through Alternative Distribution Channels is defined as “all F&I

business not distributed by Zurich Direct Markets Sales Forces

. . . .” (emphasis supplied). On this point, Terry McCafferty,

senior vice president and chief operating officer of Zurich

Programs and Direct Markets (the Zurich executive who signed the

GAIC reinsurance agreement) conceded at trial that the GAIC deal

was not generated by Zurich Direct Markets Sales Forces.

Second, while the facts and arguments presented at trial and

in this motion regarding the substance of the GAIC deal left much

to be desired in terms of clarity, the documentary evidence

presented to the jury supports the jury’s verdict, because it

demonstrates that the GAIC deal consisted of reinsurance sold to

an agency through the Alternative Distribution Channel. As such,

it falls within the scope of the Replacement Plan, and nothing

presented at trial compelled the jury to conclude otherwise.

21 According to the documentary evidence (and contrary to

Zurich’s insistence that the GAIC deal involved Zurich’s

“assuming” a line of GAIC’s business), Zurich sold GAIC

reinsurance on a group of policies defined under the Guaranteed

Auto Protection and Excess Wear and Use Quota Share Reinsurance

Agreement, executed in August 2010. Thus, as Zurich is in the

business of selling insurance and reinsurance, and because Walsh

still had “reinsurance responsibilities” as of the third quarter

of 2010 by Zurich’s own admission in an internal email, and the

sale consisted of “F&I business not distributed by Zurich Direct

Markets Sales Forces,” the GAIC deal involved the “sale . . . of

Company accounts” in the Alternative Distribution Channel, as

covered by the Replacement Plan. Or, so the jury could have

reasonably found based on the evidence of record.

Under the terms of the August 2010 reinsurance policy, GAIC

continued to service the underlying policies with respect to

insured individuals, its own sales brokers, and any incoming

claims made under the policies. Zurich would pay GAIC for losses

experienced on valid claims and have input on claim settlements

and litigation, essentially reinsuring the losses on the

outstanding policies. In exchange, Zurich received monthly

reports and quarterly payments (or suffered losses) derived from

a formula that essentially provided Zurich with the premiums that

22 were paid by insureds on the covered policies, less the loss

amount and a commission paid to compensate GAIC for its overhead,

and for any payments made to other reinsurance companies GAIC was

required to look to for payment of losses before looking to

Zurich.

Further, in support of Walsh’s argument that the GAIC

revenue came in through the Alternative Distribution Channel, the

jury heard testimony from Zurich vice president and head of the

F&I profit center, Kathi Ingham. She conceded that Zurich

actually accounted for the revenue from the GAIC deal in its

financial statements as Alternative Distribution Channel revenue,

and did so because there were “probably more . . . negative

implications, that would have required some additional accounting

work” if it had been considered direct revenue.

Defendants also argue that language found in the “Purpose of

the 2009 Plan” section referring to “employees . . . assisting in

the sale and servicing of the Company accounts” somehow imposed

upon Walsh an obligation to perform some specific personal act

with respect to a particular deal in order to earn an incentive

payment for that deal. First, the parties never asked this court

to construe the terms of the incentive plans as part of their

summary judgment motions. While a jury could, on the developed

23 record, such as it was, interpret the language that way, it is

also plausible, and consistent with the record, that the jury

construed that language to define the type of employee that the

plan intended to incentivize — employees who, as a general

matter, “assist in the sale and servicing of the Company

accounts,” i.e. employees like Walsh.1

Finally, the jury was instructed that Walsh or someone under

his management or control must have played a role in producing

the deal. McCafferty’s testimony, if accepted, could easily have

satisfied that requirement. McCafferty testified that he took

Walsh to Cincinnati, Ohio, to assist in the sales and servicing

of Zurich products with respect to the GAIC deal. Walsh

supported McCafferty’s testimony by confirming that he performed

due diligence with respect to the deal, visited GAIC’s offices,

talked with its executives, and debated whether it was a good

business deal for Zurich to pursue.

From the documentary evidence and testimony, the jury could

have reasonably concluded that Walsh was entitled to incentive

pay as described in the Replacement Plan for the GAIC reinsurance

1 The parties also conceded at oral argument on this motion that Walsh did not have to personally sell anything in order to receive incentive pay on this, or any other, deal producing Alternative Distribution Channel revenue; he was compensated based on premiums realized through the ADC.

24 deal. Therefore, the court will not disturb the jury’s verdict

on that issue.2

GAIC Compensation Withheld Willfully and Without Good Cause

The court further finds that there is ample evidence in the

record from which the jury could have reasonably found that

Zurich withheld from Walsh his incentive payments on the GAIC

deal willfully and without good cause, as previously described in

this order. Zurich, the jury could have supportably found, knew

that the GAIC premium revenue fell within the scope of the

Alternative Distribution Channel, but simply did not wish to pay

Walsh, perhaps regretting that it had not been more precise in

describing what revenue streams should be excluded from the

incentive compensation provisions, and, based on an unguided

subjective conclusion that the incentive obligation was just “too

much,” even if covered by the contract, refused to pay what was

owed.

2 Walsh argues that Zurich waived the right to seek judgment as a matter of law on this issue by failing to raise it in its motion at the close of Walsh’s case or at the close of the evidence. Because Zurich sought judgment pursuant to Rule 50 of the Federal Rules of Civil Procedure on Walsh’s breach of contract, lost wages, and wrongful termination claims, which included his argument that he was entitled to contract damages and lost wages on the GAIC deal, Zurich adequately preserved its objection. See Osorio v. One World Tech, Inc.,

, 87- 88 (1st Cir. 2011); Lynch v. City of Boston,

, 13 n.9 (1st Cir. 1999).

25 In an email from Zurich’s accounting department received by

Eldridge and others, Zurich admitted the following:

The financial statements for August include a $105M in premium on the GAIC reinsurance deal. Based on the 2009 plan [excerpted in the email], we would pay $105,000 to Jim Walsh on this premium. How would you like to handle the August incentive due to the current review of the 2009 plan and the dollar amount of the incentive payment? . . . I will need to get approval by August 20 in order to get Jim paid correctly. Thank you. (emphasis supplied).

Subsequently, Walsh’s then direct supervisor emailed

Eldridge and Zurich’s accounting department the following:

Please pay 3rd quarter reinsurance incentive based on the current plan numbers. Since Jim [Walsh] no longer has reinsurance responsibilities effective in the 4th quarter, he should not receive any additional incentive related to this segment. Can you or someone write an amendment to his plan that states this? In addition, as we discussed, we should have an amendment that stipulates that Jim will not receive incentive related to the GAIC UPR transaction that posted in September for $101m.

(D. Ex. 78) (emphasis supplied).

From that evidence, the jury could easily have concluded

that Zurich knew that it owed Walsh $105,000 in incentive

payments on one or more GAIC deals; that Zurich realized that the

Replacement Plan as written provided for incentive payments to

Walsh on the $101 million GAIC deal that posted during the 3rd

quarter, while Walsh still had reinsurance responsibilities; that

Zurich intentionally refused to pay him; and, instead, intended

26 to draft a retroactive amendment to Walsh’s incentive plan to

deprive him of those incentive wages that Zurich knew it owed to

him. Therefore, the court will not disturb the jury’s finding

that Zurich withheld from Walsh compensation he was due for the

GAIC deal willfully and without good cause.

Motion for Attorneys’ Fees

Having found that there is sufficient evidence in the record

from which the jury could have found that Zurich violated New

Hampshire’s wage and hour laws by “willfully and without good

cause [failing] to pay an employee wages as required under [N.H.

Rev. Stat. Ann. 275:44(IV)],” despite financial ability to pay

them, the court turns to Walsh’s motion for attorneys’ fees.

Under the provisions of N.H. Rev. Stat. Ann. 275:53, “the

court in any action brought under this subsection may, in

addition to any judgment awarded to the plaintiff . . . allow

costs of the action, and reasonable attorney’s fees, to be paid

by the defendant.” While the express language of the statute is

permissive, the Supreme Court of New Hampshire has construed the

language as follows: “when the court has found a wage claim

meritorious, it should exercise its statutory discretion by

awarding reasonable counsel fees, unless the court further finds

particular facts that would render such an award inequitable.”

27 Ives,

. The Supreme Court further noted that “in

all candor[,] it is difficult to envision circumstances in which

equity would call for the denial of fees.”

This is not one

of those exceptional cases.

Plaintiff’s counsel has informed the court that it could

find no wage cases published since Ives in which a court denied

attorneys’ fees on equitable grounds in a meritorious wage case.

Defense counsel has not pointed this court to any such case

either, and the court has found none.

Defendants suggest that the policy rationale underlying the

Ives court’s construction of the statute — namely “that the size

of many wage claims is so small that the practical value of a

plaintiff’s verdict is often decidedly modest after counsel’s fee

has been deducted from the recovery” — should militate against a

fee award here, where the wage recovery is substantial. But a

substantial wage recovery, alone, does not amount to “particular

facts that would render such an award inequitable.” See Ives,

. Here, the award is indeed quite substantial,

but Zurich’s conduct in refusing to pay the wages due was not

only wrongful, but intentional. Plaintiff should recover his

attorneys’ fees. He should not have had to expend time, energy,

or money to recover the wages owed him. And, Zurich, in equity,

28 should bear that burden, both in fairness to Walsh and,

consistently with the purpose of the statute, to discourage

Zurich and other employers from following a similar course in the

future.

Finding no facts that would render an award of reasonable

attorneys’ fees inequitable in this case where the jury

reasonably concluded that Zurich withheld wages from Walsh

willfully and without good cause within the meaning of the New

Hampshire statute, the court will grant the plaintiff’s motion

for attorneys’ fees.3

Conclusion

For the foregoing reasons, Zurich’s renewed motion for

judgment as a matter of law (document no. 116) is denied, and

Walsh’s motion for attorneys’ fees (document no. 112) is granted.

With respect to the motion for attorneys’ fees, the parties shall

submit a stipulation as to a reasonable award of attorneys’ fees

within 21 days of the entry of this order. If they are unable to

reach an agreement, the plaintiff shall submit a detailed motion

3 Because the plaintiff has not shown that Zurich “has instituted or prolonged litigation through bad faith or obstinate, unjust, vexatious, wanton, or oppressive conduct,” as contemplated by the standard for awarding attorneys’ fees under the common law, the court does not award fees on that ground. See Harkeem v. Adams,

(1977).

29 for approval of a specific dollar amount of attorneys’ fees and

expenses, with substantiation, within 30 days of the entry of

this order. Defendants will then have the opportunity to object

within 10 days of the filing of the motion for approval.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 29, 2015

cc: Douglas J. Miller, Esq. Jamie N. Hage, Esq. Kathleen A. Davidson, Esq. Asha A. Santos, Esq. Donald S. Prophete, Esq. Christopher B. Kaczmarek, Esq.

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