The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A sales agent has been awarded damages for “conspiracy” and defamation against her former BISX-listed employer, which tried to pinch her insurance clients after terminating their relationship.

Justice Indra Charles found that Family Guardian worked with Alana Major, its senior manager of group sales, “to injure” Jennifer Bain financially by trying to prevent several major Bahamian corporate clients going with her after the two sides parted ways in late 2015.

Her verdict disclosed how Mrs Major and Family Guardian sought to induce luxury goods retailer, John Bull, and auto dealer, Bahamas Bus & Truck, to renew their group health policies directly with the insurer - and abandon Ms Bain - by offering reduced premium and commission rates.

Mrs Major then further sought to isolate Ms Bain just days later by writing to industry regulator, the Insurance Commission of The Bahamas, alleging that the latter had “improperly provided client information” to a broker she had teamed-up with and thus breached the Data Protection (Privacy of Personal Information) Act.

And, barely five months later, Family Guardian demanded “vacant possession” and threatened to sell Ms Bain’s home via its power of sale after she fell into arrears on her mortgage because she no longer qualified for preferential interest rates having been terminated.

Finding in favour of the former sales agent, Justice Charles awarded Ms Bain $20,000 in damages for the “conspiracy” to injure her via “lawful means” and another $25,000 over the defamatory letter to the Insurance Commission.

The BISX-listed life and health insurer must also pay $60,000 towards her legal costs, and $10,675 in disbursements, taking these combined costs and damages to more than $110,000. And Family Guardian was also ordered to pay Ms Bain “damages for breach of contract” equivalent to a year’s notice pay.

Justice Charles provided no figure for the latter, but during the trial Ms Bain said she earned $345,593 in 2014 via a combination of commissions, referral fees, bonuses and ‘Million Dollar Round Table’ commissions. Had her agreement with Family Guardian continued, she alleged she would have earned $23,125 per month.

The two sides fell out when Family Guardian in September 2015 terminated Ms Bain as one of its financial sales representatives authorised to sell its insurance products. “She was terminated because the company claimed that by her absence, and future absence, from the office and from The Bahamas, she breached some of her obligations under the Agreement,” Justice Charles said.

“Ms Bain asserted that her productivity was not impacted by her physical absence, which was not a requirement, and therefore the company breached the contract when it terminated her without proper grounds provided in the contract.”

Ms Bain had advised her supervisor, Wendell Smith, Family Guardian’s vice-president of financial services, in June 2015 that she planned to pursue a 16-month Master’s Degree in Orlando, Florida. However, the insurer was unhappy with the terms she proposed for continuing in its employment and handling her client portfolio while on the course.

Family Guardian proposed transferring her new and existing BahamaHealth clients to the Client Services Unit of its health division, which would continue to service the portfolio for as long as she was away. Commissions were to be split 50/50 with the company.

Ms Bain objected to this, and the following day the keys to her office at Family Guardian - held by her marketing assistant - were taken away. And, just 21 days later, Ms Bain’s employment contract was terminated on the basis she had violated its provisions by being absent for 42 days over the past two-and-a-half months.

Family Guardian then moved swiftly to prevent Ms Bain’s group health insurance clients from moving with her, and potentially becoming insured with a rival underwriter. “At the time of Ms Bain’s termination, John Bull (along with other clients) were enrolled in BahamaHealth group insurances sold through the company with its agent/broker as Ms Bain,” Justice Charles noted.

“Well before her termination, the company offered John Bull renewal rates for the upcoming year. The commission was 4 percent payable to Ms Bain. Shortly after Ms Bain’s termination, the company informed her clients that she was no longer working with the company and that another sales agent would replace her.”

However, in early October 2015, John Bull, Bahamas Bus & Truck and other clients of Ms Bain wrote to Family Guardian requesting that their agent/broker be changed to Hope Insurance Agents and Brokers, a brokerage headed by one of the BISX-listed firm’s former employees, Cardinal McCardy.

And, on October 7, 2015, Ms Bain entered a sub-agency agreement whereby she would earn an 80 percent commission on all new business she brought to Hope Insurance.

“Notwithstanding the change of broker requests, Mrs Major, senior manager of group sales, contacted John Bull without Hope Insurance’s knowledge to advise them that they had the option to eliminate Hope Insurance and enroll directly through the company,” Justice Charles wrote.

“She also offered a revised renewal rate. The revised rate was lower because the commission offered to the broker (Hope Insurance) was reduced to 2 percent. Mrs Major had a meeting with the John Bull representative in the absence of, and without the knowledge of, Hope Insurance.

“John Bull elected the revised rate but insisted that Hope Insurance remain the broker of record. Hope Insurance accepted the lower commission rate. Additionally, Mrs Major contacted a person affiliated with the Bahamas Bus & Truck group and successfully convinced them to abandon Hope Insurance as its broker and enroll directly through the company.”

Just two days after Ms Bain signed with Hope Insurance, Mrs Major wrote her a letter - copied to Michele Fields and Patrice Rolle - superintendent and manager of the intermediary and market conduct unit, respectively, at the Insurance Commission “complaining that she improperly provided clients’ information to Hope Insurance.

“The letter alleged that the recent appointment of Hope Insurance as broker of record for several policies arose as a result of Ms Bain disclosing client information. Mrs Major demanded that Ms Bain ‘cease and desist’. She referenced the Data Protection (Privacy of Personal Information) Act which prohibits persons from using information obtained without authority,” Justice Charles said.

She found that there was no contractual requirement for Ms Bain to be physically present in her office to work, which was backed by her status as an independent contractor. Justice Charles said it was also not unusual for sales agents to be on the road for long periods of time, and found there was a lack of evidence to support the company’s termination decision.

While Family Guardian denied any conspiracy to harm Ms Bain financially, Justice Charles found it used “lawful” means to do so. “In my judgment, Mrs Major and the company acted in combination to induce John Bull and Bahamas Bus & Truck not to deal with Hope Insurance by offering a lower premium if they dealt directly with them,” she wrote.

“I find it difficult to accept Mrs Major’s evidence that she was unaware that Ms Bain was working at Hope Insurance. The fact that almost all of her former clients requested that their broker be changed to Hope Insurance was overwhelming evidence to have indicated that she had a financial interest in Hope Insurance.

“Further, as Mrs Major herself stated, it was common when agents left the firm for their clients to go with them. The Company’s intention to injure Ms Bain specifically was further demonstrated by the fact that they contacted John Bull and Bahamas Bus & Truck after the letters requesting Hope Insurance to be broker of record were submitted.

“This is exacerbated by Mrs  Major’s denial of Mr McCardy’s request to allow Ms. Bain to communicate on behalf of certain accounts after he had confirmed that the brokerage was sponsoring Ms Bain.”

While Family Guardian was likely trying to ensure it retained those clients, Justice Charles added that it seemed as if Mrs Major and/or Family Guardian was “trying, at the very least, to make Ms Bain useless at Hope Insurance......

“Taken together, all of the facts show that the predominant intention of Mrs Major and/or the company was to prevent Ms Bain from benefitting financially. They ought to have expected that her clients would go with her.”

As for the letter to the Insurance Commission, which Justice Charles found to be defamatory, she said “I think the intention to injure Ms Bain was the dominant motive” for it being written. She added that Mrs Major had shown “malice” in her actions.