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Devil's Advocate, LLC v. Zurich American Insurance Co.

United States District Court, E.D. Virginia, Alexandria Division

October 10, 2014

DEVIL'S ADVOCATE, LLC, et al., Plaintiffs,
v.
ZURICH AMERICAN INSURANCE COMPANY, Defendant.

MEMORANDUM OPINION

T. S. ELLIS, III, District Judge.

This action grows out of negotiations between plaintiffs and defendant relating to the possibility of defendant retaining plaintiffs' services and expert testimony regarding the reasonableness of attorneys' fees claims submitted in a Texas litigation in which defendant was a party. Plaintiffs claim that these negotiations led to the formation of an enforceable contract, which defendant breached. Plaintiffs further argue that defendant's disclosure of plaintiff John Toothman's resume in the Texas litigation constituted infringement of his copyrighted resume, and that defendant's designation of Toothman as a potential expert in the Texas litigation constituted an actionable conversion of Toothman's name and reputation. Defendant denies these contentions, arguing that the parties' negotiations never resulted in an enforceable contract and that defendant's use of Toothman's resume and name in the Texas litigation constituted neither copyright infringement nor conversion.

At issue, therefore, on summary judgment, are the following questions:

(1) whether negotiations between the parties culminated in an enforceable contract;
(2) whether defendant's designation of John Toothman as a potential expert in the Texas litigation constituted conversion of his name and reputation; and
(3) whether defendant's disclosure of Toothman's resume infringed the copyright he claims to hold in his resume.

For the reasons that follow, summary judgment must be granted with respect to questions one and two, whereas resolution of question three must be deferred, pending further submissions of the parties.

I.

The material undisputed facts may be succinctly summarized.[1]

• Plaintiffs in this action are Devil's Advocate, LLC ("DA") and John Toothman. DA is a Virginia corporation providing consulting services, including expert witness testimony, concerning the propriety and reasonableness of attorneys' fees claims. Plaintiff John Toothman, a licensed attorney, is a Virginia resident and DA's founder and owner.
• Defendant Zurich American Insurance Company is an insurance company with its principal place of business in New York. Defendant is authorized to do business in Virginia.
• On October 12, 2010, Blair Dancy, Esq., an attorney representing defendant, contacted Toothman on behalf of defendant concerning the possibility of Toothman serving as an expert witness on the reasonableness of attorneys' fees in an insurance coverage dispute filed in Texas by Sterling Chemicals, Inc. captioned Sterling Chemicals, Inc. v. Zurich American Insurance Co., et al., Cause No. 2008-09808 (234th Jud. Dist. Ct., Harris City, Tex.).
• That same day, October 12, 2010, Toothman sent Dancy an email confirming his availability to serve as an expert witness in the case. Toothman attached to the email a copy of a Billing Agreement form (hereinafter "Billing Agreement"), a copy of his resume, and information about DA's services.
• The Billing Agreement form Toothman sent Dancy left certain terms blank. Specifically, the form stated: "Our flat fee for this engagement is $____, which is ____ Percent (____%) of the gross amount of all fees and expenses we review (estimated to be at least $____), to prepare a preliminary written or oral report."
• The Billing Agreement form also stated that half of the flat fee is earned once DA "[is] retained or begin[s] work, upon use of our name, upon disclosure of our retention, or upon resolution of the dispute, whichever comes first."
• On November 2, 2010, Dancy emailed Toothman about some legal bills submitted to defendant by Sterling. In this email, Dancy asked Toothman to provide a proposal for costs associated with DA's review of these expense bills. Specifically, Dancy stated that "Our client Zurich American Insurance Company has requested that our firm get a proposal from you in regard to the review of, and potential expert-witness work in relation to, defense expenses involving two firms, submitted by Sterling Chemicals, Inc...."
• On November 3, 2010, Toothman responded by emailing Dancy a "Confidential Proposal" which stated: "Assuming we review at least $4 million in bills (fees and expenses) and the bill formats are consistent with the sample bill you provided, we are quoting a fee for your project of 2.1% of the gross amount of the fees we would review and report upon." The Confidential Proposal also noted: "This proposal is preliminary, prior to our engagement and full review of available information."
• In a November 4, 2010 email, Dancy advised Toothman that he had received the November 3 Confidential Proposal and that defendant was "mulling it over."
• On November 8, 2010, Toothman again emailed Dancy to ask whether Dancy had heard back from defendant regarding the November 3 Confidential Proposal.
• Thereafter, and within a few days of receiving the proposal, Dancy communicated by telephone to Toothman that defendant had rejected the terms of the November 3 Confidential Proposal.[2] Dancy mentioned two reasons for the rejection of the proposal: "one it was too high and second [for] any sort of proposal structured like ...

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