Occusafe, Inc. v. EG&G Rocky Flats, Inc.

• Decision Date: 19 April 1995
• Docket Number: No. 93-1469,93-1469
• Parties: OCCUSAFE, INC., an Illinois Corporation, Plaintiff-Appellant, v. EG&G ROCKY FLATS, INC., a Colorado Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 618

54 F.3d 618

OCCUSAFE, INC., an Illinois Corporation, Plaintiff-Appellant, v. EG&G ROCKY FLATS, INC., a Colorado Corporation, Defendant-Appellee.

No. 93-1469.

United States Court of Appeals Tenth Circuit.

April 19, 1995.

Thomas J. Burke, Jr., Jones & Keller, P.C., Denver, CO, for plaintiff-appellant.

John E. Bolmer, II, Hall & Evans, P.C., Denver, CO, for defendant-appellee.

Before TACHA, McWILLIAMS, Circuit Judges, and BURRAGE, District Judge ^*.

TACHA, Circuit Judge.

Plaintiff Occusafe, Inc., an Illinois corporation, brought suit against defendant EG&G Rocky Flats, Inc. (EG&G), a Colorado corporation, in federal district court pursuant to the court's diversity jurisdiction under 28 U.S.C. Sec. 1332. Plaintiff asserted three causes of action: (1) tortious interference with contractual relations; (2) tortious interference with prospective business advantage; and (3) breach of an implied covenant of good faith and fair dealing. The district court granted defendant summary judgment on all three claims, and plaintiff now appeals. We exercise jurisdiction under 28 U.S.C. Sec. 1291, reversing in part and affirming in part.

I

Plaintiff provides industrial hygiene consulting services on a contract basis. In the course of its business, it regularly employs industrial hygienists. Because of the relative scarcity of industrial hygienists, plaintiff requires its hygienists to agree, as part of their employment contracts, not to work for an Occusafe customer for at least six months after leaving Occusafe (the "non-compete agreements").

Defendant EG&G operates the Rocky Flats nuclear weapons production facility in Rocky Flats, Colorado, under a contract with the United States Department of Energy. Since December 1990, when defendant assumed the contractual obligations of its predecessor, Rockwell International, defendant has subcontracted with plaintiff for industrial hygiene services.

During the course of the parties' contractual relationship, seven of plaintiff's industrial hygienists have left their employment with Occusafe to accept jobs with defendant. All seven began working for defendant before the six-month period required by the non-compete agreements had elapsed. Plaintiff contends that defendant was fully aware of the non-compete agreements when it hired the industrial hygienists.

After efforts to resolve their differences through negotiation failed, plaintiff filed a complaint in federal district court in November 1990. Plaintiff alleged that defendant had tortiously interfered with plaintiff's contractual relations with its employees, tortiously interfered with plaintiff's prospective economic advantage, and breached the implied covenant of good faith and fair dealing between the parties. Defendant moved for summary judgment pursuant to Fed.R.Civ.P. 56.

The district court held that, as a matter of Colorado law, the non-compete agreements between plaintiff and its industrial hygienists were void. As a result, plaintiff's claims of tortious interference with contractual relations and breach of a covenant of good faith and fair dealing failed because both depended on the validity of the non-compete agreements. The court also concluded that plaintiff had no claim of tortious interference with prospective economic advantage because plaintiff and defendant were competitors. The district court therefore granted defendant summary judgment. Plaintiff now appeals.

II

We review a district court's grant of summary judgment de novo and apply the same legal standard used by the district court. Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10th Cir.1994). Under Rule 56(c), summary judgment is appropriate only if the record, viewed in the light most favorable to the party resisting the motion, reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). A fact is "material" if it "might affect the outcome of the suit under the governing law," and a "genuine" issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Moreover, as a federal court sitting in diversity jurisdiction, "our role is to ascertain and apply the proper state law, here that of [Colorado], with the goal of insuring that the result obtained is the one that would have been reached in the state courts." Allen v. Minnstar, Inc., 8 F.3d 1470, 1476 (10th Cir.1993). We review de novo the district court's construction of Colorado law, affording no deference to its conclusions. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1220-21, 113 L.Ed.2d 190 (1991). With this in mind, we turn to the merits of plaintiff's claims.

III

A.

Plaintiff first alleges that, by hiring away its industrial hygienists, defendant tortiously interfered with plaintiff's contractual relations with its employees. Plaintiff contends that defendant knowingly induced the seven industrial hygienists to breach their employment contracts with plaintiff. This claim turns on the validity of the non-compete agreements, for if a contract is void under Colorado law, "there can be no liability for inducing its breach." Dolton v. Capitol Fed. Sav. & Loan Ass'n, 642 P.2d 21, 23 (Colo.Ct.App.1981); Colorado Accounting Machs., Inc. v. Mergenthaler, 44 Colo.App. 155, 609 P.2d 1125, 1127 (1980); see also Restatement (Second) of Torts Sec. 766 cmt. f (1979) [hereinafter Restatement of Torts ] ("[I]f for any reason [the particular agreement] is entirely void, there is no liability for causing its breach.").

Colo.Rev.Stat. Sec. 8-2-113(2) broadly states that "[a]ny covenant not to compete which restricts the right of any person to receive compensation for performance of skilled or unskilled labor for any employer shall be void." It also provides, however, that "subsection (2) shall not apply to: ... (d) Executive and management personnel and officers and employees who constitute professional staff to executive and management personnel." Id. Sec. 8-2-113(2)(d). Plaintiff contends that the non-compete agreements were valid because industrial hygienists are "employees who constitute professional staff to executive and management personnel" for purposes of section 8-2-113(2)(d). The district court disagreed, holding that, as a matter of law, plaintiff's industrial hygienists were not "professional staff" as meant by the statute.

The Colorado Supreme Court has yet to interpret section 8-2-113(2)(d), but two decisions from the Colorado Court of Appeals are particularly relevant. ¹ In Porter Indust., Inc. v. Higgins, 680 P.2d 1339 (Colo.Ct.App.1984), the court held that "the determination of whether [an] employee was ... '[an] employee[ ] who constitute[s] professional staff to executive and management personnel' is a question of fact for resolution by the trial court." Id. at 1342 (quoting Colo.Rev.Stat. Sec. 8-2-113(2)(d)). And in Management Recruiters v. Miller, 762 P.2d 763 (Colo.Ct.App.1988), the court reaffirmed the holding of Higgins, stating that "[t]he determination of whether an employee is executive or management personnel, or professional staff, is a question of fact for the trial court." Id. at 765.

Thus, under Colorado law, whether a particular group of employees qualifies under the exception of section 8-2-113(2)(d) is an issue of fact. In this case, the issue is undoubtedly both genuine and material--genuine because a reasonable trier of fact could conclude that plaintiff's industrial hygienists were professional staff to executive and management personnel, and material because plaintiff's claim fails if the issue is resolved in defendant's favor.

Summary judgment is appropriate only if "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). Applying Colorado courts' interpretation of Colo.Rev.Stat. Sec. 8-2-113(2)(d), we find that there remains a genuine issue of material fact in this case as to whether plaintiff's industrial hygienists constituted "professional staff to executive and management personnel." The district court's order granting defendant summary judgment on plaintiff's claim for tortious interference with contractual relations was therefore inappropriate.

B.

Plaintiff next claims that defendant tortiously interfered with Occusafe's prospective economic advantage. Colorado courts have recognized this claim (alternatively referred to as a claim of intentional interference with prospective financial advantage or prospective contractual relations) as a cognizable cause of action. See, e.g., Dolton, 642 P.2d at 23.

Under Colorado law, "the crucial question in determining liability for tortious interference with prospective financial advantage is whether defendant's interference was intentional and improper." Cronk v. Intermountain Rural Elec. Ass'n, 765 P.2d 619, 623 (Colo.Ct.App.1988). This inquiry tracks the language of Restatement of Torts Sec. 766B, which states that "[o]ne who intentionally and improperly interferes with another's prospective contractual relation ... is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation."

As a general rule, however, a plaintiff cannot sue one of its competitors for intentional interference in prospective economic advantage. Memorial Gardens, Inc. v. Olympian Sales & Management Consulting, 690 P.2d 207, 210-11 (Colo.1984); see also Hutton v. Memorial Hosp., 824 P.2d 61, 64-65 (Colo.Ct.App.1991). This "competitor's privilege" is set out in section 768(1) of the Restatement of Torts, which has been endorsed by the Colorado Supreme Court. See Memorial Gardens, 690 P.2d at 210-11. Section 768(1) specifically provides:

One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his...