ROBERT S. WEISS & ASSOCIATES

13201

208 Conn. 525 (1988) | Cited 55 times | Supreme Court of Connecticut | August 9, 1988

The plaintiff, Robert S. Weiss and Associates, Inc.,instituted an action against Michael E. Wiederlightfor breach of a restrictive covenant of employmentand theft of trade secrets. In an amended complaint,the plaintiff added Insurance Associates of Connecticut,Inc. (IAC), as a defendant, alleging interferencewith a business enterprise and theft of trade secretswith Wiederlight acting as its agent. The trialcourt ruled in favor of the plaintiff on theissues of breach of the restrictive covenant andinterference with a business enterprise andawarded damages, but found that the plaintiff hadfailed to sustain its burden of proof on the issueof theft of trade secrets. The plaintiff appealedto the Appellate Court and the appeal wastransferred to this court pursuant to PracticeBook 4023.

On appeal, the plaintiff claims that the trialcourt erred: (1) in failing to conclude that theplaintiff's customer lists and related insuranceinformation constituted trade secrets and thatWiederlight had committed a theft of tradesecrets; (2) in failing to award damages beyondthe 1983-1984 period for Wiederlight'ssolicitation of the plaintiff's accounts in breachof the covenant; and (3) in failing to awarddamages for other accounts written in the arearestricted by the covenant after the court foundthat the covenant was valid and that Wiederlighthad breached it. The defendants on cross appealargue that the trial court erred in finding

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     that the restrictive covenant was reasonableand valid and in finding that IAC tortiouslyinterfered with the plaintiff's contract.

The facts may be summarized as follows. Theplaintiff is an independent insurance agencyin Stamford, that was doing business throughoutFairfield County and in New York at the time ofthe events underlying this case. In April, 1975,the plaintiff hired Wiederlight to sell commercialinsurance under a four year contract of employment.Wiederlight previously had worked in sales withLiberty Mutual Insurance Company (Liberty) inNew York for ten years. His written employmentagreement at Liberty contained a restrictivecovenant not to compete with Liberty for eighteenmonths after termination of employment.

Wiederlight's 1975 employment agreement withthe plaintiff prohibited him from engaging inthe commercial insurance business within Stamfordand a fifteen mile radius for two years afterhis employment terminated. In April, 1979, theplaintiff's principal, Robert S. Weiss, andWiederlight entered into a new four yearemployment agreement. Wiederlight expresseddissatisfaction with certain provisions of the1979 contract, which reduced his status andcommission rates and omitted a buy-in optionthat was set forth in the 1975 agreement. Whenthe 1979 agreement was negotiated, Wiederlight'ssole source of income was derived from his employmentwith Weiss. Wiederlight signed the agreement afterhe had read it and discussed it with his wife. Heunderstood all the terms and conditions andvoluntarily entered into the agreement.

The 1979 employment agreement contained threeparagraphs pertinent to this case. Paragraph sevenidentified the agency's business records, includingthose produced by Wiederlight, as its exclusive property,and forbade Wiederlight from removing such records on

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     termination of his employment. Paragraphs nine andten barred Wiederlight, for two years from thedate the agreement terminated, from solicitingaccounts held by the plaintiff at the time theemployment agreement terminated, and from workingwithin Stamford and within ten miles from theouter borders of Stamford.

In March, 1983, Weiss told Wiederlight that hisemployment agreement would not be renewed uponexpiration. Immediately thereafter, Wiederlightwas hired by IAC, then located in Southport, andbegan to solicit and sell commercial insurancepolicies to customers he had dealt with whileworking for Weiss. Before hiring Wiederlight, theprincipals of IAC had reviewed his employmentagreement with Weiss and were aware of the termsof the restrictive covenant.

During his employment at IAC from April, 1983,to March, 1985, Wiederlight sold insurance to anumber of accounts that belonged to the plaintiffwhen Wiederlight's employment there ceased.Wiederlight also sold commercial insurance toother customers within the restricted Stamfordarea. The commissions generated by Wiederlightduring his employment at IAC inured to thefinancial benefit of his employer. The principalsof IAC encouraged and induced Wiederlight to sellinsurance to customers of the plaintiff and othersin the Stamford area despite their knowledge ofthe restrictive covenant in Wiederlight's 1979employment agreement with Weiss.

We first consider the defendants' claim on crossappeal that the trial court erred in concludingthat the restrictive covenant in Wiederlight's1979 employment agreement was reasonable andtherefore valid.1 We find no error in thetrial court's conclusion.

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The defendants' first claim is that the trialcourt's conclusion was erroneous because itapplied the wrong criteria to evaluate thereasonableness of the restrictive covenant. Wedisagree. Scott v. General Iron & Welding Co.,171 Conn. 132, 368 A.2d 111 (1976), sets forththe criteria relevant to an evaluation of thereasonableness of a covenant not to compete ancillaryto an employment agreement.2 Although the trialcourt stated that it relied upon Mattis v. Lally,138 Conn. 51, 54, 82 A.2d 155 (1951), whichinvolved a covenant ancillary to the sale of abusiness, this fact does not establish that iterred in finding that the restrictive covenant wasreasonable. If the trial court's memorandum doesnot state a proper basis for its results, itsjudgment may be sustained if there are propergrounds to support it. Barra v. Ridgefield Card &Gift Gallery, Ltd., 194 Conn. 400, 404-405,480 A.2d 552 (1984); Herman v. Division of SpecialRevenue, 193 Conn. 379, 387, 477 A.2d 119 (1984);Favorite v. Miller, 176 Conn. 310, 317,407 A.2d 974 (1978).

The defendants next claim that the trial court erredin upholding the covenant because: (1) it containedtime and geographic constraints that were unreasonable;(2) it unreasonably restrained Wiederlight from anyemployment in the commercial insurance business; (3) it

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     unfairly protected the plaintiff's interests andinterfered with the public's interest in opencompetition; and (4) it never became operativeunder the terms of the contract.3 We areunpersuaded.

Paragraph nine of the employment agreementbarred Wiederlight from selling, soliciting orotherwise engaging in commercial insurance forhimself or any other firm in Stamford or within aten mile radius, excluding Long Island, New York,and areas north of Stamford, for two yearsfollowing termination of the agreement. Paragraphten prohibited him from soliciting or sellingcommercial insurance to customers of theplaintiff, existing when Wiederlight's employmentterminated, for two years following termination.

The trial court's conclusion that this restrictivecovenant was reasonable is consistent with other caseswhere we have held that time and geographic restrictionsin a covenant not to compete are valid if they arereasonably limited and fairly protect the interestsof both parties. See Scott v. General Iron & WeldingCo., supra, 138, 140 (upholding five year statewidecovenant barring employee from working as manager in

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     competing business); see also Torrington Creamery,Inc. v. Davenport, 126 Conn. 515, 520, 12 A.2d 780(1940) (upholding two year restriction applicableto specific and limited geographic area); Roesslerv. Burwell, 119 Conn. 289, 295, 176 A. 126 (1934)(covenant restricting delicatessen productssalesman from soliciting employer's customers inspecific locality upheld); cf. Samuel Stores, Inc.v. Abrams, 94 Conn. 248, 255, 108 A. 541 (1919)(invalidating covenant barring salesman for fiveyears from selling clothes in any city whereformer employer operates).

In the present case, the two year limitationfairly protected the plaintiff's interests inthe commercial insurance business in the Stamfordarea while ensuring that Wiederlight could returnto commercial insurance in that area within adefinite period of time. See Scott v. GeneralIron & Welding Co., supra, 140. In addition, therestricted geographical area was narrowly tailoredto the plaintiff's business situation in theStamford area. The provision of paragraph nineallowing Wiederlight to work in areas north ofStamford and in Long Island, New York, demonstratedthe plaintiff's caution in avoiding an overly broadgeographic restriction.

Further, we are not persuaded by the defendants'theory that paragraph ten is unreasonable becauseit lacks a geographic limitation. Paragraph tenbarred Wiederlight from soliciting the plaintiff'saccounts that existed when Wiederlight left. Uponthe termination of the agreement, the clause fixedthe geographical scope of the covenant to a definiteand limited area. Cf. May v. Young, 125 Conn. 1,8, 2 A.2d 385 (1938) (restraint may reasonablycover actual clients or customers of employerwhose business with them is subject to injury byemployee); see Tuttle v. Riggs-Warfield-Roloson,Inc., 251 Md. 45, 49, 246 A.2d 588 (1967) (agreementbetween insurance agency and employee barringemployee from soliciting any of employer's

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     clients for two years valid); Uniform Rental Div.,Inc. v. Moreno, 83 App. Div.2d 629, 441 N.Y.S.2d 538(1981) (upholding covenant barring salesmanfrom soliciting any customers of employer for twoyears). Such a restriction was reasonable in viewof the plaintiff's business situation, and by itsown terms did not protect the employer in areaswhere it did not do business. Scott v. GeneralIron & Welding Co., supra, 138.

The defendants assert that the scope ofprohibited employment failed to protectWiederlight's interests, especially sinceWiederlight did nothing to cause the severanceof his employment. It is true that in Scott v.General Iron & Welding Co., supra, 140, wenoted that the employee's interests were in partprotected because the covenant only prohibited himfrom working as a manager but not as an employee.See also May v. Young, supra, 5. The extensivetime and geographical restrictions in Scott,however, are not present here. Although thecovenant precluded Wiederlight from anyemployment in a commercial insurance business,the restriction only operated for two yearsand only applied to the greater Stamford area.Moreover, the reasonableness of a restrictivecovenant of employment does not turn on whetherthe employee subject to the covenant left hisposition voluntarily or was dismissed by theemployer. Cf. Torrington Creamery, Inc. v.Davenport, supra, 520 (employer under noobligation to offer to keep employee as conditionto enforcing covenant); Kroeger v. Stop & ShopCos., 13 Mass. App. 310, 320, 432 N.E.2d 566,appeal denied, 386 Mass. 1102, 440 N.E.2d 1175(1982) (termination of employment at initiativeof employer does not itself render non-competitionprovision invalid). Similarly, we disagree withthe defendants' theory that, because paragraph tenprotects the plaintiff's interest in customers,the only result of paragraph nine was to preventWiederlight from working in the Stamford area.

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     The fact that an employer seeks to protect hisinterest in potential new customers in areasonably limited market area as well as hisexisting customers at the time the employee leavesdoes not render the covenant unreasonable. SeeTorrington Creamery, Inc. v. Davenport, supra,518-20.

The defendants further contend that theplaintiff's self-interest in protecting theStamford commercial insurance market is outweighedby the public's interest in competitive insurancepricing and competition within the market place.We have stated that "[w]hen the character of thebusiness and the nature of the employment aresuch that the employer requires protection forhis established business against competitiveactivities by one who has become familiar withit through employment therein, restrictions arevalid when they appear to be reasonably necessaryfor the fair protection of the employer's businessor rights . . . . Especially if the employmentinvolves . . . [the employee's] contacts andassociations with clients or customers it isappropriate to restrain the use, when the serviceis ended, of the knowledge and acquaintance, soacquired, to injure or appropriate the businesswhich the party was employed to maintain andenlarge." May v. Young, supra, 6-7.

In the present case, Wiederlight's position asa commercial insurance salesman required him tomaintain extensive contacts and associationswith the plaintiff's customers. The trial court'sconclusion that the covenant was reasonable wasconsistent with evidence that the plaintiffsought to protect information regarding currentand potential customers in the Stamford area.Moreover, the defendants offer no explanation fortheir summary suggestion that the covenant impairsthe public's interest in competitive insurancepricing. There is nothing in the findings tosuggest that enforcement of the restrictivecovenant in paragraph nine will interfere

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     with the public's legitimate interest in opencompetition.4 See Torrington Creamery, Inc.v. Davenport, supra, 519, 520 (where provisionexcluded defendant from engaging in milk and dairyproducts distribution business for two years,nothing to indicate public interest prejudiced).

The defendants finally argue that the restrictivecovenant in the 1979 agreement never became operativebecause Wiederlight's employment agreement was not"terminated" as required by the covenant. They assertthat the meaning of "termination" is derived fromparagraph six of the agreement, which states thatthe agreement shall "not be terminated except bymutual [consent] of both parties or for cause."Since Wiederlight's agreement lapsed at the end ofthe four year term, they argue that the agreementwas not "terminated" and therefore the restrictionsin paragraphs nine and ten could not operate.

The trial court found that the contract wasunambiguous and rejected the defendant's contentionthat the word "termination" in paragraphs nine andten only meant termination by mutual consent orfor cause. "`The intention of the parties is to beascertained from the language used in the contractand that language must be given its common meaningand usage where it can be sensibly applied to thesubject matter of the contracts.' Anderson v. Pension& Retirement Board, 167 Conn. 352, 355 A.2d 283[1974]." Williams v. Vista Vestra, Inc., 178 Conn. 323,330, 422 A.2d 274 (1979). The word terminate "meansto `come to a limit in time; to end.'" MerchantsBank & Trust Co. v. New Canaan Historical Society,133 Conn. 706, 714, 54 A.2d 696 (1947), citingWebster's New International Dictionary

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     (2d Ed.). Because the ordinary meaning of"termination" may include lapse or expiration,the trial court was correct in ruling that thecovenant became operative when Wiederlight'scontract expired.

II

The defendant IAC claims in its cross appealthat the trial court's judgment for the plaintiffon the claim of tortious interference withcontractual relations should be reversed becausethe plaintiff failed properly to plead or provethat IAC acted wrongfully or improperly.5 Weagree.

The third count of the plaintiff's amendedcomplaint alleged that IAC "knew or in theexercise of reasonable care should have known" ofthe restrictive covenant in the Wiederlight-Weissagreement and that, "[d]espite this knowledgeeither actual or constructive," IAC encouragedWiederlight to sell insurance in violation of theagreement to IAC's financial benefit. The thirdcount concluded that IAC's activities "constitutedan interference with a contractual relationship."

"`This court has long recognized a cause ofaction for tortious interference with contractrights or other business relations. (Citationsomitted.) Blake v. Levy, 191 Conn. 257, 260,464 A.2d 52 (1983).'" Solomon v. Aberman,196 Conn. 359, 364, 493 A.2d 193 (1985). Nevertheless,"not every act that disturbs a contract

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     or business expectancy is actionable. Jones v.O'Connell, [189 Conn. 648, 660-61, 458 A.2d 355(1983)]." Blake v. Levy, supra, 260-61. "`[F]or aplaintiff successfully to prosecute such an actionit must prove that the defendant's conduct was infact tortious. This element may be satisfied byproof that the defendant was guilty of fraud,misrepresentation, intimidation or molestation . . .or that the defendant acted maliciously.' (Citationsomitted.)" Id., 261, quoting Kecko Piping Co. v.Monroe, 172 Conn. 197, 201-202, 374 A.2d 179 (1977)."[A]n action for intentional interference with businessrelations . . . requires the plaintiff to plead andprove at least some improper motive or impropermeans. . . . `[A] claim is made out [only] wheninterference resulting in injury to another iswrongful by some measure beyond the fact of theinterference itself.'" (Citations omitted.) Blake v.Levy, supra, 262; Kakadelis v. DeFabritis, 191 Conn. 276,279-80, 464 A.2d 57 (1983); see also Sportsmen'sBoating Corporation v. Hensley, 192 Conn. 747, 753,755, 474 A.2d 780 (1984) (liability in tort imposedonly if defendant acted maliciously).

The plaintiff's complaint omits the necessaryallegation of improper motive or means. Theassertion that IAC "encouraged" Wiederlight tosell commercial insurance in the restricted areawhen it knew or should have known of the covenant'sterms does not fairly imply that IAC acted with"fraud, misrepresentation, intimidation or molestation"or that it acted with malice. Blake v. Levy, supra,261. Construing the allegations most favorably tothe pleader; O'Connor v. Dory Corporation,174 Conn. 65, 68-69, 381 A.2d 559 (1977); the mostthe complaint alleges is that IAC knew of thecovenant's terms when it hired Wiederlight.6 We

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     have stated in an analogous situation, "[t]o raisean allegation of wilful conduct, the plaintiffmust clearly plead that the [harm] was caused bythe wilful or malicious conduct of the defendants."Warner v. Leslie-Elliott Constructors, Inc.,194 Conn. 129, 139, 479 A.2d 231 (1984). Moreover, wecannot look beyond the complaint for facts not alleged.Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86,449 A.2d 986 (1982).

Because the plaintiff's complaint failed toplead allegations essential to an action fortortious interference with a contractualrelationship, the trial court erred in awardingthe plaintiff a recovery on that basis. "`It isfundamental in our law that the right of a plaintiffto recover is limited to the allegations of hiscomplaint. Nash Engineering Co. v. Norwalk, 137 Conn. 235,239, 75 A.2d 496 [1950].'" Matthews v. F.M.C.Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983);Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213(1952).

III

The plaintiff claims that the trial court erredin concluding that the plaintiff's customer listand related information pertaining to insuranceaccounts were not trade secrets. The alleged tradesecrets included monthly production reports,containing a number of items relating to aparticular agent's accounts, expiration lists,indicating the date on which accounts expired,

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     and "prospect" cards, containing data gathered bythe plaintiff's sales force concerning potentialcustomers. We disagree with the plaintiff's claim.

"`A trade secret may consist of any formula,pattern, device or compilation of informationwhich is used in one's business, and which giveshim an opportunity to obtain an advantage overcompetitors who do not know or use it. It maybe a formula for a chemical compound . . . ora list of customers.' Restatement, 4 Torts 757,comment b; Allen Mfg. Co. v. Loika, [145 Conn. 509,516, 144 A.2d 306 (1958)]." Town & CountryHouse & Homes Service, Inc. v. Evans, 150 Conn. 314,318, 189 A.2d 390 (1963). Although it isnot essential that the proprietor have exclusivepossession of the information, "a substantialelement of secrecy must exist, to the extentthat there would be difficulty in acquiring theinformation except by the use of improper means."Id., 319. Depending on the nature of the business,a customer list may be a trade secret, and anemployee may be restrained from using the list ifhe acquired it in confidence from his employer.There is no trade secret, however, if the customers'names can readily be ascertained through ordinarybusiness channels or reference resources. Id., 319-20.The factors used to determine whether given informationis a trade secret include the extent to which theinformation is known outside the business and byemployees and others involved in the business, theymeasures taken by the employer to guard the secrecyof the information, the information's value to theemployer and to competitors, the resources the employerexpends in developing the information, and the easeor difficulty with which the information could beproperly acquired or duplicated by others. Id.,319; 4 Restatement, Torts 757, comment b.

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The trial court found that during his employmentwith the plaintiff, Wiederlight was allowed tokeep production reports that were issued to himeach month. The reports provided Wiederlight withall the information necessary to solicit theinsurance business of customers listed in thereports. The court also found that Wiederlightdeveloped and serviced the customers listed inthe reports, and that Wiederlight's personalrelationship with each customer allowed him accessto their insurance needs. Wiederlight was the onlyagent his customers dealt with at the plaintiffinsurance agency.

The court also heard conflicting testimonyregarding the extent to which the plaintiff soughtto keep secret the various sources of information.Weiss testified that information on customeraccounts was provided to the plaintiff's employeesonly on a "need to know" basis. He also testifiedthat the plaintiff's comptroller had exclusivecontrol over the expiration lists, which were keptin a locked cabinet. In addition, paragraph sevenof the 1979 agreement established the plaintiff'sproprietary interest in the business records,although it did not refer to them as tradesecrets. Weiss, however, testified that summariesof the insurance policy accounts containing dataon coverage, premiums, and expiration dates werekept in open and unlocked files. He also testifiedthat Wiederlight acquired the information on theaccounts he sold while working for the plaintiffby calling on the accounts himself. There was alsotestimony that the prospect list and vital accountdata could be obtained independently simply byusing telephone directories or making personalcontact.

We hold that the trial court was not clearlyerroneous in concluding that the customer list andrelated insurance information were not trade secrets.

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     Pandolphe's Auto Parts, Inc. v. Manchester,181 Conn. 217, 221-22, 435 A.2d 24 (1980).7

IV

Finally, we address the plaintiff's claims onthe issue of damages. The trial court concludedthat the plaintiff had sustained the burden ofproof of damages for net profits lost in 1983and 1984 through Wiederlight's sales to theplaintiff's accounts in breach of the restrictivecovenant. In assessing damages, the court usedcertain tables, supplied by the plaintiff, thatprovided data on the accounts. The informationincluded the account's name, the year the plaintiffobtained the account, and the claimed actual andprojected losses for the years 1983 through 1991.To arrive at the damage figure, the trial courtreduced the total amount of losses for the years1983 and 1984 by 44 percent. The reduction included27 percent for Weiderlight's salary compensation, 11percent for the plaintiff's average annual loss ofcustomers, and a 6 percent overhead factor.8 Thecourt, however, found that there was no credible evidencethat the plaintiff's customers would have renewed theiraccounts after 1984, and denied damages for the periodfollowing 1984. The plaintiff argues that because thetrial court awarded damages for Wiederlight's salesto its accounts in 1983-1984 based on the plaintiff'stables, it implicitly accepted that

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     loss of renewals in future years was compensable,and therefore could not logically deny damages forthe years following 1984. We are unpersuaded.

The trial court has broad discretion indetermining whether damages are appropriate.Buckman v. People Express, Inc., 205 Conn. 166,175, 530 A.2d 596 (1987). Its decision will notbe disturbed on appeal absent a clear abuse ofdiscretion. Id. To recover damages, the plaintiffmust offer evidence sufficient to prove theclaimed loss. Waterbury Petroleum Products, Inc.v. Canaan Oil & Fuel Co., 193 Conn. 208, 226 n. 22,477 A.2d 988 (1984). Moreover, lost profits cannotbe recovered unless it is reasonably certain thatthey resulted from the breach. Burr v. Lichtenheim,190 Conn. 351, 360, 460 A.2d 1290 (1983). The amountof lost profits may be determined by approximationbased on reasonable inferences and estimates. Id.

At trial, Weiss testified that the plaintiffannually lost 11.5 percent of its customers.Weiss also testified, however, that all of theplaintiff's accounts that Wiederlight sold hadbeen accounts he had produced while working atthe agency. Wiederlight testified that many ofthe disputed customer accounts had contacted himand sought his services after learning that hehad left the plaintiff. Although other agentswere assigned to contact these customers afterWiederlight left, Weiss did not know the extentof the plaintiff's subsequent contacts with theaccounts.

On the basis of the evidence, the trial courtcould reasonably have found that the plaintifffailed to establish that it would have obtainedrenewals of the accounts after 1984. The trialcourt's conclusion that the plaintiff failed toprove damages for lost profits for the periodafter 1984 was not a clear abuse of discretion.9Buckman v. People Express, Inc., supra, 175.

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The plaintiff also contests the trial court'sdenial of damages for Wiederlight's breach ofthat part of the covenant barring him fromworking in the Stamford area for two years aftertermination of employment with it. The trial courtfound that there was no evidence that the plaintiffwould have written any of the accounts in therestricted area had Wiederlight not breached thecovenant. It concluded that the plaintiff's damageclaim was speculative.

At trial, the plaintiff introduced a list ofcustomers in the Stamford area that Wiederlightsuccessfully had solicited during the restrictedperiod. The data, which was supplied to theplaintiff by IAC, gave each account's name anddate of inception, the total commission earned,the profit on the commission, and Wiederlight'sshare in the commission.

The proper measure of damages for breach of acovenant not to compete is the nonbreachingparty's losses rather than the breaching party'sgains. Matter of Isbell, 27 B.R. 926, 929-30(W.D. Wis. 1983); Hyde v. C M Vending Co., Inc.,288 Ark. 218, 225, 703 S.W.2d 862 (1986); D. W.Trowbridge Ford, Inc. v. Galyen, 200 Neb. 103,107, 262 N.W.2d 442 (1978); Vermont Electric SupplyCo. v. Andrus, 135 Vt. 190, 192, 373 A.2d 531(1977). The plaintiff seeks to establish its lostprofits by reference to the undisputed fact thatWiederlight sold commercial insurance to customersin the restricted area during the covenant'soperation. To permit the plaintiff to recoverdamages merely by proving that the defendantbreached the covenant, however, would ignore thewell established rule that damages are essentialto the plaintiff's proof and must be shown with

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     reasonable clarity. Milgrim v. Deluca, 195 Conn. 191,199, 487 A.2d 522 (1985); Fuessenich v. DiNardo,195 Conn. 144, 154, 487 A.2d 514 (1985); Conawayv. Prestia, 191 Conn. 484, 493-94, 464 A.2d 847(1983). The trial court did not abuse itsdiscretion in denying the plaintiff damages forWiederlight's breach of paragraph nine of thecovenant. Buckman v. People Express, Inc., supra,175.

There is no error in the plaintiff's appeal.There is error in the defendants' cross appeal,the judgment against IAC for tortious interferencewith contract is set aside and the case isremanded to the trial court with direction torender judgment in favor of the defendant IAC.

In this opinion the other justices concurred.

1. The plaintiff claims that we shouldnot consider the defendants' attack on thevalidity of the restrictive covenant since theyonly seek to relitigate the facts. Our examinationof the defendants' argument, however, indicatesthat it raises questions of law and is not simplya wholesale challenge to the trial court's findingsresulting in an attempt to have this court retryissues of fact. Cf. Halperin v. Pine PlazaCorporation, 180 Conn. 85, 87, 428 A.2d 340 (1980).

2. The five factors to be considered inevaluating the reasonableness of a restrictivecovenant ancillary to an employment agreement are:(1) the length of time the restriction operates;(2) the geographical area covered; (3) thefairness of the protection accorded to theemployer; (4) the extent of the restraint on theemployee's opportunity to pursue his occupation;and (5) the extent of interference with thepublic's interests. Scott v. General Iron &Welding Co., 171 Conn. 132, 137, 368 A.2d 111(1976); New Haven Tobacco Co. v. Perrelli,11 Conn. App. 636, 638-39, 528 A.2d 865 (1987).

3. Wiederlight also contends that the trialcourt's decision should not stand because thecourt concluded that the covenant was reasonablewith respect to geographic and time restrictionswithout addressing whether it reasonably protectedWiederlight's occupational opportunities, whetherit was reasonable in relation to the plaintiffsbusiness interests, or whether it undulyinterfered with the public's interests. See Scottv. General Iron & Welding Co., 171 Conn. 132, 137,368 A.2d 11 (1976). The trial court's conclusion that the covenantwas enforceable implies a conclusion as to thereasonableness of all aspects of the covenant.Moreover, "`[w]e have frequently indicated thatif an appellant requires amplification orclarification of the factual basis of a decisionto present his claims of error he should seek afurther articulation from the trial court.'"Griffin Hospital v. Commission on Hospitals &Health Care, 196 Conn. 451, 459, 493 A.2d 229(1985), quoting Newington v. General SanitationService Co., 196 Conn. 81, 84, 491 A.2d 363(1985); Practice Book 4051. Wiederlight did notseek a further articulation of the factual basisfor the trial court's conclusion that the covenantwas valid.

4. We reject Wiederlight's additional claimthat there was no evidence at all to justify therestrictive covenant. There was ample evidencein the record by which the trial court couldreasonably have concluded that the covenant wasfair and did not unduly burden the defendant.

5. The plaintiff asserts that IAC has waivedany claim on cross appeal that the complaint waslegally inadequate by failing to raise this issueprior to trial. We note, however, that "`[i]t isincumbent on a plaintiff to allege some recognizablecause of action in his complaint. If he fails so todo, it is not the burden of the defendant to attemptto correct the deficiency, either by motion, [motionto strike] or otherwise.' Stavnezer v. Sage-Allen &Co., 146 Conn. 460, 461, 152 A.2d 312 [1959]. Thus,failure by the defendants to [move to strike] anyportion of the amended complaint does not preventthem from claiming that the [plaintiff] had no causeof action and that a judgment in their favor was notwarranted." Brill v. Ulrey, 159 Conn. 371, 374,269 A.2d 262 (1970).

6. In support of the sufficiency of thecomplaint, the plaintiff relies on Solomon v.Aberman, 196 Conn. 359, 373, 493 A.2d 193 (1985),for the proposition that conscious interferencewith a contract for the purpose of financialgain constitutes an improper purpose. InSolomon, however, our review was limited toconsidering whether the trial court committedclear error in finding probable cause, for thepurpose of issuing a prejudgment attachment, thatthe defendants had committed tortious interferencewith the plaintiff's contractual and beneficialrelations. Id., 360, 364. We upheld the trialcourt's finding of probable cause after notingthat the court found that the defendant obtainedan indirect financial benefit by improperly inducingthe plaintiff's discharge from employment. Id., 374.In the present case, the plaintiffs complaint doesnot allege any affirmative conduct by IAC analogousto the improper conduct of the defendant in Solomon.

7. The cases relied upon by the plaintiffare distinguishable. In holding that insurancecompany customer lists were trade secrets, thesedecisions noted that the employee had been giventhe information by the employer and had notdeveloped it on his own. See Alexander &Alexander, Inc. v. Drayton, 378 F. Sup. 824, 832-33(E.D. Pa.), aff'd, 505 F.2d 729 (3d Cir. 1974);American Republic Ins. Co. v. Union Fidelity LifeIns. Co., 295 F. Sup. 553, 555 (D. Or. 1968),aff'd, 470 F.2d 820 (9th Cir. 1972); United Ins.Co. of America v. Dienno, 248 F. Sup. 553, 555, 559(E.D. Pa. 1965). In the present case, however, thetrial court found that Wiederlight developed thecustomer list through his own efforts.

8. For the year 1984, the court also excludedclaims of losses pertaining to two accounts listedin the plaintiff's tables.

9. In a similar vein, the plaintiff arguesthat because the trial court applied the 11.5percent annual customer "attrition" rate to thedisputed accounts for 1983-1984, it was bound toassume that those accounts would have a longevitygreater than two years. Simply because the

The plaintiff, Robert S. Weiss and Associates, Inc.,instituted an action against Michael E. Wiederlightfor breach of a restrictive covenant of employmentand theft of trade secrets. In an amended complaint,the plaintiff added Insurance Associates of Connecticut,Inc. (IAC), as a defendant, alleging interferencewith a business enterprise and theft of trade secretswith Wiederlight acting as its agent. The trialcourt ruled in favor of the plaintiff on theissues of breach of the restrictive covenant andinterference with a business enterprise andawarded damages, but found that the plaintiff hadfailed to sustain its burden of proof on the issueof theft of trade secrets. The plaintiff appealedto the Appellate Court and the appeal wastransferred to this court pursuant to PracticeBook 4023.

On appeal, the plaintiff claims that the trialcourt erred: (1) in failing to conclude that theplaintiff's customer lists and related insuranceinformation constituted trade secrets and thatWiederlight had committed a theft of tradesecrets; (2) in failing to award damages beyondthe 1983-1984 period for Wiederlight'ssolicitation of the plaintiff's accounts in breachof the covenant; and (3) in failing to awarddamages for other accounts written in the arearestricted by the covenant after the court foundthat the covenant was valid and that Wiederlighthad breached it. The defendants on cross appealargue that the trial court erred in finding

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     that the restrictive covenant was reasonableand valid and in finding that IAC tortiouslyinterfered with the plaintiff's contract.

The facts may be summarized as follows. Theplaintiff is an independent insurance agencyin Stamford, that was doing business throughoutFairfield County and in New York at the time ofthe events underlying this case. In April, 1975,the plaintiff hired Wiederlight to sell commercialinsurance under a four year contract of employment.Wiederlight previously had worked in sales withLiberty Mutual Insurance Company (Liberty) inNew York for ten years. His written employmentagreement at Liberty contained a restrictivecovenant not to compete with Liberty for eighteenmonths after termination of employment.

Wiederlight's 1975 employment agreement withthe plaintiff prohibited him from engaging inthe commercial insurance business within Stamfordand a fifteen mile radius for two years afterhis employment terminated. In April, 1979, theplaintiff's principal, Robert S. Weiss, andWiederlight entered into a new four yearemployment agreement. Wiederlight expresseddissatisfaction with certain provisions of the1979 contract, which reduced his status andcommission rates and omitted a buy-in optionthat was set forth in the 1975 agreement. Whenthe 1979 agreement was negotiated, Wiederlight'ssole source of income was derived from his employmentwith Weiss. Wiederlight signed the agreement afterhe had read it and discussed it with his wife. Heunderstood all the terms and conditions andvoluntarily entered into the agreement.

The 1979 employment agreement contained threeparagraphs pertinent to this case. Paragraph sevenidentified the agency's business records, includingthose produced by Wiederlight, as its exclusive property,and forbade Wiederlight from removing such records on

[208 Conn. 528]

     termination of his employment. Paragraphs nine andten barred Wiederlight, for two years from thedate the agreement terminated, from solicitingaccounts held by the plaintiff at the time theemployment agreement terminated, and from workingwithin Stamford and within ten miles from theouter borders of Stamford.

In March, 1983, Weiss told Wiederlight that hisemployment agreement would not be renewed uponexpiration. Immediately thereafter, Wiederlightwas hired by IAC, then located in Southport, andbegan to solicit and sell commercial insurancepolicies to customers he had dealt with whileworking for Weiss. Before hiring Wiederlight, theprincipals of IAC had reviewed his employmentagreement with Weiss and were aware of the termsof the restrictive covenant.

During his employment at IAC from April, 1983,to March, 1985, Wiederlight sold insurance to anumber of accounts that belonged to the plaintiffwhen Wiederlight's employment there ceased.Wiederlight also sold commercial insurance toother customers within the restricted Stamfordarea. The commissions generated by Wiederlightduring his employment at IAC inured to thefinancial benefit of his employer. The principalsof IAC encouraged and induced Wiederlight to sellinsurance to customers of the plaintiff and othersin the Stamford area despite their knowledge ofthe restrictive covenant in Wiederlight's 1979employment agreement with Weiss.

We first consider the defendants' claim on crossappeal that the trial court erred in concludingthat the restrictive covenant in Wiederlight's1979 employment agreement was reasonable andtherefore valid.1 We find no error in thetrial court's conclusion.

[208 Conn. 529]

The defendants' first claim is that the trialcourt's conclusion was erroneous because itapplied the wrong criteria to evaluate thereasonableness of the restrictive covenant. Wedisagree. Scott v. General Iron & Welding Co.,171 Conn. 132, 368 A.2d 111 (1976), sets forththe criteria relevant to an evaluation of thereasonableness of a covenant not to compete ancillaryto an employment agreement.2 Although the trialcourt stated that it relied upon Mattis v. Lally,138 Conn. 51, 54, 82 A.2d 155 (1951), whichinvolved a covenant ancillary to the sale of abusiness, this fact does not establish that iterred in finding that the restrictive covenant wasreasonable. If the trial court's memorandum doesnot state a proper basis for its results, itsjudgment may be sustained if there are propergrounds to support it. Barra v. Ridgefield Card &Gift Gallery, Ltd., 194 Conn. 400, 404-405,480 A.2d 552 (1984); Herman v. Division of SpecialRevenue, 193 Conn. 379, 387, 477 A.2d 119 (1984);Favorite v. Miller, 176 Conn. 310, 317,407 A.2d 974 (1978).

The defendants next claim that the trial court erredin upholding the covenant because: (1) it containedtime and geographic constraints that were unreasonable;(2) it unreasonably restrained Wiederlight from anyemployment in the commercial insurance business; (3) it

[208 Conn. 530]

     unfairly protected the plaintiff's interests andinterfered with the public's interest in opencompetition; and (4) it never became operativeunder the terms of the contract.3 We areunpersuaded.

Paragraph nine of the employment agreementbarred Wiederlight from selling, soliciting orotherwise engaging in commercial insurance forhimself or any other firm in Stamford or within aten mile radius, excluding Long Island, New York,and areas north of Stamford, for two yearsfollowing termination of the agreement. Paragraphten prohibited him from soliciting or sellingcommercial insurance to customers of theplaintiff, existing when Wiederlight's employmentterminated, for two years following termination.

The trial court's conclusion that this restrictivecovenant was reasonable is consistent with other caseswhere we have held that time and geographic restrictionsin a covenant not to compete are valid if they arereasonably limited and fairly protect the interestsof both parties. See Scott v. General Iron & WeldingCo., supra, 138, 140 (upholding five year statewidecovenant barring employee from working as manager in

[208 Conn. 531]

     competing business); see also Torrington Creamery,Inc. v. Davenport, 126 Conn. 515, 520, 12 A.2d 780(1940) (upholding two year restriction applicableto specific and limited geographic area); Roesslerv. Burwell, 119 Conn. 289, 295, 176 A. 126 (1934)(covenant restricting delicatessen productssalesman from soliciting employer's customers inspecific locality upheld); cf. Samuel Stores, Inc.v. Abrams, 94 Conn. 248, 255, 108 A. 541 (1919)(invalidating covenant barring salesman for fiveyears from selling clothes in any city whereformer employer operates).

In the present case, the two year limitationfairly protected the plaintiff's interests inthe commercial insurance business in the Stamfordarea while ensuring that Wiederlight could returnto commercial insurance in that area within adefinite period of time. See Scott v. GeneralIron & Welding Co., supra, 140. In addition, therestricted geographical area was narrowly tailoredto the plaintiff's business situation in theStamford area. The provision of paragraph nineallowing Wiederlight to work in areas north ofStamford and in Long Island, New York, demonstratedthe plaintiff's caution in avoiding an overly broadgeographic restriction.

Further, we are not persuaded by the defendants'theory that paragraph ten is unreasonable becauseit lacks a geographic limitation. Paragraph tenbarred Wiederlight from soliciting the plaintiff'saccounts that existed when Wiederlight left. Uponthe termination of the agreement, the clause fixedthe geographical scope of the covenant to a definiteand limited area. Cf. May v. Young, 125 Conn. 1,8, 2 A.2d 385 (1938) (restraint may reasonablycover actual clients or customers of employerwhose business with them is subject to injury byemployee); see Tuttle v. Riggs-Warfield-Roloson,Inc., 251 Md. 45, 49, 246 A.2d 588 (1967) (agreementbetween insurance agency and employee barringemployee from soliciting any of employer's

[208 Conn. 532]

     clients for two years valid); Uniform Rental Div.,Inc. v. Moreno, 83 App. Div.2d 629, 441 N.Y.S.2d 538(1981) (upholding covenant barring salesmanfrom soliciting any customers of employer for twoyears). Such a restriction was reasonable in viewof the plaintiff's business situation, and by itsown terms did not protect the employer in areaswhere it did not do business. Scott v. GeneralIron & Welding Co., supra, 138.

The defendants assert that the scope ofprohibited employment failed to protectWiederlight's interests, especially sinceWiederlight did nothing to cause the severanceof his employment. It is true that in Scott v.General Iron & Welding Co., supra, 140, wenoted that the employee's interests were in partprotected because the covenant only prohibited himfrom working as a manager but not as an employee.See also May v. Young, supra, 5. The extensivetime and geographical restrictions in Scott,however, are not present here. Although thecovenant precluded Wiederlight from anyemployment in a commercial insurance business,the restriction only operated for two yearsand only applied to the greater Stamford area.Moreover, the reasonableness of a restrictivecovenant of employment does not turn on whetherthe employee subject to the covenant left hisposition voluntarily or was dismissed by theemployer. Cf. Torrington Creamery, Inc. v.Davenport, supra, 520 (employer under noobligation to offer to keep employee as conditionto enforcing covenant); Kroeger v. Stop & ShopCos., 13 Mass. App. 310, 320, 432 N.E.2d 566,appeal denied, 386 Mass. 1102, 440 N.E.2d 1175(1982) (termination of employment at initiativeof employer does not itself render non-competitionprovision invalid). Similarly, we disagree withthe defendants' theory that, because paragraph tenprotects the plaintiff's interest in customers,the only result of paragraph nine was to preventWiederlight from working in the Stamford area.

[208 Conn. 533]

     The fact that an employer seeks to protect hisinterest in potential new customers in areasonably limited market area as well as hisexisting customers at the time the employee leavesdoes not render the covenant unreasonable. SeeTorrington Creamery, Inc. v. Davenport, supra,518-20.

The defendants further contend that theplaintiff's self-interest in protecting theStamford commercial insurance market is outweighedby the public's interest in competitive insurancepricing and competition within the market place.We have stated that "[w]hen the character of thebusiness and the nature of the employment aresuch that the employer requires protection forhis established business against competitiveactivities by one who has become familiar withit through employment therein, restrictions arevalid when they appear to be reasonably necessaryfor the fair protection of the employer's businessor rights . . . . Especially if the employmentinvolves . . . [the employee's] contacts andassociations with clients or customers it isappropriate to restrain the use, when the serviceis ended, of the knowledge and acquaintance, soacquired, to injure or appropriate the businesswhich the party was employed to maintain andenlarge." May v. Young, supra, 6-7.

In the present case, Wiederlight's position asa commercial insurance salesman required him tomaintain extensive contacts and associationswith the plaintiff's customers. The trial court'sconclusion that the covenant was reasonable wasconsistent with evidence that the plaintiffsought to protect information regarding currentand potential customers in the Stamford area.Moreover, the defendants offer no explanation fortheir summary suggestion that the covenant impairsthe public's interest in competitive insurancepricing. There is nothing in the findings tosuggest that enforcement of the restrictivecovenant in paragraph nine will interfere

[208 Conn. 534]

     with the public's legitimate interest in opencompetition.4 See Torrington Creamery, Inc.v. Davenport, supra, 519, 520 (where provisionexcluded defendant from engaging in milk and dairyproducts distribution business for two years,nothing to indicate public interest prejudiced).

The defendants finally argue that the restrictivecovenant in the 1979 agreement never became operativebecause Wiederlight's employment agreement was not"terminated" as required by the covenant. They assertthat the meaning of "termination" is derived fromparagraph six of the agreement, which states thatthe agreement shall "not be terminated except bymutual [consent] of both parties or for cause."Since Wiederlight's agreement lapsed at the end ofthe four year term, they argue that the agreementwas not "terminated" and therefore the restrictionsin paragraphs nine and ten could not operate.

The trial court found that the contract wasunambiguous and rejected the defendant's contentionthat the word "termination" in paragraphs nine andten only meant termination by mutual consent orfor cause. "`The intention of the parties is to beascertained from the language used in the contractand that language must be given its common meaningand usage where it can be sensibly applied to thesubject matter of the contracts.' Anderson v. Pension& Retirement Board, 167 Conn. 352, 355 A.2d 283[1974]." Williams v. Vista Vestra, Inc., 178 Conn. 323,330, 422 A.2d 274 (1979). The word terminate "meansto `come to a limit in time; to end.'" MerchantsBank & Trust Co. v. New Canaan Historical Society,133 Conn. 706, 714, 54 A.2d 696 (1947), citingWebster's New International Dictionary

[208 Conn. 535]

     (2d Ed.). Because the ordinary meaning of"termination" may include lapse or expiration,the trial court was correct in ruling that thecovenant became operative when Wiederlight'scontract expired.

II

The defendant IAC claims in its cross appealthat the trial court's judgment for the plaintiffon the claim of tortious interference withcontractual relations should be reversed becausethe plaintiff failed properly to plead or provethat IAC acted wrongfully or improperly.5 Weagree.

The third count of the plaintiff's amendedcomplaint alleged that IAC "knew or in theexercise of reasonable care should have known" ofthe restrictive covenant in the Wiederlight-Weissagreement and that, "[d]espite this knowledgeeither actual or constructive," IAC encouragedWiederlight to sell insurance in violation of theagreement to IAC's financial benefit. The thirdcount concluded that IAC's activities "constitutedan interference with a contractual relationship."

"`This court has long recognized a cause ofaction for tortious interference with contractrights or other business relations. (Citationsomitted.) Blake v. Levy, 191 Conn. 257, 260,464 A.2d 52 (1983).'" Solomon v. Aberman,196 Conn. 359, 364, 493 A.2d 193 (1985). Nevertheless,"not every act that disturbs a contract

[208 Conn. 536]

     or business expectancy is actionable. Jones v.O'Connell, [189 Conn. 648, 660-61, 458 A.2d 355(1983)]." Blake v. Levy, supra, 260-61. "`[F]or aplaintiff successfully to prosecute such an actionit must prove that the defendant's conduct was infact tortious. This element may be satisfied byproof that the defendant was guilty of fraud,misrepresentation, intimidation or molestation . . .or that the defendant acted maliciously.' (Citationsomitted.)" Id., 261, quoting Kecko Piping Co. v.Monroe, 172 Conn. 197, 201-202, 374 A.2d 179 (1977)."[A]n action for intentional interference with businessrelations . . . requires the plaintiff to plead andprove at least some improper motive or impropermeans. . . . `[A] claim is made out [only] wheninterference resulting in injury to another iswrongful by some measure beyond the fact of theinterference itself.'" (Citations omitted.) Blake v.Levy, supra, 262; Kakadelis v. DeFabritis, 191 Conn. 276,279-80, 464 A.2d 57 (1983); see also Sportsmen'sBoating Corporation v. Hensley, 192 Conn. 747, 753,755, 474 A.2d 780 (1984) (liability in tort imposedonly if defendant acted maliciously).

The plaintiff's complaint omits the necessaryallegation of improper motive or means. Theassertion that IAC "encouraged" Wiederlight tosell commercial insurance in the restricted areawhen it knew or should have known of the covenant'sterms does not fairly imply that IAC acted with"fraud, misrepresentation, intimidation or molestation"or that it acted with malice. Blake v. Levy, supra,261. Construing the allegations most favorably tothe pleader; O'Connor v. Dory Corporation,174 Conn. 65, 68-69, 381 A.2d 559 (1977); the mostthe complaint alleges is that IAC knew of thecovenant's terms when it hired Wiederlight.6 We

[208 Conn. 537]

     have stated in an analogous situation, "[t]o raisean allegation of wilful conduct, the plaintiffmust clearly plead that the [harm] was caused bythe wilful or malicious conduct of the defendants."Warner v. Leslie-Elliott Constructors, Inc.,194 Conn. 129, 139, 479 A.2d 231 (1984). Moreover, wecannot look beyond the complaint for facts not alleged.Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86,449 A.2d 986 (1982).

Because the plaintiff's complaint failed toplead allegations essential to an action fortortious interference with a contractualrelationship, the trial court erred in awardingthe plaintiff a recovery on that basis. "`It isfundamental in our law that the right of a plaintiffto recover is limited to the allegations of hiscomplaint. Nash Engineering Co. v. Norwalk, 137 Conn. 235,239, 75 A.2d 496 [1950].'" Matthews v. F.M.C.Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983);Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213(1952).

III

The plaintiff claims that the trial court erredin concluding that the plaintiff's customer listand related information pertaining to insuranceaccounts were not trade secrets. The alleged tradesecrets included monthly production reports,containing a number of items relating to aparticular agent's accounts, expiration lists,indicating the date on which accounts expired,

[208 Conn. 538]

     and "prospect" cards, containing data gathered bythe plaintiff's sales force concerning potentialcustomers. We disagree with the plaintiff's claim.

"`A trade secret may consist of any formula,pattern, device or compilation of informationwhich is used in one's business, and which giveshim an opportunity to obtain an advantage overcompetitors who do not know or use it. It maybe a formula for a chemical compound . . . ora list of customers.' Restatement, 4 Torts 757,comment b; Allen Mfg. Co. v. Loika, [145 Conn. 509,516, 144 A.2d 306 (1958)]." Town & CountryHouse & Homes Service, Inc. v. Evans, 150 Conn. 314,318, 189 A.2d 390 (1963). Although it isnot essential that the proprietor have exclusivepossession of the information, "a substantialelement of secrecy must exist, to the extentthat there would be difficulty in acquiring theinformation except by the use of improper means."Id., 319. Depending on the nature of the business,a customer list may be a trade secret, and anemployee may be restrained from using the list ifhe acquired it in confidence from his employer.There is no trade secret, however, if the customers'names can readily be ascertained through ordinarybusiness channels or reference resources. Id., 319-20.The factors used to determine whether given informationis a trade secret include the extent to which theinformation is known outside the business and byemployees and others involved in the business, theymeasures taken by the employer to guard the secrecyof the information, the information's value to theemployer and to competitors, the resources the employerexpends in developing the information, and the easeor difficulty with which the information could beproperly acquired or duplicated by others. Id.,319; 4 Restatement, Torts 757, comment b.

[208 Conn. 539]

The trial court found that during his employmentwith the plaintiff, Wiederlight was allowed tokeep production reports that were issued to himeach month. The reports provided Wiederlight withall the information necessary to solicit theinsurance business of customers listed in thereports. The court also found that Wiederlightdeveloped and serviced the customers listed inthe reports, and that Wiederlight's personalrelationship with each customer allowed him accessto their insurance needs. Wiederlight was the onlyagent his customers dealt with at the plaintiffinsurance agency.

The court also heard conflicting testimonyregarding the extent to which the plaintiff soughtto keep secret the various sources of information.Weiss testified that information on customeraccounts was provided to the plaintiff's employeesonly on a "need to know" basis. He also testifiedthat the plaintiff's comptroller had exclusivecontrol over the expiration lists, which were keptin a locked cabinet. In addition, paragraph sevenof the 1979 agreement established the plaintiff'sproprietary interest in the business records,although it did not refer to them as tradesecrets. Weiss, however, testified that summariesof the insurance policy accounts containing dataon coverage, premiums, and expiration dates werekept in open and unlocked files. He also testifiedthat Wiederlight acquired the information on theaccounts he sold while working for the plaintiffby calling on the accounts himself. There was alsotestimony that the prospect list and vital accountdata could be obtained independently simply byusing telephone directories or making personalcontact.

We hold that the trial court was not clearlyerroneous in concluding that the customer list andrelated insurance information were not trade secrets.

[208 Conn. 540]

     Pandolphe's Auto Parts, Inc. v. Manchester,181 Conn. 217, 221-22, 435 A.2d 24 (1980).7

IV

Finally, we address the plaintiff's claims onthe issue of damages. The trial court concludedthat the plaintiff had sustained the burden ofproof of damages for net profits lost in 1983and 1984 through Wiederlight's sales to theplaintiff's accounts in breach of the restrictivecovenant. In assessing damages, the court usedcertain tables, supplied by the plaintiff, thatprovided data on the accounts. The informationincluded the account's name, the year the plaintiffobtained the account, and the claimed actual andprojected losses for the years 1983 through 1991.To arrive at the damage figure, the trial courtreduced the total amount of losses for the years1983 and 1984 by 44 percent. The reduction included27 percent for Weiderlight's salary compensation, 11percent for the plaintiff's average annual loss ofcustomers, and a 6 percent overhead factor.8 Thecourt, however, found that there was no credible evidencethat the plaintiff's customers would have renewed theiraccounts after 1984, and denied damages for the periodfollowing 1984. The plaintiff argues that because thetrial court awarded damages for Wiederlight's salesto its accounts in 1983-1984 based on the plaintiff'stables, it implicitly accepted that

[208 Conn. 541]

     loss of renewals in future years was compensable,and therefore could not logically deny damages forthe years following 1984. We are unpersuaded.

The trial court has broad discretion indetermining whether damages are appropriate.Buckman v. People Express, Inc., 205 Conn. 166,175, 530 A.2d 596 (1987). Its decision will notbe disturbed on appeal absent a clear abuse ofdiscretion. Id. To recover damages, the plaintiffmust offer evidence sufficient to prove theclaimed loss. Waterbury Petroleum Products, Inc.v. Canaan Oil & Fuel Co., 193 Conn. 208, 226 n. 22,477 A.2d 988 (1984). Moreover, lost profits cannotbe recovered unless it is reasonably certain thatthey resulted from the breach. Burr v. Lichtenheim,190 Conn. 351, 360, 460 A.2d 1290 (1983). The amountof lost profits may be determined by approximationbased on reasonable inferences and estimates. Id.

At trial, Weiss testified that the plaintiffannually lost 11.5 percent of its customers.Weiss also testified, however, that all of theplaintiff's accounts that Wiederlight sold hadbeen accounts he had produced while working atthe agency. Wiederlight testified that many ofthe disputed customer accounts had contacted himand sought his services after learning that hehad left the plaintiff. Although other agentswere assigned to contact these customers afterWiederlight left, Weiss did not know the extentof the plaintiff's subsequent contacts with theaccounts.

On the basis of the evidence, the trial courtcould reasonably have found that the plaintifffailed to establish that it would have obtainedrenewals of the accounts after 1984. The trialcourt's conclusion that the plaintiff failed toprove damages for lost profits for the periodafter 1984 was not a clear abuse of discretion.9Buckman v. People Express, Inc., supra, 175.

[208 Conn. 542]

The plaintiff also contests the trial court'sdenial of damages for Wiederlight's breach ofthat part of the covenant barring him fromworking in the Stamford area for two years aftertermination of employment with it. The trial courtfound that there was no evidence that the plaintiffwould have written any of the accounts in therestricted area had Wiederlight not breached thecovenant. It concluded that the plaintiff's damageclaim was speculative.

At trial, the plaintiff introduced a list ofcustomers in the Stamford area that Wiederlightsuccessfully had solicited during the restrictedperiod. The data, which was supplied to theplaintiff by IAC, gave each account's name anddate of inception, the total commission earned,the profit on the commission, and Wiederlight'sshare in the commission.

The proper measure of damages for breach of acovenant not to compete is the nonbreachingparty's losses rather than the breaching party'sgains. Matter of Isbell, 27 B.R. 926, 929-30(W.D. Wis. 1983); Hyde v. C M Vending Co., Inc.,288 Ark. 218, 225, 703 S.W.2d 862 (1986); D. W.Trowbridge Ford, Inc. v. Galyen, 200 Neb. 103,107, 262 N.W.2d 442 (1978); Vermont Electric SupplyCo. v. Andrus, 135 Vt. 190, 192, 373 A.2d 531(1977). The plaintiff seeks to establish its lostprofits by reference to the undisputed fact thatWiederlight sold commercial insurance to customersin the restricted area during the covenant'soperation. To permit the plaintiff to recoverdamages merely by proving that the defendantbreached the covenant, however, would ignore thewell established rule that damages are essentialto the plaintiff's proof and must be shown with

[208 Conn. 543]

     reasonable clarity. Milgrim v. Deluca, 195 Conn. 191,199, 487 A.2d 522 (1985); Fuessenich v. DiNardo,195 Conn. 144, 154, 487 A.2d 514 (1985); Conawayv. Prestia, 191 Conn. 484, 493-94, 464 A.2d 847(1983). The trial court did not abuse itsdiscretion in denying the plaintiff damages forWiederlight's breach of paragraph nine of thecovenant. Buckman v. People Express, Inc., supra,175.

There is no error in the plaintiff's appeal.There is error in the defendants' cross appeal,the judgment against IAC for tortious interferencewith contract is set aside and the case isremanded to the trial court with direction torender judgment in favor of the defendant IAC.

In this opinion the other justices concurred.

1. The plaintiff claims that we shouldnot consider the defendants' attack on thevalidity of the restrictive covenant since theyonly seek to relitigate the facts. Our examinationof the defendants' argument, however, indicatesthat it raises questions of law and is not simplya wholesale challenge to the trial court's findingsresulting in an attempt to have this court retryissues of fact. Cf. Halperin v. Pine PlazaCorporation, 180 Conn. 85, 87, 428 A.2d 340 (1980).

2. The five factors to be considered inevaluating the reasonableness of a restrictivecovenant ancillary to an employment agreement are:(1) the length of time the restriction operates;(2) the geographical area covered; (3) thefairness of the protection accorded to theemployer; (4) the extent of the restraint on theemployee's opportunity to pursue his occupation;and (5) the extent of interference with thepublic's interests. Scott v. General Iron &Welding Co., 171 Conn. 132, 137, 368 A.2d 111(1976); New Haven Tobacco Co. v. Perrelli,11 Conn. App. 636, 638-39, 528 A.2d 865 (1987).

3. Wiederlight also contends that the trialcourt's decision should not stand because thecourt concluded that the covenant was reasonablewith respect to geographic and time restrictionswithout addressing whether it reasonably protectedWiederlight's occupational opportunities, whetherit was reasonable in relation to the plaintiffsbusiness interests, or whether it undulyinterfered with the public's interests. See Scottv. General Iron & Welding Co., 171 Conn. 132, 137,368 A.2d 11 (1976). The trial court's conclusion that the covenantwas enforceable implies a conclusion as to thereasonableness of all aspects of the covenant.Moreover, "`[w]e have frequently indicated thatif an appellant requires amplification orclarification of the factual basis of a decisionto present his claims of error he should seek afurther articulation from the trial court.'"Griffin Hospital v. Commission on Hospitals &Health Care, 196 Conn. 451, 459, 493 A.2d 229(1985), quoting Newington v. General SanitationService Co., 196 Conn. 81, 84, 491 A.2d 363(1985); Practice Book 4051. Wiederlight did notseek a further articulation of the factual basisfor the trial court's conclusion that the covenantwas valid.

4. We reject Wiederlight's additional claimthat there was no evidence at all to justify therestrictive covenant. There was ample evidencein the record by which the trial court couldreasonably have concluded that the covenant wasfair and did not unduly burden the defendant.

5. The plaintiff asserts that IAC has waivedany claim on cross appeal that the complaint waslegally inadequate by failing to raise this issueprior to trial. We note, however, that "`[i]t isincumbent on a plaintiff to allege some recognizablecause of action in his complaint. If he fails so todo, it is not the burden of the defendant to attemptto correct the deficiency, either by motion, [motionto strike] or otherwise.' Stavnezer v. Sage-Allen &Co., 146 Conn. 460, 461, 152 A.2d 312 [1959]. Thus,failure by the defendants to [move to strike] anyportion of the amended complaint does not preventthem from claiming that the [plaintiff] had no causeof action and that a judgment in their favor was notwarranted." Brill v. Ulrey, 159 Conn. 371, 374,269 A.2d 262 (1970).

6. In support of the sufficiency of thecomplaint, the plaintiff relies on Solomon v.Aberman, 196 Conn. 359, 373, 493 A.2d 193 (1985),for the proposition that conscious interferencewith a contract for the purpose of financialgain constitutes an improper purpose. InSolomon, however, our review was limited toconsidering whether the trial court committedclear error in finding probable cause, for thepurpose of issuing a prejudgment attachment, thatthe defendants had committed tortious interferencewith the plaintiff's contractual and beneficialrelations. Id., 360, 364. We upheld the trialcourt's finding of probable cause after notingthat the court found that the defendant obtainedan indirect financial benefit by improperly inducingthe plaintiff's discharge from employment. Id., 374.In the present case, the plaintiffs complaint doesnot allege any affirmative conduct by IAC analogousto the improper conduct of the defendant in Solomon.

7. The cases relied upon by the plaintiffare distinguishable. In holding that insurancecompany customer lists were trade secrets, thesedecisions noted that the employee had been giventhe information by the employer and had notdeveloped it on his own. See Alexander &Alexander, Inc. v. Drayton, 378 F. Sup. 824, 832-33(E.D. Pa.), aff'd, 505 F.2d 729 (3d Cir. 1974);American Republic Ins. Co. v. Union Fidelity LifeIns. Co., 295 F. Sup. 553, 555 (D. Or. 1968),aff'd, 470 F.2d 820 (9th Cir. 1972); United Ins.Co. of America v. Dienno, 248 F. Sup. 553, 555, 559(E.D. Pa. 1965). In the present case, however, thetrial court found that Wiederlight developed thecustomer list through his own efforts.

8. For the year 1984, the court also excludedclaims of losses pertaining to two accounts listedin the plaintiff's tables.

9. In a similar vein, the plaintiff arguesthat because the trial court applied the 11.5percent annual customer "attrition" rate to thedisputed accounts for 1983-1984, it was bound toassume that those accounts would have a longevitygreater than two years. Simply because the

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