Am. Heritage Life Ins. Co. v. Johnston

• Decision Date: 04 January 2022
• Docket Number: 21-12121
• Parties: AMERICAN HERITAGE LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. KIRK JOHNSTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

AMERICAN HERITAGE LIFE INSURANCE COMPANY, Plaintiff-Appellee,
v.
KIRK JOHNSTON, Defendant-Appellant.

No. 21-12121

United States Court of Appeals, Eleventh Circuit

January 4, 2022

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:19-cv-00310-TJC-JRK

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Before Jordan, Rosenbaum, and Newsom, Circuit Judges.

PER CURIAM:

A few years ago, Kirk Johnston sued American Heritage Life Insurance Co. in Texas, alleging that the insurer wrongfully refused to give him commissions for his solicitation of accounts with eight companies. After that case was voluntarily dismissed, American Heritage brought this declaratory judgment action, seeking a ruling that Johnston wasn't entitled to any commissions. The district court granted summary judgment in American Heritage's favor, and Johnston appealed. For the following reasons, we affirm.

I

American Heritage sells supplemental insurance policies to employers. If an employer chooses to offer these policies to its employees as part of its benefits package, it typically signs an agreement known as a "Form 4040" with American Heritage, which details the arrangement. Employees of the company can then opt into the supplemental insurance plans.

In 2017, Johnston began an approximately three-month stint working for West Harris County Insurance Associates (WHC), a small company owned by Odis Mack. WHC primarily sells Allstate Insurance Company policies, but it has been appointed to market American Heritage policies as well.

About halfway through his time with WHC, Johnston signed an Agent Agreement with American Heritage to "solicit,

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procure and transmit" American Heritage policy applications. The Agent Agreement-which is governed by Florida law-states that Johnston would "not be entitled to compensation on any policy unless [American Heritage] determine[d], in its sole discretion, that [Johnston] was the efficient procuring cause of the policy." Johnston would "receive no compensation for premiums on insurance policies issued pursuant to applications procured by other producers." Nor would he receive compensation until premiums were paid on policies "issued pursuant to applications procured by [Johnston]." According to American Heritage, no policies were ever issued due to Johnston's efforts, so he was entitled to nothing.

Nonetheless, Johnston sued American Heritage in Texas state court, claiming that the company wrongfully denied him commissions for soliciting accounts with eight companies: (1) Winzer Corporation, (2) Control Flow, Inc., (3) Independent Marketing Alliance, (4) Ramco Erectors, (5) Lone Star College System, (6) Hewlett Packard, (7) Kroger Company, and (8) Energy Transfer Partners. After the suit was removed to federal court and transferred to Florida, Johnston voluntarily dismissed his claims.

American Heritage then sought a declaratory judgment in Florida district court, providing that it wasn't liable to Johnston for commissions related to any of these eight companies. Following more than a year of discovery, American Heritage moved for summary judgment. Its Director of Commissions, Licensing and Contracting submitted a supporting affidavit averring that-with the exception of Energy Transfer-American Heritage "ha[d] not

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issued any insurance policies to employees of these companies as a result of any workplace products offered through or approved by these companies." Similarly, American Heritage's Senior VP of Administration declared that none of those seven companies had submitted "any employer insurance application or request."

As to Energy Transfer, American Heritage noted that it had listed Gallagher Benefit Services as its agent of record since 2011- well before Johnston's tenure. Johnston did not submit any Form 4040 or insurance applications from Energy Transfer or its employees. Nor did Energy Transfer ever request to change its agent of record from Gallagher. Thus, American Heritage concluded that "no insurance policies were issued by [it] pursuant to applications procured by Johnston."

The district court granted summary judgment for American Heritage, holding that the company "does not have any obligation or liability to [Johnston] for commissions or compensation." Johnston timely appealed.

II

"We review de novo a district court's order granting summary judgment, viewing all evidence in favor of the nonmoving party." Gelber v. Akal Sec., Inc., 14 F.4th 1279, 1282 n.2 (11th Cir. 2021). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the mo-vant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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As to the first six companies for which Johnston claims he is owed commissions, the district court determined that the undisputed evidence shows that American Heritage hadn't sold policies to them or their employees. This conclusion is well supported by the record. It is also clear that Johnston cannot be an "efficient procuring cause"-and thereby be eligible for commissions-where no policies were ever issued. He admitted as much in his deposition. On appeal, Johnston doesn't point to any evidence that might contradict the district court's finding. And that is fatal to his claim with respect to these companies. See Kahn v. Am. Heritage Life Ins. Co., 134 So.3d 978, 979 (Fla. Dist. Ct. App. 2012). It is Johnston's burden "to show that specific facts exist that raise a genuine issue for trial." Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir. 2017). He has not met that burden here.

Turning to Kroger, the parties dispute whether an account with the grocery company was ever established. American Heritage points out that two of its executives declared that there was simply no Kroger account, and Johnston admitted that he never got beyond an introductory phone call with Kroger. In response, Johnston submitted an affidavit stating that he "found out" that "a business relationship was formed with Kroger," because when he called Mack asserting this belief, his former boss allegedly said, "I think the benefits group went and finished your deal."

Johnston's argument is unavailing. "An affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal...