Boyce v. Merchants Fire Insurance Co.

• Decision Date: 28 March 1962
• Docket Number: Civ. No. 8490.
• Citation: 204 F. Supp. 311
• Court: U.S. District Court — District of Connecticut
• Parties: Robert M. BOYCE, Plaintiff, v. The MERCHANTS FIRE INSURANCE CO., Defendant.

204 F. Supp. 311

Robert M. BOYCE, Plaintiff, v. The MERCHANTS FIRE INSURANCE CO., Defendant.

Civ. No. 8490.

United States District Court D. Connecticut.

March 28, 1962.

John L. Calvocoressi, Pelgrift, Dodd & Stoughton, Hartford, Conn., for plaintiff.

Bruce W. Manternach, Robinson, Robinson & Cole, Hartford, Conn., for defendant.

ANDERSON, Chief Judge.

The plaintiff, Robert M. Boyce, has been in the insurance business since 1914. He is 67 years old and is practically stone deaf. About May 1, 1941 the plaintiff and the defendant entered into a written agreement whereby the plaintiff was appointed state agent for the defendant. After reciting that the plaintiff was defendant's "State Agent", the agreement set out the territory over which Boyce had jurisdiction, as state agent, and provided for his compensation. It also stated that the "agreement shall continue from year to year unless terminated by either party, the right of resignation or removal at any time being recognized by both parties, and become effective not less than ninety (90) days after written notice of such termination is received." Boyce also accepted appointment as a "local agent" of the defendant by entering into a written contract with the defendant on June 10, 1941.

The parties continued under the relationships created by the two contracts until the latter part of March, 1960, when the defendant informed Boyce that the two contracts were being terminated. The complaint alleges no violations of the contracts during the period from 1941 until the time of their termination in 1960. However, in an affidavit in opposition to defendant's motion for summary judgment, Boyce averred that defendant had never paid the office expenses set out in the state agency agreement. With the exception of this statement, which was made to illustrate that the written agreement did not control the relationships between the parties, no demand is made for damages allegedly resulting from violations of the contract prior to its termination.

As part of his duties as state agent, Boyce recruited local agents who entered into contracts with Merchants similar to Boyce's own local contract which was offered in evidence at plaintiff's deposition. These contracts were signed by the local agent and by Boyce as representative of the defendant. While under the supervision of Boyce as state agent, it is clear from the contracts that the local agents were not Boyce's sub-agents but were directly employed by the defendant. Under the contracts, expirations were to remain the property of the local agents upon termination of a local agency contract.

By letters dated March 29, 1960 Boyce's state agency and local agency contracts were terminated. The local agency was terminated as of April 1, 1960, and Boyce has voiced no complaint as to its termination. The state agency was terminated on June 30, 1960, which was ninety days after notice to Boyce.

During the period between March 29th and June 30th, 1960, Merchants notified the local agents in Boyce's territory about the termination of the state agency and discontinued the agencies of a number of the local agents, recruited by Boyce, but retained approximately two-thirds of them as the "agency plant." The defendant admits that, after notification to Boyce of the termination of his state agency, it had contacted those thus retained about April 1, 1960 with regard to their remaining as agents. The defendant has paid Boyce no commissions for policies written by it after June 30, 1960.

Out of the defendant's motion for summary judgment and a motion by the plaintiff for leave to file additional affidavits, there have emerged two questions for decision by the court:

First: does the material in the plaintiff's countering affidavit, filed at or prior to the hearing on the motion for summary judgment, qualify to create a genuine issue of material fact?

Second: should the plaintiff be afforded the opportunity to file additional affidavits for the purpose of modifying the clear terms of the contract by showing custom and usage at variance with those terms?

The plaintiff objects to the disposition of this case by summary judgment because of his claim that there exists a genuine issue as to a material fact, evidenced by plaintiff's own statement in his affidavit, that "said memorandum of agreement did not control the relationship between the defendant and me." The plaintiff's position is that either the written memorandum of agreement was superseded by an oral agreement between the parties or that parol evidence must be adduced to amplify the written memorandum and thereby present the full contract; and that in either event, the case is not in a posture suitable for disposition by summary judgment. Certain other "issues of fact" have been presented by plaintiff but, under the law of the case, they do not preclude utilization of the summary judgment procedure.

Rule 56(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. provides:

"* * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (emphasis added)

Paragraph (d) of the rule similarly speaks of material facts which "are actually and in good faith controverted." This language clearly shows that to defeat summary judgment there must appear an issue of fact not only material but genuine as well. As stated by Professor Moore:

"To defeat a movant who has otherwise sustained his burden within the principles enunciated above, the party opposing the motion must present facts in proper form — conclusions of law will not suffice; and the opposing party's facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, nor merely suspicions." 6 Moore, Federal Practice (2d ed., 1953) ¶ 56.15 3, p. 2131. (footnotes omitted) and see the authorities therein cited.

Here the plaintiff, in opposing the motion for summary judgment, submitted his affidavit averring that the written memorandum of agreement did not control the relationship between the parties. Plaintiff did not, however, present any evidence tending to show that the written agreement had been modified or superseded by any other agreement, either written or oral. On the contrary, some eight months prior to the time the motion for summary judgment was filed, plaintiff's deposition was taken by the defendant, during the course of which Boyce admitted that he had no recollection of any amendments to the written agreement, that the state agency contract had not been violated by defendant until its termination, that he developed the agency plant as part of what he considered to be his obligation under the working agreement, and that the "most important and most trying task" under the working agreement was to select local agents to represent the company. Although he insisted throughout the deposition proceedings that the written memorandum was a working agreement and not a contract, he never said what the real contract was. His testimony in this respect was nothing more than a conclusory characterization of the instrument by a layman, which he repeated in his affidavit.

It is not enough that one opposing a motion claims there is a genuine issue of material fact; some evidence showing the existence of such an issue must be presented. The movant has the burden of showing the non-existence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.

"Nor is an opposing party, who has no countervailing evidence and who cannot show that any will be available at the trial, entitled to a denial of the motion for summary judgment on the basis of a hope that such evidence will develop at the trial.

"And although the moving party be unaided by any presumption, when he has clearly established certain facts the particular circumstances of the case may cast a duty to go forward with controverting facts upon the opposing party, so that his failure to discharge this duty will entitle the movant to summary judgment." (footnotes omitted) 6 Moore, supra, ¶ 56.15 3, pp. 2129-2130; and Radio City Music Hall Corp. v. United States, 135 F.2d 715, 718 (2d Cir. 1943).

The defendant in the case at bar has shown that the agreement entered into by Boyce and Merchants on May 1, 1941 was the only such agreement between the parties. Plaintiff has failed to produce any evidential material which would serve to rebut that of the defendant, or give any explanation why such material is not presently available to him. It must, therefore, be concluded that there is no genuine issue of material fact as to the controlling agreement between the parties.

There remains the plaintiff's claim about custom and usage. Some time after the motion for summary judgment was heard, the plaintiff moved for permission to file additional affidavits which would serve to aid in interpretation of the contract. This additional evidence was intended to show usage and custom in the trade, both as it related to the necessity of showing good cause to terminate such contracts and as it concerned the appropriation of an "agency plant" by the insurance company. Decision on this latter motion was reserved.

Despite the fact that Rule 56(e) permits the filing of additional affidavits, only those which would provide...