Columbian Nat. Title Ins. v. Township Title Serv.
| Decision Date | 05 May 1987 |
| Docket Number | Civ. A. No. 85-4306. |
| Parties | COLUMBIAN NATIONAL TITLE INSURANCE COMPANY, Plaintiff, v. TOWNSHIP TITLE SERVICES, INC., d/b/a McGhie Land Title Company, Defendant. |
| Court | U.S. District Court — District of Kansas |
COPYRIGHT MATERIAL OMITTED
Gerald L. Goodell, Goodell, Stratton, Edmonds & Palmer, Topeka, Kan., for plaintiff.
John W. Lungstrum, Stevens, Brand, Lungstrum, Golden & Winter, Lawrence, Kan., for defendant.
This matter is before the court on plaintiff's motion for summary judgment. This is a diversity action arising out of the alleged breach of a ten-year exclusive agency agreement designating the defendant as the exclusive agent of plaintiff. Pursuant to the agreement, defendant was to solicit and write title insurance policies issued and underwritten by the plaintiff. Plaintiff alleges that defendant breached the agreement by (1) unilaterally terminating the contract before it expired and (2) refusing to indemnify plaintiff for its losses pursuant to the indemnity provisions of the agreement.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, 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." Fed.R.Civ.P. 56(c). When a motion for summary judgment is properly made and supported, the adverse party may not rest upon the mere allegations or denials of his pleading, but his response, through affidavits or documentary evidence, must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e). Thus, the court must enter summary judgment, after adequate time for discovery and upon motion, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In such a case, "no genuine issue as to any material fact" exists, since the complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Id. 106 S.Ct. at 2553.
Rule 15 c of the Rules of Practice of the United States District Court for the District of Kansas provides in part:
A memorandum in opposition to a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of movant's fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.
Although defendant's memorandum in opposition to plaintiff's motion contains a section entitled "Defendant's Claim of Controverted Facts," this section contains nothing more than a series of questions concerning the factual and legal issues of the case. It clearly fails to contain a concise statement of material facts to which defendant contends a genuine issue exists. The defendant neither makes specific references to the record to support its claimed controverted facts, nor specifically controverts by direct reference any statement contained within plaintiff's statement of uncontroverted facts. Thus, pursuant to Rule 15 c, all facts set forth in plaintiff's statement of uncontroverted facts are deemed admitted by defendant for purposes of this summary judgment motion.
In an apparent attempt to compensate for its failure to controvert plaintiff's statement of facts, defendant requests oral argument. Defendant argues that plaintiff's reply "demonstrates that there are a number of misconceptions as to what the facts are in the above-entitled action which counsel for defendant believes can most efficiently be disposed of by oral argument." The court is not persuaded by defendant's arguments. According to Local Rule 15 d, oral argument may be had only in the court's discretion and on proper showing of the party. The court will not allow defendant to use oral argument to bypass the requirements of Rule 15 c. Defendant's request for oral argument is therefore denied.
The court notes that despite defendant's failure to controvert the facts set forth by plaintiff, defendant has attached an affidavit and several other exhibits. Because plaintiff has failed to controvert any of this evidence, the court will consider defendant's exhibits, in addition to plaintiff's statement of uncontroverted facts, in ruling on plaintiff's motion.
In light of the above, the following material facts are deemed uncontroverted for purposes of this motion:
1. Plaintiff is a corporation organized and existing under the laws of the State of Kansas. Defendant is a corporation organized and existing under the laws of the State of Utah.
2. On or about March 11, 1983, plaintiff and defendant entered into an "Exclusive Agency Agreement."
3. Said agreement provided that defendant would be bound to plaintiff as its agent for a term of ten (10) years and that defendant would not act as an agent for any other title insurer during that period of time. Plaintiff in return agreed not to authorize the issuance of title insurance through any agent other than defendant in Salt Lake County, Utah, and gave defendant a right of first refusal to act as plaintiff's exclusive agent in all other counties in Utah, except Utah County.
4. By the terms of the agreement, defendant was to receive and process applications for title insurance for plaintiff and collect premiums due thereon.
5. Paragraph IIIC5 of said agreement provided that defendant, during the term of the agreement, would:
Indemnify the Principal plaintiff for an (sic) on account of any and all loss or loss expense which the Principal may sustain or suffer as provided in this Agreement;
6. Paragraph IIIE of the agreement provided in part:
The Principal plaintiff shall have the sole right to adjust, settle or compromise claims. The Agent defendant shall be liable to the Principal for any and all loss and loss expenses which the Principal may sustain or incur under any policy or commitment issued pursuant to this Agreement occasioned by, or resulting from fraud, negligence or misconduct of the Agent, its employees or officers of the Agent, in the performance of its undertaking as agent of the Principal.
(Emphasis in original.)
7. Paragraph IV of the agreement provided the exclusive grounds for termination of the agreement as follows:
(Emphasis added.)
8. In a letter dated March 12, 1985, defendant informed plaintiff it had decided that "from a strictly business and economic viewpoint, it is necessary to terminate the Exclusive Agency Agreement." Defendant advised plaintiff that there were two major reasons for the decision: (1) lenders were not accepting plaintiff's underwriting and defendant could not afford the loss of business revenue; and (2) plaintiff had settled claims on behalf of defendant without consulting defendant.
9. Plaintiff responded to defendant's letter in a letter dated March 14, 1985. Plaintiff pointed out that eight years remained on the agreement and that a unilateral decision by defendant to terminate could not be accomplished under the termination section of the agreement.
10. Plaintiff informed defendant by way of letter dated April 8, 1985, that if plaintiff consented to terminate the agreement, it believed it was entitled to $400,000 for lost remittances.
11. Defendant responded to plaintiff's letter in a letter dated April 19, 1985, in which defendant again advised plaintiff that its decision to terminate was strictly "a business decision." Defendant informed plaintiff that plaintiff's proposed settlement was "totally unrealistic" for several reasons. Defendant outlined its own proposal for plaintiff's consideration.
12. Plaintiff responded to defendant's proposal in a letter dated April 23, 1985. Noting the divergence of opinion on settlement, plaintiff advised defendant that it would be in their best interests to continue under the terms of the agency agreement.
13. By letter dated May 6, 1985, defendant informed plaintiff that it was unilaterally terminating the agreement with plaintiff "for cause" as of May 10, 1985. Defendant's reasons for the termination, as set forth in the May 6 letter, were:
14. When asked to describe why it felt its termination of the...
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