Fidelity Union Life Ins. Co. v. Orr
| Decision Date | 16 March 1983 |
| Docket Number | No. 05-82-00007-CV,05-82-00007-CV |
| Citation | 648 S.W.2d 36 |
| Parties | FIDELITY UNION LIFE INSURANCE CO., Appellant, v. Walter S. ORR, Appellee. |
| Court | Texas Court of Appeals |
Vera R. Bangs, Dallas, for appellant.
Calvin B. Almquist, Dallas, for appellee.
Before GUITTARD, C.J., and STOREY and VANCE, JJ.
In this suit by an insurance company against its non-resident agent, the controlling question is whether the evidence at the special appearance hearing supports the trial court's finding that the agent had insufficient contacts with Texas to be amenable to process under the Texas long-arm statute, Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon 1964). We conclude that the undisputed evidence at the special appearance hearing establishes that the agent's contacts with Texas were sufficient to render him amenable to Texas process. Accordingly, we reverse the trial court's order of dismissal and remand the case for trial.
The suit was brought by the company in Texas for a balance due on the agent's ledger account for moneys advanced and other items. The agency contract, which was signed by the agent in his home state of Illinois, appoints him as the company's representative for the purpose of soliciting applications for insurance, delivering policies, and collecting and remitting the first premiums on such policies. The contract requires the agent to pay to the company at its home office in Dallas, Texas, all sums due to the company, including repayment of cash advances made to the agent. A supplement to the contract provides that all of the agent's obligations and duties to the company are performable in Dallas County, Texas. The supplement authorizes the agent to accept in partial payment of premiums promissory notes payable to the company at Dallas and guaranteed by the agent and provides that the company shall maintain out of 25% of the commissions due to the agent an escrow account of $5,000 in Dallas to cover defaults in these premium notes.
Shortly after signing the contract, the agent came to Dallas and attended a six-day school conducted by the company concerning its procedures in selling life insurance. He moved his home from Illinois to Madison, Wisconsin, where he worked under the company's general agent residing there. He solicited applications for insurance in Wisconsin from residents of Wisconsin and elsewhere, and sent the applications and premium payments to the home office in Dallas. He also accepted from the applicants at least thirty-one promissory notes payable to the company in Dallas, endorsed his personal guaranty on these notes, and sent them in to the Dallas Office. 1
The nature of the debt sued on, whether for advances to the agent or for balances due on notes guaranteed by the agent, is not specified in the petition, which alleges only that a balance of $10,733.79 is due from the agent on the company's "agent ledger account," which, according to the contract, is "sufficient prima facie evidence of the accounts between the parties."
The trial judge filed an elaborate memorandum, which he subsequently adopted as findings of fact and conclusions of law in response to the company's request for findings and conclusions. In this memorandum the court undertook to analyze the facts in relation to the test of "traditional notions of fair play, substantial justice ... and the basic equities of the situation," recognized by the Supreme Court of Texas in O'Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex.1966), and held that due process was not satisfied.
On this appeal the company complains that the judge based his decision on various assumptions concerning the company's business that are not supported by the record. The agent contends that even if these unsupported assumptions be disregarded, the undisputed evidence is...
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