Gabriele v. Reagan, CA88-05-046

• Decision Date: 05 December 1988
• Docket Number: No. CA88-05-046,CA88-05-046
• Citation: 57 Ohio App.3d 84,566 N.E.2d 684
• Parties: GABRIELE, d.b.a. Gabriele Insurance Agency, Appellee, v. REAGAN, Appellant.
• Court: Ohio Court of Appeals

Page 84

57 Ohio App.3d 84

566 N.E.2d 684

GABRIELE, d.b.a. Gabriele Insurance Agency, Appellee, v. REAGAN, Appellant.

No. CA88-05-046.

Court of Appeals of Ohio, Twelfth District, Warren County.

Dec. 5, 1988.

Syllabus by the Court

1. An insurance agent, although representing several insurance companies as principal, who acts as del credere agent and makes contracts in his own behalf, placing policies with various companies and collecting and remitting premiums, may maintain an action in his own name to recover premiums claimed to be due under a policy, but in so doing he stands in no better position, and has no greater rights than the insurer.

2. A plaintiff in an action on an account is entitled to produce competent oral testimony regarding work and services performed for the defendant.

Kaufman & Florence and William H. Kaufman, Lebanon, for appellee.

Rogers & Grenberg and Barry W. Mancz, Dayton, for appellant.

PER CURIAM.

This cause came on to be heard upon an appeal from the Warren County Court of Common Pleas.

Defendant-appellant, Thomas L. Reagan, appeals a decision of the Warren County Court of Common Pleas granting the claim of plaintiff-appellee, William J. Gabriele, d.b.a. Gabriele Insurance Agency, on an account, and dismissing appellant's counterclaim. Appellee, an independent insurance agent, procured several insurance policies on behalf of appellant which were billed on an "agency billed" system. In an "agency billed" system, the insurance company bills the agent and the agent bills the client for the premiums. It was undisputed that the parties herein had done business under this system with regard to the policies in question for several years. Appellee's complaint was based upon an account for charges which he had paid on behalf of appellant and for which appellant had never paid him.

Appellant filed a counterclaim in which he asserted that appellee owed him for attorney fees which he incurred in successfully maintaining a lawsuit against an insurance company for which appellee acted as agent. At the beginning of trial, appellant amended his counterclaim to add an additional claim in which he stated that appellee was negligent in failing to file insurance claims on his behalf.

The trial court granted judgment to appellee on the account in the amount prayed for, and concluded that appellee owed no obligation to appellant for attorney fees and that appellant was not entitled to judgment based on his second counterclaim because he failed to prove that he suffered damages as a proximate result of appellee's failure to make said claim. In its conclusions of law at paragraph three, the trial court stated that any potential breach of duty by appellee was moot because there was no evidence that the claim would otherwise have been covered or of the amount recoverable. Appellant's counterclaim was dismissed and appellant appealed the judgment against him as well as the dismissal of his counterclaim.

On appeal, appellant argues that the trial court improperly overruled his motion for involuntary dismissal made at the conclusion of appellee's case. Appellant also asserts that both the judgment of the trial court on the complaint and the dismissal of appellant's counterclaim were against the manifest weight of the evidence. As appellant raised all of these issues under a single assignment of error, we will treat each assertion as a separate assignment of error and address them in the order in which they appear.

Civ.R. 41(B)(2) governs an involuntary dismissal in a nonjury action and states that there are grounds for dismissal when a party has shown that no right to relief exists.

Appellant claims that appellee failed to present any evidence establishing his authority to remit premiums on appellant's behalf and to maintain an action against him for those premiums. Thus, appellant contends appellee has shown no right to relief. However, the Ohio Supreme Court, in a case cited by appellee in his brief, establishes appellee's authority to remit premiums on appellant's behalf and to maintain an action against him for the premiums. Metropolitan Life Ins. Co. v. George H. Olmsted Co. (1927), 28 Ohio App. 139, 162 N.E. 641, affirmed (1928), 118 Ohio St. 421, 161 N.E. 276. An insurance agent who represents several insurance companies as principal and who acts as a del credere agent and makes contracts on his own behalf, placing policies with various companies and collecting and remitting premiums, may maintain an action in his own name to recover premiums claimed to be due under a policy. Metropolitan Life Ins. Co., supra.

Appellant argued at trial that he did not know that appellee maintained the policies and remitted premiums on his behalf. Furthermore, he expected the policies to lapse upon his failure to pay the premiums.

The evidence contradicted appellant's position on this issue. Appellee testified that he sent appellant a letter in the fall of 1985 stating that he felt that appellant no longer wanted him to handle his insurance. He enclosed lost policy releases for appellant to sign in order to cancel the policies. Instead of signing the forms and returning them to appellee, appellant called appellee and questioned why appellee did this. Receipt of these letters refuted appellee's assertion that he was not aware of the need to sign such forms, or take any step other than to stop payment of premiums, in order to cancel his policies.

There was further evidence that appellant was aware that the policies had not been canceled, and that appellee was paying his premiums, by appellant's actions in submitting a claim to appellee for damage to some rental property in October 1986. Attached to the police report and repair bills was a note from appellant stating in essence that if appellee was paying the premiums then he might as well submit this claim to the insurer to see if they would pay for the damage. He requested that appellee take the amount due for premiums out of this claim and send him the balance.

Therefore, we find that there is sufficient evidence to establish that appellee had authority to remit premiums on appellant's behalf. Consequently, appellant's first assignment of error is overruled.

In his second assignment of error, appellant argues that the trial court's judgment was against the weight of the evidence because the stated beginning balance of the account was assumed but never established. Civ.R. 10(D) governs a claim on an account and states that when a claim is founded upon an account a copy thereof must be attached to the pleading. Civ.R. 10(D) does not spell out in detail what the account must contain. This must be determined by reviewing statutory and case law.

"An account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due." Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 38 O.O.2d 143, 223 N.E.2d 373, paragraph three of the syllabus. Absolute certainty of proof is not required, but there must be something upon which the court can form its judgment. Beckwith v. Cleveland Telephone Co. (1911), 17 Ohio C.C. (N.S.) 527, 32 Ohio C.D. 265.

Appellee has submitted, as exhibit No. 1, several pages of a balance sheet which begins with a balance of $1,017 in 1984 and ends with a balance of $1,562 in March 1986. Appellee's testimony is unrefuted that this states a running balance of an account between him and appellant. Appellee admitted that he did not attach the first page of the account and that is why the beginning balance is not at zero. There is a balance of $5 owed in March 1985. Appellant claims that it was in August 1985, while...