Kerr & Elliott v. Green Mountain Mutual Fire Insurance Co.

• Decision Date: 11 February 1941
• Citation: Kerr & Elliott v. Green Mountain Mutual Fire Insurance Co., 111 Vt. 502, 18 A.2d 164 (Vt. 1941)
• Parties: KERR & ELLIOTT v. GREEN MOUNTAIN MUTUAL FIRE INSURANCE COMPANY
• Court: Vermont Supreme Court

18 A.2d 164

111 Vt. 502

KERR & ELLIOTT v. GREEN MOUNTAIN MUTUAL FIRE INSURANCE COMPANY

Supreme Court of Vermont

February 11, 1941

January Term, 1941.

Insurance Agency Contract.---1. Agency's Selection of Insurer.---2. Expression of Dissatisfaction in Notice of Termination.---3. Interpretation of Unambiguous Contract for Court.---4. Unambiguous Agreement Construed by its Own Terms.---5. "Expirations" Defined.---6. Expirations Becoming Property of Agent.---7. Not Permissible to Change Meaning of Unambiguous Agreement.---8. Use of Expirations.---9. Solicitation of Business Through Notice to Insured of New Agent.---10. Fulfillment of Promise to Correct Testimony.---11. More than Orders to Refrain from Interference Necessary.---12. Evidence of Interference.---13. Damages for Interference with Contract.---14. Plaintiff Entitled to Recover Not only for Damages Sustained, but for Gains Prevented.---15. Prospective Profits for Consideration of Jury, Past Profits.---16. Evidence of Past Profits.---17 95% as Basis for Whole.---18. Restriction upon Cross-Examination of Plaintiff.---19. Damages for Interference.---20. Future Damages.---21. Damages Between Writ and Trial.---22. No Renewal without Agency's Permission.---23. Mere Order not to Interfere Insufficient.---24. Plaintiff's Claim for Extra Work and Expense for Consideration of Jury.---25. Charge to Cover Unspecified Instance Not Necessary.

1. An insurance agency representing several competing companies has the privilege, unless otherwise directed by the customer, to elect in which of said companies it will place risks solicited and obtained by it.

2. When a contract between an insurance company and an insurance agency provided that upon written notice it may terminate the contract, no rights under the contract are lost by the agency expressing its dissatisfaction with the company in a notice of termination.

3. The interpretation of a contract whose terms are clearly expressed, free from ambiguity and in plain and understandable language is a question of law for determination by the court.

4. An unambiguous agreement is to be interpreted by its own language and the understanding of the parties will be presumed to be what the instrument sets forth.

5. "Expirations" in the insurance field is a record showing date of issuance, name of the insured, expiration amount, premiums, property covered and terms of insurance of policies issued by it.

6. An agreement between an insurance company and an agency providing that upon full account and payment for premiums the agents' records and the use and control of expirations should remain the property of the agents and be left in their possession entitled the agency, upon the fulfillment of the conditions, to the sole use and benefit to be derived therefrom.

7. It is never permissible to give to the language of an unambiguous agreement a meaning of which it is not fairly capable and to substitute another and different contract.

8. When "expirations" belong solely to an insurance agency it has the right to use the same for the purpose of soliciting and placing business therein indicated and an interference with this privilege is an invasion of its rights.

9. When "expirations" belong to an insurance agency which has terminated its contract with an insurance company, a notice from the company to its policy holders secured through the agency that it has appointed a new agent and suggesting his availability might be construed as a solicitation for renewal of the policies and is material evidence in an action for interference with "expirations."

10. A promise in the offer of evidence to prove that an insurance company turned over to a new agent a list of expirations is fulfilled by testimony of the company's president that he gave instructions not to make further use of the expirations and that he notified the agent to this effect.

11. Mere instructions from an insurance company to its new agent not to use expirations improperly obtained from a previous agent is not sufficient to discharge the duty of the company as it had the duty of seeing that no use was made of such expirations.

12. In an action based on interference by an insurance company with "expirations" belonging to its former agent objection to the introduction of the number of company's policy holders listed in such expirations and the commissions that would accrue from renewal on the ground there was no evidence of interference with all of them can not be sustained in view of a letter from the defendant addressed to all its policy holders setting forth the appointment of a new agent whom it was suggested was available for discussion of any insurance service.

13. In an action for interference with contractual relations, the rule of damages has as its basis compensation to the plaintiff for the injury he has sustained.

14. In an action for the recovery of damages sustained by interference with a contractual relation, the plaintiff is entitled to recover not only for damages sustained but for gains prevented of which the plaintiff has been proximately deprived by the defendant's wrongful act, but which must not, however, be uncertain, speculative or remote.

15. Prospective profits recoverable by reason of interference with a contractual relation necessarily depend upon various conditions which must be considered by the jury and be given such effect as the judgment of the jury dictates and among the matters that may be considered are past profits.

16. Evidence of commissions annually accruing from renewals of insurance policies is admissible when it is shown what percentage of renewals are actually made from year to year.

17. Evidence of disposition of ninety-five per cent of matters involved in an action for interference with a contractual relation forms a reasonable basis for the jury to arrive at a conclusion as to the remaining five per cent of like matters.

18. The trial court's restriction upon cross examination of a plaintiff as to matters claimed is not error when the witness has been cross examined at length as to what the plaintiffs seek to recover and as to writings in evidence.

19. In an action to recover damages suffered by interference with an insurance agency's contract, it was proper for the court to charge that the damages, if any, recoverable are the commissions on business which the plaintiffs might reasonably expect to secure if not interfered with by the defendant, less commissions which actually were obtained.

20. When there is evidence in a case for interference with a contractual relation in which a jury could reasonably find that the acts complained of would result in damages to the plaintiffs subsequent to the time of trial and there is evidence from which the jury could reasonably estimate the amount thereof, it is permissible for the court to instruct the jury that the jury may include such damages in the amount awarded to the injured party.

21. Damages for breach of a contractual relation may be computed to the time of trial although accruing after the commencement of action.

22. In an action for interference with the contractual relation arising from an insurance agency contract which had become terminated and by which the expirations had become property of the agent, it was proper for the court to charge that the company had no right, without the agency's permission, to accept renewals of policies originally written through the agency.

23. That the president of an insurance company instructed its agent not to interfere with a contractual relation with a former agent does not affect the company's liability for interference in the absence of a showing that such instructions were obeyed.

24. In an action for interference with an insurance agency contract in which plaintiff testified as to the amount of extra work and expense involved by reason of the alleged interference, the plaintiffs' claim therefor was for the consideration of the jury.

25. It is not error to refuse to give an instruction upon a matter when no specific instance is pointed out to which the requested charge is applicable.

ACTION OF CONTRACT, plea of the general issue and special matter in defense. Trial by jury, March Term, 1940, Washington County Court, Shields, J., presiding. Verdict and judgment for the plaintiffs. The defendant took exceptions. The opinion states the case.

Judgment affirmed.

Theriault & Hunt for defendant.

Norbert J. Towne and Carver & Lawson for plaintiff.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

STURTEVANT

This is an action of contract. The defendant pleaded the general issue and special matter in defense. Trial was by jury at the March term, 1940, of Washington County Court. The verdict and judgment thereon were for the plaintiffs and the case is here upon the defendant's exceptions.

The plaintiffs, partners in business, are now, and for more than ten years last past have been, conducting a general insurance agency at Northfield, Vermont. During all times material here they have had agency contracts with from thirty-five to forty insurance companies, and they have had an agency contract with the defendant for the greater part of the time that they have been engaged in this business. Formerly this was verbal but on November 15, 1937, these parties entered into a written agreement by the terms of which the underwriting facilities of the defendant company were made available to the plaintiffs and they were authorized to receive and accept proposals for insurance in accordance with terms as therein stated. This agreement is on a single page printed form. At the top of the sheet in large, heavy type appear the following words:

"Green Mountain Mutual Fire Insurance Company, ...