Sherman v. American Bankers Life Assur. Co. of Fla., 146

• Decision Date: 18 January 1972
• Docket Number: No. 146,146
• Citation: 285 A.2d 652,264 Md. 239
• Parties: William Lawrence SHERMAN v. AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA.
• Court: Maryland Court of Appeals

Page 239

264 Md. 239

285 A.2d 652

William Lawrence SHERMAN v. AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA.

No. 146.

Court of Appeals of Maryland.

Jan. 18, 1972.

Samuel Blibaum, Baltimore (Gerald N. Klauber and Fine & Klauber, Baltimore, on the brief), for appellant.

Robert E. McManus, Baltimore, on brief, for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SMITH and DIGGES, JJ.

DIGGES, Judge.

This appeal is before us from the Baltimore City Court where Judge Howard granted a summary judgment in favor of the appellee, American Bankers Life Assurance Company of Florida. The appellant, William Lawrence Sherman, entered into a contractual relationship with Bankers Life whereby he became the company's 'Regional Marketing Director' in the Washington-Baltimore area. No specific definition of this job was supplied in the contract but apparently a regional marketing director's activities included not only selling insurance on his own but also employing others to solicit this type of business. In other words he was supposed to set up a branch office in a designated region and coordinate its activities for the parent company. The agreement was set out in two separate writings each of which specifically made mention of the other. The first paper was the Bankers Life standard form contract which was dated 1 August 1966 but was not signed by the parties until a number of days later, on August 17. The second was a 'supplemental letter' dated 17 August 1966, which was attached to the other document. It was hoped that this association would prove to be one of great longevity but such was not the case for only twelve weeks after its initiation Sherman ended the relationship, on November 8, 1966. As a result of this action Bankers Life demanded from appellant the return of $3,082.75 the company had advanced him and which by the terms of the contract was to be repaid immediately upon its termination. When this entreaty was ignored appellee docketed suit and included a motion for summary judgment supported by an affidavit, with the contract attached, alleging the facts just related. When Sherman's demurrer was overruled he responded with a general issue plea and in addition filed an answer accompanied by an affidavit opposing the summary judgment motion. Despite this resistance Judge Howard granted the motion on the ground that Sherman's '(a)ffidavit presents insufficient facts to permit him to dispute the existence or validity of the written contract of August, 1966.' From that ruling this appeal results, but to no avail for appellant, as we agree with the trial court's decision.

Just recently in Brown v. Suburban Cadillac, Inc., 260 Md. 251, 254-255, 272 A.2d 42 (1971) we generally discussed summary judgment procedure under Maryland Rule 610. There Judge Finan, in speaking for the Court, succinctly said:

'The purpose of a hearing on a motion for summary judgment at the trial level is not to try the case on its merits, but rather to decide whether any real dispute as to material facts exists. If the pleadings, depositions, admissions, and affidavits (if any) show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law, then summary judgment should be granted. Maryland Rule 610 d 1. Conversely, if there is a genuine dispute as to any material fact, summary judgment would not properly be granted.

An appellate court, in reviewing a motion for summary judgment, should be concerned primarily with deciding whether or not a factual issue exists, and in this regard, all inferences should be resolved against the party making the motion. Be that as it may, when the moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with some precision that there is a genuine dispute as to a material fact. And, the opposing party must make such a showing by facts which would be admissible in evidence. Maryland Rule 610 b.' (All case citations omitted and emphasis added.)

In the case before us the only factual allegations in the record opposing summary judgment are contained in Sherman's affidavit where he said that the insurance company verbally agreed that they would assist in the following manner:

1. Aid in establishing an office,

2. Supply necessary forms,

3. Supply business cards,

4. Supply necessary manpower,

5. Supply 'various and sundry other items',

6. Exonerate the repayment obligation of any monies advanced.

Appellant nowhere disputes either the existence of the written contract or his receipt of the $3,082.75 advanced by the company. Instead, he says that the sole reason he terminated this relationship was because Bankers Life failed to abide by these enumerated stipulations and therefore he was prevented from carrying out the agreement.

It is important to initially note that there is nothing in the written contract including the letter which even suggests that these listed oral conditions, with the possible exception of item 2, were agreed upon. Assuming arguendo that these conversations can modify the contract, we must examine the purported verbal agreement but our review of the record only uncovers ambiguous statements which are too uncertain to create a factual dispute. Tri-State Properties, Inc. v. Middleman, 238 Md. 41, 47, 207 A.2d 499 (1965). What we have here is not only an affidavit which generally sets forth vague claims, but these very claims, individually,...