Wilmington v. Harvest Ins. Companies
| Decision Date | 20 April 1988 |
| Docket Number | No. 41A01-8706-CV-139,41A01-8706-CV-139 |
| Citation | 521 N.E.2d 953 |
| Parties | Norman WILMINGTON, Plaintiff-Appellant, v. The HARVEST INSURANCE COMPANIES, d/b/a the Harvest Life Insurance Company, the Harvest Insurance Agency, Inc., and the Harvest Publishing Company, Defendants-Appellees. |
| Court | Indiana Appellate Court |
Gary K. Kemper, Jenner & Kemper, Madison, for plaintiff-appellant.
Brian K. Burke, Todd M. Nierman, Baker & Daniels, Indianapolis, Stephen L. Huddleston, Franklin, for defendants-appellees.
Plaintiff-appellant, Norman Wilmington (Wilmington), appeals the granting of summary judgment by the Johnson Circuit Court in favor of the Harvest Insurance Companies, d/b/a/ The Harvest Life Insurance Company, The Harvest Insurance Agency, Inc., and the Harvest Publishing Company (hereinafter referred to collectively as Harvest unless separately stated), in his action for retaliatory discharge.
We affirm.
No dispute exists in the operative facts before the court. Harvest Life was authorized to sell insurance in Indiana, and Harvest Agency was its general agent. The manner of participation in the insurance activities by Harvest Publishing is not clear. On August 10, 1982, Harvest entered into written contracts with Wilmington as an independent contractor whereby Wilmington agreed to sell insurance in Indiana for Harvest. By the express terms of the contract no employer-employee relation existed between Harvest and Wilmington. Each party was free to terminate the agreement at any time upon written notice to the other party. The agreement expressly stated that Wilmington was prohibited from selling any policy of insurance for any other underwriter except Harvest, or an insurer approved by Harvest, or for underwriters which Harvest Agency served as a general agent.
Wilmington performed as agreed until April or May, 1984, at which time, without permission from Harvest, he commenced selling insurance for companies other than those involved with Harvest or those for which consent had been given. Although warned to stop, he persisted, and on July 3, 1984, Harvest gave him written notice of termination of the agreement. Thereafter, Wilmington brought suit alleging wrongful termination. In his suit he claimed (a) vested renewal commissions, and (b) that Harvest terminated Wilmington's status as an independent contractor in retaliation for his exercise of a statutorily conferred right under IND. CODE 27-4-3-2. That section provides as follows:
It shall be unlawful for any insurance agent representing or acting for two or more insurance companies writing the same class or classes, of risks to enter, either directly or indirectly, into any agreement, arrangement, contract or understanding with one or more of The contract provided that certain renewal premiums would vest in Wilmington upon the occurrence of any one of the following events: (a) 20 years of service; (b) Wilmington's 60th birthday; (c) Wilmington's permanent disability; or (d) his death.
such companies that he will refrain from representing any other like company or companies, and it shall be unlawful for any such insurance company, not having a contract requiring an agent to represent it alone, in any manner to require, coerce or induce any agent to refrain from representing any other like company or companies: Provided, however, That this shall not be construed to prevent any insurance company or agent from at any time entering into a bona fide contract whereby such agent agrees that he will thereafter represent a single company exclusively. (Emphasis added.)
The trial court concluded that Wilmington was not entitled to the renewal premiums because none of the triggering events had occurred. The trial court further concluded: (1) Wilmington was an independent contractor; (2) the contract was terminable at will; (3) the contract provided for an exclusive agency with Harvest Life and Harvest Agency, and was within the exception to IND. CODE 27-4-3-2; and (4) Wilmington had failed to exhaust his administrative remedies under IND. CODE 27-4-3-3.
Wilmington presents two issues on appeal which, are as follows:
I. Whether Wilmington has a cause of action against Harvest because his contracts were allegedly terminated in retaliation for his exercise of a statutorily conferred right under IND. CODE 27-4-3-2.
II. Whether Wilmington has a private right of action against Harvest by virtue of Harvest's violation of the duty prescribed by IND. CODE 27-4-3-2.
We will discuss them together.
Inasmuch as this appeal arises from the granting of a motion for summary judgment, our task is to determine whether there is a genuine issue of material fact and whether the law was correctly applied. Hamblin v. Danners, Inc. (1985), Ind.App., 478 N.E.2d 926. We must accept as true the facts alleged by the non-moving party, but we normally consider only that evidence which was before the trial court at the...
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