Wilson v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 02 July 1993
• Docket Number: No. 92-01782,92-01782
• Citation: Wilson v. Equitable Life Assur. Soc. of U.S., 622 So.2d 25 (Fla. App. 1993)
• Parties: 18 Fla. L. Week. D1550 Edmund D. WILSON, Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a foreign corporation, and Sid W. Levy, an individual, Appellees.
• Court: Florida District Court of Appeals

Page 25

622 So.2d 25

18 Fla. L. Week. D1550

Edmund D. WILSON, Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a foreign corporation, and Sid W. Levy, an individual, Appellees.

No. 92-01782.

District Court of Appeal of Florida Second District.

July 2, 1993.

Rehearing Denied Aug.12, 1993.

Carl B. Lyle, II, and C. Bryant Boydstun, Jr., Lyle & Skipper, P.A., St. Petersburg, for appellant.

Thomas C. MacDonald, Jr., and Joseph W. Clark, Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellees.

ALTENBERND, Judge.

Edmund D. Wilson appeals a final summary judgment in favor of The Equitable Life Assurance Society ("Equitable") and Sid W. Levy on Mr. Wilson's claim that he was fraudulently induced to resign from his employment with the Pinellas County School Board and to sign an agent's contract with Equitable. We conclude there are material issues of fact that are not eliminated by Mr. Wilson's employment contract with Equitable, and, accordingly, reverse.

I. MR. WILSON'S VERSION OF THE EVENTS ¹

Mr. Wilson was employed as a teacher by the Pinellas County School Board for many years. In 1987, he began to work as a part-time broker selling insurance for Equitable. His son, Kent Wilson, worked full-time for Equitable out of its district office in Clearwater.

In early 1988, Mr. Levy, the regional manager for Equitable, met with Mr. Wilson and encouraged him to come to work full-time for Equitable. Mr. Levy wanted to open a district office in St. Petersburg. He wanted Mr. Wilson's son to manage that office until January 1989, when the two Wilsons would become co-managers. Mr. Wilson, who was approximately 52 years old, explained that he would lose retirement benefits if he retired from teaching at that point in his career. He could only afford to retire if he received retirement credit for five years of out-of-state teaching experience. Mr. Levy assured him that his retirement was not a problem. Mr. Levy repeatedly promised that he or Equitable would arrange for Mr. Wilson to receive the necessary credit for several years of out-of-state teaching experience, even if Equitable was required to pay approximately $150,000 into the Florida Retirement System for that credit.

In May 1988, although Mr. Wilson had not made a final decision to retire from his teaching position, he and his son found suitable space for an office in St. Petersburg. Mr. Levy met with the landlord and agreed to pay the rent on the location until Equitable assumed the lease. He expected that Equitable would assume the lease sometime in the fall. Either Mr. Levy or Equitable paid the telephone bills at this office and provided secretarial staff during the summer. The Wilsons were encouraged to locate full-time agents to work out of their office, and did locate two or three agents, who began work in the summer.

Mr. Wilson worked at his insurance office during the summer without retiring from his position as a teacher. He knew, however, that he would need to make a final decision by late August. During the summer, he met with an official of the school board concerning his retirement and confirmed the amount of the payment that might be necessary for the out-of-state credit.

In late July 1988, Mr. Levy called Mr. Wilson and his son to his office. He wanted a final decision from Mr. Wilson before they attended a corporate meeting in August at Hilton Head, South Carolina. Mr. Levy provided a written projection of Mr. Wilson's salary if he were a successful agency manager. That document is in this record and clearly reflects income based on the performance of other agents. Mr. Levy again assured Mr. Wilson that the retirement was a "done deal." He asked Mr. Wilson to sign an initial contract as an agent until Equitable officially made the St. Petersburg office a district office in January. Mr. Wilson signed the contract. He went to the Hilton Head meeting in August, and resigned his teaching position shortly thereafter.

A few days after Mr. Wilson resigned, Mr. Levy announced that he had changed his mind and that he was closing the St. Petersburg office. Written memoranda indicate that he was unable to arrange a free retirement credit for Mr. Wilson. When Mr. Wilson demanded that Equitable pay for the retirement, Mr. Levy denied that any agreement existed concerning retirement.

Mr. Wilson hired an attorney to assist him with his grievances. After Mr. Wilson and his attorney met with Equitable corporate officials in Atlanta, Mr. Wilson was fired in February 1989. Mr. Wilson attempted to regain employment as a teacher, but was unable to do so. He and his son are now selling insurance for another insurance company.

II. THE TRIAL COURT PROCEEDINGS

Mr. Wilson initially filed this lawsuit, alleging breach of an oral contract, fraudulent misrepresentation, and intentional infliction of emotional distress. The trial court dismissed the count for breach of an oral contract, and Mr. Wilson did not attempt to reallege those allegations. The amended complaint alleges only fraud and intentional infliction of emotional distress. On a second motion for summary judgment, the trial court granted summary judgment on both of the remaining legal theories. Mr. Wilson has appealed only the summary judgment concerning fraud. Accordingly, we limit our discussion to that theory.

Mr. Wilson maintains that he relied to his detriment on three fraudulent misrepresentations. Foremost, he claims that he relied on Mr. Levy's promise to arrange for his retirement credit with the state retirement system. He next claims that he relied on Mr. Levy's promise to make him a manager or co-manager of an office to be created in St. Petersburg, Florida. Finally, he claims that he relied on Mr. Levy's promise that he would make at least $80,000 annually if he changed jobs.

For purposes of summary judgment, Equitable and Mr. Levy assume the truth of Mr. Wilson's version of these events. The contract which Mr. Wilson signed contains a "Prior Agreements" clause which states:

This Agreement shall supersede any previous agreements between the parties hereto for the employment of the Agent or for any solicitation by the Agent of applications for insurance policies or annuity contracts available from the Society, except that any rights of the Agent thereunder, if existing when this Agreement is entered into, for commissions or service fees based on premiums or considerations on insurance policies or annuity contracts placed thereunder shall not be superseded hereby, nor shall any liens in favor of the Society thereon be removed hereby.

They maintain that this clause is a merger clause and that Mr. Wilson cannot establish justified reliance on these promises because of this contractual agreement. The trial court granted summary judgment on this basis.

III. THESE ALLEGATIONS OF...