Herndon & Associates, Inc. v. Gettys

806 So. 2d 780, 1 La.App. 5 Cir. 790, 2001 La. App. LEXIS 3093, 2001 WL 1650962
CourtLouisiana Court of Appeal
DecidedDecember 26, 2001
DocketNo. 01-CA-790
StatusPublished

This text of 806 So. 2d 780 (Herndon & Associates, Inc. v. Gettys) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herndon & Associates, Inc. v. Gettys, 806 So. 2d 780, 1 La.App. 5 Cir. 790, 2001 La. App. LEXIS 3093, 2001 WL 1650962 (La. Ct. App. 2001).

Opinion

| .THOMAS F. DALEY, Judge.

Plaintiff Herndon & Associates, a former insurance broker for Travelers Insurance Company, appeals a judgment that granted it damages in the amount of [781]*781$685.00 against Autin-Gettys-Cohen Insurance Agency (Gettys) and that dismissed its suit against Travelers. On appeal, Herndon argues that the trial court erred in dismissing Travelers. They argue that Travelers was arbitrary and capricious in its refusal to honor Herndon’s clients’ requests to change agent of record from Gettys to the Bush-LeNormand agency, and that Travelers’ actions constituted tortious interference with Herndon’s contractual relationship with their clients. They also argue that the damage award was inadequate against Gettys. After thorough review of the record and the law, we amend the judgment to increase the amount of damages owed to Herndon, and as amended, affirm the judgment.

In the late 1980s, plaintiff Herndon & Associates was an insurance broker authorized by Travelers Insurance Company to write Travelers automobile policies, 13other personal lines, and commercial lines. In late 1989, Travelers notified Herndon that it was cancelling its agency contract with Herndon regarding automobile policies and possibly remaining lines as well. Travelers account analyst Barbara Sims testified that this decision was based upon a business plan Travelers instituted in Louisiana in the late 1980s to reduce Travelers’ losses statewide, and that this plan affected all Travelers agencies, not just Herndon. Herndon looked for another Travelers agency with which to place its automobile business and entered into an a verbal brokerage agreement with Lawrence Gettys of defendant Gettys Insurance agency. In their verbal agreement, Gettys agreed to accept Herndon’s Travelers automobile policies and further agreed to share commissions on these policies with Herndon in a 50/50 split. Both Get-tys and Herndon testified that the parties discussed a merger between the two agencies, though no merger was ever reached. Both parties testified that the brokerage agreement was verbal and that no specific duration of the agreement was discussed.

At the direction of Travelers, the Hern-don auto policies were transferred to Get-tys by the insureds filling out new applications with Travelers through the Gettys agency. Mr. Jim Herndon testified that this method of transfer was unusual; usually, a policy could be transferred by the insured signing an “agent of record” letter requesting that his policy be listed with the new agent. Herndon also testified that a “bordereau” transfer could have been used, in which Travelers simply changed the agent code on those policies in the computer. Sims and Paul Ratliff, another supervisor with Travelers, both testified that the business plan in place for Louisiana at this time required all insureds desiring an agent transfer to fill out new applications through the new or receiving agency. The reason for this was so the new agency could “reunderwrite” the policy, which was to conduct a current review of the risk |4and get updated policy information, a practice that would help the new local agent and Travelers evaluate the risks involved in the policy and help reduce Travelers’ loss ratios in automobile policies in Louisiana.

There was testimony from Lawrence Gettys and Travelers that the transfer of the Herndon policies to Gettys was problematic because Herndon did not follow Travelers’ procedures, and submitted incomplete applications and/or applications signed by Herndon and not the Gettys agency. Sims and Ratliff testified that they notified Herndon of the correct procedures to transfer the policies as per the business plan for Louisiana, i.e. the new applications, several times by phone conversation, but that this procedure was not written in a manual. They said it was not Travelers’ custom to memorialize the business plan in written form because these [782]*782procedures changed from time to time. They were clear, however, that the requirement of new applications for transfers was communicated to Herndon and was a procedure statewide at that time. In any event, the testimony established that the policies were eventually transferred from Herndon to Gettys via new applications through the Gettys agency.

In July of 1991, Gettys notified Herndon in writing that it no longer wanted Hern-don’s automobile book, and that Herndon had until the end of the year to find another agency. In September of that year, Gettys also notified Herndon that henceforth it would retain 70%, rather than 50%, of the commissions from former Herndon policies. Lawrence Gettys testified that there were several reasons for this decision. First, he said that the automobile policies showed poor loss ratios and he no longer wanted them. He found that many insureds had lied on the policies, denying tickets and accidents that had in fact occurred. It became too expensive to retain these policies because they had high loss ratios. Both Herndon and Gettys had | .^testified that they discussed a merger of the two agencies, but that it didn’t come to fruition. Gettys testified that it was never his intention to accept only the auto business, as auto policies were high risk and were unattractive to any agent without also receiving the homeowners and commercial lines, which tend have much lower loss ratios. When it became clear that Gettys would not be receiving the other lines, he decided that it was no longer worth servicing Herndon’s automobile policies and notified Herndon in writing in July of 1991 that Herndon had until December 31, 1991, to take the auto policies to another agency, and that any policies not transferred from Gettys at that point would be considered Gettys’ property. Gettys notified Herndon in September of 1991 that from that point until the end of the year, it would pay Herndon 30% of the commissions from its auto book instead of the previous rate of 50%. Gettys testified that he had retained $685.00 in commissions due to Herndon from the end of 1991 because a Mike Sims, who was a subpro-ducer with Herndon, notified him that he was not getting his commissions from Herndon on certain policies that Sims had produced for Herndon. Gettys told Sims that he had to work this out with Herndon, because Gettys had never heard of Sims and didn’t know what, if anything, was due to Sims. Gettys retained the $685.00 in commissions because Sims had made a claim on these funds and he didn’t know whom he should pay.

At this point, Herndon testified that it had located the Bush-LeNormand agency, an authorized agent with Travelers, to take its auto book. Herndon testified that Travelers advised them that they could do the transfers by agent of record letters or new applications, whichever it preferred, and that it attempted to make the transfer via agent of record letters. However, Travelers returned the agent of record letters to Bush LeNormand, saying that the letters were not in the proper form. When Herndon resubmitted the letters, Mr. Herndon testified that he was notified that Travelers ^required new applications and that agent of record letters were not acceptable. There was testimony that eventually most of Herndon’s auto business was transferred from Gettys to Bush-LeNormand.

Herndon sued Gettys, alleging that Get-tys arbitrarily reduced their commissions in breach of their agreement, and prayed for a judgment recognizing Herndon’s right to 50% of the commissions as long as the business remained at Gettys, in perpetuity.

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806 So. 2d 780, 1 La.App. 5 Cir. 790, 2001 La. App. LEXIS 3093, 2001 WL 1650962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herndon-associates-inc-v-gettys-lactapp-2001.