Vanover v. Kansas City Life Insurance Co.

438 N.W.2d 524, 1989 N.D. LEXIS 65, 1989 WL 28597
CourtNorth Dakota Supreme Court
DecidedMarch 27, 1989
DocketCiv. 880213
StatusPublished
Cited by21 cases

This text of 438 N.W.2d 524 (Vanover v. Kansas City Life Insurance Co.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vanover v. Kansas City Life Insurance Co., 438 N.W.2d 524, 1989 N.D. LEXIS 65, 1989 WL 28597 (N.D. 1989).

Opinions

MESCHKE, Justice.

Edward D. Vanover appealed from a summary judgment dismissing his defamation suit against Kansas City Life Insurance Company and James B. Slusher, its associate general counsel. We reverse and remand.

Vanover was a general agent for Kansas and for Armour Life Insurance Company, a subsidiary of Kansas, until terminated in 1983. This suit is over statements allegedly made by Kansas and Slusher about the reason for Vanover’s termination. We consider the effect of two prior proceedings between Vanover, Armour and Kansas.

In 1984, Vanover started a proceeding against Armour with the Commissioner of Insurance to impose penalties and to suspend or revoke its certificate of authority to do business in this state. Vanover [525]*525claimed, among other things, that Armour agents had falsely stated to others, in violation of § 26.1-04-03(3), N.D.C.C.1, that Vanover was terminated for lack of production. In his findings, the Commissioner stated: “Lack of production was a reason for termination of the Complainant by the Respondent.” In his conclusions, the Commissioner stated:

“The respondent company determined that one of the reasons for termination of the complainant as its general agent in North Dakota was lack of production. The respondent company’s officers informed their employees and agents that this was the reason for termination and it instructed their agents and employees to respond to any inquiries with that phrase. The evidence is insufficient to support a conclusion that the statement was false since there was no increase in production by the complainant if you compare January to August of 1982 with the same period in 1983. This was a part of the basis for the respondent company’s position....”

In 1985, Vanover sued Kansas for breach of contract. The trial court determined that Vanover’s contract was terminable at will and that “[p]oor performance of the agency in 1982 and 1983 was a legally sufficient cause for termination of the general agent’s contract, in the event cause was required.” Vanover’s complaint was dismissed and Vanover did not appeal.

In 1987, Vanover sued Kansas and Slush-er for defamation in this action. He alleged that they had made unprivileged statements by letter and telephone to others in April 1986, saying falsely that Van-over “was terminated from Armour Life and Kansas City Life for cause.” Kansas and Slusher moved for summary judgment, contending that “the underlying issues have been previously determined such that [Vanover] is precluded from relitigating them.” Vanover resisted the motion, contending that there was a disputed issue about whether he had been, in fact, “fired for cause.” The trial court ruled that the prior lawsuit and proceeding before the Commissioner of Insurance had already decided that he had been “fired for cause.” The trial court granted summary judgment to Kansas and Slusher.

Vanover appealed, contending that the finding of cause in the first lawsuit was dictum, that the Commissioner of Insurance did not find that Vanover had been terminated for lack of production, and that the doctrine of res judicata does not apply to decisions of the Commissioner.

At the outset Kansas and Slusher moved to strike two affidavits in the appellate appendix submitted by Vanover. Rule 10(a), N.D.R.App.P., specifies the record on appeal: “The original papers and exhibits filed in the trial court, three copies of the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases.” The affidavits were not filed in the trial court. Generally, we must decide an appeal on the evidence submitted to the trial court. City of Minot v. Freelander, 368 N.W.2d 514 (N.D.1985). “Important policy considerations on finality of judgments require that new or additional evidence not be considered on appeal.” Id., at 518. See also Svihla v. Svihla, 126 N.W.2d 135 (N.D.1964). Therefore, we strike the affidavits.

Vanover contended that because the judgment in the breach-of-contract action against Kansas determined that Vanover’s contract was terminable at will, the further conclusion in that case, that “[p]oor performance of the agency in 1982 and 1983 was a legally sufficient cause for termi[526]*526nation of the general agent’s contract, in the event cause was required,” was dictum, and so could not be res judicata. In our view, the first judgment stated alternative grounds, either of which was sufficient to support dismissal of Vanover’s suit for breach of contract. However, that does not preclude Vanover from litigating the reason for his termination nor from disputing the effect of the statements that he was terminated for cause. See Restatement (2d) of Judgments, § 27 (1982) and comment i thereto:

“§ 27. Issue Preclusion — General Rule
“When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.
[[Image here]]
“i. Alternative determinations by court of first instance. If a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone. See Illustration 14. Cf. § 20, Comment e.”

Compare comment o, id., dealing with the effect of an appellate decision based on alternative determinations.

Thus, the alternative determination in the first judgment that “[p]oor performance of the agency in 1982 and 1983 was a legally sufficient cause, for termination” does not preclude Vanover from litigating the reason for his termination or whether he was defamed by statements that he was terminated for cause.

Relying on our statement in Peacock v. Sundre Township, 372 N.W.2d 877, 878 (N.D.1985), that “[r]es judicata means that a valid, existing final judgment from a court of competent jurisdiction is conclusive,” Vanover contended that the Commissioner’s decision did not bind the trial court because the Commissioner was not a “court of competent jurisdiction.” Vanover also contended that the Commissioner did not find that there was a lack of production or that he was terminated for cause.

Although an administrative agency is not a court, an administrative agency decision may be res judicata. See Amerada Hess Corp. v. Furlong Oil & Minerals Co., 348 N.W.2d 913 (N.D.1984). In that case, the Industrial Commission authorized Furlong to enter a nonproducing well drilled by Amerada and Amerada sued to enjoin Furlong. This court stated that “the trial court would have been justified in treating [the Industrial Commission’s] Order No. 2970 as res judicata, and dismissing Amerada’s suit for an injunction as an improper collateral attack on the order.” Id., at 916. See also United States v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Torrington Tax Collector, LLC v. Riley
354 Conn. 66 (Supreme Court of Connecticut, 2026)
Odom v. Kaizer
884 F. Supp. 2d 923 (D. North Dakota, 2012)
State Ex Rel. Workforce Safety & Insurance v. Jfk Raingutters
2007 ND 80 (North Dakota Supreme Court, 2007)
Bertsch v. Duemeland
2002 ND 32 (North Dakota Supreme Court, 2002)
Gepner v. Fujicolor Processing, Inc.
2001 ND 207 (North Dakota Supreme Court, 2001)
Grinaker v. Grinaker
553 N.W.2d 204 (North Dakota Supreme Court, 1996)
Vanover v. Kansas City Life Insurance Co.
535 N.W.2d 424 (North Dakota Supreme Court, 1995)
Kief Farmers Cooperative Elevator Co. v. Farmland Mutual Insurance
534 N.W.2d 28 (North Dakota Supreme Court, 1995)
York Ford, Inc. v. Building Inspector & Zoning Administrator
647 N.E.2d 85 (Massachusetts Appeals Court, 1995)
Baker Electric Cooperative, Inc. v. Chaske
28 F.3d 1466 (Eighth Circuit, 1994)
Hofsommer v. Hofsommer Excavating, Inc.
488 N.W.2d 380 (North Dakota Supreme Court, 1992)
Rott v. Connecticut General Life Insurance Co.
478 N.W.2d 570 (North Dakota Supreme Court, 1991)
United Hospital v. D'Annunzio
466 N.W.2d 595 (North Dakota Supreme Court, 1991)
Westman v. Dessellier
459 N.W.2d 545 (North Dakota Supreme Court, 1990)
Berdahl v. North Dakota State Personnel Board
447 N.W.2d 300 (North Dakota Supreme Court, 1989)
Skopp v. First Federal Savings
545 N.E.2d 356 (Appellate Court of Illinois, 1989)
Production Credit Ass'n of Mandan v. Obrigewitch
443 N.W.2d 304 (North Dakota Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
438 N.W.2d 524, 1989 N.D. LEXIS 65, 1989 WL 28597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vanover-v-kansas-city-life-insurance-co-nd-1989.