Tillery v. Oklahoma Farm Bureau Mutual Ins. Co.6/23/1992
Rehearing Denied August 11, 1992.
Certiorari Denied January 26, 1993
CHARLES W. TILLERY, JR., APPELLANT,
v.
OKLAHOMA FARM BUREAU MUTUAL INSURANCE COMPANY, APPELLEE.
Appeal from the District Court of Oklahoma County; Niles Jackson, Judge.
Tom R. Stephenson, Stephenson & Webber, Watonga, for appellant.
Reggie N. Whitten, Kathryn D. Mills, Mills, Whitten, Mills, Mills & Hinkle, Oklahoma City, for appellee.
REVERSED AND REMANDED.
MEMORANDUM OPINION
The opinion of the court was delivered by: BAILEY, Judge.
Appellant Charles W. Tillery, Jr. (Agent) seeks review of the Trial Court's order granting summary judgment to Appellee Oklahoma Farm Bureau Mutual Insurance Company (OFBM) in Agent's action against OFBM for wrongful termination of agency contract. Herein, Agent asserts error of law by the Trial Court, the Trial Court having failed to distinguish between an action for termination of an employee at-will and a breach of contract action.
In 1973, OFBM and Agent entered into an agency contract pursuant to which Agent would sell insurance on behalf of OFBM. The contract provided for termination by either party without cause upon ten days notice. In 1984, OFBM notified Agent of termination of the contract. After termination of the contract, OFBM received and retained all renewal commissions generated originally by Agent without compensating Agent therefor. Agent initiated this action in 1987 alleging OFBM wrongfully terminated the contract.
In 1987, the Trial Court granted summary judgment to OFBM, finding no evidence of bad faith termination of the contract by OFBM. On appeal, the Court of Appeals, Division IV, reversed the order of the Trial Court and remanded the action for further proceedings, finding "a material issue of fact exists as to whether [OFBM] ha , in bad faith, deprived [Agent] of `the fruits of his own labor.'"
On remand, OFBM again moved for summary judgment, arguing (1) no evidence showing termination of the contract in bad faith, and (2) Agent's action, sounding in tort, stood barred by the statute of limitations. The Trial Court again granted OFBM's motion, and Agent appeals as aforesaid.
The first issue - that Agent failed to show bad faith on the part of OFBM in terminating the contract - raised by OFBM in its first and second motions for summary judgment, and upon which the Trial Court could have based its order granting same, has been specifically addressed by the Court of Appeals in Case No. 68,868, the prior appeal in this case. In its opinion in the prior appeal, the Court of Appeals found "a material issue of fact exists as to whether [OFBM] has, in bad faith, deprived [Agent] of `the fruits of his own labor,'" "i.e., loss of retirement, employment, fringe benefits, and lost commissions and wages," and that finding stands as law of the case, binding on the Trial Court on remand. The Trial Court therefore erred in apparently holding contrary thereto on subsequent summary judgment, and the Trial Court's order should be reversed.
OFBM secondly asserts that Agent's cause of action sounds in tort and, because Agent initiated this action more than two years after termination of the contract, the action stands barred by the two year statute of limitations. We disagree. The Supreme Court has recognized, and recently reiterated, the principle that an insurance company "may not unfairly deprive agent of the fruits of that agent's own labor by a wrongful, un
Page 1 2 Oklahoma Employee Leasing Services
Employee Leasing Services
|