Terry Hunt Construction3/29/2005
Terry Hunt Construction Company, Inc. ("THCC"), an industrial builder, appeals the grant of summary judgment to AON Risk Services, Inc. of Georgia ("AON"), an insurance broker, on AON's claim to recover payments due for the procurement of insurance policies and products through a written Service and Retainer Agreement with THCC. AON contended that through a course of dealing THCC renewed the Service and Retainer Agreement between the parties, and thus agreed to pay the monthly service fee for another year even though no written, executed contract exists. THCC contends, however, that its CEO Terry Hunt objected to continuing the Service and Retainer Agreement because of AON's failure to provide services that were required under the previous Service and Retainer Agreement, and AON agreed to procure the insurance policies and products on a commission basis without a monthly service fee from THCC.
On appeal, THCC alleges the trial court erred by granting summary judgment because genuine issues of material fact exist on several issues concerning the contract, particularly on whether the contract was renewed, and on whether AON was entitled to recover on its open account claim and prejudgment interest. THCC also alleges the trial court erred by granting summary judgment to AON on THCC'S counterclaim. Because we find that a genuine issue of material fact exists on whether the Service and Retainer Agreement was renewed through the course of dealings between the parties, we must reverse the grant of summary judgment to AON.
1. In this state,
he standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When a trial court rules on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. On appeal of the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.
(Citations omitted.) Overton Apparel v. Russell Corp., 264 Ga. App. 306, 307 (590 SE2d 260) (2003). Further, the court cannot resolve the facts or reconcile the issues when deciding whether summary judgment should be granted. Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49) (1981).
2. Viewed as our summary judgment law requires, the evidence shows that THCC became a customer of AON when John Genet, who had been providing surety bonds to THCC at another agency, moved to AON and brought THCC's business with him. At the time, Genet was a senior vice president and head of the construction division at AON. Soon AON began obtaining property, casualty, and workers' compensation insurance for THCC as well, but this insurance was obtained on a commission basis. That is, AON would obtain insurance for THCC, and then would be compensated through a commission paid by the insurance company providing the policy.
Subsequently, AON made a presentation to THCC offering to obtain future insurance coverage for THCC and to provide THCC with other services, particularly safety related programs, through a Service and Retainer Agreement, which provided that THCC would pay AON an annual fee, prorated by month, and any commissions AON received would be credited to THCC's account. Because THCC was concerned about safety issues, Terry Hunt, on behalf of THCC, and John Genet, on behalf of AON signed a Service and Retainer Agreement ("S & R A") that would run from March 31, 1999, to March 31, 2000. Although, as shown below, THCC was not satisfied with AON's performance, any amounts due to AON und
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