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Agent's book of business in play.

Albany, N.Y. -- The Supreme Court, Appellate Division, Third Department granted the defendants' Farm Family Casualty motion for summary judgment dismissing the complaint from Richard Wysong, plaintiff.

Richard Wysong, an experienced insurance agent, entered into an agreement with defendant Thomas M. Kolberg, a general agent for defendants Farm Family Casualty Insurance Company and Farm Family Life Insurance Company (Farm Family), "to take custody of" an Ulster County book of Farm Family's business. Richard Wysong and Farm Family then entered into agent contracts.

Almost seven years later, Farm Family terminated Richard Wysong based on his mishandling of certain matters and transferred the Ulster County book of insurance business to another Farm Family agency. Mr. Wysong commenced this action for, among other things, unjust enrichment, alleging that he had purchased the Ulster County book of business and was entitled to compensation for its transfer. The Supreme Court granted Farm Family's motion for summary judgment and dismissed the complaint in its entirety.

Mr. Wysong argued on his appeal that there are questions of fact precluding Supreme Court's determination that he did not purchase the Ulster County book of business and dismissal of his unjust enrichment claim. The Appellate division affirmed.

Richard Wysong did not contest the validity of the agent contracts he entered into with Farm Family which provide, among other things, that Farm Family owns all insurance business assigned to or produced by plaintiff and that the book of business may be reassigned to another agent in the event of plaintiff's termination. Instead, he contested that he had a separate, oral agreement with Thomas Kolberg whereby he purchased the book of business according to the terms of Mr. Kolberg's handwritten "fact sheet" listing the income earned from the book's policies and the amount that plaintiff would be required to pay Mr. Kolberg "to take custody of" it.

The Appellate Division found that Mr. Wysong failed however, to present evidence sufficient to raise any material issue of fact rebutting the plain, unambiguous terms of the agent contracts. These contracts specifically provide that they "supersede all prior agreements between the parties hereto" and that they "represent the entire understanding and agreement of the parties hereto:' Furthermore, any modification of the agent contracts was required to be in writing and executed by a duly authorized officer or representative of Farm Family.

The unsigned "fact sheet;' on the other hand, was provided to Mr. Wysong prior to his execution of the agents contracts, and it does no more than to memorialize his apparent agreement to pay Thomas Kolberg a portion of any commissions earned in order to be able to serve Mr. Kolberg's former customers.

The Appellate Division found as the agent contracts are clear that Farm Family owns the book of business, the Supreme Court properly concluded that there were no issues of fact as to whether Mr. Wysong purchased it from Thomas Kolberg.

The Appellate Division concluded in as much the agent contracts govern the ownership of the book of business, Mr. Wysong cannot recover on an unjust enrichment cause of action. The Court found no merit to Mr. Wysong's unjust enrichment claim as he was provided with established policies from which he immediately started earning commissions and, during the course of his time servicing the book of business, he netted approximately $350,000 in commission income after paying less than $50,000 to do so.
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Title Annotation:IN DISPUTE
Author:Nash, Katlin
Publication:Insurance Advocate
Date:Mar 18, 2013
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