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Barry Myaer v. Nodak Mutual Insurance Company

February 10, 2012

BARRY MYAER,
PLAINTIFF AND APPELLEE
v.
NODAK MUTUAL INSURANCE COMPANY, DEFENDANT AND APPELLANT



Appeal from the District Court of Renville County, Northeast Judicial District, the Honorable Michael G. Sturdevant, Judge.

The opinion of the court was delivered by: Vande Walle, Chief Justice.

N.D. Supreme Court

Myaer v. Nodak Mutual Insurance Co., 2012 ND 21

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Dissent filed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by VandeWalle, Chief Justice.

[¶1] Nodak Mutual Insurance Company appealed from a judgment awarding Barry Myaer $34,933.24 plus interest in his breach of contract action against Nodak. We conclude the district court did not err in ruling Myaer was entitled to deferred commissions payable to him in December 2009, but did err in ruling those commissions could exceed 10 percent under the terms of the parties' contract. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶2] On July 7, 2009, Nodak terminated Myaer's "Career Producer's Contract" after he had served as a captive insurance agent for the company in Mohall for almost 29 years. The most recent Career Producer's Contract Myaer signed was dated December 28, 2004, but Nodak had subsequently sent similar contracts throughout the years, the last of which was effective January 1, 2009. The contract provided different commission calculations depending on the type of policy written by Myaer. The contract provided for a 10 percent commission on gross premiums for sales of multi-peril crop insurance ("MPCI").

[¶3] The premium payments for MPCI policies were normally paid in two installments by the policyholders. An addendum to the contract provided:

A. Career Producer will receive 50% of the commissions payable in the month following those policies processed by AFBIS.

B. Career Producer will receive balance of commissions due on those policies that are paid in full in the month following processed premium. According to Myaer, the first installment was paid in August after acreage reports were submitted and the second installment was paid in December after policyholders paid their premiums in full. The contract addendum also provided for reductions of the 10 percent commission under certain circumstances:

C. A commission reduction of 1% will be applied to all gross premiums if all submissions and loss reports are not submitted on-line.

D. A commission reduction of 1% will be applied to all gross premiums if all MPCI notes including any outstanding interest are not paid and received in the home office prior to November 1st.

[¶4] The contract also explained when commissions were "earned":

COMMISSIONS, CREDITS, AND REFUNDS. Commissions on any policy or on added coverage shall be earned when: (1) the policy or added coverage has been accepted by the Company or the other insurers identified in the Addendums to this Contract; (2) the policy is issued; and (3) premium is received and processed by the Company. The contract provided that it "may be canceled by either party, with or without cause, at any time upon giving notice, in writing, to the other party," and further provided: "Upon cancellation of this Contract, no further commission or premium credit shall accrue."

[¶5] After Myaer's termination in July 2009, Nodak paid him $20,338.72 in August 2009 for commissions owed to him. Myaer's "MPCI Commission Statement" for the 2009 crop year indicated $22,500.45 in deferred commissions remained to be paid. However, in December 2009, Nodak did not pay Myaer the deferred commissions on the policies he had sold, claiming he was no longer entitled to them. Nodak claimed Myaer was not entitled to further commissions because his contract was terminated before policyholders had paid the second installments on their premiums.

[¶6] In April 2010, Myaer brought this action against Nodak claiming, among other theories not relevant to the appeal, that it had breached the Career Producer's Contract by failing to pay him the deferred commissions in December 2009. Both parties moved for summary judgment. Myaer filed an affidavit setting forth his calculations of what he was owed and claiming, "[t]he way MPCI commissions were typically paid, if I did my reports via the Internet and all farmers' notes were paid, my total commission would be 12 per cent . . . ." Nodak presented a copy of the Career Producer's Contract, and filed a "Motion in Limine to Exclude Testimony Contrary to Career Producer's Contract." Nodak argued Myaer's claim to a 12 percent commission was barred by the parol evidence rule because it conflicted with the express terms of the 2009 contract, which provided for a maximum 10 percent commission.

[¶7] The district court granted summary judgment in favor of Myaer, but did not address Nodak's motion in limine. The court ruled that, under the terms of the contract, Myaer's right to receive the second installment of commissions had already "accrued" at the time Nodak terminated the contract. The court awarded him a 10 percent commission on the policies he had sold in the amount of $22,500.45 and also awarded him a "bonus" in the amount of $9,003.70 in accordance with Myaer's calculations, reasoning "it does not appear that Nodak has actually challenged the work product of Mr. Myaer." Myaer was also awarded pre- and post-judgment interest.

II

[ΒΆ8] Nodak argues the district court erred in concluding Myaer is entitled to the deferred commissions payable in December 2009 because the ruling ignores the plain ...


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