Opinion
Case No. 95-7114-BHL-7, Adv. No. 98-7067
July 2, 1999
ORDER
This matter arises out of an Amended Complaint to Enforce Discharge of Debtor filed by the Plaintiff on or about October 7, 1998. The parties filed a Joint Pre-Trial Statement on February 8, 1999, wherein certain uncontested facts were set forth. The matter is currently before the Court on the Defendant's Motion for Summary Judgment filed on March 25, 1999. The Plaintiff's Answer Brief and Response to Statement of Material Facts was filed on May 6, 1999. Defendant's Reply Brief and Defendant's Reply to Plaintiff's Response to Statement of Material Facts were each filed on June 1, 1999, and the Plaintiff's Surreply Brief was filed on June 8, 1999.
The Court, having reviewed the pleadings and being otherwise fully and sufficiently advised, finds that the Defendant, The State Life Insurance Company, is entitled to summary judgment as a matter of law on the Plaintiff's Amended Complaint to Enforce Discharge of Debtor. Judgment is accordingly entered in favor of State Life and against the Plaintiff, William J. Wagner.
IT IS SO ORDERED AND ADJUDGED this __ day of July, 1999, at New Albany, Indiana.
MEMORANDUM
This matter is before the Court on the Defendant's Motion for Summary Judgment filed March 25, 1999. The parties have stipulated to the following facts:
1. The Plaintiff, William Wagner ["Wagner"], entered into a General Agent's Contract [the "Contract"] with State Life Insurance Company ["State Life"] on February 9, 1981. Under the terms of said Contract, Wagner was a general agent for State Life until on or about May 28, 1998.
2. The Contract provides that "[t]he Company shall have a lien on all compensation that may be payable under this or any other previous contract with the Company for the purposes of securing any indebtedness of the General Agent to the Company. The Company may apply such compensation against such indebtedness."
3. Prior to the commencement of the Wagner's bankruptcy case, Wagner sold insurance policies, which, under the Contract, gave rise to an entitlement to commissions in future years.
4. Wagner was not required to perform any services after the commencement of his bankruptcy case in order to be entitled to commissions on policies written prior to the commencement of said case.
5. Prior to the commencement of Wagner's bankruptcy case, Wagner accepted future commissions in advance.
6. Wagner did not repay said advances.
7. Any obligations, under the Contract, that Wagner may have had to State Life and any obligations State Life may have had to Wagner arose prior to the commencement of Wagner's bankruptcy case.
8. Any obligations, under the Contract, that Wagner may have had to State Life and any obligations State Life may have had to Wagner were mutual obligations because Wagner acted as General Agent and State Life acted as Wagner's principal.
9. Wagner filed a voluntary petition in bankruptcy on October 23, 1995.
10. Wagner identified State Life in his petition as a general unsecured creditor.
11. Wagner's bankruptcy case was a "no asset" case in which creditors were not required to file proofs of claim.
12. Wagner did not identify in his petition any future right to commissions on insurance policies as an asset.
13. State Life did not file a proof of claim in Wagner's bankruptcy case.
14. State Life filed no motions or pleadings in Wagner's bankruptcy case.
15. Wagner received a discharge under Chapter 7 of the Bankruptcy Code on January 30, 1996.
16. State Life did not, prior to a date on or about May 17, 1997, retain Wagner's commissions on policies sold by Wagner.
17. State Life has, since a date on or about May 17, 1997, retained commissions on policies sold by Wagner.
18. The Contract provides that "[f]ailure of the Company to exercise its rights as provided herein in event of breach or failure on the part of the General Agent shall not constitute a precedent or be construed as a waiver of such rights or provisions as to such breach or failure or future breach or failure."
19. State Life terminated the Contract on or about May 28, 1998.
Discussion
The Court notes, initially, that it has jurisdiction over this matter pursuant to 28 U.S.C. § 157; 28 U.S.C. § 1334; and the Standing Order of the United States District Court for the Southern District of Indiana effective since July 11, 1984, which automatically refers bankruptcy cases and proceedings to this Court for hearing and determination.
State Life is pursuing summary judgment on any one of three basis. First, it alleges that the Plaintiff lacks standing because any commissions owing to the Plaintiff are property of the estate and, as such, belong to the Trustee. State Life additionally or alternatively alleges that it has a right of setoff or recoupment which is unaffected by the Plaintiff's discharge.
Standard of Review
In reviewing the propriety of a grant of summary judgment, the Court turns to the oft cited guidelines established by the United States Supreme Court in 1986, encouraging summary disposition where there is no disputed issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242; Celotex Corp. v. Catrett, 477 U.S. 317; Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574. The burden is on the moving party to show that no genuine issue of material fact is in dispute. Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 322. Once the moving party presents a prima facie showing that he is entitled to judgment as a matter of law, the party opposing the motion may not rest upon the mere allegations or denials in its pleadings but must affirmatively show that there is a genuine issue for trial. Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 323; Matsushita, 475 U.S. at 587.
When reviewing a motion for summary judgment, all reasonable inferences are to be resolved in favor of the nonmovant. Anderson, 477 U.S. at 257. In order to survive a motion for summary judgment, the nonmovant need only present evidence from which the factfinder may return a judgment in his favor. Celotex, 477 U.S. at 323. At this point, then, having ascertained the standard by which to judge the motion for summary judgment, the Court shall proceed to review the arguments of counsel.
I. STANDING
Whether the Debtor has standing to pursue this cause of action depends upon the characterization of the renewal commissions owing to the Debtor. Wagner argues that those challenged commissions represent post-petition income since he was responsible for maintaining the account in order to secure the commission. (Wagner Affidavit, Paragraph 20). If Wagner's entitlement to the renewal or service commissions is dependent upon his performance of post-petition services, as opposed to pre-petition services, then those commissions should be excluded from the estate. State Life asserts, however, that after the sale of a policy of insurance, no further action was required of Wagner to be entitled to the "Commissions." (Affidavit of Debra K. Patterson, Paragraph 8).
A review of the General Agent's Contract between the parties is helpful at this juncture. Attached to the Contract is a Compensation Schedule which depicts the various percentage commissions payable for the different plans of insurance sold. In Policy Year 1, for example, a sizable "First Year Commission" and an "Expense Allowance" are payable. Payment of these types of commissions is addressed in Paragraph 7(A) and 7(C), respectively, of the Contract. In Policy Years 2 — 9, the General Agent is paid a significantly reduced "Renewal Commission" and "Renewal Overwriting Commission." Again, payment of these types of commissions are discussed in Contract Paragraph 7(B) and 7(D), respectively. Finally, in Policy Years 10 and after, a lower percentage "Service Fee" and "Overwriting Service Fee" are payable to the agent. These provisions are covered in Paragraphs 7(E) and 7(F) of the Contract, respectively.
The Contract provides in the event the contract is terminated, First Year Commissions, Renewal Commissions, Expense Allowances, Renewal Overwriting Commissions are still payable. No compensation in the manner of Service Fees or Overwriting Service Fees, however, are payable in the event of termination. The Contract further provides that, in the event of a General Agent's death, unpaid compensation may be paid to the General Agent's surviving spouse.
State Life relies upon the case of In re Wu, 173 B.R. 411 (9th Cir. BAP 1994) wherein that court held that renewal commissions were property of the bankruptcy estate only to the extent that post-petition services were a prerequisite for entitlement to such commissions. That court, citing In re Tomer, 128 B.R. 746, 762 (Bankr.S.D.Ill. 1991), aff'd, 147 B.R. 461, 472-73 (S.D.Ill. 1992), and In re Froid, 109 B.R. 481, 483 (Bankr.M.D.Fla. 1989), noted that "[w]here a debtor's postpetition services were not necessary to generate the renewal commissions because the terms of the contract continued to pay renewal commissions in the event that the debtor terminated the contract or died, courts have found the renewal commissions to be property of the estate." In re Wu, 173 B.R. at 414.
The lingering question is whether Wagner has inserted a genuine issue of material fact based upon his assertion that post-petition services were required in order to generate the Renewal and Service Commissions. His statement is directly contrary to the representations of State Life, through its agent, and contrary to the terms of the employment agreement as well. Undoubtedly, an agent does continue to service the needs of his clients throughout the term of the policy. But the extent to which payment of the Commission is contingent upon such post-petition service is unclear. Assuming arguendo, that the Court considers there to be a question of fact on this issue, it shall continue with the summary judgment analysis based upon the Defendant's theory of setoff or recoupment.
II. SETOFF/RECOUPMENT
Although setoff and recoupment are often referred to interchangeably, each doctrine bears its own distinct characteristics. While the Defendant has alleged both a right of setoff and recoupment, the Court will first consider the merits of the Defendant's right of recoupment. The majority view is that when an insurance company advances commissions to an insurance agent and that agent later files a petition in bankruptcy, the insurance company may recoup those monies previously advanced as they accrue, post-petition, to the agent. In re Pruett, 220 B.R. 625 (Bankr.E.D.Ark. 1997) (citing In re Sherman, 627 F.2d 594, 595 (2nd Cir. 1980) (holding that chapter 7 debtor was not entitled to further compensation on commissions until the renewal commissions exceeded what had already been paid by the insurer); In re Ruiz, 146 B.R. 877, 881 (Bankr.S.D.Fla 1992) (ruling that insurer could recoup advances by retaining post-petition commissions generated by chapter 13 debtor's pre-petition work); In re Tomer, 128 B.R. 746 (Bankr.S.D.Ill. 1991) (finding that chapter 7 debtor, having received commissions on those policies pre-petition, was not owed further commissions on those policies until advances were repaid to insurer)).
In Pruett, the court noted that a "typical example of the proper exercise of recoupment involves a creditor's claim for pre-petition overpayment as a defense against a debtor's post-petition claim when both claims arise under the same contract." Id. at 628 (Citations omitted). Because that is precisely the situation in the instant case, the Court finds that the Defendant is entitled to assert its right to recoup advances made under the Contract. As in the cited case, State Life's post-petition retention of commissions serves as a determination of the net liability between Wagner and State Life under the employment agreement.
The Debtor attempts to insert an issue of fact as to the Defendant's entitlement to setoff or recoup the advances based upon an alleged statement by Ray Trueblood, a regional State Life representative, that "State Life said don't worry about it, they would collect on the other end." Also, because the overpayment arose out of the course of several years past, Wagner asserts that State Life's recovery is barred by laches. In either event, the Court finds his arguments unavailing. It seems clear to this Court that Trueblood had no authority to extend such a gratuitous promise to forebear collection of the overpaid funds. It is not, as Wagner asserts, an oral modification of the employment agreement.
There was no consideration for the forbearance and Trueblood was not authorized to extend such an offer. As to Wagner's argument that State Life is barred from recovery based upon their inexcusable inaction over the course of years, the Court finds that State Life's failure to recoup the monies earlier resulted in no detriment to Wagner. Instead, Wagner benefitted from the delay, receiving commissions prior to May 15, 1997, which could have been recouped had State Life acted sooner.
For all of the foregoing reasons, the Court finds that the Defendant, The State Life Insurance Company, is entitled to summary judgment as a matter of law on the Plaintiff's Amended Complaint to Enforce Discharge of Debtor. Judgment is accordingly entered in favor of State Life and against the Plaintiff, William J. Wagner.
IT IS SO ORDERED AND ADJUDGED this __ day of July, 1999, at New Albany, Indiana.