Farmers Insurance Exchange v. Schirado

20050221 Farmers Insurance Exchange,
Truck Insurance Exchange,
Fire Insurance Exchange,
Mid-Century Insurance
Company, and Farmers New
World Life Insurance Company, Plaintiffs and Appellants
v.
Allen Schirado, Defendant and Appellee

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Bruce A. Romanick
Nature of Action: Contracts
Counsel:
Appellant: Zuger Kirmis & Smith
Appellee: Chapman and Chapman, P.C.
Term: 12/2005   Argument: 12/06/2005  9:30am
ND cite: 2006 ND 141
NW cite: 717 N.W.2d 576

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Whether construing all facts and inferences in favor of appellants, the district court erred in finding no genuine issue of material fact as to whether appellee insurance agent Allen Schirado's breach of his agreement with appellants by switching policyholders to other insurers caused appellants lost profits?
II. Whether construing all facts and inferences in favor of appellants, the district court erred in finding no genuine issue of material fact as to whether appellee Schirado breached a fiduciary duty to appellants in switching policyholders to other insurers?
III. Whether construing all facts and inferences in favor of appellants, the district court erred in finding no genuine issues of material fact as to whether upon his termination appellee Schirado, by failing to return appellants' policyholder information to them:
1) breached the express terms of his agent appointment agreement;
2) misappropriated appellants' trade secrets;
3) converted appellants' property; or
4) tortiously interfered with appellants' contractual rights? IV. Whether construing all facts and inferences in favor of appellants, the district court erred in determining that appellee Schirado's breach of his obligation to return policyholder information to the appellants did not excuse the appellants' obligation to make the final payment due to the appellee following his termination?
V. Whether construing all facts and inferences in favor of appellants, the district court erred in determining that solely because they made prior payments the appellants waived any right to withhold, based on Schirado's continuing breach, a final payment to the appellee following his termination?

Appellee's Statement of the Issues:
I. Did the Trial Court appropriately award Summary Judgment to Allen Schirado, on Farmers' claim that Schirado placed 12 policyholders with other insurance companies during the term of his Agency Agreement with Farmers, where Farmers presented no evidence that any of the 12 policyholders were induced by Schirado to switch companies, and where Farmers presented no evidence that any of the 12 policyholders would have otherwise remained with Farmers?
II. Did the Trial Court appropriately award Summary Judgment to Allen Schirado, on Farmers' claim that the retention by Schirado of policyholder information, following termination of his agency, constituted a contract breach, trade secret misappropriation, conversion, or tortuous interference with contract, where Farmers presented no evidence that any policyholders were induced by Schirado to switch companies, and where Farmers presented no evidence of any actual damages suffered by Farmers?
III. Was Allen Schirado entitled to Summary Judgment, where Farmers had paid Schirado two of three Contract Value payments, without reservation, but had refused to make the third Contract Value payment?

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Docket entries:
106/30/2005 NOTICE OF APPEAL: 06/28/2005
207/06/2005 MOT. EXT/TIME APPELLANT BRIEF (letter dated 7-05-05 from Jerry Evenson)
307/06/2005 ACTION BY CLERK (MAT). Granted: 08/15/2005
407/29/2005 RECORD ON APPEAL (3 vols) (Not rec'd: #19--Plaintiff's Exh. 14; 20a,34,47,77, & 79--Ct Rept Notes)
508/05/2005 MOT. EXT/TIME APPELLANT BRIEF (e-mailed memo from Jerry Evenson)
608/05/2005 E-FILED MOTION (MAT)
708/05/2005 ACTION BY CLERK (MAT). Granted: 08/29/2005
808/25/2005 Supplemental Clerk's Certificate of Record - Entry Nos. 119 - 128 (includes tras of depositions)
909/29/2005 APPELLANT BRIEF
1008/29/2005 APPELLANT APPENDIX
1109/01/2005 Corrected Table of Authorities and page of ATB
1209/01/2005 DISK - ATB (e-mailed)
1309/28/2005 REQ. EXT/TIME APPELLANT BRIEF
1409/28/2005 ACTION BY CLERK, w/understanding oral argument will be in Dec.. Granted: 10/17/2005
1510/17/2005 APPELLEE BRIEF
1610/17/2005 APPELLEE APPENDIX
1710/17/2005 DISK - aeb
1810/28/2005 MOT. EXT/TIME REPLY BRIEF (letter from Mr. Evanson) (e-mailed)
1910/28/2005 E-FILED MOTION (MRY)
2010/31/2005 ACTION BY CLERK (MRY). Granted: 11/17/2005
2111/17/2005 MOT. EXT/TIME REPLY BRIEF
2211/17/2005 ACTION BY Chief Deputy Clerk (MRY). Granted: 11/18/2005
2311/18/2005 REPLY BRIEF
2411/18/2005 DISK of ryb
2512/06/2005 APPEARANCES: Jerry W. Evenson; Charles "Casey" L. Chapman
2612/06/2005 ARGUED: Evenson; Chapman
2712/06/2005 ORAL ARGUMENT WEBCAST
2806/29/2006 DISPOSITION: REVERSED AND REMANDED
2906/29/2006 UNANIMOUS OPINION: Crothers, Daniel John
3006/29/2006 Costs taxed in favor of Appellants
3107/03/2006 Judgment Mailed to Parties
3207/27/2006 MANDATE
3308/02/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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