American General Life Insurance Company v. Gottdenger
OPINION & ORDER re: 54 SECOND MOTION for Summary Judgment filed by American General Life Insurance Company. For the foregoing reasons, Plaintiff's motion for summary judgment is GRANTED. The Court respectfully direc ts the Clerk of the Court to enter judgment in favor of Plaintiff in the amount of $162,110.27, with interest, on Plaintiff's breach of contract claim as it relates to the 2005 Policy. The Clerk of the Court is further directed to terminate the motion at ECF Doc. No. 54, and to close the case. (Signed by Judge Nelson Stephen Roman on 9/20/2017) Copies Mailed By Chambers. (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AMERICAN GENERAL LIFE INSURANCE
DATE fILED: _
OPINION & ORDER
No. 09-cv-07083 (NSR)
NELSONS. ROMAN, United States District Judge
Plaintiff American General Life Insurance Company ("Plaintiff') commenced this action
against Defendant David Gottdenger ("Defendant") asserting claims for, inter alia, breach of
contract. Plaintiffs claims arise out of the payment of compensation and commissions to
Defendant in connection with the issuance of life insurance policies by Plaintiff in 2005 and
Before the Comt is Plaintiffs motion for summary judgment seeking reimbursement of
all compensation and fees paid to Defendant under the 2005 policy. 1 For the following reasons,
Plaintiffs motion is GRANTED without opposition.
Defendant entered into an Agency Agreement (the "Agency Agreement") with Plaintiff
on or about October 18, 2005. (Klotz Affid., para. 2.) The Agency Agreement authorized
Defendant to solicit life insurance applications for Plaintiff, for which Defendant would be paid
commissions if and when Plaintiff issued the insurance policies. (Ex. A, Agency Agreement,
By order of this Court, dated January 21, 2016, Plaintiff was granted summary judgment on its claim for
breach of contract related to the 2006 policy. (Doc. No. 40).
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Sec. I.) The Agency Agreement included a provision for the return of commissions paid in
Whenever, after delivery, the insurer shall effect or procure the surrender, rescission or
cancellation of any policy and refund premiums paid thereon, the insurer shall have the
right to charge back commissions and demand that the REPRESENTATIVE repay such
commissions to the insurer.
(Id., Sec. V.F.)
As is relevant to this motion, in December 2005, Plaintiff executed, issued, and delivered
a life insurance policy (“2005 Policy”) to insure the life of D.S. (Klotz Affid., para. 3.) The
policy was issued as a result of Defendant’s efforts as agent for Plaintiff. Defendant received, as
agreed, compensation and commissions from Plaintiff for the 2005 Policy. (Klotz Affid., para.
Following the death of D.S. and the initiation of legal action by Plaintiff as a result of
material misrepresentations in the applications underlying the policy, the 2005 Policy was
rescinded (Declaration of Robert Lesko, Ex. A), and all premiums paid were refunded. (Klotz
Affid., para. 7.) Despite rescission of the 2005 Policy, the refunding of the premiums, and
Plaintiff’s demand for repayment, Defendant has yet to repay all commissions and fees. (Id.,
para. 8.) As of September 2016, Defendant owes Plaintiff $162,110.27 in outstanding
commission debt. (Id.)
STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides: “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving
party bears the initial burden of pointing to evidence in the record, “including depositions,
documents [and] affidavits or declarations,” id. at 56(c)(1)(A), “which it believes demonstrate[s]
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The moving party may also support an assertion that there is no genuine dispute by
“showing . . . that [the] adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus shifts to
the non-moving party to identify “specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal citation and quotation marks
omitted). A genuine dispute of material fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”(Id. at 248); accord Benn v. Kissane, 510 F.
App’x 34, 36 (2d Cir. 2013) (summary order). Courts must “constru[e] the evidence in the light
most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor.”
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal
quotation marks omitted). In reviewing the record, “the judge’s function is not himself to weigh
the evidence and determine the truth of the matter,” nor is it to determine a witness’s credibility.
Anderson, 477 U.S. at 249. Rather, “[t]he inquiry performed is the threshold inquiry of
determining whether there is the need for a trial.” (Id. at 250).
Local Civil Rule 56.1(b) requires that the non-moving party’s “papers opposing a motion
for summary judgment . . . include a correspondingly numbered paragraph responding to each
numbered paragraph in the [56.1] statement of the moving party, and if necessary, additional
paragraphs containing a separate, short and concise statement of additional material facts as to
which it is contended that there exists a genuine issue to be tried.” Loc. Civ. R. 56.1(b).
Defendant failed to submit a 56.1 statement in opposition to Plaintiff’s motion as required by the
Court’s local rules. Defendant’s failure to specifically controvert the statements made in
Plaintiff’s 56.1 statement results in Plaintiff’s statements being deemed admitted for purposes of
this motion. Loc. Civ. R. 56.1(c); see Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 658
(S.D.N.Y. 2012). Nevertheless, in light of Defendant’s pro se status, the Court has conducted its
own review of the record and confirmed that the facts set forth below are undisputed. See Holtz
v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (“While a court is not required to
consider what the parties fail to point out in their Local Rule 56.1 statements, it may in its
discretion opt to conduct an assiduous review of the record even where one of the parties has
failed to file such a statement.”) (internal quotation marks and citations omitted).
Summary judgment should be granted when a party “fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322. The party asserting that a fact is
genuinely disputed must support their assertion by “citing to particular parts of materials in the
record” or “showing that the materials cited do not establish the absence . . . of a genuine
dispute.” Fed. R. Civ. P. 56(c)(1). “Statements that are devoid of any specifics, but replete with
conclusions, are insufficient to defeat a properly supported motion for summary judgment.”
Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999). The nonmoving party “may not
rely on conclusory allegations or unsubstantiated speculation.” FDIC v. Great Am. Ins. Co., 607
F.3d 288, 292 (2d Cir. 2010) (internal citation and quotation marks omitted). Moreover, “[a nonmoving party’s] self-serving statement, without direct or circumstantial evidence to support the
charge, is insufficient to defeat a motion for summary judgment.” Fincher v. Depository Trust &
Clearing Corp., No. 06 Cv. 9959 (WHP), 2008 WL 4308126, at *3 (S.D.N.Y. Sept. 17, 2008)
aff’d, 604 F.3d 712 (2d Cir. 2010) (citing Gonzales v. Beth Israel Med. Ctr., 262 F. Supp. 2d
342, 353 (S.D.N.Y. 2003)).
Plaintiff seeks repayment of the commissions paid to Defendant in connection with the
issuance of the 2005 Policy based on the terms of the Agency Agreement. To determine whether
summary judgment is appropriate, the Court turns to the terms of the Agency Agreement itself.
It is well settled, contracts (agreements) are to be interpreted in accordance with the
parties’ intent. Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 (2002). The best
evidence of the parties’ intent is what is contained within their writing. (Id.) (quoting Slamow v.
Del Col, 79 N.Y.2d 1016, 1018 (1992)); see also Cont’l Ins. Co. v. Atl. Cas. Ins. Co., 603 F.3d
169, 180 (2d Cir. 2010) (“When interpreting a contract, the ‘intention of the parties should
control . . . [, and] the best evidence of intent is the contract itself.’”) (internal citation omitted)
(alteration in original). Words of a contract are to be given a “fair and reasonable meaning” in
accordance with the parties’ intent. Sutton v. E. River Sav. Bank, 55 N.Y.2d 550, 555 (1982)
(quoting Heller v. Pope, 250 N.Y. 132, 135 (1928)). The terms of an agreement must be
considered not in isolation from context, but in light of the overall obligation and intention of the
parties as manifested therein. Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002) (citing
Kass v. Kass, 91 N.Y.2d 554, 566 (1998)).
When there exists a dispute over the meaning of a contract, the court must determine
whether the terms are ambiguous. Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 66 (2d Cir.
2000). Whether the terms of a contract are ambiguous or unambiguous is a question of law for
the court to decide. (Id.). An agreement that is clear and unambiguous on its face must be
enforced according to the plain meaning of its terms. See Greenfield, 98 N.Y.2d at 569 (citing
R/S Assoc. v. N.Y. Job Dev. Auth., 98 N.Y.2d 29, 32 (2002)). Where the language of an
agreement is deemed ambiguous, “its construction presents a question of fact which may not be
resolved by the court on a motion for summary judgment." Pepco Constr. ofNY., Inc. v. CNA
Ins. Co., 15 A.D.3d 464, 465 (2d Dep't 2005).
In order to demand repayment of commissions under the Agency Agreement, the insurer
must: (1) "effect or procure the surrender, rescission or cancellation of any policy," and (2)
"refund premiums paid thereon." Given the clear language contained in the agreement, the Court
determines Plaintiff-movant has met the requisite standard for repayment of commissions and
fees. Defendant has failed to proffer any facts, in evidentiary fo1m, to raise a genuine dispute.
Having satisfied both requirements of the Agency Agreement, Plaintiff is entitled to demand
repayment of the commissions paid to Defendant. Defendant's failure to repay the commissions
constitutes a breach of the Agency Agreement. Accordingly, Plaintiff is entitled to summary
For the foregoing reasons, Plaintiffs motion for summary judgment is GRANTED. The
Comt respectfully directs the Clerk of the Comt to enter judgement in favor of Plaintiff in the
amount of $162, 110.27, with interest, on Plaintiffs breach of contract claim as it relates to the
2005 Policy. The Clerk of the Court is further directed to terminate the motion at ECF Doc. No.
54, and to close the case.
September 20, 2017
White Plains, New York
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