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Thacher v. H. C. Baldwin Agency Inc.

November 10, 1960

THOMAS THACHER, SUPERINTENDENT OF INSURANCE FOR THE STATE OF NEW YORK AS STATUTORY LIQUIDATOR OF THE PREFERRED ACCIDENT INSURANCE COMPANY OF NEW YORK, PLAINTIFF-APPELLEE,
v.
H. C. BALDWIN AGENCY, INC., DEFENDANT-APPELLANT.



Author: Knoch

Before HASTINGS, Chief Judge, and DUFFY and KNOCH, Circuit Judges.

KNOCH, Circuit Judge.

The Preferred Accident Insurance Company of New York, a New York insurance corporation licensed to carry on business in the State of Indiana, was adjudicated insolvent in proceedings instituted by the Superintendent of Insurance in New York, pursuant to the New York Insurance Law. The Supreme Court of New York State entered an order April 30, 1951, dissolving Preferred, placing it in liquidation, and annulling its corporate charter. The New York Court vested title to Preferred's assets in the Superintendent of Insurance of the State of New York, plaintiff herein, as Liquidator and Domiciliary Receiver. The New York Court further directed that notice be given to file claims not later than October 31, 1951; enjoined assertion of claims except in the liquidation proceedings; and enjoined interference with the assets or with the administration of the liquidation.

Preferred had an agency contract with defendant, H. C. Baldwin, Inc., an Indiana corporation and licensed insurance agent. This contract was terminable at will by either party on written notice. The District Court made the following findings with respect to this contract, all of which are well supported by the record:

"4. On November 12, 1947, the Company and defendant entered into a written contract entitled 'Agency Agreement' to take effect the 1st day of January 1948, whereby defendant was appointed agent of the Company and authorized and granted authority to receive and accept proposals for such contracts of insurance covering risks located in Indiana and vicinity as the Company was authorized lawfully to make. The Agreement, among other things, provided as follows:

"(1) Agent has full power and authority to receive and accept proposals for insurance covering such classes of risks as the Company may, from time to time, authorize to be insured; to collect, receive and receipt for premiums on insurance tendered by the Agent and accepted by the Company and to retain out of premiums collected, as full compensation on business so placed with the Company, commissions at the following rates, viz.: * * *

"It is a condition of this Agreement that the Agent shall refund ratably to the Company, on business heretofore or hereafter written, commissions on cancelled liability and on reduction in premiums at the same rate at which such commissions were originally retained. * *

"(7) This Agreement supersedes all previous agreements, whether oral or written, between the Company and the Agent and may be terminated by either party at any time upon written notice to the other.

"5. On or about January 1, 1948 the Company and the defendant entered into two written instruments, each entitled 'Addendum to Contract,' and a further instrument effective October 1, 1949 making changes in or increasing the commissions of defendant.

"6. On or about the 12th day of November, 1948, the Company and the defendant entered into a 'Contingent Agreement' effective the 1st day of January, 1948, whereby the Company agreed to pay 10 per cent of the net profits on the Company's business with defendant's agency, bused on a minimum volume of $50,000.00 in premiums written per calendar year, the net profits to be calculated for each calendar year according to the following formula and otherwise provided, as follows:

"Credits.

"1. Ueaerned premiums at beginning of year.

"2. Outstanding losses at beginning of year.

"3. Net premiums written during ...


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