APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL
B. EPSTEIN, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
This is an appeal from the Circuit Court's denial of a motion for a temporary restraining order. The action was brought by a former employer, C.G. Caster Company, against its former employee, Robert J. Regan, to enforce a restrictive covenant prohibiting investigation and adjustment of casualty insurance claims for two years after leaving its employment, within a 38-mile radius of Caster Company's Chicago office.
The issues presented for review are whether the covenant not to compete is void because of plaintiff's failure to satisfy its obligations under the contract, and whether the covenant not to compete is unreasonable taking into consideration the time and territory limitations.
Charles Caster was president of C.G. Caster Company for 15 1/2 years prior to the filing of this suit; since about March of 1960. The nature of its business is the investigation and adjustment of insurance claims for insurance companies, insurance agents and others. The scope of the operation covers an area within 75 miles of the Chicago Loop. From early 1972 through 1975 the business received assignments from about 20 to 22 different companies, but during the latter part of 1974 the business slacked off to about 15 or 16 companies. Best's Directory indicates 133 insurance companies use independent adjusters in the Chicago area.
Mr. Regan was employed by C.G. Caster Company in February of 1972. The parties entered into an employment contract, extending for five years, hiring the defendant as general manager of the company for a salary of $20,000 per year plus 10% of the net profits for the preceding year multiplied by the years of service to a maximum of 50%, plus entertainment, travel and miscellaneous expenses. The employment contract also provided the defendant with the use of a car, hospitalization, disability and group life insurance and a paid vacation. The contract also provided:
"Regan further agrees that during the term of this agreement and for a period of two years thereafter, he will not, directly or indirectly, solicit the business of any client or customer of the Company for any purpose whatsoever, either for his own benefit or for the benefit of any other person, firm or corporation."
The contract was terminable upon 30 days notice with certain stipulated payments if termination is by the company. By a companion agreement Regan was granted the option to purchase 49% of the capital stock of the company. By contract amendment Regan received 50% of the profits for the year 1973.
By amendment to the agreement it was provided, in pertinent part:
"Regan further covenants and agrees that he will not either directly or indirectly own, nor engage in the business of investigating or adjusting casualty, liability or physical damage claims or other claims for or on behalf of the insurance industry or their representatives; nor will he solicit clients of the company for any business purposes whatsoever without first obtaining written consent of the company.
"The parties hereto stipulate and agree that a reasonable limitation upon Regan for the operation of this covenant shall be for a period of two years from the termination of this agreement and shall cover an area limited by a 38 miles radius from the Company's offices at 222 West Adams Street, Chicago, Illinois."
Mr. Regan was in charge of all line functions, the assignment of work, hiring supervision, discharge of personnel and every duty that could be expected of a general manager. He was the primary operating officer. His termination on May 6, 1975, was due to Mr. Regan's violation of certain production procedures of the company. Fairly summarized, Caster Company charges Mr. Regan with failing to adequately supervise personnel.
Mr. Regan admitted after his employment with Caster Company was terminated he was restricted by a 38-mile radius of Chicago. He sent a letter to each of 10 to 12 clients of Caster Company subsequent to his termination. This letter was a conditional representation on his part that he could handle investigations and adjustments in certain areas outside the 38-mile limit, but could not handle investigations or claim adjusting within the 38-mile radius. He told one client, Old Republic Insurance Company, he would be willing to accept claims or undertakings within the 38-mile radius. In fact, he accepted an assignment from Old Republic in September of 1975, and thereafter he received about four or five assignments a month within the 38-mile radius.
Mr. Regan is the principal and incorporator of a corporation known as R.J. Regan & Associates, Inc. The purpose of this corporation is investigation and adjustment of insurance claims. This corporation came into existence in the first part of 1975. The office of the corporation is 57 West Jefferson, Joliet, Illinois. Mr. Regan does his investigation and claim adjusting from that office. He said, "If any client hires me to do a job for them and it is within the 38 mile radius, I do it."
Mr. Regan had been in the investigation and adjustment of casualty insurance claims for 29 years. Before he met Mr. Caster, Mr. Regan was doing business with numerous insurance ...