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WOJCIK v. AETNA LIFE INS. & ANNUITY CO.

August 25, 1995

DAVID A. WOJCIK, Plaintiff,
v.
AETNA LIFE INSURANCE AND ANNUITY COMPANY; EDWARD F. BACHER, and EDWARD F. SOMMER, Defendants.



The opinion of the court was delivered by: RUBEN CASTILLO

 In a diversity action, David A. Wojcik ("Wojcik") filed suit against Aetna Life Insurance and Annuity Company ("Aetna"), Edward F. Bacher ("Bacher"), an Aetna agent working in Columbus, Ohio, and Edward F. Sommer ("Sommer"), an Aetna regional manager until 1991. Wojcik alleged intentional interference with prospective business advantage (Count II), deceptive business practices (Count IV), and civil conspiracy against all defendants. (Count V). Wojcik alleged breach of contract (Count I), and against Bacher and Sommer, intentional interference with contract against defendant Aetna. (Count III). In the action presently before the Court, Aetna moves for an order to dismiss Wojcik's claims pursuant to Fed. R. Civ. Pro. 12(b)(6) and to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. Sec. 2. For the reasons discussed below, defendant's motion to compel arbitration is granted.

 BACKGROUND

 Aetna is an insurance and annuities firm which is a member of the National Association of Securities Dealers ("NASD") *fn1" and which has a principal place of business in Hartford, Connecticut. David Wojcik, a resident of Downers Grove, Illinois, began working full-time for Aetna as an insurance broker on or about December, 1980. (Compl. P 6). By 1986, Wojcik's success as a broker was evidenced by promotions through six job titles and conferral of Aetna's "Marketing Management Award." (Compl. P 6). On June 1, 1987, upon the suggestion of Aetna sales manager John Gilla, Wojcik executed a new contract with Aetna and became an Aetna Annuity Representative ("agent"). (Compl. P 8). In this capacity Wojcik also achieved success and earned a place in Aetna's "Honors Club" every year since becoming an agent in 1987, and a position on Aetna's published "Top 200" list of agents from 1987 until the list was discontinued in 1990. (Compl. P 10).

 In December, 1988, Wojcik alleges that he was approached by Aetna, Sommer and Bacher and asked to assign his business and clients to Bacher and become a Bacher employee. (Compl. P 11). Wojcik declined the offer and chose to remain an independent Aetna agent. Wojcik claims the defendants embarked on a scheme to destroy him in retaliation. (Comp. P 12). Wojcik alleges that the defendants reassigned clients from Wojcik to Bacher, and refused to assign Wojcik new clients or "cases", *fn2" in contravention of oral promises made to Wojcik as inducement for him to become an Annuity Representative. (Compl. P 7). In November, 1989, Wojcik ceased to be an agent and returned to his former position as an Aetna broker. (Compl. P 15). However, in May, 1993, again upon the advice of Aetna sales manager John Gilla, Wojcik once again became an Aetna agent. (Compl. P 15). Wojcik's claims stem from allegedly conspiratorial conduct on behalf of the defendants which began during Wojcik's initial career as an Aetna Annuities Representative. (Compl. PP 16-33).

 To lawfully sell insurance and annuity products for Aetna, Wojcik registered with NASD. On January 4, 1984, Wojcik completed an application for registration with NASD. Aetna's Mot. to Compel at 2. The application, known as a "Form U-4," contained a provision requiring applicants to submit to arbitration those disputes required to be arbitrated under the NASD Code of Arbitration ("the NASD Code"): *fn3"

 
I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register, as indicated in Question 8.

 Aetna's Mot. to Compel (Ex. A, Form U-4 at 4). In response to Question 8, Wojcik registered with NASD.

 At the time Wojcik signed the Form U-4 (1984) the NASD Code, part I, section 1, enumerating matters eligible for submission, required arbitration of:

 
. . . any dispute, claim or controversy arising out of or in connection with the business of any member of the Association, with the exception of disputes involving the insurance business of any member which is also an insurance company: (1) between or among members; (2) between or among members and public customers or others . . . .

 (Wojcik Memo. in Opp. to Aetna's Mot. to Compel. at 3). Also, at that time, part II, section 8(a) of the NASD Code, entitled "Required Submission," provided:

 
Any dispute, claim or controversy eligible for submission under Part I of this Code between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), shall be arbitrated under this Code, at the instance of:
 
(1) a member against another member;
 
(2) a member against a person associated with a member or a person associated with a member against a member; and
 
(3) a person associated with a member against a person associated with a member.

 Aetna's Mot. to Compel (Ex B, NASD Manual). Wojcik, as a registered representative of NASD member Aetna, is an "associated person." ...


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