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Com-Co Insurance Agency, Inc. v. Service Insurance Agency

April 16, 2001


The opinion of the court was delivered by: Presiding Justice McNULTY

Appeal from the Circuit Court of Cook County Honorable John B. Grogan, Judge Presiding

Com-Co Insurance Agency sued its former employee, William Abplanalp, and his new employer, Service Insurance Agency, for breaching a restrictive covenant by soliciting business from Abplanalp's friends. The court granted defendants summary judgment because Com-Co had no protectible interest in the customers at issue. We affirm.

Com-Co hired Abplanalp as an insurance agent in 1986. Abplanalp signed an employment agreement, which included the following provision:

"The agent agrees that for the duration of this agreement and for a period of three (3) years thereafter:

(a.) He will not *** divulge *** any lists of names of customers or clients of the company, nor make any use thereof for himself in any manner.


(c.) If employed by a company in a similar business, render services directly or indirectly to or for that company in connection with the sale or promotion of its services or products to customers or clients of Com-Co."

Abplanalp resigned in 1991 and joined Service. He consulted an attorney for Service for advice about the covenant. Service sent a letter to Com-Co admitting that most of Abplanalp's book of business with Com-Co received full protection under the employment agreement, but Service argued that Com-Co had no protectible interest in clients who were Abplanalp's relatives and friends. Abplanalp thereafter sold insurance to a number of relatives and friends he had known before he began working for Com-Co. He refused to sell insurance to several persons who sought to purchase insurance from him, because he met them while he was working for Com-Co, and therefore he considered them Com- Co's protected clients. He met his wife while working at Com-Co, so he refused to sell her insurance.

Com-Co sued Abplanalp for breach of the restrictive covenant and Service for inducing the breach. Com-Co claimed about $36,000 in actual damages and sought $100,000 in punitive damages. The court referred the case to arbitrators, who awarded Com-Co a net of $1,232.86. Com-Co rejected the award.

The parties moved for summary judgment, supporting their motions with transcripts of testimony from various witnesses. Com-Co's president swore that more than 80% of Com-Co's customers renewed their policies each year, and the customers stayed with the agency for an average of five years and seven months. Abplanalp identified each of the Com-Co clients to whom he had sold new insurance through Service. He explained how and when he came to know each person listed, testifying that he knew each one before he began working for Com-Co. He presented largely corroborative testimony from the clients. Com-Co presented no contradictory evidence, and it conceded that Abplanalp had the right to sell insurance through Service to members of his family. Abplanalp admitted that he had never sold his friends insurance before he worked for Com-Co.

The trial court found that the testimony of one of the clients, Antonia Addante, showed that she met Abplanalp while he worked for Com- Co. The court found that Com-Co had a protectible interest in retaining her as a client, so it continued the case with respect to her for proof of damages. But the court held that Com-Co had no protectible interest in those customers who bought insurance through Com-Co because they were friends of Abplanalp who knew Abplanalp before he began working for Com- Co. Accordingly, the court granted summary judgment in favor of defendants with respect to all clients at issue other than Addante. The court added that the partial summary judgment was final and appealable. Com-Co promptly appealed.

The trial court's declaration of finality and appealability is not enough, standing alone, to make an order appealable. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 76, 588 N.E.2d 1139 (1992). If the order finally disposed of the rights of the parties on some definite and separate branch of the controversy, then the court's statement of enforceability or appealability makes the order immediately appealable under Supreme Court Rule 304(a). 155 Ill. 2d R. 304(a); see In re Marriage of Schweihs, 272 Ill. App. 3d 653, 662, 650 N.E.2d 569 (1995).

The court's language need not match the wording in Rule 304(a) precisely. "[W]here appeal is sought pursuant to Rule 304(a) from a judgment which defeats a claim or is in the nature of a dismissal, the written finding is sufficient only if it refers to appealability." In re Application of the Du Page County Collector, 152 Ill. 2d 545, 551, 605 N.E.2d 567 (1992).

Here, the court appropriately referred to appealability. We agree with the trial court's implicit holding that the claim regarding Addante is sufficiently separable from the claims concerning the other clients for immediate appeal of the partial summary judgment. We find that we have ...

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