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KEIM v. O'BRIEN

DISTRICT COURT, E.D. PENNSYLVANIA


September 23, 1942

KEIM et al.
v.
O'BRIEN et al.

The opinion of the court was delivered by: KALODNER

KALODNER, District Judge.

The issues having come to trial before me on complaint and answer, and having heard the testimony of witnesses and argument of counsel, I make the following

Findings of Fact

 1. The Independence Indemnity Company conveyed all of its assets to International Re-Insurance Corporation (hereinafter called the Insurance Company) on October 31, 1932, and the Insurance Company assumed all liability and contracts of the Independence Indemnity Company on October 31, 1932.

 2. The Insurance Company was duly adjudicated insolvent by decree of the Court of Chancery of the State of Delaware on April 18, 1933, on which date Receivers were appointed for said corporation.

 3. W. F. O'Brien was duly licensed as an insurance agent by the Commonwealth of Pennsylvania for the years 1931, 1932 and 1933.

 4. W. F. O'Brien, Inc. (hereinafter called the defendant), was at all times during the years 1931, 1932 and 1933 a corporation duly organized and existing under the laws of Pennsylvania, and W. F. O'Brien was during such period the president of said company.

 5. On or about April 1, 1931, W. F. O'Brien, for and on behalf of W. F. O'Brien, Inc., entered into an oral contract with the Independence Indemnity Company whereby the latter company authorized W.F. O'Brien, Inc., to write insurance and place insurance policies for the Independence Indemnity Company.

 6. It was agreed by and between the parties that defendant should make a rate of insurance premium on all bus lines and taxicab lines, make all inspection and do all the handling of that type of business, and it was further agreed between the parties that no cancellations would be made by the company but that the cancellations would be made by the office of W.F. O'Brien, Inc., after inspection of the various risks which according to the records of the defendant showed a poor loss ratio.

 7. It was further agreed between the parties that the Independence Indemnity Company would pay to defendant commissions for placing and writing insurance at the following rates on all policies of insurance written for the Independence Indemnity Company directly through the offices of W.F. O'Brien, Inc., and sold or placed by W.F. O'Brien, Inc., with assured. Commission on bus, taxi and passenger carrying business was to be 20%; on surety, 30%; on burglary, 30%; on plate glass, 35%; on workmen's compensation, 17 1/2%; miscellaneous liability, 25%.

 8. It was further agreed between the parties that a contingent commission calculated from the first of the year to the end of the year of 10% on the net profit shown of the business handled directly by defendant through its Easton (Pennsylvania) and Baltimore (Maryland) offices would be paid by the Independence Indemnity Company, to be determined by the company after the deduction of commissions, losses, loss reserve, premium reserve, underwriting losses, taxes, and administration expenses of 15%.

 9. It was further agreed that defendant would act as the United States Agency for the Independence Indemnity Company and supervise whatever insurance was placed on passenger carrying business, including bus and taxi lines, anywhere in the United States, and on such business which was written through any branch offices of the Independence Indemnity Company, said defendant would receive a commission of 7 1/2%, referred to as an "overwriting commission", in return for supervision of such risks.

 10. It was further agreed between W. F. O'Brien, for and on behalf of W.F. O'Brien, Inc., and the Independence Indemnity Company, that in the event that the company cancelled a policy, W.F. O'Brien, Inc., would receive the gross or full commission for the full term of the policy on any business except such as defendant voluntarily cancelled itself, when it would receive only the commission on the earned portion of the premium, and this arrangement was in return for the inspection expense and supervision efforts of defendant throughout the country.

 11. The Insurance Company at no time exercised its right to cancel policies placed by the defendant.

 12. The premiums collected by the defendant were almost entirely paid to it in monthly installments.

 13. It was the defendant's duty to cancel policies for non-payment of premiums.

 14. The premiums on the insurance which the defendant placed were collected by the defendant and deposited by defendant in its bank account and commingled with the other funds of the defendant.

 15. The defendant prior to the receivership from time to time accounted to the insurance company and made remittances on account of the amount due to the insurance company.

 16. At the time of the receivership (April 18, 1933) the defendant had outstanding policies placed with the insurance company in yearly premiums totaling $410,314.31.

 17. At the time of the receivership of the insurance company, the defendant had collected and not remitted premiums totaling $104,584.82 of the outstanding policies.

 18. On September 27, 1934, the defendant executed a proof of claim against the receivership of the insurance company, which it filed on October 1, 1934, with the Chancery Court of the State of Delaware.

 19. The proof of claim filed with the Chancery Court of the State of Delaware contained an itemized accounting between the defendant and the insurance company as of April 18, 1933 (the date of the receivership), and debited the account with commissions on the total outstanding insurance (i.e., $410,314.31) and other charges asserted as due from the insurance company, and credited same with the $104,584.82 in the defendant's hands which it had collected on account of premiums (Finding No. 16), and claimed a balance due from the estate of the insurance company in the sum of $21,097.33. The following is the summary of the defendant's proof of claim as filed in the Delaware Chancery Court:

 W. F. O'Brien Agency Statement of Account with Independence Indemnity Company April 18, 1933 Debit Credit Accrued Commission -- Easton Office (Schedule A) $ 47,297.42 Accrued Commission -- Baltimore Office (Schedule B) 35,250.11 Cash Payments made on Account (Undistributed) 17,188.62 Legal Expenses -- Penna., January 1, 1933 to April 18, 1933 400.00 Contingent Commission for year 1933 9,819.77 United States Agency -- Overwriting Commission -- Public Carrier Business January 1, 1932 to April 18, 1933 (Schedule D) 15,726.23 Amount Collected on Balance of yearly premiums -- Easton Office (Schedule A) 51,503.77 Baltimore Office (Schedule B) 53,081.05 $125,682.15 $104,584.82 Less Credits (Contra Account) 104,584.82 Balance Due W. F. O'Brien Agency $ 21,097.33

19420923

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