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December 16, 1958

L. E. WOLK, Plaintiff,

The opinion of the court was delivered by: GOURLEY

In this suit for commissions allegedly due for solicitation of Group Life, Hospitalization, Health and Accident Insurance from the membership of the Furniture Club of Pittsburgh, defendant's motion for summary judgment presents this question:

Whether a person who has engaged in the sale of Group Life Insurance in behalf of an insurance carrier, who is licensed by the Pennsylvania Insurance Commissioner to act as an insurance broker, but who has not been specifically certified to act as an insurance agent for the carrier has, as a matter of law any standing to sue for damages caused by the carrier's alleged breach of contract to issue group life insurance to a subscribing club whose membership has been solicited by said person.

 Although defendant's motion is also directed at plaintiff's suit for commissions relative to his efforts in securing subscribers for Hospitalization, Health and Accident Insurance, I find no basis to entertain the motion as to these latter categories of subscription since it is not disputed that plaintiff is not required to be specifically certified as an insurance agent for defendant in solicitation of Hospitalization, Health and Accident Insurance.

 I am satisfied that a genuine factual dispute exists as to whether plaintiff was acting as agent for defendant in the solicitation of Group Life, Hospitalization, Health and Accident Insurance for the purpose of insuring members of the Furniture Club of Pittsburgh.

 The issue, therefore, is confined to the single determination of whether partial summary judgment should be granted on plaintiff's suit for commissions as they relate solely to the solicitation of life insurance based upon plaintiff's failure to be certified by defendant carrier in accordance with Pennsylvania law.

 The discussions and negotiations preceding the formulation of the group plan in question, which is embodied in the booklet printed by defendant and on which is imprinted plaintiff's agency, occurred over a considerable period of time, commencing in January of 1956, at which time plaintiff filed with one Cherne, representing the defendant, a roster of the club membership and birth dates.

 Thereafter, the Home Office of the insurer notified Cherne of the commission arrangements for the divers types of insurance.

 An application was signed by the duly authorized officers of the Furniture Club of Pittsburgh, Inc., on April 5, 1956, following which Cherne notified the plaintiff by letter explaining one of the phases of coverage, but on September 18, 1956 notified plaintiff that defendant refused to issue coverage under such group plan.

 Defendant's position as it relates to life insurance advances the thesis that by virtue of the terms of the Insurance Department Act of 1921, 40 P.S. 1 et seq., it is unlawful for an insurance broker or any other person to solicit life insurance risks or to aid in obtaining life insurance for another unless he has been certified by the carrier in question and licensed as an insurance agent for that carrier by the Insurance Commissioner. 40 P.S. 232, 233, 234. *fn1"

 It is not in dispute that plaintiff was licensed as an insurance broker pursuant to Pennsylvania law. *fn2"

  Plaintiff further admits that his license as an insurance broker is not inclusive of the requirement of certification on behalf of a specific life insurance company for which risk insurance is being secured.

 Nevertheless, plaintiff contends that the practice and custom which is indigenous to the life insurance business, and is universally practiced by life insurance companies, is for the life insurance company to request an insurance broker's certification from the Insurance Commissioner simultaneously with or subsequent to the sale of such life insurance. That such requested certification originates from the carrier and is a formality once life insurance business has been secured for the carrier. Thus plaintiff has been certified by seven life insurance companies for sale of life insurance, but such certification was made only after life insurance policies had been written in behalf of the respective carriers.

 It would appear, therefore, reasonable to conclude that defendant should not be allowed to invoke a defense based on non-certification, when said certification has been withheld by defendant's own conduct in violation of the custom and general practice of the trade. That plaintiff's failure to be properly certified under Pennsylvania law for the sale of risk insurance in behalf of defendant and the alleged breach of contract are part and parcel of the same transaction.

 I am satisfied, therefore, that a factual dispute exists as to the practice under which certification for sale of life insurance is consummated, and that defendant's motion for partial summary judgment as it relates to plaintiff's suit for damages due for solicitation of risk insurance should be refused.

 Defendant's motion for summary judgment will be refused.

 I shall further direct that counsel for the parties stipulate to all factual matters not in dispute and all matters in dispute on or before January 15, 1959, and that counsel for the parties comply with all terms and conditions of the pre-trial order entered May 23, 1958, and that no deviation be made therefrom without order of court for cause shown.

 An appropriate Order is entered.

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