Summary Judgment in Breach of Contract action defeats $700,000 claim

Gentry Locke for the Defendant

Campbell County Circuit Court

Gentry Locke attorneys Kevin Holt, Amanda Morgan and Glenn Pulley represented a crane, rigging and erection service company in a breach of contract and quantum meruit case.

The plaintiff, a former company vice president, alleged that our client breached a 1994 Split Dollar Life Insurance Agreement that involved $500,000 in life insurance coverage, plus the payment of monthly post-retirement benefits for 15 years based on the policy’s cash value.  The written agreement was terminated pursuant to its terms in 2012, but then was allegedly reinstated in 2013 in a conversation between the company’s founder and board chairman and the plaintiff in which the chairman verbally promised to “make it right.”  The company then bought a term policy of an equal coverage amount and paid the plaintiff monthly payments toward the amount of loans the company had taken against the original split dollar policy (as it was permitted to do).  Three years later, the company terminated the plaintiff’s monthly payments after it discovered that the now-retired former executive was consulting for a competitor.

At the outset, the Gentry Locke team won a Motion Craving Oyer and Demurrer as to the alleged breach of the 1994 written agreement.  The Court permitted discovery on a Plea in Bar of the Statute of Frauds they also filed, but then after discovery and a half-day evidentiary hearing denied the Plea in Bar, ruling that any verbal agreement, assuming there was one that was enforceable, could be performed in a year or less because the plaintiff could have died within that time, causing any agreement to be fully performed.

Having deposed the plaintiff, Gentry Locke attorneys called him as the first witness at the Plea in Bar hearing and got him to make critical admissions that established:  (1) the alleged verbal agreement between himself and a former company officer, who had promised him more in 1994 than what was provided for in the written agreement, was barred by the written agreement’s integration clause;  and (2) there was never any meeting of the minds between the parties that formed an enforceable verbal agreement in 2013 in the “make it right” conversation or, if there was, it violated the written agreement’s written amendment clause.  Following the denied Plea in Bar, Gentry Locke attorneys filed a motion for summary judgment based on the plaintiff’s testimony at the Plea in Bar hearing.

The Court granted the summary judgment motion on both grounds and ruled, as the Supreme Court has, that Rule 3:20 does not bar the use of a plaintiff’s earlier sworn testimony from a plea hearing in support of a motion for summary judgment.

Read the Judge’s opinion letter (PDF)