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June 7, 1983


Appeal from an order of the Circuit Court for Green County, William C. Sachtjen, Judge.

Petition to Review Granted.

Gartzke, P.j., Dykman, J. and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Jackman

Dennis Streiff appeals from an order granting summary judgment to respondent, American Family Mutual Insurance Company, on his claim for "extended earnings" he asserts were due him as its former agent. American Family's refusal to pay Streiff was based on his violation of a restrictive covenant contained in the "Career Agent's Agreement" (Agreement). Streiff argued that the covenant was void. The trial court held that it was enforceable and granted summary judgment to American Family. We affirm.

When reviewing a trial court's grant of summary judgment, this court must apply the same standard of review as did the trial court. Sec. 802.08, Stats. Board of Regents v. Mussallem, 94 Wis. 2d 657, 674, 289 N.W.2d 801, 809 (1980). Summary judgment is appropriate where there are no issues of material fact and the moving party is entitled to judgment as a matter of law.

Both parties moved for summary judgment. This was the equivalent of a stipulation of facts, permitting the trial court to decide the case on the legal issues. Powalka v. State Mut. Life Assurance Co., 53 Wis. 2d 513, 518, 192 N.W.2d 852, 854 (1972). Because there were no issues of material fact, and the trial court correctly determined the question of law at issue, the Disposition of this case by summary judgment was proper and appropriate.

The stipulated facts are as follows: Streiff is an insurance agent in New Glarus. He became an agent for American Family in 1967, and operated primarily in northern Green and southern Dane Counties. A small percentage of his policyholders resided outside this area. American Family terminated Streiff's agency on April 1, 1980. The following day, Streiff solicited his former policyholders to continue to do business with him.

Section 5h of the Agreement between Streiff and American Family provides:

After termination of this agreement, the agent shall refrain from further solicitation of policyholders for the company and from further servicing of policyholders of the company, and, for a period of one year after such termination, anywhere within a radius of 50 miles from the location of the agent's place of business under this agreement on the date of such termination, shall not induce or attempt to induce or cause another or others to induce or attempt to induce any policyholder to replace, lapse or cancel any policy of insurance written by the company.

Section 5i of the Agreement provides that, if an agent is terminated, American Family will pay him or her "as extended earnings, a percentage of the renewal service fees paid him by the company during the twelve-calendar-month period immediately preceding the month during which this agreement is terminated," provided, inter alia, "(3) the agent has complied with all the terms and conditions of this section and of this entire agreement . . . ." Streiff's extended earnings would have amounted to $33,827.

A further section of section 5i of the Agreement provides:

If, while being paid extended earnings, the agent associates himself in any sales or sales management capacity with another insurer engaged in writing any of the kinds of insurance written by the company, and if the agent performs services in any such capacity for such other insurer within any of the States of the United States in which the company operates as a licensed insurer, the agent, from and after the date of such association, shall forfeit all his rights to extended earnings otherwise thereafter payable by the company.

Section 103.465, Stats., provides in pertinent part that "ny such restrictive covenant imposing an unreasonable restraint is illegal, void and unenforceable even as to so much of the covenant or performance as would be a reasonable restraint." Streiff argues that sections 5h and 5i, together, constitute American Family's restrictive covenant and that sec. 103.465, Stats., mandates that both be voided. We conclude, however, that the two sections are completely separate restrictions, and that the admittedly overbroad provisions of section 5i do not invalidate the reasonable and enforceable restrictions of section 5h. Section 5i of the Agreement purports to forfeit future extended earnings of a former agent who engages in the business of insurance sales in any state in which American Family does business. It would cause Streiff to forfeit future extended earnings if he violated it. The condition for operation of such a restriction is "while being paid extended earnings." If that clause were applied, Streiff would be forced out of the business of insurance sales and service so long as he accepted extended earnings.

Although this clause is not expressed as a restriction against competition, its object and effect is that of such a restriction, and it is subject to the statute. Holsen v. Marshall & Ilsley Bank, 52 Wis. 2d 281, 285, 190 N.W.2d 189, 191 (1971). The trial court took the position that since Streiff was never paid any extended earnings, the forfeiture clause did not apply and could be ignored under the circumstances of the case. We conclude that the two clauses are distinct provisions with separate factual bases for their operation. Section 5h is a condition precedent to an agent's right to recover extended earnings. Streiff did not comply with the condition precedent because he induced American Family's policyholders to switch coverage. Section 5i is both a condition subsequent to the right to recover extended earnings, and a condition precedent to their forfeiture. No inquiry is necessary into the validity of ...

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