                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3571
                                    ___________

Janet Clifton,                      *
                                    *
            Appellant,              *
                                    * Appeal from the United States
      v.                            * District Court for the
                                    * Western District of Missouri.
American Family Mutual Insurance    *
Company; American Family Life       *
Insurance Company; American         *
Standard Insurance Company of       *
Wisconsin,                          *
                                    *
            Appellees.              *
                               ___________

                              Submitted: May 18, 2007
                                 Filed: November 13, 2007
                                  ___________

Before MURPHY, HANSEN, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

        Janet Clifton sued American Family Mutual Insurance Company and several
of its affiliates (collectively, “American Family”) for breach of contract. The district
court1 granted summary judgment in favor of the defendants, and we affirm.


      1
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
                                           I.

       In early 1993, Clifton entered into an agent agreement with American Family.
This contract permitted Clifton, as an independent contractor, to operate an insurance
agency in Raymore, Missouri. The agreement required Clifton to deliver policies and
collect revenue for American Family, and allowed American Family to audit the
agency’s books from time to time. Clifton also agreed to maintain records and
“refrain from any practices competitive with or prejudicial to [American Family].”
The contract provided that all records of policies and transactions would be American
Family’s property.

       It is undisputed that for the first two years that the agreement was in force,
either party could terminate the relationship at will. After this two-year period,
section 6(h)(2) of the contract required American Family to give “notice in writing of
any undesirable performance which could cause termination of this agreement if not
corrected.” American Family agreed that once it had given this notice, it would not
“terminate this agreement for those reasons for a period of six months after that
written notice.” The company reserved the right to terminate the agreement without
notice for actions “prejudicial to the company,” or “any other dishonest, disloyal or
unlawful conduct.”

       Beginning in 2001, American Family began receiving an unusually high
number of customer complaints about Clifton’s agency. On October 8, 2002, Doug
Willis, the district sales manager for Clifton’s area, and Gladys Keith, the state sales
director, met with Clifton to discuss the problem of poor customer service at Clifton’s
agency. At this meeting, Willis issued Clifton and her agency a notice of undesirable
performance, in order to satisfy the agent agreement’s requirement of giving notice
before terminating the agreement. The notice cited numerous complaints from
Clifton’s clients. It directed Clifton that she must promptly respond to the needs of
her policyholders, and specified that she must return telephone calls or other requests

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for assistance in a professional and timely manner. The notice placed Clifton’s
agency “on a six-month program, starting October 15, 2002 through April 15, 2003,”
and warned Clifton that “[y]our agency[’s] future lies in your hands.”

       After this notice, between January 1, 2003, and March 2, 2005, American
Family received fifty-one more complaints regarding Clifton’s agency. On January
20, 2005, Clifton had her annual “agency conference” with Zachery Edwards, who
had replaced Willis as the district sales manager supervising Clifton’s agency. At this
conference, Edwards told Clifton that the agency was not meeting its goal of retaining
customers, and that too many of Clifton’s customers were complaining about the
quality of her agency’s service. Edwards warned Clifton that one more complaint
would cause Edwards to issue a notice of undesirable performance. That complaint
arrived during the meeting, so Edwards discussed with his assistant the possibility of
issuing a notice. At this point, Edwards’s assistant informed him that Clifton already
had received a notice of undesirable performance more than two years earlier.
Edwards did not send another letter.

       On March 1, 2005, American Family received a complaint from a customer that
cash payments made to Clifton’s agency were not being credited to his account. The
following day, another customer complained that her insurance was out of force
because of a billing problem, but that she could not reach anyone at Clifton’s agency.
At this point, Edwards’s assistant tried to set up a meeting between Clifton and the
customer. Lori O’Malley, Clifton’s daughter and an assistant at the agency, stated that
she and Clifton would arrive at the office by 2:30 p.m. Feeling that he should
investigate the complaint immediately, Edwards decided that he and his assistant
would visit Clifton’s agency to review her payment records. When the two arrived,
the only employee at the agency was Harold Clifton, Janet’s husband. A disgruntled
customer was waiting to see Janet Clifton, who was not present.




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      Edwards asked to review the agency’s receipt books. At some point, Harold
spoke on the telephone with O’Malley, and told her that Edwards and his assistant had
come to the office to investigate the complaints. O’Malley then called a police officer
she knew and asked for his help with a “situation” at the office. The officer arrived,
along with three other officers, at about the same time that Clifton and O’Malley
arrived. At this point, O’Malley told Edwards that he would need to schedule an
appointment to review the receipt book. O’Malley maintained that she would need
“hours and hours to find” the relevant records, so Edwards would have to return after
O’Malley had sufficient time to uncover them. After being asked to leave, Edwards
and his assistant departed the office.

       In the aftermath of this incident, Edwards suggested terminating the agent
agreement, and his supervisors agreed. On March 7, 2005, Edwards delivered to
Clifton a letter terminating the agent agreement. The letter cited three bases for this
decision. First, the letter described the March 2 incident and stated that Clifton’s
“failure to allow [Edwards] to review the needed records is prejudicial to the interests
of American Family.” Second, the letter stated that Clifton’s agency had “mishandled
customer premium funds,” and had failed to submit “premium monies” to American
Family in a timely manner. Third, the letter recounted that American Family had
“logged numerous service complaints” from Clifton’s clients in recent months,
including Clifton’s failure to return telephone calls in a timely manner, and her failure
to process requested policy changes in a timely manner. The termination letter said
that Clifton’s “failure to provide timely and quality customer service” was prejudicial
to the company.

      Clifton requested an administrative review of her termination by Jeff Burke,
American Family’s vice president for marketing. Burke observed that Clifton had
received a six-month notice of undesirable performance, as required by the agent
agreement, in October 2002, but that American Family “continued to receive customer
service complaints and encountered the premium submittal discrepancy.” He also

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explained that since Clifton’s termination, American Family had received “additional
complaints regarding customers’ inability to reach her and her failure to follow-up on
customer concerns during her tenure as an American Family agent.” Burke
recommended that the termination “stand as requested by field management.”

                                         II.

       Clifton commenced this suit for breach of contract, alleging that the American
Family had terminated the agent agreement without the notice and six-month
probationary period required by the agreement. The district court granted summary
judgment for American Family, holding that the termination provisions of the
agreement did not require cause for termination. Alternatively, the court concluded
that the agreement was terminable at will after the passage of the six-month
probationary period. The district court also noted that Clifton’s refusal to cooperate
with American Family’s investigation “could reasonably be characterized as disloyal”
or “prejudicial” under the terms of the agent agreement. On appeal, Clifton maintains
that the agent agreement required another six-month probationary period before
American Family could terminate the agreement, and that she did not engage in
disloyal or prejudicial conduct. We review the district court’s grant of summary
judgment de novo, taking the facts in the light most favorable to Clifton.

      Under Missouri law, which applies here, courts look only to the contract
language when interpreting the agreement, unless the language is ambiguous. Royal
Banks of Missouri v. Fridkin, 819 S.W.2d 359, 361 (Mo. 1991). In this case, we see
no ambiguity concerning whether American Family was permitted to terminate the
agency in March 2005 based on Clifton’s undesirable performance. Accepting for
purposes of analysis that the notice requirement of section 6(h)(2) of the agent
agreement applies to all undesirable performance by an agent with a tenure of more
than two years, cf. Adams v. Am. Family Mut. Ins. Co., No. 98-15711, 1999 WL



                                         -5-
386913, at *3 (9th Cir. 1999) (unpublished), we agree with the district court that
American Family provided the requisite notice.

       The agreement requires American Family to give notice of “any undesirable
performance which could cause termination of this agreement if not corrected.” The
agreement provides that once notice was given, American Family could not “terminate
this agreement for those reasons for a period of six months after that written notice.”
American Family issued Clifton a notice of undesirable performance in October 2002,
and this notice placed Clifton “on a six-month program” ending in April 2003.
Clifton observes that American Family did not terminate the agreement at the
conclusion of this period, and she contends that it could not terminate the agreement
two years later without issuing another notice. In her view, “any termination resulting
from a six-month notice must be effectuated within a reasonable time after the end of
the [six-month] program,” and there is at least a genuine issue of fact as to whether the
timing here was “reasonable.”

       We see no basis in the agreement to impose this requirement of additional
notice. The contract states only that American Family agreed not to terminate the
agreement based on the undesirable performance of which it gave notice – i.e.,
numerous service complaints and failure to provide timely and professional service
– “for a period of six months after that written notice.” Once notice was given, and
American Family complied with the requirement to withhold action for six months,
the agreement does not forbid American Family to terminate the agreement for the
reasons described in the notice at any time after the conclusion of the six-month
period. At most, the agreement gave agents with tenure of two years the additional
protection of one-time notice that American Family considered particular performance
undesirable, followed by a six-month safe harbor after receipt of that notice. But the
agreement did not guarantee Clifton that if the undesirable performance persisted or
recurred, then she would be given another window of six months to correct the
problem before American Family ended the relationship. Having been notified once

                                          -6-
that American Family considered numerous service complaints regarding failure to
provide timely service to be undesirable and unacceptable performance, Clifton was
entitled to no additional notice before American Family terminated the agreement on
that basis.

        We also see no genuine issue of fact concerning the existence of “undesirable
performance” for which American Family could terminate Clifton’s agreement. The
initial notice of undesirable performance cited “numerous service complaints” from
Clifton’s customers and directed Clifton to respond promptly to the “service needs”
of her clients. When the company decided to end its association with Clifton,
Edwards relied on “numerous service complaints” and Clifton’s “failure to provide
timely and quality customer service.” In upholding the decision, Burke again cited
“customer service complaints” and Clifton’s “failure to follow-up on customer
concerns.” Whether or not each and every customer complaint was well founded,
there is no genuine dispute that the problem with a high volume of service complaints
persisted at Clifton’s agency, and American Family understandably considered that
circumstance to be undesirable and unacceptable, in and of itself. While the Edwards
letter also said that Clifton’s performance was “prejudicial” to the company, Burke’s
subsequent letter specifically cited Clifton’s “undesirable performance” and the
previous notice to her in October 2002. We need not decide, therefore, whether the
contractual provision concerning practices “prejudicial to the Company” supplies a
separate basis that would justify terminating Clifton’s agreement without any notice
whatever.

                                  *       *      *

      For these reasons, the judgment of the district court is affirmed.
                      ______________________________




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