                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                APR 9 1999
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 JAMES M. AUSTIN, doing business as
 MIKE AUSTIN, an individual,

          Plaintiff-Appellant/Cross-Appellee,
 v.

 STATE FARM MUTUAL
 AUTOMOBILE INSURANCE CO.;                             Nos. 98-5026, 98-5041
 STATE FARM LIFE INSURANCE CO.;                       (D.C. No. 96-CV-985-C)
 STATE FARM FIRE AND CASUALTY                      (Northern District of Oklahoma)
 CO.; STATE FARM GENERAL
 INSURANCE CO., insurance
 corporations,

          Defendants-Appellees/Cross-
          Appellants.




                               ORDER AND JUDGMENT*


Before EBEL, Circuit Judge, MURPHY, Circuit Judge, and McWILLIAMS, Senior
Circuit Judge.


      On October 25, 1996, James F. Austin, doing business as Mike Austin (“Austin”),

filed a petition in the District Court in and for Tulsa County, State of Oklahoma, naming



      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3
as defendants State Farm Mutual Automobile Insurance Co., an Illinois corporation, and

three other related corporations (“State Farm”). In that petition, Austin asserted seven

causes of action against State Farm.

       The first cause was for breach of contract. In that claim Austin alleged that he and

State Farm entered into an agency agreement which provided, inter alia, that State Farm

would not assert, or seek to assert, control over Austin’s daily activities, and that as an

independent contractor Austin would have full control of his daily activities. The

agreement further provided that no change or modification of the terms thereof could be

made except by agreement in writing and signed by an authorized agent of State Farm and

accepted by Austin. In that same first cause of action, Austin went on to allege that State

Farm had breached the foregoing provisions of their agreement by requiring Austin to

“personally” reinspect, or otherwise dictating the mode and manner of reinspection, of all

“structures,” including automobiles, which were insured by State Farm through Austin’s

agency. Austin sought damages, in an unspecified amount, for State Farm’s breach of its

promise not to regulate his “daily activities.”

       In a second cause of action, Austin claimed a wrongful termination of his

agreement with State Farm to act as its agent. The third cause of action was for breach of

the duty of good faith and fair dealing. The fourth cause was for breach of fiduciary duty.

The fifth was based on constructive fraud and the sixth for prima facie tort. In his

seventh and last cause of action, Austin requested immediate injunctive relief. Austin


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then asked for judgment against State Farm in an amount in excess of $100,000.00 and

exemplary damages in an amount in excess of $10,000.00, plus injunctive relief.

       The action was apparently thereafter removed from state court to federal court,

although there is no removal order in the record before us. 29 U.S.C. § 1332 (1993). In

any event, State Farm filed its answer in the United States District Court for the Northern

District of Oklahoma. By its answer, State Farm either admitted or denied all of the 50

paragraphs of allegations in Austin’s petition, and also asserted five affirmative defenses.

       After extensive discovery by both parties, State Farm filed a 25-page motion for

summary judgment, to which Austin filed a 63-page response, and attached to the

response were hundreds of pages of depositional excerpts and other exhibits. State Farm

thereafter filed a reply in support of its motion for summary judgment.

       It was on this general state of the record that the district court granted State Farm’s

motion for summary judgment and entered judgment for State Farm and against Austin on

all of his claims. Subsequent thereto, State Farm filed a motion for an award of attorney’s

fees in the amount of $148,842.50. Austin filed a brief in opposition to State Farm’s

motion for attorney’s fees. The district court denied State Farm’s motion for attorney’s

fees, whereupon Austin appealed the order of the district court granting State Farm

summary judgment (No. 98-5026) and State Farm cross-appealed the district court’s

denial of its motion for attorney’s fees (No. 98-5041). We now affirm both judgments.

       In its order granting State Farm’s motion for summary judgment, the district court


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noted, at the outset, that the agency agreement signed by Austin and State Farm provided

that “You or State Farm have the right to terminate this agreement by written notice

delivered to the other or mailed to the other’s last known address.” The district court

went on to note that although Austin, under the agreement, was an “independent

contractor” and as such, in full control of his daily activities, State Farm in the same

agreement retained “the right to prescribe all policy forms and provisions, premiums, fees

and charges for insurance; and rules governing the binding, acceptance, renewal, rejection

or cancellation of risks, and adjustment and payment of losses.” The court then

recognized that a dispute arose between Austin and State Farm when the latter proposed

to change company policy regarding issuance or reissuance of automobile insurance, but

nonetheless concluded that under the agreement State Farm had reserved the right to

prescribe company rules regarding issuance of policies. The district court then held that

under the circumstances Austin’s termination was not in violation of the agreement and

that Austin had failed to make a sufficient showing that his termination was in bad faith.

       In denying State Farm’s motion for attorney’s fees, the district court rejected State

Farm’s contention that it was entitled to attorney’s fees under Okla. Stat. tit. 12, § 936

(1988), concluding that Austin in his petition was not making claims, as such, for “labor

or services.” In thus concluding, the district court cited Russell v. Flanagan, 544 P.2d

510 (Okla. 1975).

       We agree with the district court’s disposition of each of the two matters, and


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therefore affirm.

       On appeal, counsel states that all of Austin’s claims are based, in essence, on State

Farm’s course of conduct that resulted in termination without just cause and that the

evidentiary matter before the district court on motion for summary judgment was such

that “a fair minded jury” could have returned a verdict in his favor on all, or at least some,

of his claims and that summary judgment was therefore improper. We disagree. Under

the agency agreement between the parties, State Farm, as the principal, reserved the right

to establish company policy. It is undisputed that when Austin resisted a proposed

change in company policy, a genuine dispute arose and culminated in his termination, as

provided for in the agreement. (As we understand it, Austin did receive, and accepted,

certain termination benefits.) Counsel’s suggestion that State Farm’s course of conduct

was not in good faith, and violative of its fiduciary duty, is just that, a suggestion, and

does not find any real support in the record. Without belaboring the matter, we hold that

the district court’s grant of summary judgment in favor of State Farm was proper, given

the record then before the court. In so doing, we reject counsel’s suggestion that Doyle v.

Kelly, 801 P.2d 717 (Okla. 1990) and Hall v. Farmers Insurance Exchange, 713 P.2d

1027 (Okla. 1985) dictate a reversal in the present case.

       Subsequent to summary judgment, State Farm filed a motion for an award of

attorney’s fees in the amount of $148,842.50. In so doing, State Farm relied on Okla.

Stat. tit. 12, § 936 (1988), which provides as follows:


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              In any civil action to recover . . . for labor or services, unless
              otherwise provided by law or the contract which is the subject
              of the action, the prevailing party shall be allowed a
              reasonable attorney fee to be set by the court, to be taxed and
              collected as costs.

       State Farm argues that Austin’s petition filed in a state court of Oklahoma was one

for “labor or services,” and that since it prevailed it was entitled to attorney’s fees. The

district court, citing Russell v. Flanagan, supra, held that Austin’s petition was not one

for “labor or services,” and that, accordingly, Section 936 was inapplicable. We are not

inclined to disturb the district court’s understanding of Oklahoma law. In Russell, the

Oklahoma Supreme Court denied attorney’s fees in a case where the plaintiff brought an

action for breach of warranty. In so doing, that court stated that “[w]hile this may be an

action collaterally concerning labor or services, it is not a civil action for labor or services

within the meaning of the statute, and § 936 is, therefore, inapplicable.” Id. at 512. In

this regard, we do not find the phrase “labor or services” mentioned anywhere in Austin’s

petition. The core of Austin’s petition is his claim for an alleged breach of the agency

agreement and his wrongful termination as an agent for State Farm.

       Judgment affirmed.

                                            ENTERED FOR THE COURT



                                            Robert H. McWilliams
                                            Senior Circuit Judge



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