     Case: 09-20403     Document: 00511107617          Page: 1    Date Filed: 05/11/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 11, 2010

                                       No. 09-20403                         Lyle W. Cayce
                                                                                 Clerk

AMERICAN GENERAL LIFE INSURANCE CO,

                                                   Plaintiff–Appellee
v.

MICHAEL A. KIRSH,

                                                   Defendant–Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-cv-03696


Before JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges.
PER CURIAM:*
        Michael A. Kirsh, a former agent of American General Life Insurance Co.
(“American General”), appeals the district court’s grant of summary judgment
in favor of American General. Kirsh argues that the district court erred when
it held that his operative contracts with American General obligated him to
repay over $500,000 in commissions from the sale of two life insurance policies.
Alternatively, Kirsh argues that the district court erred when it found him liable
for 100% of the commissions, rather than 50% or 75%.

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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       The district court did not err when it granted summary judgment in favor
of American General. Kirsh’s contracts obligated him to repay 100% of the
commissions on the two relevant whole life insurance policies if the policy
owners exchanged them for term life insurance within three years of the policies’
effective dates. Because the policy owners did so, we affirm the district court’s
grant of summary judgment.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       In 1999, Kirsh began work as a life insurance agent for American General.
Kirsh entered into an Agent Contract and a Master General Agent Contract
(collectively, the “Agent Contracts”) which governed American General’s
obligations to pay commissions to Kirsh for the policies Kirsh sold.1 The Agent
Contracts also obligated Kirsh to repay any “unearned” commissions, service
fees, or agency compensation he received in the event that American General,
for any reason, returned the premiums on the policies he sold to the policy
owners.2
       In 2001, Kirsh sold two American General whole life insurance policies to
Susan Alter and Gerald Schreck (collectively, the “Policies”). The Policies had
a combined death benefit of approximately $11 million and an effective date of
November 1, 2001. American General paid Kirsh $283,311.94 in commissions
plus overrides on each policy for a total of $566,623.88.


       1
        The relevant portions of the Agent Contract and the Master General Agent Contract
are nearly identical.
       2
         Section 4.7 of the Agent Contract, titled “Repayment of Commissions and Service
Fees,” states that “[Kirsh] agrees to repay to [American General] on demand, any unearned
commissions or service fees received by [Kirsh] for, or with respect to, premiums or payments
returned to policy or contract owners by [American General] for any reason.” Likewise,
Section 4.6 of the Master General Agent Contract, titled “Repayment of Compensation,” states
that “[Kirsh] agrees to repay to [American General] on demand any unearned agency
compensation or any agency compensation received by [Kirsh] for, or with respect to,
premiums or payments returned to policy or contract owners by [American General] for any
reason.”

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      Before paying Kirsh’s commissions, American General sent Kirsh two
“Change of Plan to Term Insurance Endorsement Compensation Adjustment
Agreements” (“CPTI Agreements”), which applied to the Policies. The CPTI
Agreements altered Kirsh’s commission repayment obligation and listed a
commission chargeback schedule that would apply if Alter and Schreck
exchanged their whole insurance policies for term insurance policies “pursuant
to” a “Change of Plan to Term Insurance Endorsement” (the “Endorsement”).
Specifically, the CPTI Agreement obligated Kirsh to repay 100% of his
commissions on the Policies if Alter and Schreck exercised the Endorsement
within three policy years, 75% if they exercised the Endorsement within the
fourth, and 50% if they exercised the Endorsement within the fifth. The CPTI
Agreement provided that American General could not recover any commissions
paid to Kirsh if Alter and Schreck exercised the Endorsement after the fifth
policy year.
      Alter and Schreck paid premiums on their policies for the first three years.
During the third year, Alter and Schreck attempted to cancel their policies and
“get their money back.” When they tried to contact Kirsh, however, he avoided
them. Following the third year, Alter and Schreck failed to pay their premiums,
and in September 2005, American General cancelled their policies, which
entitled it to retain all of Alter and Schreck’s payments. After American General
cancelled their policies, Alter and Schreck directly contacted American General.
      In her deposition, Alter testified that Kirsh promised that, under the
terms of their life insurance policies, they would “always” be able to get their
initial investment back and that their money was “never at risk.” This was
untrue under the terms of their policies. Alter also testified that they attempted
to refund their money within the first three policy years, but failed to do so
because Kirsh avoided them. Kirsh does not refute this evidence in his pleadings
or with other evidence of his own.

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       On December 30, 2005, Alter and Schreck entered into a “Settlement and
Release Agreement” (the “Settlement Agreement”) with American General. The
Settlement Agreement permitted Alter and Schreck to exercise the Endorsement
as of November 1, 2004, thus retroactively changing their whole policies to term
policies. American General refunded Alter and Schreck the premiums they paid
up to November 1, 2004, minus the premiums they would have paid had they
purchased term policies instead of whole policies from the outset.
       After returning Alter and Schreck’s premiums, American General
demanded that Kirsh repay 100% of the commissions he received for the sale of
the Policies. Upon Kirsh’s refusal, American General filed suit and withheld
Kirsh’s commissions from his sale of other policies. Kirsh filed a counterclaim,
alleging that American General breached its employment contract with Kirsh
by withholding the unrelated commissions.
       American General filed a motion for summary judgment as to its claims
against Kirsh and as to Kirsh’s counterclaim. The district court granted the
motion, finding that the CPTI Agreements supplemented, rather than replaced,
the   Agent    Contracts,    and    that   both    unambiguously       established     the
circumstances giving rise to Kirsh’s repayment obligations. It also found that
the Settlement Agreement allowed Alter and Schreck to exercise the
Endorsement effective November 1, 2004, and that Kirsh failed to provide
evidence that they either failed to do so or that they did so on any other date.
After finding that Kirsh failed to repay his commissions despite his contractual
obligation to do so, the district court granted summary judgment in favor of
American General and awarded $676,878.89, which included $487,200.24 in
actual damages,3 $36,640.13 in prejudgment interest, $101,451.68 in attorneys’


       3
         This figure represents 100% of the commissions American General paid Kirsh for the
sale of the Policies ($566,623.88) less the amount it had previously recouped from Kirsh
($79,423.64).

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fees, $45,000.00 in attorneys’ fees for an appeal before this Court, and $6,586.84
in costs. Kirsh timely appealed.4
                           II. STANDARD OF REVIEW
       “We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court.” Chaney v. Dreyfus Serv.
Corp., 595 F.3d 219, 228–29 (5th Cir. 2010) (citing Golden Bridge Tech., Inc. v.
Motorola, Inc., 547 F.3d 266, 270 (5th Cir. 2008)).               Summary judgment is
appropriate “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c).
“Factual controversies are construed in the light most favorable to the
nonmovant, but only if both parties have introduced evidence showing that an
actual controversy exists.” Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d
622, 625 (5th Cir. 1998) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc)).
       We review the district court’s evidentiary rulings for abuse of discretion.
Goodman v. Harris County, 571 F.3d 388, 393 (5th Cir. 2009). We will “‘reverse
a district court’s ruling only if it affects a substantial right of a party.’” Id.
(quoting Caparotta v. Entergy Corp., 168 F.3d 754, 755–56 (5th Cir. 1999)).
                                    III. ANALYSIS
       Kirsh’s employment contracts are governed by Texas law. Under Texas
law, “‘[t]he essential elements of a breach of contract action are: (1) the existence
of a valid contract; (2) performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; and (4) damages sustained by the


       4
         The district court also granted summary judgment in favor of American General on
Kirsh’s counterclaim, finding that Kirsh’s employment contract explicitly provided that he
would forfeit all rights to compensation acquired under any contract with American General
if, upon American General’s demand, he withheld any property belonging to it after it returned
premiums to a policy owner. Kirsh does not appeal this judgment.

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plaintiff as a result of the breach.’” Smith Int’l, Inc. v. Egle Group, LLC, 490 F.3d
380, 387 (5th Cir. 2007) (quoting Valero Mktg. & Supply Co. v. Kalama Int’l,
L.L.C., 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.))
(alteration in original). The district court found, as a matter of law, that Kirsh’s
failure to repay his commissions to American General constituted a breach of his
employment contract.
        On appeal, Kirsh advances several arguments. With regard to whether he
breached a contractual obligation, Kirsh argues that (1) Alter and Schreck did
not exchange their whole life policies for term life policies, and thus his
obligation to repay his commissions under the CPTI Agreement never arose; (2)
even if Alter and Schreck wished to exchange their policies, American General
and Alter and Schreck failed to satisfy all the conditions precedent to exercise
the Endorsement, and therefore his obligation to repay his commissions upon
American General’s repayment of premiums “pursuant to the Endorsement”
never arose; (3) American General has not, as a matter of law, established that
it properly attached the Endorsement to the Policies; and (4) the CPTI
Agreements superceded the Agent Contracts, and thus American General could
not recover under those previous agreements. In the alternative, Kirsh argues
that if an exchange from whole to term policies took place, it took place in policy
year five, which entitles American General to recover only 50% of his
commissions. Finally, Kirsh argues that the district court erred by overruling
his objection to American General’s summary judgment evidence.
A.      Breach of Contract
        The Endorsement, an agreement between American General and Alter and
Schreck, provides that “[t]he plan of insurance may be changed to a term
insurance plan as of the original Date of Issue,” so long as Alter and Schreck
satisfy certain conditions.      Additionally, the Endorsement states “[t]his
endorsement has been added to and made a part of the policy to which it is

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                                       No. 09-20403

attached.” The CPTI Agreement between Kirsh and American General states
that if Alter and Schreck exchange their plan of insurance “pursuant to the
Endorsement,” then Kirsh must repay 100% of his commissions if the exchange
occurs within the first three policy years, 75% if it occurs during the fourth, and
50% if it occurs during the fifth.
       1.     Exchange of Policies
       Kirsh first argues that Alter and Schreck never actually exchanged their
whole life insurance policies for term policies.5 He cites Alter’s testimony that
she sought to cancel—not exchange—the policy she bought from American
General, and that American General never discussed exchanging her policy at
any time. Without this exchange, Kirsh argues that his obligation to repay the
commissions he made on the sale never arose.
       Kirsh’s argument on this point lacks merit. In front of the district court,
Kirsh acknowledged that, in the Settlement Agreement, American General
subtracted from the refund the amount of premiums that Alter and Schreck
would have paid had they purchased term insurance from the outset. The
Endorsement allowed Alter and Schreck to change their plan “to a term
insurance plan as of the original Date of Issue,” and nothing in the Endorsement
requires Alter and Schreck to maintain a policy with American General to effect
the exchange. (emphasis added). In other words, the Settlement Agreement
memorialized a retroactive exchange from whole to term policies, which the
Endorsement permitted, if not contemplated. We therefore find that Alter and
Schreck exchanged, rather than canceled, their policies.6


       5
         Kirsh makes a remark that American General could not legally issue term insurance
to Alter and Schreck because American General is not licensed to issue policies in New York.
This argument is baseless. American General owns U.S. Life Insurance Company in the City
of New York. The district court took judicial notice of this fact, and did not err by doing so.
       6
        We are not persuaded by Kirsh’s argument that the Settlement Agreement only
“permitted” Alter and Schreck to exercise the Endorsement, and that there exists no evidence

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       2.     Conditions Precedent to the Exchange
       Kirsh next argues that even if Alter and Schreck wished to exchange their
policies to term insurance, the Endorsement subjected their right to do so to
several conditions. Kirsh, however, was not a party to the Endorsement, and
thus has no standing to insist that the parties strictly comply with the terms.
See Sterling Colo. Agency, Inc. v. Sterling Ins. Co., 266 F.2d 472, 474 (10th Cir.
1959) (explaining that an insurance agent “is not a third party beneficiary
under the policy nor in direct privity through the insuring contract”). Because
the Endorsement conditions benefitted American General as the insurer, it was
at liberty to waive them. See Stonewall Ins. Co. v. Modern Exploration, Inc., 757
S.W.2d 432, 435 (Tex. App.—Dallas 1998, no writ). American General allowed
Alter and Schreck to exercise the Endorsement; thus the exchange took place
“pursuant to the Endorsement,” which in turn gave rise to Kirsh’s repayment
obligation under the CPTI Agreement.
       3.     Attachment of the Endorsement
       Kirsh next argues that American General provided no evidence that it ever
attached the Endorsement to the Policies. Kirsh contends that failure to attach
the Endorsement prevented it from becoming part of the Policies, making it
impossible for Alter and Schreck to have exchanged their policies “pursuant to”
the Endorsement. Thus, Kirsh argues that this failure defeats any obligation on
his part to return commissions under the CPTI Agreement.
       Kirsh’s argument on this point lacks merit. The Supreme Court of Texas
has held that “[a]ll endorsements agreed to by the contracting parties should be




that they actually did so. The Settlement Agreement states that, “[p]ursuant to the terms of
the Endorsement, American General shall pay to” Alter and Schreck the difference between
the cost of whole and term insurance for the years in question. It is clear that the parties
crafted the Settlement Agreement because Alter and Schreck were, in fact, exercising the
Endorsement, and not simply to show that American General would permit them to do so.

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attached to insurance policies, but failure to attach them does not invalidate
them.” Fidelity Union Life Ins. Co. v. Methven, 346 S.W.2d 797, 800 (Tex. 1961).
Therefore, American General’s alleged failure to attach the Endorsement is
irrelevant. American General made the Endorsement a part of the Policies, and
when Alter and Schreck exercised it through the Settlement Agreement, Kirsh’s
obligation to repay the commissions American General paid on the sales of the
Policies arose.
         4.   The CPTI Agreement’s Effect on the Agent Contracts
         Kirsh argues that the CPTI Agreement entirely superceded the Agent
Contracts, which provide that Kirsh must repay, “on demand, any unearned
commissions or service fees received by [Kirsh] for, or with respect to, premiums
or payments returned to policy or contract owners by [American General] for any
reason.” Having argued that no commissions repayment obligation arose from
the CPTI Agreements, Kirsh contends that because the CPTI Agreements
superceded the Agent Contracts, no commissions repayment obligation could
have arisen from the Agent Contracts either. Because we hold that Kirsh’s
repayment obligation arose under the CPTI Agreements, we do not address this
issue.
B.       Date of Execution of the Endorsement
         Kirsh also argues that in the event we find that the CPTI Agreement
obligated him to repay the commissions American General paid him on the sale
of the Policies, the district court erred by not limiting American General’s
recovery to 50% of his commissions. He cites the CPTI Agreement’s provisions,
which provide that he must repay 100% of his commissions on the Policies if
Alter and Schreck exercise the Endorsement within the first three policy years,
75% if they do so in the fourth, and 50% if they do so in the fifth. He contends
that the relevant events—namely the signing and funding of the Settlement
Agreement—did not occur until policy year five.

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        The district court did not err when it found that Kirsh owed American
General 100% of the commissions on the Policies. The CPTI Agreement states
“if the plan of insurance is exchanged, pursuant to the Endorsement,” then the
CPTI Agreement’s staggered chargeback schedule applies. (emphasis added).
The Settlement Agreement states that “American General agrees to permit
[Alter and Schreck] to exercise the Policies’ respective [Endorsements] as of
November 1, 2004.” The parties to the Settlement Agreement apparently did not
choose this date arbitrarily; rather, it corresponds with the date on which Alter
and Schreck stopped paying the premiums on their policies.
        Nothing in the CPTI Agreement ties Kirsh’s obligation to repay the
commissions from the sale of the Policies to the date that American General and
Alter and Schreck executed the Settlement Agreement or discontinued their
relationship. We find that Alter and Schreck exercised the CPTI Agreement
effective November 1, 2004, and because this date falls within policy year three,
the district court did not err when it held that Kirsh owes American General
100% of his commissions on the sales.7
C.      Summary Judgment Evidence
        Kirsh also argues that the district court erred when it overruled his
objections to evidence filed by American General in support of its motion for
summary judgment. Kirsh specifically takes issue with the testimony of Mark
Childs, American General’s designated Rule 30(b)(6) representative, who
testified that Kirsh’s commissions became “unearned” when American General
had to repay Alter and Schreck’s premiums.                    He contends that Childs’s



        7
           Kirsh’s argument that November 1, 2004 falls within policy year four also lacks merit.
Connecticut law governs the Policies, and provides that “where a period of time is to be
calculated from a particular date or event, the day of such date or event is excluded from the
computation.” Comm’r Transp. v. Kahn, 811 A.2d 693, 698 (Conn. 2003) (citation omitted).
Therefore, because the Policies had an effective date of November 1, 2001, November 1, 2004
still fell within policy year three.

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testimony incorrectly stated the law, invaded the district court’s province to
decide legal issues, and was factually conclusory.
      Kirsh’s arguments regarding “earned” versus “unearned” commissions
relate to the language in the Agent Contracts, which obligates Kirsh to repay,
“on demand any unearned agency compensation or any agency compensation
received . . . for, or with respect to, premiums or payments returned to policy or
contract owners by” American General. We have held, however, that Kirsh’s
repayment obligations arose from the CPTI Agreement, and not from the Agent
Contracts.   We therefore do not address this issue except to note that our
adjudication of this case on other grounds renders harmless any alleged error in
admitting this testimony. See Goodman, 571 F.3d at 393 (stating that the court
will reverse a district court’s evidentiary ruling “only if it affects a substantial
right of a party”) (citation and internal quotation marks omitted).
                              IV. CONCLUSION
      The district court did not err when it found that Alter and Schreck
exercised the Endorsement, which gave rise to Kirsh’s obligation to repay his
commissions from the sale of the Policies to American General. Additionally, the
district court did not err when it found that the exchange took place within
policy year three, obligating Kirsh to repay 100% of his commissions. Therefore,
we affirm the district court’s grant of summary judgment in favor of American
General.
      AFFIRMED.




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