*1 1049 caught very Indeed, as- be intrinsic conflict advanced to reasons protecting representing under of himself and Defender acts Public sert his client.” of the favor- of state law because color comparision his activities with of able hold, therefore, a coun We would, public prosecutors, those of for- ty Defender, office is Public whose cre argument tiori, support in favor Pennsylvania statute, ated en under the immunity public is- on the defender joys immunity liability under from sue. Rights Civil Act. pub- are other considerations There immunity vesting Pub- on the First, policy. the desirabili- there is lic not a state crim- lic Defender does leave encouraging ty men and women able adequate rem- inal defendant without an To roles. Defender Public to assume allegedly edy in- at Vindication law. liability, subject counsel defense by rights may vaded asserted federal be cloaking immunity his coun- while post appeal, state conviction direct table, counsel terpart across remedies, corpus federal habeas minutes, recording the of the court clerk Indeed, conceptual petitions. basis judge, presiding and counsel of competency Amendment of Sixth or co-defendant, privately retained narrowly previously constricted counsel discourage court-appointed, would be to Handy, Darcy v. ex rel. United States thoughtful sensitive recruitment Cir.1953), (3d has 203 427 F.2d Complaints under of the bar.. members generously expanded. United bar, Rights Act, the one at like the Civil Moore, supra. States v. special pro usually receive These se. are will district plaintiff. treatment, favorable affirmed. be 519, 520, Kerner, 92 404 v. U.S. Haines (1972). Ex- 30 L.Ed.2d S.Ct. may they patently frivolous, cept where filing payment of a filed without indigents. complaints Unlike fee statutory sounding or in common law tort, public policy dictates inclusion, broadly interpreted in favor COMPANY, OLYMPIC INSURANCE Stengel, rather than exclusion. Valle Plaintiff-Appellant, (3d Cir.1949). To 176 F.2d immunity deny to the Public Defender HARRISON, INC., al., D.H. et liability expose potential him this Defendants-Appellees. recruitment, only discourage would not No. 71-2806. many conceivably encourage but Appeals, United States Court of experienced public to reconsid- defenders Fifth Circuit. present positions. er July 10, 1972. De- Moreover, as stated in the Public Rehearing Rehearing En Banc brief, probable fender’s “the most result Sept. Denied op- of such a decision would be the exact posite of what Both courts want.
the Court and the Public Of- Defender’s representation adequate
fice [seek] proceedings, defendants criminal handling [expeditious]
well rights cases. if a civil suit
from is a unsatisfied clients constant Attorney involved,
threat chilling upon De-
there would be effect
fense Defense Counsel’s tactics. Counsel *2 Redfearn,
Robert Frank Pera- L. J. La., plaintiff-ap- gine, Orleans, New for Stiles, pellant; Kerrigan Deutsch, & Orleans, La., of New counsel. Jr., Schumacher, Carl J. Donald R. Favret, Mintz, Jr., F. Clarence New Or- La., leans, Houser, Franklin D. San An- Lemle, tonio, Tex., Harry Kelleher, B. Kelleher, Kohlmeyer, Matthews & Schu- La., plaintiff macher, Orleans, for New counterclaim-appellee. MORGAN, RIVES, BELL and Before Judges. Circuit Judge: MORGAN, Circuit LEWIS R. diversity Olympic Insur- In this ance terminated its Inc., Harrison, D.H. giving ninety notice as re- without quired juryA found the contract. the contract breached $830,231.33 in dam- awarded Harrison ages. appeal A review of the record on overwhelming, undisputed evi- reveals repeatedly and sub- dence that stantially prior breached the by Olympic. Conse- finding quently, jury’s we hold supported was not sufficient evidence per- excused from formance of the contract. May and Harri- general agency agree-
son entered into act as ment which allowed Harrison to general agent sale of for the policies in four- home insurance mobile signed teen states.1 contract was by Hugh Harrison, president D. Inc. Under owner2 H. D. agreement Harrison the terms business was to solicit percentage return for Although premiums. period of initially required a shorter subsequently time, months have three that Harrison to remit given any Florida, Hugh Alabama, Arkansas, Colorado, owned 99% Kentucky, Louisiana, Inc. Illinois, in H. D. Missis stock Mexico, Missouri, sippi, North New Oklahoma, Carolina, South Carolina Tennessee. Thus, stopped payment. Meanwhile, insur- had month. previously policy December 21 ance sold between determined January 20, example, would not withdraw from mobile home insur- Olympic until be forwarded to business. Pursuant that deci- have to provided April sion 20. The June wrote that, stated is our either terminate “it de- *3 by agreement, any sending writing reason, sire to for discontinue business your ninety agency party the other notice of effective payment security 1968”. As for cancellation. and his premiums, of the Mr. Harrison Although this was the method ter- separate wife executed a document specifically provided mination for in the they personally guaranteed which contract,3 responded Harrison with a any by premiums owed wrongful designed course of conduct corporate agency Olympic. preserve agency agreement. On inception, relationship its From July Harrison advised Mr. unprofitable Olympic and for unsat- Olympic that he and Mrs. Harrison were isfactory first to Harrison. Harrison unilaterally cancelling personal their Olympic complained to about guaranty given part adjusting paying and method losses agency of the consideration for con- damage. for claims mobile home tract. Harrison then informed favorably Olympic act When failed to on Olympic by July letter dated complaint, this deliberate- Mr. Harrison immediately that he intended to cancel ly approximately $50,000.00 in withheld existing policies all insurance written
premiums
Olympic on
which were due
for
Harrison.
this threat
If
response, Olym-
In
December
1967.
out, Olympic
had been carried
would
pic
representative
dispatched
who met
a
obligated
portions
have
refund
Orleans,
in New
Lou-
with
Harrison
premiums
poli-
on the cancelled
par-
After
isiana.
some discussion
Finally,
cies.
Harrison withheld
ties
and Harri-
settled their differences
premium payment
July 20, 1968,
due on
paid
past-due
son
monies. which meant
total amount
April
1968, Olympic
$158,000.00.
In
discovered
owed
exceeded
selling
that Harrison
had been
conduct,
As a result
this
years,
policies having
term
seven
filed suit
in federal district
court
only
year’s pre-
remitting
and then
one
past-due premi-
Louisiana to recover
miums of
Harrison
accom-
enjoin
and H.
ums and
plished
by falsifying endorse-
this feat
cancelling
Inc., from
policies
copies
ments on the
sent
policies.
Shortly thereafter,
Nevertheless,
dis-
representatives
practice at
insistence
continued this
Orle-
in New
and
met
Olympic,
remained
and the contract
attempt
compromise
ans
their
in force.
meeting
Harri-
At the
differences.
20, 1968,
On
issued a
that he had
June
stated
transferred
pay-
corporation,
$50,452.49
check
out
for
assets
just
premiums
due,
but when an of-
the insurance
parties
Olympic attempted
Despite
ficial of
to cash
statement
shell.
check,
partial
set-
Mr. Harri-
at least a
he was
to reach
informed
were able
complete
provided
liability
party
any
termination clause
of either
party
occurring prior to the
for actions
as follows:
Agreement may
Agreement, and all
be terminated
of this
“This
days (90)
upon ninety
payments
continue
such
shall
either
payable
party.
with
written
the other
No
accordance
notice to
termination,
Agreement.”
however,
such
terminates
longer
recognize
gave
a check
would no
Harrison as
tlement.
premi-
agent.
hearing
past-due
adjourned;
for the total
amount
ums,
Olympic proceeded
furnished
with its
to re-
suit
including
premium payments,
busi-
which stated that
cover
letter
relationship
payments
continue
ness
those
which Harrison failed to
(Harrison’s)
is now
that “Your
account
make on
and October
current”.
January
21, 1969,
the district
granted Olympic’s
draft a
motion
sum
agreement
signed
compromise
mary judgment,
to be
and held that Harrison
Olympic $302,755.63
date.
owed
executed at
later
agreement
compromise
on insurance
Harrison.
presented
not The
he would
court also held that Mr. and Mrs.
to Mr.
personal
sign
guaranty
continued
was bind
because
*4
pre-
ing,
personal guaranty
personally
he had
the
which
that
stood
liable
attempt
Then,
Olympic
corpora
viously
to
for the debts of the
renounced.
insisting
Olympic
stop
reason,
the
on
tion.
For
which
are
some
we
force
personal guaranty,
determine,
refused
Mr. Harrison
unable to
the district court’s
premium payment
granting summary judgment
order
was
to make the
Although
February
appealed
20,
to this court on
came due on
payment
7,
finally
adju
made this
1969 —before there had been an
1968,
days later,
September 5,
on
dication
counterclaim
sixteen
pushed
against
propriety
Olympic
apparently
far
had
While the
Olympic
being
enough.
September
4th,
judgment
summary
the
was
level,
appellate
complaint
court
at
various
in district
considered
the
amended its
yet being
Au-
the
default on
motions
in the dis
to include Harrison’s
filed
regard
gust
payment.
filed
Harrison then
court in
to the counterclaim.
20th
trict
alleging that
on
This court
a final decision
a counterclaim
rendered
conspired
6, 1969, which,
effect,
systematically
breach
October
in
af
had
agency agreement.
granting
summary judg
firmed
Olympic In
the district court.
judge
hearing
the district
before
At
Harrison,
Incorpo
surance Co.
v. H.
1968,
September
18,
Harrison
on
rated,
1969,
5
F.2d 669.4
Cir.
418
testified that
stand and
took the witness
pending in
had been
counterclaim
Harrison
The
remained
assets
the fixed
corporation and
out of the
transferred
district
until December
court
that
“doubted”
that he
an amend-
filed
Sep-
premium payments due on
meet
time,
ment and
the first
asserted
hearing
20. The
20 and October
tember
Olympic had
breached the
that
Sep-
on
resumed
and then
was recessed
ninety days
by failing
give
be-
notice
again took
tember 20th.
open
in
court
fore
that
check
the stand and testified
September 20,
Har-
amended
1968. The
day
on that
before
rison
was tried
counterclaim
today’s
At this
“go
mail”.
out in
for Harri-
jury
which returned
verdict
open
in
point Olympic advised Harrison
$830,231.33. The
amount of
in the
agency
ter-
was
court
answering
jury
verdict
its
reached
immediately, and that
minated
technically
appeal
Although
dis-
its
reinstated
In this
opinion
missed,
appeal
from
it
is clear
for failure
dismissal of the
earlier
,
12(c)
decision
comply
this court’s
Fed-
of the
F.2d 669
with Rule
418
Appellate
the effect
and had
the merits
Procedure.
See
went
eral Rules
grant-
affirming
order
district court’s
In-
H. D.
Ins.
Co.
summary judgment
ing
corporated,
F.2d 973.
5 Cir.
413
interrogatories,
Olympic being
principal
first of which
three
and Har-
being
agent.
follows:
rison
you
agent
“1. Do
from
find
evidence
“When an
obli-
breaches his
gation
principal,
in this case that
Insur-
to the
or threatens
justified
may
principal
it,
breach
terminate
terminating
agency
its
relation-
breach must
ship
regarded
H. D.
Incor-
be one that can
as serious
porated
justify
1968?
termination.
failure or
Answer_Yes
neglect
agent,
or NO. No.”
or the threatened
obligation,
violation of his
must be
After
the verdict
moved for
significant
relate
district court de-
n. o.
important duty
princi-
to some
nied
motion and
entered
pal
agency.”
under the
appeal
favor
Harrison.
This
fol-
lowed.
The record before us reveals
Har
sepa
rison
breached
contract on nine
theAt
outset we note that
the essence
rate occasions between December
finding
jury’s
was that
September 18,
1968. None
binding obligation
had a
was denied
Harrison.
notify
ninety
Indeed,
himself admitted
cancelling
before
the contract.
on cross-examination
that he
en
appeal
contends on
evidence
gaged
wrongful
alleged
in the
conduct as
*5
the record will not sustain such a find-
by Olympic.
summary
A
Harri
ing ;
agree.
and we
during
son’s conduct
reveals
that
the
period
attempted
ten-month
he
with
applied
is,
to be
law
here
personal guaranty;
his
draw
he trans
course,
that of the
of Louisiana.
State
corporation;
ferred assets out
the
he
1938,
R.
Tompkins,
Erie
Co. v.
304 U.S.
length
falsified the
of terms on insur
64,
817,
58 S.Ct.
1188. Similar
L.Ed.
policies;
he
all
threatened to cancel
jurisdictions,6
recog
to other
Louisiana
existing
policies;
and he re
principle
party
nizes the
that where one
peatedly
intentionally
pre
and
withheld
substantially
breaches
the
payments
mium
came
as
due under
party
other
to it has a defense
and
It
the
is of
that
course true
non-performance.
excuse for
Sullivan v.
and
reached
settle
Carpenter,
105;
La.App.1966, 193 So.2d
August
1968,
on
Rosenberger
Hutchinson,
La.App.
v.
paid
brought
past-due
the
and
604;
1962, 143 So.2d
C. W.&
Construc
up
Harri
its account
date.
Indemnity Co.,
tion Co. v. Travelers
La.
aft
son
breach the
continued to
App.1962,
706;
147 So.2d
See Friedrich
er the
On
settlement.
Grassin,
743;
La.App.1971,
v.
245 So.2d
when the next
Furnishers,
Dales Jewelers
and Home
again
due,
turn
refused to
La.App.1967,
Jones,
Inc. v.
204 So.2d
required
over the monies
the con
126;
McHardy, 1958,
Marek v.
234 La.
At
time
tract.
Mr. Harrison still
689;
Holder,
101 So.2d
Mitchell v.
maintained
that
not
he would
La.App.1951, 51
So.2d 828. This rule
personal guaranty
honor his
which was
clearly expressed
law was
in the district
upheld
agreement by
as a
later
valid
jury:
court’s instruction to the
court.
Insurance Co. Harri
son,
parties
Incorporated,
supra.
“The
have
the
that
Finally, relationship
between
announced
Septem
these
in court on
ber
1968, that
principal
he
corpo
doubted
agent,
that
the
and
with
interrogatories
5. The other
two
read as
“3.
the
What
is
dollar value of the
damages
follows:
sustained
H.
Incorporated?
Incorporated
“2. Did H. D.
$830,231.33.”
damages
sustain
as a
result
termination?
Contracts,
Vol.
6. See
Williston
3rd
or_No.
Ed.,
Answer Yes Yes
1301 and
§
§
Boeing
pay
Shipman,
law.
make
able
ration would
supra.
October.7
and
ments for
Harrison’s violations
aware of
This
is well
very
employed
went
foundation of
busi-
de
must
standard that
relationship
In ex-
ness
with
termining
there was sufficient
whether
press
jury.
violation
a case to
evidence
submit
guaranty
personal
cancelled his
directed verdict
“On motions
intentionally
persisted in
withhold-
notwithstanding
and for
ing premiums
insurance risks which
consider all
verdict
the Court should
By
obligated
bear.
just
that
evi
evidence —not
acts,
these
occurred both before
supports
the nonmover’s
dence which
August settlement, Harri-
light
and after
with
case —but
deprived Olympic of the contractual
most
favorable
inferences
reasonable
being
policies
paid for
opposed
assurance of
party
to the motion.
Olym-
agency.
through
point
If
so
the facts and inferences
If
ninety-days-
pic
complied
strongly
overwhelmingly
in favor
requirement
notiee
believes
that
the Court
of one
agree-
terminating
instead of
not arrive
men could
that
reasonable
forthwith,
have
granting
Harrison would
contrary verdict,
the ment
at a
writing
hand,
proper.
to continue
been free
motions is
yet,
op
And
which bound
evidence
if
there is
motions,
is,
posed
violations of
evidence
constant
that
reasonably
contract, Olympic
weight
quality
rea
such
compensation
doubt
it would receive
sonable and fair-minded men
hold,
might
impartial
undertaken. We
risks
exercise of
law,
conclusions,
these
mo matter of
uncontroverted
reach different
substantial,
denied,
tions should be
jury.
per-
scin
A mere
submitted to
was excused from
*6
insufficient
tilla of evidence
is
contract.
formance under the
jury.
present
question
a
holding,
In
is unneces-
view of this
it
judg
motions for directed verdict
sary
assign-
consider
be decided
o. v. should not
n.
ments of error.
case,
has
better of
which side
of the district court
is
only
granted
should
nor
reversed and
is remanded with
the case
complete
proba
there
a
absence of
is
favor of
directions
enter
support
jury
tive
a
verdict.
facts to
Company.
Insurance
There must be
conflict
substan
jury question.
tial
evidence to create
direc-
and remanded with
Reversed
jury
it
is
function of the
tions.
facts,
as the
finder of the
traditional
weigh
Court,
and not the
conflict
ON PETITION
FOR REHEARING
ing
inferences,
de
evidence and
AND PETITION FOR REHEAR-
credibility
termine the
of witnesses.”
EN
ING
BANC
Boeing Company
Shipman,
(En
5 Cir.
PER CURIAM:
Banc)
374, 375.
411 F.2d
Rehearing
Petition for
In
numerous
is denied
and no
undisputed
panel
member
Judge
of this
were
nor
regular
facts,
by any
active
not controverted
other evi
service
the Court
having requested
only
polled
dence. We can
assume
Court
rehearing
(Rule
banc,
en
jury
in
found that
the breaches
Federal
Appellate
Rules of
Olym
Procedure;
and of
little effect
Local
12)
Fifth Circuit Rule
pic’s
find
Petition
stake
contract.
Such
Rehearing En
ing, however,
Banc
denied.
is
is erroneous as matter
McHardy,
regard
Marek
breach
In
we note that Louisiana
anticipatory
recognizes