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Individual Healthcare Specialists, Inc. v. Bluecross Blueshield of Tennessee, Inc.

Court of Appeals of Tennessee, Nashville

May 15, 2017


          Session February 21, 2017

         Appeal from the Chancery Court for Davidson County No. 111042III Ellen H. Lyle, Chancellor.

         This is a breach of contract action in which the issues hinge on the meaning of several provisions in the agreement. In 1999 and again in 2009, BlueCross BlueShield of Tennessee, Inc. ("BlueCross") and Individual Healthcare Specialists, Inc. ("IHS") entered into a general agency agreement that authorized IHS to solicit applications for individual insurance policies through IHS's in-house agents and outside "subagents." The commission rates to be paid were stated in a schedule, which was subject to modification by BlueCross. During the first eleven years, BlueCross modified the commission schedule several times and each modification was prospective only. In 2011, BlueCross modified the commission schedule and, for the first time, applied the commission schedule retrospectively. At the same time, IHS determined that BlueCross had been underpaying commissions since 1999. As a consequence, it commenced this action asserting claims for, inter alia, breach of contract and damages, while also claiming it was entitled to recover its attorney's fees based on the contract's indemnification provision. BlueCross denied any breach of contract. It also asserted the statute of limitations defense as a bar to recovering any commissions that accrued more than six years earlier, and asserted that IHS was not entitled to recover its attorney's fees because the indemnification provision did not apply to disputes between the contracting parties. Shortly thereafter, BlueCross terminated the general agency agreement and began paying renewal commissions directly to IHS's subagents instead of paying them to IHS as it had done since 1999. IHS then amended its complaint to assert a claim that BlueCross also breached the agreement by failing to pay commissions directly to IHS. Following a bench trial, the court denied BlueCross's statute of limitations defense on the ground that IHS's claims were "inherently undiscoverable." The court also determined that BlueCross breached the contract by underpaying commissions, by applying the 2011 commission rates for renewals to existing policies, and by failing to pay all renewal commissions to IHS after termination of the general agency agreement. As for damages, the court awarded IHS some of the damages it claimed but denied others on the ground the evidence was speculative. As for IHS's attorney's fees, the trial court considered parol evidence to ascertain the intent of the parties and held that the indemnification provision authorized the recovery of attorney's fees in a dispute between the contracting parties. Accordingly, it held that IHS, as the prevailing party, was entitled to recover its attorney's fees. Both parties appeal. We affirm the trial court in all respects but one, that being the award of attorney's fees. We have determined the trial court erred by considering parol evidence to determine the meaning of the indemnification provision. We also find that the indemnification provision does not apply to contractual disputes between the parties. Accordingly, IHS is not entitled to recover its attorney's fees in this action.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part and Reversed in Part

          E. Todd Presnell, Joel D. Eckert, Edmund S. Sauer, and Junaid A. Odubeko, Nashville, Tennessee, for the appellant, BlueCross BlueShield of Tennessee, Inc.

          Jay S. Bowen and Will Parsons, Nashville, Tennessee, for the appellee, Individual Healthcare Specialists, Inc.

          Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.


          FRANK G. CLEMENT, JR., P.J., M.S.

         In 1999, BlueCross and IHS negotiated and executed a General Agency Agreement ("the 1999 agreement"). This agreement authorized IHS to solicit applications for BlueCross's individual hospital, surgical, medical, and supplemental insurance policies through a network of in-house agents and outside brokers, known as "subagents" or "producing agents." In 2009, BlueCross and IHS renewed their contractual relationship by executing a second agency agreement ("the 2009 agreement") that was substantially similar to the 1999 agreement.

         Pursuant to each of the agreements, BlueCross agreed to compensate IHS and its subagents by paying a commission on sales. BlueCross paid two types of commissions: first year commissions, based on premiums paid in the insurance policy's first year; and renewal commissions, based on renewal premiums paid in subsequent years. Attached to, and incorporated by reference within, the 1999 agreement was a "Commission Schedule, " which set the specific commission rates for first year and renewal commissions for each of BlueCross's insurance products. The commission schedule expressly provided that it "shall be subject to change by BlueCross, " and BlueCross exercised its right to modify the commission schedule under the 1999 agreement on several occasions.[1] Each modified commission schedule contained the following language:

3. This Commission Schedule supplements any previous Commission Schedule you may have received; commissions for products previously sold are governed by the Commission Schedule in place at the time the sale was made.
[BlueCross] reserve[s] the right to modify or change the commission and payment schedules with appropriate notification.

(Emphasis added).

         When the parties entered into their 2009 agreement, they continued to provide for compensation pursuant to a commission schedule which was attached to the contract and incorporated by reference therein. As before, and in pertinent part, the commission schedule included within the 2009 agreement provided that it "supplements any previous Commission Schedule . . ., " and that "commissions for products previously sold are governed by the Commission Schedule in place at the time the sale was made." The 2009 commission schedule also reserved BlueCross's right to modify or change the commission and payment schedules with appropriate notice.

         Further, the 2009 agreement provided that BlueCross would pay all commissions, whether for policies sold by IHS's in-house agents or its subagents, directly to IHS. With respect to policies sold by subagents, IHS would retain a portion of the commission and remit the remainder to the subagent. The agreement stated that "in the event [IHS] is no longer able, entitled or available to receive Commissions, [BlueCross] shall use its best efforts to contract individually with the [subagents] . . . ."

         The 2009 agreement also authorized either party to cancel the agreement "at any time and for any reason . . . upon ninety (90) days prior written notice." Upon termination,

Neither party and no Producing Agent shall have any claim against the other for any alleged loss of prospective profits or commissions . . ., with the exception that renewal commissions for policies with effective dates prior to termination will continue to be paid by [BlueCross].

         Further, the agreement contained an indemnity provision requiring BlueCross to,

indemnify and hold [IHS], as well as its Directors, Officers, and employees, harmless from any and all claims, lawsuits, settlements, judgments, costs, interest, and penalties, expenses and taxes, including but not limited to attorney's fees and court costs, resulting from or arising directly or indirectly out of or in connection[] with, any action or lack of action by [BlueCross] associated with this agreement.[2]

         The 2009 agreement also contained an integration clause which provided as follows:

This Agreement, together with any attached amendments, exhibits and supplements and all referenced schedules and plans constitute the entire Agreement between the parties hereto, provided, however, that anything not specifically set forth herein will be subject to the rules and regulations of the Company as such are issued from time to time. Any prior agreements, promises, negotiations or representations, either verbal or written relating to the subject matter of this agreement and not expressly set forth in this Agreement are of no force or effect. No amendments shall be effective unless in writing and signed by authorized representatives of both parties hereto.

         In February 2010, BlueCross exercised its right to modify the commission schedule listed in the 2009 agreement. Like each prior commission schedule modification, the 2010 commission schedule stated that "commissions for products previously sold are governed by the Commission Schedule at the time the sale was made." Additionally, the new schedule restated BlueCross's right to "modify or change the commission and payment schedules with appropriate notification."

         In May 2011, BlueCross again promulgated a new commission schedule ("the May 2011 commission schedule"). The May 2011 commission schedule stated,

1. This Commission Schedule replaces any previous Commission Schedule you may have received.
5. We reserve the right to modify or change the commission and payment schedules with appropriate notification. Failure to receive this notice will not change its effective date.

(Emphasis added). As can be seen from this language, the May 2011 commission schedule not only changed the commission rate for future policies, but purported to change the rate for renewals of existing insurance policies.

         At about the same time in 2011, BlueCross and IHS discussed the possibility of BlueCross purchasing IHS based on a yet to be determined multiple of IHS's projected annual commission revenue. These discussions prompted James Walker, President of IHS, to project IHS's annual revenue. In the process of designing a computer model to project the revenue, Mr. Walker began to suspect that IHS was being underpaid by BlueCross. After an internal analysis of its records, Mr. Walker concluded that BlueCross had been underpaying commissions owed to IHS since 1999.

         For these reasons, IHS filed this action against BlueCross on July 29, 2011, asserting that BlueCross breached their contract by underpaying commissions and by retroactively reducing its commission schedule. The complaint also asserted claims for unjust enrichment and conversion, and requested an accounting to determine the precise amount of commissions that should have been paid. Further, IHS asserted a claim for attorney's fees pursuant to the indemnity provision in the 2009 agreement, which it claimed applied to disputes between BlueCross and IHS.

         In November 2011, BlueCross advised IHS that it was terminating the 2009 agreement and that, effective February 23, 2012, it would no longer pay commissions on policies sold by IHS's subagents to IHS, but would pay these commissions directly to the subagents. Thereafter, IHS filed an amended complaint to include an allegation that BlueCross had breached the contract by paying commissions directly to IHS's subagents after terminating the agreement.

         Shortly thereafter, IHS moved for partial summary judgment on its breach of contract and indemnity claims. BlueCross opposed the motion. The trial court ruled that there were "no ambiguities in the parties' contract documents" and that IHS's claims involved pure questions of contract, but IHS's interpretation of the contract did not prevail as a matter of law. Therefore, IHS's motion for summary judgment was denied.

         BlueCross subsequently filed a motion for partial summary judgment on IHS's claims contending it was entitled to partial summary judgment on three grounds. It contended the court should summarily dismiss each of the claims asserted by IHS. Further, it contended the statute of limitations barred any breach of contract claims accruing prior to July 29, 2005, and its unjust enrichment and conversion claims accruing prior to July 29, 2008. BlueCross also contended it did not breach the agreements; therefore, IHS was not entitled to damages.

         In its response to the motion, IHS submitted parol evidence to support its interpretation of the agreement. In pertinent part, IHS submitted sworn declarations from three former BlueCross employees who expressed their general understanding that the 1999 agreement would prohibit BlueCross from applying new commission rates to existing policies and would require indemnification for attorney's fees in contractual disputes between IHS and BlueCross.[3]

         After hearing arguments from the parties, the trial court denied BlueCross's motion. The trial court restated its finding that the 2009 agreement was unambiguous; nevertheless, it relied on the declarations of the witnesses to the 1999 agreement to find a mutual intent by IHS and BlueCross for the indemnification provision in the 1999 agreement, and, by extension the 2009 agreement, to serve as a prevailing-party attorney's fees provision. Additionally, the court determined that the declarations showed that the parties intended that the modification of commission schedules would only be done prospectively. The trial court justified its consideration of extrinsic evidence when interpreting the unambiguous contract by relying on the California Supreme Court's opinion in Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co., Inc., 442 P.2d 641 (Cal. 1968), which allows California courts to go beyond the four corners of written contracts to divine the parties' intentions. Id. Additionally, the trial court determined that material questions of fact existed with regard to BlueCross's statute of limitations defense and, therefore, also denied the motion as to that issue.

         The pertinent part of the trial court's ruling on BlueCross' motion for summary judgment reads:

In its 2013 Memoranda and Orders [ruling on IHS's motion for summary judgment], the Court held that the . . . claims [related to (1) the indemnity provision; (2) retroactive reduction of renewal commissions; and (3) direct payment of sub-agents] presented pure questions of contract interpretation, there were no ambiguities, and that the Plaintiffs interpretations did not prevail as a matter of law. Now using these prior rulings, the Defendant asserts that summary judgment should be entered in its favor dismissing the claims.
In opposition, the Plaintiff has provided the Court declarations of three former employees of Defendant. The employees were intimately involved with the negotiation and drafting of the General Agency agreements and addenda, whose construction is at issue here on summary judgment.
The declarations of Defendant's former employees explain the concerns and motivations surrounding the contract provisions on which the Defendant seeks summary judgment. Significant is that the declarations are admissions of the Defendant as the declarations are from Defendant's former employees who were charged with authority for the Defendant on negotiating and implementing these contract provisions.
The declarations of Defendant's former employees assert that the interpretations placed on the contract provisions in issue by the Plaintiff were the interpretation mutually intended and meant to apply by the Defendant at the time the contract provisions were entered into by the parties.
At the time the Court concluded in 2013 that the contract provisions in issue were unambiguous, the declarations of these individuals had not been filed. The Court did not have these admissions showing that the Defendant shared the Plaintiff's intent on the meaning of the contract provisions at the time the contract was entered into.
In 2013, the only argument/explanation provided to the Court for the Plaintiff's contract interpretation was the text. Limited to that, the Court held that the textual construction asserted by the Defendant prevailed. While not unreasonable nor irrational, the Plaintiff's interpretation for the reasons cited by the Court in its 2013 orders did not prevail.
Now the Court has another argument/explanation that the parties mutually intended and agreed to the contract language to having the meaning asserted by the Plaintiff herein. This argument/explanation creates a genuine issue of material fact on whether the parties mutually agreed and intended for the language used in the parties' agreements to express the terms now asserted by the Plaintiff. Accordingly, on these points, Defendant's summary judgment is denied.
As authority for the foregoing conclusion, the Court relies upon Pacific Gas and Electric Co. v. G.W. Thomas Drayage & Rigging Co., Inc. 69 Cal. 2d 33, 442 P.2d 641, 69 Cal, Rptr. 561 ( S.Ct. Cal. 1968), cited in Asare, 1 Cal.App.4th 856, 863 contained in the American Jurisprudence quotation above.

         The case proceeded to trial. At trial, the court heard the testimony of numerous witnesses, including three of IHS's employees and four former BlueCross employees. Over the objection of BlueCross, the trial court permitted these individuals to testify regarding the negotiation of the 1999 agreement.[4] IHS also presented the testimony of two partners from Royalty Compliance Organization ("Royalty") regarding IHS's alleged damages. During the course of discovery, IHS retained Royalty to perform an accounting of BlueCross' records and assess IHS's allegation of underpayment of commissions. At trial, these individuals presented several damage "schedules" based on the results of their audit. They opined that BlueCross had underpaid IHS by nearly $34 million during their 13-year contractual relationship. The damage schedules were based on a line-by-line analysis of data, as well as audit sampling and extrapolation techniques; however, they did not breakdown damages for each cause of action and did not identify which portion of the damages was suffered outside the limitations period.

         On rebuttal following the close of BlueCross's case-in-chief, IHS attempted to introduce two damages exhibits, purporting to breakdown its damages by claim and the amount of damages falling outside the limitations period. BlueCross objected because IHS had not introduced such evidence during its case-in-chief and the trial court excluded the proposed exhibits. However, after trial, the court sua sponte instructed IHS to submit a post-trial submission breaking down its damages by claim. BlueCross objected, arguing that introduction of this calculation after trial would constitute an "improper re-opening of proof"; however, the trial court allowed IHS to submit this evidence.

         On September 3, 2015, the trial court entered a Memorandum and Order of Trial Findings of Fact and Conclusions of Law. Relying on the text of the 2009 agreement and the parol testimony offered by IHS, the court found that BlueCross breached the 2009 agreement by making the May 2011 commission schedule retroactive to the renewal of existing policies and by failing to pay post-termination commissions directly to IHS. The court also held that BlueCross systemically underpaid commissions throughout the parties' 13-year contractual relationship. Regarding BlueCross's statute of limitation's defense, the court held that the discovery rule tolled the statute of limitations defense because the underpayments were "inherently undiscoverable."

         As for damages, the court accepted Royalty's line-by-line damages models and awarded IHS $1, 968, 765 in damages for specified contractual breaches. The court also awarded $142, 735 in prejudgment interest on this award for a total judgment of $2, 111, 500. As for the remaining claims, the court found that Royalty's damage models were based on extrapolation and audit sampling and concluded that the sampling was "not representative." Therefore, these claimed damages were denied.

         The trial court rejected IHS's indemnity claim, holding that the indemnity provision does "not apply to a contract dispute between the contracting parties; it applies to third-party claims." In pertinent part the court reasoned that

[T]he Article VI indemnity text is not unique. Instead, the Article VI indemnity text is very similar and analogous to indemnity provisions precedentially construed by appellate courts, some of which are cited and quoted above. That law governs and decides this issue. Based upon the case law cited above, the Court dismisses the Plaintiff's claim for indemnity.

         The court also dismissed IHS's claims for conversion and unjust enrichment claims as duplicative of its breach of contract claim.

         Thereafter, both parties moved to alter or amend the court's order on various grounds. BlueCross argued, inter alia, that the court mistakenly awarded almost one million dollars in damages for commissions that BlueCross had already paid to IHS's subagents. For its part, IHS asked the court to reconsider, inter alia, its holding that IHS was not entitled to attorney's fees under the indemnity provision.

         On December 22, 2015, the trial court entered an order denying BlueCross's motion in its entirety. As for IHS's motion, the court granted it in regard to the indemnity provision, finding that IHS was entitled to recover its attorney's fees; however, the trial court stated that it would hold the amount of the fees to be awarded in abeyance pending an appeal. Thereafter, the trial court certified its order as a final judgment pursuant to Rule 54.02.

         BlueCross initiated this appeal and it raises the following issues:

1. Whether the Agreement's standard "hold harmless" indemnity provision allows IHS to recover litigation and attorney's fees in this contractual dispute with BlueCross.
2. Whether the Agreement authorized BlueCross to unilaterally adopt the May 2011 Commission Schedule and apply the new commission rates to existing insurance policies.
3. Whether the Agreement permitted BlueCross to pay commissions directly to producing agents after BlueCross terminated its general agency relationship with IHS.
4. Whether Tennessee's six-year statute of limitations bars IHS's breach of contract claims seeking commissions allegedly owed before July 29, 2005.
5. Whether the chancery court mistakenly awarded IHS almost one million dollars in damages that BlueCross previously paid to IHS's subagents and calculated damages based on IHS's post-trial submissions.

         IHS raises the following issues:

1. Whether the trial court erred in declining to award IHS $1.8 million in damages for 2011 and 2012 caused by BlueCross's retroactive reduction of renewal commission rates when IHS provided the trial court with "sufficiently certain" evidence of these damages and the trial court merely had to perform mathematical calculations to reasonably assess these damages.
2. Whether the trial court erred in declining to award its Schedule 6 damages on the basis that these damages were "speculative" when the evidence preponderated against the only alleged fact supporting the trial court's conclusion.[5]

Standard of Review

         The issues on appeal arise from a lengthy bench trial. "In all actions tried upon the facts without a jury, the court shall find the facts specially and shall state separately its conclusions of law and direct the entry of appropriate judgment." Tenn. R. Civ. P. 52.01. If the trial court makes the required findings of fact, appellate courts review the trial court's factual findings de novo upon the record, accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citing Tenn. R. App. P. 13(d)). "For the evidence to preponderate against a trial court's finding of fact, it must support another finding of fact with greater convincing effect." State ex rel. Flowers v. Tenn. Trucking Ass'n Self Ins. Grp. Trust, 209 S.W.3d 595, 598-99 (Tenn. Ct. App. 2006). Our review of a trial court's determinations on issues of law is de novo, without any presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011).


         I. The May 2011 Commission Schedule

         BlueCross contends the trial court erred by holding that it breached the 2009 agreement by unilaterally applying the May 2011 commission schedule to existing insurance policies.

         The resolution of this issue involves the interpretation of a contract. Contract interpretation is a matter of law and, therefore, is reviewed de novo without a presumption of correctness. Ray Bell Const. Co., Inc. v. State, Tenn. Dept. of Transp., 356 S.W.3d 384, 386 (Tenn. 2011). The primary task in interpreting a contract is to ascertain and to give effect to the intent of the contracting parties. Hughes v. New Life Dev. Corp., 387 S.W.3d 454, 465 (Tenn. 2012) (citing Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999); Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975)). As our Supreme Court has explained, the search for the parties' intent should focus on the four corners of the contract, the circumstances in which the contract was made, and the parties' actions in carrying out the contract. Hughes, 387 S.W.3d at 465.

         For example, in Hamblen County v. City of Morristown, the Supreme Court considered a contract dispute between a city and county as to which entity should be permitted to operate two newly constructed high schools. Hamblen Cnty. v. City of Morristown, 656 S.W.2d 331, 335 (Tenn. 1983). The schools were located within the city limits, but pursuant to an agreement between the city and county, construction of the schools was financed by the county and the schools were "leased to the [city] for such time and so long as the same is used for educational purposes for city and county students." However, the contract did not expressly address the issue of which school board would control the schools after construction. Id.

         In ruling on this issue, the Supreme Court explained that the overriding purpose of interpreting a contract is to ascertain the intention of the parties and to give effect to that intention, consistent with legal principles. It further noted:

The court in interpreting words or other acts of the parties puts itself in the position which they occupied at the time the contract was made. In applying the appropriate standard of interpretation even to an agreement that on its face is free from ambiguity it is permissible to consider the situation of the parties and the accompanying circumstances at the time it was entered into-not for the purpose of modifying or enlarging or curtailing its terms, but to aid in determining the meaning to be given to the agreement.

Id. at 333-334 (internal citations omitted) (emphasis added). Additionally, the Supreme Court applied the "rule of practical construction" in determining the intent of the parties. As the court explained,

The rule of practical construction is particularly applicable to this case. That rule, long recognized and applied in this jurisdiction, is that the interpretation placed upon a contract by the parties thereto, as shown by their acts, will be adopted by the court and that to this end not only the acts but the declarations of the parties may be considered. Womble v. Walker, 181 Tenn. 246, 181 S.W.2d 5 (1944); American Barge Line Co. v. Jones & Laughlin Steel Corporation, 179 Tenn. 156, 163 S.W.2d 502 (1942); Sherman v. Cate, 159 Tenn. 69, 16 S.W.2d 25 (1929).

         The rule is stated in Section 235 of the Restatement of Contracts as follows:

"If the conduct of the parties subsequent to a manifestation of intention indicates that all of the parties placed a particular interpretation upon it, that meaning is adopted if a reasonable person could attach it to the manifestation."

Id. at 335 (emphasis added).

         Applying this rule, the court determined that it was "apparent from the conduct of the parties that they intended under the . . . contract that the [city] and its school board should have control and administration of these two high schools." Id. (emphasis added). Specifically, the court found that "for at least ten years following the execution of the contract . . . the parties conducted themselves as though the contract had expressly provided for the city to control and operate the high school system." Id. Therefore, the court held that the contract granted the city the exclusive power to operate and administer the two high schools. Id. at 336.

         Here, the trial court held that BlueCross's retroactive application of the new 2011 commission schedule constituted a breach of the 2009 agreement. In reaching this conclusion, the court considered not only the language of the parties' contract, but also parol evidence from former BlueCross employees. The trial court also relied on the rule of practical construction and Hamblen County. After reviewing the record, we have concluded that the rule of practical construction, as applied in Tennessee, does not authorize the courts to consider what witnesses thought or believed the parties intended when the agreement was being negotiated. To the contrary, the rule of practical construction permits the court to consider the situation of the parties at the time of contracting as well as the acts or conduct of the parties in ascertaining their intent. See Hamblen Cnty., 656 S.W.2d at 335.

         The issue in the present case is whether the commission rates stated in each commission schedule "vested" or whether BlueCross was free to apply the new rates retroactively for renewals on existing policies. Although the 1999 and 2011 agreements do not expressly address this issue, the parties' conduct after each new commission schedule went into effect from 1999 through 2010 reveals the intentions of BlueCross and IHS to apply the rates prospectively only.

         The 1999 agreement provided that IHS would be compensated "as approved and set forth in Addendum: General Agency Goal and Commission, which is attached hereto and incorporated by reference herein." The initial commission schedule listed the various insurance products offered by BlueCross and the commission rates for each product. It also provided that the schedule "shall be subject to change by BlueCross . . . ."

         As authorized by the agreement, BlueCross modified the commission schedule on several occasions: April 2004, June 2005, October 2005, January 2006, December 2006, June 2008, ...

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