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JOHN HANCOCK MUT. LIFE INS. CO. v. AUSTIN

February 8, 1996

JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Plaintiff,
v.
BARBARA L. AUSTIN, Defendant.



The opinion of the court was delivered by: HURD

 I. INTRODUCTION

 II. FACTS

 In 1978, Austin went to work for John Hancock selling insurance. Prior to her job with John Hancock, Austin had no experience as an insurance salesperson. Austin worked for the John Hancock branch in Glenville, New York, and commuted from her home located near Fort Plain, New York. She worked for John Hancock for the next fifteen years. In 1993, she was informed that the John Hancock branch in Glenville was closing and the office would be consolidated with the larger branch in Albany, New York. This change of location would have added substantial time and distance to Austin's daily commute to work. On July 22, 1993, Austin informed her manager that she was going to resign. Upon receiving this information, the manager told her that it was not necessary for her to return to work. On July 26, 1993, Austin began working for the Prudential Life Insurance Company ("Prudential") which has an office in Fort Plain, New York.

 Prior to her change of employment, Austin's labor union entered into a Collective Bargaining Agreement ("Agreement") with John Hancock that contained a Covenant Not to Compete ("Covenant"). The Covenant reads as follows:

 
Upon a Marketing Representative's termination or resignation, the Marketing Representative shall not directly or indirectly engage in any of the following conduct nor aid or abet others to do so:
 
1. Retain in his or her possession any Company records, files, manuals, supplies, material and forms nor photostat or otherwise copy same.
 
* * * *
 
3. For a period of two years following such termination, contact any Company policyholder or Annuity Contract holder within the confines of the District where the Marketing Representative was last employed for the purpose of inducing or attempting to induce such policyholder or Contract holder to cancel, lapse, or fail to renew such policyholder's policy(ies) or Annuity Contract(s) with the Company.
 
NOTE: For purposes of this Article, the term "Annuity Contract" shall include Individual Variable Annuity Contracts.
 
Violation of any of the above may be enjoined by any legal means available to the Company. The party who prevails in such litigation shall be entitled recover from the other party all costs and expenses incurred in connection with such litigation including all attorney's fees.
 
* * * *

 Collective Bargaining Agreement, Article XXIV Covenant Not to Compete.

 Upon beginning her new job, Austin sold several new Prudential policies to former customers who canceled their John Hancock policies. Also, Austin allegedly violated Article XVI section 12 of the Agreement which requires former employees to return their John Hancock records upon leaving. *fn1" She did not turn over such records to the ...


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