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Weir v. Guardian Life Insurance Co. of America

March 30, 2009


The opinion of the court was delivered by: John T. Curtin United States District Judge

This action was commenced by plaintiff William Weir in May 2006 by the filing of a summons with notice in New York State Supreme Court, Erie County. Defendant Guardian Life Insurance Company of America removed the action to this court on the basis of original federal jurisdiction, and plaintiff subsequently filed his complaint (Item 10) setting forth causes of action under the Age Discrimination in Employment Act of 1967 ("ADEA"); 42 U.S.C. § 621, et seq.; the New York Human Rights Law, N. Y. Executive Law § 290, et seq.; and theories of contract reformation. Both parties have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, plaintiff's motion is denied, and defendant's motion is granted.


As alleged in his complaint, plaintiff was born on January 19, 1936. He worked for defendant for many years, beginning in May 1965. His last position was held under a "Field Representative Agreement" entered in February 1995, which provided that defendant "hereby contracts with the Field Representative on a full-time basis to . . . solicit applications for life, health and group insurance" and to perform certain other services for an agreed-upon salary and commissions (Item 10, Ex. A, ¶¶ 1, 4, 5). The Agreement explicitly stated that: "Nothing herein contained shall be construed to create the relation of employer and employee between the Field Representative and the [Guardian]." Id., ¶ 3.

Plaintiff alleges that after developing expertise in executive life insurance benefits through his handling of Guardian's significant clientele in the Western New York area, he became actively involved in addressing insurance issues related to the corporate accountability requirements imposed by the Sarbanes-Oxley Act of 2002. This included review of Guardian policies affected by changes in tax regulations governing "split dollar" life insurance arrangements, which revealed the potential for a significant reduction in plaintiff's income due to the lapse of several policies written for American Precision Industries ("API"). In order to avoid this reduction in his salary, plaintiff elected to terminate the Field Representative Agreement, resign from active status, and enter into retirement status as of June 1, 2004 under a "Special Agreement of Agency" with Alliance Advisory Group, Inc. ("Alliance"), which is one of Guardian's general agencies (see Ceresia Decl., Ex. B, Item 32-9). This agreement, which the parties refer to as the "Retired Special Agent Agreement," specifically states that "Guardian . . . is not a party to this Agreement except to the extent of its endorsement." (Id.).

Plaintiff alleges that shortly after he made the decision to enter the Retired Special Agent Agreement, he discovered that the API policy lapses responsible for the potential reduction in his salary were based on computer error on the part of Guardian. Plaintiff requested that he be reinstated as an active Field Representative, but Guardian refused. According to Armand de Palo, Guardian's Executive Vice President and Chief Actuary at the time, the decision not to allow plaintiff to return to active status was based on language in the Field Representative pension plan which provided that since plaintiff was over the age of 65, retired, and collecting a defined pension benefit, Guardian could not stop paying the pension if he returned to active status (see Ceresia Decl., Ex. B, Item 32-10; Ex. N at § 3.10, Item 32-17 ("If a Member in receipt of a Pension is restored to service as an Employee on or after his Normal Retirement Date, he shall continue to receive the Pension to which he was entitled prior to his restoration to service.")).

On June 28, 2005, plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC"), claiming that Guardian's refusal to reinstate him to active Field Representative status was because of his age (69), in violation of the ADEA (Item 10, Ex. B). He alleged that the decision not to allow reinstatement was made on August 6, 2004 (Id.). In its determination letter dated February 14, 2006, the EEOC dismissed plaintiff's Charge, stating that:

[T]he evidence obtained by the EEOC shows that you were not employed by Guardian Life Insurance Company . . . as an employee but had a relationship with [Guardian] akin to that of an Independent Contractor. Specifically, "(You were) afforded free rein to solicit application anywhere in (your) territory . . . free to lease and operate (your) own office . . . to set (your) own hours . . . to work at home at (your) pleasure . . . to independently contact potential clients . . . bore the risk of loss from (your) business if (you) did not write enough new business . . . [were] responsible for (your) own expenses . . . could se le ct , h ire a n d pay for (your) own clerical assistance . . . and . . . [were] free to develop (your) own sales techniques subject to compliance with state insurance laws." The business interest that is being served by your association with [Guardian] is yours (or Weir Financial Resources, LLC) and not that of [Guardian].

Ceresia Decl., Ex. I, Item 32-16.

Plaintiff then filed this action, setting forth two causes of action for age discrimination under the ADEA, two causes of action for age discrimination under the New York Human Rights Law, and two causes of action for reformation of the Retired Special Agent Agreement (see Item 10). At the conclusion of discovery, defendant moved for summary judgment , urging dismissal of plaintiff's age discrimination claims for essentially the same reasons given by the EEOC----i.e., that plaintiff was not an employee of Guardian for the purposes of the federal and state age discrimination statutes. Defendant also seeks dismissal of the contract reformation claims for the reason that Guardian is not a party to the Retired Special Agent Agreement between plaintiff and Alliance (see Item 32-2).

In response, plaintiff voluntarily discontinued his age discrimination claims and moved for summary judgment on his contract reformation claims. He contends that the evidence obtained through discovery clearly and convincingly establishes that the Retired Special Agent Agreement was premised on a mutual mistake of fact--specifically, Guardian's computer error regarding the split dollar arrangements in the API policies.

For the reasons that follow, plaintiff's summary judgment motion is denied, defendant's summary judgment motion is granted, and the case is dismissed.


I. Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that summary judgment "should be rendered 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." Fed. R. Civ. P. 56(c). Summary judgment is appropriate when, after discovery, it appears that the nonmoving party cannot prove an element essential to that party's case. See ...

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