American Employers Group12/10/2002
(not designated for permanent publication)
American Employers Group (AEG) sued Thomas Lentz, Michael Roseland, and Timothy Brotzki (collectively the Defendants), alleging breach of fiduciary duty, fraud, and conspiracy. The district court for Douglas County, Nebraska, granted summary judgment to the Defendants. On appeal, AEG alleges that the district court erred in denying its motion for a continuance pursuant to Neb. Rev. Stat. ยง 25-1335 (Reissue 1998) and sustaining the Defendants' motion for summary judgment.
I. FACTUAL BACKGROUND
AEG, the assignee of Strategic Staff Management, Inc. (SSM), is a California corporation conducting business in the State of Nebraska. At all times pertinent to this action, Lentz was the vice president of SSM, Roseland was the president of SSM, and Brotzki was an employee of SSM responsible for administration and customer service. SSM is an insurance plan sponsor in the business of providing group health insurance, workers' compensation insurance, and payroll and personnel services to a large number of employers in Omaha. SSM contracted with American Medical Security, Inc. (AMS), of Green Bay, Wisconsin, a third-party administrator, to administer its group health insurance for clients and their claims.
According to Roger Ebert, AMS' regional sales manager, as of March 1996, SSM would occasionally bring new clients to AMS. During the initial stages of the contractual relationship between SSM and AMS, SSM set the insurance rates and made the underwriting decisions. Accordingly, SSM would make the ultimate decisions regarding which clients to accept and which to reject. However, in June 1997, when it came time for SSM to renew its contract with AMS, a change was initiated and AMS assumed the sole responsibility for making the underwriting decisions regarding the acceptance or rejection of new clients.
In the fall of 1997, Gottsch Enterprises (Gottsch), consisting of Juniata Feedyard, Gottsch Feeding Corporation, and Gottsch Land Company, became a potential client of SSM. Pursuant to the agreement between SSM and AMS, the individual employees of Gottsch filled out standard health care questionnaires. The questionnaires were then sent to Ebert at the AMS regional sales office in Omaha. After Ebert reviewed the questionnaires, he sent them to AMS' underwriting office in Green Bay. According to Susan White, an underwriter for AMS, the questionnaires were then examined for employees' medical histories and assessed for risk, and it was initially determined that Gottsch was a viable client.
SSM then obtained a group health care insurance application from Gottsch and an individual application from each Gottsch employee. The applications were subsequently sent through the same process as the health care questionnaires, and after review and underwriting, on January 1, 1998, Gottsch was accepted as a client of SSM. As a result of bringing Gottsch in as a client, Lentz received a commission of $9,935.30, Roseland received a production bonus, and Brotzki received a sales commission of $29,995.60.
According to AEG, from January 1, 1998, until February 28, 1999, SSM paid out $211,723.44 in medical insurance claims filed by Gottsch employees in excess of what it received in health insurance premiums. On February 28, SSM terminated its contractual relationship with AMS.
II. PROCEDURAL BACKGROUND
On August 3, 1999, AEG, standing in SSM's shoes as SSM's assignee, filed its amended petition in the district court for Douglas County alleging that the Defendants breached their fiduciary duty and duty of loyalty to SSM, improperly and fraudulently obtained commissions, and engaged in a con
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