Northstar v. Collingwood ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
NORTHSTAR BROKERAGE ADVISORY SERVICES, LLC,
An Arizona limited liability company,
Plaintiff/Appellant,
v.
REED P. COLLINGWOOD and TERESA COLLINGWOOD,
husband and wife, Defendants/Appellees.
No. 1 CA-CV 14-0106
FILED 6-2-2015
Appeal from the Superior Court in Maricopa County
No. CV2011-051742
The Honorable Thomas L. LeClaire, Judge
AFFIRMED
COUNSEL
Wong Fujii Carter, PC, Phoenix
By Rick K. Carter, John J. Smalanskas, Susan Larsen, Matthew Klopp
Counsel for Plaintiff/Appellant
Brooks & Affiliates, PLC, Mesa
By David Paul Brooks, Spenser W. Call
Counsel for Defendants/Appellees
NORTHSTAR v. COLLINGWOOD
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.
O R O Z C O, Judge:
¶1 Northstar Brokerage Advisory Services, LLC (Northstar)
appeals the trial court’s grant of Reed P. and Teresa Collingwood’s motion
for summary judgment. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2000, Northstar became affiliated with LifeUSA/Allianz
Life Insurance Company (Allianz) as a Field Marketing Organization
(FMO). Reed Collingwood was an Allianz agent responsible for
supervising Angel Ayala. In that capacity, Collingwood received
“overrides” on commissions paid on policies Ayala wrote.
1
¶3 Allianz’s Commission Guidelines provided that Allianz
could charge an agent’s account, in a process referred to as a “chargeback,”
for commissions paid on a policy if Allianz refunded premiums to a policy
holder. The guidelines further provided that commissions paid to
superiors as overrides on policies agents produced would be subject to
chargebacks when the agent’s commissions were subject to chargebacks.
¶4 Collingwood’s status ultimately was changed from an agent
to an Associate Field Marketing Organization (AFMO). As an AFMO,
Collingwood served as intermediate management between agents and the
FMO. There was no written contract between Northstar and Collingwood,
but there was a purported oral agreement whereby Northstar paid
Collingwood commission overrides on policies he and his agents sold, and
Collingwood agreed to pay Northstar commission chargebacks when
policies were terminated.
¶5 Several Allianz policy holders sued Ayala and Allianz to
recover premiums they paid. As a result, Allianz canceled or rescinded
policies and refunded premiums to policy holders on several policies in
1 An override is a small portion of an agent’s commission paid to the
agent’s superior in what the parties refer to as the “retail hierarchy.”
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NORTHSTAR v. COLLINGWOOD
Decision of the Court
November 2005. Allianz assessed commission chargebacks to Ayala and
also attempted to recover them from Collingwood pursuant to an AFMO
Addendum to Collingwood’s employment contract with Allianz.
¶6 The AFMO Addendum was a purported agreement whereby
Allianz appointed Collingwood as an AFMO “based on [Collingwood’s]
representation to [Allianz] and [Collingwood’s] continuing agreement that
the [FMO] named on the reverse side is the only organization which will
receive override commissions in respect of policies sold by or through
[Collingwood] or [his] agents.” Kim Coulter, Northstar’s Principal, signed
the AMFO Addendum in her capacity as “an officer[] or partner[] of [the]
[FMO].” Collingwood disputes signing the document.
¶7 The AFMO Addendum provided:
This ADDENDUM supplements and is part of the
AGREEMENT between [Collingwood] and [Allianz][.]
. . .
[Allianz] must approve of any of [Collingwood’s] agents who
are appointed as a representative of [Allianz] to sell our
insurance policies . . . All agents recruited and supervised by
[Collingwood] will be contracted through the FMO and
[Collingwood]. [Collingwood] agree[s] to be jointly and
severally liable with the FMO’s Financial Guaranty for such
agents pursuant to their Agent Agreements.
After making multiple demands for payment, Allianz cancelled Ayala’s
contract and notified Collingwood that he had an outstanding debt balance
of $16,776 and that Ayala’s balance of $208,120.62 would also be “rolled” to
Collingwood. In June 2006, Allianz notified Northstar that it would be
“transferring” these debts to Northstar. Allianz withheld $1,500 per week
in commissions from Northstar until the balance was paid.
¶8 In February 2011, Northstar brought this suit seeking, inter
alia, indemnification and/or contribution from Collingwood for the
commission chargebacks Northstar paid to Allianz. In response,
Collingwood argued, “Northstar failed to assert its rights against Allianz.
Northstar’s issue is with Allianz and was not caused by [Collingwood].”
Collingwood also asserted that Northstar’s claims were time-barred.
¶9 The trial court granted summary judgment in favor of
Collingwood and denied Northstar’s Motion for Reconsideration.
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Decision of the Court
Northstar timely appealed, and we have jurisdiction pursuant to Article 6,
Section 9 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.)
sections 12-120.21.A.1. and -2101.A.1 (West 2015).2
DISCUSSION
¶10 We review the grant of summary judgment de novo.
Tritschler v. Allstate Ins. Co., 213 Ariz. 505, 509-10, ¶ 8 (App. 2006). We
review the facts in the light most favorable to the nonmoving party. Tilley
v. Delci, 220 Ariz. 233, 236, ¶ 7 (App. 2009). “We will affirm summary
judgment only if there is no genuine issue as to any material fact and the
party seeking judgment is entitled to judgment as a matter of law.”
Williamson v. PVOrbit, Inc., 228 Ariz. 69, 71, ¶ 11 (App. 2011) (citations
omitted).
I. Contractual Obligations
A. Existence of a Contract
¶11 Northstar first argues the trial court erred by concluding that
no contractual obligation existed between Northstar and Collingwood.
Northstar claims “various agent agreements, Commission Guidelines…and
the AFMO Addendum, all of which required Collingwood to pay for
chargebacks attributable to him and his agents…formed the basis of
Northstar’s indemnity and contribution claims.”
¶12 The trial court concluded that “contractual ‘chargebacks’
existed, if at all, between Allianz and [Collingwood].” We agree. The
Agent Agreement, Commission Guidelines and AFMO Addendum
Northstar relies upon were all agreements between Allianz and
Collingwood. Although Kim Coulter’s signature appears on the AFMO
Addendum, the Addendum only outlines the rights and duties of the
“AFMO” (Collingwood) and the “Company” (Allianz). As a nonparty to
these agreements, Northstar may not enforce the chargeback provisions
against Collingwood. See Lofts at Fillmore Condo. Ass’n v. Reliance
Commercial Constr., Inc., 218 Ariz. 574, 575, ¶ 5 (2008) (“As a general rule
only the parties and privies to the contract may enforce it.”) (punctuation
and citation omitted).
2 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
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Decision of the Court
B. Third-Party Beneficiary Claim
¶13 Alternatively, Northstar contends that it is a “third-party
beneficiary under the contractual hierarchy established by Allianz,”
permitting Northstar to seek “implied indemnity and/or contribution
against Collingsworth insofar as Northstar suffered a loss for which
Collingwood had a contractual obligation to pay.” Essentially, Northstar
contends that because Allianz intended to make Collingwood liable to
Allianz for chargebacks, it also intended to permit any entity “higher in the
Allianz hierarchy” (like Northstar) to seek reimbursement from “anyone
lower in the hierarchy” (like Collingwood).
¶14 The AFMO Addendum benefitted Northstar insofar as it
provided that Northstar was “the only organization which will receive
override commissions by and through [Collingwood] or [his] agents.”
However, an organizational hierarchy, by itself, is insufficient to prove that
Northstar was a third-party beneficiary to Allianz and Collingwood’s
agreements. “For a person to recover as a third-party beneficiary in
Arizona, the contracting parties must intend to directly benefit that person
and must indicate that intention in the contract itself.” Sherman v. First Am.
Title Ins. Co., 201 Ariz. 564, 567, ¶ 6 (App. 2002). “[I]t is not enough that the
contract may operate to the [third party’s] benefit but it must appear that
the parties intended to recognize [the third party] as the Primary party in
interest and as privy to the promise.” Basurto v. Utah Constr. & Mining Co.,
15 Ariz. App 35, 39 (App. 1971).
¶15 Although not explicitly, the AFMO Addendum did note that
Collingwood and Northstar would be jointly and severally liable to Allianz
for Collingwood’s agents under their agent agreements, but there was no
express provision concerning chargebacks, indemnification, or contribution
for Northstar’s benefit. Moreover, there is nothing in the AMFO
Addendum that suggests Allianz and Collingwood, as the parties to the
agreement to which the AMFO Addendum modified, intended to make
Northstar privy to the original agreement. The AMFO Addendum
explicitly “supplements and is part of the AGREEMENT between
[Collingwood] and [Allianz].” Moreover, the AMFO Addendum did not
afford Northstar rights and responsibilities as it did for both Allianz and
Collingwood. Because Northstar was not an intended beneficiary of a
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contractual right to indemnification or contribution, we affirm the trial
court’s ruling on those issues.3
II. Statute of Limitation
A. Applicable Statute
¶16 Northstar argues the trial court erred by not applying the six-
year statute of limitations applicable to claims arising from written
contracts. See A.R.S. § 12-548.A. The trial court determined that the statute
of limitations applicable to all of Northstar’s claims were “either three or
four years based upon implied contractual theories[.]”
¶17 For a claim to be subject to the six-year statute of limitation
under A.R.S. § 12-548.A, “the promise upon which the action is based must
itself be written.” Kersten v. Cont’l Bank, 129 Ariz. 44, 47 (App. 1981); see also
Beane v. Tucson Med. Ctr., 13 Ariz. App. 436, 438 (App. 1970) (“In order for
a cause of action to be founded upon a contract in writing, the instrument
itself must contain an undertaking to do the thing for [the] non-
performance of which the action is brought.”).
¶18 As discussed above, Northstar’s claims are based upon
written contracts entered into by Allianz and Collingwood. Moreover,
those contracts do not contain express provisions requiring Collingwood to
pay Northstar for chargebacks nor do they contain indemnity or
contribution provisions. Thus, Northstar’s claims are not based upon a
written contract within the purview of A.R.S. § 12-548, meaning at most a
four-year statute of limitations applied. See A.R.S. § 12-550.
B. Claim Accrual Date
¶19 Northstar further contends that summary judgment was
improper because there was a factual dispute as to when its claims arose.
Northstar argues its claims arose: 1) June 2008, when Allianz began
3 Northstar also contends that summary judgment was improper
because there was a factual dispute as to whether Collingwood signed the
AFMO Addendum. Because the analysis set forth above assumes that
Collingwood signed the AFMO Addendum, that claim does not present a
genuine issue of material fact preventing summary judgment.
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Decision of the Court
withholding commissions from Northstar; 2) 2011, when Allianz ceased
withholding commissions; or 3) with each withheld commission.
¶20 We agree with the trial court’s finding that the statute of
limitations “begins when the obligation is established, not when payment
begins.” “As a general matter, a cause of action accrues, and the statute of
limitation commences, when one party is able to sue another.” Gust,
Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 588 (1995).
¶21 In this case, the purported causes of action accrued in June
2006, when Allianz notified Northstar that it was transferring Collingwood
and Ayala’s debt. Thus, the statute of limitations expired in June 2010. See
A.R.S. § 12-550. Northstar, however, did not file suit until February 2011
and thus, the trial court properly held that its claims were barred.
III. Attorney Fees and Costs
¶22 Both parties seek their attorney fees and costs on appeal
pursuant to A.R.S. §§ 12-341 and -341.01. In our discretion, we deny
Collingwood his attorney fees. As the prevailing party, he is entitled to his
taxable costs contingent upon compliance with Arizona Rule of Civil
Appellate Procedure 21.
CONCLUSION
¶23 For the foregoing reasons, we affirm the trial court’s grant of
Collingwood’s motion for summary judgment and award Collingwood his
taxable costs on appeal.
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