Action Ads, Inc. v. Judes , 1983 Wyo. LEXIS 380 ( 1983 )

ROSE, Justice.

Appellee Kenneth Judes brought this action against his employer, appellant Action Ads, Inc., to enforce a term of the employment contract which required appellant to provide a medical insurance program for appellee. The determinative question on appeal is whether the agreement by Action Ads, Inc. to provide insurance coverage was sufficiently definite and certain to constitute an enforceable contract. We hold that it was not and will reverse.

FACTS

Action Ads, Inc. is a Wyoming corporation with its principal place of business in Cheyenne, Wyoming. On April 23, 1981, the corporation hired Kenneth Judes as a salesman for the Sheridan area. The contract of employment contained the following term:

“In addition, sixty days from your date of hire, Action Ads Inc. will provide a medical insurance program for you and your dependents.”

Action Ads failed to provide any insurance coverage, and on November 14, 1981, Mr. Judes was seriously burned in a gas explosion in a mobile home. He brought this action against his employer to recover his medical expenses on the ground that Action Ads breached the employment contract by failing to maintain a medical insurance program for him. The trial court determined that Mr. Judes was entitled to recover the total amount of his medical expenses, $18,-824.86, plus costs.

THE ISSUE

Appellant presents the following questions for our review:

1. Whether the district court erred in finding that Action Ads had breached its employment contract with Mr. Judes;

2. Whether failure by the plaintiff to mitigate damages precludes recovery in this case;

3. Whether plaintiff failed to establish damages that he suffered as a result of Action Ads’ breach of contract; and

4. Whether plaintiff should be denied recovery under the equitable doctrines of laches and estoppel.

We perceive the initial question to be whether the contract, as established by plaintiff-appellee, is sufficiently definite to permit the court to determine with reasonable certainty the extent of the promissor’s contractual duties. Where the terms of a contract are not sufficiently definite to permit this initial determination, the court lacks the information necessary to rule on the issues of breach of contract, damages, or duty to mitigate damages.

CONTRACT TO PROCURE INSURANCE

It is a general principle of contract law that the plaintiff bears the burden of proving the terms of a contract. Madrid v. Norton, Wyo., 596 P.2d 1108 (1979). Where the plaintiff seeks to recover for breach of a contract to procure insurance, the general elements of the promised insurance policy are an essential part of the plaintiff’s case.¹ 18 Couch on Insurance 2d, § 74:61, pp. 293-294; 7B Appleman, Insurance Law and Practice, § 4621, pp. 188-190. The following rule was set out in Howarth v. First National Bank of Anchorage, Alaska, 596 P.2d 1164, 1167-1168 (1979):

“ * * * In a contract for the procurement of insurance, the party proving the contract has the burden of showing the subject matter of the contract, the risk insured against, the amount of coverage, the duration of the coverage, and the premiums to be paid.”

A similar rule was applied in Forster-Davis Motor Co. v. Slaterbeck, 186 Okl. 395, 98 P.2d 17 (1939), a case comparable on its facts to the case at bar. There, the employee, following a job-related injury, sued his employer for damages on the theory that the employer had agreed, as additional compensation, to furnish the plaintiff with insurance that would provide the same protection as workmen’s compensation would provide. The jury decided that since the defendant had not procured any such insurance, the plaintiff was entitled to damages.

On appeal, the Oklahoma Supreme Court reversed, concluding that the verdict violated the well-established rule that a valid contract must be sufficiently definite to lead to a clear conclusion as to the full duties required to constitute compliance, or to permit the accurate measurement of damages for its breach. 98 P.2d at 18. The court found that the employment contract, as proven by the plaintiff, provided no details concerning the promised insurance policy:

“ * * * There was no agreement or statement as to when the defendant was to procure such an insurance policy, or when or whether such a policy was to be delivered to the plaintiff, nor any designation as to the insurance company or the character of the insurance company from which any such policy was to be procured. There was no suggestion as to the length of time any such policy should continue in force or operate, or the term for which it was to be procured in the first instance; nor was anything said as to the details, amounts or provisions to be included in any such insurance policy to be furnished by the defendant.

“In fact, if this contract was made as the plaintiff contends it was, we regard it as a practical impossibility to state what acts on the part of the defendant would constitute a clear or complete compliance therewith; nor can we see any sound or logical rule by which the damage for the breach thereof could be logically and reasonably measured. * * * If the plaintiff thought he was protected by a statement of his employer placing him in the status of an employee covered by the Workmen’s Compensation Act, it is * * * unfortunate, for any such promise, if it existed, must be measured by this court for sufficient certainty to justify compensation for its breach. When tested by the applicable rules this promise or contract is wholly indefinite and uncertain and cannot be relied upon to compensate plaintiff for his physical injuries upon plaintiff’s theory of a valid contract breached to his damage.” 98 P.2d at 19.

The same conclusion was reached by the Ninth Circuit Court of Appeals in Maryland Casualty Company v. Clean-Rite Maintenance Co., 380 F.2d 166 (9th Cir.1967). There, the casualty company, claiming to be subrogated to the rights of the building owners, sought to enforce an agreement by the maintenance company

“ ‘to provide insurance protection’ which would have- indemnified the building owners against ‘any and all claims of any kind and nature arising out of the window washing operations,’ * * *.” 380 F.2d at 167.

The appellate court applied Oregon law and concluded that “no promise of reasonable certainty” existed. The court said further:

“The only real thrust of any promise, as such can be seen from the testimony of [the representative of the building owners], is that the insurance coverage provided by Clean-Rite was ‘extra heavy’ or ‘complete.’ These descriptions are so vague that only speculation could support a determination of the precise terms and extent of that coverage and resolution of the question of whether or not it would afford indemnity against many different types of loss, including that which was sustained here. We therefore hold that the alleged contract is, for lack of certainty in its terms, unenforceable, and that the district judge properly granted the appellee’s motion for a directed verdict.” 380 F.2d at 168-169.

These cases stand for the principle that in a suit on a contract to procure insurance, the plaintiff has the burden of proving the elements of the insurance policy with sufficient certainty to enable the court to establish damages in the event of breach. The corollary to that principle is a well-known rule: The measure of damages for breach of a contract to obtain insurance is that amount which would have been recovered had the insurance been furnished as agreed. Mid-America Corporation v. Roach, Old., 412 P.2d 188, 191 (1966); Les Shellabarger Chevrolet, Inc. v. Romero, Colo.App., 490 P.2d 98, 99 (1971).

In the present case, the extent of the undertaking of Action Ads to furnish insurance is contained in the following term of the parties’ employment contract:

“In addition, sixty days from your date of hire, Action Ads Inc. will provide a medical insurance program for you and your dependents.”

The appellee offered no evidence as to the risks insured against, the amount of coverage, or any other details of the “insurance program” that Action Ads, Inc. was obligated to provide. There was no proof of the insurance carrier contemplated by the parties. Most important, there was no showing that the injury actually sustained by Mr. Judes would have been covered by the insurance program had Action Ads fully complied with the employment contract.

It is apparent that the pertinent contract term is not sufficiently definite and certain to permit this court to determine the extent of the promised performance. Without that information, we are unable to measure the damages to which the promisee might reasonably be entitled in the event of a breach. The indefiniteness of the agreement is due to the absence of any evidence whatsoever concerning the elements of the insurance coverage that Action Ads was obligated to provide. Since the plaintiff failed to show to what extent, if any, the promised insurance program would have compensated him for his injury, we hold that the agreement to provide insurance was too uncertain and indefinite to be enforceable.

Reversed.

1 . The instant case and the cases cited in this opinion are concerned with the obligation of one who is not an insurance agent or broker to procure insurance for the benefit of another. A different rule may apply where an insurance broker or agent is involved, since such persons hold themselves out as experts in the field and generally are committed to obtaining insurance on terms favorable to the purchaser. In those cases, an enforceable contract to procure insurance may arise even though it remains to the broker to supply some of the terms essential to the formation of the ultimate insurance policy. See Maryland Casualty Company v. Clean-Rite Maintenance Co., 380 F.2d 166, 167 (9th Cir. 1967); Bulla v. Donahue, 174 Ind.App. 123, 366 N.E.2d 233, 236 (1977).