UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JENNINGS V. HELTON, JR.,
Plaintiff-Appellee,

v.

NATIONWIDE MUTUAL INSURANCE
COMPANY; NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY; NATIONWIDE
LIFE INSURANCE COMPANY;
                                                                   No. 97-1172
NATIONWIDE GENERAL INSURANCE
COMPANY; NATIONWIDE PROPERTY AND
CASUALTY COMPANY; NATIONWIDE
VARIABLE LIFE INSURANCE COMPANY;
COLONIAL INSURANCE COMPANY OF
CALIFORNIA,
Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CA-95-298-5)

Argued: December 1, 1997

Decided: January 15, 1998

Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Reversed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Henry Jernigan, Jr., JACKSON & KELLY,
Charleston, West Virginia, for Appellants. Michelle Maria Memena
Price, KING, ALLEN & GUTHRIE, Charleston, West Virginia, for
Appellee. ON BRIEF: Taunja W. Miller, JACKSON & KELLY,
Charleston, West Virginia; David L. White, WHITE, SMITH, MOR-
GAN & SCANTLEBURY, L.C., Bluefield, West Virginia, for Appel-
lants. Robert A. Goldberg, KING, ALLEN & GUTHRIE, Charleston,
West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellee, Jennings V. Helton, was an exclusive agent for appel-
lants, the Nationwide Insurance Companies. Helton had been an agent
(though not always an exclusive one) for the Nationwide Companies
for more than twenty years when the Nationwide Companies termi-
nated Helton's agency agreement on March 19, 1993. Helton brought
suit in state court alleging, inter alia, that the Companies' termination
of their agency agreement with him violated W. Va. Code § 33-12A-1
et seq. (the "Agency Act"). The Nationwide Companies removed the
case to federal court.

The Agency Act prohibits an insurance company from terminating
an exclusive agency relationship controlled by a written contract in
effect for more than five years, except for "good cause" and after giv-
ing at least 90 days notice to the agent. W. Va. Code § 33-12A-3. The
West Virginia Supreme Court of Appeals held in Shell v.
Metropolitan Life Insurance Co., 380 S.E.2d 183 (W. Va. 1989), that
the Act violated the contracts clauses of the Federal and West Vir-
ginia Constitutions as applied to contracts entered into before the
effective date of the Act -- June 1, 1984. Thus, the Agency Act only
applies to the contract in this case if it was entered into after that date.

Helton entered into his first written agency agreement with the
defendants in 1972. In accordance with the Nationwide Companies'

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policy, Helton kept the signed agency agreement in a binder, together
with supplemental documents. J.A. at 301-02, 367-68. That agree-
ment was replaced by a new, signed agreement in 1974, and thereafter
there were sequential replacement agreements in 1977, 1981, and
1983. J.A. at 368-74. Each of the agreements was on a printed form,
with the blanks completed by the parties, and signed by both Helton
and an authorized representative of the Nationwide Companies. By its
terms, each new agency agreement became effective when it was exe-
cuted and delivered, and it superseded all prior agreements. J.A. at
368-74. Helton was instructed by the Companies to replace the old
agency agreement in the binder with the new agreement and to dis-
card the old agreement. J.A. at 301-02, 680-81.

At the time the Nationwide Companies terminated their agency
relationship with Helton, his binder contained a completed, signed
agency agreement dated February 10, 1983 (the "1983 Agreement").
J.A. at 930-38. The binder also contained an unsigned 1985 form
agency agreement (the "1985 Agreement"), the blanks on which were
not filled in. J.A. at 951-57. If the 1983 Agreement governed the par-
ties' relationship at the time the Nationwide Companies terminated
Helton, then his Agency Act claim is precluded by the Shell decision.
Helton contends, however, that both he and the Nationwide Compa-
nies evidenced their assent to the 1985 Agreement through their
course of conduct and that, since that agreement postdates the effec-
tive date of the Agency Act, he has a valid claim under that Act.

The district court submitted to the jury the question of whether the
1983 or 1985 contract was the governing agency contract at the time
of Helton's termination, and the jury found that the 1985 Agreement
was the governing contract. The jury also found that, although defen-
dants had "good cause" to terminate plaintiff, they had not given him
the 90 day notice required by the Agency Act. The jury thus awarded
Helton compensatory damages for his termination.

We hold that the district court erred in submitting Helton's Agency
Act claim to the jury and denying defendants' motion for judgment
as a matter of law. Helton had the burden of proving that the
unsigned, incomplete 1985 form Agreement was both assented to and
substituted for the signed, completed 1983 Agreement. The 1985
Agreement provides that "[t]he execution and delivery of this Agree-

                    3
ment shall supersede and take the place of any prior Agreement." J.A.
at 957. Thus, by its terms, the 1985 Agreement could only supersede
the 1983 Agreement if it was executed and delivered. Indeed, even
the parties' preexisting 1983 Agreement provides that it can be
"changed, altered, or modified only in writing signed by [the agent]
and an officer of the Companies." J.A. at 936.

Not only was the 1985 Agreement unsigned, but it was also incom-
plete in other respects. As Helton concedes, the 1985 contract was not
signed by either party, despite the fact that the concluding provision
states that "IN WITNESS WHEREOF, the Agent has signed his name
and the Companies have caused their corporate names to be affixed
by their duly authorized representative" and also designates lines on
which the parties were to sign. J.A. at 957. Moreover, in the 1985
Agreement, the parties had not even filled in the contracting agent's
name, the states in which he was authorized to represent the Compa-
nies, or the effective date of the contract. See J.A. at 951-57. What-
ever the exact contours of the 1985 Agreement's"execution"
provision, we believe that as a matter of law it requires more than
Helton's receipt of a blank, unsigned form agreement and party con-
duct arguably consistent with that agreement's terms.

The district court's instruction to the jury that"[a] contract can
exist by virtue of the behavior of the parties and does not always
require any particular formalities such as a signature to be binding,"
J.A. at 845 (emphasis added), may correctly state general principles
of West Virginia contract law, but in this case the contract language
itself appears to preclude proof of assent through a course of conduct
rather than through signature or perhaps some other formal manifesta-
tion of assent. Even if Helton could prove that the parties' course of
conduct evidenced assent to some unwritten, de facto contract that
embodied terms similar to those in the 1985 Agreement, this showing
would be insufficient to sustain his Agency Act claim in any event,
because the Agency Act applies only to written contracts. See W. Va.
Code § 33-12A-3.

Accordingly, the district court erred in submitting Helton's Agency
Act claim to the jury, and the court's denial of defendants' motion for
judgment as a matter of law is therefore reversed.

REVERSED

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