The circuit court, having found constitutional the provisions of W.Va.Code, 33-12A-1, et seq. (1984), prohibiting an insurance company from discharging its agents except for "good cause" as defined in the statute, has certified this question to us. We find these provisions to be an unconstitutional impairment of existing contractual obligations under Article I, Section 10, Clause 1 of the United States Constitution
In March, 1984, the Legislature enacted W.Va.Code, 33-12A-1, et seq., governing contractual relationships between insurance companies and agents. W.Va.Code, 33-12A-3, provides:
In March, 1985, some nine months after the effective date of the statute,
On or about June 12, 1987, Mr. Shell was fired, ostensibly for unsatisfactory work performance, with two weeks' salary in lieu of notice. Mr. Shell subsequently filed suit against Metropolitan in the Circuit Court of Logan County, alleging that he had been wrongfully discharged from his employment
The principal issue before this Court is whether W.Va.Code, 33-12A-1, et seq., violates the Contract Clauses of the state and federal constitutions. In construing our state constitutional provision prohibiting any "law impairing the obligation of a contract," W.Va. Const. art. III, § 4, we have generally accepted the United States Supreme Court's interpretation of the similar provision contained in Article I, Section 10, Clause 1 of the United States Constitution. E.g., Dadisman v. Moore, ___ W.Va. ___, ___ S.E.2d ___ (No. 18343 12/27/88); Orr v. County Comm'n of Cabell County, ___ W.Va. ___, 359 S.E.2d 109 (1987); Columbia Gas of West Virginia, Inc. v. Public Serv. Comm'n, ___ W.Va. ___, 311 S.E.2d 137 (1983); Wagoner v. Gainer, 167 W.Va. 139, 279 S.E.2d 636 (1981); Security Nat'l Bank & Trust Co. v. First W.Va. Bancorp, Inc., 166 W.Va. 775, 277 S.E.2d 613 (1981), appeal dismissed, 454 U.S. 1131, 102 S.Ct. 986, 71 L.Ed.2d 284 (1982); Preston County Light & Power Co. v. Renick, 145 W.Va. 115, 113 S.E.2d 378 (1960).
Initially, Mr. Shell contends that the Contract Clause analysis has no application here because his employment contract was modified by the new agents' manual issued in March, 1985. Mr. Shell argues that he was, in essence, given a new employment contract after the effective date of W.Va. Code, 33-12A-1, et seq., and that the statute therefore impairs no preexisting obligations.
In Syllabus Point 1, in part, of Devon Corp. v. Miller, 167 W.Va. 362, 280 S.E.2d 108 (1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982), we recognized the general rule that the constitutional prohibitions against impairment of contractual obligations are not applicable to contracts formed after the effective date of the statute:
This rule was drawn from Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242, 42 S.Ct. 289, 66 L.Ed. 595 (1922), and Oshkosh Waterworks Co. v. City of Oshkosh, 187 U.S. 437, 23 S.Ct. 234, 47 L.Ed. 249 (1903), but is supported in a number of other cases. E.g., Watson v. Employers Liability Assurance Co., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1954); Munday v. Wisconsin Trust Co., 252 U.S. 499, 40 S.Ct. 365, 64 L.Ed. 684 (1920). The rationale for this rule is apparent: There can be no impairment of contractual obligations which did not exist at the time the challenged statute was enacted. Thus, the Contract Clause prohibits only those statutes which impair existing contracts.
We must agree with Metropolitan, however, that Mr. Shell's employment contract predated the enactment of W.Va. Code, 33-12A-1, et seq. Nothing in the March, 1985 amendments to the agents' manual modified the provisions of the 1968 contract concerning the "at will" nature of Mr. Shell's employment. In fact, the new agents' manual expressly acknowledged Metropolitan's right to terminate Mr. Shell's employment for any reason on proper notice. We cannot conclude that Metropolitan, in essence, executed a new contract with Mr. Shell after the passage of W.Va. Code, 33-12A-1, et seq. Accordingly, we turn to the issue of whether the statute unconstitutionally impaired the parties' preexisting contractual rights.
In Orr v. County Comm'n of Cabell County, ___ W.Va. at ___, 359 S.E.2d at 111, we quoted with approval the following language from Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 410, 103 S.Ct. 697, 704, 74 L.Ed.2d 569, 580 (1983):
We expressed a similar thought in Security Nat'l Bank & Trust Co., 166 W.Va. at 780, 277 S.E.2d at 616, where we said that "[s]tates can preserve community order, health, safety, morals and economic well-being, even though contracts are affected."
On the other hand, the Supreme Court has also noted "the high value the Framers placed on the protection of private contracts," and held that "[i]f the Contract Clause is to retain any meaning at all, ... it must be understood to impose some limits upon the power of a State to abridge existing contractual relationships, even in the exercise of its otherwise legitimate police power." Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 245, 242, 98 S.Ct. 2716, 2723, 2721, 57 L.Ed.2d 727, 737, 734 (1978). (Emphasis in original). Thus, the application of the Contract Clause generally involves a balancing of competing public and private interests.
In Energy Reserves Group, Inc. v. Kansas Power & Light Co., supra, the Supreme Court enunciated a three-step test for balancing these interests. As we recognized in Security Nat'l Bank & Trust Co., 166 W.Va. at 780, 277 S.E.2d at 616, the initial inquiry is whether the statute has substantially impaired the contractual rights of the parties. Energy Reserves Group, 459 U.S. at 411, 103 S.Ct. at 704, 74 L.Ed.2d at 580. See Allied Structural Steel Co. v. Spannaus, supra; United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977). If a substantial impairment is shown, the second step of the test is to determine whether there is "a significant and legitimate public purpose behind the regulation, United States Trust Co., 431 U.S., at 22, [52 L.Ed.2d at 109] 97 S.Ct., at 1517, such as the remedying of a broad and general social or economic problem. Allied Structural Steel Co., 438 U.S., at 247, 249, [57 L.Ed.2d at 738-39] 98 S.Ct. at 2723-2725." Energy Reserves Group, 459 U.S. at 411-12,
Our initial inquiry, therefore, is whether W.Va.Code, 33-12A-1, et seq., impairs the existing contractual obligations of the parties. In Allied Structural Steel Co., 438 U.S. at 245, 98 S.Ct. at 2722-23, 57 L.Ed.2d at 736-37 the Supreme Court stated:
In Energy Reserves Group, 459 U.S. at 411, 103 S.Ct. at 704, 74 L.Ed.2d at 580, the Court further noted:
Under the employment contract here, Metropolitan had the unilateral right to discharge agents at will upon two weeks' notice. Clearly, by requiring insurance companies to show "good cause" for the dismissal of agents, W.Va.Code, 33-12A-3, severely limits the circumstances in which Metropolitan could discharge employees.
Moreover, W.Va.Code, 33-12A-5, provides the agent with a private cause of action for termination of his employment or nonrenewal of his contract for other than the "good cause" specified in the statute.
Mr. Shell, however, argues that the impairment is minimal in view of the considerable regulation of the insurance industry in this state. W.Va.Code, 33-1-1, et seq. It is recognized that one of the factors to be considered in determining the degree of impairment is whether the industry
This is not to say, however, that prior regulation of an industry as a whole necessarily precludes every claim that subsequent legislation unconstitutionally impairs preexisting contractual obligations. In Veix v. Sixth Ward Bldg. & Loan Ass'n, supra, the Supreme Court considered the effect of amendments to a New Jersey statute altering the terms upon which a shareholder in a building and loan association could withdraw his shares. In concluding that the amendments did not unconstitutionally impair the contractual obligations of the plaintiff, who had purchased his shares when the prior statute was in effect, the Supreme Court held: "When he purchased into an enterprise already regulated in the particular to which he now objects, he purchased subject to further legislation upon the same topic." 310 U.S. at 38, 60 S.Ct. at 795, 84 L.Ed. at 1065. (Footnote omitted; emphasis added).
This language was quoted in Energy Reserves Group, 459 U.S. at 411, 103 S.Ct. at 704, 74 L.Ed.2d at 580, and cited with approval in note 13 of Allied Structural Steel Co., 438 U.S. at 242-43, 98 S.Ct. at 2721, 57 L.Ed.2d at 735. In Allied Structural Steel Co., the Supreme Court applied the Contract Clause to a Minnesota statute requiring private employers who had established employee pension plans to pay a "pension funding charge" upon ceasing business activity within the state. The Court concluded that the statute unconstitutionally impaired the preexisting contractual obligations of such employers. It relied, in part, on the fact that the subject of the legislation had not been previously regulated, thereby "imposing a sudden, totally unanticipated, and substantial retroactive obligation upon" employers who had established employee pension plans prior to the statute's effective date. 438 U.S. at 249-50, 98 S.Ct. at 2725, 57 L.Ed.2d at 739.
The clear import of these cases is that an impairment of contract may not be found if the prior regulation of an industry is related to the subject of the contract so as to put the parties on notice of the possibility of future regulation on the same subject. The question of how the prior regulation relates to the challenged legislation is often not easily answered. One court has stated: "[P]rior regulation must share more in common with the challenged legislation than merely the industry in which it operates to bar a subsequent finding of substantial impairment." Ross v. City of Berkeley, 655 F.Supp. 820, 831 (N.D.Cal. 1987). Accordingly, we "must look to the nature as well as the act of regulation" to determine whether prior regulation of the industry preempts the Contract Clause claim. 655 F.Supp. at 830. (Emphasis added).
In Garris v. Hanover Ins. Co., 630 F.2d 1001 (4th Cir.1980), the Fourth Circuit Court of Appeals struck down, as violative of the Contract Clause, a South Carolina statute which barred an insurance company from discharging an agent based on the amount of assigned risk insurance he wrote. While recognizing that the insurance industry was substantially regulated in South Carolina, the court concluded:
We view the Garris case, with its focus on the particular contract subject, as an appropriate resolution of the regulated industry issue here. Although Chapter 33 of our Code imposes considerable regulation on the sale of insurance in this state, prior to the enactment of W.Va.Code, 33-12A-1, et seq., there was never any attempt to regulate the insurer's right to hire and fire insurance agents. Accordingly, it can hardly be said that the parties here could reasonably have foreseen the creation of a "good cause" prerequisite to termination of that relationship and a private cause of action for wrongful termination at the time the contract was executed.
Mr. Shell argues that a broader reading of the Contract Clause is required under Energy Reserves Group, Inc. v. Kansas Power & Light Co., supra, a case involving state regulation of the wellhead price of natural gas. In concluding that the state statute did not violate the Contract Clause, the Supreme Court noted: "At the time of the execution of these contracts, Kansas did not regulate natural gas prices specifically, but its supervision of the industry was extensive and intrusive." 459 U.S. at 413-14, 103 S.Ct. at 706, 74 L.Ed.2d at 582. (Footnotes omitted; emphasis added).
We note, however, that in Energy Reserves Group, the Supreme Court recognized that natural gas was subject to federal price regulation at the time
Since we find nothing in the United States Supreme Court opinions that demands a contrary result, we conclude that the involved legislation does substantially impair contractual obligations with respect to those contracts of over five years' duration
Having determined that a substantial impairment exists, we must now consider whether the legislation is justified by a significant and legitimate public purpose. This requirement "guarantees that the State is exercising its police power, rather than providing a benefit to special interests." Energy Reserves Group, 459 U.S. at 412, 103 S.Ct. at 705, 74 L.Ed.2d at 581. (Footnote omitted). See Security Nat'l Bank & Trust Co. v. First W.Va. Bancorp, Inc., supra.
It seems clear that the primary purpose of this statute is to benefit insurance agents. Although the legislative declaration of purpose contained in W.Va.Code, 33-12A-1, states that the legislation "is essential to the best interests of the citizens," the true purpose is clearly designated as "prohibiting arbitrary and capricious cancellation of ... contractual relationships."
We may agree that the State can have a legitimate interest in adjusting the contract rights of the parties so that insurance agents cannot be arbitrarily or capriciously fired by insurance companies. See Harless v. First Nat'l Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978). However, W.Va.Code, 33-12A-1, et seq., is hardly intended to remedy "a broad and general social or economic problem" in that regard. Energy Reserves Group, 459 U.S. at 412, 103 S.Ct. at 704-05, 74 L.Ed.2d at 581; Allied Structural Steel Co., 438 U.S. at 247, 249, 98 S.Ct. at 2723-25, 57 L.Ed.2d at 738-39. As developed more fully, infra, this legislation is designed to protect a narrow class of citizens, i.e., insurance agents, rather than a broad societal interest. It is not imbued with the substantial public policy that will justify state interference with the private contractual obligations of these parties.
Mr. Shell argues that the statute also benefits the general public by ensuring a pool of experienced agents. Initially, it would seem that from a practical business standpoint, if an agent is doing a good job, he will not be fired. Consequently, the pool of capable and experienced agents would not be drained.
Even if we were to conclude that Mr. Shell has asserted a legitimate public purpose justifying the impairment of the parties' preexisting contractual rights, we question whether W.Va.Code, 33-12A-1, et seq., strikes an appropriate balance between the reasonable exercise of the State's police power and legislation that simply benefits a special interest group.
The statutory scheme suggests simply that a benefit is conferred on special interests. It permits dismissal of an insurance agent only upon the most egregious grounds: (1) criminal misconduct or gross negligence relating to the business, (2) fraud or moral turpitude, (3) abandonment of the business, (4) failure to pay moneys owned to the company, (5) death or disability of agent, or (6) insolvency of the company or discontinuance of a line of insurance. W.Va.Code, 33-12A-3. However, these grounds bear no relationship to W.Va.Code, 33-12-25, which authorizes the State to revoke or suspend an insurance agent's license on the ground that he "has violated any provision of this chapter, or is incompetent
Clearly, the narrow parameters of W.Va. Code, 33-12A-1, et seq., protect an incompetent agent from dismissal in many situations and give rise to the prospect of an insurance company being forced to retain an agent whose license has been revoked or suspended, because there is not "good cause" for discharging him under the statute. This cannot be construed to be for the general good of the public.
Finally, even where "good cause" for dismissal exists under the statute, the agent may avoid dismissal under W.Va. Code, 33-12A-4,
As we have seen, the specific language of this legislation goes far beyond the modest public purpose asserted by Mr. Shell. W.Va.Code, 33-12A-1, et seq., does not only protect insurance agents from arbitrary dismissal. It also protects the incompetent agent, enables a "good cause" ground for dismissal to be cured and thereby defeated, and shields from termination even an agent whose license has been suspended or revoked. Clearly, the scope of the legislation substantially exceeds the public purpose asserted by Mr. Shell as justifying its impairment of the contractual obligations of the parties.
From the foregoing, we conclude that W.Va.Code, 33-12A-1 et seq., precludes insurance agents from being discharged except for good cause and confers a private cause of action upon agents dismissed on other grounds. To the extent this statute affects existing rights under employment contracts executed before its effective date, it violates the Contract Clauses of the state and federal constitutions.
We need not answer the remaining certified questions. In City of Fairmont v. Retail, Wholesale, and Dept. Store Union, AFL-CIO, 166 W.Va. 1, 3-4, 283 S.E.2d 589, 590-91 (1980), we stated: "We have traditionally maintained that upon receiving certified questions we retain some flexibility in determining how and to what extent they will be answered. West Virginia Water Serv. Co. v. Cunningham, 143 W.Va. 1, 98 S.E.2d 891 (1957)." In Syllabus Point 6 of Cunningham, the Court stated:
As the remainder of the certified questions formulated by the circuit court are either
For the reasons stated herein, we conclude that W.Va.Code, 33-12A-1, et seq., unlawfully impairs the obligations of the parties to this action under the 1968 employment contract and is, therefore, unconstitutional in its application. The circuit court's rulings on the certified questions are, therefore, reversed to the extent they are inconsistent with this opinion, and the case is remanded to the Circuit Court of Logan County for such further proceedings as may be necessary.
Certified Questions Answered; Case Remanded.
"1. Does West Virginia Code § 33-12A-1, et seq., and specifically § 33-12A-3 constitute a substantial impairment of the obligation of contracts in violation of Art. I, § 10 of the United States Constitution and Art. III, § 4 of the Constitution of the State of West Virginia? Ruling: The Court finds that § 33-12A-1, et seq., and specifically § 33-12A-3, do not constitute any unconstitutional impairment of contracts.
"3. Does the passage of West Virginia Code § 33-12A-1, et seq., and specifically § 33-12A-3, constitute a valid exercise of this state's police powers?
"4. Does West Virginia Code § 33-12A-1, et seq., and specifically § 33-12A-3, provide a private cause of action for termination of a preexisting contract by one of the parties thereto, in violation of the express terms of that contractual agreement?
Ruling: The Court finds that while § 33-12A-1, et seq., and specifically § 33-12A-3, may provide a private cause of action to an insurance agent which thereby necessitates termination of a preexisting contract between these parties; because it is a valid exercise of this State's police power, it is, therefore, permissible.
Ruling: The Court finds that § 33-12A-1, et seq., and specifically § 33-12A-3, are constitutional for the above stated reasons."