author: FILIPPINE, District Judge.

text:
    Lowell HEDGECORTH and Charlene Hedgecorth, Plaintiffs, v. UNITED STATES of America, Defendant.
    No. 83-0770 C (2).
    United States District Court, E.D. Missouri.
    July 11, 1985.
    Order Aug. 7, 1985.

      John S. Wallach, St. Louis, Mo., for plaintiffs.
    Wesley D. Wedemeyer, Asst. U.S. Atty., St. Louis, Mo., for defendant.
   MEMORANDUM

FILIPPINE, District Judge.

This matter is before the Court for a decision on the merits following trial to the Court. Plaintiffs bring this action pursuant to the provisions of the Federal Tort Claims Act 28 U.S.C. §§ 2671-2680. Plaintiff Lowell Hedgecorth alleges that he suffered a cardiovascular accident or stroke while taking a stress test at Veterans Administration (“VA”) Medical Center, John Cochran Division, located on North Grand in St. Louis, Missouri. Plaintiff Lowell Hedgecorth alleges he was blinded by the stroke. Plaintiff Charlene Hedgecorth, the wife of plaintiff Lowell Hedgecorth, asserts a cause of action for loss of consortium, services and companionship as a result of the injuries suffered by plaintiff Lowell Hedgecorth. Plaintiffs claim that plaintiff Lowell Hedgecorth should never have been given the stress test, and that the giving of this test is actionable as malpractice. Plaintiffs do not maintain that the stress test was administered or performed negligently, but rather assert that it never should have been given. The Court adopts this entire memorandum as its findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.

At the time of trial plaintiff Lowell Hedgecorth was fifty years old. Plaintiff Lowell Hedgecorth has suffered from a long history of coronary artery disease. In November of 1978 plaintiff Lowell Hedgecorth suffered a myocardial infarction (“M.I.”), for which he was hospitalized. Following this M.I. plaintiff Lowell Hedgecorth returned to work in January, 1979. Plaintiff Lowell Hedgecorth was working for a life insurance company and both sold insurance and collected premiums on policies that were already in force.

In May of 1979 plaintiff Lowell Hedgecorth married his current wife, Charlene Hedgecorth. Charlene Hedgecorth’s three daughters from a prior marriage lived with Lowell and Charlene Hedgecorth after they were married. Plaintiff Charlene Hedgecorth was working for the same company that employed plaintiff Lowell Hedgecorth. Plaintiff Lowell Hedgecorth suffered from night blindness and was color blind. The pupils of plaintiff Lowell Hedgecorth’s eyes are of different sizes, a condition known as anisocoria. This condition does not affect a person’s vision. Plaintiff Lowell Hedgecorth had no other difficulty with his eyes prior to his blindness.

Plaintiff Lowell Hedgecorth in July of 1979 had a second M.I. and returned to work shortly following this second attack. Plaintiff Lowell Hedgecorth continued to have angina following his second M.I. On September 12, 1979, plaintiff Lowell Hedgecorth was suffering severe angina and left work never to return. Plaintiff Lowell Hedgecorth at that time was being treated by Dr. David Gardner, a private physician. Dr. Gardner scheduled plaintiff Lowell Hedgecorth for a cardiac catheterization, which was performed at the St. Louis University hospital. This test revealed that plaintiff Lowell Hedgecorth had severely occluded coronary arteries, and it was recommended that plaintiff Lowell Hedgecorth undergo coronary by-pass surgery.

On October 8, 1979, plaintiff Lowell Hedgecorth was admitted to the Veterans Administration Hospital in Columbia, Missouri, for coronary by-pass surgery. Plaintiff Lowell Hedgecorth, on October 17, 1979, underwent a five vessel coronary bypass. His remaining stay in Columbia, Missouri, was uneventful, and he was discharged on October 27, 1979. The final diagnosis by the Veterans Administration physician performing the surgery was severe coronary artery disease. Following release from the Columbia hospital, plaintiff Lowell Hedgecorth returned to St. Louis, Missouri.

Plaintiff Lowell Hedgecorth consulted Dr. Gardner for follow-up care after his return to St. Louis. However, plaintiff Lowell Hedgecorth was soon no longer able to afford private health care, so he returned to the V.A. for aid. Plaintiff Lowell Hedgecorth first consulted the V.A. in St. Louis on November 29, 1979. In addition plaintiff Lowell Hedgecorth applied for social security disability benefits in December of 1979.

In connection with his application for social security benefits plaintiff Lowell Hedgecorth was given a stress test on March 3, 1980, by Biomedical Systems. The report of this test was signed by a Dr. Biggs. This report indicated that the electrocardiogram was abnormal because of multifocal ventricular premature contractions (“VPC’s”), but stated there was no evidence of ischemia.

Plaintiff Lowell Hedgecorth was seen at the V.A. Hospital on March 5, 1980, by Kenneth E. Walter, M.D. The progress notes of that March 5, 1980, visit indicate that plaintiff Lowell Hedgecorth was recently evaluated for workers compensation and had taken a stress test in connection with this evaluation. The notes indicate that the test was administered by Doctors Biggs and Weiss. Dr. Walter telephoned Doctors Biggs and Weiss's office in an effort to secure the results of this test. Dr. Walter was informed by a receptionist at their office that the test was performed for the Social Security Administration and that the results belonged to them. Dr. Walter did not ask to speak with Dr. Biggs or Dr. Weiss. In addition, Dr. Walter did not contact the Social Security Administration to determine whether he could receive the results of the test, nor did he inform plaintiff Lowell Hedgecorth that there was a difficulty in obtaining the prior stress test. The Social Security Administration, however, has a policy of sending a claimant’s medical records to his physician upon receipt of a signed authorization by the claimant. The Administration verifies the signature of the claimant, and then sends the records to the physician. In addition Dr. Walter did not obtain the records of plaintiff Lowell Hedgecorth’s former physician Dr. Gardner.

During the month of March plaintiff Lowell Hedgecorth was distraught over his inability to work, financial condition, and his general health. On March 20, 1980, plaintiff Lowell Hedgecorth had a followup visit with Dr. Walter. The purpose of that visit was to judge the progress of the treatment he was receiving. Plaintiff Lowell Hedgecorth was taking nitroglycerine for angina and was also being treated with valium and ascriptin. The ascriptin, or aspirin, was being given to help eliminate pericarditis, or inflammation of the pericardial sac that surrounds the heart. After the failed effort to secure the results of the March 3 stress test Dr. Walter on the March 20 visit scheduled the stress test that was administered on March 31, 1980.

On March 31, 1980, plaintiffs Lowell Hedgecorth and Charlene Hedgecorth arrived at John Cochran V.A. Hospital for the stress test on plaintiff Lowell Hedgecorth. Dr. Walter met with plaintiff Lowell Hedgecorth prior to Lowell Hedgecorth being given the stress test. At that meeting Dr. Walter orally informed plaintiff Lowell Hedgecorth about some of the dangers in taking a stress test. Dr. Walter did not inform him of the danger of a stroke, and the informed consent form signed by plaintiff Lowell Hedgecorth did not list any dangers or side effects that could result from the stress test. Dr. Waiter misread a form filled out by plaintiff Lowell Hedgecorth and mistakenly thought that plaintiff Lowell Hedgecorth was currently swimming, playing racquetball and handball.

The stress test itself was administered by Dr. Alan Glassman. The test was given in a laboratory on the second floor of the hospital in the cardiology section. Dr. Walter was not present in the laboratory while the test was being given but was in his office across the hall within 30 feet of the laboratory. Dr. Glassman and a technician were present during the test. Five and two-tenths minutes into the stress test it was terminated because plaintiff Lowell Hedgecorth had a loss of vision in his left eye and was having chest pain. Dr. Glass-man sent the technician to Dr. Walter’s office to ask Dr. Walter to come into the laboratory. Dr. Walter and Dr. Glassman examined plaintiff Lowell Hedgecorth.

Dr. Walter thought that plaintiff Lowell Hedgecorth was malingering or faking the loss of sight in his left eye. Within one minute of the test’s termination, plaintiff Lowell Hedgecorth's vision improved but remained somewhat blurry. Following this incident Dr. Walter informed the V.A.’s day hospital of plaintiff Lowell Hedgecorth's loss of vision. Dr. Walter did not tell the day hospital that he thought plaintiff Lowell Hedgecorth was a malingerer. Dr. Walter told the day hospital that plaintiff Lowell Hedgecorth should be seen by the ophthalmology department but specifically told the day hospital that there was no urgency in plaintiff Lowell Hedgecorth being seen by ophthalmology. No written record was made of this conversation. Dr. Walter, himself, did not plan any ophthalmology consultation for plaintiff Lowell Hedgecorth. The record before the Court is unclear with regard to what medical care was given to plaintiff Lowell Hedgecorth by the day hospital immediately following the March 31, 1980, incident.

On April 8, 1980, plaintiff Lowell Hedgecorth checked himself into the Jefferson Barracks Veterans Administration Hospital. Plaintiff Lowell Hedgecorth had been turned down for social security disability benefits and as a result was severely depressed and considered suicide. The clinical record at Jefferson Barracks indicates that plaintiff Lowell Hedgecorth was having trouble with his vision and that it was getting worse. Plaintiff Lowell Hedgecorth testified that he had trouble driving to Jefferson Barracks because of his vision and thus his visual ability was declining. Plaintiff Charlene Hedgecorth could not drive plaintiff Lowell Hedgecorth to the hospital because she was hospitalized for severe depression.

Starting April 18, 1980, plaintiff Lowell Hedgecorth was examined by the ophthalmology clinic of the V.A. Plaintiff Lowell Hedgecorth was administered a series of tests which measured his field of vision. The April 18th test indicates that plaintiff Lowell Hedgecorth had lost the left half of his field of vision. Another test was performed by the V.A. on May 21, 1980, and this test showed a similar defect. The July 10, 1980, examination of plaintiff Lowell Hedgecorth indicated that his field of vision was getting even smaller. Plaintiff Lowell Hedgecorth now has a virtually one hundred percent loss of his vision. This blindness is permanent. The blindness is the result of a right occipital lobe infarct, commonly known as a stroke.

The plaintiffs maintain that plaintiff Lowell Hedgecorth suffered an infarct while taking the March 31, 1980, stress test, and that the decision to .give that test was actionable malpractice because of the availability of the March 5, 1980, stress test. After careful consideration of all the evidence, including the expert medical testimony, the Court agrees with plaintiffs and concludes that under the facts and circumstances of this case the giving of the stress test was both negligent and the proximate cause of plaintiffs’ injuries.

The decision to administer the stress test was made by Dr. Walter, an employee of the United States who was acting within the scope of his employment. Indeed at all relevant times plaintiff Lowell Hedgecorth was being cared for by employees of the United States acting within the scope of their employment. This Court, therefore, has jurisdiction over this case and the United States is properly named as a defendant. 28 U.S.C. § 1346(b). In addition, venue is proper in the Eastern District of Missouri.

In an action brought under the Federal Tort Claims Act this Court applies the law of the state where the negligent act occurred. Thus, Missouri substantive law governs this action. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Stuppy v. United States, 560 F.2d 373 (8th Cir.1977). Under Missouri law a physician is required to use and exercise that degree of skill and proficiency which is commonly exercised by the ordinary skillful, careful and prudent physician engaged in the practice of medicine. Silberstein v. Berwald, 460 S.W.2d 707, 709 (Mo.1970). See also Jackson v. United States, 577 F.Supp. 1377, 1379 (E.D.Mo.1983), aff'd, 750 F.2d 55 (8th Cir.1984); Gridley v. Johnson, 476 S.W.2d 475, 581-83 (Mo.1972). M.A.I. 11.06. In order to hold the defendant liable the negligent act must have been the direct cause of the injury suffered by the plaintiff. Silberstein v. Berwald, 460 S.W.2d at 709 M.A.I. 21.01.

This case centers around the testimony of three expert witnesses. The only expert witness presented by the defendant was Dr. Walter, plaintiff Lowell Hedgecorth’s treating physician, whose decision to give the stress test is the claimed negligent act. The plaintiff presented the testimony of Dr. Howard Schwarz and Dr. John Marshall Gordon, who are both licensed to practice in this state. Dr. Gordon is a Fellow of the American Academy of Ophthalmology and has conducted a thorough examination of plaintiff Lowell Hedgecorth. Although Dr. Gordon’s specialty is ophthalmology, he is familiar with stress tests and the standards for their administration. Dr. Schwarz is a specialist in emergency medicine, and at the time of trial he was president-elect of the medical staff of the St. Louis County Hospital. Dr. Schwarz has frequent contact with patients suffering from coronary artery disease. Dr. Schwarz is familiar with stress tests and refers one or two patients a month for stress testing.

Defendant argues that Dr. Gordon and Dr. Schwarz are not qualified to give expert testimony regarding stress tests because they are not cardiologists. Both Doctors Schwarz and Gordon have demonstrated to this Court that they are familiar with the appropriate standard of care with regard to stress tests. The fact that Doctors Schwarz and Gordon are not cardiologists does not render their testimony on stress testing inadmissible, but merely goes to the weight given it by this Court as the trier of fact. Harris v. Smith, 372 F.2d 806, 814 (8th Cir.1967); Frost v. Mayo Clinic, 304 F.Supp. 285, 288 (D.Minn.1969); Swope v. Printz, 468 S.W.2d 34, 40 (Mo.1971); Pate v. St. Louis Independent Packing Company, 428 S.W.2d 744, 750 (Mo.App.1968).

- The credible medical evidence presented at trial demonstrates that giving the stress test to plaintiff Lowell Hedgecorth on March 31, 1980, was a deviation from the appropriate standard of care. The purpose of a stress test is, as the name implies, to place a stress on the heart through physical exercise and thereby derive information concerning the heart’s condition. Because of the nature of the test certain dangers accompany its administration. These dangers include the possibility that the patient will suffer a stroke. The patient should be warned that a stroke could result from the administration of the test, and plaintiff Lowell Hedgecorth was not warned of this danger. Thus plaintiff Lowell Hedgecorth did not take the test with informed consent of its dangers.

The credible medical testimony adduced at trial further re-established that a patient should not be given a stress test if there are available adequate results from a prior stress test given less than one month prior to the subsequent test. Because of the dangers associated in giving a stress test, the results from the immediately preceding stress test should be used by the ordinary careful and prudent physician in lieu of retesting the patient. Moreover, the failure to secure the results of the March 3, 1980, stress test in the case at bar was shown by the credible medical testimony to be a deviation from the proper standard of care. The results of the prior test could easily have been secured by the defendant. The results of this March 3, 1980, test would have been sufficient for defendant’s use in treating plaintiff Lowell Hedgecorth. Thus, under the circumstance of this case the inadequate efforts to secure the March 3, 1980, stress test report and the decision to give the March 31, 1980, test was negligent. As a direct result of the negligent acts and omissions of the defendant the plaintiff Lowell Hedgecorth suffered an infarct in the right occipital lobe of his brain. This stroke directly caused plaintiff Lowell Hedgecorth’s total and permanent blindness.

Plaintiff Lowell Hedgecorth’s blindness has. severely restricted his freedom and enjoyment of life. Prior to the stroke plaintiff Lowell Hedgecorth had 20/20 visual accuity. Now, plaintiff Lowell Hedgecorth must depend on others for his needs. Prior to the stroke plaintiff Lowell Hedgecorth could read and drive a car, now he can do neither. Plaintiff Lowell Hedgecorth testified that his life was totally altered by the stroke. Plaintiff Charlene Hedgecorth has suffered a loss of companionship, services and consortium as a result of her husband’s injuries. Under the facts and circumstances of this case the Court finds an award of $750,000 to plaintiff Lowell Hedgecorth is appropriate compensation. The Court will award plaintiff Charlene Hedgecorth $75,000 for her loss of consortium, services and companionship.


source: Caselaw Access Project

author: JOSÉ A. CABRANES, District Judge:

license: Public Domain

text:
    McKEOWN DISTRIBUTORS, INC. v. GYP-CRETE CORPORATION.
    Civ. No. H-82-834(JAC).
    United States District Court, D. Connecticut.
    July 25, 1985.

      Lester Katz, Steven L. Seligman (Katz & Seligman), and James C. Mulholland, Michael A. Georgetti (Mulholland & Georgetti), Hartford, Conn., for plaintiff.
    Richard M. Reynolds, Scott P. Moser, Jonathan D. Hatch (Day, Berry & Howard), Hartford, Conn., for defendant.
   MEMORANDUM OF DECISION

JOSÉ A. CABRANES, District Judge:

Table of Contents

Page

INTRODUCTION 634

I. FINDINGS OF FACT 634

A. The Parties 634

B. The Agreement 635

C. The Parties’ Business 636

D. The Termination of the Agreement 637

E. McKeown’s Activities Following the Termination 638

F. Disposition of the Shares 638

II. CONCLUSIONS OF LAW 639

A. Breach of Contract 639

B. Connecticut Franchise Act 642

C. Connecticut Unfair Trade Practices Act 643

D. Malicious Interference with Business Relations 644

E. Connecticut Anti-Trust Act 645

CONCLUSION 645

Introduction

This action arises from the allegedly unlawful termination by the defendant, a Minnesota corporation, of an exclusive distributorship contract with the plaintiff, a Connecticut corporation. The Complaint (filed Aug. 31, 1982) includes claims based on the Sherman Anti-Trust Act, 15 U.S.C. §§ 1-7, the Connecticut Anti-Trust Act, Conn.Gen. Stat. §§ 35-24 to 35-45, the Connecticut Franchise Act, Conn.Gen.Stat. §§ 42-133e to 42-133h, the Connecticut Unfair Trade Practices Act, Conn.Gen.Stat. §§ 42-110a to 42-1 lOq, breach of contract, and tortious interference with business relations. The plaintiff seeks compensatory damages for loss of profits and loss of business good will, as well as punitive damages and attorney’s fees. See Complaint 11 X(A)-(F).

The federal antitrust claim was withdrawn by the plaintiff at the outset of trial. See Certified Official Transcript of Proceedings Held January 10, 1985 and January 11, 1985 (filed Jan. 30, 1985) (“Tr.”) at 5. Jurisdiction over the remaining counts is predicated on the court’s diversity jurisdiction, 28 U.S.C. § 1332.

The action was tried to the bench on January 10 and January 11, 1985. Based on the full record of the case, including the evidence adduced at trial and the memoranda submitted by the parties, the court enters the following findings of fact and conclusions of law, pursuant to Rule 52(a), Fed.R.Civ.P.

I. FINDINGS OF FACT

A. The Parties

1. The defendant, Gyp-Crete Corp. (“Gyp-Crete” or “the defendant”), of 900 Hamel Road, Hamel, Minnesota, was incorporated under Minnesota law on March 1, 1977. Stipulation of Uncontested Facts (115 of Final Pretrial Order (filed May 15, 1984)) (“Stip.”) ¶ 1. The President of Gyp-Crete is Clyde Jorgensen (“Mr. Jorgensen”). Tr. at 178-179.

2. Since 1977, Gyp-Crete has been in the business of supplying to the construction industry a gypsum cement flooring compound marketed under the trade name “Gyp-Crete” (“the product”). Stip. II5. Gyp-Crete also markets items related to the use of the product. Id.

3. Gyp-Crete’s products are sold primarily through licensed distributors. Tr. 212-213. Gyp-Crete’s products are sold to persons and companies licensed to use its products; these persons and companies are called “applicators” or “licensees.” Stip. II5; Plaintiff’s Exhibit (“Pl.Ex.”) A; Defendant’s Exhibit (“Def.Ex.”) M. Gyp-Crete does not manufacture the product; it is manufactured to Gyp-Crete’s specifications by gypsum manufacturers under contract with Gyp-Crete. Tr. 186.

4. The plaintiff, McKeown Distributors, Inc. (“McKeown” or “the plaintiff”), of 1340 John Fitch Boulevard, South Windsor, Connecticut, was incorporated under Connecticut law on November 20, 1979. Stip. ¶ 2.

5. On November 20, 1979, McKeown issued one hundred (100) shares of its common stock (the “Shares”) to Mr. John P. McKeown, Sr. (“Mr. McKeown”), its sole owner and operator. No other shares have ever been issued by McKeown. Stip. ¶ 3.

B. The Agreement

6. Gyp-Crete and McKeown entered into a written distributorship agreement (“the Agreement”) on December 20, 1979. Stip. ¶ 8; Pl.Ex. A; Def.Ex. M. Pursuant to the Agreement, McKeown received “the nontransferable right to sell ‘Gyp-Crete’ brand gypsum cement.” Pl.Ex. A; Def.Ex. M. The Agreement defines McKeown’s territory or area of primary responsibility as New England and New York State. Id. The Agreement was for a period of ten years. Id.; Stip. ¶ 8.

7. Paragraph 22 of the Agreement states that the Agreement shall be interpreted and governed by the laws of the state of Minnesota. Pl.Ex. A; Def.Ex. M.

8. The Agreement was the first distributorship agreement entered into by Gyp-Crete. Tr. 195. The Agreement was entered into at Mr. McKeown’s behest and only after several meetings and telephone conversations between Mr. McKeown and Mr. Jorgensen. Tr. 191-196. Mr. Jorgensen agreed to permit Mr. McKeown to become a distributor of the product because of Mr. McKeown’s extensive contacts in the construction industry in Connecticut and New York State, his plans and enthusiasm for developing a business as a distributor, his success as an applicator of a product previously marketed by Gyp-Crete, and Mr. Jorgensen’s satisfaction with the quality of his employees and overall operation. Tr. 191-92, 195-96, 211.

9. The Agreement contained provisions restricting the transfer of ownership or control of McKeown, see ¶ 10, infra, and restricting the sale, transfer, or assignment of the Shares except to Mr. McKeown’s sons Gerald or John, Jr., see II11, infra. Pl.Ex. A; Def.Ex. M.

10. Paragraph 14 of the Agreement reads in part as follows:

[I]f a majority of the Distributor’s [McKeown’s] voting stock is transferred (if the Distributor is a corporation) or its ownership or control is in any way substantially changed, the Company [Gyp-Crete] shall have the right to terminate this Agreement. The Agreement may be terminated upon thirty (30) days written notice for any of the reasons aforesaid.

Pl.Ex. A; Def.Ex. M (emphasis supplied).

11. Paragraph 15 of the Agreement reads in full as follows:

This Agreement may be assigned by [Gyp-Crete] and the performance of its duties thereunder delegated. This Agreement shall not be assigned by the Distributor nor the performance of its duties thereunder delegated except exclusively under the following circumstances:
(A) By assignment to either JOHN JR McKeown or GERALD McKeown, or both of them, the said JOHN JR McKeown and GERALD McKeown being the two sons of John McKeown.
(B) The prior written consent of [Gyp-Crete].
Any sale, transfer, or other assignment of more than ten percent (10%) of the corporate stock of the Distributor, should the Distributor be a corporation, shall be considered an assignment of this Distributorship for purposes of this Agreement.

Pl.Ex. A; Def.Ex. M.

12. Due to its concerns about quality control in the use of the product, Gyp-Crete originally intended to have a completely non-transferable agreement. Tr. 209-211. Provisions permitting limited transfers (to Gerald McKeown and/or John McKeown, Jr.) were included in the Agreement at Mr. McKeown's behest solely because of his hope, expressed to Mr. Jorgenson, that he could reconcile with his estranged children, involve them in the business and leave the business to them. Id.

13. The parties to the Agreement intended that McKeown would at no time be operated or controlled by anyone other than Mr. McKeown, his son John Jr., or his son Gerald. Id.

C. The Parties’ Business

14. The product is a lightweight gypsum cement that is used to create a floor surface upon which carpet or tile is placed. Tr. 181-183. The product has advantages over its -competitors because r it is lightweight, it flows easily and can be levelled easily, and it has a pleasant appearance. Id. In order to have these properties, the product must be mixed properly with water and sand at the construction site. Tr. 187. The proper ratios of water and sand are critical to the successful use of the product, and slight variations can deprive the product of its advantageous properties. Id.

15. Because proper mixing and installation are essential to the successful use of the product, see II14, supra, Gyp-Crete is greatly concerned about the quality of the product and the competence and experience of its distributors and applicators. Tr. 187, 205-206, 215-218, 266-67. Gyp-Crete’s primary activity is controlling the quality of the product as it is delivered from the manufacturer and as it is applied at the construction site. Id.

16. In order to control quality, Gyp-Crete maintains a testing laboratory and sends quality control inspectors into the field to check applications of the product at individual construction sites. Tr. 187, 217-218.

17. As a distributor of the product, McKeown received orders for the product from its customers, who were licensed applicators. Tr. 28-30. McKeown, in turn, ordered the product from Gyp-Crete, which shipped the product directly to McKeown’s customers. Tr. 29. Gyp-Crete would bill McKeown, which would then bill its customers, adding a distributor’s commission. Tr. 30. In addition to distributing the product, Mr. McKeown consulted with his customers on problems that they were experiencing in their use of the product. When applicators experienced problems with the product, Mr. McKeown would travel to the construction site to assist in resolving the problem. Tr. 31.

18. During all relevant times, McKeown had three customers: Gypsum Floors of New England, Inc., Acoustical Gypsum Floors of New York, and Acoustical Gypsum Floors, Inc. Stip. UU 36, 37; Tr. 27, 89, 101.

19. Until January 1981, Gypsum Floors of New England was owned by Mr. McKeown. Id. In January 1981, Mr. McKeown sold Gypsum Floors of New England to Veilleux and Sons. Tr. 28.

20. McKeown executed contracts with each of its three customers. Stip. ¶¶ 36, 37; Tr. 27, 89, 101; Def.Ex. K. These contracts specified the distributor’s commission that could be charged by McKeown for its services. Id.

21. Paragraph 2(B) of McKeown’s contracts with each of its customers contained a clause providing that if McKeown sold the product to anyone other than the particular customer within the customer’s defined territory, McKeown would pay to the customer in whose geographic territory the sale was made “90% of an amount equal to the sales price received by Distributor (McKeown) on any such sale or sales less its cost.” Tr. 89, 101; Def.Ex. K. This clause acted as a strong economic disincentive against McKeown developing any additional customers. Tr. 89, 101.

22. At no time did McKeown sell the product to any entity or person other than Gypsum Floors of New England, Inc., Acoustical Gypsum Floors of New York, and Acoustical Gypsum Floors, Inc. Stip. 11 37. All of McKeown’s sales were made, and, if continued, would have been made pursuant to the contracts between each of these customers and McKeown. Stip. H 39.

23. The agreements between McKeown and its customers were conceived and drafted by McKeown. Tr. 214. Gyp-Crete had no involvement in the preparation, negotiation, or execution of such agreements. Id. Gyp-Crete did not learn of the terms of such agreements until after Mr. McKeown’s death. Id.

24. From 1979 until 1981, McKeown was operated by Mr. McKeown. His fiancee, Diane B. Cyr (“Ms. Cyr”) was an officer of the corporation, and she worked part-time for McKeown, handling bookkeeping and clerical tasks. Tr. 26-28.

25. Mr. McKeown handled all technical and quality control aspects of applying Gyp-Crete flooring. Tr. 59. Ms. Cyr was not familiar with the actual application of the product and the problems related thereto. Tr. 55, 57-58. Although she often accompanied Mr. McKeown on visits to construction sites, she did not participate in Mr. McKeown’s efforts to assist McKeown’s customers in resolving problems relating to the use of the product. She did not participate in the negotiation of contracts with any of McKeown’s customers, nor was she familiar with the terms of those contracts. Tr. 73-74.

26. None of Mr. McKeown’s children took any significant interest in the business or any role in the business prior to his death. Tr. 35. Neither John McKeown, Jr. nor Gerald McKeown had sufficient familiarity with the construction industry or the product to manage the business. Tr. 171— 174.

27. During the course of their contractual relationship, Gyp-Crete did not control the commissions charged by McKeown, monitor McKeown’s financial status, solicit customers for McKeown, monitor McKeown’s solicitation of customers, direct McKeown’s hiring, or require Mr. McKeown to attend specific trade shows. Tr. 190-191, 196, 216, 219, 225. Gyp-Crete had no right under the Agreement to prescribe McKeown's hours of operation, audit McKeown’s books, set McKeown’s prices, or establish sales quotas for McKeown. See Pl.Ex. A; Def.Ex. M. Gyp-Crete provided no financial support to McKeown. While Gyp-Crete sold equipment suitable for the application of Gyp-Crete flooring, Gyp-Crete did not require its applicators to use the equipment, and McKeown did not do so. Tr. 187-189. Although Gyp-Crete had the right to review McKeown’s advertisements, Gyp-Crete reserved this right for the purpose of protecting its trademark. Tr. 223-225. Gyp-Crete never prescribed advertising for McKeown, and Gyp-Crete never disapproved any advertisement of McKeown. Id.

28. McKeown’s principal marketing plan was to sell the product to its three customers pursuant to the contracts executed with those customers. See II 20, supra. McKeown’s principal means of advertising the product was distributing paperweights made of Gyp-Crete flooring compound, and mailing to customers newspaper clippings relating to buildings that were due to be rehabilitated or that had been gutted by fire. Tr. 211-212. Gyp-Crete neither suggested nor directed these efforts. Id.

29. Gyp-Crete distributors in other states used widely differing marketing strategies, including solicitation of architects and job superintendents, mass mailings, and seminars for prospective customers. Tr. 215.

D. The Termination of the Agreement

30. In October 1980, Mr. McKeown suffered a heart attack. Tr. 33. In January 1981, Mr. McKeown sold Gypsum Floors of New England, and moved his home and the distributorship from South Windsor, Connecticut to Cape Cod, Massachusetts. Tr. 219-222. He died on July 3, 1981. Stip. ¶ 33.

31. Due to his weakened physical condition after the heart attack, Mr. McKeown was much less active as a Gyp-Crete distributor. Tr. 35. During the time immediately prior to and after Mr. McKeown’s death, the distributorship was operating in the passive role of processing invoices reflecting purchases by McKeown’s customers from Gyp-Crete. Tr. 43. Ms. Cyr may have been capable of continuing this invoice-processing activity, but a limited operation of that sort was not the arrangement envisaged by the parties to the Agreement.

32. By letter dated August 5, 1981, Gyp-Crete notified McKeown that it was terminating the Agreement “pursuant to paragraphs 14 and 15 of the Distributorship Agreement.” Stip. ¶[ 14; see Stip. ¶¶ 13, 15; Pl.Ex. H; Mi 8-11, supra. The letter stated that the Agreement would be terminated thirty days from the date of the letter. Stip. 1113. Gyp-Crete made the decision to terminate the Agreement unilaterally and without consulting McKeown’s customers. Tr. 237; Pl.Ex. F, H.

33. After notifying McKeown that it was terminating the Agreement, Gyp-Crete notified McKeown’s customers that McKeown was no longer Gyp-Crete’s distributor. Tr. 238; Pl.Ex. F. Gyp-Crete then offered to supply the product to McKeown’s former customers, and Gyp-Crete assumed the role of distributor for its product in McKeown’s former distributorship territory. Tr. 238-239. Gyp-Crete quality control teams visited McKeown’s former customers to assist them in their use of the product. Id. Gyp-Crete charged McKeown’s former customers approximately 20 percent less than they had been charged by McKeown. Id.

34. Gyp-Crete replaced McKeown with another distributor in March 1982. Tr. 238-240.

E. McKeown’s Activities Following the Termination

35. Prior to the death of Mr. McKeown on July 3, 1981, the only employees and officers of McKeown were Mr. McKeown and Ms. Cyr; the latter worked only part time. Stip. ¶ 33; see H 24, supra.

36. After Mr. McKeown’s death, Ms. Cyr, McKeown’s only officer, hired Henry L. Ledbetter (“Mr. Ledbetter”) to solve quality control problems and to operate the business. Tr. 43, 45. Mr. Ledbetter had never worked for McKeown prior to the death of Mr. McKeown, and he had never before worked with the Gyp-Crete product. Stip. 111131-32; Tr. 157, 181, 236-237.

37. On October 29, 1981, McKeown entered into separate employment contracts with Ms. Cyr, Mr. Ledbetter and Gerald McKeown. These contracts ran until 1989, when the distributorship would have ended under the Agreement, and they were not terminable by either party. Stip. Ml 40 — 42; Def.Ex. A, B, T.

38. The contracts of Ms. Cyr and Mr. Ledbetter gave each 40% of McKeown’s pre-tax profits; Gerald McKeown’s contract gave him 20% of MeKeown’s pre-tax profits. Id. Ms. Cyr’s contract also provides that she would receive 80% of the first $100,000 of any settlement to result from this action and 60% of any amount over $100,000. Id.

39. Since 1981, Ms. Cyr has accepted other employment, Mr. Ledbetter has retired by choice (and in accordance with his original plan), and Gerald McKeown has by choice been attending school. Tr. 80-82, 165, 173.

F. Disposition of the Shares

40. At the time of his death, Mr. McKeown was a resident of Barnstable County, Massachusetts. At his death, Mr. McKeown owned 99 of the 100 outstanding Shares. The other Share was owned by Ms. Cyr. Stip. H 9.

41. Mr. McKeown was survived by his four children, John P. McKeown, Jr., Gerald B. McKeown, Patricia McKeown, and Brian McKeown, and his two grandchildren, Heather and Sean, who are the children of John P. McKeown, Jr. Stip. II10.

42. Mr. McKeown left a Last Will And Testament dated January 6, 1981 (the “Will”), which was admitted to probate in Barnstable County, Massachusetts. Stip. ¶ 11; Def.Ex. N. The Will bequeathed Mr. McKeown’s shares to Ms. Cyr. Stip. II12.

43. After Gyp-Crete notified McKeown of its termination of the Agreement, Ms. Cyr executed a disclaimer of her interest in the Shares. The disclaimer was filed in the Registry of Probate in Barnstable County, Massachusetts on January 4, 1982. Stip. If 18.

44. If Ms. Cyr’s disclaimer is invalid, she owns Mr. McKeown’s stock in McKeown. Stip. ¶ 12. If Ms. Cyr’s disclaimer is valid, the Shares will pass under the terms of the Will as if she had predeceased Mr. McKeown. Def.Ex. N. If Ms. Cyr had predeceased Mr. McKeown, the Shares would be added to the residue of Mr. McKeown’s estate. Id.

45. Article SECOND of the Will bequeathed the residue of Mr. McKeown’s estate to the trustees under the “John P. McKeown Trust” (the “Trust”) under a trust agreement entered into on September 23, 1975, between Mr. McKeown as Settlor and Lester Katz, Arne H. Dalene and Mr. Ledbetter as original trustees. Stip. 1119.

46. The Trust originally excluded Gerald McKeown as a beneficiary. Thereafter, documents were signed purporting to amend the Trust to provide that its corpus should be divided into 4 equal shares, one for each of Mr. McKeown’s children. The Trust has always provided that the share of each Trust beneficiary who had not reached age 35 was to be held in trust, and distributed in equal thirds at ages 25, 30 and 35. Stip. II20.

47. Three of Mr. McKeown’s children, John, Jr., Patricia and Brian McKeown, executed disclaimers of their interests in the Shares both as beneficiaries of the Trust and as heirs or beneficiaries under the Will, which disclaimers were filed in the Registry of Probate in Barnstable County, Massachusetts on January 4, 1982. Stip. ¶[ 21.

48. If the disclaimers by Mr. McKeown’s children are invalid, the Shares will be held for them under Article FIFTH of the Trust. Def.Ex. 0. If the disclaimers by Mr. McKeown’s children are valid, the disclaimed interests will pass as if the disclaimants had predeceased Mr. McKeown. Id.

49. The Trust provides in Article FIFTH (a) that the proposed distribution to a deceased child of Mr. McKeown is to be held in trust for the deceased child’s issue. Def.Ex. 0.

50. As of March 3, 1984, John P. McKeown, Jr. was twenty-seven years old, Gerald B. McKeown was twenty-six years old, Patricia McKeown was twenty-five years old and Brian McKeown was twenty-one years old. Stip. ¶¶ 22-25.

51. As of March 3, 1984, John P. McKeown, Jr.’s child Heather was four years of age and John P. McKeown Jr.’s child Sean was just under three years of age. Stip. ¶ 26.

52. Mr. McKeown's four children and his two grandchildren are all Mr. McKeown’s issue. Stip. 11 27.

53. The Shares remain today in the hands of the executors of Mr. McKeown’s estate. Stip. 1145.

II. CONCLUSIONS OF LAW

A. Breach of Contract

Count Two of the Complaint states a claim against Gyp-Crete for common law breach of contract. In this count, McKeown alleges that Gyp-Crete’s refusal to honor the Agreement was wrongful, because -no event had occurred authorizing Gyp-Crete to cease performance under the Agreement.

McKeown’s claim appears spurious in light of paragraph 14 of the Agreement, which lists, among other events triggering Gyp-Crete’s right to terminate the Agreement, the transfer of a majority of McKeown’s stock or a substantial change in the ownership or control of McKeown. See Findings of Fact 1110, supra. It cannot reasonably be disputed that, following the death of Mr. McKeown, a “substantial change” in the control of McKeown occurred. McKeown was virtually a one-man operation from the time the Agreement was executed until October 1980, when Mr. McKeown suffered a heart attack. Id. at 111124, 25, 31. Mr. McKeown’s only assistance in operating the distributorship came from Ms. Cyr, who handled only bookkeeping and clerical tasks. Id. If Mr. McKeown’s death was not a substantial change in the operation of McKeown, it is difficult to imagine what event would constitute a substantial change in violation of paragraph 14.

In all other respects, Gyp-Crete’s termination of the Agreement as a result of the change in McKeown's control was fully authorized by the Agreement. It is uncontested that Gyp-Crete gave McKeown thirty days’ written notice of the termination, as required by paragraph 14. Id. at ¶¶ 10, 32; Tr. 47. The Agreement places no other limitations or obligations on Gyp-Crete’s exercise of its right to terminate the distributorship.

The plaintiff offers two reasons why the court may not rely on paragraph 14 as a justification for Gyp-Crete’s termination of the Agreement. First, McKeown argues that any reliance on paragraph 14 is inappropriate because Gyp-Crete’s notice to McKeown of the termination states that the reason for the action was McKeown’s breach of paragraph 15. Thus, concludes McKeown, any reliance on paragraph 14 is “mere subterfuge.” Plaintiff’s Post Trial Brief (filed Mar. 7, 1985) (“Plaintiff's Brief”) at 13.

The plaintiff’s argument suggests that Gyp-Crete was under some obligation to explain to McKeown the reasons for its termination. In fact, no such obligation existed under the Agreement. The plaintiff has failed to identify any authority for the proposition that, absent a contractual obligation, a party choosing to exercise its right to terminate a contract must notify the other party of its reasons for doing so. In any event, Gyp-Crete’s letter to McKeown of August 5, 1981 does refer to paragraph 14, see Findings of Fact 1132, supra, and McKeown clearly was aware that the termination was prompted by the death of the founder, operator, and 99% owner of McKeown.

McKeown also contends that the court should ignore paragraph 14 in its entirety, because the prohibition in paragraph 14 on the transfer of a majority of McKeown’s stock conflicts with paragraph 15, which permits Mr. McKeown to assign the Shares to his sons Gerald and John Jr. Applying the proposition that, where two conflicting provisions in a contract apply to the same conduct, the more specific provision controls, see 3 Corbin, Contracts, § 547, at 172-178 (rev. ed. 1971), McKeown argues that paragraph 15 is the more specific provision and, consequently, paragraph 14 should be ignored.

The law requires that, whenever reasonably possible, courts should interpret contract language so as to reconcile arguably contradictory clauses. See State Farm Mutual Automobile Insurance Co. v. Hedberg, 236 F.Supp. 797, 801 (D.Minn. 1964) (applying Minnesota law), aff'd, 350 F.2d 924 (8th Cir.1965); Corbin, supra, at 173 n. 17. Contracts should be read to minimize conflicts, and one clause should yield to another only where the two are unmistakably inconsistent. Id. Applying this rule to the Agreement, it is apparent that a conflict between paragraphs 14 and 15 exists only when triggered by one event — the transfer of the Shares or control of McKeown to Gerald McKeown or John McKeown, Jr. Since that event did not occur, the court can and must give full effect to both paragraphs, and paragraph 14 must be read to mean exactly what it says — that any substantial change in the control of McKeown, such as that which occurred upon Mr. McKeown’s death, triggers Gyp-Crete’s right to terminate the distributorship. See Medtronic, Inc. v. Catalyst Research Corp., 518 F.Supp. 946, 951 (D.Minn.) (applying Minnesota law) (“In construing the contract, the words must be given their plain and ordinary meaning ... and each word of the contract should be given effect whenever possible” [emphasis in original]), aff'd, 664 F.2d 660 (8th Cir.1981). The plaintiff has identified no authority in the law of Minnesota or any other arguably relevant jurisdiction that would permit the court to read out of the contract paragraph 14 in its entirety, merely because in one circumstance — the transfer of shares to Gerald and John Jr. — paragraph 15 would create an exception to the general rule of paragraph 14.

This interpretation of paragraphs 14 and 15 is based upon the language of the Agreement alone. However, it amply is supported by evidence presented at trial concerning the intent of the parties in drafting the clauses at issue. The defendant presented uncontroverted testimony that the parties intended and understood that Gyp-Crete’s continued performance under the Agreement was conditioned upon Mr. McKeown’s continued involvement in, and ownership of, McKeown. See Findings of Fact ¶ 13, supra. The provision concerning Gerald McKeown and John McKeown, Jr. was added at Mr. McKeown’s request and was intended solely to permit Mr. McKeown to train one of his sons in the business and, ultimately, leave the business to him. Id. at 1112. Inclusion of this provision in paragraph 15 clearly was not intended to vitiate the effect of paragraph 14.

McKeown claims that the parol evidence rule bars the court’s consideration of extrinsic evidence as to the parties’ intent in drafting the Agreement. See Plaintiffs Brief at 19-20. However, it is the plaintiff’s argument, rather than the defendant’s, that relies on arguable ambiguities in the Agreement. The plaintiff contends that paragraphs 14 and 15 are contradictory and that, as a result, the court should read paragraph 14 out of the Agreement. A contract containing facially incompatible terms inherently is ambiguous, and parol evidence is admissible to ascertain the parties’ intent at the time of contracting. Medtronic, Inc. v. Catalyst Research Corp., supra, 518 F.Supp. at 951. Furthermore, the plaintiff suggests that the prohibition on “any ... substantial change” in the control of McKeown, see Findings of Fact ¶10, supra, does not bar the substantial change that indisputably has occurred here. For a prohibition on “any substantial change” not to apply to this particular change, the Agreement must be ambiguous, and resort to parol evidence is appropriate. See id.; RJM Sales & Marketing, Inc v. Banfi Products Corp., 546 F.Supp. 1368, 1374 (D.Minn.1982) (applying Minnesota law). If the plaintiff is incorrect and the prohibition on “any substantial change” does bar this change, the court need not have reached the question of the admissibility of parol evidence. In any event, it is unnecessary for the court to resort to parol evidence to find that Gyp-Crete’s termination of the distributorship was authorized by the Agreement.

In light of the court’s conclusion that Gyp-Crete’s termination of the Agreement was authorized pursuant to paragraph 14 of the Agreement, McKeown’s claim for breach of contract must fail. Therefore, it is unnecessary for the court to determine whether paragraph 15 provided an additional basis for Gyp-Crete’s termination of the Agreement.

B. Connecticut Franchise Act

Count Three of the Complaint is a claim under the Connecticut Franchise Act, Conn. Gen.Stat. § 42-133e to 42-133h, which defines a franchise as

an oral or written agreement or arrangement in which (1) a franchisee is granted the right to engage in the business of offering, selling or distributing goods or services under a marketing plan or system prescribed in substantial part by a franchisor, ... and (2) the operation of the franchisee’s business pursuant to such plan or system is substantially associated with the franchisor’s trademark, service mark, trade name, logotype, advertising or other commercial symbol designating the franchisor____

Conn.Gen.Stat. § 42-133e(b). Under Connecticut law, a franchisor must give the franchisee sixty days’ notice of the termination of the franchise, and may only terminate the franchise for “good cause.” Conn.Gen.Stat. § 42-133f(a).

McKeown has failed to establish that it operated under a “marketing plan or system prescribed in substantial part” by Gyp-Crete. McKeown’s marketing plan appears to have consisted of identifying and contracting with its three customers, and encouraging those three customers to increase their use of the product. See Findings of Fact ¶¶ 18-22, 28, supra. McKeown did not attempt to solicit any additional customers, and paragraph 2(B) of the contracts between McKeown and its customers acted as a disincentive for McKeown to do so. Id. at II21. Gyp-Crete never prescribed such a marketing plan, nor would it have any reason to prescribe a plan that created a disincentive for McKeown to develop new customers. In fact, Gyp-Crete became aware of this disincentive to new business only after Mr. McKeown’s death. Id. at 1123. In addition, while Gyp-Crete retained the right, under paragraph 5(D) of the Agreement, to approve McKeown’s advertising, Gyp-Crete had no right to prescribe any particular advertising for McKeown. The right of a manufacturer to approve or disapprove a distributor’s advertising does not, without substantially more, prove the existence of a franchise. See Consumers Petroleum of Connecticut, Inc. v. Duhan, 38 Conn.Sup. 495, 452 A.2d 123, 125 (1982) (no franchise found where alleged franchisor had right to approve other party’s advertising and prescribe its hours of operation and minimum number of employees).

A review of cases in which a franchise relationship was found to exist supports the court’s conclusion that no such relationship existed between Gyp-Crete and McKeown. Among the factors identified by other courts as relevant to the existence of a franchise are the manufacturer’s right to dictate the distributor’s advertising, see Carlos v. Philips Business Systems, Inc., 556 F.Supp. 769, 777 (E.D.N.Y.) (construing Connecticut Franchise Act), aff'd, 742 F.2d 1432 (2d Cir.1983), to dictate the number of the distributor’s employees, see id., to set the prices charged by the distributor, see Arnott v. American Oil Co., 609 F.2d 873 (8th Cir.1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1852, 64 L.Ed.2d 272 (1980), and to audit the distributor’s books, see Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978). Other factors suggesting the existence of a franchise are that the alleged franchisor sets sales quotas for the alleged franchisee, provides management training and financial support, and hires the franchisee’s employees. Consumers Petroleum of Connecticut v. Duhan, supra, 452 A.2d at 125. None of these factors are present in this case. Nor does the Agreement refer to the relationship between Gyp-Crete and McKeown as a “franchise.” See Jenkins v. Haworth, Inc., 572 F.Supp. 591, 600 (W.D.Mich.1983) (absence of term “franchise” in agreement between parties is relevant, although not determinative, of non-existence of franchise for purposes of Connecticut Franchise Act).

Accordingly, the court finds that the relationship between Gyp-Crete and McKeown was not a “franchise” pursuant to the Connecticut Franchise Act. In any event, a contrary conclusion would not have entitled Gyp-Crete to the damages sought in the Complaint. Since McKeown’s breach of the Agreement would have constituted “good cause” to terminate a franchise; Gyp-Crete’s only arguable violation of the Connecticut Franchise Act would be its failure to give McKeown sixty days’ advance notice of the termination. See Conn.Gen.Stat. § 42-133f(a). Such a violation at most would entitle McKeown to recover lost profits for the thirty additional days it would have been in operation prior to the date that termination would be permitted under the Connecticut Franchise Act.

C. Connecticut Unfair Trade Practices Act

Count Four of the Complaint is a claim under the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn.Gen.Stat. §§ 42-110a to 42-110q, which prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen.Stat. § 42-110b(a). The plaintiff has neither alleged nor demonstrated that Gyp-Crete engaged in any “deceptive” act; it claims, rather, that Gyp-Crete’s termination of the Agreement was “unfair.” See Plaintiff’s Brief at 28.

CUTPA specifically provides that in construing Section 42-110b(a), the state courts “shall be guided by interpretations given by the Federal Trade Commission and the federal courts to section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. § 45(a)(1)), as from time to time amended.” Conn.Gen.Stat. § 110b(b). In keeping with this command, the Connecticut Supreme Court has adopted the following factors, which were developed by the Federal Trade Commission, to determine whether a practice is “unfair”:

(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).

Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 539 n. 13, 461 A.2d 1369, 1374 (1983) (Peters, J.), quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n. 5, 92 S.Ct. 898, 905 n. 5, 31 L.Ed.2d 170 (1972); see Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747, 756, 474 A.2d 780, 786 (1984) (reciting and employing same factors). It follows that federal courts called upon to construe CUT-PA also should look for guidance to decisions interpreting Section 5(a)(1) of the Federal Trade Commission Act. See Bailey Employment System, Inc. v. Hahn, 655 F.2d 473, 477-478 (2d Cir.1981). The court already has found that Gyp-Crete terminated the Agreement for good cause, pursuant to the terms of the Agreement itself. Accordingly, there can be nothing unfair or deceptive either in Gyp-Crete’s termination of the Agreement, or in its offer, made only after the termination, to supply the product directly to McKeown’s former customers. See Findings of Fact ¶33, supra.

D. Malicious Interference with Business Relations

The Sixth Count of the Complaint alleges that Gyp-Crete “coerced, induced or persuaded the plaintiff’s customers to cease doing business with the plaintiff” and that such conduct constitutes “tortious interference with the Plaintiff’s advantageous business relations.” Complaint MI 82-95.

To establish a claim under Connecticut law for tortious interference with business relations or expectancies, a plaintiff must prove that the defendant engaged in “fraud, misrepresentation, intimidation, obstruction or molestation,” Skene v. Carayanis, 103 Conn. 708, 714, 131 A. 497 (1926), or that the defendant “acted maliciously.” Jones v. O’Connell, 189 Conn. 648, 660, 458 A.2d 355, 361 (1983); Goldman v. Feinberg, 130 Conn. 671, 675, 37 A.2d 355, 356 (1944); see also Busker v. United Illuminating Co., 156 Conn. 456, 461, 242 A.2d 708, 711 (1968) (“The essential elements of this cause of action are: (1) the defendant’s conduct was tortious in that it was fraudulent; and (2), as a proximate consequence of that fraudulent conduct, the plaintiff suffered actual loss, as alleged, in being deprived of an opportunity which he would otherwise have had”).

To some extent, the court’s ruling on McKeown’s CUTPA claim is determinative of this claim as well. As the Connecticut Supreme Court has observed,

CUTPA has come to embrace a much broader range of business conduct than does the common law tort action [of interference with business expectancies] ____
... Conduct that might be actionable under CUTPA may not rise to a level sufficient to invoke tort liability. The reverse of that proposition, however, is seldom true.

Sportsmen’s Boating Corp. v. Hensley, supra, 192 Conn, at 756, 474 A.2d at 786.

The plaintiff has failed to demonstrate that Gyp-Crete engaged in any conduct arguably constituting tortious interference with business relations. Following its lawful termination of the Agreement, Gyp-Crete offered to supply the product directly to McKeown’s former customers. See Findings of Fact HIT 33-34, supra. Gyp-Crete did so for many months after the termination, until it entered into an agreement with a new distributor. Id. Gyp-Crete’s sales of its product to willing customers after the lawful termination of the Agreement hardly can be characterized as fraudulent or malicious conduct.

E. Connecticut Anti-Trust Act

Count Five of the Complaint is a claim under the Connecticut Anti-Trust Act, Conn.Gen.Stat. §§ 35-24 to 35-45. Specifically, McKeown alleges that Gyp-Crete’s conduct in terminating the Agreement and supplying the product to McKeown’s former customers is a violation of Section 35-28(d), which declares unlawful any “contract, combination and conspiracy” that has the purpose or effect of “refusing to deal, or coercing, persuading, or inducing third parties to refuse to deal with another person.” Conn.Gen.Stat. § 35-28(d).

It is well-settled that an individual or corporation cannot alone contract, combine, or conspire to violate the antitrust laws. Thus, “a violation of Section 35-28 ... requires a plurality of actors.” Shea v. First Federal Savings & Loan Association of New Haven, 184 Conn. 285, 306, 439 A.2d 997, 1007 (1981); Brodigan, The Connecticut Antitrust Act, 47 Conn.B.J. 12, 16 (1973); R. Bork, The Antitrust Paradox 330-346 (1978) (federal antitrust law principles). No antitrust violation exists where a manufacturer unilaterally elects to exercise its rights under a distributorship agreement to terminate that agreement; nor does any violation occur when, after the termination, the manufacturer informs the former customers of the terminated distributor that they can place orders directly with the manufacturer. See Monsanto Co. v. Spray-Rite Services Corp., 465 U.S. 752, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984) (“A manufacturer of course has a right to deal, or refuse to deal, with whomever it likes, as long as it does so independently”); Burdett Sound, Inc. v. Altec Corp., 515 F.2d 1245, 1249 (5th Cir.1975) (“[I]t is simply not an antitrust violation for a manufacturer to contract with a new distributor, and as a consequence, to terminate his relationship with a former distributor, even if the effect of the new contract is to seriously damage the former distributor’s business”).

The court already has determined that Gyp-Crete unilaterally terminated the Agreement. See Findings of Fact 11 32, SUpra. There was no contract or agreement between Gyp-Crete and any of McKeown’s customers until after McKeown was notified of the termination of the Agreement. Id. at ¶ 33. These findings preclude any conclusion that Gyp-Crete violated Section 35-28.

The Complaint also states a claim pursuant to Conn.Gen.Stat. § 35-27, which declares unlawful any “contract, combination or conspiracy to monopolize, or attempt to monopolize, or monopolization of any part of trade or commerce.” Complaint 1180(a), (b), (d), (e). There is no mention of Section 35-27 in the Plaintiff's Brief, and it is assumed that McKeown has abandoned this claim. In any event, McKeown presented no evidence at trial on the issue of Gyp-Crete’s attempts to achieve a monopoly, and there is no basis upon which the court could find Gyp-Crete in violation of Section 35-27.

Conclusion

For the reasons stated above, the court finds that the plaintiff has failed to carry the burden of proof on any count of the Complaint. Accordingly, the defendant is entitled to an entry of judgment in its favor. Judgment shall enter forthwith.

It is so ordered.

      . Minnesota law apparently is applicable to this action, by virtue of the choice of law provision contained in the Agreement. See Findings of Fact ¶ 7, supra. The plaintiff repeatedly has stated that the substantive law of Minnesota applies to its breach of contract claim, see Plaintiff’s Trial Brief (filed Jan. 3, 1985) at 3; Plaintiffs Post Trial Brief (filed Mar. 7, 1985) at 5, 10; since the defendant has never contested this point, it is presumed to agree.

      . Under Minnesota law, see note 1, supra, the parol evidence rule is a rule of substantive law prohibiting the admission of parol evidence to vary or contradict the language of a complete and unambiguous written agreement. RJM Sales & Marketing v. Banfi Products Corp., 546 F.Supp. 1368, 1374 n. 5 (D.Minn.1982); Flynn v. Sawyer, 272 N.W.2d 904, 908 (Minn.1978). Parol evidence is admissible to vary or contradict the terms of a written contract if the agreement is incomplete or ambiguous. Id.; see also 3 Corbin, Contracts § 573, at 357-358 (rev. ed. 1971) (“When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing”).

      . This disincentive arguably is inconsistent with McKeown's obligation under paragraph 5(E) of the Agreement to "actively solicit ... applications by persons and companies to become licensees." See Pl. Ex. A; Def. Ex. M.

      . "Good cause” for terminating a franchise includes, but is not limited to, "the franchisee’s refusal or failure to comply substantially with any material and reasonable obligation of the franchise agreement.” Conn.Gen.Stat. § 42-133f(a). McKeown's breach of Paragraph 14 of the Agreement would constitute such a refusal or failure.

      . The parties’ election to have the law of Minnesota govern the Agreement, see Findings of Fact ¶ 7; note 1, supra, does not affect the availability to the plaintiff of a claim under the Connecticut Unfair Trade Practices Act (“CUT-PA”). See R & R Associates of Connecticut v. Deltona Corp., Civil No. H 80-240 (D.Conn. May 19, 1982) (oral ruling) (holding that CUTPA claim is available to plaintiff despite choice of law provision in agreement specifying applicability of Florida law). The defendant does not contend that the choice of law provision has any bearing on the availability in this action of a CUTPA claim.

      . This conclusion flows from the well-established proposition that, in deciding a question of state law, a federal court whose jurisdiction is based upon diversity of citizenship should attempt to ascertain how the relevant state’s highest court would rule. See Bernhardt v. Polygraphic Co. of America, Inc., 350 U.S. 198, 209, 76 S.Ct. 273, 279, 100 L.Ed. 199 (1956) (Frankfurter, J., concurring); Cunninghame v. The Equitable Life Assurance Society of the United States, 652 F.2d 306, 308 (2d Cir.1981).

      . Although McKeown does not raise this question, it is arguable that a cause of action under CUTPA may be established by proof that a business practice of the defendant has caused a substantial injury to the plaintiff that outweighs the benefits to consumers arising from that practice. See McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 569-571, 473 A.2d 1185, 1192 (1984) (“McLaughlin "). In apparent dicta in McLaughlin, supra, the Connecticut Supreme Court seemed to suggest that a practice may be prohibited by CUTPA even though it meets only one of the criteria identified in FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n. 5, 92 S.Ct. 898, 905 n. 5, 31 L.Ed.2d 170 (1972). However, even if this court were convinced that CUTPA prohibits an otherwise lawful and fair business practice merely because the practice results in substantial injury to competitors without a corresponding benefit to consumers (and that is far from clear), the plaintiff in this case has failed to prove that the injury to the plaintiff outweighs the benefits reaped by its former customers as a result of receiving the Gyp-Crete product from Gyp-Crete at a substantially lower price than they had been charged by McKeown. See Findings of Fact ¶ 34, supra.


author: STANLEY S. HARRIS, District Judge.

text:
    Carr L. DONALD, Plaintiff, v. Alejandro ORFILA, Defendant.
    Civ. A. No. 84-3331.
    United States District Court, District of Columbia.
    July 30, 1985.

      Francis X. McLaughlin, Kensington, Md., for plaintiff.
    William M. Berenson, Diana S. LaVertu, Organization of American States, William D. Rogers, Darrell J. Hieber, Arnold & Porter, Washington, D.C., for defendant.
   MEMORANDUM OPINION AND ORDER

STANLEY S. HARRIS, District Judge.

This case now is before the Court on the motion of the defendant to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b). The Court holds that dismissal is warranted because the defendant, the former Secretary General of the Organization of American States (OAS) is absolutely immune from liability for actions resulting in the termination of the plaintiff’s employment at the OAS.

The defendant’s claim of immunity is based on three sources: The International Organizations Immunities Act of 1945 (IOIA), 22 U.S.C. § 288d(b); the OAS Charter, Feb. 27, 1967, 2 U.S.T. 2394, T.I.A.S. No. 2361, as amended, 21 U.S.T. 607, T.I.A.S. No. 6849; and general principles of international law. The Court need look only to the first to dispose of this case.

The IOIA confers immunity if the following requirements derived from § 288d(b) are met:

1. The OAS must be a public international organization with participation by the United States as a member under treaty or an Act of Congress, and recognized by Executive Order of the President as eligible to receive the privileges and immunities granted by § 288.
2. The defendant must have been accepted as and notified by the Department of State regarding his appointment as Secretary General of the OAS.
3. The OAS must not have waived immunity under § 288d(b).
4. The acts complained of must have been performed by the defendant in his official capacity and must have fallen within his functions as Secretary General of the OAS.

Apparently, the plaintiff has conceded that the defendant has met the first three requirements because he bases his argument against immunity solely on the defendant’s alleged failure to meet the last.

The plaintiff argues that the last requirement cannot be met because the defendant, in terminating the plaintiff’s employment, acted in bad faith to cover up his own improprieties in office. Such allegedly evil personal motives, it is contended, would remove the defendant’s actions from the ambit of functional duties performed in his official capacity to nonfunctional duties beyond the scope of his authority. The plaintiff argues further that even if the immunity applies, it is qualified rather than absolute in nature.

The plaintiff’s arguments confuse and erode the distinction between absolute and qualified immunity. By allowing motivation to be initially determinative of the application of either type of immunity, the Court would emasculate the essence of absolute immuiiity for if immunity is absolute, the suit is defeated at the outset with no inquiry as to motivation. Only with regard to qualified immunity does the inquiry proceed to the motivation and circumstances of the actions in question. See Imbler v. Pachtman, 424 U.S. 409, 419 n. 13, 96 S.Ct. 984, 989 n. 13, 47 L.Ed.2d 128 (1976). Motivation, the primary determinative factor of qualified immunity, cannot convert official actions within the scope of absolute immunity into those beyond the scope of immunity. Therefore, the Court rejects motivation as the initial inquiry and instead focuses on the nature of the immunity conferred by the IOIA.

The plaintiff bases his contention that the immunity is qualified on the language of the IOIA, i.e., that certain requirements as specified here previously must be met. The qualifying language of the statute is, however, neither conclusive of nor synonymous with the nature of the resulting immunity. Rather, the statute limits merely the application or, in other words, the scope of the immunity.

There are no precedents directly on point but inferences can be drawn from cases with similar questions. In discussing § 288d(b), the District Court for the Southern District of New York stated: “The foregoing provision adopted a functional criterion for determining the scope of immunity.” United States v. Melekh, 190 F.Supp. 67, 79 (S.D.N.Y.1960). In Melekh, the defendant’s actions did not grow out of his official actions, but the Court said if the actions had been ancillary to his United Nations functions, the defendant would have received “complete immunity” under the IOIA. Id. at 79-80.

The Court of Appeals for the District of Columbia Circuit stated with regard to the immunity of an organization under the Foreign Services Act:

The United States has accepted without qualification the principles that international organizations must be free to perform their functions and that no member state may take action to hinder the organization. * * * International officials should be as free as possible, within the mandate granted by the member states, to perform their duties free from peculiarities of national politics. * * * It would seem singularly inappropriate for the international organization to bind itself to the employment law of any particular member, and we have no reason to think that either the President or Congress intended this result. An attempt by the courts of one nation to adjudicate the personnel claims of international civil servants would entangle those courts in the internal administration of those organizations.

Broadbent v. Organization of American States, 628 F.2d 27, 34-35 (D.C.Cir.1980). This discussion of the policy behind the rules of immunity is significant here. Furthermore, the Court, in Broadbent, explained by citing legislative history that the immunity granted by the IOIA was the same absolute immunity from suit enjoyed by foreign governments at the time of the IOIA’s enactment. Id. at 30.

Other legislative history reveals that the absolute immunity granted to the international organization was intended to extend to officers and employees. “In general, as stated at the beginning of this report, the privileges and immunities provided in this legislation are similar to those granted by the United States to foreign governments and their officials.” H.R.Rep. No. 1203, 79th Cong., 1st Sess. 2, reprinted in U.S. Code Cong. & Ad.News 950. Thus, Congress intended that the nature of § 288d(b) immunity be absolute although its scope was limited by a functional criterion.

For the reasons given, including the implications of court decisions, the purpose behind a grant of absolute immunity and legislative history, the Court finds that where the acts of the defendant were performed in his official capacity and fell within his functions as Secretary General of the OAS, the defendant is absolutely immune from suit.

The final inquiry, then, is whether the defendant’s acts satisfy the functional criterion for absolute immunity. In his opposition to the motion to dismiss, the plaintiff admits that the OAS authorizes the Secretary General to hire and fire personnel according to the OAS Charter and its General Standards. By so admitting, the plaintiff has agreed that personnel management was among the functional duties of the defendant as Secretary General.

Therefore, since the motives behind the defendant’s actions in abolishing the plaintiff’s position do not convert such acts into acts which are outside the scope of the authority of the Secretary General and since the plaintiff concedes that the Secretary General is authorized to hire and fire personnel as part of his functional duties and since the defendant has met all other requirements necessary for the application of immunity under 22 U.S.C. § 288d(b), the defendant is absolutely immune from suit in this case.

In accordance with the foregoing and upon consideration of the defendant’s motion, the opposition thereto, and the reply, it hereby is

ORDERED, that the complaint is dismissed. It hereby further is

ORDERED, that the defendant’s request for the sanction of attorney’s fees is denied as unwarranted in the circumstances in that relevant prior authorities are not as clear and controlling as the defendant contends.

SO ORDERED.

      . In support of his opposition, plaintiff states that the Court must accept as true his allegations that the defendant acted in bad faith and beyond the scope of his authority by maliciously interfering with the plaintiffs employment rights and intentionally causing the plaintiff to suffer mental and emotional distress. These are legal conclusions, however, and it is only the well-pleaded material facts which are to be taken as admitted. Shear v. Nat’l Rifle Ass'n, 606 F.2d 1251, 1253 (D.C.Cir.1979); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir.1978).

      . While the Supreme Court dealt with prosecutorial immunity in Imbler and the footnote cited was derived from cases dealing with state officials, the distinction between absolute and qualified immunity also applies to governmental immunity as here.


author: CASTAGNA, District Judge.

text:
    EWING AND THOMAS, P.A., a Florida corporation, Petitioner, v. Merlin W. HEYE, District Director of the Internal Revenue Service, Roscoe L. Egger, Jr., Commissioner of the Internal Revenue Service, and the United States, Respondents.
    No. 84-1181 Civ-T-15.
    United States District Court, M.D. Florida, Tampa Division.
    July 30, 1985.

      J. Miles Buchman, Tampa, Fla., for petitioner.
    William H. Dowdy, Atty., Tax Div., Dept, of Justice, Washington, D.C., for the U.S.
   ORDER

CASTAGNA, District Judge.

The Court has considered all of the pleadings filed in this case. The parties agree that there is no dispute as to any material fact relevant to the primary relief requested in the complaint. Moreover, they agree that the requests for injunctive relief are moot because the Government took the corrective actions demanded in the complaint. The only issue which remains to be resolved is the attorneys fees issue.

Under 26 U.S.C. § 7430 (Internal Revenue Code) a prevailing party in a civil proceeding in which the Government’s position is unreasonable is entitled to a fee award. The Petitioner argues that this suit was necessary because of the Internal Revenue Service’s unreasonable position with respect to the relief requested and that the Government was prompted to take the proper actions only after the suit was filed. That argument has more than ample support in the record. It is fairly clear that this petitioner has some basis for feeling that he was driven into court.

The Government argues that 26 U.S.C. § 7430 only provides attorney fee awards where the Government advances an unreasonable litigation theory in the civil proceeding and that in this suit the Government has acted reasonably from prior to filing its answer. Although the Government’s contention in this case perhaps runs counter to some notions of fairness, case-law in this circuit does support the Government’s argument. See Ashburn v. United States, 740 F.2d 843 (11th Cir.1984) and White v. United States, 740 F.2d 836 (11th Cir.1984). The Petitioner distinguishes Ashburn and White on the basis that they were decided under a former provision of the Equal Access to Justice Act, not the Internal Revenue Code. However, there is no apparent basis in this circuit for assuming that the position of the United States in a “civil proceeding” under 26 U.S.C. § 7430 would be interpreted more generously than the position of the United States in a “civil action” under the former 28 U.S.C. § 2412(d)(1)(A) (1982) to include compensation for unreasonable agency action. Indeed, in view of the conflicting caselaw in analogous situations under seemingly similar federal legislation, this Court concludes that Congress would have been explicit if it had intended to provide attorney fee relief for proceedings prior to the “civil proceedings.”

The Petitioner cites Kaufman v. Egger, 758 F.2d 1 (1st Cir.1985) to support the argument that 26 U.S.C. § 7430 is designed to provide fee relief in situations where unreasonable bureaucratic bungling forces the taxpayer to bring suit to correct the error. However, the plain language of that statute does not support such a construction. Read in context, “civil proceeding” is defined as an action brought in a court of the United States and the fee award is only appropriate where the position of the United States in that court is unreasonable. The issue here is not fairness. The issue is whether the Congress has made the relief requested available to this Petitioner.

Furthermore, as a policy matter, if an award of attorneys’s fees were available in such a case as this, where the Government admits the primary claim in its answer, the parties would be left to litigate the collateral issue of whether or not the IRS acted reasonably prior to the civil proceeding. The prospect of that situation might well act as a disincentive to a quick resolution of the primary claim by the Government in all but the few cases where the IRS is willing to stipulate that it acted unreasonably at the agency level.

Having considered the foregoing, it is

ORDERED:

1. That the Respondents’ Motion for Summary Judgment is granted.

2. That the Petitioner’s Motions for Summary Judgment and Award of Attorneys Fees are denied.


author: BALLANTINE, District Judge.

text:
    Eugene ROYALTY, Plaintiff, v. FEDERAL CROP INSURANCE CORPORATION, Defendant. Paul JENKINS, Plaintiff, v. INTERNATIONAL BUSINESS & MERCANTILE REASSURANCE COMPANY, Defendant.
    Nos. C 84-0280-L(B), C 84-0151-L(B).
    United States District Court, W.D. Kentucky, Louisville Division.
    Aug. 6, 1985.
    W. Earl Dean, Harrodsburg, Ky., for plaintiff.
    Richard Dennis, Asst. U.S. Atty., Louisville, Ky., for defendant in No. C 84-0280-L(B).
    Robert Spragens, Lebanon, Ky., for defendant in No. C 84-0151-L(B).
   MEMORANDUM

BALLANTINE, District Judge.

These consolidated actions seek recovery under two policies of crop insurance. The case was tried to the Court on August 1 and August 2, 1985, and the following constitutes the Court’s findings of fact and conclusions of law. F.R.Civ.P. 52.

Jurisdiction in action C 84-0151-L(B) is founded on diversity, Title 28 U.S.C. Section 1332(a)(1), and jurisdiction in action C 84-0280-L(B) is founded on Title 7 U.S.C. Section 1508(c).

Plaintiff Royalty owned a 235-acre farm in Washington County, Kentucky. In late 1982 he was approached by plaintiff Jenkins who wanted to lease 11 acres, more or less, on which to raise a tobacco crop. Royalty and Jenkins reached an agreement by which they would share equally in the cost of preparing the tobacco bed and in the proceeds of the sale. They intended to raise about 22,000 pounds of tobacco on Royalty’s farm.

In addition to the crop he planned to raise on Royalty’s farm, Jenkins had committed himself to raising an additional 60,-000-plus pounds of tobacco on other farms in Washington and Nelson Counties. This was twice as much tobacco as Jenkins had ever raised before and twice as much as he raised in 1984.

Royalty was the owner of an insurance agency and he procured crop insurance for Jenkins through defendant, International Business & Mercantile Reassurance Company (IBMR). For reasons not entirely clear to the Court, Royalty procured insurance on his interest in the crop with defendant, Federal Crop Insurance Corporation (FCIC).

In April, 1983, Buford Sea, at the request of Jenkins, began to plough the ground on the Royalty farm. At the time the agreement was made between Jenkins and Royalty, the land in question had not been farmed in several years. It was planted in fescue, red clover, orchard grass, and perhaps some alfalfa. Before Sea could complete the ploughing a rainy spell set in and the ploughing could not be completed until June 25 or 26.

July 1 was the deadline before which the tobacco had to be planted, failing which the insurance was ineffective. On June 29 and 30, Jenkins, with the help of his daughter, his son-in-law, and his brother-in-law, set the tobacco in the hurriedly prepared field. Although plaintiffs’ witnesses testified that the tobacco plants were set two inches deep by a tobacco setter, the evidence, supported by photographs, demonstrates that this simply isn’t so.

In any event, it is undisputed — and the Court has an independent recollection— that a drought set in after the rainy spell and that the months of June, July and August, 1983, were disastrous to farmers in Kentucky and elsewhere.

On July 20, 1983, after receiving a notice of a possible loss claim from the plaintiffs, an adjuster for FCIC visited the Royalty farm. He made a preliminary inspection and he returned to the Royalty farm either July 26 or July 28. On that occasion he found an excessive amount of sod and rock present in the ploughed field. The adjuster found that the ground was hard and that 93.2% of the tobacco plants were either dead or missing. He further found that the plants had been set to a depth of 1 inch. He further testified that about % of an acre in the field had not been worked at all.

Foster Hogan, a crop claims supervisor for IBMR, received notice of the possible claim and on July 21 he sent two adjusters to examine the Royalty farm. After considering the report of his adjusters, Hogan himself went to the Royalty farm on July 28. He found a large percentage of dead tobacco plants with their roots exposed. Relying on his experience, Hogan concluded that the field was not in the proper condition for planting because of inadequate ploughing and excessive rock in the field. He did find that some plants had survived on about two acres which had previously been used for a tobacco crop.

It was developed at trial that on or about July 4, 1983, there was a .3-inch rain but that this was the only rain which fell during the summer months.

It was established at trial that tobacco, when it is set at first, will thrive, but after about 24. hours it wilts. Tobacco then regains its vitality and should, from that point on, continue to grow. There was a suggestion that the .3-inch rain may have plastered the leaves of tobacco to the ground if the rain fell during the time the tobacco was in a wilted state. The Court is not persuaded that this suggestion is credible in light of all the other evidence.

Perhaps the most damaging testimony against the plaintiff came from Rick Green-well, the Washington County Extension Agent employed by the University of Kentucky College of Agriculture.

On July 26 Greenwell went to the Royalty farm. He found that the field had not been ploughed deeply enough and that plants were lying on top of the ground with their roots exposed. He found strips of fescue sod scattered about and considerable rock on the ground. Ninety-seven percent of the plants were dead.

Greenwell was originally concerned that the condition which he saw had been caused by plant disease or by an infestation of insects. He later determined that the preparation of the land was improper. He testified that as of July 26 when he examined the field, the drought had not been sufficiently severe to cause the death of the plants. It was conceded by all parties that tobacco is an unusually hardy plant and that even in the drought conditions of the summer of 1983, a considerable amount of tobacco was produced in Kentucky. Admittedly, it was not as well developed as in other years, but photographic exhibits introduced by plaintiffs show that at least one of Jenkins’s crops of tobacco survived the drought.

Bobby Brady, the FCIC adjuster, testified that the ground should have been ploughed in the fall of 1982 and certainly no later than February, 1983. This testimony is disputed by plaintiffs and their witnesses, who contended that had the field been ploughed in the fall of 1982, the erosion damage would have been substantial.

The land in question is a soil type called Eden shale which has a high clay content. By its nature, Eden shale also contains a substantial amount of rock.

Plaintiffs also introduced evidence that they had applied a considerable amount of fertilizer, at least one ton per acre.

The policies of insurance exclude coverage for losses which result from “failure to follow recognized good farming and harvesting practices.”

The Court concludes that plaintiffs have failed to sustain their burden of proof. The overwhelming evidence in this case establishes that plaintiff Jenkins overextended himself in an attempt to raise between 80,000 and 90,000 pounds of tobacco and that the rainy spring simply did not allow him enough time properly to plant the tobacco on the Royalty farm. That his other crops flourished as well as could be expected in the drought conditions is evidence that he is a competent farmer but that his efforts simply strained his capabilities to the breaking point and that the reason his crop failed on the Royalty farm was because he had insufficient time to prepare the land and to plant the crop properly.

The Court concludes that the exclusion quoted relieves defendants of any liability to plaintiffs and a judgment will be entered in favor of defendants on the claims of the plaintiffs against them.