The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
CONSTANCE SEAY, )
)
Plaintiff, )
)
v. ) Case No. 19-CV-00474-GKF-JFJ
)
WAYNE WEAVER and )
WW FUNDING GROUP, INC., )
)
Defendants. )
)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On June 2, 2021, this matter came before the court for non-jury trial on plaintiff Constance
Seay’s claims against defendants Wayne Weaver and WW Funding Group, Inc. Seay asserts
claims for breach of contract and fraud/deceit. Having heard the evidence, the court enters the
following Findings of Fact and Conclusions of Law.
I. Findings of Fact
1. Seay is a citizen of a different state than Weaver and WW Funding Group, Inc. [Doc. 44,
p. 3, ¶ IV.A.].
2. Weaver has a corporation under the name of WW Funding Group, Inc. [Doc. 54, p. 13:6-
8]. WW Funding Group, Inc. had no role in negotiating, designing, or obtaining the
relevant insurance policy. [Id. at p. 60:12-14]. Weaver does business as Wayne Weaver.
[Id. at p. 13:9-10].
3. A substantial part of the events giving rise to the claims occurred within Tulsa County,
Oklahoma in the Northern District of Oklahoma. [Doc. 54, p. 30:16-24].
4. Seay conducts business in Tulsa, Oklahoma. [Plaintiff’s Trial Exhibit 3; Doc. 54, pp. 71:15
to 72:5, 73:25 to 74:11].
A. Facts Relevant to Contract Claim
5. In 2015, Seay and Weaver agreed to work together to obtain a $60 million life insurance
policy for Seay’s friend and client, Paula Marshall. [Doc. 44, p. 4, ¶ IV.C.; Doc. 54, p.
73:4-6].
6. Seay and Weaver agreed to split commissions earned as a result of the issuance of the life
insurance policy, with both Seay and Weaver receiving 50% of the commissions. [Doc.
44, p. 4, ¶ IV.D.; Plaintiff’s Trial Exhibit 2]. To that end, Seay and Weaver executed
document titled, “Producer Commission Information.” [Plaintiff’s Trial Exhibit 2]. The
document includes no reference to WW Funding Group, Inc. [Id.].
7. At the time the policy was issued, Weaver was a member of First Financial Resources
(FFR), a producer group. [Doc. 44, p. 4, ¶ IV.F.]. As a FFR member, Weaver paid dues.
[Doc. 54, p. 22:12-25; Plaintiff’s Trial Exhibit 4]. Seay was not a FFR member. [Doc. 44,
p. 4, ¶ IV.F.]. Accordingly, Seay did not pay dues to FFR. [Doc. 54, p. 22:12-18].
8. Prior to issuance of the life insurance policy, Seay placed her contract under Weaver’s
contract with FFR. [Doc. 44, p. 4, ¶ IV.G.]. Weaver admitted that, prior to the life
insurance policy being issued, he learned that Seay had submitted herself as a subagent
under his contract with FFR. [Doc. 54, p. 32:2-8, 62:16-20]. Seay’s understanding was
that she could not unilaterally affiliate with FFR due to her relationship with Weaver;
rather, Weaver had to approve the affiliation. [Doc. 54, pp. 78:16 to 80:4].
9. The life insurance policy was issued by Pacific Life on October 25, 2015. [Doc. 44, p. 4,
¶ IV.E.; Plaintiff’s Trial Exhibit 1].
10. Between November 15, 2015 and February 22, 2016, Pacific Life paid to FFR the total sum
of $362,704.24 as a result of the issuance of the life insurance policy. [Doc. 44, p. 4, ¶
IV.H.].
11. Upon receipt of the funds, FFR paid the $362,704.24 to Weaver. [Doc. 44, p. 4, ¶ IV.I.].
12. The monies paid to Weaver were re-deposited to WW Funding Group, Inc. [Doc. 54, p.
67:5-11].
13. If Seay had not placed her contract under Weaver’s contract, Pacific Life would have paid
only half—or $181,352.12—to FFR. [Doc. 44, p. 4, ¶ IV.J.]. Weaver knew that, once
Seay became a subagent, he would receive double the amount of override commission that
he otherwise would have received if she was not a subagent. [Doc. 54, p. 63:12-16].
14. Seay learned of the payments by Pacific Life to FFR, and ultimately to Weaver, in the Fall
of 2018. [Doc. 44, p. 4, ¶ IV.K.].
15. Weaver did not pay Seay half of the $362,704.24 payment. [Doc. 54, pp. 39:19 to 40:3,
83:8-20].
16. Weaver contends that he agreed only to a 50-50 split of “agent” commissions, not
overrides. [Doc. 54, pp. 25:7 to 28:12]. However, the box in the “Producer Commission
Information” form executed by Seay and Weaver that identifies the percentage of
commission to be shared by each producer does not limit commission to “agent
commissions.” [Plaintiff’s Trial Exhibit 2; Doc. 54, p. 27:10-17]. Instead, the box is
labelled “Commission %.” [Id.].
17. Plaintiff’s Trial Exhibit 6, a Pacific Life document dated November 20, 2015, illustrates
the first payment made by Pacific Life to FFR related to the Marshall policy. [Plaintiff’s
Trial Exhibit 6]. The document specifies a 50% split between Seay and Weaver. [Id.]. In
a column titled “Comm.,” which Weaver testified means “commission,” Pacific Life
designated $160,622.57 and $4.50 as being attributed to Seay and $160,622.57 and $4.50
as being attributed to Weaver. [Id.; Doc. 54, pp. 34:7 to 37:8].
18. Likewise, Plaintiff’s Trial Exhibit 5 illustrates a second payment made from Pacific Life
to FFR in February of 2016 related to the Marshall policy. [Plaintiff’s Trial Exhibit 5; Doc.
54, p. 38:12-22]. The document also specifies a 50% split between Seay and Weaver.
[Plaintiff’s Trial Exhibit 5]. In the “Comm.” (commission) column, Pacific Life designated
$0.64 and $20,724.41 as being attributed to Seay and $0.64 and $20,724.41 as being
attributed to Weaver. [Plaintiff’s Trial Exhibit 5; Doc. 54, pp. 38:23 to 39:8].
19. The commission payments illustrated in Plaintiff’s Trial Exhibit 5 and Plaintiff’s Trial
Exhibit 6 were paid as a result of the issuance of the Marshall insurance policy and as a
percentage of the premium. [Doc. 54, p. 67:12-21].
20. Additionally, on November 30, 2015, Weaver executed a document entitled “Supplemental
Commission Repayment Agreement” related to the Marshall life insurance policy.
[Plaintiff’s Trial Exhibit 9]. The Agreement, which is between FFR and Weaver, states:
“Unless stated otherwise, reference to ‘commission’ includes overrides and the like.” [Id.
at p. 1]. The document includes no reference to WW Funding Group, Inc. See generally
[Plaintiff’s Trial Exhibit 9].
21. Commissions, including overrides, are paid by the insurance carrier as a percentage of the
premiums paid by the insured. [Doc. 54, pp. 16:14-22, 67:12-21, 101:14 to 102:5].
22. FFR does not restrict its members as to what they do with monies received from FFR and
nothing precludes FFR members from reaching an agreement with a non-FFR member to
share in the payments. [Doc. 54, p. 102:14-19].
B. Facts Relevant to Fraud Claim
23. Both Seay and Weaver testified that the co-agency relationship was relatively equal. See
[Doc. 54, pp. 31:8-19, 95:3-12]. Seay characterized she and Weaver as “partners.” [Doc.
54, p. 91:17-18].
24. Seay and Weaver never discussed the additional override commission that would be paid
from the issuance of the insurance policy because Seay placed the contract under Weaver.
[Doc. 54, pp. 29:19-25, 59:20-22, 63:12-22, 76:20-24, 84:11-17, 88:1-19].
25. Seay made the decision to place her contract under Weaver’s after a conversation with
Timothy Olsen, Pacific Life Managing Regional Vice President for north Texas,
Oklahoma, Arkansas, Tennessee, North Carolina, South Carolina, and northern Louisiana.
Seay testified that she contacted Mr. Olsen before the life insurance policy was issued and
asked him whether there was a way for her to maximize her compensation. Olsen
suggested that, in light of her partnership with Weaver, Seay place her contract under
Weaver’s contract. [Doc. 54, p. 78:3-15, 87:19-25; Plaintiff’s Trial Exhibit 24, pp. 6:5-
11]; see also [Plaintiff’s Trial Exhibit 24, pp. 9:5 to 12:23].
26. Seay never confirmed with Weaver what Olsen had told her regarding the FFR overrides.
[Doc. 54, p. 88:17-19].
27. Seay testified that she trusted Olsen when he said that she could maximize her
compensation by foregoing the leading edge bonus of $60,000 and putting her contract
under Weaver’s contract. [Doc. 54, p. 91:10-15].
28. Prior to the issuance of the life insurance policy, Seay never inquired as to the exact amount
of the anticipated override payments. [Doc. 54, pp. 88:20-23, 91:7-9]. Seay believed they
would not be paid until the fifth year and did not inquire until October, 2018 as to the
amount of the overrides or when they may be paid. [Doc. 54, pp. 81:12 to 82:13].
29. Weaver testified that, when Seay contacted him in October of 2018 to discuss the override
payments, he did not tell her the amount of the override payments that he had received.
[Doc. 54, pp. 44:2 to 45:3].
30. Seay testified that, at the time of the relevant conduct, she was aware of producer groups
and that their compensation package was different. [Doc. 54, pp. 85:18 to 86:6]. Seay had
also represented Pacific Life for years and was aware of their compensation structure,
including that, for sizeable policies, there were ways to maximize compensation. [Doc.
54, pp. 86:21 to 87:9].
31. Seay testified that she was capable of selling and designing the life insurance policy on her
own, and could have accomplished the premium financing without Mr. Weaver’s
assistance. [Doc. 54, pp. 94:8-10, 16-19]. Further, Seay has over thirty (30) years
experience in life insurance with estate planning. [Doc. 54, p. 71:15-20].
II. Conclusions of Law
A. Conclusions Related to Jurisdiction
1. District courts “have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different states.” 28 U.S.C. § 1332(a)(1).
2. Subject matter jurisdiction exists as Seay seeks damages totaling $181,352.12—an amount
exceeding $75,000.00—and Seay is a citizen of a different state than Weaver and WW
Funding. 28 U.S.C. § 1332(a)(1); see also [Doc. 44, p. 3, ¶ IV.A.].
3. “To obtain personal jurisdiction over a nonresident defendant in a diversity action, a
plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that
the exercise of jurisdiction does not offend the due process clause of the Fourteenth
Amendment.” Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004) (quoting
Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir. 1999)).
“Where, as in Oklahoma, the state long arm statute supports personal jurisdiction to the
full extent constitutionally permitted, due process principles govern the inquiry.” Shrader
v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011).
4. Personal jurisdiction exists over the parties. [Doc. 44, p. 3, ¶ IV.B.].
B. Conclusions Related to Breach of Contract Claim
5. “[B]ecause this is a diversity case, ‘[the court must] ascertain and apply [Oklahoma] law
such that we reach the result that would be reached by [an Oklahoma] court.’” Martinez v.
Angel Expl., LLC, 798 F.3d 968, 973 (10th Cir. 2015) (quoting McIntosh v. Scottsdale Ins.
Co., 992 F.2d 251, 253 (10th Cir. 1993)).
6. Under Oklahoma law, the elements of a breach of contract claim are: “(1) the formation of
a contract, (2) breach of the contract, and (3) damages as a result of that breach.” Cates v.
Integris Health, Inc., 412 P.3d 98, 103 (Okla. 2018).
7. “A breach of contract is a material failure of performance of a duty arising under or
imposed by agreement.” Lewis v. Farmers Ins. Co., 681 P.2d 67, 69 (Okla. 1983).
8. Plaintiff satisfies the first element as to Weaver because Seay and Weaver formed a
contract to split commissions earned as a result of the issuance of the life insurance policy
50/50.
9. “A contract’s terms are to be given their plain meaning.” Am. Biomedical Grp., Inc., v.
Techtrol, Inc., 374 P.3d 820, 826 (Okla. 2016); see also Okla. Stat. tit. 15, § 160.
10. Given its plain meaning, “commission” means “[a] fee paid to an agent or employee for a
particular transaction, [usually] as a percentage of the money received from the
transaction.” Black’s Law Dictionary (11th ed. 2019); see also Oxford English Dictionary
(3d ed. 2015) (“Payment, or a payment, for services or work done as an agent in a
commercial transaction, typically a set percentage of the value involved.”).
11. The $362,704.24 paid by Pacific Life to First Financial Resources plainly constitutes
“commission,” because the monies were paid as a percentage of the premiums paid by
Marshall.
12. Weaver argues that a distinction exists between “overrides” and “commissions,” but he
executed the Supplemental Commission Repayment Agreement with FFR that defines
“commission” to include “overrides.” [Plaintiff’s Trial Exhibit 10 at p. 1]. And Pacific
Life treated the $362,704.24 as commission. [Plaintiff’s Trial Exhibit 5 and Plaintiff’s
Trial Exhibit 6].
13. Weaver received override commissions in the total amount of $362,704.24, but did not pay
Seay her fifty percent. Accordingly, Weaver breached the contract to split 50/50 the
commissions earned related to the Marshall insurance policy.
14. However, generally, “contracts are binding only upon those who are parties thereto, and
are enforceable only by the parties to a contract.” Drummond v. Johnson, 643 P.2d 634,
639 (Okla. 1982) (internal footnote omitted).
15. “[A] corporation is regarded as a legal entity, separate and distinct from the individuals
comprising it.” Fanning v. Brown, 85 P.3d 841, 846 (Okla. 2004).
16. Weaver executed the contract with Seay, as well as the Supplemental Commission
Repayment Agreement, in his individual capacity and not on behalf of WW Funding.
Because Weaver is separate and distinct from WW Funding, WW Funding was not a party
to the agreement to split commissions. WW Funding therefore is not liable for breach of
contract.
C. Conclusions Related to Fraud and Deceit
17. A deceit under Oklahoma law includes: (1) the assertion, as a fact, of that which is not true,
by one who does not believe it to be true; (2) the suppression of a fact by one who is bound
to disclose it, or who gives information of other facts which are likely to mislead for want
of communication of that fact; and (3) a promise made without any intention of performing.
Okla. Stat. tit. 76, § 3; OUJI 18.6.
18. “Fraud is never presumed, but must be proven by clear and convincing evidence.” Tice v.
Tice, 672 P.2d 1168, 1171 (Okla. 1983).
19. Fraud/deceit by false representation requires proof that “the defendant made a material
representation that was false, that he knew when he made the representation that it was
false, and that he made it with the intention that it should be acted upon by plaintiff, and
that plaintiff acted in reliance upon it and thereby suffered detriment.” Silk v. Phillips
Petroleum Co., 760 P.2d 174, 176-77 (Okla. 1988); see also Okla. Stat. tit. 15, § 58; OUJI
18.1. “Fraud is never presumed, but must be proven by clear and convincing evidence.”
Tice v. Tice, 672 P.2d 1168, 1171 (Okla. 1983).
20. Seay argues that Weaver committed fraud by deceiving her into believing that he would
split the Pacific Life commissions, and refusing to do so. However, Seay and Weaver
never discussed the override commissions that would be paid from the issuance of the
insurance policy as a result of Seay placing her contract under Weaver’s. Thus, Weaver
made no false representations with respect to overrides and Seay fails to establish fraud by
false representation.
21. Fraud and deceit may also exist where a party has a duty to disclose a material fact, but
fails to do so. Silk, 760 P.2d at 179; see also Okla. Stat. tit. 15 § 59; OUJI 18.2. “[T]he
first question is always whether there was a duty upon the actor to disclose the whole truth.”
Sutton v. David Stanley Chevrolet, Inc., 475 P.3d 847, 854 (Okla. 2020). “In determining
whether there is a duty to speak, consideration must be given to the situation of the parties
and the matters with which they are dealing.” Silk, 760 P.2d at 179.
22. Seay argues that she and Weaver had a relationship built on their agreement to combine
their efforts to place the policy and split the commission, and that Weaver’s failure to
inform Seay of the payments he received was a violation of a duty owed to his co-agent.
A person has a duty to disclose a known material fact when:
(1) [He/She] and the other person are in a [confidential/fiduciary] relationship; or
(2) [He/She] has stated another fact which was true at the time [he/she] stated it but
which subsequently became untrue, and [he/she] knows the other person is acting
under the impression that the fact as originally stated is still true; or
(3) [He/She] states other facts which are true but which [he/she] knows will create a
false impression of the actual facts in the mind of the other person if the material
fact is not disclosed; or
(4) [He/She] knows by [his/her] own ambiguous words or conduct [he/she] has created
a false impression of the actual facts in the mind of the other person; or
(5) [He/She] knows the fact is peculiarly within [his/her] knowledge and the other
person is not in a position to discover the fact for [himself/herself]; or
(6) [He/She] has previously represented the fact to be otherwise with an honest belief
in its truth, and afterwards learned that the actual fact was other than as first
represented.
[OUJI 18.5].
23. Under Oklahoma law, “[f]iduciary or confidential relationship has a broad meaning that
includes legal, contractual, formal, and informal relations and exists when one person trusts
and relies upon another. Such a relationship exists when one person acquires influence
over another such that the influenced allows the influencer to substitute his or her will for
the influenced’s own.” Horton v. Hamilton, 345 P.3d 357, 364 (Okla. 2015) (internal
citation omitted). The Tenth Circuit has suggested that “Oklahoma law would recognize a
fiduciary duty arising out of a commercial contract if the transaction involved facts and
circumstances indicative of the imposition of trust and confidence, rather than facts and
circumstances indicative of an arms length commercial contract.” Quinlan v. Koch Oil.
Co., 25 F.3d 936, 942 (10th Cir. 1994).
24. As referenced in paragraph 22 above, Seay points to the co-agent relationship between
herself and Weaver. However, the evidence does not establish that a fiduciary or
confidential relationship existed so as to require disclosure. Seay testified that that she and
Weaver were partners. Seay further testified that she was capable of structuring the
insurance policy and accomplishing the premium financing independently based on her
years of experience. The evidence does not establish that Weaver acquired influence over
Seay such that Seay allowed Weaver to substitute his will for Seay’s. These facts and
circumstances are indicative of an arms-length commercial transaction, and no
confidential/fiduciary relationship arose.
25. The evidence also fails to establish that the amount of the override commission payments
or timing of the payments was peculiarly within Weaver’s knowledge, such that Seay was
not in a position to discover the facts herself. Seay testified that she and Weaver never
discussed the additional monies that would be paid from issuance of the insurance policy
as a result of placing her contract under Weaver’s. Seay did not confirm what Olsen had
told her with Weaver and she did not inquire as to the exact amounts of the override
payment. Rather, Seay relied upon Olsen’s representations made prior to the issuance of
the policy related to the override payments. Based on the evidence presented, it is clear
that Seay could have approached Weaver prior to the issuance of the policy regarding the
override payments. She simply chose not to do so.
26. Additionally, Seay did not inquire as to when the overrides would be paid or the amount
owed prior to 2018. Although Seay testified she did not think it was necessary to inquire
because she thought the extra money would be paid in the fifth year, Seay does not establish
that she could not have discovered the time table and amounts, had she asked either Pacific
Life or Weaver. Further, there is no evidence that Weaver created the false impression that
the overrides would not be paid until the fifth year.
27. Seay also argues that, after the policy was issued, Weaver deceived her in November, 2015
and February, 2016 by concealing the fact that he had received twice the override
commissions he would have received had Seay not placed her contract under his, and by
refusing to answer her questions in 2018 about how much he had received. However, Seay
fails to show that she acted in reliance on those post-policy issuance concealments to her
detriment. See OUJI 18.2 (a plaintiff must show that the defendant concealed or failed to
disclose a past or present fact with the intention that it should be acted upon by plaintiff;
that plaintiff acted in reliance upon it; and that plaintiff thereby suffered injury).
28. Finally, as to WW Funding, there is no evidence that WW Funding made any
representation to Seay or that Weaver made any representation in his capacity as an officer
of WW Funding. Rather, Weaver testified that he does business as Wayne Weaver.
Accordingly, WW Funding did not commit fraud or deceit.
29. Nor can WW Funding be liable for constructive fraud or deceit, as no relationship existed
between Seay and WW Funding.
D. Remedies
30. “The measure of damages for breach of contract is the amount that would place the
aggrieved party in the position [she] would have occupied had the breach not occurred.”
Sun Ridge Invs., Ltd. v. Parker, 956 P.2d 876, 878 (Okla. 1998); see also Okla. Stat. tit.
23, § 21; OUJI 23.51 (under Oklahoma law, the general measure of damages for a breach
of contract is “the amount of money that is needed to put [plaintiff] in as good a position
as [she] would have been if the contract had not been breached”).
31. As previously stated, Weaver breached the contract to evenly split commissions earned as
a result of the issuance of the Marshall insurance policy by failing to pay Seay her 50% of
the total commission sum of $362,704.24. Pursuant to the contract, Seay was owed
$181,352.12.
32. Weaver argues that an award of $181,352.12 would place Seay in a better position under
the contract because, unlike Weaver, Seay did not pay dues to First Financial Resources.
Weaver asks the court to reduce the award by the “membership dues expended by Weaver
during the period in which a chargeback on the policy could have occurred.” [Doc. 56, p.
12]. However, there is no evidence that Seay agreed to share a portion of the FFR dues.
In fact, Seay testified that she and Weaver never discussed his First Financial Resources
dues. [Doc. 54, pp. 91:19 to 92:7]. Further, George William Imhoff, CEO of First
Financial Resources, testified that FFR members were not restricted in what they do with
overrides received and could reach an agreement with a non-FFR member to share in those
payments. [Doc. 54, p. 102:14-19]. Thus, First Financial Resources did not require a non-
member to shoulder part of the dues burden. Weaver offers no additional evidence or legal
authority, and the court is not persuaded.1 An award of damages of $181,352.12 on the
breach of contract claim is therefore reasonable and appropriate.
33. Prejudgment interest is appropriate where the amount of damages is a sum certain. See
Okla. Stat. tit. 23, § 6 (“Any person who is entitled to recover damages certain, or capable
of being made certain by calculation, and the right to recover which is vested in him upon
a particular day, is entitled also to recover interest thereon from that day[.]”). In this case,
damages are capable of being made certain based on the parties’ stipulation that, between
November 15, 2015 and February 22, 2016, Pacific Life paid to First Financial Resources
the total sum of $362,704.24, of which Seay was owed fifty percent.
1 Additionally, the court notes that Weaver’s argument assumes that the entirety of the annual dues
would be charged against the override payments related to the Marshall insurance policy.
However, the evidence indicates that payment of annual dues entitled First Financial Resources
members to enhanced compensation on all policies with various companies. [Doc. 54, pp. 50:15
to 51:17].
34. The statutory rate of interest is six percent (6%) absent a contractual rate of interest. Okla.
Stat. tit. 15, § 266. The commission agreement includes no contractual prejudgment
interest rate and therefore the six percent statutory rate applies. Seay is entitled to an award
of prejudgment interest totaling $61,506.27. The interest was calculated at 6% interest on
$160,622.57 from November 18, 2015 and on $20,724.43 from February 22, 2016.
In summary, plaintiff Constance Seay is entitled to judgment in her favor against defendant
Wayne Weaver in the amount of $181,352.12, plus prejudgment interest at the rate of six percent
(6%) totaling $61,506.27, on the breach of contract claim, plus applicable post-judgment interest
at a rate of the legal rate of 0.08% to be applied from the date of entry of this Judgment.
However, plaintiff Constance Seay fails to satisfy her burden of proof to demonstrate that
defendant WW Funding Group, Inc. breached the contract, or that defendants Wayne Weaver and
WW Funding Group, Inc. committed fraud/deceit. Accordingly, defendant Wayne Weaver is
entitled to judgment on plaintiff’s fraud/deceit claim and defendant WW Funding Group, Inc. is
entitled to judgment on plaintiff’s breach of contract and fraud/deceit claims.
DATED this 23rd day of July, 2021.