UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

HUDSON INSURANCE COMPANY, 

 Plaintiff, Case No. 15-cv-12073 

v. Honorable Thomas L. Ludington 

 

DURUSSEL INSURANCE AGENCY, INC., and 

BLUE WATER AGRIBUSINESS LLC, 

 Defendants. 

_______________________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY 

JUDGMENT 

 Plaintiff Hudson Insurance Company filed a complaint against Defendants DuRussel 

Insurance Agency, Inc. and Blue Water Agribusiness, LLC on June 8, 2015. ECF No. 1. Hudson 

alleges that DuRussel breached a “Multiple-Peril Crop Insurance Commission Schedule” 

contract between the two parties (Count I) and that both Defendants breached an “Advance 

Agreement and Contingent Installment Note” entered into between each Defendant and Hudson 

(Count II). Hudson moved for summary judgment on its claims on March 3, 2016. 

I. 

 Hudson Insurance Company is an insurance company incorporated in Delaware. It is in 

the business of issuing crop insurance policies. DuRussel Insurance Agency is a Michigan 

corporation that operates as an insurance brokerage. It offers a variety of insurance products. One 

of the products it offers is crop insurance, some of which it has placed with Hudson. Blue Water 

Agribusiness is a Michigan limited liability company that is solely in the business of offering 

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crop insurance. Blue Water had a contract to place policies with Hudson but never wrote any 

insurance policies under that contract. 

 On October 27, 2011, Hudson and DuRussel entered into a “Multiple-Peril Crop 

Insurance Commission Schedule” (“2011 Agreement”). Pl.’s Mot. Summ. J, Ex. 1, ECF No. 30-

2. The Agreement was “for DuRussel to sell crop insurance and place it with Hudson.” Id. at 4. 

The Agreement provides for Hudson to pay commissions to DuRussel for placing crop insurance 

policies under the Agreement. The Agreement further provides that commissions may be paid by 

Hudson to DuRussel in advance: “. . . an Advance Commission of 50% of the Base Commission 

shall be paid for policies on which acreage reports are received timely.” Id. at Ex. 1. Hudson paid 

the Advance Commissions to DuRussel on the basis of DuRussel’s projected policy placement 

(both new and renewed policies) during the coming contract year. If DuRussel placed fewer 

policies than it projected when it received Advance Commissions, DuRussel was liable for the 

repayment of any overpaid Advance Commissions. Id. (“You are personally liable for any 

advances made to you and for any negative or debit balance in your account.”). 

 On January 30, 2013, Hudson separately entered into an “Advance Agreement and 

Contingent Installment Note” (“2013 Agreements”) with DuRussel and Blue Water. Def.’s Mot. 

Summ. J., Ex. 2–3, ECF No. 30-3–4. Like the 2011 Agreement, Hudson and DuRussel entered 

into the 2013 Agreement for the purpose of DuRussel placing crop insurance policies with 

Hudson. Also like the 2011 Agreement, there was a provision for advance commission 

payments: “from time to time during the Reinsurance Year (“RY”), [Hudson] may advance 

monies (“Advances”) to Agency [(DuRussel or Blue Water)] in amounts which, in total, are 

intended to approximate Agency’s commissions for the 2013 RY.” Id. DuRussel and Blue Water 

had the sole discretion for determining the advances they received under the 2013 Agreements: 

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“[Hudson] is relying solely upon Agency’s representations concerning Agency’s anticipated 

premium volume with Insurer for the 2013 RY.” Id. Within four months of the end of the 

relevant contract year, DuRussel and Blue Water had to provide Hudson with “a commission 

calculation” reflecting the commissions they were owed for policies actually placed that year. 

 Again, similar to the 2011 Agreement, the 2013 Agreements provide that any 

overpayment of commissions must be reimbursed by the agency: “In the event that such 

calculation results in Agency owing return of any part of Advances to [Hudson] (“Excess 

Advances”), Agency agrees to repay such Excess Advances to [Hudson].” Id. DuRussel and Blue 

Water had to repay the Excess Advances within 30 days of producing the “commission 

calculation” to Hudson that reflected the commission they were actually owed. 

 Under the 2011 Agreement and the 2013 Agreements, Hudson advanced DuRussel 

$1,090,000 in Advance Commissions. DuRussel did not place a sufficient number of policies to 

retain the entirety of the advance commissions. Accordingly, DuRussel owed repayment of a 

portion of those Advance Commissions to Hudson. The parties do not dispute that those 

payments were not made. DuRussel now owes Hudson $393,850.64 in unpaid Advance 

Commission reimbursements plus interest. 

 The parties agree that Hudson did not advance Blue Water any Advance Commissions 

during the relevant contract periods and that Blue Water did not place any insurance policies 

with Hudson. Hudson argues, however, that its separate 2013 Agreement with Blue Water makes 

Blue Water liable for Advance Commission overpayments made to DuRussel under DuRussel’s 

separate 2013 Agreement. 

II. 

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A motion for summary judgment should be granted if the “movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” FED. R. CIV. P. 56(a). The focus must be “whether the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that one party must 

prevail as a matter of law.” Anderson v. Liberty Lobby, 477 U.S. 242, 251–52 (1986). The 

moving party has the initial burden of identifying where to look in the record for evidence 

“which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the opposing party who must set out 

specific facts showing “a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

250 (1986) (citation omitted). 

The Court must draw all reasonable inferences in favor of the non-movant when 

reviewing the evidence and determine “whether the evidence presents a sufficient disagreement 

to require submission to a jury or whether it is so one-sided that one party must prevail as a 

matter of law.” Id. at 251–52, see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986). “Entry of summary judgment is appropriate ‘against a party who fails to 

make a showing sufficient to establish the existence of an element essential to that party’s case, 

and on which that party will bear the burden of proof at trial.’” Walton v. Ford Motor Co., 424 

F.3d 481, 485 (6th Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

III. 

 Hudson argues that Defendants do not dispute the fact that they must refund overpaid 

commission advances or the fact that they did not refund the overpayments in the time set forth 

in the contracts. Defendants concede that DuRussel owes the amount stated by Hudson. 

Defendants argue however, that summary judgment should not be entered against DuRussel 

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because Hudson sought summary judgment against DuRussel and Blue Water together and since 

Blue Water is not liable to Hudson, summary judgment should be denied in its entirety. 

Additionally, Defendants argue that Blue Water received no commission advances from Hudson, 

so summary judgment is inappropriate. Hudson answers these arguments by explaining that 

partial summary judgment is valid relief and that this Court should pierce Blue Water’s corporate 

veil. 

A. 

 Hudson’s arguments for summary judgment against DuRussel need not be exhaustively 

analyzed. DuRussel concedes that it must repay commission advances in excess of the 

commissions it was ultimately entitled to. It does not make any argument that Hudson is not 

entitled to these funds or that Hudson’s figure of $393,850.64 plus costs and attorney fees is 

incorrect. 

 DuRussel makes one argument as to why Hudson’s motion should be denied. It claims 

that since Hudson sought summary judgment against both DuRussel and Blue Water, its 

otherwise meritorious claim against just DuRussel cannot be sustained. This is a novel argument. 

DuRussel recognizes the arguments novelty and does not furnish any authority in support of the 

assertion. 

Indeed, the claims as pled by Hudson belie DuRussel’s assertion. Hudson pled two 

counts of breach of contract. Count I alleges that only DuRussel breached the “Commission 

Schedule Contract.” Pl.’s Compl. 2, ECF No. 1. The damages from this claim amount to 

$60,472.24 in overpaid advance commissions. This count does not name Bluewater. 

Count II alleges that DuRussel and Bluewater both breached the “Advance Agreement 

and Contingent Installment Note Contracts.” Pl.’s Compl. 3, ECF No. 1. Hudson attached the 

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contracts at issue to both its complaint and its motion for summary judgment. Defendants also 

attached the contracts to their response. As Defendants note, DuRussel and Bluewater signed 

completely separate, albeit identical, contracts. On this basis Defendants argue that Bluewater is 

not liable to Hudson because it did not receive a single dollar in advance commissions under its 

agreement with Hudson. See Dep. Matthew DuRussel 19, Defs. Resp. Br., Ex. 5, ECF No. 33-6 

(explaining that Blue Water did not receive any advance commissions from Hudson under its 

contract). 

Defendants cannot credibly argue that Blue Water is not liable to Hudson because it 

signed a different contract but then argue that the liability of Blue Water and DuRussel must rise 

and fall together. In fact, there is not set of facts under which DuRussel can escape its admitted 

contractual liability. Either Blue Water is not liable because it signed a separate agreement, or it 

is jointly liable with DuRussel because it signed the same agreement. Neither circumstance 

provides DuRussel a shield from liability. 

B. 

 The next important question is what, if any liability Blue Water has to Hudson. As 

discussed above, Defendants argue that Blue Water and DuRussel signed different agreements 

with Hudson and that Blue Water did not receive any commission advances under its agreement. 

Hudson claims that “[t]he intent in getting both companies to sign an Advance Agreement was to 

make both companies contractually obligated to repay Hudson’s advances if commissions were 

short.” Mot. Summ. J. 4, ECF No. 30. But the fact is that Blue Water signed an entirely separate 

agreement from DuRussel and there is no indication in the agreement that Blue Water is liable 

for any overpayments to DuRussel under DuRussel’s Advance Agreement. Matthew DuRussel 

further testified that Blue Water did not receive any advance commissions from Hudson. 

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 Hudson argues that even if Blue Water is not liable for overpayments to DuRussel on the 

basis of Blue Water’s Advance Agreement with Hudson, this Court should pierce Blue Water’s 

corporate veil and impose liability upon it. Hudson made this argument for the first time in its 

reply in support of its motion for summary judgment. For that reason, the argument is waived. 

Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (“[W]e have found issues to be 

waived when they are raised for the first time in motions requesting reconsideration or in replies 

to responses.”). Thus, there is no predicate for holding Blue Water liable for DuRussel’s 

admitted failure to repay advance commissions to Hudson. Hudson’s motion for summary 

judgment will be denied as to Blue Water. 

IV. 

 Because DuRussel concedes that it owes the amount Hudson claims in overpaid advances 

and has no meritorious defense to Hudson’s claim, summary judgment will be entered against 

DuRussel. Conversely, because Blue Water entered into a separate Advance Agreement with 

Hudson and was not paid any advance commissions under that agreement, summary judgment 

against it for breach of the agreement is inappropriate. Judgment against DuRussel will be 

withheld and will not be entered until Hudson’s claims against Blue Water are resolved. 

 Accordingly, it is ORDERED that Plaintiff Hudson Insurance Company’s Motion for 

Summary Judgment, ECF No. 30, is GRANTED in part and DENIED in part. 

Dated: May 9, 2016 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on May 9, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager

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