FIRST DIVISION

							April 16, 2001

No. 1-00-1643

COM-CO INSURANCE AGENCY, INC.,		)	Appeal from the

								)	Circuit Court of

		Plaintiff-Appellant,		)	Cook County

								)

	v.							)				 								)

SERVICE INSURANCE AGENCY, INC., and	)

WILLIAM J. ABPLANALP, JR.,			)	Honorable

								)	John B. Grogan,

		Defendants-Appellees.		)	Judge Presiding

PR	PRESIDING JUSTICE McNULTY delivered the opinion of the

court:

	Com-Co Insurance Agency sued its former employee, William

Abplanalp, and his new employer, Service Insurance Agency, for

breaching a restrictive covenant by soliciting business from

Abplanalp's friends.  The court granted defendants summary

judgment because Com-Co had no protectible interest in the

customers at issue.  We affirm.

	Com-Co hired Abplanalp as an insurance agent in 1986. 

Abplanalp signed an employment agreement, which included the

following provision:

		"The agent agrees that for the duration of this

agreement and for a period of three (3) years

thereafter:

		(a.) He will not *** divulge *** any lists of

names of customers or clients of the company, nor make

any use thereof for himself in any manner. 

		***

		(c.) If employed by a company in a similar

business, render services directly or indirectly to or

for that company in connection with the sale or

promotion of its services or products to customers or

clients of Com-Co."

	Abplanalp resigned in 1991 and joined Service.  He consulted

an attorney for Service for advice about the covenant.  Service

sent a letter to Com-Co admitting that most of Abplanalp's book

of business with Com-Co received full protection under the

employment agreement, but Service argued that Com-Co had no

protectible interest in clients who were Abplanalp's relatives

and friends.  Abplanalp thereafter sold insurance to a number of

relatives and friends he had known before he began working for

Com-Co.  He refused to sell insurance to several persons who

sought to purchase insurance from him, because he met them while

he was working for Com-Co, and therefore he considered them Com-

Co's protected clients.  He met his wife while working at Com-Co,

so he refused to sell her insurance.

	Com-Co sued Abplanalp for breach of the restrictive covenant

and Service for inducing the breach.  Com-Co claimed about

$36,000 in actual damages and sought $100,000 in punitive

damages.  The court referred the case to arbitrators, who awarded

Com-Co a net of $1,232.86.  Com-Co rejected the award.

	The parties moved for summary judgment, supporting their motions with transcripts of testimony from various witnesses. 

Com-Co's president swore that more than 80% of Com-Co's customers

renewed their policies each year, and the customers stayed with

the agency for an average of 5five years and 7seven months. 

Abplanalp identified each of the Com-Co clients to whom he had

sold new insurance through Service.  He explained how and when he

came to know each person listed, testifying that he knew each one

before he began working for Com-Co.  He presented largely

corroborative testimony from the clients.  Com-Co presented no

contradictory evidence, and it conceded that Abplanalp had the

right to sell insurance through Service to members of his family. 

Abplanalp admitted that he had never sold his friends insurance

before he worked for Com-Co.

	The trial court found that the testimony of one of the

clients, Antonia Addante, showed that she met Abplanalp while he

worked for Com-Co.  The court found that Com-Co had a protectible

interest in retaining her as a client, so it continued the case

with respect to her for proof of damages.  But the court held

that Com-Co had no protectible interest in those customers who

bought insurance through Com-Co because they were friends of

Abplanalp who knew Abplanalp before he began working for Com-Co. 

Accordingly, the court granted summary judgment in favor of

defendants with respect to all clients at issue other than

Addante.  The court added that the partial summary judgment was

final and appealable.  Com-Co promptly appealed.

	The trial court's declaration of finality and appealability

is not enough, standing alone, to make an order appealable. 

DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 76, 588 N.E.2d 1139 (1992).  If the order finally disposed of the rights

of the parties on some definite and separate branch of the

controversy, then the court's statement of enforceability or

appealability makes the order immediately appealable under

Supreme Court Rule 304(a).  155 Ill. 2d R. 304(a); see In re Marriage of Schweihs, 272 Ill. App. 3d 653, 662, 650 N.E.2d 569 (1995).  

	The court's language need not match the wording in Rule

304(a) precisely.  "[W]here appeal is sought pursuant to Rule

304(a) from a judgment which defeats a claim or is in the nature

of a dismissal, the written finding is sufficient only if it

refers to appealability."  In re Application of the Du Page County Collector, 152 Ill. 2d 545, 551, 605 N.E.2d 567 (1992).  

	Here, the court appropriately referred to appealability.  We

agree with the trial court's implicit holding that the claim

regarding Addante is sufficiently separable from the claims

concerning the other clients for immediate appeal of the partial

summary judgment.  We find that we have jurisdiction to consider

Com-Co's appeal pursuant to Supreme Court Rule 304(a).

	Com-Co argues that it had a protectible interest in keeping

Abplanalp's friends as its customers.  We note that Com-Co

effectively conceded that the restrictive covenant could not be enforced as written: the covenant made no exception for

Abplanalp's relatives, yet Com-Co did not contest his right to

retain them as his clients in his new employment.  Because the

trial court expressly excepted Addante from the summary judgment

ruling, the only clients at issue are Abplanalp's friends whom he

knew before he began working for Com-Co.

		"Whether a restrictive covenant is enforceable is

a question of law.  [Citation.]  *** [A]n employer's

interest in its customers will be deemed proprietary

if, by the nature of the business, the customer

relation is near-permanent and but for his prior

employment, the defendant would not have had contact

with the clients in question.  *** Conversely, a

protect[i]ble interest in customers is not recognized

where the customer list is not secret [citation], or

where the customer relationship is short-term and no

specialized knowledge or trade secrets are involved. 

[Citation.]  Under these circumstances, the restrictive

covenant is deemed an attempt to prevent competition

per se and will not be enforced.  [Citation.]  Covenants not to compete are carefully scrutinized by

the courts since, at least to some extent, they can

result in restraints of trade."  American Claims Service, Ltd. v. Boris, 137 Ill. App. 3d 948, 950-51, 485 N.E.2d 534 (1985).

An employer has no protectible interest in an employee's customer

unless the employer can show the employee would not "have had

contact with the customers absent [his] association with the

employer."  LS B Z, Inc. v. Brokis, 237 Ill. App. 3d 415, 430, 603 N.E.2d 1240 (1992).

	In L S B Z the plaintiff, a hairstyling salon, sought an injunction to prevent a former employee from styling the hair of

the plaintiff's customers.  The court noted that the employee

initially worked for these customers 

	"'not because of her association with [the employer], but rather, through her own efforts on [the employer's]

behalf and in furtherance of her association with it.'

(Emphasis in original.)  (Reinhardt [Printing Co. v. Feld], 142 Ill. App. 3d [9, 17, 490 N.E.2d 1302 (1986)].)   In [Label Printers v.]Pflug, [206 Ill. App. 3d 483, 564 N.E.2d 1382 (1991),] the evidence likewise

showed that the defendant/former employee had himself

obtained many of the customers the employer sought to

prohibit him from contacting."  L S B Z, 237 Ill. App. 3d at 429.

Therefore, the court found no protectible near-permanent

relationship with the customers.

	In Rapp Insurance Agency, Inc. v. Baldree, 231 Ill. App. 3d 1038, 597 N.E.2d 936 (1992), an insurance agency sought to enjoin

a former agent from soliciting his former clients.  The court held:

	"[T]he mere potential to become a long-standing

customer is not sufficient.  *** [W]e again emphasize

the transient nature of insurance policies in general.

It was uncontested that insurance customers are

frequently approached by competitors and that the

customers willingly give the competitor information

regarding their premiums in hopes of obtaining a better

deal. ***

		As most of the clients, according to testimony,

were brought in via 'cold calls,' we cannot say that

defendant would not have had contact with them but for

his employment with plaintiff, since most of these

customers could be found in the phone book and randomly

contacted by any insurance agent."  Rapp, 231 Ill. App. 3d at 1042-43.

	Here, the uncontested evidence established that Abplanalp

would have had contact with all of the clients at issue even if

he never worked for Com-Co.  His contact with these persons

permitted him to sell them insurance, first through Com-Co and

then through Service.  His work for Com-Co did not help him

establish the contacts with these friends, nor did the work for

Com-Co in any way contribute to his ability to sell insurance

through Service to these clients.  As Com-Co cannot show that

Abplanalp would not have been able to sell insurance to these customers through Service absent his association with Com-Co,

Com-Co has no protectible interest in these customers.

	Com-Co claims that the appellate court overturned the

principles enunciated in L S B Z and Boris in Lyle R. Jager Agency, Inc. v. Steward, 253 Ill. App. 3d 631, 625 N.E.2d 397 (1993).  In that case, as here, the insurance agency included a restrictive

covenant in its employment agreement with its agent, but that

case presented a kind of inverse of the situation here.  In

Steward, 253 Ill. App. 3d at 634, the agency did not contest the agent's right to sell insurance to all clients he brought to the

agency from his previous employment; the only clients at issue

were those he first contacted as the plaintiff's agent.  Here,

defendants conceded to Com-Co all those clients Abplanalp met

while working for Com-Co; the only clients at issue are those he

brought to Com-Co through his prior friendships.  Thus, the court

in Steward did not address the issue presented here, of whether the plaintiff had a protectible interest in clients the defendant

brought to the agency as his friends.  

	Despite the difference in the factual situations, Com-Co

asks us to interpret the holding of Steward as mandating a finding of a protectible interest in the clients at issue here.

The court in Steward said:

	"[I]it is reasonable for the trial court to conclude

that the defendant would not have had contact with such

commercial clients, in the context of selling them insurance, but for his employment with the plaintiff.

See LSBZ, [237 Ill. App. 3d at 430]."  Steward, 253 Ill. App. 3d at 639.

Com-Co rests its argument on the appellate court's inclusion of

the phrase "in the context of selling them insurance," in

Steward.  But the court's citation shows that the decision did not overturn LSB Z; instead it reaffirmed the principles restated in L S B Z.  The plaintiff agency has a protectible interest in its clients only to the extent that the former agent is able to serve

the clients for the new agency "because of [his] association with" the plaintiff agency. (Emphasis in original.)  L S B Z, 237 Ill. App. 3d at 429.  The decision in Steward involved only commercial insurance clients.  The court apparently sought to

distinguish prior contacts as a customer of the commercial

enterprise from the contacts which gave the agent the opportunity

to sell insurance to the commercial enterprise.  Abplanalp had

the opportunity to sell insurance to all the contested customers

because they were his friends before he came to Com-Co, and

nothing about his association with Com-Co helped him later sell

them insurance through Service.  Under Steward, as well as L S B Z, Boris and Rapp, Com-Co has no protectible interest in the friends to whom Abplanalp sold insurance through Com-Co.

	Com-Co notes that the court in Steward expressly disagreed with the Rapp decision on the issue of whether the agency had a protectible interest in clients the defendant met through cold calls made to phone numbers available in public directories. 

Abplanalp here, like the agents in Steward and Rapp, helped Com- Co acquire significant numbers of clients in this way.  Abplanalp

and Service, on the advice of their attorney, conceded to Com-Co

all such clients.  The record shows that several such persons

contacted Abplanalp at Service, seeking to change their insurance

agency so they could continue to work with Abplanalp.  Abplanalp

told them he could not help them due to the restrictive covenant

in his employment agreement.  Because Abplanalp has not sought to

sell insurance to these customers through Service, we need not

decide the issue on which the Steward and Rapp courts disagreed.  Com-Co cannot prove that the customers at issue here would not be

Service's clients but for Abplanalp's association with Com-Co. 

Therefore, under the reasoning of either Steward or Rapp, Com-Co has no protectible interest in the clients at issue.

	The uncontested evidence shows that Abplanalp knew each of

the clients at issue personally before he began work for Com-Co. 

He knew them well enough to be the cause for them to purchase

insurance first through Com-Co, and later through Service. 

Because Abplanalp would have been able to sell them insurance

through Service, even if he had never worked for Com-Co, Com-Co

has no protectible interest in any of the clients at issue. 

Accordingly, we affirm the judgment in favor of defendants.

	Affirmed.

	FROSSARD and COHEN, JJ., concutr.r.