- 63 -
However, the Court of Appeals limited its holding to the
situation where the bank's decision to transfer the insurance
business to the executive was motivated by the good faith belief
that it would be illegal for the bank to continue to earn and
receive insurance commission income. See id. at 76. Therefore,
petitioner's ability to rely on Bank of Coushatta depends on
whether petitioner's decision to transfer the excess value income
to OPL through NUF was motivated by a good faith concern that it
was illegal for petitioner to continue to receive the excess
value income. We do not believe that this was petitioner's
purpose.
Mr. Kenneth Johnson, head of petitioner's insurance
department, testified that in the early 1980's he learned that
the collision damage waivers offered by the Hertz and Avis rental
car companies were being challenged by State insurance regulators
as an illegal insurance business and that this caused him to
become concerned that petitioner's excess value activity could be
viewed by State insurance regulators as engaging in an unlicensed
insurance activity. No State insurance regulators had ever
questioned the legality of petitioner's EVC activity, and Mr.
Johnson was not aware that any such questions had ever been
raised with other carriers. Mr. Johnson testified that, because
of his concerns, he had a casual conversation with an
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