USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 96-1802
JAMES L. MINITER INSURANCE AGENCY, INC.,
Plaintiff, Appellant,
v.
OHIO INDEMNITY COMPANY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Cyr, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Peter C. Knight with whom Hunter O'Hanian, Tory A. Weigand,
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Morrison, Mahoney & Miller were on brief for appellant.
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David P. Shouvlin with whom Porter, Wright, Morris & Arthur,
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Michael R. Gottfried and Burns & Levinson, LLP were on brief for
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appellee.
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May 12, 1997
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STAHL, Circuit Judge. Plaintiff-appellant James L.
STAHL, Circuit Judge.
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Miniter Insurance Agency, Inc. ("Miniter") appeals the
district court's grant of summary judgment in favor of
defendant-appellee Ohio Indemnity Company ("Ohio") on
Miniter's six-count complaint for damages arising out of a
dispute over right to commissions.1 Finding no error, we
affirm.
Background
Background
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Miniter, an insurance brokerage located in Quincy,
Massachusetts, serves over four hundred and fifty insureds,
three hundred of which are banks and other financial
institutions. Banks and financial institutions need, among
others, a type of insurance known as Vender's Single Interest
Insurance ("VSI"), which insures lenders against potential
losses arising from the differential between the actual value
of a vehicle being financed and the lender's security
interest. VSI is offered by Ohio, an insurance company
located in Columbus.
In 1984, Miniter became broker for Connecticut
National Bank ("CNB") and procured a VSI policy for CNB
through Fidelity and Deposit Insurance Company ("Fidelity").
In 1988, CNB merged with Shawmut Bank ("Shawmut"), which
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1. As amended, Miniter's complaint alleged breach of
contract, breach of the implied covenant of good faith and
fair dealing, breach of fiduciary duty, unjust enrichment,
interference with advantageous relations, and violation of
Mass. Gen. Laws ch. 93A, 2, 9, and 11.
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continued to meet its insurance needs through Miniter. That
same year, Fidelity stopped issuing VSI policies in
Massachusetts, and Miniter moved Shawmut's VSI coverage to
Travelers Insurance Company ("Travelers"). Eventually,
Travelers also discontinued its VSI business, which led
Miniter to solicit a VSI proposal from Ohio. In 1990, Ohio
agreed to provide VSI to Shawmut, and Miniter and Ohio
entered into an agency agreement to effectuate the
arrangement.
Miniter characterizes the agreement as a non-
exclusive agency agreement under which Miniter had no
obligation to issue insurance exclusively through Ohio; Ohio
had no obligation to accept only policies brokered by
Miniter. The agency agreement contained several provisions
relevant to this dispute. First, it provided that Miniter
would receive commissions of 20% of the premiums paid on
policies issued by Ohio to "policyholders obtained" by
Miniter. Second, it provided that should a conflict arise as
to which agent was entitled to commissions on a particular
policy, "the policyholder's written statement designating his
agent or broker shall be binding" upon Miniter and Ohio.
Third, the agreement provided that Miniter's right to
commissions would cease upon proper cancellation of the
policy. Finally, Ohio orally agreed not to contact or deal
directly with Shawmut without involving Miniter.
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In September 1990, Ohio issued the first of two VSI
policies to Shawmut. The first policy provided "run-off"
coverage, meaning that should either Shawmut or Ohio cancel
the policy, Ohio would be obligated to continue coverage for
any vehicle insured during the life of the policy. In order
to provide run-off coverage, Ohio needed to hold a portion of
each premium in reserve for potential future claims.
According to Ohio, the run-off coverage rendered its policy
to Shawmut unprofitable. Miniter, however, viewed run-off
coverage as an essential element of any VSI policy for
Shawmut.
In the spring of 1993 David Juredine, Miniter's
contact at Ohio, began to indicate to Arthur Donley, Chairman
of the Board and Chief Executive Officer of Miniter, that
Ohio wished to cease providing run-off coverage to Shawmut.
In the spring of 1994, Juredine indicated to Donley that Ohio
would make a one time, lump sum payment to Shawmut of its
run-off reserve if Shawmut would relieve Ohio of run-off
liability. During the same period, Gary Grondin, Vice-
President of Shawmut who handled VSI, began conveying to
Miniter Shawmut's desire to reduce the amount Shawmut paid in
premiums on its VSI policy. At some point Grondin asked
Donley to solicit proposals from other carriers.
On May 19, 1994 Juredine informed Miniter that Ohio
could offer a lump sum payment of approximately $2,000,000 to
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Shawmut. Miniter immediately communicated this offer to
Shawmut. On May 20, however, Ohio faxed Miniter the
following:
Dear Art: Please disregard previous and
current correspondence (UPS overnight
already mailed). The amount of unearned
premiums mentioned is inaccurate. The
new figure is being calculated.
On May 26, Ohio faxed Miniter a new lump sum offer of $1.8
million, contingent on Shawmut's agreement to eliminate the
run-off coverage. Miniter communicated the reduced offer as
well.
From late May into July 1994, Grondin and Donley
continued to discuss whether Shawmut would receive the lump
sum payment. The discussions came to a head in mid-July at a
meeting between Grondin, Grondin's supervisor, Donley, and
Donley's daughter Julianne, who serves as president of
Miniter. Grondin came to the meeting expecting a check from
Ohio, payable to Shawmut, in the amount of $1.8 million.
Instead, Donley informed him that Ohio had reneged on its
offer, that Ohio had no interest in making a deal, and that
he wanted to move Shawmut to a different carrier. Grondin
asked Donley for something in writing to this effect, in
response to which Donley produced a letter from Ohio.
Grondin testified that "[a]fter [he] read the letter . . .
[he] stated to Arthur Donley that this does not state that
David Juredine from [Ohio] didn't want to drop the run-off
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coverage and give us the $1.8 million."2 Grondin then
refused to consider proposals Miniter had solicited from
other carriers, and cancelled a subsequent meeting with
Donley.
At that point, Shawmut began to lose patience with
Miniter, and felt deceived and "taken for a ride." Shortly
after the meeting, Grondin informed Donley that he wanted to
speak directly with someone at Ohio. Donley responded that
Ohio did not want to speak with Shawmut and reiterated his
desire to change insurance carriers. Grondin replied that he
did not want to change carriers; he simply wanted the $1.8
million. On his own, Grondin began to solicit proposals from
other carriers. Grondin also called Juredine at Ohio.
In his conversation with Juredine, Grondin
indicated that he viewed Ohio's offer and subsequent
retraction as very unethical. Grondin also informed Juredine
that Shawmut sought to broker a new policy directly with a
carrier rather than work through Miniter or any agent and
that Shawmut intended to change carriers. Grondin indicated,
however, that if Juredine wished to submit a proposal,
Grondin would consider it. Juredine responded that he had
"no problem" giving Shawmut the 1.8 million dollars. In the
same conversation Juredine also informed Grondin that Ohio
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2. Grondin testified that he did not have a copy of the
letter Donley showed him, and the letter is absent from the
record.
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had no problem letting Shawmut have a portion of the
commissions, but that Donley did not want to reduce Miniter's
commission level.
Juredine then called Donley and apprised him that
Grondin had contacted him and that Shawmut wanted to work
through its own in-house agency, that is, Shawmut wanted some
or all of the commissions deriving from the VSI policy.
Donley asked Juredine what he planned to do and Juredine
responded that he had to save the business for Ohio before he
could worry about Miniter. Donley gave no indication to
Juredine whether Shawmut had terminated Miniter. He simply
reminded Juredine that he was not to negotiate with Shawmut
directly without Miniter's involvement.
From that point forward Shawmut began to negotiate
VSI coverage directly with Ohio. On July 28, 1994 Ohio and
Shawmut came to an agreement on the second VSI policy. The
terms of the second policy designated the Shawmut Insurance
Agency as the broker and required Ohio to pay commissions of
30%. The new policy did not include run-off coverage. It
did include a lump sum payment to Shawmut of just over $2
million, representing the $1.8 million plus additional
reserves earned during the summer of 1994. Also on July 28,
Grondin and his supervisor informed Donley by telephone that
Shawmut was terminating its relationship with Miniter, and
Grondin followed up with a letter.
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Standard of Review
Standard of Review
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We review the award of summary judgment de novo.
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See Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir.
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1996). Summary judgment is appropriate in the absence of a
genuine issue of material fact, when the moving party is
entitled to judgment as a matter of law. See Fed. R. Civ. P.
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56(c). A fact is material when it has the potential to
affect the outcome of the suit. See J. Geils Band Employee
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Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245,
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1250-51 (1st Cir.), cert. denied, 117 S. Ct. 81 (1996).
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Neither party may rely on conclusory allegations or
unsubstantiated denials, but must identify specific facts
derived from the pleadings, depositions, answers to
interrogatories, admissions and affidavits to demonstrate
either the existence or absence of an issue of fact. See
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Fed. R. Civ. P. 56(c) & (e).
Choice of Law
Choice of Law
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Miniter initially filed this action in
Massachusetts state court and alleged only state claims.
Ohio removed the case to federal district court in
Massachusetts. See 28 U.S.C. 1332. The parties agree
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that, pursuant to a choice of law provision in the agency
agreement, Ohio law governs Miniter's contract based claims,
and that Massachusetts law governs Miniter's tort claims.
The parties dispute only which state's law governs the claim
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for breach of the implied covenant of good faith and fair
dealing, ostensibly because of Ohio's contention that the
common law of the state of Ohio does not recognize such a
cause of action in these circumstances.
We have held that "[w]here . . . the parties have
agreed about what law governs, a federal court sitting in
diversity is free, if it chooses, to forego an independent
analysis and accept the parties' agreement." Borden v. Paul
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Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991). In
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the absence of any compelling reason to do otherwise, we will
honor the parties' choice of law on all counts upon which
they agree. As we explain below, we need not decide which
state's law governs Miniter's claim for breach of the implied
covenant of good faith and fair dealing.
Discussion
Discussion
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As indicated, the district court granted summary
judgment against Miniter on all counts. On appeal Miniter
claims that the district court improperly resolved genuine
issues of material fact in order to arrive at its
conclusions. We review Miniter's claims in turn, and,
finding no error, we affirm.
A. Breach of Contract
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Miniter advances two arguments within its breach of
contract claim. First, it asserts, Ohio breached the written
agreement by failing to pay Miniter commissions for the
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second policy issued to Shawmut. Second, Miniter contends,
Ohio breached "its subsidiary but separate promise" not to
contact or deal directly with Shawmut without involving
Miniter.
1. The Agency Agreement
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The relevant provisions of the agency agreement
provide:
The Agent shall be entitled to
commissions equal to 20% of the written
premiums paid on policies issued by the
Company to policyholders obtained by the
Agent. If a conflict exists as to which
producer is authorized to represent a
policyholder, the policyholder's written
statement designating his agent or broker
shall be binding upon the Agent and the
Company.
....
The Agent's right to commissions shall
cease upon cancellation of a policy in
accordance with the cancellation
provisions in the policy.
The district court found the relevant terms of the agency
agreement unambiguous, and held that as a matter of law
Shawmut's designation of its in-house agency as broker of
record disposed of Miniter's claim to commissions on the
second policy.
On appeal Miniter asserts that the language in the
agreement allows for more than one interpretation, and
therefore, should have precluded summary judgment.
Specifically, Miniter asserts that an issue of fact exists
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whether it "obtained" Shawmut for purposes of the agency
agreement. Miniter also contends that the term "producer"
does not apply in this situation between an agent and the
insured client. Instead, Miniter contends, the term should
only apply in situations involving two competing insurance
agents. Finally, Miniter avers that it produced the second
policy. We disagree.
Neither the parties' nor our own examination of
Ohio law has uncovered any cases construing the disputed
terms of the agency agreement. We turn, therefore, to
general principles of contract construction. In Ohio,
construction of written contracts is a matter of law, with
the underlying purpose of discovering and effectuating the
intent of the parties. See Graham v. Drydock Coal Co., 667
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N.E.2d 949, 952 (Ohio 1996). We must give common words
appearing in written contracts "their plain and ordinary
meaning unless manifest absurdity results or unless some
other meaning is clearly intended from the face or overall
contents" of the contract. Alexander v. Buckeye Pipeline
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Co., 374 N.E.2d 146, 150 (Ohio 1978). We may consider
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extrinsic evidence to ascertain the parties' intent either
when faced with unclear or ambiguous language, or when
circumstances surrounding the agreement give the plain
language special meaning. See Graham, 667 N.E.2d at 952.
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"[W]here the terms in an existing contract are clear and
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unambiguous," however, we "cannot in effect create a new
contract by finding an intent not expressed in the clear
language employed by the parties." Alexander, 374 N.E.2d at
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150.
We agree with the district court that the language
of the agency agreement is clear and unambiguous, and
provides without caveat that the policyholder's written
statement designating its agent binds Miniter and Ohio. The
agency agreement provides that the agent's right to
commissions shall cease upon cancellation of a policy. The
parties do not dispute that Shawmut cancelled the first
policy, terminating Miniter's right to commissions. The
agency agreement further provides that the policyholder's
designation of its agent or broker shall be binding on
Miniter and Ohio. Shawmut's written statement designating
its in-house agency as its agent, therefore, controls
disbursement of commissions under the second policy.
Miniter's contention that it "obtained" Shawmut for
purposes of the second policy fails to find support either in
the agreement or the record. Miniter asserts that by
introducing Shawmut to Ohio and brokering the first policy,
Miniter obtained Shawmut for the second policy. On that
basis, Miniter contends, the agency agreement requires Ohio
to remit commissions to Miniter, and not Shawmut. The most
obvious flaw in this argument is that it ignores the sentence
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immediately following the "obtained" sentence, which, as we
have pointed out, provides that in the event of a conflict,
the policyholder's written statement designating its agent
shall bind Miniter and Ohio.
The record further belies Miniter's assertion.
Shawmut cancelled the first policy, initiated discussions
with Ohio as well as other carriers, and ultimately made a
deal with Ohio. Shawmut's decision to work in-house rather
than through an independent agency fatally undermines
Miniter's contention that it obtained Shawmut for Ohio for
purposes of the second policy. Further, as we discuss in
greater detail below, Miniter tried to steer Shawmut away
from Ohio toward another carrier rather than maintain Shawmut
as a policyholder of Ohio. Miniter ominously argues that
to interpret the agency agreement in this fashion "would
eviscerate the independent agency practice and arm insurers
with a lethal weapon for eliminating and compromising the
intermediary agent after the account has been brought to it."
Miniter's interpretation would effectively allow Miniter to
collect premiums on any policies Ohio issued to Shawmut,
whether or not it actually brokered them, simply because it
brokered the initial VSI policy between those parties.
Miniter's interpretation would preclude Ohio from honoring
Shawmut's designation in any insurance policies Ohio issued
to Shawmut. In other words, that interpretation would
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contradict subsequent provisions in the same section of the
agreement. We reiterate that "where the terms in an existing
contract are clear and unambiguous, [we] cannot in effect
create a new contract by finding an intent not expressed in
the clear language." Alexander, 374 N.E.2d at 150.
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Miniter argues that "the producer provision applies
when there are two competing insurance agents, not between an
agent and the insured." Miniter points to no language in the
agreement limiting that provision beyond its plain terms.
Ohio law dictates that we must presume that the written
contract reflects the intent of the parties, see Graham, 667
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N.E.2d at 952, and that we may consider extrinsic evidence
only when that language is ambiguous or when circumstances
surrounding the agreement give the plain language special
meaning. See id. Miniter points us to no authority
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indicating that an insured may not procure insurance directly
from a carrier, and in effect, act as its own agent or
broker. We do not identify any special circumstances
surrounding this agreement which might give the plain
language special meaning.
We note that by the terms of the agreement, the
producer provision only takes effect when a conflict exists
regarding which producer represents a policyholder. Shawmut
informed Ohio that it would no longer be working through
Miniter and that it was seeking proposals for a new policy.
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Shawmut cancelled the first policy. While Miniter now
attempts to generate a conflict, or argue that the provision
does not govern this situation, nothing in the record
triggers the producer provision inasmuch as Shawmut on its
own affirmatively undertook to negotiate the second policy.
Equally unavailing is Miniter's argument that it,
and not Shawmut's in-house agency, produced the second
policy. Accepting Miniter's definition of "produced,"3 the
record does not support its contention that, at a minimum, a
dispute of fact exists as to whether it or Shawmut produced
the second policy. Instead, as the record demonstrates,
Miniter repeatedly urged Shawmut to move its business to
another carrier rather than come to an agreement with Ohio,
and effectively forced Shawmut to produce the policy by
itself.
Grondin's undisputed testimony reflects Miniter's
indication that Ohio was no longer interested in making a
deal with Shawmut involving the lump sum payment. Miniter
made this assertion despite the fact that Ohio remained
willing to remit $1.8 million to Shawmut. In addition,
Miniter tried to present Shawmut with proposals from other
companies and urged Shawmut to let Miniter move the account
to a different carrier. It was not until Shawmut decided to
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3. According to Miniter, "[t]he common sense meaning of
produce or 'producer' is one who 'brings forth,' 'brings
forward,' 'generates,' or 'causes,' or 'to effect.'"
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work directly with a carrier and contacted Ohio that the
second policy began to take shape. On the undisputed facts
in this record, Miniter cannot lay claim to commissions on
the second policy by claiming that it, and not Shawmut,
produced the policy.
2. The No-Contact Agreement
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For purposes of summary judgment, Ohio does not
dispute that in addition to the written agency agreement,
Miniter and Ohio orally agreed that Ohio would neither
communicate nor deal directly with Shawmut without including
Miniter. The district court found that Ohio did not breach
the no-contact agreement on the basis that Shawmut decided to
terminate Miniter prior to initiating direct contact with
Ohio and then informed Ohio of that fact. Miniter makes
three principal arguments on appeal: (1) compliance with the
agreement did not hinge on which party initiated the contact;
(2) Ohio's wrongful conduct precipitated Shawmut's contact
and Ohio's misrepresentations then compounded the situation;
and (3) whether and when Shawmut intended to terminate
Miniter presents a dispute of fact that precludes summary
judgment on this claim. Miniter attempts to buttress these
arguments with evidence of an industry custom which it
alleges Ohio violated. We find none of Miniter's arguments
persuasive and conclude that on this record no reasonable
jury could find that Ohio breached the no-contact agreement.
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We understand Miniter's first argument essentially
to contend that even if Shawmut initiated the direct contact,
the agreement bound Ohio to include Miniter on the
substantive discussions as long as Miniter remained Shawmut's
broker of record. Even if the fact that Shawmut initiated
the contact does not relieve Ohio of its obligations under
the no-contact agreement, the undisputed substance of
Shawmut's initial contact does.
After the July meeting which failed to net Shawmut
a $1.8 million payment, Grondin informed Donley that he
wished to contact Ohio. He then called Juredine at Ohio, as
well as at least one other insurance company, to solicit
proposals. Grondin told Juredine of his disappointment that
Ohio had reneged on the $1.8 million lump sum payment, that
he was planning to change carriers, that Shawmut was no
longer going to use Miniter, that Shawmut desired to work
directly with a carrier rather than through an agent, and
that if Juredine wished he could submit a proposal. Juredine
then apprised Miniter of the situation. Only then did
Grondin and Juredine engage in substantive discussions on a
second VSI policy. In other words, only after Shawmut told
Ohio that Miniter was out of the picture, that Ohio was next
on the chopping block, and Ohio informed Miniter of the
situation did Juredine and Grondin engage in substantive
negotiations.
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The record does not support Miniter's contention
that misconduct by Ohio precipitated Shawmut's contact with
Ohio. Miniter takes the position that Ohio, in retracting
the initial offer of $2 million, injured Miniter's
credibility with Shawmut, its client. The record, however,
does not support Miniter's claim. Ohio erred in its
calculation of $2 million and immediately informed Miniter of
that error. Six days later, Ohio submitted a recalculated
figure of $1.8 million. Contrary to Donley's claims to
Grondin and Grondin's supervisor, Ohio never indicated that
it no longer wished to negotiate a lump sum deal. Grondin's
disgruntlement came not from the reduction of the figure to
$1.8 million, but from his understanding from Donley that
Ohio had backed out altogether. In his deposition Grondin
repeatedly testified that Shawmut expected $1.8 million from
Ohio.
The record similarly does not support Miniter's
claim that Ohio's misrepresentations following Shawmut's
initial contact in any way compounded the situation. Miniter
contends that Ohio cast Miniter in a poor light by averring
that it never had a problem with the lump sum payment. As
the record reflects, however, Ohio simply told the truth.
Ohio's concern had been primarily with the amount, which it
reduced from $2 million to $1.8 million, as well as with some
of the details of the revised VSI coverage. Despite
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Miniter's characterizations, Ohio remained willing to
provide, and ultimately did provide Shawmut with a lump sum
payment.
Miniter also asserts that Ohio falsely informed
Shawmut that "any impediment to any deal was Miniter's
commission expense." This mischaracterizes the record.
Grondin testified that in their first conversation, and after
he informed Juredine that Shawmut desired to work directly
with a carrier, Juredine responded that he had neither a
problem with paying a $1.8 million lump sum nor with giving
Shawmut a part of the commissions or a fee, but that Donley
did not want to reduce his commission percentage. Nothing in
the record supports Miniter's highly exaggerated
characterization of Juredine's remark. In addition, Juredine
did not make that remark until after Grondin informed him
that Shawmut would no longer be working through Miniter.
Miniter asserts that an issue of fact as to when
Shawmut actually terminated Miniter should have precluded
summary judgment on its breach of the no contact agreement
claim. The district court found that Ohio did not breach the
no contact agreement in part because it determined that by
the time Shawmut contacted Ohio, Shawmut had already decided
to terminate Miniter. Miniter correctly asserts that Shawmut
did not formally terminate its brokerage designation until
after Shawmut had negotiated the second policy with Ohio.
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Until that time the record supports a conclusion that
Shawmut remained willing to consider any proposal Miniter
might have made along with any other proposals Shawmut
received. Grondin would have treated a proposal from Miniter
like any other he received.
We conclude that to the extent an issue of fact
exists as to when Shawmut decided to terminate Miniter, it is
not material to this dispute. See J. Geils Band, 76 F.3d at
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1250-51 (explaining that a material fact is one that has the
potential to affect the outcome of the dispute). What is
material is what Grondin conveyed to Juredine in the first
call, namely, that Shawmut would no longer be working through
Miniter or any independent agent, that Shawmut intended to
change carriers, and that Ohio could submit a proposal if it
wished.
Finally, Miniter points to the affidavit of its
expert, Frederick J. England, Jr., to establish the insurance
industry custom that insurers should not engage in direct
dealings with insureds who are also clients of independent
agents. According to Miniter, Ohio's violation of this
custom further supports Miniter's claim for breach of the no-
contact agreement.
England defines the industry custom as an
obligation by Ohio not to engage in continuous dealings or
discussions, regardless of whether Shawmut initiated the
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contact, without first seeking to involve Miniter. The facts
in this record do not support Miniter's assertion that Ohio
violated industry custom. During the first call from
Grondin, Juredine urged Shawmut to officially resolve the
situation with Miniter prior to moving forward. Juredine
then called Donley to inform him of the situation. Notably,
Donley did not clarify to Ohio whether or not Shawmut had
terminated Miniter. He merely exhorted Juredine not to
negotiate with Shawmut without his involvement. We conclude
that Ohio made a good faith effort to abide by the custom in
the industry as England describes it.
B. Miniter's Remaining Claims
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In addition to breach of contract, Miniter alleged
breach of the implied covenant of good faith and fair
dealing, intentional interference with advantageous
relations, unjust enrichment, and violation of the
Massachusetts unfair trade practices statute, Mass. Gen. Laws
ch. 93A. Each of these claims rests in large part on the
conduct which has failed to support Miniter's claim for
breach of the no contact agreement. We find each of
Miniter's arguments on appeal unpersuasive. For the sake of
thoroughness, however, we discuss each of them in turn.
1. Breach of the Implied Covenant of Good Faith
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and Fair Dealing
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Miniter alleged that Ohio's breach of the no
contact agreement violated the implied covenant of good faith
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and fair dealing. The district court granted summary
judgment in favor of Ohio, determining that "Ohio courts have
declined to recognize the doctrine in an at-will employment
context." On appeal Miniter argues alternatively that Ohio
does recognize the implied covenant in this context and that
the district court should have applied Massachusetts law,
which recognizes the implied covenant in every contract.
Appellee Ohio, by contrast, seeks to apply the law of the
state of Ohio, arguing that Ohio law does not recognize
Miniter's claim.
We need not determine which state's law governs.
Even if, as Miniter contends, the common law of Ohio
recognizes a cause of action for breach of the implied
covenant of good faith and fair dealing, Miniter has not
discussed how Ohio law would apply in this case. Instead,
Miniter argues the merits of this claim only under the law of
Massachusetts. We have indicated that "issues adverted to on
appeal in a perfunctory manner, unaccompanied by some
developed argumentation, are deemed to have been abandoned."
Ryan v. Royal Ins. Co. of Am., 916 F.2d 731, 714 (1st Cir.
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1990); see also Williams v. Poulos, 11 F.3d 271, 285 (1st
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Cir. 1993). We conclude, moreover, that Miniter cannot
prevail under the law of Massachusetts.
As we have recognized, "Massachusetts law implies a
duty of good faith and fair dealing in every existing
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contract." F.D.I.C. v. LeBlanc, 85 F.3d 815, 822 (1st Cir.
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1996); see also Anthony's Pier Four v. HBC Assoc., 583 N.E.2d
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806, 820 (Mass. 1991). Under this implied covenant,
"'neither party shall do anything that will have the effect
of destroying or injuring the right of the other party to
receive the fruits of the contract.'" Anthony's Pier Four,
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583 N.E.2d at 820 (quoting Drucker v. Roland Wm. Jutras
_______ __________________
Assocs., 348 N.E.2d 763, 765 (Mass. 1976)). The existence of
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the covenant in no way depends on the level of sophistication
of the parties. Massachusetts law implies the covenant even
in contracts between sophisticated business people. See id.
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at 821.
According to Miniter, Ohio dealt directly with
Shawmut in breach of the no contact agreement and falsely
indicated to Shawmut a willingness to pay the lump sum with
the purpose of excluding Miniter from any deal, thereby
eliminating Miniter's commissions. Miniter claims that
Ohio's actions "were calculated and intended to subvert the
relationship and to otherwise obtain the Shawmut account
directly and eliminate Miniter's involvement and commission."
Miniter, however, fails to identify evidence in the
record that would establish a genuine issue of material fact
whether Ohio acted in bad faith. The record indicates that
by the time Shawmut began negotiating with Ohio Grondin had
informed Juredine that Shawmut was no longer working through
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Miniter. Juredine, moreover, informed Donley of the
situation shortly after he received Grondin's call. In
short, the record does not support Miniter's contention that
Ohio acted to destroy or injure Miniter's rights to the
fruits of the contract. See Anthony's Pier Four, 583 N.E.2d
___ ___________________
at 820. Assuming Massachusetts law governs this claim,
Miniter fails to point to record evidence supporting its
allegations that Ohio acted in bad faith.4
____________________
4. Miniter's claim for unjust enrichment also fails. That
claim is based on Miniter's argument that it introduced
Shawmut to Ohio, that it brokered the initial policy, that
Ohio went behind its back and dealt directly with Shawmut,
that Ohio made misrepresentations to Shawmut, all with the
result that Ohio benefited by gaining a new client. See
___
Salamon v. Terra, 477 N.E.2d 1029, 1031-32 (Mass. 1985)
_______ _____
(remedy lies for value of benefit conferred). We have
already concluded that rather than broker or facilitate the
second policy, Miniter urged Shawmut to change carriers and
represented to Shawmut that Ohio reneged on its lump sum
offer. Our conclusion that Ohio did not engage in any
wrongful conduct precludes any plausible assertion that
Miniter conferred a benefit upon Ohio beyond the first
policy.
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2. Interference with Advantageous Relations
____________________________________________
Miniter contends that the district court erred in
granting summary judgment in favor of Ohio on its claim for
interference with advantageous relations. A claim for
interference with advantageous relations depends upon the
presence of four criteria: "(1) a business relationship or
contemplated contract of economic benefit; (2) the
defendant's knowledge of such relationship; (3) the
defendant's intentional and malicious interference with it;
(4) the plaintiff's loss of advantage directly resulting from
the defendant's conduct." Comey v. Hill, 438 N.E.2d 811,
_____ ____
816 (Mass. 1982); see also Speen v. Crown Clothing Corp., 102
___ ____ _____ ____________________
F.3d 625, 634 (1st Cir. 1996). The Supreme Judicial Court of
Massachusetts has indicated that the third element requires
merely an improper interference, and not a malicious one.
See United Truck Leasing Corp. v. Geltman, 551 N.E.2d 20, 23
___ __________________________ _______
(Mass. 1990).5 Nevertheless, a successful claim must show
something more than just the interference itself. See id.
___ ___
To the extent, therefore, that any of Ohio's actions could
constitute an interference, that alone would not incur
liability. Instead, Miniter must demonstrate wrongfulness
____________________
5. We note that in Geltman, the Supreme Judicial Court
_______
specifically examined the tort of intentional interference
with a contract and prospective contractual relations. The
court indicated, however, that at least with respect to the
third element, the same standard applied in both torts. See
___
id. at 23 n.6.
___
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beyond the interference itself. The interference must arise,
for example, from improper motives or the use of improper
means. See id.
___ ___
Miniter bases this claim yet again on its
contention that Ohio engaged in direct dealings with Shawmut
in violation of the no contact agreement and made injurious
misrepresentations about the lump sum payment and Miniter.
Our examination of the record has revealed no such conduct.
Miniter points to nothing in addition to the facts we
considered in relation to Miniter's breach of contract claims
that might support a claim for intentional interference with
advantageous relations. In the absence of record evidence
upon which a reasonable jury could find an improper
interference, Miniter cannot survive summary judgment on this
claim.
3. Breach of Fiduciary Duty/Mass. Gen. Laws ch.
___________________________________________________
93A
___
Finally, Miniter appeals the grant of summary
judgment in favor of Ohio on its claim under Mass. Gen. Laws
ch. 93A ("93A") based on breach of fiduciary duty. Section
2(a) of Mass. Gen. Laws ch. 93A provides that "[u]nfair
methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce are hereby
declared unlawful." Section 11 extends 2's general
protection to commercial parties. See Mass. Gen. Laws ch.
___
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93A 11; Industrial Gen. Corp. v. Sequoia Pac. Sys. Corp.,
______________________ ________________________
44 F.3d 40, 43 (1st Cir. 1995). Whether a particular set of
facts constitutes unfair or deceptive acts or practices
ordinarily is a question of fact. See id. The parameters of
___ __
conduct the factfinder may consider, however, is a question
of law. See id. at 44.
___ ___
To fall within these parameters, the conduct which
undergirds the complaint must reside "within at least the
penumbra of some common-law, statutory or other established
concept of unfairness," or rise to the level of immoral,
unethical, oppressive or unscrupulous, and result in
substantial injury to competitors or other business people.
Id. (internal quotations and citations omitted). At bottom,
___
a claim under 93A must rest on conduct that attained "'a
level of rascality that would raise the eyebrow of someone
inured to the rough and tumble of the world of commerce.'"
See id. at 43 (quoting Quaker St. Oil Ref. Corp. v. Garrity
___ ___ _________________________ _______
Oil Co., 884 F.2d 1510, 1513 (1st Cir. 1989) (internal
________
quotation omitted)).
Miniter contends that the agency agreement placed
it and Ohio in a fiduciary relationship, the contours of
which derive from "the established obligations imposed in the
industry that an insurer is obligated to refrain from
interfering with an independent agent's property right in
expirations [and] the concomitant prohibition against
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engaging in direct dealings with the insured while the agent
remains the broker of record."
We agree with Miniter that breach of a fiduciary
duty might constitute a 93A violation. See Sequoia Pac.
___ _____________
Sys., 44 F.3d at 44. We conclude, however, that Ohio did not
____
breach its duty. Miniter supports its 93A claim with
mischaracterizations of the record upon which we have
elaborated. In short, Ohio did not make the
misrepresentations Miniter claims, nor did it violate its
written or oral agreements. The record further reflects that
Ohio adhered to the industry custom as described by Miniter's
expert, Frederick England. As such, Ohio did not breach a
fiduciary duty to Miniter. Miniter's 93A claim based on
breach of fiduciary duty, therefore, fails.
Affirmed. Costs to appellee.
Affirmed.
_________
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