James L. Miniter Insurance Agency v. Ohio Indemnity Co.

United States Court of Appeals
For the First Circuit

No. 96-1802

JAMES L. MINITER INSURANCE AGENCY, INC.,

Plaintiff, Appellant,

v.

OHIO INDEMNITY COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Stahl, Circuit Judge.

Peter C. Knight with whom Hunter O'Hanian, Tory A. Weigand,

Morrison, Mahoney & Miller were on brief for appellant.

David P. Shouvlin with whom Porter, Wright, Morris & Arthur,

Michael R. Gottfried and Burns & Levinson, LLP were on brief for

appellee.

May 12, 1997

STAHL, Circuit Judge. Plaintiff-appellant James L.
STAHL, Circuit Judge.

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

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

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

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

We review the award of summary judgment de novo.

See Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir.

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.

56(c). A fact is material when it has the potential to

affect the outcome of the suit. See J. Geils Band Employee

Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245,

1250-51 (1st Cir.), cert. denied, 117 S. Ct. 81 (1996).

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

Fed. R. Civ. P. 56(c) & (e).

Choice of Law
Choice of Law

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

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

Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991). In

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

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

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

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

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

Co., 374 N.E.2d 146, 150 (Ohio 1978). We may consider

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.

"[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

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.

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

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

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

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

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

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

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

and Fair Dealing

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.

1990); see also Williams v. Poulos, 11 F.3d 271, 285 (1st

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.

1996); see also Anthony's Pier Four v. HBC Assoc., 583 N.E.2d

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,

583 N.E.2d at 820 (quoting Drucker v. Roland Wm. Jutras

Assocs., 348 N.E.2d 763, 765 (Mass. 1976)). The existence of

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.

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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