D'AMELIO v. FEDERAL INSURANCE COMPANY

2004 | Cited 0 times | D. Massachusetts | April 28, 2004

MEMORANDUM & ORDER

I. INTRODUCTION

Plaintiff Michael D'Amelio seeks a declaratory judgment againstDefendants Federal Insurance Company and Chubb Custom Insurance Companywith respect to the coverage provided by two insurance policies purchasedin connection with the sale of his majority-owned company. Moving forpartial summary judgment on Counts I and V, D'Amelio contends that theDirectors and Officers ("D&O") policy provides coverage for theamounts he paid in settlement of litigation brought against him by thebuyer of the company. Cross-moving for partial summary judgment,Defendants argue there is no coverage because D'Amelio was sued in hiscapacity as a selling stockholder, not in his capacity as a director. In addition, Defendants contest the amount of loss. Afterhearing, the Court ALLOWS Plaintiff's motion for partialsummary judgment with respect to the issue of coverage of the D&Opolicy and DENIES Plaintiff's motion with respect to the issueof loss sustained by Plaintiff as a result of the distribution of theescrow fund in settlement of the litigation. The Court ALLOWSDefendants' motion for partial summary judgment on the issue of theMountainView property.

II. FACTUAL BACKGROUND

The following facts are undisputed, except where otherwise noted.

A. The Sale of TACC

From 1991 to 1999, D'Amelio served as President and Chief ExecutiveOfficer of TACC International Corporation ("TACC"), a sealant andadhesives company. He was also the majority shareholder. On September 17,1998, TACC entered into a Stock Purchase and Sale Agreement ("SPSA") withIllinois Tool Works, Inc. and its wholly-owned subsidiary ITW Finance II,LLC (collectively, "ITW"), under which ITW purchased all of TACC's stock.The SPSA defines "Sellers" as "the persons identified on the signaturepages hereto as the selling stockholders (the `Sellers')." (Ex. D at1.)1 D'Amelio signed the SPSA three times: on behalf of himself, on behalf of TACC, and on behalf ofJezebel Management Corporation, a corporation wholly owned by D'Amelio,which was the record owner of shares beneficially owned by D'Amelio.(Id. at 35, 37.)

Article II of the SPSA provided: "As an inducement to the Buyer toenter into this Agreement and to consummate the transactions contemplatedhereby, the Company and the Sellers hereby represent and warrant to theBuyer as follows. . . ." (Id. at 5). The representations andwarranties included, for example, guarantees that the audited financialstatements as of June 30, 1997 and the unaudited financial statements asof June 30, 1998 were "true and complete" (§ 2.06); "The Company andeach Subsidiary has good title to all of its assets, including the assetsreflected on its balance sheet" (§ 2.22); and "all of the accountsreceivable . . . shall be good and collectible and represent amounts duefor bona fide sales of products actually made and services actuallyperformed." (§ 2.24.)

The SPSA included an Escrow Agreement, which (1) secured therepresentations and warranties made by the Sellers, and (2) funded anearn-out provision securing TACC's obligation to meet financial targetsfor the period from July 1, 1998 to June 30, 1999. (See id. at§§ 1.03, 6.05.) Under that agreement, $4 million of the $130 millionpurchase price was placed in escrow. Section 6.02 of the SPSA provides: Indemnification of Buyer: The Sellers hereby agree severally on a pro rata basis, and not jointly and severally, to indemnify and hold harmless the Buyer from and against any and all costs, losses, liabilities, damages, deficiencies and expenses, including, but not limited to, reasonable attorneys' fees and expenses actually incurred by the Buyer . . . arising directly out of any breach or failure to fully perform or observe any representation, warranty, covenant, or agreement of the Company contained in this Agreement. . . .

The Escrow Agreement provided in relevant part: 1.5 Claims for Indemnified Losses. The Escrow Agent shall pay promptly to ITW from the Escrow Amount the amount of all claims for Indemnified Losses . . . to the extent such amount is determined to be payable to ITW pursuant to Section 2 or 3 below. 1.6 Distribution of Escrow. The balance of the Escrow Fund, including any accrued interest, dividends or other income after satisfaction of the Indemnified Loss Claims, as herein provided, shall be distributed to the Stockholders as follows: (i) The Escrow Agent shall deliver all or a portion of the Escrow Amount, as the case may be, to ITW upon the failure of the Company to achieve for the period of July 1, 1998 to June 30, 1999, (i) minimum EBITDA of $18,700.00 and (ii) minimum EBITA of $16,400,000, as determined in accordance with Section 1.03 of the Purchase Agreement. In connection with the foregoing, the Stockholders and ITW agree that for every One Dollar ($1.00) by which EBITA fails to meet $16,400,000, as determined in accordance with Section 1.03 of the Purchase Agreement, Four Dollars ($4.00) shall be paid to ITW out of the Escrow Amount. . . . B. The Insurance Policies

In connection with the sale of TACC to ITW, D'Amelio purchased twoinsurance policies from Defendants: a Representations and WarrantiesPolicy ("R&W Policy") bound on October 30, 1998 and a Directors andOfficers Policy ("D&O Policy") bound the following month. Althoughthe policies were negotiated and purchased subsequent to the execution ofthe SPSA, the effective date of both policies was the same as the date ofthe SPSA: September 17, 1998.

The R&W Policy, by its terms, provides coverage only forrepresentations and warranties identified in the SPSA. It defines a"Wrongful Act" as: any error, misstatement, misleading statement, act or omission, neglect or breach of any duty committed or attempted, or allegedly committed or attempted by any: (a) Insured Person in their capacity as shareholder, employee, director or officer of any Insured Organization; or (b) Insured Organization but solely in connection with the Representations and Warranties identified in the Declarations [identified in the SPSA].(Ex. 3 at 8.)

Executive Liability Coverage Insuring Clause 1 of the D&O Policyprovides: The Company shall pay on behalf of each of the Insured Persons all Loss . . . which the Insured Person becomes legally obligated to pay on account of any Claim first made against him, individually or otherwise . . . for a Wrongful Act committed, attempted, or allegedly committed or attempted by such Insured Person before or during the Policy Period.(Ex. 2 at 3.)

The D&O Policy defines "Loss" as "the total amount which anyInsured Person becomes legally obligated to pay on account of each Claim. . . including, but not limited to, damages, judgments, settlements,costs, and Defense Costs." (Id. at 10.)

The D&O Policy defines "Wrongful Act" as: any error, misstatement, misleading statement, act, omission, neglect or breach of duty committed, attempted, or allegedly committed or attempted, by an Insured Person, individually or otherwise, in his Insured Capacity, or any other matter claimed against him solely by reason of his serving in such Insured Capacity.(Id. at 11.)

Insured Capacity means "the position or capacity designated in Item 6of the Declarations for this coverage section held by any InsuredPerson." Id. at 10. Item 6 includes "[a]ny person who has been,now is, or shall become a duly elected director or a duly elected orappointed officer of the Insured Organization." Id. at 1.

Two endorsements to the R&W Policy outline the connection betweenthe R&W Policy and the D&O Policy. By endorsement to the policy,the R&W Policy was made excess to the D&O policy. Endorsement 1provides, in relevant part: (1) This policy shall apply excess of the limits of liability set forth in [the D&O Policy].

(2) The Limit of Liability and Deductible provision is amended by deleting the last paragraph in its entirety and replacing it with the following: The Company's liability under this policy shall apply only to that part of Loss which is excess of the Deductible Amount set forth in the Declarations. Amounts paid for covered loss pursuant to the [D&O Policy] shall be taken into account to determine whether the Deductible Amount for this policy has been exhausted.(Ex. 3 at Endorsement 1).

An additional endorsement to the R&W Policy provided that paymentsunder the D&O policy would reduce the R&W Policy's $2.4 milliondeductible. Endorsement 2 to the R&W Policy provides: If any Loss covered by this policy is also covered under any other current policies, then this policy, subject to its limitations, conditions, provisions and other terms shall cover such Loss on a primary basis except that if any Loss covered by this policy is also covered by the Underlying Policy, then this policy, subject to its limitations, conditions, provisions and other terms, shall apply to the extent that the amount of such Loss is in excess of the amount of any payment from the [D&O Policy].C. ITW Litigation

On September 17, 1999, ITW sent a demand letter to the Escrow Agentclaiming that it was entitled to the $4 million escrow fund because ofbreaches of various representations set forth in the SPSA by the Sellers.In April 2000, D'Amelio and other TACC officers and stockholders brought suit against ITWseeking: (1) a declaration that ITW was not entitled to the escrow funds,and (2) a declaration that they had not breached any of therepresentations and warranties set forth in the SPSA. ITW filed acounterclaim against D'Amelio and others, alleging, among other things,that the Stockholders and TACC directors and officers, includingD'Amelio, had misrepresented material information concerning TACC. (Ex. Cat ¶¶ 41-49.)

On October 31, 2002, D'Amelio and ITW, and others, including otherformer TACC stockholders and MountainView Realty Corporation, a companyowned 80% by D'Amelio's mother and 20% by D'Amelio, entered into aSettlement Agreement and Mutual General Release (the "SettlementAgreement"). (See Ex. GG at 1). The parties designated the term"Shareholders" to refer to several parties, including D'Amelio.(Id.) Under the Settlement Agreement, the Shareholders agreedto pay ITW a sum of $10.5 million. (¶ 2(a).) That payment had twocomponents: (1) the Shareholders delivered to ITW a wire transfer in theamount of $5,707,472.24, and (2) the entire escrow amount plus interest,totaling $4,733,442.72. (¶ 2(c)). The Settlement Agreement was inconsideration for the agreement of ITW to release all claims against theshareholders, (Id. at ¶ 2(d)), and specified in relevant part: the Shareholders and ITW Finance shall, pursuant to Section 2.4 of the Escrow Agreement, deliver written notice to the Escrow Agent . . . stating that the Escrow Agent must immediately (i) deliver to ITW a payment in the amount of the September 30 Escrow Balance. . . .(§ 2(d).) Section 2.4 of the Escrow Agreement, entitled "MutualResolution," provided in relevant part: To the extent the amount of such Indemnified Loss Claim is finally resolved, ITW and the Stockholders' Representative shall sign a written statement setting forth such amount and submit such statement to the Escrow Agent. ITW shall then be entitled to receive payment of such amount from the Escrow Fund. The balance of the Escrow Fund shall be retained by the Escrow Agent until the earliest of (i) the Escrow Agent's receipt of a further statement signed by the Stockholder's Representative and ITW, or (ii) and Award relating to such disputed amount, or (iii) the termination of the Escrow pursuant to Section 2.3 hereof, or (iv) a distribution pursuant to Section 1.06 [sic] hereof.D'Amelio contributed $6,847,050, or 65.21% of the total $10.5million payment to ITW. D'Amelio's share of the payment was determinedbased on his percent ownership of stock in TACC when TACC was sold toITW. (Ex. 42.)

The Settlement Agreement also provided for the sale to ITW of certainproperty that had been leased from MountainView Realty Corporation toTACC. At the time of the TACC-ITW transaction in 1998, MountainView ownedthe Rockland, Massachusetts TACC facility. MountainView leased thatproperty to TACC, both before and after TACC was acquired by ITW. Afterthe inception of the litigation between ITW and the former TACCshareholders, MountainView sued ITW to evict ITW from the facility. As part ofthe Settlement Agreement, ITW purchased the Rockland property fromMountainView for $2.75 million. (Ex. GG at 3.)

Section 3(e) of the Settlement Agreement provided: ITW acknowledges that MountainView Realty values the total consideration for its conveyance of the Premises as aforesaid (including cash and non-cash consideration) to be Three Million Five Hundred Thousand Dollars ($3,500,000) based on a market appraisal of the Premises performed by John E. Kline, MAI dated as of July 17, 1998.

At the time of the settlement, D'Amelio sought Chubb's written consentto settle. Chubb agreed "not to raise lack of written consent as adefense" and had no objection to D'Amelio's moving forward with thesettlement. (Ex. HH.)

By letter dated November 6, 2002, D'Amelio sought reimbursement ofsettlement and defense costs totaling $12,228,699, pursuant to theR&W and D&O Policies. (Ex. 42.) This amount included, among otherthings, D'Amelio's portion of the cash amount paid to ITW, including theescrow amount, and the $750,000 difference between the Rocklandproperty's appraised value and actual sale price. Defendants have deniedD'Amelio's requests for reimbursement.

III. DISCUSSION

A. Standard of Review

"Summary judgment is appropriate when `the pleadings, depositions,answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuineissue as to any material fact and that the moving party is entitled tojudgment as a matter of law.'" Barbour v. Dynamics ResearchCorp., 63 F.3d 32, 36 (1st Cir. 1995) (quoting Fed.R.Civ.P.56(c)). "To succeed [in a motion for summary judgment], the moving partymust show that there is an absence of evidence to support the nonmovingparty's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir.1990); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325(1986).

"Once the moving party has properly supported its motion for summaryjudgment, the burden shifts to the non-moving party, who `may not rest onmere allegations or denials of his pleading, but must set forth specificfacts showing there is a genuine issue for trial.'" Barbour, 63F.3d at 37 (quoting Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 256 (1986)). "There must be `sufficient evidence favoring thenonmoving party for a jury to return a verdict for that party. If theevidence is merely colorable or is not significantly probative, summaryjudgment may be granted.'" Rogers, 902 F.2d at 143 (quotingAnderson, 477 U.S. at 249-50) (citations and footnote inAnderson omitted). The Court must "view the facts in the lightmost favorable to the non-moving party, drawing all reasonable inferencesin that party's favor." Barbour, 63 F.3d at 36. B. Duty to Indemnify

Plaintiff argues that under the plain language of the D&O Policy,D'Amelio is entitled to coverage in his insured capacity as an officer ofTACC because he allegedly performed a "Wrongful Act." Specifically,D'Amelio signed the SPSA in multiple capacities, not just as astockholder, but also in his individual capacity and as President ofTACC, and accordingly, any misstatements in the representations andwarranties section of the SPSA are "wrongful acts" by an "insured person,individually or otherwise, in his insured capacity" in the D&Opolicy. To buttress his interpretation of the policy language, D'Ameliopoints to the parties' designation of the R&W policy as "excess"insurance over the coverage provided by the D&O policy, which inplaintiff's view necessarily reflects a shared understanding that hesigned the SPSA in an insured capacity. Plaintiff queries: why else wouldthe R&W policy, which covers only misstatements in the SPSA, be setup as an excess policy? Because the two contracts are part of the sametransaction and one cross-references the other, Plaintiff urges theCourt construe them to give reasonable meaning to both policies'provisions. See Fenoglio v. Augat, Inc., 50 F. Supp.2d 46,56-57 (D. Mass. 1999), aff'd, 254 F.3d 368 (1st Cir. 2001)("Separate instruments in the same transaction may be read together when,for example, the instruments are executed simultaneously, cross-referenceone another, affect the same subject matters and parties, and haveinterdependent provisions.").

Conceding that D'Amelio signed the SPSA in an insured capacity,Defendants respond that D'Amelio's losses are not covered under theD&O Policy because ITW's counterclaims with respect to the SPSA wereasserted against D'Amelio solely in his capacity as a shareholder ofTACC, not in his capacity as TACC's President. According to Defendants,the trigger for coverage under the D&O Policy is not whether misdeedsmay have been committed by the Insured in his capacity as a director orofficer, or even whether ITW could have sued D'Amelio as President, butrather, whether ITW's actual claims in the litigation giving rise to theLoss were asserted against him in that insured capacity.

The issue, then, is whether Defendants' obligation to indemnify aninsured officer under a D&O policy hinges on the formal capacity inwhich he was sued by a third party. Under Massachusetts law, thepleadings play a role in the analysis of an insurer's obligations butthey are not dispositive either in the context of a duty to defend or aduty to indemnify. With respect to the former, an insurer's obligation todefend its insured is measured by the allegations of the underlyingcomplaint. "[I]f the allegations in the complaint are `reasonablysusceptible' of an interpretation that they state or adumbrate a claim covered by the policy terms, the insurer mustundertake the defense." Sterilite Corp. v. Continental Cas.Co., 458 N.E.2d 338, 340, 17 Mass. App. Ct. 316, 318 (1983)."Otherwise stated, the process is one of envisaging what kinds of lossesmay be proved as lying within the range of allegations of the complaintand then seeing whether any such loss fits the expectation of protectiveinsurance reasonably generated by the terms of the policy." Id.at 341. See also Winnacunnet Coop. Sch. Dist. v. Nat'l Union FireIns. Co., 84 F.3d 32, 35-36 (1st Cir. 1996) ("A court may inquireinto the underlying facts to avoid permitting the pleading strategies,whims and vagaries of third party claimants to control the rights ofparties to an insurance contract."); Lee v. Aetna Cas. & Sur.Co., 178 F.2d 750, 752 (2d Cir. 1949) (Hand, J.) (remarking on"plasticity of modern pleading" and holding that where "the complaintcomprehends an injury which may be within the policy . . . the promise todefend includes it").

The duty to indemnify is not circumscribed by the formal nature of thepleadings. Rather, "the duty to indemnify depends upon the factsestablished at trial and the theory under which judgment is actuallyentered in the case." Home Ins. Co. v. St. Paul Fire & MarineIns. Co., 229 F.3d 56, 66 (1st Cir. 2000). Where the litigation issettled prior to trial, "the duty to indemnify must be determined in thebasis of the settlement . . . Travelers Ins. Co. v. Waltham Indus. Labs. Corp.,883 F.2d 1092, 1099 (1st Cir. 1989) (stating that whether insurer had duty toindemnify depends on whether any portion of the settlement was made incompensation for acts that fall within insurer's coverage).

The crucial issue is not how a third party (in this case, ITW) wordedits claim, but rather whether ITW's theory of litigation, and theeventual settlement, encompassed allegedly wrongful conduct by D'Amelioin his insured capacity, as defined in the D&O Policy. That D'Amelioacted as a selling shareholder does not defeat coverage. "[W]here it isofficial conduct that is complained of . . . the fact that directors arealso stockholders is `immaterial.'" Raychem Corp. v. Federal Ins.Co., 853 F. Supp. 1170, 1184 (N.D. Cal. 1994) (citing NodawayValley Bank v. Continental Gas. Co., 715 F. Supp. 1458, 1466 (W.D.Mo. 1989)) (finding coverage where corporation's officers were acting intheir capacity as officers and directors). Cf. Beck v. American Cas.Co., 1990 WL 598573, at *14-*15 (W.D. Tex., Apr. 12, 1990) (findinginsurer had no duty to pay settlement where underlying complaint allegedmisrepresentations in agreement specifically executed by directors intheir capacity as shareholders); Olson v. Federal Ins. Co.,219 Cal.App.3d 252, 261-62 (1990) (insurer was not obligated to indemnifyplaintiff where "allegations were directed toward plaintiff's asserted interference with [a separate corporation] as part owner[of that corporation] rather than acts undertaken as a director of OlsonFarms") (emphasis in original).

A review of ITW's claims and the ultimate settlement reveals that theclaims were based on alleged misconduct by TACC management, includingD'Amelio in his insured capacity, as well as by shareholders. ITW allegedin its counterclaim that "TACC's management ignored ITW's requests forinformation and misrepresented material aspects of TACC's financialcondition." (Ex. C at ¶ 17.) D'Amelio (specifically named) "knew orshould have known, that TACC could not use certain rework material"(¶ 41) and "had a duty to reserve on TACC's financial statements theanticipated costs of this waste disposal and reduce the value of TACC'sinventory accordingly." (¶ 45.) ITW further alleged that D'Amelio andothers had a duty under Section 2.06 of the SPSA to show these expenseson TACC's financial statements, or, alternatively, pursuant to Section2.27 "to disclose to ITW Finance that they had not properly accounted forthe unusable rework material." (¶ 46.) The amended counterclaimsalleged: "As of 1997 and possibly earlier, D'Amelio and Bero [TACC'sChief Financial Officer] knew, or should have known, that certain reworkand other material, carried on the books as inventory, constituted orsoon would become hazardous waste required by law to be removed fromTACC's premises in a timely fashion." (Ex. T at ¶ 46.) The amended counterclaims, which included a count forfraud and for violation of Mass. Gen. Laws ch. 93A, also alleged thatTACC and its stockholders intentionally misrepresented accountsreceivable. (¶¶ 54-58.)

Defendants make much of the fact that the counterclaim collectivelyrefers to defendants as stockholders. (¶ 12.) This emphasis isoverblown. The original counterclaim against D'Amelio specificallyidentifies him as an "individual" who was at all relevant times Presidentand a stockholder of TACC (Ex. C at ¶ 2.) D'Amelio was suedindividually for fraud and violations of Chapter 93A, not just for breachof contract. The underlying conduct alleged by ITW necessarily implicatedD'Amelio in his official capacity. Thus, the fact that the complaint usesthe collective term "Stockholders" or "Sellers" is not controlling.

Accordingly, based on the allegations in the amended counterclaim andthe SPSA, the Court concludes that the basis for the Settlement Agreementand Mutual General Release encompassed D'Amelio's acts in his insuredcapacity.

C. Loss

D'Amelio seeks summary judgment of his assertion that the escrow fundspaid to ITW in settlement of the underlying litigation constitute "Loss"under the insurance policies. This issue turns out to be more complicatedthan it appears at first blush. Defendants contend D'Amelio was never legally entitled to any portionof the $4 million escrow, or at least that a factual question remains asto D'Amelio's entitlement to this fund pending a determination of whetherTACC met the specified earnings targets. Defendants assert that, pursuantto Sections 1.5 and 1.6 of the Escrow Agreement, D'Amelio and the othersellers were entitled to receive funds from the Escrow Agent only if: (1)funds remained in the escrow account after the Escrow Agent paid ITW forany indemnified loss claims, and (2) TACC achieved a specified minimumlevel of earnings within the first fiscal year after ITW's acquisition.By definition, Defendants maintain, Plaintiff could not have sustained aloss on funds because his right to those funds was contingent. Therefore,distribution of those funds to ITW pursuant to a settlement agreementdoes not constitute a loss under the policies.

Plaintiff maintains that he became legally obligated to pay ITW theescrow amount, among other amounts, by signing the Settlement Agreement.The Settlement Agreement explicitly provided: "In further considerationfor the agreement of ITW hereunder to release all claims against theShareholders on the terms set forth in this Agreement, the Shareholdersand ITW Finance pursuant to Section 2.4 of the Escrow Agreementshall . . . deliver written notice to the Escrow Agent . . . stating thatthe Escrow Agent must immediately (i) deliver to ITW a payment in amount of the September 30 Escrow Balance . . ." (Ex. GG at ¶2(d).)

Resolution of this dispute depends on the labyrinthine interplaybetween the SPSA, the Escrow Agreement, and the Settlement Agreement.Article VI of the SPSA governs the circumstances for indemnification ofloss incurred by the buyer arising out of a breach of a representation orwarranty. (Ex. D at § 6.02.) To secure the seller's obligation underthe representations and warranties, the sellers established an escrow of$4,000,000. (§§ 1.03(a)(i), 6.05.) The escrow also secured theobligation to meet certain minimum earnings. (§ 1.03(a)(ii).) Section1.6 of the Escrow Agreement specifies that only after satisfaction of theindemnified loss claim pursuant to Section 1.5 can the Escrow Agentdistribute the "balance of the escrow" pursuant to Section 1.6 for, amongother things, failure to meet earning targets.

D'Amelio was legally obligated under the settlement to forfeit hiscontingent right to the escrow account. However, based on the plainlanguage of the Escrow Agreement, the value of that contingent right mayhave been zero because it is undisputed that the earning targets have notbeen met. TACC argues that it met the earning targets because of paymentsunder a business interruption insurance policy. The record is inadequateto resolve this dispute. Accordingly, summary judgment on this issue is DENIED.

3. MountainView Property

D'Amelio also claims he is entitled to reimbursement of the $750,000difference between the premises' appraised value as provided in theSettlement Agreement, and their actual sale price.

While D'Amelio contends he owes MountainView the $750,000, he hasproduced insufficient evidence that he is legally obligated to pay thatamount to MountainView or any other person. He has not executed a note orany other writing. At most, he proffers his deposition testimony that"either myself personally or Jezebel Management will owe MountainViewRealty that $750,000 because myself and Jezebel were the settling partiesin the ITW lawsuit and that's the reason that MountainView had to be soldunder market value." (Dep. Tr. 174). Jezebel is not insured under thepolicy. Moreover, this vague statement, standing alone, is insufficientto demonstrate a legal obligation of the insured. See Jordan-MiltonMachinery, Inc. v. F/V Teresa Marie, II, 978 F.2d 32, 35 (1st Cir.1992) (citing Restatement (Second) of Contracts § 33 (1981)) (holdingoral statement "We can do this deal" too vague and uncertain toconstitute and enforceable contract); Bell v. B.F. GoodrichCo., 359 Mass. 763, 270 N.E.2d 926 (1971). IV. ORDER

Plaintiff's motion for partial summary judgment (Docket No. 63) isALLOWED in part and DENIED in part, and Defendants'motion for partial summary judgment (Docket No. 66) is ALLOWEDin part.

1. Unless otherwise noted, Plaintiff's exhibits are orderedalphabetically while Defendants' exhibits are numbered.

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