OPINION
This matter comes before the Court on the motion for summary judgment of Putney, Twombly, Hall & Hirson and Baker & Botts, L.L.P, co-counsel for defendants, CIGNA Corporation (“CIGNA Corp.”), CIGNA Fire Underwriters Insurance Company, CIGNA Property & Casualty Insurance Company, CIGNA Insurance Company, Bankers Standard Insurance Company, Bankers Standard Fire & Marine Insurance Company, Century Indemnity Company, Insurance Company of North America, Pacific Employers Insurance
FACTS
Plaintiffs are' nine independent insurance agencies, located in' New Jersey, and their principals (collectively referred to as “COM-PAR Agents”). 1 Defendant CIGNA Corp. is a Delaware corporation. The remaining defendants (colléetively “CIGNA P & C”) were, at all relevant times, subsidiaries of CIGNA Corp. and were engaged in the business of writing property and casualty insurance policies through independent insurance agencies.
In 1972, Insurance Company of North America (now a part of the CIGNA Property and Casualty Companies), started a program known as “COMPAR.” Under COMPAR, an insurance agent agreed to write virtually all of his property and casualty business through CIGNA P & C; in exchange, CIG-NA P & C paid the agent higher commissions and enhanced profit-sharing bonuses, among other benefits. Martin Cert.Ex. 64 at 33-36 & Ex. 65 at 17. 2 According to the defendants, the idea behind COMPAR was that it would be beneficial for both agents— i.e., the agents would increase their commission and bonus income and lower their overhead expenses by having to deal with only one company, id., and the company would benefit by attracting a lower risk class of insurance business because only those insurance agencies who were successful at identifying profitable business would be invited to join the COMPAR program. Id. at Ex. 46 at 35-36. However, according to the plaintiffs, the fact that the COMPAR agents exclusive-ly represented CIGNA, “made the COMPAR Agents totally dependent on CIGNA because it required them to sever and prevented them from developing relationships with, and selling products for, CIGNA’s competitors and hinged the COMPAR Agents’ success solely on CIGNA’s performance.” Plaintiff 12G at 3, ¶ 4. 3
By 1990, COMPAR was a nationwide program. Hourigan joined COMPAR in 1972, Alexander in 1973, Troop in 1975, McVeigh in 1979, Professional Insurance in 1984, Horn in 1984, Block in 1988, Cecchettini in 1988 and Kurmin in 1988. Every few years, these COMPAR Agents signed new, virtually identical documents; they signed their last such document in late 1989, effective January 1990. 4 Plaintiff 12G at 2, ¶ 2.
Because the program required an agency to give up its contracts with other standard carriers, the relevant COMPAR contracts that CIGNA P & C offered its agents contained a minimum period of five years before they could be canceled (an initial three year term, after which a two-year notice of termination could be given to either side) unless the contract was mutually amended or consensually terminated during its term. Each Full Service Agency Agreement also contained a merger or integration clause which explicitly nullified all prior oral and written agreements between the agency and CIGNA P & C. Supp.App.Ex. 2. The applicable merger clause in the 1990 Agreement, reads as follows:
11. This Agreement is a Full Service Agency Agreement between you and us. Any previous agency agreement, whether between you and us, whether oral or written, is now void. The Agreement may be amended only in writing and the amendment must be signed by you and us. 5
The contract — -including the 1990 Agreement — executed by each of the plaintiff agencies states: “You are an independent contractor. You are free to exercise your own judgment in conducting your business. Nothing in this Agreement shall be interpreted as creating an employee/employer relationship between us.” Supp.App.Ex. 2 ¶ 1(b). Plaintiffs’ testimony confirms that COMPAR agents operated fully independent businesses and made their own business decisions. Martin Cert. Exs. 16-19.
In approximately February 1990, CIGNA P & C informed the COMFAR Agents that they were terminating the COMPAR program, effective January 1992. Plaintiffs claim this termination was abrupt and unilateral and that it left them unable to re-establish ties with other carriers in order to service their existing business, much less seek to obtain new business. As a result, the COMPAR Agents claim they were severely damaged, up to and including the complete destruction of the businesses of four of the plaintiffs. 6
Defendants claim that the termination of the COMPAR program emanated from a change in the “organizational structure” of CIGNA P & C. According to Caleb Fowler, then President of CIGNA P & C, a task force was formed in mid-1989. The task force’s work led him to conclude that CIGNA P & C’s focus for the 1990’s should be on “segmentation,” whereby CIGNA P & C would concentrate on certain “core segments” in which insurance for particular types of business would be written. Martin Cert.Ex. 45 at 94-99, 102-05, 110, 116-18. As a result, Fowler decided that CIGNA P & C could not meet the broad underwriting needs of the COMPAR agents and that the COMPAR program should therefore be changed to a non-exclusive relationship. Id. at Ex. 47. According to the defendants, management learned of this decision on the same day as CIGNA P & C sent written notice to each plaintiff that the COMPAR program was to be phased out. Id. at Ex. 48. Indeed, Fowler testified that he had no intention to end COMPAR in the 1980’s and never considered it until early 1990. Id. at Ex. 45 at 74-76, 99-100.
Moreover, simultaneous with informing the agents in or about February 1990 that the COMPAR program would be terminated, CIGNA P & C offered the agents an amendment to the 1990 Agreement — the so-called “transition agreement.” 7 The transition agreement continued the commission and profit sharing from the 1990 Agreement but allowed the agents to “sell insurance policies issued by insurers other than us and you may become licensed to represent such insurers.” Martin Cert.Ex. 14. All nine agencies took advantage of and signed the transition agreement, which became effective January 1, 1992. The 1992 Agreement contained a merger clause with language virtually identical to that in the 1990 Agreement. Id. at Ex. 15 ¶ 10. Thus, each plaintiff expressly agreed that the 1990 Agreement was “now void.”
However, plaintiffs claim they were forced into signing the transition agreement; specifically, they claim they were told that if they did not sign the new agreement that CIGNA P & C would enforce “exclusivity” — i.e., the
In April 1995, more than five years after executing the transition agreement, plaintiffs filed a Complaint in this Court. 9 On August 30, 1996, plaintiffs filed an Amended Complaint, alleging breach of fiduciary duty, negligent misrepresentation, fraudulent inducement, fraudulent concealment, breach of contract, promissory estoppel, equitable es-toppel and reformation. 10 Specifically, plaintiffs claim that:
CIGNA betrayed the trust and confidence plaintiffs placed in CIGNA by, among other things: (i) concealing the serious concerns CIGNA had about the program’s profitability in late 1986 through 1988; (ii) concealing the fact that CIGNA was considering “abandoning” the COMPAR program as early as 1987; (iii) concealing CIGNA’s lack of commitment to the COMPAR program as early as 1987; (iv) concealing CIGNA’s plans to reduce COMPAR benefits in 1987 and 1988; (v) concealing the fact that COMPAR was on shaky ground in late 1987; (vi) concealing that CIGNA considered “blow[ing] up the program” in early 1989; (vii) concealing CIGNA’s strategic intent regarding the COMPAR program in late 1989 — early 1990; (viii) representing to COMPAR agents that they were the key to CIGNA’s success in the 1990’s, all the while making plans to dismantle the program; and (ix) attempting to “milk [the COMPAR] cow” in 1989 and 1990.
Amended Complaint ¶ 24, Martin Cert.Ex. 1; see also, e.g., Atkin Cert.Exs. 47, 49, & 54. Plaintiffs claim that they relied, to their detriment, on the following oral and written misrepresentations made by the defendants, during telephone conferences and personal meetings held in plaintiffs’ offices in New Jersey and CIGNA’s offices in Pennsylvania, as well as COMPAR meetings held at various cities around the country:
(a) the COMPAR program had the total support of everyone át CIGNA, from top management down to field personnel;
(b) the COMPAR program would provide plaintiffs with an increased commission level, including an attractive and higher than normal profit sharing plan;
(c) the relationship between CIGNA and plaintiffs would be long-lasting;
(d) the COMPAR agreement would be one “in perpetuity”;
(e) CIGNA was committed to the COM-PAR program, which was a major part of CIGNA’s future plans;
(f) CIGNA had a long-term commitment to the COMPAR program;
(g) CIGNA would not be a “class underwriter” when dealing with plaintiffs as COMPAR agents;
(h) CIGNA was committed to a full personal lines market;
(i) COMPAR would continue to be a vital element in CIGNA’s success plan for the 1990’s and beyond; and
(j) the COMPAR program was the marketing program that was key to CIG-NA’s success and would take CIGNA into the twenty-first century and beyond.
Amended Complaint ¶ 25, Martin Cert.Ex. 1; see also, e.g., Atkin Cert.Ex. 6 at Q.22, Ex. 27 at 407-08, Ex. 28 at 184-85, Ex. 30 at 124-25, Ex. 31 at 119, Ex. 32 at 93, 105-06, 306, Ex. 33 at 135-36, Ex. 34 at 65-66, Ex. 35 at 537, 551, 563-64, 566-67, Ex. 36 at 376-77, Ex. 43 at 65, 350, 352, 353-54, Ex. 77 at 35, 38. 11 Plaintiffs also claim they were sent a “CIG-NA COMPAR videotape showing the placing of a wedding band on a finger to depict the nature of the relationship between CIGNA and its COMPAR agents.” Amended Complaint ¶ 20, Martin Cert.Ex. 1.
Specifically, plaintiffs claim that in reliance upon these misrepresentations:
set forth in paragraph 25 [of the Complaint], plaintiffs renewed their “Full Service Agency Agreement (COMPAR),” continued to terminate their relationship with all of the other.insurance companies and roll all of their insurance business from those companies over to CIGNA, remained in the COMPAR Program with CIGNA and forewent other business opportunities.
Id. at ¶ 26. Plaintiffs add that the so-called transition agreement was of no assistance because
[h]aving entered into this exclusive relationship with CIGNA, plaintiffs effectively burned their bridges with other insurance carriers. As a result, when CIGNA breached the COMPAR agreement and canceled the COMPAR program, withdrew from lines of insurance in the state of New Jersey and refused to renew or rewrite policies for plaintiffs’ customers, it was virtually impossible for plaintiffs to find insurance products for their customers and, as a result, plaintiffs lost many customers and sustained severe harm to their agencies.
Id. at ¶ 29. In the end, plaintiffs allege that four of the COMPAR Agents (Kurmin, Block, Horn and McVeigh) were forced out of business and compelled to sell their agencies at distress prices. The others also suffered out-of-pocket losses, as well as the loss of the benefit of the bargain into which CIGNA had induced them to enter. Atkin Cert., Exs. 12-20. 12
In sum, defendants argue that the undisputed testimony in the record shows that CIGNA P & C did not consider ending COM-PAR until late 1989/early 1990, and that once the decision was made, pláintiffs were promptly advised. Martin Cert.Ex. 46 at 208-09. Defendants concede that there are documents showing that CIGNA P & C began reviewing the viability and profitability of the COMPAR program as early as 1987 but add that there is no evidence that any serious consideration was given to ending COMPAR at that time. Martin Cert.Ex. 46 at 123-25, 208-09 and Ex. 45 at 74-76. In addition, defendants point out that each of the plaintiffs has testified that he has no evidence that any of the declarants — said to have made the misrepresentations set forth in the Amended Complaint — believed, at the time they spoke, that their “representations” were untrue, or that those statements were uttered with an intent to deceive. See Martin CertEx. 1 at ¶ 29 & Exs. 32-36.
DISCUSSION
Fed.R.Civ.P. 56(c) provides for summary judgment when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party’s entitlement to judgment as a matter of law.
Celotex Corp. v. Catrett,
Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists.
Jersey Cent. Power & Light Co. v. Lacey Township, 112.
F.2d 1103, 1109 (3d Cir.1985). However, the party opposing the motion for summary judgment cannot rest on mere allegations and must instead present actual evidence that creates a genuine issue as to a material fact for trial.
Anderson v. Liberty Lobby, Inc.,
1. Fraud
The Amended Complaint asserts two fraud claims against the defendants — one for fraudulent inducement and one for fraudulent concealment.
The elements of a claim for common law fraud in New Jersey are: (1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon; and (5) resulting damages.
14
Gennari v. Weichert Co. Realtors,
Statements as to future or contingent events, to expectations or probabilities, or as to what will or will not be done in the future, do not constitute misrepresentations, even though they may turn out to be wrong.
Chatlos Systems, Inc. v. National Cash Register Corp.,
In addition, “[a] contractual provision flatly contradictory to prior oral assurances should cause most people — and particularly experienced, knowledgeable business people — to pause,”
Elias Bros. Restaurants, Inc. v. Acorn Enterprises, Inc.,
11. This Agreement is a Full Service Agency Agreement between you and us. Any previous agency agreement, either between you and us, whether oral or written, is now void. The Agreement may be amended only in writing and the amendment must be signed by you and us.
Thus, given that the express language of the contracts, signed by the plaintiffs, explicitly nullifying any previous agreements, oral or written, it is manifestly unreasonable for plaintiffs to assert that they reasonably relied on any alleged statements concerning the lifetime or perpetual duration of COM-PAR.
Finally, “[t]he parol evidence rule operates to prohibit the introduction of oral promises to alter or vary an integrated written agreement.”
Filmlife, Inc. v. Mal “Z” Ena, Inc.,
In this case, plaintiffs have failed to adduce evidence showing their, assent to and signature of the COMPAR agreements was obtained by fraud, or that they were induced to enter into the agreements through “willful misrepresentations” as to the “purport or contents” of the contracts. 16 For example, no plaintiff has testified that he was told that the notice termination provision was inoperable or that despite the merger clause, part of the agreement could be oral. Moreover, the internal documents referred .to by the plaintiffs in their briefs and during oral argument, do not evidence any long-term secret intent on the part of the defendants to abandon the COMPAR program before 1990. Accordingly, summary judgment is granted to the defendants as to plaintiffs’ fraud claims. 17
2. Breach of Fiduciary Duty
Under New Jersey law, a confidential or fiduciary relationship encompasses all relationships “whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or in fact, reasonably exists.”
Pascale v. Pascale,
A fiduciary is a person with a duty to act primarily for the benefit of another.
******
A fiduciary relationship implies- a condition of superiority of one of the parties over the other. Generally, in a fiduciary relationship, the property, interest orauthority of the other is placed in the charge of the fiduciary ... [I]t extends to every possible case in which a fiduciary relation exists in fact, and in which there is confidence reposed on one side and resulting domination and influence on the other ... There is no invariable rule which determines the existence of a fiduciary relationship, the one in the other, but there must exist a certain inequality, dependence, weakness of age, of mental strength, business intelligence, knowledge of the facts involved, or other conditions, giving to one advantage over the other.
Ritchie Enterprises v. Honeywell Bull, Inc.,
In this case, the relationship between the parties is similar to that between a company and its distributor — “although bound together by their common interest in promoting the sale [of insurance] ... are arms-length bargaining parties, not partners.” Coc
a-Cola Bottling Co.,
To support their breach of fiduciary duty argument, plaintiffs primarily rely on
Tiberi v. CIGNA Corporation,
3. Promissory Estoppel
The elements of promissory es-toppel in New Jersey are: (1) a clear and definite promise by the promisor; (2) the promise must be made with the expectation that it will induce reliance by the promisee; (3) the promisee must reasonably rely upon the promise; and (4) the promisee must experience substantial reliance on the promise.
Pitak,
In this case, the facts do not establish a “clear and definite” promise by the defendants to the plaintiffs. Rather, what plaintiffs point to as promises are, in reality, only statements of opinions or expectations which do not support an estoppel claim. Accordingly, summary judgment is granted to the defendants as to plaintiffs’ promissory estop-pel claim.
4. Equitable Estoppel
To prevail on an equitable estop-pel claim, a plaintiff must demonstrate: (1) a material misrepresentation; (2) reasonable reliance upon the misrepresentation; and' (3) damages resulting from the misrepresentation.
Hein v. F.D.I.C., 88
F.3d 210, 221 (3d Cir.1996),
cert. denied,
— U.S. -,
Tiberi claims that he chose to stay in COMPAR based on CIGNA’s assurances and suffered substantial loss after making that choice; this is all that the equitable estoppel doctrine requires ... CIGNA [also] maintains that it made no representations to Tiberi upon which he could reasonably rely for the purposes of equitable estoppel. CIGNA claims that the statements that its promises to correct COM-PAR’s problems were so vague, and left unfulfilled for such a long period of time, that Tiberi could not have relied on them. In essence, CIGNA argues that the court should not allow equitable estoppel to attach because it was not serious about the promises it made to Tiberi. This would allow CIGNA “to profit from its own fraud.” Such a result is inherently inequitable.
However,
Tiberi
is distinguishable from this ease in that the Tenth Circuit was not deciding the equitable estoppel claim on the merits but was merely deciding whether or nor the district court erred in refusing to toll the applicable statute of limitations.
19
5. Negligent Misrepresentation
Under New Jersey law, to prevail on a negligent misrepresentation claim, a plaintiff must prove that the defendant negligently made an incorrect statement, upon which the plaintiff justifiably relied.
H. Rosenblum, Inc. v. Adler,
6. Breach of Contract
Borbely v. Nationwide Mutual Insurance Co.,
At trial, each plaintiff testified concerning representations made to him by Nationwide employees, usually the local District Sales Managers (“DSM’s”), and officials, at the time he was recruited as an agent and during the course of his agency relationship with defendant. In general, the representations involved assurances of lifetime security and the opportunity to build one’s own business and eventually to pass it on to a family member, financial security, and the companies’ desire to retain agents until retirement. With respect to termination, Nationwide employees essentially assured plaintiffs that the companies did not invoke the cancellation provision unless an agent performed or produced poorly despite assistance, failed to fulfill obligations to Nationwide or its policyholders, or was dishonest.
Id. at 967-68.
In construing the affect of the DSMs’ representations on the agreements signed by the plaintiff-agents in Nationwide, Judge Thompson held that:
it is manifest that this language cannot be construed to entitle plaintiffs to lifetime agencies despite verbal assurances to that effect antecedent to the execution of the operative agreement. Agreements for lifetime employment are enforced with marked reluctance by the courts, and then ■ only when the commitment has “been clearly, specifically and definitely expressed.” At best, the representations by Nationwide employees with respect to lifetime tenure amount to “friendly assurances(s)”; 'they are patently insufficient under the law to create an obligation to defendant to retain plaintiffs until death or retirement.
Id.
at 969-70;
Weichert Co. Realtors v. Ryan,
Judge Thompson also added in a footnote to Nationwide that “[gjiven the inclusion in each successive Agents[sie] Agreement of a clause barring amendments and modifications unless embodied in a writing signed by the agent and an officer of the companies, a person of ordinary prudence could not reasonably presume the DSMs had authority to alter verbally the terms of the agreement.” Id. at 970 n. 17. In sum, Judge Thompson held “that the Agent’s Agreement was intended by the parties to be the full expression of their bargain.” Id. at 971. 23
For the same reason, the 1990 COMPAR Agreement (and its predecessors and successors) in this ease must be viewed as constituting the entire agreement between CIGNA P & C and its COMPAR agents. Further, just as in Nationwide, the parol evidence rule negates any attempts by the plaintiffs in this case to modify or change the terms of their Full Service Agency Agreements by resort to prior or contemporaneous agreements or understandings.
Plaintiffs have not presented this Court with any genuine issues as to a material fact regarding their breach of contract claim against the defendants. Accordingly, as a matter of law, summary judgment is granted to the defendants as to plaintiffs’ breach of contract claim.
7. Reformation.
Reformation is permissible in cases where there has been (1) a unilateral mistake accompanied by fraud or (2) a mutual mistake with regard to the terms of the instrument.
Brodzinsky v. Pulek,
Here, defendants claim that there is no issue of mutual mistake and therefore plaintiffs’ reformation claim, if any, must be based on a unilateral mistake accompanied by fraud. Plaintiffs do not refute this point. Indeed, plaintiffs do not even address the reformation claim in their opposition brief to this motion. Accordingly, plaintiffs have failed to present any evidence, much less clear and convincing evidence, that there is anything unconscionable in enforcing the COMPAR contracts, as written, or that the plaintiffs reasonably relied upon statements which were contrary to the express language of the contracts. Accordingly, summary judgment is granted to the defendants as to plaintiffs’ reformation claim.
8. Punitive Damages
Plaintiffs seek punitive damages on the first, second, third and fourth causes of action in their Amended Complaint — i.e., for breach of fiduciary duty, negligent misrepresentation and fraud. Amended Complaint ¶ 60(b), Martin Cert. Ex. 1. Plaintiffs correctly state that punitive damages are appropriate in both fraud and breach of fiduciary duty claims.
W.A. Wright, Inc. v. KDI Sylvan Pools, Inc.,
9. Personal Jurisdiction over CIGNA Corp.
Fed.R.Civ.P. 4(e) authorizes a district court to assert personal jurisdiction over a nonresident to the extent permissible under the law of the state where the district court is located.
See Mesalic v. Fiberfloat Corp.,
Moreover, in cases where the defendant has properly raised a jurisdictional defense, “the plaintiff bears the burden of demonstrating [that] contacts with the forum state [are] sufficient to give the court in personam jurisdiction.”
Mesalic,
“The minimum .contacts framework, as first set out in
International Shoe Co. v. Washington,
A district court may not exercise jurisdiction over a defendant corporation if the only connection with the state is through that defendant’s subsidiaries.
Jemez Agency, Inc. v. CIGNA Corp.,
Under New Jersey law,
25
“parent and subsidiary corporations are distinct legal entities and courts are extremely reluctant to pierce the corporate veil between the two absent compelling circumstances.”
Ricoh Co. Ltd. v. Honeywell, Inc.,
However, the Supreme Court of the United States has held that a tortious act committed outside a forum, but having an effect in that forum, may, in certain circumstances, give rise to personal jurisdiction.
Calder v. Jones,
In this case, it is undisputed by the parties that the issue is whether this Court may exercise specific (as opposed to general
27
) jurisdiction over the defendant CIGNA Corp. Thus, the issue in this case is whether specific jurisdiction exists over defendant CIGNA Corp. — i.e., whether CIGNA Corp had sufficient contacts with New Jersey, relating to the claims in this case.
Carteret,
By contrast, here the evidence of a general promotional tape and the alleged fraudulent statements made by Mr. Taylor who, at the time was not even acting on behalf of CIGNA Corp., does not amount to the requisite minimum contacts needed for this Court to exercise specific jurisdiction over defendant CIGNA Corp. 29 Accordingly, this Court does not have jurisdiction over defendant CIGNA Corp. and plaintiffs case against CIGNA Corp. is therefore dismissed in its entirety.
CONCLUSION
For the reasons stated above, defendants’ motion for summary judgment is granted as to all of plaintiffs’ claims. In addition, all of plaintiffs’ claims against defendant CIGNA Corp. are dismissed for lack of personal jurisdiction.
ORDER
This matter having been opened to this Court by Putney, Twombly, Hall & Hirson and Baker & Botts, L.L.P., attorneys for defendants, CIGNA Corporation (“CIGNA Corp.”), CIGNA Fire Underwriters Insurance Company, CIGNA Property and Casualty Insurance Company, CIGNA Insurance Company, Bankers Standard Insurance Company, Bankers Standard Fire & Marine Insurance Company, Century Indemnity Company, Insurance Company of North America, Pacific Employers Insurance Company, Aetna Fire Underwriters Insurance Company and Aetna Insurance Company (collectively referred to as “CIGNA P & C”), and the Court having considered the written submissions and oral argument of the parties, and good cause appearing,
IT IS on this 31st day of December, 1997,
ORDERED that defendants’ motion for summary judgment, pursuant to Fed. R.Civ.P. 56(c), for an Order of dismissal of the Amended Complaint, be and hereby is granted; and
IT IS FURTHER ORDERED that all of plaintiffs’ claims against defendant CIGNA Corp. are dismissed for lack of personal jurisdiction; and
IT IS FURTHER ORDERED that a copy of this Order be served on all parties within seven (7) days of the date of this Order.
Notes
.The COMPAR Agents’ claims were originally asserted in separate actions but have been consolidated into this action. The COMPAR agents are Albert A. Alexander and the A1 Alexander Agency, Inc. ("Alexander”), Robert J. McVeigh and the McVeigh Insurance Agency ("McVeigh”), Gene F. Stem and the Lester Block, Inc. Agency ("Block”), Thomas Fría and the Kurmin Insurance Agency, Inc. "(Kurmin”), John Cecchettini "and the John Cecchettini and JJSG Insurance Agencies ("Cecchettini”), Jonathan Klein and the Professional Insurance Managers, Inc. Agency ("Professional Insurance”), David Carlough, Jr. and David Carlough, Sr. and the William R. Troop Agency ("Troop”), William Hourigan, Jr. and the Broome-Hourigan, Inc. Agency ("Houri-gan”) and Jay Horii Insurance Services, Ltd. Agency (“Horn”).
. References in the form "Martin Cert.” are to the Certification of Thomas A. Martin, Esq. and the attached exhibits thereto, submitted by defendants in support of this motion.
. References in the form "Plaintiff 12G at are to plaintiffs’ statement of undisputed material facts, submitted pursuant to then General Rule 12G, now amended to Local Civil Rule 56.1.
. A copy of a standard COMPAR Full Service Agency Agreement is annexed as Exhibit 2 to the Supplemental Appendix of Exhibits (hereinafter, "Supp.App.”), submitted by defendants in support of this motion.
. The 1990 Agreement, signed by each plaintiff, also provided (as did those which preceded it) that the COMPAR contract could be terminated for, among other reasons, breach of any provision in the Agreement (¶ 6(b)), by mutual agreement (¶ 6(c)) or upon either party giving two years notice (¶ 6(d)(1)). Paragraph 7(b) spelled out the post termination rights and obligations of the parties. See Supp.App.Ex. 2.
. As stated above, plaintiffs argue that the exclusivity component of the COMPAR program made the COMPAR Agents totally dependent on CIG-NA because it required them to sever, and prevented them from developing relationships with, and selling products for, CIGNA’s competitors. Thus, when the COMPAR Program was abruptly terminated, the COMPAR Agents were in a particularly vulnerable position.
.An example of the transition agreement is annexed as Ex. 14 to the Martin Cert.
. References in the form "Atkin Cert.” are to the Certification of Jack Atkin, and the attached exhibits thereto, submitted by plaintiffs in opposition to this motion.
. The nine plaintiffs in this case originally filed suit, along with five other New York-based former COMPAR agents, in the Southern District of New York. After the defendants filed a motion to dismiss, plaintiffs voluntarily withdrew their complaint. Subsequently, the New York agents refiled in New York and the New Jersey agents filed nine separate complaints in this Court. Plaintiffs in both forums were represented by the same counsel and the original complaints were, in all material respects, identical. Defendants moved to dismiss in both forums. In May 1996, the district court in the Southern District of New York granted defendants' motion. See Martin Cert.Ex. 60. The New York plaintiffs did not seek leave to replead or move for reconsideration but instead filed a direct appeal with the Second Circuit. While that appeal was pending, the parties resolved the New York litigation.
.Although plaintiffs do not specifically allege a cause of action for mental distress, they mention mental distress in the "WHEREFORE" clause of their Amended Complaint; specifically, in their request for damages. Amended Complaint ¶ 60(a), Martin CertEx. 1. Plaintiffs also do not allege a specific cause of action for duress or economic coercion but instead make the following allegations in the fact section of the Amended Complaint: "CIGNA attempted to hide its intent to terminate the COMPAR program by referring to its action as a 'transition' ... To effectuate this scheme, defendants attempted to coerce plaintiffs to sign a letter agreement which purported to amend the COMPAR agreement ...” Id. at ¶-28. Since these claims are not pled with the requisite specificity and particularity as is required under the Federal Rules of Civil Procedure, this Court need not decide whether these matters formally rise to the level of causes of action that must be addressed. Also, plaintiffs make no mention of these matters in their papers.
. Other evidence of CIGNA’s alleged misrepresentations is set forth by the plaintiffs in the Atkin Cert.Ex. 24.
. According to plaintiffs’ expert, E. A1 Diamond, the COMPAR Agents’ total damages, based on their expected lifetime earnings in COMPAR, are as follows: (i) McVeigh, $4,077,209; (ii) Horn, $10,810,389; (iii) Cecchettini, $10,926,572; (iv) Troop, $10,055,519; (v) Alexander, $17,268,149; (vi) Hourigan, $16,393,886; (vii) Kurmin, $17,-623,593; (viii) Block, $4,502,264; and (ix) Klein, $14,339,143. Atkin Cert. Exs.12-20. During oral argument in this case, plaintiffs singled out Hourigan, claiming that as a result of specific assurances given to him by CIGNA, his agency, Broome-Hourigan, purchased the Roth Agency with a $600,000 loan from CIGNA. See id. at Ex. 19; see also Pla. Brief at 10 n. 17. However, other than this reference to Exhibit 19, plaintiffs do not provide the Court with any additional evidence on Hourigan. Thus, the Court does not view the Broome-Hourigan/Roth Agency transaction as anything unique and therefore will not treat Hourigan any differently than the rest of the plaintiffs.
. Plaintiffs point to specific portions of other internal memoranda allegedly evidencing CIGNA P & C’s secret intent to abandon the COMPAR Program before plaintiffs were informed of such in 1990. The portions cited to the Court are not particularly persuasive. In most, if not all of the instances, an analysis of the entire document undermines plaintiffs’ assertions. For example, plaintiffs point to an internal document, dated July 14, 1987, in which .COMPAR’s president, Spike McKeela, states: "I think it is important to inform you of some serious concerns of members of my staff about the perceived 'chipping away’ of the importance, necessity, and commitment of the corporation to COMPAR.” Atkin Cert .Ex. 48. However, McKeeta concludes in that same document that: "I am totally committed to COM-PAR. As President of COMPAR I feel my most important responsibilily is to see that this segment survives both in the short and long term.” Id.
. To prove fraudulent concealment, the plaintiff must show that the defendant was silent in the face of an obligation to disclose certain facts, instead of an affirmative misrepresentation.
Baldasarre v. Butler,
. Plaintiffs’ allegations that CIGNA P & C acted fraudulently in telling them that they had a lifetime commitment from CIGNA because, at the time, CIGNA P & C was secretly planning to terminate the COMPAR program are also without merit. To support their argument, plaintiffs point to various internal documents, including, for example, a document, dated September 26, 1936, entitled "COMPAR STRATEGY,” which states: "Based on the CIGNA Strategy ... abandoning COMPAR was, in fact, an option.” ■ Atkin Cert. Ex. 47. However, defendants point out that this document — plaintiffs’ Exhibit 47 (attached to the Atkin Cert.) — reflects only part of ■ the original document; in short, in the conclusion section of this document- (which is not attached to plaintiffs’ Exhibit 47 but is in defendants' Exhibit 70), it states: "The program has matured significantly in the last five years. The next half decade should be an extension of our past good progress, with even better results, due to joint support and implementation of our strategies.” Martin Cert. Ex. 70. The other internal documents that plaintiffs allude to are of the same ilk. This deficiency cannot be overcome on this record. For example, plaintiffs point to an internal document, dated July 14, 1987, in which COMPAR’s president, Spike McKeeta, states: “I think it is important to inform you of some serious concerns of members of my staff about the perceived 'chipping away’ of the importance, necessity, and commitment of the corporation to COMPAR.” Atkin Cert. Ex. 48. However, McKeeta concludes in that same document that: "I am totally committed to COMPAR. As President of COMPAR I feel my most important responsibility is to see that this segment survives both in the short and long term.” Id. The crux of the statements and quotes that plaintiffs attribute to various executives reveal the frank discussion that occurs consistently in business. These quotes reflect CIGNA P & C’s continuing evaluation of the COMPAR program and do not evidence an intent to mislead or to misrepresent. See, e.g., Plaintiff 12G at 13-15. In sum, plaintiffs have failed to present the Court with any documents that amount to clear and convincing evidence of CIGNA P & C's secret intent to abandon the COMPAR program before 1990.
. Plaintiffs argue that
Jacobs Manufacturing Company v. Sam Brown Co.,
. For the same reasons set forth above regarding plaintiffs’ fraudulent inducement claim, plaintiffs also have failed to prove fraudulent concealment — i.e., that defendants were "silent in the face of an obligation to disclose” certain facts.
See Baldosarre,
. For example, Hourigan testified in his deposition that he made all his own business decisions,
. The Court in
Tiberi
decided that the district ' court had erred in not tolling the limitation statute and then added that "Tiberi has presented facts which indicate that equitable estoppel
may
. The following facts in Tiberi make it distinguishable from this case:
In 1983 and 1984, CIGNA suffered substantial losses ... At the 1986 COMPAR convention, David Prentiss, president of CIGNA’s Agency division ... offered incentives to “profitable” COMPAR members who remained in the program ... Tiberi decided to keep [his] ... Agencies under the program ... Tiberi incurred significant losses as a result of this decision. Consequently, Tiberi’s agencies submitted a letter to CIGNA, dated March 3, 1986, expressing their dissatisfaction with the program ... In June of that year, at the COM-PAR National Advisory Council meeting, the Council resolved to make "changes ... to improve [the members'] position in the marketplace," and to "work hard to improve our commitment to COMPAR.” ... After 1986, however, it became apparent to CIGNA that it could not sustain COMPAR. In an internal document dated April 15, 1987, CIGNA stated that its worsening relationship with its smaller COMPAR agents required "fundamental changes in the COMPAR program and its strategic direction.” ... The document lists the abandonment of COMPAR as a viable option ... CIGNA, however, chose to restrict further its coverage and raise its prices, despite warnings from McKeeta that such actions would cause "serious ramifications.” ... CIGNA never notified Tiberi of these developments ... [Moreover, throughout 1988 and 1989, CIG-NA attempted to allay the concerns of its agents with statements such as the following: Through the COMPAR program we can give you what you need____
. The parties effectively concede that their respective independent research failed to locate a single New Jersey case in which a cause of action for negligent misrepresentation was successfully asserted between commercial entities who were parties to an arms-length contractual arrangements. In short, plaintiffs' reliance on
J. Fitzpatrick and Company v. Solna,
. Plaintiffs' references to other internal memo-randa allegedly evidencing CIGNA P & C's secret intent to abandon the COMPAR Program before plaintiffs were informed of such in 1990 also do not amount to negligent misrepresentation on the part of the defendants: for example, the statement "I think it is important to inform you of some serious concerns of members of my staff about the perceived ‘chipping away' of ... COM-PAR.” (Atkin Cert. Ex. 48) and "It [COMPAR] was on shaky ground, and the shaky ground was really a function of expense issues.” (Id. at Ex. 29).
. Judge Thompson also stated that "[h]aving found that the agreement is integrated and that in unambiguous terms it provides for cancellation at will by either party, I must also conclude
. Moreover, plaintiffs’ evidence does not show "such conscious and deliberate disregard of the interest of others that the conduct may be called wilful or wanton.”
Enright v. Lubow, 202
N.J.Super. 58, 75,
. Whether jurisdiction exists over a nonresident parent corporation by reason of the acts of a subsidiary is a matter governed by state law.
See Jemez-Agency,
.Cf. Wright v. Xerox Corp.,
. Clearly, CIGNA Corp. did not have “continuous and systematic conduct" in New Jersey.
See Associated Business,
. The parties do not dispute that when Taylor made these alleged fraudulent statements, he was not acting on behalf of CIGNA Corp. but rather, at the time, was the president of CIGNA Property & Casualty Insurance Company.
. Plaintiffs also made sweeping allegations that Taylor, when he was COO, and Kilpatrick made a number of fraudulent representations' which caused injury in New Jersey to New Jersey plaintiffs; however, these allegations do not demonstrate the sort of purposeful availment of New Jersey’s benefits and protections, on the part of defendant CIGNA Corp., which would allow this Court to find that there were sufficient minimum contacts for it to exercise specific jurisdiction over CIGNA Corp.
See Associated Business,