Tiberi v. Cigna Corporation

next majority dragon, the phantom roused TIBERI, Insur Fred C. Frederick it: an admin- slay sword phantom forges Kelly Agen Inc., The Agency, reigns in ance supposedly regulation istrative Plaintiffs-Appellants Inc., cy, the foolishly granted Congress powers Cross-Appellees, cited, 42 C.F.R. regulation The PRRB. course, pretend to doesn’t, 405.1889, what with deals Section a feat. such CORPORATION, Cigna Fire Un PRRB the what with appealed, may be Co., Cigna Proper Insurance derwriters lodged be- properly appeal an may do Co., Bankers Casualty Insurance ty and invokes successfully provider If a fore it. Century Co., Indem Insurance Standard subsection under jurisdiction PRRB’s Texas, ofCo. Cigna Co., Insurance nity (nor has she Secretary can’t 1395oo(a), the Indemnity Insur Cigna Insurance gave Congress powers to) restrict tried America, Insurance North Co. ance Secretary’s we follow That the PRRB. Employ America, Pacific North Co. of PRRB deciding whether interpretation Credit INA Company, and Insurance ers doesn’t statute under jurisdiction has Defendants-Ap Corp., Corp. INAC a/k/a away the regulate Secretary can mean Cross-Appellants. pellees and jurisdiction. consequences statutory 95-2044, 95-2051. Nos. today any difference makes this None have didn’t PRRB hold because Appeals, Court States United however, a ease, the next jurisdiction. Circuit. Tenth jur- PRRB’s validly may invoke provider July ma- NPR. Will a revised over isdiction ex- from PRRB holding prevent jority’s it? granted Congress powers ercising the more no has not, this Court since Perhaps amend Secretary to does than power mistake, Still, a fundamental even statutes. decisis, diffi- stare by the force backed correct. cult to probably will cases similar A number HCFA circuits other before

come reopen- undoubtedly caused Ruling 89-1 decid- reports. Courts cost many old ing of reach hesitate shouldn’t these cases ing should, They today. we do result the same following the before however, twice think governing at the blindly it hacks majority as thicket imaginary an from escape statute law. misinterpreted JONES, McKAY, TACHA,

Before Judges.* Circuit JONES, Judge. Circuit R. NATHANIEL involving New diversity case a This is Plaintiffs,1 tort law. Mexico contract Defendants, residents, a sued Mexico New collec- corporations Pennsylvania group of CIGNA doing “CIGNA.” tively business against Plaintiffs. counterclaims filed similar award of court’s district appeal the Plaintiffs statute summary judgment cross-appeals grounds; limitations for of its motions denial court’s part, affirm costs. We attorney’s fees and ruling part vacate part, and reverse in court. district

I. Ti- Fred ran the Tiberi Fred

Plaintiff C. (“Tiberi Agency”) Agency beri Insurance The Tiberi Mexico. Albuquerque, New place free independent and Agency was companies in the any insurance clients with time, of insurance a group At market. enterprise an operating companies were The known as COMPAR insur- comprised of program COMPAR did busi- agencies companies and ance May On another. exclusively one with ness program 8, 1980, joined the COMPAR Tiberi Agency “Full Service a by signing written Com- Insurance Defendant with Agreement” (“INA”). Shortly North America pany of Firm, Corporation Gallegos Law thereafter, INAC Condon Defendant Michael J. (J.E. Gallegos of purchase a Fe, money to P.C., (“INAC”) New Mexico Santa loaned Fe, Firm, Agency, New Mexico Inc. Kelly Law Santa Gallegos in The majority interest Firm, Law $1,100,000. of Tucker L. Tucker and Steven for (“Kelly Agency”) them, on the Fe, merged with New Mexico General Santa INAC and Connecticut after and Cross- Plaintiffs-Appellants brief), subsidiary for of North wholly-owned with (NAGC), Appellees. Corporation General American then be- COMPAR was formed. Stewart, and Madison, ElizaM. William C. instrumentality of CIG- essence, came, an Harbor, Madison, L. Gregory Steinman Kelly Agency On October NA. P.A., New Albuquerque, Puglisi, Mroz INA, thus with contract signed similar Defendants-Appellees Mexico, agencies The ranks. joining Cross-Appellants. operated the Fred * owned Jones, 1. Because Circuit Senior R. Nathaniel Honorable The Kelly Agency, Agency and Insurance Appeals for Court of States Judge, United only Tiberi. refer we will hereinafter Circuit, by designation. sitting Sixth subsequently signed a new deal which was to year, states. June of that at the COM- 1,1990. January take effect on PAR National Advisory Council meeting, the Council resolved to “changes make ... The terms of the simple: contracts were improve [the position members’] in the mar- Kelly Agencies and Tiberi became “inde- ketplace,” and to “work hard prove our pendent contractors,” and agreed only to sell commitment to Appendix, COMPAR.” Vol. agencies insurance. The could at Ill sell companies insurance from other COMPAR, the consent of COMPAR. 1986,however, After apparent became moreover, agencies’- controlled the underwrit- CIGNA that it could not sustain COMPAR. ing authority. represen- Consistent with the In an internal document April 15,1987, dated tations made during to Tiberi the recruit- CIGNA stated that its worsening relation- ment process, agreed COMPAR to assist the ship with its smaller COMPAR agents re- agencies as it necessary. deemed According quired changes “fundamental in the COM- Tiberi, to agreed help COMPAR agen- to program PAR and its strategic direction.” persevere through cies problems such “un- as Appendix, Ill Vol. at 708. The document competitive pricing, underwriting stricter lists the abandonment of COMPAR as a via- standards, delays unreasonable in providing option. ble CIGNA, Id. at however, potential premium quotes, clients with etc.” chose restrict further coverage its and Br. Tiberi’s at 8. The boilerplate language of prices, raise its despite warnings from COM- the contracts and, indicated that COMPAR — PAR Spike President McKeeta that such ac- impliedly, expected “strict compli- CIGNA — tions would cause “serious ramifications.” ance” with the terms. Br. CIGNA’s at 5. Appendix, Ill Vol. at 786.2 CIGNA never The 1980 and required 1982 contracts a mini- notified Tiberi of developments. these 5-year commitment; mum after years, five Throughout 1988 and CIGNA at- agencies give had COMPAR two tempted allay agents concerns of its years’ advance notice of termination. with statements such as the following: In 1983 and CIGNA suffered sub- Through the program COMPAR we can stantial time, insurance losses. During this you give you what need— prices CIGNA raised began to down- products, the capacity, the technology, size COMPAR by selling insurance, less as capital ... the commitment ... Count well signing fewer renewals COM- it. Count on us. Ray of Statement agencies. PAR CIGNA notified Thomas, 8,1988. Jan. agents COMPAR of reductions commis- sions and subsidy withdrawal of its for errors and omissions insurance. At the 1986 COM- I you can tell without the least reservation convention, PAR Prentiss, president David always we’ll position be in a sup- Agency Division, reiterated these port the capacity needs of our COMPAR strategies but offered to “profit- incentives producers you ... can feel secure with able” COMPAR members who remained CIGNA ... CIGNA financially solid ... program. Tiberi’s Br. at 11-12. Tiberi together and COMPAR have the to keep Kelly decided and Tiberi Agen- technology, support services and finan- cies under program. Although re- cial resources to survive flourish in the ceived occasional assistance from CIGNA present market. Statement of David COMPAR, Tiberi significant and/or incurred Prentiss, 19,1988. Jan.

losses as a result of this decision. Conse- quently, agencies Tiberi’s submitted a letter 3, 1986, dated March expressing their dissatisfaction with CIG- requires and deeper new level NA received similar letters from other cooperation COM- ... for those who make the

PAR members in New Mexico and other commitment the future will be exceptional- 2. McKeeta concluded that CIGNA should segment” allow agent] if relations with COMPAR “eliminate, him to or water down the [COMPAR agents improve. did not Ti- longer wanted. no whom Pren- clients of David rewarding. Statement ly with CIGNA relationship thus ended beri 8,1989. tiss, Jan. nearly policies having lost 686 after from 1982 to 1989. $1,500,000 premiums at 11. CIGNA’s Br. will be examined aspect business Every 11, 1993, brought suit On March operating efficien- improve during 1989 to court for breach in state against CIGNA will be informed agents and COMPAR cies fraud, covenant, misrep- contract, breach Thomas, COMPAR Ray progress. resentation, New Mexi- and violations News, March 1989. (NMUTPA). Act Trade Practices co Unfair District United States Upon removal Mexico, New CIG- for the District Court changes reduce COMPAR [to [the] While a Third- brought a Counterclaim NA pain degree may cause some expenses] Tiberi for breach against Party Complaint long- short-term, we feel in the with con- interference tortious contract and extremely positive remains outlook term There- venture. during the tract together work ... we can parties for both his com- after, to amend twice moved your impact to significant to minimize fiduciary breach of claims for plaint add Tackett from Wanda Letter agency. Br. estoppel. Tiberi’s duty promissory and 1,1989. Tiberi, June Frederick at 28. 16, 1994, had after Tiberi filed August On Amend, Corp. moved Motions his many difficult for have been Recent actions jurisdiction. personal of for lack to dismiss you that assure me accept. Let you to grant- 12, 1994, was that motion On October will term and in the short vital they are 1994, 17, district court On October ed. future. for the help position for Motion Defendants’ the other granted program to the fully committed remain] [I grounds on the Summary Judgment it that to see to intend and On October had run. limitations statute of us long after all flourishing and alive 1994, court dismissed CIG- 29, the district Let- of battle. from the field retired have prejudice. On Febru- without NA’s actions to COMPAR Prentiss David from ter Tiberi’s 16,1995, court denied the district ary 27,1989. July Agents, Complaint to his or to Alter Amend Motion and issue of limitations the statute address These I at 225.19-225.25. Vol. Appendix, See for costs Motions CIGNA’s further denied be- Tiberi to statements, led argues, Rule Federal attorney’s under fees and support him provide would that CIGNA lieve NMUTPA. 54 Procedure Civil and/or handsomely if he remained him and reward 16, judgment; February 1995 words, appeals thought In his in the decision. that same cross-appeals this contractual concept of “the whole that Appen- upon trust.” relationship was built argues that appeal, Tiberi On (Tiberi’s Deposition). dix, Ill at 888 Vol. for limitation the statutes misapplied court remaining Moreover, asserts He claims. contends tort and his contract alterna- reasonable program was ex- estoppel equitable the doctrine straits. financial agencies’ light of his tive in of limita- statute the normal cepts him from He claims. contract for requirements tions 1990, announced February consti- conduct argues that CIGNA’s further program changing the COMPAR it was “ purposes wrong” for “continuing tuted net- distribution ‘a non-exclusive make ” argues Finally, he claims. of the tort (emphasis Ill at 886 Appendix, Vol. work.’ have been should to Amend his Motion the COM- added). ended This amendment was based Complaint his because granted existed. previously it had program as PAR According- “misleading conduct.” arrangement, COMPAR new Because reverse court prays that ly, Tiberi insurers other to seek were asked agents further for remand decision court district the business carriers to new “roll over” 1428

proceedings. CIGNA maintains that al., the dis- Corp., Zenith 574, 587, Radio et. 475 U.S. trict ruling court’s as it 1348, related to Tiberi 1356, (1986) S.Ct. 89 L.Ed.2d 538 correct. argues CIGNA further (quoting First Nat’l Bank Ariz. v. Cities denying erred in its Motion for costs Serv. U.S. 88 S.Ct. 1) attorney’s fees because (1968)). it was the 20 L.Ed.2d Therefore, 2) prevailing party, and Tiberi’s cause of order to summary withstand judgment in the action under the groundless. bar, NMUTPA was case at carry Plaintiffs the burden of proving which, the existence of prov facts follow, For the reasons that we conclude true, en would tolling warrant a of the stat 1) that: Tiberi’s claims are not barred under utes of limitation. Dow v. Co-op. See Chilili pertinent 2) limitations; statutes of Assn., (1986). district court did not abuse its discretion in denying promissory claim, Tiberi’s estoppel Tiberi correctly argues that in order but abused its discretion in refusing to allow summary address the judgment ruling on 3) his fiduciary claim; breach of duty issue, statute of limitations the court district rulings court’s regarding CIGNA’s must bifurcate Complaint between those attorney’s Motions costs and fees should causes of grounded action in contract and be vacated. grounded those in tort. Where a suit in vokes action, several causes subject each is II. to a limitations; thus, distinct statute of dis We first address Tiberi’s periods tinct accrual apply should as to each district granting court erred in CIG- cause of Otasco, Inc., action. King See summary NA judgment on statute limita (5th Cir.1988). F.2d This is true grounds. tions We review this issue de novo. even if the causes of action are derived from Utah Light Power & Co. v. Federal Ins. a single Therefore, event. will we ana 1549, (10th Cir.1993). 983 F.2d 1553 Apply lyze the statute of limitations issue in context ing standard, we believe that the district applicable contract and tort law. court’s decision was in error. Summary judgment is appropriate only A. when there genuine is no issue of material fact moving party the is judg entitled to Tiberi claims that CIGNA breached ment aas matter of law. See Fed.R.Civ.P. contract 1986 by substantially altering 56(c); Ingels v. Corp., 616, Thiokol 42 F.3d COMPAR’s practices business causing (10th Cir.1994). 620 This means that after Tiberi’s agencies to suffer acute losses. Ti- opportunity discovery, for if moving beri’s Br. at 11-13. A cause of action for party demonstrates that there no is breach of contract is only created upon actual issue of material fact as to the existence of Welty breach. v. Western Bank Las any element Cruces, essential the non-moving par 126, 106 N.M. 122 ty’s case, then summary judgment (1987). appro is parties Both identify 1986 as the priate. Corp. Catrett, Celotex v. 477 U.S. date of alleged breach; Tiberi’s March 317, 322, 106 2548, 2552, S.Ct. 91 L.Ed.2d 265 1986 letter indicates that his cause of action (1986). Once this met, initial accrued, burden is latest, at on that date. The limita becomes the burden of the non-moving party period tions on written contract claims is six to come forward specific facts, sup years from the date of the breach. N.M. ported by the record, evidence in the upon 37-l-3(A). Stat. Ann.1978 Because Tiberi which a jury reasonable could return a ver brought his contract claim in seven dict for the nonmoving party. years Anderson v. after the date on which alleged Inc., Liberty Lobby, 242, 248, 477 U.S. 106 breach clearly identified, his suit normal 2505, 2510, S.Ct. (1986). 91 L.Ed.2d ly would by be barred the statute of limita ‘Where the record taken as a whole could tions as law, a matter of unless a factual lead rational trier of fact to find for the basis tolling the statute exists. See Ald non-moving party, there ‘genuine is no issue rich v. Inc., McCulloch Properties, 627 F.2d ” for trial’ Matsushita Elec. 1036, 1041 (10th Cir.1980). Indus. Co. v. 4n. re- assurances and relied claim beri if contract even his that claims despite enormous limitations, mained with the statute under is barred in fur- resulted Their decision losses. him excepts estoppel equitable doctrine us to the con- facts lead injury. These ther district He avers statute. from the estoppel appropriate equitable that clusion apply the doctrine refusing to court erred Potash, P.2d at 74. in this case. appli- reviewing the After the statute. to toll law, Tiberi. agree with cable CIGNA, however, argu three makes “pre- equitable estoppel application of against equitable ments The doctrine argument is Their first asserting estoppel [statute in this case. party from one cludes prove that party has Tiberi has failed when another defense] limitations to deceive estopped party, “inten[ded] acts or upon the as the detriment to his relied [him],” equita asserting required to claim delay when party and or the first conduct that CIG- estoppel. Even we assume the other who prejudice ble would [defense] so, do Continental NA never intended in reliance.” thereon has acted relies on Potash Inc. 115 merit. CIGNA Potash, Freeport-McMoran, lacks v. Inc. (1993). Id. The Potash argument. The Po- support of P.2d applies the doctrine moreover, declared court, stated: tash expects estopped intends or party “when estop- equitable elements essential The those act on party will the innocent estopped ... party related to pel as Potash, 858 P.2d at representations.” (1) to a false which amounts conduct are: only prove need that Tiberi we believe Yet of material concealment representation or legal taking him from dissuaded that CIGNA least, calculated facts, or, which is at Stores, Indeed, Stuckey’s Inc. action. other- facts are convey impression Supreme Court O’Cheskey, the New Mexico with, than, those inconsistent wise con that are “[rjepresentations noted attempts to subsequently party which upon, to be relied to the essential trary (2) assert; that such conduct facts intention mistake, by innocently or though made ...; even party by the upon other be acted shall estoppel application support the constructive, will (3) knowledge, actual or P.2d 93 N.M. doctrine.” relating to [the ... As real facts (1979) Highway ex rel. State (quoting State estoppel, the essentials claiming] party 655, 485, 658 Shaw, P.2d 565 90 N.M. Dept. v. (1) knowledge of means lack of are: (1977)). Thus, that Tiberi not do believe in to the facts truth as knowledge of the to in order to prove intent deceive needs (2) ...; the conduct upon reliance question Id.; City see also estoppel. equitable claim (3) ...; action estopped party Co., F.2d & 558 v. James toas of such character Leffel thereon Bedford based ..., Cir.1977) (4th ... T (citing T v. 216, 218 prejudicially. position change its (1976)) (“de- 148, Va.867, 224 S.E.2d Century Capo v. (quoting at 74 P.2d Id. 858 estoppel”). element not an ceit is essential Ins. Life intentionally de- Therefore, CIGNA whether added). (1980)) (emphasis convincing him to remain Tiberi ceived indicate which presented facts has Tiberi COMPAR, If Tiberi declined is irrelevant. in this may attach estoppel equitable representa- on the basis sue light in a Looking the evidence at case. apply. estoppel should tions, equitable then Tiberi, facts show most favorable even Second, claims CIGNA foundering knew that CIGNA keep in order to promises it though made 1986, despite COM- early as 1983. can Tiberi program, in the COMPAR Tiberi assured it problems, PARE continued it never intended because not suit suc- maintain renewed enjoy would agencies that his legal action. pursuing from him to dissuade From program. in the cess he remained claims that disagree. We moreover, gave never CIGNA 1986 to on CIG- based stay it chose would Tiberi that any indication suffered substantial assurances these NA’s made promises. honor choice; is this all making that loss after Ti- keep promises to B. equitable estoppel requires. doctrine Capo, CIGNA, moreover, 610 P.2d at 1206. original complaint Plaintiffs' also al cites no case law which holds that in order to leged "misleading that CIGNA's conduct" prevail equitable estoppel, party on seek subjected liability them to for constructive ing estoppel must declare an intent to sue fraud, fraud, negligent misrepresentation, estopped party misrep before the makes its and violations of NMUTPA. The district contrary, resentations. To the the claimant gvanted summary judgment need "be aware of his cause of action" claims, finding these that the statute of limi before the defendant dissuades him from tak conclude,however, tations had run. We ing Skyberg further action. v. United Food genuine there exists a issue of material fact Union, & Commercial Workers Int'l AFL- regarding whether the statute should have CIO, (8th Cir.1993). Thus, 5 F.3d by continuingwrong been tolled virtue of the must also fail. doctrine. Finally, relief, ground CIGNA maintains that "In actions for on the representations upon fraud or mistake the cause of action shall made no to Tiberi reasonably rely pur not be deemed to have accrued until the which he could poses for the equitable estoppel. [or] fraud mistake shall have been dis CIGNA claims promises by party aggrieved." that the statements that its to cor covered N.M. Stat. problems vague, § Ann.1978 37-1-7. The statute of limita rect COMPAR's were so long period tions for these causes of action allows a and left unfulifiled for such a time, bring years that Tiberi could not have relied on claimant to suit within four essence, argues § accrual. N.M. Stat. Ann.1978 37-1-4. them. Id. equitable estoppel Normally, period begins the court should not allow to attach because it was not serious about the the limitations plaintiff run "when the discovers the fraud or promises when, diligence, plaintiff it made to Tiberi. This would allow with reasonable profit Ramsey CIGNA "to from its own fraud." Ga couldhave discoveredthe fraud." Culpepper, ston, (10th 549 P.2d at 635. Such a result is 738 F.2d Cir. inherently inequitable. Therefore, 1984).3 continuing wrong we con Under the doc trine, however, clude that the there exist issues of "where a tort involves a con regarding tinuing repeated injury, material fact whether doctrine of or the cause of ac equitable estoppel at, begin tolls the statute of limita tion accrues and limitations to run from, injury." tions so as to defeat CIGNA's Motion for the date of the last 54 C.J.S. Summary Judgment. (1987).4 Limitation of Actions 177 In other 3. SeealsoNewMexicoElec.Serv.Co.v. Monta Crumpton distinguishable from the case at nez, (1976) 89 N.M. 551 P.2d 637 ratherthan First, Crumpton bar for two reasons. involved a (statute injury dispute being negotiat- runs at the dateofthe in which a settlement was ed, negligentact). whereas this case had not advanced to such a thedateofthe point. Furthermore, Crumpton, in the Court misrepresentation found no evidence of fraud or rejected continuing 4. The districtcourt Tiberi's part defendant, fact, on defendant's and that in wrong argument,stating statutory "[t]he that had made a settlement offer before the statute periods question long enough limitations in durationto allowfor in are Crumpton, Here, had run. 661 P.2d at 55. attempts compromise at however, CIGNA-by implied admission, its own necessity judicial- or settlementwithoutthe for a misrepresentations see CIGNA's Br. at 29-made ly-createdtollingexception." Op. D.Ct. at 10. remedy about its intent COMPAR's deficien- doing, Crumpton In so the court relied on v. Thus, cies. court's reliance on Humana,Inc., (1983). 99 N.M. 661P.2d54 Crumpton misplaced. is Crumpton, plaintiffsought bring In the a medi- Similarly, argues "[n]o CIGNA New Mexi- malpractice against cal lowedthe Plaintiff be the the accrual suit defendantbut al- supports theoiy tolling co case Tiberi's for the of three-year statuteoflimitationsto run. period," argu- the limitations and that "Tiberi's appealed,arguing that defendantshould ment flies in the face of the New Mexico deci- estopped asserting from the statute because contrary, sions." CIGNA's Br. at 23. To the parties negotiating during were a settlement consistently New Mexico courts have considered period. Supreme rejected The Court applicability continuing wrong the of the doc- this and affirmedthe lower court's variety See, e.g., trine in a of cases. Martinez- 507, n summaryjudgment Kirsch, award of to defendant. Id. Sandoval v. 118 N.M. con- program the planning to dismantle while limitations does words, of “the statute result, continuing “[t]he As a tort. stitute a wrong over done the is until begin to run in cases of limitations Meirick, running the statute F.2d of v. Taylor with.” by repetition or suspended a Cir.1983). may (7th fraud be of representations of the false continuation case, we this examining facts of the After igno- in person keeps which the defrauded may wrong doctrine continuing think of fraud.” 54 C.J.S. Limitation rance the earlier, CIGNA discussed As applied. be (1987). Thus, cannot be Tiberi Actions every had that it late as 1989 told Tiberi misrepre- delay if for his CIGNA’s penalized maintaining its commitment intention ascertaining from prevented him sentations early as Yet as COMPAR. injury. his the cause The abandoning COMPAR. considered had CIGNA never shows that further evidence Furthermore, con application the the reservations about of its informed Tiberi light in wrong appropriate is tinuing doctrine rely on their assur- leaving him to program, parties. Un relationship the between called an subsequently ances. Tiberi was to agreement, der Looking program 1990. abrupt end to behol exclusively He was with CIGNA. deal facts, to infer it is reasonable at this set result, interests, and as a den to CIGNA’s to the COMPAR held Tiberi that CIGNA trust great a deal of CIGNA. invested taking time the same while at agreement duty to rise to a relationship gives Such turn, last In it. to dissolve measures Tiberi had no which information to disclose announce- would be injurious act Peck, Liberty Sav. Inc. v. Fed. R.A. access. ending the that it was February 1990 ment in (App. Bk., 933-34 P.2d Accordingly, we believe 1988) relationship banks (discussing between issue established Tiberi has customers). and their continuing as to whether material fact it summary, find that is reasonable In we of limitations tolls the statute wrong doctrine COM- to infer that CIGNA held claims. fraud for Tiberi’s same time tak- while at the PAR agreement however, contends turn, it. ing measures to dissolve inapplicable wrong doctrine is continuing mate- genuine issue of that there is a believe inju knew of his case because in this wrong continuing as to whether rial fact thereof, since at least 1985. cause ry, and the Thus, dis- case. applies in this doctrine employed Indeed, be doctrine cannot summary judgment to trict award court’s injury is “definite plaintiff’s where the inwas error. discoverable, nothing prevented re coming forward seek plaintiff from III. Giesen, 956 F.2d Wilson dress.” abused district court claims that the ease, however, Cir.1992). (7th instant him to allow refusing to its discretion true misplaced. While argument is action causes of complaint add amend losses, facts indicate suffered that Tiberi of fidu- and breach estoppel promissory injury to the risk he attributed plaintiffs denial ciary duty. “We review Ti- every contract. is inherent loss which abuse of discretion.” amend for motion to he was to believe had no reason beri (10th 916, Cruz, 920 F.2d 961 v. Ketchum had given because CIGNA being defrauded standard, Cir.1992). Under this compen it would every assurance that him proposed “‘if upheld the be must him for reward his losses and him for sate a mo- withstood have would not amendment alle agent. Tiberi’s remaining a COMPAR a to state failed or to dismiss otherwise tion these assurances CIGNA made gations that 259, P.2d 1983); quashed, 100 N.M. 669 cert. 1994) (doctrine apply did not where (App. 514 (doctrine malpractice (1983) apply in not did 735 priest for sexual miscon plaintiff in 1991 sued continuously treat physician had 1977); case where v. Mountain ended in duct which Valdez Thus, although been 80, it has not 236, plaintiff). ed 755 P.2d Telephone 107 N.M. Bell case, possible we believe doctrine); every applied Ealy in v. (recognizing the (App.1988) 84 recognizes doctrine. 250, the (App. New Mexico 259 669 P.2d Sheppeck, N.M. 100 1432

claim.’” (quoting Schepp Id. v. relationship Fremont exists in all cases where there 1448, (10th Cir.1990)). County, 900 F.2d has special been a reposed confidence in court, however, The district denied Tiberi’s one in equity good who conscience is grounds motion to amend good bound to act in faith and with due time-barred, claims would have been but regard nev- to the interests of reposing one er addressed whether Tiberi adequately had Laney, v. confidence.” Swallows 102 N.M. stated a claim. 81, 874, (N.M.1984). We believe that the district 691 P.2d justified denying court was in the motion on Here, presented Tiberi has sufficient evi- claim, promissory estoppel but was not prove dence to there exist is- justified doing in regard so with to the sues of material fact regarding whether such fiduciary duty breach of claim. relationship a existed. The COMPAR con- required tract only to sell A. requirement insurance. This made Tiberi an Tiberi’s first proposed amendment agent CIGNA; thereafter, exclusive Ti- alleged that he was entitled to relief under beri’s hinged solely success per- on CIGNA’s theory promissory estoppel. This the formance. The fact agreed that Tiberi ory promise holds that promisor “a which the enter a contract placed such indicates that he reasonably expect should to induce action or great Thus, judgment. trust part forbearance on promisee of the ... claim should go be allowed to forward. and which does induce such action or for hand, on the other claims that it binding injustice bearance is can be avoid fiduciary owed no duty to Plaintiffs and that only by ed enforcement promise.” Re the relationship parties between the (Second) 90(1) statement Contracts purely contractual. arguing, so (1981). It constitutes “a implied contract heavily relies on this court’s decision Dodd law where no contract exists in fact.” Del Royal America, Ins. v. Servs. Ins. Co. Sons, Hayes Mitchell, Inc. v. 304 Minn. (10th 1152, Cir.1991). F.2d Dodd, (1975). 230 N.W.2d Conse plaintiff, an independent agen insurance quently, theory applied in lieu of a cy doing Colorado, business in entered a formal contract. See Planning Design with an contract company insurance to sell Fe, v. Santa 118 N.M. 885 P.2d that company’s insurance. alleged, Plaintiff (1994); 2n. see Mervyn’s, also Romero v. alia, inter fiduciary breach of duty when (1989). 995 n. 1 company attempted to terminate Where, the con however, a contract exists between tract. Id. at 1154. The grant district court parties, the two inapplicable. doctrine is summary ed judgment to company, Frey Ramsey County Community Human we so, affirmed that In doing decision. Servs., we 517 N.W.2d 602 (Minn.App.1994). rejected plaintiffs claim placed great Because the parties in this case entered into defendant, trust in reasoning “plaintiffs contract, a formal we do not believe that ran an independent agency insurance promissory estoppel applies here. As a re made all of its own business sult, decisions and we need not consider whether this cause sold policies insurance companies other of action Therefore, was time-barred. Royal.” than Therefore, Id. at 1157. district court’s denial of the amendment held that a relationship “[s]ueh give does not should stand. fiduciary rise to duty.” B. Defendants’ reliance on Dodd is of no avail Tiberi’s second proposed amend in the instant plaintiff case. Unlike charges ment CIGNA with a Dodd, fi breach of Tiberi was bound to sell COM- duciary duty. inquiry The threshold in as PAR Furthermore, insurance. sessing this claim is whether a fiduciary majority made the important of the business relationship actually existed Plain between decisions for Tiberi and the other COMPAR tiffs and CIGNA. The New agents. short, Mexico Su arrange- preme Court has held that fiduciary “[a] ment was far more restrictive than the ar- re- court’s decision the district Thus, that we find VACATE in Dodd. rangement and at- Motions for costs CIGNA’s garding case.5 the instant in applicable is not Dodd torney’s Rule 54 NMUTPA. fees under of breach that Plaintiffs’ Having decided district this case to the thus remand We review, also we duty survives fiduciary claim inconsistent proceedings not for further court wrongly deemed court the district find opinion. this Applying time-barred. of action cause I-B, supra, we reasoning in Section same TACHA, Judge, dissenting: Circuit material fact of issue that a find Tiberi discovered when regarding My of the exists respectfully I dissent. review duty. a fiduciary As its disputed breached issues reveals no in this record case pursuing result, may be excused from support fact which would material Limi- 54 C.J.S. date. wrong at an earlier continuing his claim doctrine. application (1987) (where “there § for tation of Actions in this record find basis I further no relationship be- fiduciary or confidential a its dis- is finding that the district abused reason- to exercise parties, failure amend tween to allow Tiberi to refusing in cretion excused”). Therefore, may be diligence relat- regard able to the claims complaint with duty fiduciary breach duty. find that Tiberi’s I fiduciary would a breach ed dismissal, and have withstood would grant claim court’s the district affirmed have discretion abused its district court of CIGNA on summary judgment favor claim. assert this Tiberi to refusing to allow substantially the reasons grounds for these court. by the district

given IV. court’s cross-appeals district un- costs and fees of its

denial Motions NMUTPA, respectively. Rule 54 der attorney’s other than “costs Rule Under course as a matter be allowed fees shall oth- unless the court party prevailing to the 54(d)(1). ...” Fed.R.Civ.P. erwise directs America, STATES UNITED NMUTPA, Ann.1987 N.M. Stat. Under Plaintiff-Appellee, 57-12-10(C); award attor- shall the court defen- costs to victorious ney’s fees and plain- it is NMUTPA shown dant MASSEY, Defendant-Appellant. Arthur we find “groundless.” Because is tiffs suit awarding court erred the district No. 94-4341. not we need summary judgment Appeals, Court United States thus cross-appeal. We consider CIGNA’s Circuit. Eleventh rulings on these court’s the district vacate cross-appeal. issues, and dismiss July 1996. stated, we hereinabove For the reasons award district court’s REVERSE its denial

summary to CIGNA judgment add claim to to amend his of Tiberi’s motion fiduciary duty. for breach of action a cause court’s denial AFFIRM We also complaint to to amend his of Tiberi’s motion Finally, we estoppel claim. promissory add true it is at 40. While Br. relationship consent. CIGNA's its support of its busi- nature, such retain CIGNA allowed that ness, fiduciary with Tiberi was did so evidence there no prove that Tiberi “circumvented seeks Therefore, CIGNA's consent. by without CIGNA’s requirement" conduct- purity’ of the contract this issue. relevance to are of minimal assertions without with and ing business non-COMPAR

Case Details

Case Name: Tiberi v. Cigna Corporation

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 23, 1996

Citation: 89 F.3d 1423

Docket Number: 95-2044, 95-2051

Court Abbreviation: 10th Cir.