
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1802                       JAMES L. MINITER INSURANCE AGENCY, INC.,                                Plaintiff, Appellant,                                          v.                               OHIO INDEMNITY COMPANY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Peter  C. Knight  with  whom  Hunter O'Hanian,  Tory  A.  Weigand,            ________________              _______________   _________________        Morrison, Mahoney & Miller were on brief for appellant.        __________________________            David P.  Shouvlin  with  whom Porter,  Wright, Morris  &  Arthur,            __________________             __________________________________        Michael  R. Gottfried  and Burns  & Levinson,  LLP were  on brief  for        _____________________      _______________________        appellee.                                 ____________________                                     May 12, 1997                                 ____________________                      STAHL, Circuit Judge.  Plaintiff-appellant James L.                      STAHL, Circuit Judge.                             _____________            Miniter  Insurance  Agency,  Inc.  ("Miniter")   appeals  the            district  court's  grant  of  summary judgment  in  favor  of            defendant-appellee   Ohio   Indemnity  Company   ("Ohio")  on            Miniter's six-count  complaint for  damages arising out  of a            dispute over  right to commissions.1   Finding  no error,  we            affirm.                                      Background                                      Background                                      __________                      Miniter, an insurance  brokerage located in Quincy,            Massachusetts, serves  over four hundred  and fifty insureds,            three  hundred  of  which   are  banks  and  other  financial            institutions.  Banks and  financial institutions need,  among            others, a type of insurance known as Vender's Single Interest            Insurance  ("VSI"), which  insures lenders  against potential            losses arising from the differential between the actual value            of  a  vehicle  being  financed  and  the  lender's  security            interest.   VSI  is offered  by  Ohio, an  insurance  company            located in Columbus.                        In  1984, Miniter  became  broker  for  Connecticut            National Bank  ("CNB")  and procured  a  VSI policy  for  CNB            through Fidelity and  Deposit Insurance Company ("Fidelity").            In  1988, CNB  merged  with Shawmut  Bank ("Shawmut"),  which                                            ____________________            1.  As   amended,  Miniter's  complaint   alleged  breach  of            contract, breach of  the implied covenant  of good faith  and            fair dealing,  breach of  fiduciary duty,  unjust enrichment,            interference  with advantageous  relations, and  violation of            Mass. Gen. Laws ch. 93A,    2, 9, and 11.                                         -2-                                          2            continued to meet its insurance needs  through Miniter.  That            same   year,  Fidelity  stopped   issuing  VSI   policies  in            Massachusetts, and  Miniter moved Shawmut's  VSI coverage  to            Travelers  Insurance  Company  ("Travelers").     Eventually,            Travelers  also discontinued  its  VSI  business,  which  led            Miniter to solicit a  VSI proposal from Ohio.  In  1990, Ohio            agreed to  provide  VSI  to Shawmut,  and  Miniter  and  Ohio            entered   into   an  agency   agreement  to   effectuate  the            arrangement.                      Miniter  characterizes  the  agreement  as  a  non-            exclusive   agency  agreement  under  which  Miniter  had  no            obligation to  issue insurance exclusively through Ohio; Ohio            had  no  obligation  to  accept  only  policies  brokered  by            Miniter.   The agency agreement contained  several provisions            relevant to  this dispute.   First, it provided  that Miniter            would  receive commissions  of 20%  of the  premiums  paid on            policies  issued  by  Ohio  to  "policyholders  obtained"  by            Miniter.  Second, it provided that should a conflict arise as            to which agent  was entitled to  commissions on a  particular            policy, "the policyholder's written statement designating his            agent  or broker  shall be  binding" upon  Miniter and  Ohio.            Third,  the  agreement  provided  that   Miniter's  right  to            commissions  would  cease  upon  proper  cancellation of  the            policy.  Finally, Ohio  orally agreed not to contact  or deal            directly with Shawmut without involving Miniter.                                         -3-                                          3                      In September 1990, Ohio issued the first of two VSI            policies  to Shawmut.   The  first policy  provided "run-off"            coverage, meaning  that should either Shawmut  or Ohio cancel            the policy, Ohio would be obligated to continue coverage  for            any vehicle insured  during the life of the policy.  In order            to provide run-off coverage, Ohio needed to hold a portion of            each  premium   in  reserve  for  potential   future  claims.            According to  Ohio, the run-off coverage  rendered its policy            to  Shawmut unprofitable.   Miniter, however,  viewed run-off            coverage  as  an  essential element  of  any  VSI policy  for            Shawmut.                      In  the spring  of 1993  David  Juredine, Miniter's            contact at Ohio, began to indicate to Arthur Donley, Chairman            of the  Board and  Chief Executive  Officer of  Miniter, that            Ohio wished  to cease providing run-off  coverage to Shawmut.            In the spring of 1994, Juredine indicated to Donley that Ohio            would make a  one time, lump  sum payment  to Shawmut of  its            run-off  reserve if  Shawmut  would relieve  Ohio of  run-off            liability.    During the  same  period,  Gary Grondin,  Vice-            President of  Shawmut   who handled VSI,  began conveying  to            Miniter Shawmut's desire to reduce the amount Shawmut paid in            premiums  on its  VSI policy.   At  some point  Grondin asked            Donley to solicit proposals from other carriers.                      On May 19, 1994 Juredine informed Miniter that Ohio            could offer a lump sum payment of approximately $2,000,000 to                                         -4-                                          4            Shawmut.    Miniter immediately  communicated  this  offer to            Shawmut.    On  May  20,  however,  Ohio  faxed  Miniter  the            following:                      Dear  Art:  Please disregard previous and                      current  correspondence   (UPS  overnight                      already mailed).  The amount  of unearned                      premiums  mentioned  is inaccurate.   The                      new figure is being calculated.            On May  26, Ohio faxed Miniter  a new lump sum  offer of $1.8            million, contingent on  Shawmut's agreement to eliminate  the            run-off coverage.  Miniter  communicated the reduced offer as            well.                      From late  May into  July 1994, Grondin  and Donley            continued to  discuss whether Shawmut would  receive the lump            sum payment.  The discussions came to a head in mid-July at a            meeting  between Grondin,  Grondin's supervisor,  Donley, and            Donley's  daughter  Julianne,  who  serves  as  president  of            Miniter.   Grondin came to the meeting expecting a check from            Ohio, payable  to  Shawmut, in  the amount  of $1.8  million.            Instead,  Donley informed  him that  Ohio had reneged  on its            offer,  that Ohio had no interest in  making a deal, and that            he  wanted to move Shawmut  to a different  carrier.  Grondin            asked  Donley for  something in  writing to  this effect,  in            response  to  which  Donley  produced  a  letter  from  Ohio.            Grondin  testified that "[a]fter [he]  read the letter  . . .            [he]  stated to Arthur Donley  that this does  not state that            David Juredine from  [Ohio] didn't want  to drop the  run-off                                         -5-                                          5            coverage  and  give  us the  $1.8  million."2   Grondin  then            refused to  consider  proposals Miniter  had  solicited  from            other  carriers,  and  cancelled  a  subsequent  meeting with            Donley.                      At that point, Shawmut  began to lose patience with            Miniter, and felt deceived  and "taken for a ride."   Shortly            after the meeting,  Grondin informed Donley that he wanted to            speak directly with someone at  Ohio.  Donley responded  that            Ohio  did not want to  speak with Shawmut  and reiterated his            desire to change insurance carriers.  Grondin replied that he            did  not want to change  carriers; he simply  wanted the $1.8            million. On his own, Grondin  began to solicit proposals from            other carriers.  Grondin also called Juredine at Ohio.                        In   his   conversation   with  Juredine,   Grondin            indicated  that  he   viewed  Ohio's  offer  and   subsequent            retraction as very unethical.  Grondin also informed Juredine            that  Shawmut sought to broker  a new policy  directly with a            carrier  rather than  work through  Miniter or any  agent and            that Shawmut intended to change carriers.  Grondin indicated,            however,  that  if  Juredine  wished to  submit  a  proposal,            Grondin would  consider it.   Juredine responded that  he had            "no  problem" giving Shawmut the 1.8 million dollars.  In the            same  conversation Juredine also  informed Grondin  that Ohio                                            ____________________            2.  Grondin  testified that  he did  not have  a copy  of the            letter Donley showed him,  and the letter is absent  from the            record.                                         -6-                                          6            had  no  problem  letting  Shawmut  have  a  portion  of  the            commissions, but that Donley did not want to reduce Miniter's            commission level.                      Juredine then called  Donley and apprised  him that            Grondin had  contacted him  and that  Shawmut wanted  to work            through its own in-house agency, that is, Shawmut wanted some            or  all  of the  commissions  deriving from  the  VSI policy.            Donley asked  Juredine  what he  planned to  do and  Juredine            responded that he had to save the business for Ohio before he            could  worry  about Miniter.   Donley  gave no  indication to            Juredine whether  Shawmut had terminated Miniter.   He simply            reminded Juredine that  he was not to  negotiate with Shawmut            directly without Miniter's involvement.                      From that point forward  Shawmut began to negotiate            VSI coverage  directly with Ohio.  On  July 28, 1994 Ohio and            Shawmut came to an agreement on  the second VSI policy.   The            terms of  the second policy designated  the Shawmut Insurance            Agency  as the broker and required Ohio to pay commissions of            30%.  The new  policy did not include  run-off coverage.   It            did  include a lump  sum payment to  Shawmut of  just over $2            million,  representing  the   $1.8  million  plus  additional            reserves earned during the summer of  1994.  Also on July 28,            Grondin and his supervisor  informed Donley by telephone that            Shawmut was  terminating its relationship  with Miniter,  and            Grondin followed up with a letter.                                         -7-                                          7                                  Standard of Review                                  Standard of Review                                  __________________                      We review  the award  of summary judgment  de novo.                                                                 _______            See Ortiz-Pinero  v. Rivera-Arroyo, 84  F.3d 7, 11  (1st Cir.            ___ ____________     _____________            1996).  Summary judgment  is appropriate in the absence  of a            genuine  issue of  material fact,  when the  moving party  is            entitled to judgment as a matter of law.  See Fed. R. Civ. P.                                                      ___            56(c).   A  fact is  material  when it  has the  potential to            affect the  outcome of the suit.  See  J. Geils Band Employee                                              ___  ______________________            Benefit Plan  v. Smith Barney  Shearson, Inc., 76  F.3d 1245,            ____________     ____________________________            1250-51  (1st  Cir.), cert.  denied,  117 S.  Ct.  81 (1996).                                  _____  ______            Neither   party  may   rely  on  conclusory   allegations  or            unsubstantiated  denials, but  must  identify specific  facts            derived   from   the  pleadings,   depositions,   answers  to            interrogatories,  admissions  and  affidavits to  demonstrate            either the existence  or absence of  an issue of  fact.   See                                                                      ___            Fed. R. Civ. P. 56(c) & (e).                                     Choice of Law                                    Choice of Law                                    _____________                      Miniter    initially    filed   this    action   in            Massachusetts  state  court  and alleged  only  state claims.            Ohio  removed   the  case   to  federal  district   court  in            Massachusetts.   See  28 U.S.C.    1332.   The  parties agree                             ___            that, pursuant to  a choice  of law provision  in the  agency            agreement, Ohio law governs Miniter's contract  based claims,            and  that Massachusetts  law  governs Miniter's  tort claims.            The parties dispute  only which state's law governs the claim                                         -8-                                          8            for breach of  the implied  covenant of good  faith and  fair            dealing, ostensibly  because  of Ohio's  contention that  the            common law  of the state  of Ohio  does not recognize  such a            cause of action in these circumstances.                      We have held  that "[w]here  . . . the parties have            agreed about  what law governs,  a federal  court sitting  in            diversity is free,  if it chooses,  to forego an  independent            analysis and accept the parties' agreement."   Borden v. Paul                                                           ______    ____            Revere Life Ins. Co., 935 F.2d 370, 375 (1st  Cir. 1991).  In            ____________________            the absence of any compelling reason to do otherwise, we will            honor the parties'  choice of  law on all  counts upon  which            they agree.   As we  explain below, we need  not decide which            state's law governs Miniter's claim for breach of the implied            covenant of good faith and fair dealing.                                      Discussion                                      Discussion                                      __________                      As  indicated, the  district court  granted summary            judgment  against Miniter on  all counts.   On appeal Miniter            claims  that the  district court improperly  resolved genuine            issues  of  material   fact  in  order   to  arrive  at   its            conclusions.    We  review  Miniter's claims  in  turn,  and,            finding no error, we affirm.            A.  Breach of Contract            ______________________                      Miniter advances two arguments within its breach of            contract claim.  First, it asserts, Ohio breached the written            agreement  by  failing to  pay  Miniter  commissions for  the                                         -9-                                          9            second policy  issued to Shawmut.   Second, Miniter contends,            Ohio breached  "its subsidiary  but separate promise"  not to            contact  or  deal  directly  with  Shawmut  without involving            Miniter.                        1.  The Agency Agreement                      ________________________                      The  relevant provisions  of  the agency  agreement            provide:                      The   Agent   shall   be    entitled   to                      commissions equal to  20% of the  written                      premiums paid  on policies issued  by the                      Company to policyholders obtained  by the                      Agent.  If a  conflict exists as to which                      producer  is  authorized  to represent  a                      policyholder, the  policyholder's written                      statement designating his agent or broker                      shall be binding upon  the Agent and  the                      Company.                                           ....                      The  Agent's  right to  commissions shall                      cease  upon cancellation  of a  policy in                      accordance    with    the    cancellation                      provisions in the policy.            The  district court found  the relevant  terms of  the agency            agreement  unambiguous, and  held  that as  a  matter of  law            Shawmut's  designation of  its in-house  agency as  broker of            record  disposed of  Miniter's  claim to  commissions on  the            second policy.                      On appeal Miniter asserts  that the language in the            agreement  allows  for  more  than  one  interpretation,  and            therefore,   should   have   precluded    summary   judgment.            Specifically, Miniter  asserts that  an issue of  fact exists                                         -10-                                          10            whether  it "obtained"  Shawmut  for purposes  of the  agency            agreement.   Miniter also  contends that the  term "producer"            does not apply  in this  situation between an  agent and  the            insured client.   Instead, Miniter contends,  the term should            only apply  in situations  involving two competing  insurance            agents.   Finally, Miniter avers that  it produced the second            policy.  We disagree.                      Neither  the  parties' nor  our own  examination of            Ohio  law has  uncovered  any cases  construing the  disputed            terms  of  the  agency agreement.    We  turn, therefore,  to            general  principles  of  contract  construction.    In  Ohio,            construction of  written contracts is  a matter of  law, with            the underlying  purpose of  discovering and  effectuating the            intent of the  parties.  See Graham v. Drydock  Coal Co., 667                                     ___ ______    _________________            N.E.2d  949,  952 (Ohio  1996).   We  must give  common words            appearing in  written  contracts "their  plain  and  ordinary            meaning  unless manifest  absurdity  results or  unless  some            other meaning  is clearly intended  from the face  or overall            contents"  of the  contract.   Alexander v.  Buckeye Pipeline                                           _________     ________________            Co.,  374 N.E.2d  146,  150 (Ohio  1978).   We  may  consider            ___            extrinsic evidence  to ascertain  the parties'  intent either            when  faced  with  unclear  or ambiguous  language,  or  when            circumstances  surrounding  the  agreement  give   the  plain            language special  meaning.  See  Graham, 667  N.E.2d at  952.                                        ___  ______            "[W]here  the terms  in an  existing contract  are  clear and                                         -11-                                          11            unambiguous,"  however, we  "cannot  in effect  create a  new            contract  by finding  an intent  not  expressed in  the clear            language employed by the parties."   Alexander, 374 N.E.2d at                                                 _________            150.                      We agree with the  district court that the language            of  the  agency  agreement  is  clear  and  unambiguous,  and            provides  without  caveat  that  the  policyholder's  written            statement designating its agent binds Miniter and  Ohio.  The            agency   agreement  provides  that   the  agent's   right  to            commissions shall cease upon  cancellation of a policy.   The            parties  do  not dispute  that  Shawmut  cancelled the  first            policy,  terminating  Miniter's  right to  commissions.   The            agency  agreement  further provides  that  the policyholder's            designation  of  its agent  or  broker  shall be  binding  on            Miniter and Ohio.   Shawmut's  written statement  designating            its  in-house  agency  as  its  agent,   therefore,  controls            disbursement of commissions under the second policy.                      Miniter's contention that it "obtained" Shawmut for            purposes of the second policy fails to find support either in            the agreement  or  the  record.    Miniter  asserts  that  by            introducing Shawmut  to Ohio and brokering  the first policy,            Miniter obtained  Shawmut for  the  second policy.   On  that            basis,  Miniter contends, the  agency agreement requires Ohio            to remit commissions to  Miniter, and not Shawmut.   The most            obvious flaw in this argument is that it ignores the sentence                                         -12-                                          12            immediately following the  "obtained" sentence, which, as  we            have pointed out, provides  that in the event of  a conflict,            the  policyholder's written  statement designating  its agent            shall bind Miniter and Ohio.                      The  record  further  belies  Miniter's  assertion.            Shawmut  cancelled the  first  policy, initiated  discussions            with  Ohio as well as  other carriers, and  ultimately made a            deal with Ohio.  Shawmut's  decision to work in-house  rather            than  through   an  independent  agency   fatally  undermines            Miniter's contention  that it  obtained Shawmut for  Ohio for            purposes of the  second policy.   Further, as  we discuss  in            greater  detail below,  Miniter tried  to steer  Shawmut away            from Ohio toward another carrier rather than maintain Shawmut            as a policyholder of Ohio.    Miniter  ominously argues  that            to  interpret the  agency  agreement in  this fashion  "would            eviscerate  the independent agency  practice and arm insurers            with  a lethal  weapon for  eliminating and  compromising the            intermediary agent after the account has been brought to it."            Miniter's interpretation would  effectively allow Miniter  to            collect  premiums on  any  policies Ohio  issued to  Shawmut,            whether or not  it actually brokered them,  simply because it            brokered  the  initial  VSI  policy  between  those  parties.            Miniter's  interpretation would  preclude Ohio  from honoring            Shawmut's designation  in any insurance  policies Ohio issued            to  Shawmut.    In  other words,  that  interpretation  would                                         -13-                                          13            contradict subsequent  provisions in the same  section of the            agreement.  We reiterate that "where the terms in an existing            contract  are clear  and unambiguous,  [we] cannot  in effect            create a new contract  by finding an intent not  expressed in            the clear language."  Alexander, 374 N.E.2d at 150.                                  _________                      Miniter argues that "the producer provision applies            when there are two competing insurance agents, not between an            agent and the insured."  Miniter points to no language in the            agreement limiting  that  provision beyond  its plain  terms.            Ohio  law  dictates that  we  must presume  that  the written            contract  reflects the intent of the parties, see Graham, 667                                                          ___ ______            N.E.2d at  952, and that  we may consider  extrinsic evidence            only when  that language  is ambiguous or  when circumstances            surrounding  the agreement  give the  plain language  special            meaning.   See  id.    Miniter  points  us  to  no  authority                       ___  ___            indicating that an insured may not procure insurance directly            from  a  carrier, and  in  effect, act  as its  own  agent or            broker.    We  do  not  identify  any  special  circumstances            surrounding  this   agreement  which  might  give  the  plain            language special meaning.                      We note  that by  the terms  of the  agreement, the            producer provision  only takes effect when  a conflict exists            regarding which producer represents a policyholder.   Shawmut            informed  Ohio that  it  would no  longer be  working through            Miniter and that it  was seeking proposals for a  new policy.                                         -14-                                          14            Shawmut  cancelled  the  first  policy.   While  Miniter  now            attempts  to generate a conflict, or argue that the provision            does  not  govern  this  situation,  nothing  in  the  record            triggers the  producer provision  inasmuch as Shawmut  on its            own affirmatively undertook to negotiate the second policy.                      Equally unavailing  is Miniter's argument  that it,            and  not  Shawmut's  in-house  agency,  produced  the  second            policy.  Accepting  Miniter's definition of "produced,"3  the            record  does not support its contention that, at a minimum, a            dispute of fact exists  as to whether it or  Shawmut produced            the  second policy.    Instead, as  the record  demonstrates,            Miniter  repeatedly urged  Shawmut  to move  its business  to            another carrier  rather than come to an  agreement with Ohio,            and  effectively  forced Shawmut  to  produce  the policy  by            itself.                        Grondin's  undisputed testimony  reflects Miniter's            indication  that Ohio was  no longer  interested in  making a            deal with  Shawmut involving the  lump sum payment.   Miniter            made  this  assertion despite  the  fact  that Ohio  remained            willing to  remit  $1.8 million  to  Shawmut.   In  addition,            Miniter tried  to present  Shawmut with proposals  from other            companies and  urged Shawmut to let Miniter  move the account            to a different carrier.  It was not until  Shawmut decided to                                            ____________________            3.  According  to Miniter,  "[t]he  common  sense meaning  of            produce  or 'producer'  is  one who  'brings forth,'  'brings            forward,' 'generates,' or 'causes,' or 'to effect.'"                                         -15-                                          15            work  directly  with a  carrier and  contacted Ohio  that the            second policy began to  take shape.  On the  undisputed facts            in this  record, Miniter cannot  lay claim to  commissions on            the  second  policy by  claiming  that it,  and  not Shawmut,            produced the policy.                      2.  The No-Contact Agreement                      ____________________________                      For  purposes of  summary judgment,  Ohio does  not            dispute  that in  addition to  the written  agency agreement,            Miniter  and  Ohio  orally  agreed that  Ohio  would  neither            communicate nor deal directly with Shawmut without  including            Miniter.  The district  court found that Ohio did  not breach            the no-contact agreement on the basis that Shawmut decided to            terminate  Miniter prior  to initiating  direct contact  with            Ohio  and then  informed Ohio  of that  fact.   Miniter makes            three principal arguments on appeal:  (1) compliance with the            agreement did not hinge on which party initiated the contact;            (2)  Ohio's wrongful  conduct precipitated  Shawmut's contact            and Ohio's misrepresentations  then compounded the situation;            and  (3)  whether  and  when Shawmut  intended  to  terminate            Miniter  presents a  dispute of  fact that  precludes summary            judgment on this  claim.  Miniter attempts  to buttress these            arguments  with  evidence  of  an industry  custom  which  it            alleges Ohio violated.   We find none  of Miniter's arguments            persuasive  and conclude  that on  this record  no reasonable            jury could find that Ohio breached the no-contact agreement.                                         -16-                                          16                      We understand Miniter's first  argument essentially            to contend that even if Shawmut initiated the direct contact,            the  agreement   bound  Ohio   to  include  Miniter   on  the            substantive discussions as long as Miniter remained Shawmut's            broker  of record.  Even  if the fact  that Shawmut initiated            the contact  does not relieve  Ohio of its  obligations under            the  no-contact  agreement,   the  undisputed  substance   of            Shawmut's initial contact does.                      After the July meeting  which failed to net Shawmut            a  $1.8  million payment,  Grondin  informed  Donley that  he            wished to contact Ohio.  He  then called Juredine at Ohio, as            well  as at  least one  other insurance  company, to  solicit            proposals.  Grondin told  Juredine of his disappointment that            Ohio had reneged on  the $1.8 million lump sum  payment, that            he  was planning  to  change carriers,  that  Shawmut was  no            longer going  to use  Miniter, that  Shawmut desired to  work            directly  with a carrier  rather than  through an  agent, and            that if Juredine wished he could submit a proposal.  Juredine            then  apprised  Miniter  of the  situation.    Only then  did            Grondin and  Juredine engage in substantive  discussions on a            second VSI policy.   In other words, only after  Shawmut told            Ohio that Miniter was out of  the picture, that Ohio was next            on  the chopping  block,  and Ohio  informed  Miniter of  the            situation  did Juredine  and  Grondin engage  in  substantive            negotiations.                                         -17-                                          17                      The  record does  not support  Miniter's contention            that  misconduct by Ohio  precipitated Shawmut's contact with            Ohio.   Miniter takes the  position that Ohio,  in retracting            the  initial   offer  of   $2   million,  injured   Miniter's            credibility with  Shawmut, its client.   The record, however,            does  not  support  Miniter's  claim.    Ohio  erred  in  its            calculation of $2 million and immediately informed Miniter of            that  error.  Six  days later, Ohio  submitted a recalculated            figure  of $1.8  million.   Contrary  to  Donley's claims  to            Grondin and Grondin's supervisor,  Ohio never  indicated that            it no longer wished to negotiate  a lump sum deal.  Grondin's            disgruntlement came not  from the reduction of  the figure to            $1.8  million, but  from his  understanding from  Donley that            Ohio had  backed out altogether.   In his  deposition Grondin            repeatedly testified that Shawmut expected  $1.8 million from            Ohio.                      The record  similarly  does not  support  Miniter's            claim  that  Ohio's  misrepresentations  following  Shawmut's            initial contact in any way compounded the situation.  Miniter            contends that Ohio cast  Miniter in a poor light  by averring            that it  never had a problem  with the lump sum  payment.  As            the  record reflects,  however, Ohio  simply told  the truth.            Ohio's concern had  been primarily with the  amount, which it            reduced from $2 million to $1.8 million, as well as with some            of  the  details  of  the  revised  VSI  coverage.    Despite                                         -18-                                          18            Miniter's   characterizations,   Ohio  remained   willing  to            provide, and ultimately  did provide Shawmut with a  lump sum            payment.                      Miniter  also  asserts that  Ohio  falsely informed            Shawmut  that  "any  impediment  to any  deal  was  Miniter's            commission  expense."    This  mischaracterizes  the  record.            Grondin testified that in their first conversation, and after            he informed  Juredine that  Shawmut desired to  work directly            with a  carrier, Juredine  responded that  he  had neither  a            problem with paying a  $1.8 million lump sum nor  with giving            Shawmut a part  of the commissions or a fee,  but that Donley            did not want to reduce  his commission percentage. Nothing in            the    record    supports   Miniter's    highly   exaggerated            characterization of Juredine's remark.  In addition, Juredine            did not  make that remark  until after  Grondin informed  him            that Shawmut would no longer be working through Miniter.                      Miniter  asserts that an  issue of fact  as to when            Shawmut  actually terminated  Miniter  should have  precluded            summary judgment on  its breach of  the no contact  agreement            claim.  The district court found that Ohio did not breach the            no contact  agreement in part  because it determined  that by            the time Shawmut contacted  Ohio, Shawmut had already decided            to terminate Miniter.  Miniter correctly asserts that Shawmut            did not  formally terminate its  brokerage designation  until            after  Shawmut had  negotiated the  second policy  with Ohio.                                         -19-                                          19            Until  that  time  the record    supports  a conclusion  that            Shawmut remained  willing  to consider  any proposal  Miniter            might  have  made  along  with any  other  proposals  Shawmut            received.  Grondin would have treated a proposal from Miniter            like any other he received.                      We conclude  that to the  extent an  issue of  fact            exists as to when Shawmut decided to terminate Miniter, it is            not material  to this dispute.  See J. Geils Band, 76 F.3d at                                            ___ _____________            1250-51  (explaining that a material fact is one that has the            potential to affect  the outcome  of the dispute).   What  is            material  is what Grondin  conveyed to Juredine  in the first            call, namely, that Shawmut would no longer be working through            Miniter or  any independent  agent, that Shawmut  intended to            change  carriers, and that Ohio could submit a proposal if it            wished.                       Finally, Miniter  points  to the  affidavit of  its            expert, Frederick J. England, Jr., to establish the insurance            industry  custom that  insurers should  not engage  in direct            dealings with  insureds who  are also clients  of independent            agents.    According to  Miniter,  Ohio's  violation of  this            custom further supports Miniter's claim for breach of the no-            contact agreement.                      England  defines   the   industry  custom   as   an            obligation by  Ohio not to  engage in continuous  dealings or            discussions,  regardless of  whether  Shawmut  initiated  the                                         -20-                                          20            contact, without first seeking to involve Miniter.  The facts            in this record  do not support Miniter's assertion  that Ohio            violated  industry  custom.    During  the  first  call  from            Grondin, Juredine  urged Shawmut  to  officially resolve  the            situation  with Miniter  prior to  moving forward.   Juredine            then  called Donley to inform him of the situation.  Notably,            Donley did not  clarify to  Ohio whether or  not Shawmut  had            terminated  Miniter.   He  merely  exhorted  Juredine not  to            negotiate with Shawmut without  his involvement.  We conclude            that Ohio made a good faith effort to abide by  the custom in            the industry as England describes it.            B.  Miniter's Remaining Claims            ______________________________                      In addition to breach  of contract, Miniter alleged            breach  of  the  implied  covenant of  good  faith  and  fair            dealing,    intentional   interference    with   advantageous            relations,   unjust  enrichment,   and   violation   of   the            Massachusetts unfair trade practices statute, Mass. Gen. Laws            ch. 93A.   Each of  these claims rests  in large part  on the            conduct  which  has failed  to  support  Miniter's claim  for            breach  of the  no  contact  agreement.    We  find  each  of            Miniter's arguments on appeal unpersuasive.   For the sake of            thoroughness, however, we discuss each of them in turn.                      1.   Breach of the  Implied Covenant of  Good Faith                      ___________________________________________________            and       Fair Dealing            ____      ____________                      Miniter  alleged  that  Ohio's  breach  of  the  no            contact agreement violated the implied covenant of good faith                                         -21-                                          21            and  fair  dealing.    The  district  court  granted  summary            judgment in favor of Ohio, determining that "Ohio courts have            declined to  recognize the doctrine in  an at-will employment            context."   On appeal Miniter argues  alternatively that Ohio            does recognize the implied covenant  in this context and that            the  district court  should have  applied Massachusetts  law,            which  recognizes the  implied  covenant  in every  contract.            Appellee Ohio, by  contrast, seeks  to apply the  law of  the            state  of Ohio,  arguing  that Ohio  law  does not  recognize            Miniter's claim.                      We  need not  determine which state's  law governs.            Even  if,  as  Miniter  contends,  the  common  law  of  Ohio            recognizes  a cause  of  action  for  breach of  the  implied            covenant  of good  faith and  fair dealing,  Miniter has  not            discussed  how Ohio law would  apply in this  case.  Instead,            Miniter argues the merits of this claim only under the law of            Massachusetts.  We have indicated that "issues adverted to on            appeal   in  a  perfunctory  manner,  unaccompanied  by  some            developed argumentation,  are deemed to have been abandoned."            Ryan v.  Royal Ins. Co. of  Am., 916 F.2d 731,  714 (1st Cir.            ____     ______________________            1990); see also  Williams v.  Poulos, 11 F.3d  271, 285  (1st                   ___ ____  ________     ______            Cir.  1993).   We  conclude,  moreover,  that Miniter  cannot            prevail under the law of Massachusetts.                          As we have recognized, "Massachusetts law implies a            duty  of  good faith  and  fair  dealing  in  every  existing                                         -22-                                          22            contract."  F.D.I.C. v.  LeBlanc, 85 F.3d 815, 822  (1st Cir.                        ________     _______            1996); see also Anthony's Pier Four v. HBC Assoc., 583 N.E.2d                   ___ ____ ___________________    __________            806,  820  (Mass.  1991).     Under  this  implied  covenant,            "'neither party  shall do anything that will  have the effect            of destroying or  injuring the  right of the  other party  to            receive  the fruits of the contract.'"   Anthony's Pier Four,                                                     ___________________            583  N.E.2d  at 820  (quoting  Drucker v.  Roland  Wm. Jutras                                           _______     __________________            Assocs., 348 N.E.2d 763, 765 (Mass. 1976)).  The existence of            _______            the covenant in no way depends on the level of sophistication            of the parties.  Massachusetts law  implies the covenant even            in contracts between sophisticated  business people.  See id.                                                                  ___ ___            at 821.                        According  to Miniter,  Ohio  dealt  directly  with            Shawmut in  breach of  the no  contact agreement  and falsely            indicated to Shawmut a  willingness to pay the lump  sum with            the  purpose  of excluding  Miniter  from  any deal,  thereby            eliminating  Miniter's  commissions.    Miniter  claims  that            Ohio's actions  "were calculated and intended  to subvert the            relationship  and  to  otherwise obtain  the  Shawmut account            directly and eliminate Miniter's involvement and commission."                      Miniter, however, fails to identify evidence in the            record that would establish a genuine issue of material  fact            whether Ohio acted in  bad faith.  The record  indicates that            by  the time Shawmut began negotiating  with Ohio Grondin had            informed Juredine that Shawmut  was no longer working through                                         -23-                                          23            Miniter.    Juredine,   moreover,  informed  Donley  of   the            situation  shortly  after he  received  Grondin's  call.   In            short, the record does  not support Miniter's contention that            Ohio  acted  to destroy  or  injure Miniter's  rights  to the            fruits  of the contract.  See Anthony's Pier Four, 583 N.E.2d                                      ___ ___________________            at  820.   Assuming  Massachusetts  law  governs this  claim,            Miniter  fails to  point  to record  evidence supporting  its            allegations that Ohio acted in bad faith.4                                            ____________________            4.  Miniter's claim  for unjust enrichment also  fails.  That            claim  is  based on  Miniter's  argument  that it  introduced            Shawmut to Ohio,  that it brokered  the initial policy,  that            Ohio went  behind its back  and dealt directly  with Shawmut,            that Ohio  made misrepresentations  to Shawmut, all  with the            result  that Ohio  benefited by  gaining a  new client.   See                                                                      ___            Salamon  v.  Terra, 477  N.E.2d  1029,  1031-32 (Mass.  1985)            _______      _____            (remedy  lies  for  value  of benefit  conferred).    We have            already concluded  that rather than broker  or facilitate the            second policy,  Miniter urged Shawmut to  change carriers and            represented  to Shawmut  that Ohio  reneged on  its lump  sum            offer.   Our  conclusion  that Ohio  did  not engage  in  any            wrongful  conduct  precludes  any  plausible  assertion  that            Miniter  conferred  a  benefit  upon Ohio  beyond  the  first            policy.                                           -24-                                          24                      2.  Interference with Advantageous Relations                        ____________________________________________                      Miniter  contends that the  district court erred in            granting summary judgment in  favor of Ohio on its  claim for            interference  with  advantageous  relations.    A  claim  for            interference with  advantageous  relations depends  upon  the            presence of  four criteria:  "(1) a business  relationship or            contemplated   contract  of   economic   benefit;   (2)   the            defendant's  knowledge   of   such  relationship;   (3)   the            defendant's intentional and malicious interference   with it;            (4) the plaintiff's loss of advantage directly resulting from            the   defendant's conduct."   Comey v. Hill,  438 N.E.2d 811,                                          _____    ____            816 (Mass. 1982); see also Speen v. Crown Clothing Corp., 102                              ___ ____ _____    ____________________            F.3d 625, 634 (1st Cir. 1996).  The Supreme Judicial Court of            Massachusetts has  indicated that the third  element requires            merely  an improper  interference, and  not a  malicious one.            See  United Truck Leasing Corp. v. Geltman, 551 N.E.2d 20, 23            ___  __________________________    _______            (Mass. 1990).5   Nevertheless,  a successful claim  must show            something more  than just the  interference itself.   See id.                                                                  ___ ___            To the extent,  therefore, that any  of Ohio's actions  could            constitute  an  interference,  that  alone  would  not  incur            liability.   Instead,  Miniter must  demonstrate wrongfulness                                            ____________________            5.  We  note  that in  Geltman,  the  Supreme Judicial  Court                                   _______            specifically  examined the  tort of  intentional interference            with a  contract and prospective contractual  relations.  The            court  indicated, however, that at least  with respect to the            third  element, the same standard applied in both torts.  See                                                                      ___            id. at 23 n.6.              ___                                         -25-                                          25            beyond the interference itself.  The interference must arise,            for example,  from improper  motives or the  use of  improper            means.  See id.                    ___ ___                      Miniter   bases  this   claim  yet  again   on  its            contention that Ohio engaged  in direct dealings with Shawmut            in  violation of the no contact  agreement and made injurious            misrepresentations about  the lump  sum payment  and Miniter.            Our examination of the record  has revealed no such  conduct.            Miniter  points to  nothing  in  addition  to  the  facts  we            considered in relation to Miniter's breach of contract claims            that might support a  claim for intentional interference with            advantageous relations.   In  the absence of  record evidence            upon  which   a  reasonable  jury  could   find  an  improper            interference, Miniter cannot survive summary judgment on this            claim.                              3.   Breach of  Fiduciary Duty/Mass. Gen.  Laws ch.                      ___________________________________________________            93A            ___                      Finally,  Miniter  appeals  the  grant  of  summary            judgment in favor of  Ohio on its claim under Mass. Gen. Laws            ch. 93A ("93A") based  on breach of fiduciary duty.   Section            2(a)  of Mass.  Gen.  Laws ch.  93A  provides that  "[u]nfair            methods  of  competition  and  unfair or  deceptive  acts  or            practices  in the conduct of any trade or commerce are hereby            declared  unlawful."    Section  11  extends     2's  general            protection to commercial  parties.  See  Mass. Gen. Laws  ch.                                                ___                                         -26-                                          26            93A   11; Industrial  Gen. Corp. v. Sequoia Pac.  Sys. Corp.,                      ______________________    ________________________            44 F.3d  40, 43 (1st Cir. 1995).  Whether a particular set of            facts  constitutes  unfair  or  deceptive  acts  or practices            ordinarily is a question of fact.  See id.  The parameters of                                               ___ __            conduct the  factfinder may consider, however,  is a question            of law.  See id. at 44.                     ___ ___                      To fall within these  parameters, the conduct which            undergirds  the complaint  must reside  "within at  least the            penumbra  of some common-law,  statutory or other established            concept  of  unfairness," or  rise to  the level  of immoral,            unethical,   oppressive  or   unscrupulous,  and   result  in            substantial injury to competitors  or other business  people.            Id. (internal quotations and  citations omitted).  At bottom,            ___            a  claim under  93A must  rest on  conduct that  attained "'a            level of  rascality that would  raise the eyebrow  of someone            inured  to the rough and  tumble of the  world of commerce.'"            See id. at 43 (quoting  Quaker St. Oil Ref. Corp.  v. Garrity            ___ ___                 _________________________     _______            Oil  Co.,  884  F.2d 1510,  1513  (1st  Cir.  1989) (internal            ________            quotation omitted)).                        Miniter  contends that the  agency agreement placed            it  and Ohio  in a  fiduciary relationship,  the contours  of            which derive from "the established obligations imposed in the            industry  that  an  insurer  is  obligated  to  refrain  from            interfering  with an  independent  agent's property  right in            expirations   [and]   the  concomitant   prohibition  against                                         -27-                                          27            engaging in direct dealings with the  insured while the agent            remains the broker of record."                      We agree  with Miniter  that breach of  a fiduciary            duty might  constitute a  93A  violation.   See Sequoia  Pac.                                                        ___ _____________            Sys., 44 F.3d at 44.  We conclude, however, that Ohio did not            ____            breach  its  duty.    Miniter  supports  its  93A claim  with            mischaracterizations  of  the  record   upon  which  we  have            elaborated.      In   short,    Ohio   did   not   make   the            misrepresentations Miniter  claims,  nor did  it violate  its            written or oral agreements.  The record further reflects that            Ohio adhered to the industry custom as described by Miniter's            expert,  Frederick England.  As  such, Ohio did  not breach a            fiduciary duty  to Miniter.    Miniter's 93A  claim based  on            breach of fiduciary duty, therefore, fails.                      Affirmed.  Costs to appellee.                      Affirmed.                      _________                                         -28-                                          28
