                                   PUBLISH

                 UNITED STATES COURT OF APPEALS
Filed 7/23/96
                              TENTH CIRCUIT


FREDERICK C. TIBERI, FRED TIBERI
INSURANCE AGENCY, INC., and THE
KELLY AGENCY, INC. ,

            Plaintiffs-Appellants and
            Cross-Appellees ,

      v.                                     Nos. 95-2044 and 95-2051

CIGNA CORPORATION, CIGNA FIRE
UNDERWRITERS INSURANCE CO.,
CIGNA PROPERTY AND CASUALTY
INSURANCE CO., BANKERS
STANDARD INSURANCE CO.,
CENTURY INDEMNITY CO., CIGNA
INSURANCE CO. OF TEXAS, CIGNA
INSURANCE CO., INDEMNITY
INSURANCE CO. OF NORTH
AMERICA, INSURANCE CO. OF
NORTH AMERICA, PACIFIC
EMPLOYERS INSURANCE
COMPANY, and INA CREDIT CORP.
a/k/a INAC CORP. ,

            Defendants-Appellees and
            Cross-Appellants .



        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                (D. Ct. Nos. 93-1011 JB and 93-0397 JB)


Michael J. Condon of Gallegos Law Firm, PC, Santa Fe, New Mexico (J.E.
Gallegos of Gallegos Law Firm, Santa Fe, New Mexico and Steven L. Tucker of
Tucker Law Firm, Santa Fe, New Mexico with them on the brief) for Plaintiffs-
Appellants and Cross-Appellees.

William C. Madison, M. Eliza Stewart, and Gregory L. Steinman of Madison,
Harbor, Mroz and Puglisi, P.A., Albuquerque, New Mexico, for Defendants-
Appellees and Cross-Appellants.



Before TACHA, McKAY, and JONES, Circuit Judges. *


JONES, Circuit Judge.


      This is a diversity case involving New Mexico contract and tort law.

Plaintiffs, 1 New Mexico residents, sued Defendants, a group of Pennsylvania

corporations collectively doing business as "CIGNA." CIGNA filed similar

counterclaims against Plaintiffs. Plaintiffs appeal the district court's award of

summary judgment to CIGNA on statute of limitations grounds; CIGNA cross-

appeals the district court's denial of its motions for attorney's fees and costs. We

affirm in part, reverse in part, and vacate in part the ruling of the district court.

                                           I.

      Plaintiff Fred C. Tiberi ran the Fred Tiberi Insurance Agency ("Tiberi

Agency") in Albuquerque, New Mexico. The Tiberi Agency was independent and


      The Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of
      *

Appeals for the Sixth Circuit, sitting by designation.
      1
       Because Tiberi owned and operated the Fred Tiberi Insurance Agency and the
Kelly Agency, we will hereinafter refer only to Tiberi.

                                          -2-
free to place its clients with any insurance companies in the market. At that time,

a group of insurance companies were operating an enterprise known as the

COMPAR program. The COMPAR program was comprised of insurance

companies and agencies that did business exclusively with one another. On May

8, 1980, Tiberi joined the COMPAR program by signing a written "Full Service

Agency Agreement" with Defendant Insurance Company of North America

("INA"). Shortly thereafter, Defendant INAC Corporation ("INAC") loaned

Tiberi money to purchase a majority interest in The Kelly Agency, Inc. ("Kelly

Agency") for $1,100,000. In 1982, after INAC and Connecticut General merged

with a wholly-owned subsidiary of North American General Corporation (NAGC),

CIGNA was formed.      COMPAR then became, in essence, an instrumentality of

CIGNA. On October 1, 1982, the Kelly Agency signed a similar contract with

INA, thus joining the COMPAR ranks. The agencies subsequently signed a new

deal which was to take effect on January 1, 1990.

      The terms of the contracts were simple: the Kelly and Tiberi Agencies

became "independent contractors," and agreed to sell only COMPAR insurance.

The agencies could sell insurance from other companies only with the consent of

COMPAR. COMPAR, moreover, controlled the agencies' underwriting authority.

Consistent with the representations it made to Tiberi during the recruitment

process, COMPAR agreed to assist the agencies as it deemed necessary.


                                        -3-
According to Tiberi, COMPAR agreed to help the agencies persevere through

problems such as "uncompetitive pricing, stricter underwriting standards,

unreasonable delays in providing potential clients with premium quotes, etc."

Tiberi's Br. at 8. The boilerplate language of the contracts indicated that

COMPAR -- and, impliedly, CIGNA -- expected "strict compliance" with the

terms. CIGNA's Br. at 5. The 1980 and 1982 contracts required a minimum 5-

year commitment; after five years, the agencies had to give COMPAR two years'

advance notice of termination.

      In 1983 and 1984, CIGNA suffered substantial insurance losses. During

this time, CIGNA raised its prices and began to downsize COMPAR by selling

less insurance, as well as signing fewer renewals with COMPAR agencies. In

1985, CIGNA notified COMPAR agents of reductions in commissions and

withdrawal of its subsidy for errors and omissions insurance. At the 1986

COMPAR convention, David Prentiss, president of CIGNA's Agency Division,

reiterated these strategies but offered incentives to "profitable" COMPAR

members who remained in the program. Tiberi's Br. at 11-12. Tiberi decided to

keep the Kelly and Tiberi Agencies under the program. Although he received

occasional assistance from CIGNA and/or COMPAR, Tiberi incurred significant

losses as a result of this decision. Consequently, Tiberi's agencies submitted a

letter to CIGNA, dated March 3, 1986, expressing their dissatisfaction with the


                                         -4-
program. CIGNA received similar letters from other COMPAR members in New

Mexico and other states. In June of that year, at the COMPAR National Advisory

Council meeting, the Council resolved to make "changes . . . to improve [the

members'] position in the marketplace," and to "work hard to prove our

commitment to COMPAR." Appendix, Vol. III at 725.

      After 1986, however, it became apparent to CIGNA that it could not sustain

COMPAR. In an internal document dated April 15, 1987, CIGNA stated that its

worsening relationship with its smaller COMPAR agents required "fundamental

changes in the COMPAR program and its strategic direction." Appendix, Vol. III

at 708. The document lists the abandonment of COMPAR as a viable option. Id.

at 709. CIGNA, however, chose to restrict further its coverage and raise its

prices, despite warnings from COMPAR President Spike McKeeta that such

actions would cause "serious ramifications." Appendix, Vol. III at 786. 2 CIGNA

never notified Tiberi of these developments.

      Throughout 1988 and 1989, CIGNA attempted to allay the concerns of its

agents with statements such as the following:

      Through the COMPAR program we can give you what you need --

      the products, the capacity, the technology, the capital . . . the
      commitment . . . Count on it. Count on us. Statement of Ray


      2
       McKeeta concluded that CIGNA should allow him to "eliminate, or water down
the [COMPAR agent] segment" if relations with COMPAR agents did not improve. Id.

                                         -5-
Thomas, Jan. 8, 1988.

                                 . . .

I can tell you without the least reservation that we'll always be in a
position to support the capacity needs of our COMPAR producers . . .
you can feel secure with CIGNA . . . CIGNA is financially solid . . .
CIGNA and COMPAR together have the technology, the support
services and financial resources to survive and flourish in the present
market. Statement of David Prentiss, Jan. 19, 1988.

                                 . . .

COMPAR requires a new and deeper level of cooperation . . . for
those who make the commitment the future will be exceptionally
rewarding. Statement of David Prentiss, Jan. 8, 1989.

                                 . . .

Every aspect of business will be examined during 1989 to improve
operating efficiencies and COMPAR agents will be informed of
progress. Ray Thomas, COMPAR News, March 1989.

                                 . . .

While [the] changes [to reduce COMPAR expenses] may cause some
degree of pain in the short-term, we feel that the long-term outlook
remains extremely positive for both parties . . . we can work together
to minimize significant impact to your agency. Letter from Wanda
Tackett to Frederick Tiberi, June 1, 1989.

                                 . . .

Recent actions have been difficult for many of you to accept. Let me
assure you that they are vital in the short term and will help to
position COMPAR for the future. [I remain] fully committed to the
program and intend to see to it that COMPAR is alive and flourishing
long after all of us have retired from the field of battle. Letter from
David Prentiss to COMPAR Agents, July 27, 1989.


                                  -6-
See Appendix, Vol. I at 225.19-225.25. These statements, Tiberi argues, led

Tiberi to believe that CIGNA would provide him support and reward him

handsomely if he remained in the program. In his words, he thought that "the

whole concept of this contractual relationship was built upon trust." Appendix,

Vol. III at 888 (Tiberi's Deposition). Moreover, Tiberi asserts that remaining in

the program was the only reasonable alternative in light of his agencies' financial

straits.

       In February 1990, CIGNA announced that it was changing the COMPAR

program to make it "`a non-exclusive distribution network.'" Appendix, Vol. III

at 886 (emphasis added). This amendment ended the COMPAR program as it had

previously existed. Because of the new arrangement, COMPAR agents were

asked to seek other insurers and "roll over" to new carriers the business of clients

whom CIGNA no longer wanted. Tiberi thus ended his relationship with CIGNA

after having lost 686 policies and nearly $1,500,000 in premiums from 1982 to

1989. CIGNA's Br. at 11.

       On March 11, 1993, Tiberi brought suit against CIGNA in state court for

breach of contract, breach of covenant, fraud, misrepresentation, and violations of

the New Mexico Unfair Trade Practices Act (NMUTPA). Upon removal to the

United States District Court for the District of New Mexico, CIGNA brought a

Counterclaim and a Third-Party Complaint against Tiberi for breach of contract


                                         -7-
and tortious interference with contract during the COMPAR venture. Thereafter,

Tiberi twice moved to amend his complaint to add claims for breach of fiduciary

duty and promissory estoppel. Tiberi's Br. at 28.

      On August 16, 1994, after Tiberi had filed his Motions to Amend, CIGNA

Corp. moved to dismiss for lack of personal jurisdiction. On October 12, 1994,

that motion was granted. On October 17, 1994, the district court granted the other

Defendants' Motion for Summary Judgment on the grounds that the statute of

limitations had run. On October 29, 1994, the district court dismissed CIGNA's

actions without prejudice. On February 16, 1995, the district court denied

Tiberi's Motion to Alter or Amend his Complaint to address the statute of

limitations issue and further denied CIGNA's Motions for costs and attorney's

fees under Federal Rule of Civil Procedure 54 and/or NMUTPA. Tiberi appeals

the February 16, 1995 judgment; CIGNA cross-appeals that same decision.

      On appeal, Tiberi argues that the district court misapplied the statutes of

limitation for his contract and tort claims. He contends that the doctrine of

equitable estoppel excepts him from the normal statute of limitations requirements

for contract claims. He further argues that CIGNA's conduct constituted a

"continuing wrong" for the purposes of the tort claims. Finally, he argues that his

Motion to Amend should have been granted because his Complaint was based on

CIGNA's "misleading conduct." Accordingly, Tiberi prays that this court reverse


                                         -8-
the district court decision and remand for further proceedings.

CIGNA maintains that the district court's ruling as it related to Tiberi was correct.

CIGNA further argues that the court erred in denying its Motion for costs and

attorney's fees because 1) it was the prevailing party, and 2) Tiberi's cause of

action under the NMUTPA was groundless.

      For the reasons that follow, we conclude that: 1) Tiberi's claims are not

barred under the pertinent statutes of limitations; 2) the district court did not

abuse its discretion in denying Tiberi's promissory estoppel claim, but abused its

discretion in refusing to allow his breach of fiduciary duty claim; and 3) the

district court's rulings regarding CIGNA's Motions for costs and attorney's fees

should be vacated.

                                           I.

      We first address Tiberi's argument that the district court erred in granting

CIGNA summary judgment on statute of limitations grounds. We review this

issue de novo. Utah Power & Light Co. v. Federal Ins. Co., 983 F.2d 1549, 1553

(10th Cir. 1993). Applying this standard, we believe that the district court's

decision was in error.

      Summary judgment is appropriate only when there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(c); Ingels v. Thiokol Corp., 42 F.3d 616, 620 (10th Cir. 1994).


                                          -9-
This means that after the opportunity for discovery, if the moving party

demonstrates that there is no genuine issue of material fact as to the existence of

any element essential to the non-moving party's case, then summary judgment is

appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552

(1986). Once this initial burden is met, it becomes the burden of the non-moving

party to come forward with specific facts, supported by the evidence in the

record, upon which a reasonable jury could return a verdict for the nonmoving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510

(1986). "Where the record taken as a whole could not lead a rational trier of fact

to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., et. al, 475 U.S. 574, 587, 106 S. Ct. 1348,

1356 (1986) (quoting First Nat'l Bank of AZ v. Cities Serv. Co., 393 U.S. 253,

289, 88 S.Ct. 1575, 1592 (1968)). Therefore, in order to withstand summary

judgment in the case at bar, Plaintiffs carry the burden of proving the existence of

facts which, if proven true, would warrant a tolling of the statutes of limitation.

See Dow v. Chilili Co-op Assn., 728 P.2d 462, 464 (N.M. 1986).

      Tiberi correctly argues that in order to address the summary judgment

ruling on the statute of limitations issue, the court must bifurcate his Complaint

between those causes of action grounded in contract and those grounded in tort.

Where a suit invokes several causes of action, each is subject to a distinct statute


                                         - 10 -
of limitations; thus, distinct accrual periods should apply as to each cause of

action. See King v. Otasco, Inc., 861 F.2d 438, 441 (5th Cir. 1988). This is true

even if the causes of action are derived from a single event. Id. Therefore, we

will analyze the statute of limitations issue in context of applicable contract and

tort law.

                                            A.

         Tiberi claims that CIGNA breached the contract in 1986 by substantially

altering COMPAR's business practices and causing Tiberi's agencies to suffer

acute losses. Tiberi's Br. at 11-13. A cause of action for breach of contract is

created only upon actual breach. Welty v. Western Bank of Las Cruces, 740 P.2d

120, 122 (N.M. 1987). Both parties identify 1986 as the date of the alleged

breach; Tiberi's March 3, 1986 letter indicates that his cause of action accrued, at

latest, on that date. The limitations period on written contract claims is six years

from the date of the breach. N.M. Stat. Ann. 1978 § 37-1-3(A). Because Tiberi

brought his contract claim in 1993, seven years after the date on which the alleged

breach was clearly identified, his suit normally would be barred by the statute of

limitations as a matter of law, unless a factual basis for tolling the statute exists.

See Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041 n.4 (10th Cir.

1980).

         Tiberi claims that even if his contract claim is barred under the statute of


                                          - 11 -
limitations, the doctrine of equitable estoppel excepts him from the statute. He

avers that the district court erred in refusing to apply the doctrine to toll the

statute. After reviewing the applicable law, we agree with Tiberi.

      The doctrine of equitable estoppel "precludes one party from asserting a

[statute of limitations defense] when another party has relied to his detriment

upon the acts or conduct of the first party and when asserting that [defense] would

prejudice the other who has acted thereon in reliance." Continental Potash, Inc.

v. Freeport-McMoran, Inc. 858 P.2d 66, 73 (N.M. 1993). The Potash court,

moreover, stated:

      The essential elements of equitable estoppel as related to the party
      estopped . . . are: (1) conduct which amounts to a false representation
      or concealment of material facts, or, at least, which is calculated to
      convey the impression that facts are otherwise than, and inconsistent
      with, those which the party subsequently attempts to assert; (2)
      intention that such conduct shall be acted upon by the other party . .
      .; and (3) knowledge, actual or constructive, of the real facts . . . As
      relating to [the party claiming] estoppel, the essentials are: (1) lack
      of knowledge and of means of knowledge of the truth as to the facts
      in question . . .; (2) reliance upon the conduct of the party estopped .
      . .; and (3) action based thereon of such a character as to change its
      position prejudicially.

Id. at 74 (quoting Capo v. Century Life Ins. Co., 610 P.2d 1202, 1206 (N.M.

1980)) (emphasis added).

      Tiberi has presented facts which indicate that equitable estoppel may attach

in this case. Looking at the evidence in a light most favorable to Tiberi, the facts

show that CIGNA knew that COMPAR was foundering as early as 1983. In 1986,

                                          - 12 -
despite COMPAR's continued problems, it assured Tiberi that his agencies would

enjoy renewed success if he remained in the program. From 1986 to 1989,

moreover, CIGNA never gave any indication to Tiberi that it would not honor its

promises. CIGNA made these promises to keep Tiberi in the program. Tiberi

relied on CIGNA's assurances and remained with COMPAR despite enormous

losses. Their decision only resulted in further injury. These facts lead us to the

conclusion that equitable estoppel is appropriate in this case. Potash,

858 P.2d at 74.

      CIGNA, however, makes three arguments against the application of

equitable estoppel in this case. Their first argument is that Tiberi has failed to

prove that CIGNA, as the estopped party, "inten[ded] to deceive or delay [him],"

as required to claim equitable estoppel. Even if we assume that CIGNA never

intended to do so, its argument lacks merit. CIGNA relies on Potash in support

of his argument. Id. The Potash court declared that the doctrine applies "when

the party estopped intends or expects that the innocent party will act on those

representations." Potash, 858 P.2d at 74. Yet we believe that Tiberi need only

prove that CIGNA dissuaded him from taking legal action. Indeed, in Stuckey's

Stores, Inc. v. O'Cheskey, the New Mexico Supreme Court noted that

"[r]epresentations that are contrary to the essential facts to be relied upon, even

though made innocently or by mistake, will support the application of the estoppel


                                         - 13 -
doctrine." 600 P.2d 258, 270 (N.M. 1979) (quoting State ex rel. State Highway

Dept. v. Shaw, 565 P.2d 655, 658 (N.M. 1977)). Thus, we do not believe that

Tiberi needs to prove intent to deceive in order to claim equitable estoppel. Id.;

see also City of Bedford v. James Leffel & Co., 558 F.2d 216, 218 (4th Cir. 1977)

(citing T. . . v. T. . ., 224 S.E.2d 148, 152 (Va. 1976)) ("deceit is not an essential

element of estoppel")). Therefore, whether CIGNA intentionally deceived Tiberi

in convincing him to remain in COMPAR, is irrelevant. If Tiberi declined to sue

on the basis of CIGNA's representations, then equitable estoppel should apply.

      Second, CIGNA claims that even though it made promises in order to keep

Tiberi in the COMPAR program, Tiberi cannot maintain a suit because it never

intended to dissuade him from pursuing legal action. Id. We disagree. Tiberi

claims that he chose to stay in COMPAR based on CIGNA's assurances and

suffered substantial loss after making that choice; this is all that the equitable

estoppel doctrine requires. Potash, 610 P.2d at 1206. CIGNA, moreover, cites no

case law which holds that in order to prevail on equitable estoppel, the party

seeking estoppel must declare an intent to sue before the estopped party makes its

misrepresentations. To the contrary, the claimant need only "be aware of his

cause of action" before the defendant dissuades him from taking further action.

Skyberg v. United Food & Commercial Workers Int'l Union, AFL-CIO, 5 F.3d

297, 302 (8th Cir. 1993). Thus, this argument must also fail.


                                          - 14 -
      Finally, CIGNA maintains that it made no representations to Tiberi upon

which he could reasonably rely for the purposes of equitable estoppel. CIGNA

claims that the statements that its promises to correct COMPAR's problems were

so vague, and left unfulfilled for such a long period of time, that Tiberi could not

have relied on them. Id. In essence, CIGNA argues that the court should not

allow equitable estoppel to attach because it was not serious about the promises it

made to Tiberi. This would allow CIGNA "to profit from its own fraud." Gaston,

549 P.2d at 635. Such a result is inherently inequitable. Therefore, we conclude

that the there exist genuine issues of material fact regarding whether doctrine of

equitable estoppel tolls the statute of limitations so as to defeat CIGNA's Motion

for Summary Judgment.

                                          B.

      Plaintiffs' original complaint also alleged that CIGNA's "misleading

conduct" subjected them to liability for constructive fraud, fraud, negligent

misrepresentation, and violations of NMUTPA. The district court granted

CIGNA summary judgment on these claims, finding that the statute of limitations

had run. We conclude, however, that there exists a genuine issue of material fact

regarding whether the statute should have been tolled by virtue of the continuing

wrong doctrine.

       "In actions for relief, on the ground of fraud or mistake . . . the cause of


                                        - 15 -
action shall not be deemed to have accrued until the fraud [or] mistake . . . shall

have been discovered by the party aggrieved." N.M. Stat. Ann. 1978 § 37-1-7.

The statute of limitations for these causes of action allows a claimant to bring suit

within four years of accrual. N.M. Stat. Ann. 1978 § 37-1-4. Normally, the

limitations period begins to run "when the plaintiff discovers the fraud or when,

with reasonable diligence, the plaintiff could have discovered the fraud." Ramsey

v. Culpepper, 738 F.2d 1092, 1095 (10th Cir. 1984). 3 Under the continuing

wrong doctrine, however, "where a tort involves a continuing or repeated injury,

the cause of action accrues at, and limitations begin to run from, the date of the

last injury." 54 C.J.S. Limitation of Actions § 177 (1987). 4 In other words, "the

       3
        See also New Mexico Elec. Serv. Co. v. Montanez, 551 P.2d 634, 637 (N.M. 1976)
(statute runs at the date of the injury rather than the date of the negligent act).
       4
        The district court rejected Tiberi's continuing wrong argument, stating that "[t]he
statutory limitations periods in question are long enough in duration to allow for attempts
at compromise or settlement without the necessity for a judicially-created tolling
exception." D.Ct. Op. at 10. In so doing, the court relied on Crumpton v. Humana, Inc.,
661 P.2d 54 (N.M. 1983). In Crumpton, the plaintiff sought to bring a medical
malpractice suit against defendant but allowed the three-year statute of limitations to run.
Plaintiff appealed, arguing that defendant should be estopped from asserting the statute
because the parties were negotiating a settlement during the accrual period. The Supreme
Court rejected this argument and affirmed the lower court's award of summary judgment
to defendant. Id.
       Crumpton is distinguishable from the case at bar for two reasons. First, Crumpton
involved a dispute in which a settlement was being negotiated, whereas this case had not
advanced to such a point. Furthermore, in Crumpton, the Court found no evidence of
fraud or misrepresentation on defendant's part and that defendant, in fact, had made a
settlement offer before the statute had run. Crumpton, 661 P.2d at 55. Here, however,
CIGNA -- by its own implied admission, see CIGNA's Br. at 29 -- made
misrepresentations about its intent to remedy COMPAR's deficiencies. Thus, the district

                                           - 16 -
statute of limitations does not begin to run until the wrong is over and done with."

Taylor v. Meirick, 712 F.2d 1112, 1118 (7th Cir. 1983).

       After examining the facts of this case, we think that the continuing wrong

doctrine may be applied. As discussed earlier, CIGNA told Tiberi as late as 1989

that it had every intention of maintaining its commitment to COMPAR. Yet as

early as 1987, CIGNA had considered abandoning COMPAR. The evidence

further shows that CIGNA never informed Tiberi of its reservations about the

program, leaving him to rely on their assurances. CIGNA subsequently called an

abrupt end to the program in 1990. Looking at this set of facts, it is reasonable to

infer that CIGNA held Tiberi to the COMPAR agreement while at the same time

taking measures to dissolve it. In turn, the last injurious act would be CIGNA's

announcement in February 1990 that it was ending the COMPAR program.

Accordingly, we believe that Tiberi has established a genuine issue of material




court's reliance on Crumpton is misplaced.
        Similarly, CIGNA argues that "[n]o New Mexico case supports Tiberi's theory for
the tolling of the limitations period," and that "Tiberi's argument flies in the face of the
New Mexico decisions." CIGNA's Br. at 23. To the contrary, New Mexico courts have
consistently considered the applicability of the continuing wrong doctrine in a variety of
cases. See, e.g., Martinez, 884 P.2d at 514 (doctrine did not apply where plaintiff sued
priest in 1991 for sexual misconduct which ended in 1977); Valdez v. Mountain Bell
Telephone Co., 755 P.2d 80, 84 (N.M.App. 1988) (recognizing the doctrine); Ealy v.
Sheppeck, 669 P.2d 259 (N.M.App. 1983); cert. quashed, 669 P.2d 735 (N.M. 1983)
(doctrine did not apply in malpractice case where physician had not continuously treated
plaintiff). Thus, although it has not been applied in every possible case, we believe that
New Mexico recognizes the doctrine.

                                            - 17 -
fact as to whether the continuing wrong doctrine tolls the statute of limitations for

Tiberi's fraud claims.

      CIGNA, however, contends that the continuing wrong doctrine is

inapplicable in this case because Tiberi knew of his injury, and the cause thereof,

since at least 1985. Indeed, the doctrine cannot be employed where the plaintiff's

injury is "definite and discoverable, and nothing prevented the plaintiff from

coming forward to seek redress." Wilson v. Giesen, 956 F.2d 738, 743 (7th Cir.

1992). In the instant case, however, this argument is misplaced. While it is true

that Tiberi suffered losses, the facts indicate that he attributed that injury to the

risk of loss which is inherent in every contract. Tiberi had no reason to believe

that he was being defrauded because CIGNA had given him every assurance that

it would compensate him for his losses and reward him for remaining a COMPAR

agent. Tiberi's allegations that CIGNA made these assurances while planning to

dismantle the program constitute a continuing tort. As a result, "[t]he running of

the statute of limitations in cases of fraud may be suspended by a repetition or

continuation of the false representations which keeps the defrauded person in

ignorance of the fraud." 54 C.J.S. Limitation of Actions § 195 (1987). Thus,

Tiberi cannot be penalized for his delay if CIGNA's misrepresentations prevented

him from ascertaining the cause of his injury.

      Furthermore, application of the continuing wrong doctrine is appropriate in


                                          - 18 -
light of the relationship between the parties. Under the COMPAR agreement,

Tiberi was to deal exclusively with CIGNA. He was beholden to CIGNA's

interests, and as a result, he invested a great deal of trust in CIGNA. Such a

relationship gives rise to a duty to disclose information to which Tiberi had no

access. R.A. Peck, Inc. v. Liberty Fed. Sav. Bk., 766 P.2d 926, 933-34 (N.M.App.

1988) (discussing relationship between banks and their customers).

      In summary, we find that it is reasonable to infer that CIGNA held Tiberi to

the COMPAR agreement while at the same time taking measures to dissolve it. In

turn, we believe that there is a genuine issue of material fact as to whether the

continuing wrong doctrine applies in this case. Thus, the district court's award of

summary judgment to CIGNA was in error.

                                          II.

      Tiberi claims that the district court abused its discretion in refusing to

allow him to amend his complaint to add causes of action for promissory estoppel

and breach of fiduciary duty. "We review denial of plaintiff's motion to amend

for abuse of discretion." Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992).

Under this standard, the district court must be upheld "`if the proposed

amendment would not have withstood a motion to dismiss or otherwise failed to

state a claim.'" Id. (quoting Schepp v. Fremont County, 900 F.2d 1448, 1451

(10th Cir. 1990)). The district court, however, denied Tiberi's motion to amend on


                                         - 19 -
the grounds that the claims would have been time-barred, but never addressed

whether Tiberi had adequately stated a claim. We believe that the district court

was justified in denying the motion on the promissory estoppel claim, but was not

justified in doing so with regard to the breach of fiduciary duty claim.

                                         A.

      Tiberi's first proposed amendment alleged that he was entitled to relief

under the theory of promissory estoppel. This theory holds that "a promise which

the promisor should reasonably expect to induce action or forbearance on the part

of the promisee . . . and which does induce such action or forbearance is binding

if injustice can be avoided only by enforcement of the promise." Restatement

(Second) of Contracts § 90(1) (1981). It constitutes "a contract implied in law

where no contract exists in fact." Del Hayes and Sons, Inc. v. Mitchell, 230

N.W.2d 588, 593 (Minn. 1975). Consequently, this theory is applied in lieu of a

formal contract. See Planning and Design v. Santa Fe, 885 P.2d 628, 636 n.2

(N.M. 1994); see also Romero v. Mervyn's, 784 P.2d 992, 995 n. 1 (N.M. 1989).

Where, however, a contract exists between the two parties, the doctrine is

inapplicable. Frey v. Ramsey County Community Human Servs., 517 N.W.2d 591,

602 (Minn. App. 1994). Because the parties in this case entered into a formal

contract, we do not believe that promissory estoppel applies here. As a result, we

need not consider whether this cause of action was time-barred. Therefore, the


                                        - 20 -
district court's denial of the amendment should stand.

                                           B.

         Tiberi's second proposed amendment charges CIGNA with a breach of

fiduciary duty. The threshold inquiry in assessing this claim is whether a

fiduciary relationship actually existed between Plaintiffs and CIGNA. The New

Mexico Supreme Court has held that "[a] fiduciary relationship exists in all cases

where there has been a special confidence reposed in one who in equity and good

conscience is bound to act in good faith and with due regard to the interests of

one reposing the confidence." Swallows v. Laney, 691 P.2d 777, 785 (N.M.

1984).

         Here, Tiberi has presented sufficient evidence to prove that there exist

genuine issues of material fact regarding whether such a relationship existed. The

COMPAR contract required Tiberi to sell only CIGNA insurance. This

requirement made Tiberi an exclusive agent of CIGNA; thereafter, Tiberi's

success hinged solely on CIGNA's performance. The fact that Tiberi agreed to

enter such a contract indicates that he placed great trust in CIGNA's judgment.

Thus, his claim should be allowed to go forward.

         CIGNA, on the other hand, claims that it owed no fiduciary duty to

Plaintiffs and that the relationship between the parties was purely contractual. In

so arguing, CIGNA relies heavily on this court's decision in Dodd Ins. Servs. v.


                                          - 21 -
Royal Ins. Co. of America, 935 F.2d 1152, 1157 (10th Cir. 1991). In Dodd, the

plaintiff, an independent insurance agency doing business in Colorado, entered a

contract with an insurance company to sell that company's insurance. Plaintiff

alleged, inter alia, a breach of fiduciary duty when the company attempted to

terminate the contract. Id. at 1154. The district court granted summary judgment

to the company, and we affirmed that decision. In doing so, we rejected

plaintiff's claim that he placed great trust in defendant, reasoning that "plaintiffs

ran an independent insurance agency that made all of its own business decisions

and sold insurance policies for companies other than Royal." Id. at 1157.

Therefore, we held that "[s]uch a relationship does not give rise to a fiduciary

duty." Id.

       Defendants' reliance on Dodd is of no avail in the instant case. Unlike the

plaintiff in Dodd, Tiberi was bound to sell only COMPAR insurance.

Furthermore, CIGNA made the majority of the important business decisions for

Tiberi and the other COMPAR agents. In short, the COMPAR arrangement was

far more restrictive than the arrangement in Dodd. Thus, we find that Dodd is not

applicable in the instant case. 5


       5
        In support of its argument that its relationship with Tiberi was not fiduciary in
nature, CIGNA seeks to prove that Tiberi "circumvented the `purity' requirement" of the
contract by conducting non-COMPAR business with and without its consent. CIGNA's
Br. at 40. While it is true that CIGNA allowed Tiberi to retain such business, there is no
evidence that Tiberi did so without CIGNA's consent. Therefore, CIGNA's assertions are

                                          - 22 -
       Having decided that Plaintiffs' breach of fiduciary duty claim survives

review, we also find that the district court wrongly deemed this cause of action

time-barred. Applying the same reasoning in Section I-B, supra, we find that a

genuine issue of material fact exists regarding when Tiberi discovered that

CIGNA breached its fiduciary duty. As a result, Tiberi may be excused from

pursuing his claim at an earlier date. 54 C.J.S. Limitation of Actions § 196

(1987) (where "there is a fiduciary or confidential relationship between the

parties, failure to exercise reasonable diligence may be excused"). Therefore, we

find that Tiberi's breach of fiduciary duty claim would have withstood dismissal,

and that the district court abused its discretion in refusing to allow Tiberi to assert

this claim.

                                          III.

       CIGNA cross-appeals the district court's denial of its Motions for costs and

fees under Rule 54 and NMUTPA, respectively. Under Rule 54, "costs other than

attorney's fees shall be allowed as a matter of course to the prevailing party

unless the court otherwise directs . . ." Fed. R. Civ. P. 54(d)(1). Under

NMUTPA, N.M. Stat. Ann. 1987 § 57-12-10(C), the court shall award attorney's

fees and costs to a victorious defendant if it is shown that the NMUTPA

plaintiff's suit is "groundless." Because we find that the district court erred in



of minimal relevance to this issue.

                                         - 23 -
awarding summary judgment to CIGNA, we need not consider CIGNA's cross-

appeal. We thus vacate the district court's rulings on these issues, and dismiss

CIGNA's cross-appeal.

      For the reasons hereinabove stated, we REVERSE the district court's

award of summary judgment to CIGNA and its denial of Tiberi's motion to amend

his claim to add a cause of action for breach of fiduciary duty. We also AFFIRM

the district court's denial of Tiberi's motion to amend his complaint to add a

promissory estoppel claim. Finally, we VACATE the district court's decision

regarding CIGNA's Motions for costs and attorney's fees under Rule 54 and

NMUTPA. We thus remand this case to the district court for further proceedings

not inconsistent with this opinion.




                                        - 24 -
95-2044, 95-2051, Tiberi et al. v. CIGNA

Tacha, Circuit Judge, dissenting:



      I respectfully dissent. My review of the record in this case reveals no

disputed issues of material fact which would support the application of the

continuing wrong doctrine. I further find no basis in this record for finding that

the district court abused its discretion in refusing to allow Tiberi to amend his

complaint with regard to the claims related to a breach of fiduciary duty. I would

have affirmed the district court’s grant of summary judgment in favor of CIGNA

on these grounds for substantially the reasons given by the district court.
