The opinion of the court was delivered by: Castillo, District Judge.
MEMORANDUM OPINION AND ORDER
Richard Abrams sued Unity Mutual Life Insurance Company in this
diversity suit, alleging that Unity owes him commissions for the
sale of insurance policies under an oral agreement whereby Abrams
would help Unity develop and market a preneed insurance product.
Unity has filed a motion for summary judgment, which we grant for
the reasons stated below.
Plaintiff, Abrams, an Illinois resident, owns a number of
funeral-related businesses. Defendant, Unity, is a New York
domiciled insurance company. In or around 1991, Abrams and Unity
began discussing the possibility of a business arrangement
regarding preneed insurance. Preneed insurance involves
prearranging a funeral before a person's death and funding the
costs of the funeral with a life insurance policy. The
discussions and draft agreements between the two parties
contemplated that Abrams, who had expertise in preneed insurance,
would help Unity develop and market a preneed insurance program.
In exchange for Abrams' efforts, the parties considered a
compensation structure for Abrams which would include paying
gross commissions on the insurance products issued.
The discussions about the business arrangement were reduced to
a series of six draft agreements, none of which was signed by the
parties. However, Abrams was told by Unity that the parties would
"work on a handshake agreement." (R. 6, First Am.Compl. ¶ 10.)
Each new draft agreement had slightly different terms, but all of
the draft agreements had a number of common provisions. First,
each draft contained an integration clause that stated that any
agreement would "supercede all prior agreements, written or oral"
and that "[n]o amendment, waiver or modification of this
Agreement shall be valid unless in writing and signed by the
parties." (R. 9, Def.'s Statement of Facts ¶ 14.) Each draft also
contained a production requirement that stated the contract would
terminate if a certain amount of preneed insurance was not sold.
In addition to these provisions, each draft also contained open
items, as evidenced by blanks where terms were to be filled in
and by Abrams' handwritten edits and question marks on the
drafts. Abrams recognized that either party could have walked
away from any of the draft agreements.
Between 1991 and 1997, Abrams engaged in a number of activities
to benefit Unity, under what Abrams alleges was a valid oral
contract. Abrams developed preneed insurance products for Unity,
educated Unity employees and agents with respect to the preneed
insurance program, and marketed the products on behalf of Unity.
Specifically, Abrams' efforts included giving seminars to Unity
employees, visiting funeral homes on behalf of Unity to market
the products, preparing and sending newsletters to funeral homes,
and writing a sales manual for distribution to sales agents of
funeral homes. In addition, Abrams claims that he "introduced"
Unity to the preneed market, in part by making reference in his
newsletter, circulated to approximately 10,000 funeral homes, to
preneed insurance and Unity. Furthermore, Abrams wrote a monthly
column in a trade publication in which he allegedly promoted
preneed products generally. Finally, Abrams claims that he
introduced Tony Todd, an insurance agent, to Unity and was owed
commissions as a result of that introduction. Although Abrams
received a portion of the commissions he was owed by Unity from
roughly 1996 to the present, he contends that the commissions
were inadequate under the putative oral agreement.
Abrams filed suit, asking this Court to enforce the terms of an
oral agreement that, he says, was reached by the parties. Abrams
asserts breach of an oral contract, promissory estoppel, and
unjust enrichment. Currently pending before this Court is Unity's
motion for summary judgment. For the reasons that follow, the
motion is granted.
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue
for trial exists only when "the evidence is such that 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, 91 L.Ed.2d 202 (1986). The Court must view the evidence in
a light most favorable to the non-moving party and draw all
reasonable inferences in the non-movant's favor. Crim v. Bd. of
Educ. of Cairo School Dist. No. 1, 147 F.3d 535, 540 (7th Cir.
1998). However, if the evidence is merely colorable, is not
significantly probative, or merely raises "some metaphysical
doubt as to the material facts," summary judgment may be granted.
Liberty Lobby, 477 U.S. at 261, 106 S.Ct. 2505. "Summary
judgment is particularly appropriate in cases involving the
interpretation of contracts." Murphy v. Keystone Steel & Wire
Co., 61 F.3d 560, 564-65 (7th Cir. 1995).
Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct.
817, 82 L.Ed. 1188 (1938), this court must apply Illinois' choice
of law rules in diversity cases. In the context of contract law,
the Illinois Supreme Court applies the Second Restatement's "most
significant contacts" test. See CSX Transp., Inc. v. Chicago &
N.W. Transp. Co., 62 F.3d 185, 188 (7th Cir. 1995); Wildey v.
Springs, 47 F.3d 1475, 1481 (7th Cir. 1995). The most
significant contacts test directs courts to consider five factors
in determining choice of law in contract cases: (1) the place of
contracting; (2) the place of negotiations; (3) the place of
performance; (4) the location of the subject matter of the
contract; and (5) the domicile, residence, nationality, place of
incorporation and place of business of the parties. Curran v.
Kwon, 153 F.3d 481, 488 (7th Cir. 1998); Palmer v. Beverly
Enters., 823 F.2d 1105, 1109-10 (7th Cir. 1987); Obras Civiles,
S.A. v. ADM Sec., Inc., 32 F. Supp.2d 1018, 1021 n. 2 (N.D.Ill.
Unity argues that under the most significant contacts test, New
York law must govern this case.*fn1 We agree. First,
consideration of the place of negotiations favors New York. The
parties met in New York four or five times and only once in
Illinois. In addition, the draft agreements strongly suggest that
the location of the subject matter of the contract would be New
York and New Jersey; the final draft broadened the territory to
the Atlantic region. The other three factors are not of
assistance in the choice of law determination. The written drafts
were never signed and thus there was no place of contracting.
Furthermore, there is no suggestion by either party of where an
oral contract may have been executed. Similarly, it is not clear
where the place of
performance would have been, presumably the location could either
be the New York area because that is where the preneed insurance
products were to be marketed and sold or in Illinois because that
is where Abrams argues that correspondence and other work-product
was initiated. The record is not clear as to where the work that
Abrams claims to have done for Unity, e.g. holding seminars and
training sessions with Unity employees, visiting over one hundred
funeral homes, and preparing newsletters, was actually ...