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October 4, 1999


The opinion of the court was delivered by: Castillo, District Judge.


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.


I. Standard of Review

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).

II. Choice of Law

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. 1999).

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 ...

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