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Multifamily Captive Group, LLC v. Assurance Risk Managers

May 27, 2009

MULTIFAMILY CAPTIVE GROUP, LLC, A MARYLAND CORPORATION; AND SAMANTHA GUMENICK, AN INDIVIDUAL, PLAINTIFFS,
v.
ASSURANCE RISK MANAGERS, INC., A COLORADO CORPORATION; LISA ISOM, AN INDIVIDUAL; CALIFORNIA APARTMENT ASSOCIATION, A CALIFORNIA ASSOCIATION, DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on cross motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56. Defendant California Apartment Association ("CAA" or "defendant") moves for summary judgment on plaintiffs' breach of contract, fraud, conspiracy, and detrimental reliance claims. Plaintiffs Multifamily Captive Group ("MCG") and Samantha Gumenick (collectively "plaintiffs") move for summary judgment on their unjust enrichment/ restitution claim, asserting that there is no genuine issue of material fact as to whether CAA received a benefit from plaintiffs' efforts, this benefit was received at the expense of plaintiffs, and it is unjust for defendants to retain this benefit. For the reasons set forth below, defendant's motion is GRANTED in part and DENIED in part, and plaintiffs' motion is DENIED.

BACKGROUND*fn1

A. The Parties

Plaintiff MCG is a Maryland corporation offering insurance programs tailored to the needs of multifamily and real estate property owners and managers. (First Amended Complaint ("FAC"), filed May 15, 2008, at ¶¶ 1, 10.) According to the Complaint, MCG "brings together experts in residential and commercial real estate with authorities in insurance program management." (Id. ¶ 10.) Plaintiff Gumenick, the sole operator and manager of MCG, has been licensed by the California Department of Insurance to sell insurance in California since August 2006. (Id. ¶¶ 2, 54.) MCG has never been issued a license by the California Department of Insurance. (UF ¶ 56.)

B. Pre-Contractual Dealings

In early 2003, defendant CAA, an association of owners, managers, and vendors of rental property located throughout California, began considering providing property and general liability insurance to its members. (Decl. of Vicki Walter in Supp. of Mot. for Summ. J. ("Walter Decl."), filed Feb. 3, 2009, at ¶ 3; UF ¶ 1.) Ralph Eidem, CEO of Commercial Associates, introduced Gumenick to CAA. (Id. ¶¶ 2-3.) Initially, CAA, through Vicki Walter ("Walter"), CAA's Senior Vice President of Operations, and Gumenick discussed the possibility of establishing a captive insurance program. (UF ¶ 12; Walter Decl. ¶ 5.) These discussions continued through November 2004 (UF ¶ 13), at which point CAA began considering a sponsored insurance program for property and general liability insurance instead of a captive insurance program. (Id. ¶ 14.) Gumenick participated in discussions with CAA regarding this sponsored program from November 2004 to August 2005. (Id. ¶ 15.) Around August 2005, CAA began considering different options for a sponsored property and general liability program. (Id. ¶ 16.) Gumenick remained part of these discussions as well. (Walter Decl. ¶ 7.)

As of December 2005, CAA had not adopted a program and began contemplating selecting a broker or agency that would work with CAA to provide a property and general liability insurance program for CAA members. (UF ¶ 18.) CAA continued discussions with Gumenick regarding this latest option through April 2006 (Walter Decl. ¶ 8) and, according to plaintiffs, Gumenick worked during this period on an insurance program conforming to the new criteria. (Decl. of Samantha Gumenick in Opp'n to CAA's MSJ and in Supp. of Pls.' Mot. for Partial Summ. J. ("Gumenick Decl."), filed Apr. 2, 2009, at ¶ 3.) Gumenick's work during this time included a "detailed evaluation" of a Property and Liability Program, including an analysis of different insurance providers.

(Id.; Ex. 112 to Dep. of Vicki Walter ("Walter Dep."), Mar. 10, 2009.) According to CAA, it decided to place this project on hold in April 2006 (Walter Decl. ¶ 8), and Gumenick admitted during her deposition that the captive property and general liability programs she discussed with CAA "never came to fruition." (Dep. of Samantha Gumenick ("Gumenick Dep."), Dec. 12, 2008, at 46:10-15; see also id. at 52:2-6 (Gumenick's testimony stating that she didn't know whether the sponsored program was ever implemented).)

According to CAA, MCG began working with CAA on finding a replacement program for workers' compensation insurance in August 2006. (Walter Decl. ¶ 9.) However, plaintiffs contend that these discussions began "months earlier," (UF ¶ 27), and that Gumenick continued to work on the property and liability programs "through the first part of 2007" in addition to the workers' compensation program, (Gumenick Decl. ¶¶ 3, 7).

C. The Alleged Oral Contract

According to plaintiffs, "[o]n or about October 1, 2006, Plaintiffs and CAA, by its Senior Vice President of Operations, Vicki Walter, entered into an oral agreement whereby Plaintiffs would serve as the exclusive broker for the creation, sale and marketing of the Insurance Programs." (Pls.' Opp'n to Def.'s MSJ ("Opp'n"), filed Apr. 2, 2009, at 4; Ex. 101 to Decl. of Tom Bannon in Supp. of Def.'s MSJ ("Bannon Decl."), filed Feb. 3, 2009.) Gumenick testified to the following in her deposition:

In the property and liability, when they told me that I was chosen as the one, or however they said it, in my paraphrasing they had selected me from several people, and I was the only one they had selected and that I was then going to act on their behalf as the sole broker, exclusive broker, for their property and liability. For workers' comp, I specifically went and asked them---because they had stated to me several time I was the exclusive broker. I had asked them again to confirm that, and they did.

(Gumenick Dep., at 176:25-177:10.)

The parties agree that there were no discussions regarding compensation and that plaintiffs would not be entitled to any compensation for any programs not implemented. (UF ¶¶ 24-25.)

D. Post-Contractual Dealings

Plaintiffs contend that they "continuously worked on CAA's behalf to establish the Insurance Programs" between October 2006 and May 2007. (Opp'n at 6.) On February 8, 2007, Gumenick met with and presented a proposal to Walter and Tom Bannon, CEO of CAA. (UF ¶ 28; see also Ex. B to Walter Decl. (agenda for the meeting between Gumenick, Walter, and Bannon).) According to CAA, the primary purpose of the meeting "was to discuss the workers' compensation insurance marketplace and a potential workers' compensation insurance program for CAA members." (Walter Decl. ¶ 10.) It was during the meeting that Bannon first told Gumenick that CAA planned to establish its own insurance brokerage agency for the purpose of providing insurance products to its members. (UF ¶ 30.)

Following this meeting, on March 7, 2007, Gumenick prepared an "Insurance Enrollment Marketing Plan." (Ex. 115 to Walter Dep.) Notes taken by Walter on April 23, 2007 indicate that Gumenick was working with several insurance carriers, including Cypress Arrowhead and Zenith, among others, in formulating her proposals. (Ex. 101 to Dep. of Thomas Bannon ("Bannon Dep."), Mar. 9, 2009.) On approximately May 10, 2007, Gumenick made another presentation, along with Risk Partners and Zenith Insurance. (Walter Decl. ¶ 11; see also Ex. 13 to Gumenick Decl. (email thanking Gumenick for Gumenick's "team's" presentation).)

E. Isom's Involvement

Co-defendant Lisa Isom, insurance broker and president of co-defendant Assurance Risk Managers ("ARM"), first became involved with CAA in April 2007. (Ex. 101 to Bannon Dep.) Walter's notes from April 23, 2007 indicate that Walter had a conversation with Isom and that Walter planned to initiate conversations between Gumenick and Isom. (Id.) On April 26 2007, Isom sent the following email to Gumenick, to which Walter was copied.

I apologize for not calling you early today, however, was just getting ready to call you and actually had a telephone call with Vicki [Walter]. We have had several very positive conversations over the past few days and I would like to discuss all possibilities that you are working on, as well as, some ideas we have been working on as well.

As I explained yesterday late afternoon, I would like to get up-to-date with you and what you have been workings [sic] on and certainly do not want to disturb those ideas or plans, however, I would like to continue my efforts to provide this an as option to the Association [CAA]. It is exciting and I want you to feel assured that my intention is to not leave you out of this option.

When you have some time, please give me a call and we can discuss in more detail. If you would feel more comfortable in calling me ...


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