NIBCO Inc v. Arthur J Gallagher Risk Management Services Inc

Filing 46

OPINION AND ORDER: Court GRANTS IN PART AND DENIES IN PART 38 Motion for Summary Judgment; DENIES 40 Motion for Summary Judgment. Count I of NIBCO's Complaint is DISMISSED. Signed by Judge Rudy Lozano on 3/29/2016. (tc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
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NIBCO INC.,
Plaintiff,
vs.
ARTHUR J. GALLAGHER RISK
MANAGEMENT SERVICES, INC.
Defendant.

NO. 3:14–CV-00457

OPINION AND ORDER
This matter is before the Court on the Motion for Summary
Judgment filed by Defendant Arthur J. Gallagher Risk Management
Services, Inc. (“Gallagher”) on July 2, 2015 (DE #38), and the
Motion

for

Summary

Judgment

filed

(“NIBCO”), on July 6, 2015 (DE #40).

by

Plaintiff

NIBCO

Inc.

For the reasons set forth

below, Gallagher’s Motion for Summary Judgment (DE #38) is GRANTED
IN PART AND DENIED IN PART.
(DE #40) is DENIED.

NIBCO’s Motion for Summary Judgment

Count I of NIBCO’s Complaint is DISMISSED.

BACKGROUND
For nearly 25 years, Gallagher provided insurance brokerage
services to NIBCO.
written

agreements.

During that time, the parties rarely executed
In

December

2012,

Gallagher

sent

NIBCO

invoices for services to be performed in the 2013 calendar year.

‐1‐ 

NIBCO paid those invoices in full without objection in January
2013.

In April 2013, NIBCO notified Gallagher that it had decided

to conduct a broker review, and invited Gallagher to participate.
Though the broker review process, NIBCO decided to move to a
different broker.

NIBCO notified Gallagher of its decision and

requested a refund of the fees it had paid in January 2013.
Gallagher refused to refund the fees.
two counts against Gallagher:
breach

of

implied-in-fact

NIBCO’s complaint alleges

unjust enrichment (Count I) and

contract

(Count

II).

Gallagher

maintains that the fees were fully earned under the parties’
implied-in-fact contract, and are not refundable.
NIBCO and Gallagher filed and fully briefed the instant
motions for summary judgment.

NIBCO’s motion seeks a refund of

the fees it paid to Gallagher in 2013 under either its breach of
implied-in-fact contract claim or its unjust enrichment claim, as
well as prejudgment interest.
NIBCO’s

breach

of

Gallagher’s motion argues that

implied-in-fact

contract

claim

and

unjust

enrichment claim are without merit.
FACTS
For the purposes of the parties’ motions for summary judgment,
the facts below are undisputed:
Gallagher
approximately
responsible

served
25

for

as

years.
consulting,

NIBCO’s
During

that

handling,

‐2‐ 

insurance
time,
placing

broker
Gallagher
and

for
was

servicing

insurance coverage for NIBCO.

These services were delivered to

NIBCO in three programs of coverage:
coverage,

and

management

property coverage, casualty

liability

coverage.

The

property

coverage had a renewal anniversary of July 1, the casualty coverage
had a renewal anniversary of December 31, and the management
liability coverage had a renewal anniversary of January 1.

The

process for renewing property coverage began in March or April,
leading up to the July 1 renewal date.

The process for renewing

casualty and management liability coverages generally took place
during the fall and winter months leading up to their renewal
dates.
provided

After the start of the next calendar year, Gallagher
NIBCO

certificates
insurance

with

of

invoices,

insurance.

claim

services

to

auto

identification

Gallagher
NIBCO,

also

including

cards,

provided

and

ongoing

answering

claim

questions and securing claim advocates on NIBCO’s behalf.
The

parties

rarely

reduced

their

having done so only in 2010 and 2012.
into two written agreements:

agreements

to

writing,

In 2012, the parties entered

(1) an agreement for specified “Risk

Management Services” (i.e., Gallagher’s brokerage services) for
which NICBO paid a fee of $157,106 (“2012 Service Agreement”), and
(2) an agreement for specified claims-related services for which
NIBCO paid a fee of $7,850 (“2012 Claim Agreement”) (together,
“2012 Agreements”).
standard form.

The 2012 Agreements were based on Gallagher’s

NIBCO paid the fees due under the 2012 Agreements

‐3‐ 

in January 2012, though the 2012 Agreements were not executed until
October 2012.
Both of the 2012 Agreements provide in relevant part:
I.

TERM AND TERMINATION
This Agreement shall commence on the Effective Date
for a term of one (1) year but may be terminated by
either party at any time upon thirty (30) days prior
written notice.

II.

OBLIGATIONS OF GALLAGHER
Gallagher will provide the services set out on
Exhibit A attached hereto (collectively, the
“Services”) to Client. . . .

III. OBLIGATIONS OF CLIENT
Client shall pay Gallagher an annual fee of . . .
for the Services, which such fee may be revised at
the time of renewal of this Agreement by the
execution of an amendment to this Agreement signed
by the parties hereto. . . .
(DE #43-3 at 1, DE #43-4 at 1.)

The 2012 Agreements include

disclosures that contained different language.
the 2012 Service Agreement provides:

Section IV(B) of

“Gallagher’s fees under this

Agreement shall be fully earned on the execution of this Agreement
(and any renewal thereof), and payable on invoicing. . . .”
#43-3 at 1 (emphasis added).)
2012

Claim

Agreement

(DE

In contrast, Section IV(B) of the

provides,

“Gallagher’s

fees

under

this

Agreement shall be earned on the Effective Date (and any renewal
thereof), and payable on invoicing. . . .” (DE #43-4 at 2 (emphasis
added).)

Neither party explains why these provisions differ.

On December 28, 2012, Gallagher submitted two invoices to
NIBCO for “Service Fee – Renewal – Service Fee” (“2013 Invoices”).
‐4‐ 

(DE #43-5, DE #43-6.) The first invoice itemized the “2013 Service
Fee” in the amount of $141,395 for the policy period of December
31, 2012, to December 31, 2013, and had an effective date of
December 31, 2012.

(DE #43-6.)

Gallagher charged a lower amount

for the 2013 Service Fee ($141,395) than the fee set forth in the
2012 Service Agreement ($157,106).

Neither party explains why the

fee for Gallagher’s brokerage services decreased for 2013.

The

second invoice itemized the “2013 Claim Fee” in the amount of
$7,850 for the policy period of January 1, 2013, to January 1,
2014, and had an effective date of January 1, 2013.

(DE #43-5.)

The amount of the 2013 Claim Fee was the same as the amount set
forth in the 2012 Claim Agreement.

NIBCO paid both invoices in

January 2013, without any dispute as to the amount or any objection
to the lack of the execution of new written agreements.

The

parties never executed any written agreements for services to be
performed in 2013.
In late March 2013, James Seitz (“Seitz”) assumed the position
of Corporate Risk Manager at NIBCO.

(DE #41-1 at 56.)

On April

16, 2013, Seitz met with Dirk Peterson (“Peterson”), Gallagher’s
“Client Executive” for the NIBCO account.

During that meeting,

Seitz informed Peterson that NIBCO would be conducting a “broker
review” to select a new broker, and that Gallagher would be invited
to participate in the review, along with other brokers.

Seitz

told Peterson that NIBCO was unhappy with its current relationship

‐5‐ 

with Gallagher and that, if Gallagher wanted to be selected as the
new broker, Gallagher would have to offer NIBCO more in both
services and pricing.

Seitz claims that he told Peterson that

NIBCO “intended to terminate its existing brokerage relationship
with Gallagher without waiting until the end of the 2013 calendar
year,” and that “the goal was to select the new broker in time for
that broker to assume responsibility for the services associated
with

placement

of

NIBCO’s

casualty

and

programs that were expiring at year end.”

management

liability

(Id. at 56-57.)

In an

email dated April 24, 2013, Peterson wrote to his boss Bob Gorman
(“Gorman”), “I don’t have a warm and fuzzy here at all. . . .

I’m

getting the feeling that [Seitz] wants to move the business before
even getting to know us.”

(Id. at 88.)

On April 25, 2013, Seitz emailed Peterson a letter inviting
Gallagher to participate in NIBCO’s broker review.
82.)

(Id. at 81-

NIBCO’s Request for Proposal (“RFP”) stated that the purpose

of the broker review was to “evaluat[e] brokers for the placement
of the casualty insurance program” with “a renewal date of January
1, 2014.”

(Id. at 83.)

The RFP stated that the target date for

“BOR’s [broker of record] completed for 2014 renewal process” was
July 1.

(Id.)

On May 22, 2013, Gallagher made a presentation to NIBCO for
the broker review. On May 24, 2013, Seitz orally informed Peterson
that Gallagher had not been selected as NIBCO’s broker.

‐6‐ 

The same

day, Gorman confirmed NIBCO’s decision to replace Gallagher in an
email to NIBCO’s Vice Chairman.

(Id. at 90.)

On June 24, 2013,

Gallagher employee Dylan Psotka sent an email to another Gallagher
employee stating in part that “Gallagher is no longer the broker
for NIBCO.”

(Id. at 93.)

On August 15, 2013, Seitz emailed Peterson and his bosses
(P.M. Gallagher and Gorman) that “NIBCO has made the decision to
move the risk finance broker services to [another broker],” noting
that he had “left [Peterson] a voicemail message with this news a
few weeks ago but never received a return call.”

(Id. at 7.)

Seitz requested that Gallagher “refund at least half of the 2013
service fee plus all of the claims management fee,” and expressed
his belief that a partial refund “is more than fair compensation
for the scope of work required of [Gallagher] during the first
half of the year.”

(Id.)

Later the same day, Peterson emailed

his bosses Gorman and P.M. Gallagher, stating in part:
Regarding what we’ve done this year, [NIBCO’s] risk
manager [(Seitz)] started early in the year and from the
get go did not engage us to do much of anything. [Seitz]
took over the property [coverage] directly with FM and
took away our claim involvement; it was clear from the
minute he started that his agenda was to replace us.
(Id. at 6.)

A few days later, Peterson emailed Gorman and P.M.

Gallagher, stating in part:
Once [Seitz] joined NIBCO, he essentially did not ask us
to do hardly anything at all. Also, our fee includes
the property [coverage] which has a 7/1 renewal date,
but [Seitz] took this over direct before the renewal

‐7‐ 

process started. [Seitz] also took over direct claim
mgt and therefore we did not get a chance to provide any
claim advocacy work. The reason I mention this is if we
say we earned 100% of our fee, they can continue to argue
that we are not deserving of the total amount.
(Id. at 10.)

Gallagher refused to refund any fees to NIBCO, and

this litigation ensued.
SUMMARY JUDGMENT STANDARD
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A genuine

issue of material fact exists 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).

Not every dispute between the

parties makes summary judgment inappropriate; “[o]nly disputes
over facts that might affect the outcome of the suit under the
governing

law

will

properly

preclude

the

entry

of

summary

judgment.” Id. To determine whether a genuine dispute of material
fact exists, the Court must construe all facts in the light most
favorable

to

the

non-moving

party

inferences in that party’s favor.
F.3d 355, 358 (7th Cir. 2010).

and

draw

all

reasonable

See Ogden v. Atterholt, 606
A party opposing a properly

supported summary judgment motion may not rely on allegations in
his own pleading, but rather must “marshal and present the court
with the evidence [it] contends will prove [its] case.”

‐8‐ 

Goodman

v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
“[I]nferences relying on mere speculation or conjecture will not
suffice.”

Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009)

(citation omitted). The party with the burden of proof on an issue
can obtain a summary judgment “only where the evidence is so onesided that it points inescapably” in the movant’s favor, and “every
reasonable jury” would decide that the movant has met its burden
of proof.

Thorne v. Member Select Ins. Co., 899 F. Supp. 2d 820,

824 (N.D. Ind. 2012) (citations omitted).

If the non-moving party

fails to establish the existence of an essential element on which
he bears the burden of proof at trial, summary judgment is proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

Where the

parties file cross-motions for summary judgment, the Court must
consider each motion, but despite the parties’ agreement that no
genuine issue of material fact exists, the Court can deny all
motions if the parties do not establish their rights to judgment
as a matter of law.

See Grabach v. Evans, 196 F. Supp. 2d 746,

747 (N.D. Ind. 2002).

DISCUSSION
NIBCO

asserts

two

alternative

claims

against

Gallagher:

unjust enrichment and breach of an implied-in-fact contract.
Fed. R. Civ. P. 8(d).
traditional

See

“Express and implied-in-fact contracts are

contracts,

while

constructive

‐9‐ 

contracts,

‘also

referred to as quantum meruit, contract implied-in-law, [unjust
enrichment], or quasi-contracts[,]’ are not contracts at all.”
Zoeller v. E. Chicago Second Century, Inc., 904 N.E.2d 213, 220
(Ind. 2009) (citation omitted, brackets in original).1

The Court

will address NIBCO’s breach of implied-in-fact contract claim
first.
Breach of Implied-in-Fact Contract Claim
Count II asserts that NIBCO is entitled to a refund of fees
because Gallagher breached the parties’ implied-in-fact contract.
A contract implied in fact refers to the class of
obligations which arises from mutual agreement and
intent to promise, when the agreement and promise have
simply not been expressed in words. Unlike implied in
law or quasi-contracts, which do not arise from the
parties’ express agreement but which are implied by law
to remedy a party’s wrongful enrichment, a contract
implied in fact arises out of acts and conduct of the
parties, coupled with a meeting of the minds and a clear
intent of the parties in the agreement.
Nationwide Ins. Co. v. Heck, 873 N.E.2d 190, 197 n.1 (Ind. Ct.
App. 2007) (citations omitted).
treated

like

an

express

An implied-in-fact contract is

contract,

“apart

from

the

critical

difference in the manner of proving the parties’ manifestations of
their mutual promises.”

ViaStar Energy, LLC v. Motorola, Inc.,

1

Where, as here, “neither party raises a conflict of law issue in
a diversity case, the federal court simply applies the law of the
state in which the federal court sits.”
Citadel Group Ltd. v.
Washington Reg’l Med. Ctr., 692 F.3d 580, 587 n.1 (7th Cir. 2012)
(quotation omitted). Thus, the Court will apply Indiana law in
deciding these issues.
‐10‐ 

No. 1:05-cv-1095, 2007 WL 101810, at *6 n.2 (S.D. Ind. Jan. 9,
2007) (citing F. McConnell and Sons, Inc. v. Target Data Sys.,
Inc., 84 F. Supp. 2d 961, 975 (N.D. Ind. 1999)).

Thus, “[a]n

implied-in-fact contract requires the same elements as express
contracts, offer, acceptance and consideration; however, it is the
conduct

of

the

parties

that

expresses

agreement.”

Garwood

Packaging, Inc. v. Allen & Co., Inc., No. IP 98–1058, 2002 WL
31924512, at *19 (S.D. Ind. Dec. 26, 2002) (citation omitted).
NIBCO’s breach of implied-in-fact contract claim relies in
part on the 2012 Agreements. When interpreting a written contract,
Indiana courts
apply the four-corners rule, which requires that as to
any matter expressly covered in the written contract,
the provisions therein, if unambiguous, determine the
terms of the contract. Words used in a contract are to
be given their usual and common meaning unless, from the
contract and the subject matter thereof, it is clear
that some other meaning was intended.
[Indiana courts] interpret a written contract by reading
the contract as a whole, and . . . attempt to construe
the language so as to not render any words, phrases, or
terms ineffective or meaningless.
Thus, [the court]
must accept an interpretation of the contract which
harmonizes its provisions.
If the language of the
contract is unambiguous and the intent of the parties is
discernible from the written contract, the court must
give effect to the terms of the contract.
DLZ Indiana, LLC v. Greene County, 902 N.E.2d 323, 327-28 (Ind.
Ct. App. 2009) (citation omitted).

The 2012 Agreements are to be

construed against Gallagher as the drafter of the agreements.

‐11‐ 

See

Cmty. Anesthesia & Pain Treatment, L.L.C. v. St. Mary Med. Ctr.,
Inc., 26 N.E.3d 70, 74 (Ind. Ct. App. 2015).
Gallagher asserts that the parties had an implied-in-fact
contract in 2013, and that the contract had the same terms as the
2012 Agreements.

“When one serves another under a contract for a

year’s service and holds over, continuing in the same service after
the expiration of the year, there is a presumption . . . that the
parties assent to the continuance through another year of the
contract of service.”

Akron Milling Co. v. Leiter, 107 N.E. 99,

103 (Ind. Ct. App. 1914); see 6 Ind. Law Encyc. Contracts § 5 (Jan.
2016) (“Where the parties have been operating under an express
contract, and continue to conduct themselves after the expiration
of that contract as if it were still in force, an implied contract
with the same terms as the express contract exists between them.”); 
17 C.J.S. Contracts § 6 (2015) (“Where, without more, an agreement
expires by its terms and the parties continue to perform as before,
an implication arises that they have mutually assented to a new
contract containing the same provisions as the old.”).

The

existence of an implied-in-fact contract is supported by NIBCO’s
and Gallagher’s longstanding business relationship, during which
they rarely executed written agreements.

Moreover, when Gallagher

issued the invoices for the “2013 Service Fee” and “2013 Claim
Fee,” indicating that each fee was “Service Fee – Renewal – Service
Fee,” NIBCO paid both invoices in full without objection.

‐12‐ 

In response, NIBCO addresses the 2012 Service Agreement and
the 2012 Claim Agreement separately.

NIBCO argues that the terms

of the 2012 Service Agreement did not extend to an implied-in-fact
contract
maintains

for

Gallagher’s

that

two

brokerage

provisions

of

services
the

2012

in

2013.

Service

NIBCO

Agreement

required the execution of a renewal or amended agreement in order
to be extended.

Section IV(B) states that “Gallagher’s fees under

this Agreement shall be fully earned on the execution of this
Agreement (and any renewal thereof), and payable on invoicing.”
(DE #43-3 at 1.)

Section III states that NIBCO “shall pay

Gallagher an annual fee of $157,106 for the Services [(“2012
Service Fee”)], which such fee may be revised at the time of
renewal of this Agreement by the execution of an amendment to this
Agreement signed by the parties hereto.”

(Id.)

NIBCO maintains

that the 2012 Service Agreement was never renewed because the 2013
Service Fee differed from the 2012 Service Fee, and the parties
never executed any amendment or renewal of the agreement for 2013.
Gallagher maintains that no language in the 2012 Service
Agreement

supports

NIBCO’s

a

new

agreement was required as a condition precedent to renewal.

“A

contractual

be

condition

argument

precedent

is

that

a

execution

condition

of

that

must

performed before the agreement of the parties becomes a binding
contract or that must be fulfilled before the duty to perform a
specific

obligation

arises.”

L.H.

‐13‐ 

Controls,

Inc.

v.

Custom

Conveyor,

Inc.,

974

(citation omitted).

N.E.2d

1031,

1050

(Ind.

Ct.

App.

2012)

Gallagher argues that Section IV(B) clearly

and unambiguously provides that its fees were “fully earned” upon
the execution of the 2012 Service Agreement “and any renewal
thereof.”

It insists that the only logical interpretation of this

provision is that Gallagher fully earned the 2012 Service Fee upon
the execution of the 2012 Service Agreement, and fully earned the
2013 Service Fee upon the renewal of the agreement in 2013.
NIBCO responds that Section IV(B) is ambiguous and can be
interpreted as requiring not merely “execution of this Agreement,”
but

also

“execution

of

.

.

.

(any

renewal

thereof)”

Gallagher earned the fees for the renewal period.

before

(DE #45 at 3.)

NIBCO insists that Section IV(B) be construed against Gallagher as
the drafter of the agreement.

“A contract term is not ambiguous

merely because the parties disagree about the term’s meaning.
Rather, language is ambiguous only if reasonable people could come
to different conclusions about its meaning.” Simon Property Group,
L.P. v. Michigan Sporting Goods Distributors, Inc., 837 N.E.2d
1058, 1070 (Ind. Ct. App. 2005) (citation omitted).

The Court

finds that Section IV(B) is ambiguous because reasonable people
could come to different conclusions about whether it requires the
execution of only the 2012 Service Agreement, or execution of both
the 2012 Service Agreement and a renewal of that agreement. Where,
as

here,

the

contract

language

‐14‐ 

is

subject

to

more

than

one

construction, “the intention of the parties is a question of fact
and resort to extrinsic evidence is proper.”

Stoneware, Inc. v.

TecServ, Inc., No. 1:07-cv-1188, 2009 WL 5175193, at *7 (S.D. Ind.
Dec. 21, 2009) (citing Anderson v. Horizon Homes, Inc., 644 N.E.2d
1281, 1290 (Ind. Ct. App. 1995)).
As evidence of the parties’ intent regarding Section IV(B),
Gallagher points to NIBCO’s payment of the 2013 Service Invoice
without requesting a written renewal of the 2012 Service Agreement,
and NIBCO’s failure to object to Gallagher’s performance of some
services in 2013.

Gallagher also cites the fact that the parties

did business together for years without written agreements, and
rarely executed agreements throughout their course of dealing.
(DE

#44

at

12-13.)

But

this

evidence

does

not

necessarily

demonstrate the parties’ intent to renew the 2012 Service Agreement
without

executing

a

written

renewal.

It

just

as

easily

demonstrates an intent to return to doing business together without
a written agreement.

Moreover, because Gallagher drafted the 2012

Service Agreement, the ambiguity in Section IV(B) must be construed
against it.

See St. Mary Med. Ctr., Inc., 26 N.E.3d at 74.

The

Court therefore finds that Section IV(B) required the execution of
a written renewal of the 2012 Service Agreement in order to renew
that agreement.
Gallagher also maintains that there is only one logical
interpretation of Section III:

that the 2012 Service Fee was set

‐15‐ 

for the annual term of service and not subject to modification
until the time of renewal, and that the parties’ consent to the
alteration of the 2013 Service Fee “was to be evidenced by the
execution of an amendment to the agreement.”

(DE #44 at 9.)

Gallagher insists that this interpretation does not equate to a
condition precedent.
The Court finds Section III’s provision that the “fee may be
revised at the time of renewal of this Agreement by the execution
of an amendment to this Agreement signed by the parties hereto” to
be clear and unambiguous.

Indeed, to find that Gallagher’s

revision of the fee amount did not require a signed amendment would
improperly render this phrase “ineffective or meaningless.”
Indiana, 902 N.E.2d at 327.

DLZ

It is undisputed that Gallagher

charged NIBCO different amounts for the 2012 Service Fee and the
2013 Service Fee. It is also undisputed the parties never executed
an amendment to the 2012 Service Agreement.

Because Section III

provides that a revision of the fee is to be executed in a signed
amendment to the 2012 Service Agreement, and the parties did not
sign such an amendment, they did not renew the 2012 Service
Agreement.2

2

 In its reply brief, Gallagher argues that even if the decrease in
the amount of the service fee in 2013 required an amendment of the
2012 Service Agreement, NIBCO waived this condition by paying the
2013 Service Fee without objection, and thereby renewed the 2012
Service Agreement. (DE #44 at 10-11.) Because NIBCO has not had
the opportunity to respond to this argument, and the Court has

‐16‐ 

NIBCO claims that “[b]ecause the express language of the 2012
Service Agreement did require a formal, written signed agreement
to be renewed, the [C]ourt may not infer the existence of an
implied-in-fact contract as to the parties’ relationship arising
from NIBCO’s payment of the 2013 Service Fee and must instead
analyze that relationship under the doctrine of implied-in-law
contracts and unjust enrichment.”

(DE #45 at 4.)

NIBCO cites

Nationwide Insurance Company v. Heck for the proposition that
“[w]hile there is no written agreement signed by the parties, the
validity of a contract is not dependent on the signature of the
parties, unless such is made a condition of the agreement.”
N.E.2d at 196 (citation omitted, emphasis added).

873

In Nationwide,

the court found that an implied-in-fact contract existed between
the parties based an unsigned email setting forth terms of the
parties’ agreement.

The court explained that an implied-in-fact

contract “arises out of the acts and conduct of the parties,
coupled with a meeting of the minds and a clear intent of the
parties in the agreement.”

Id. at 196 n.1.

“Some form of assent

to the terms is necessary,” and “may be expressed by acts which
manifest acceptance.”

Id. at 196.

While Nationwide argued that

already found that the 2012 Service Agreement was not renewed based
on other grounds, the Court will not address this argument. See
Nationwide Ins. Co. v. Central Laborers' Pension Fund, 704 F.3d
522, 527 (7th Cir. 2013) (“[i]t is well established that arguments
raised for the first time in a reply brief are waived”) (citation
omitted).
‐17‐ 

it never entered into the agreement, the court found no evidence
that the parties’ signatures were a condition of the agreement,
and determined that the conduct of Nationwide’s agent demonstrated
the existence of the agreement.

Id. at 197.

Nationwide does not address the issue of whether parties can
create an implied-in-fact contract after the expiration of a
written agreement that required a signed amendment for its renewal.
Neither party cites any case law addressing this issue, nor was
the Court able to find such case law in Indiana.3

However, Indiana

3
  The District of Minnesota has addressed the issue of whether

parties created a new implied-in-fact contract after a written
agreement expired. In Webb Candy, Inc. v. Walmart Stores, Inc.,
the parties’ written agreement provided that it could not be
extended except by a formal, signed document.
No. 09–CV–2056,
2010 WL 2301461, at *6 (D. Minn. June 7, 2010). The parties had
not signed such document, but continued to do business after the
written agreement expired. The court explained:
[W]hen parties continue to perform under an expired
contract, their conduct can give rise to a new, impliedin-fact contract.
But the fact that parties to an
expired contract continue to deal with one another does
not mean that they necessarily create a new contract —
or, if they do, that every term of the expired contract
becomes part of the new contract. The presumption of a
new, implied-in-fact contract may be rebutted with
evidence that the parties did not intend to create a new
contractual relationship or did not intend to be bound
by certain terms of the expired contract.
Id. at *8 (citations omitted).
Notwithstanding the expired
agreement’s provision that it could not be extended except by a
signed document, the court considered the parties’ conduct and
intent after the agreement had expired. Id. at *10 (denying motion
to dismiss because the court could not find as a matter of law
that an implied-in-fact contract existed where the parties’ course
of conduct changed after the written agreement expired).
‐18‐ 

law recognizes that “circumstances may have arisen, or acts may
have been done which, according to the dictates of reason and
justice,

and

the

ordinary

course

of

dealing,

or

the

common

understanding of men, show a mutual intention to contract, in which
case an implied-in-fact contract arises.”

F. McConnell and Sons,

84 F. Supp. 2d at 975 (citation omitted).

“A contract can be

implied in fact when the conduct of the parties infers a meeting
of the minds, even in the absence of an express contract.”

L.I.

Combs & Sons, Inc. v. Indiana/Kentucky Reg’l Council of Carpenters,
No. 2:09CV150, 2010 WL 4553664, at *4 (N.D. Ind. Nov. 3, 2010)
(citations omitted).

“All that is required to render a contract

enforceable is reasonable certainty in the terms and conditions of
the

promises

made,

including

by

whom

certainty in all terms is not required.”

and

to

whom;

absolute

Zukerman v. Montgomery,

945 N.E.2d 813, 819 (Ind. Ct. App. 2011) (citation omitted).
The parties’ conduct following the expiration of the 2012
Service Agreement demonstrates that an implied-in-fact contract
existed for Gallagher’s brokerage services in 2013.

See Paper

Mfrs. Co. v. Rescuers, Inc., 60 F. Supp. 2d 869, 883 (N.D. Ind.
1999) (determining as a matter of law that a contract existed where
it was “clearly evidenced by the course of dealings between the
parties”). The evidence of an offer, acceptance, and consideration
are undisputed.

The parties do not dispute the types of services

Gallagher had provided to NIBCO over their 25-year relationship

‐19‐ 

(often without any written agreement), or that Gallagher intended
to continue to provide such services to NIBCO in 2013.

They do

not dispute that Gallagher sent NIBCO an invoice for the 2013
Service Fee for the policy period of December 31, 2013 to December
31, 2014, and that NIBCO paid the 2013 Service Fee in full without
objection in January 2013.
While NIBCO argues that Gallagher performed virtually none of
the services for which it had paid in January 2013, the undisputed
evidence demonstrates that the bulk of Gallagher’s services were
to occur later in the year.

Historically, Gallagher began its

renewal services for NIBCO’s property coverage in March or April,
and its renewal services for NIBCO’s casualty and management
liability coverages in the fall.

Evidence also indicates that it

was not until after Seitz became NIBCO’s risk manager in late March
2013 that NIBCO “took away” the renewal of property coverage and
claim services from Gallagher.

(See DE # 41-1 at 6 (asserting

that Seitz “took over property [coverage] . . . and took away
[Gallagher’s] claim involvement”), 10 (asserting that Seitz took
over

property

coverage

“before

the

renewal

[Seitz] also took over direct claim mgt”).)
decision

to

terminate

Gallagher’s

brokerage

process

started.

NIBCO’s subsequent
services

further

indicates that the parties had intended to create an implied-infact contract in early 2013.

Based on this undisputed evidence,

the Court finds that an implied-in-fact contract existed for

‐20‐ 

Gallagher’s brokerage services in 2013, after the expiration of
the 2012 Service Agreement (“Implied Service Contract”).
Turning to the 2012 Claim Agreement, NIBCO admits that “the
relationship arising from NIBCO’s payment of the 2013 Claim Fee
may be subject to the doctrine of implied-in-fact contracts” (DE
#45 at 4 n.3), and that “the 2012 Claim Agreement arguably was
renewed for 2013 pursuant to the doctrine of implied-in-fact
contracts.”

(Id. at 10 n.4.)

As NIBCO concedes, it arguments

against the extension of the terms of the 2013 Service Agreement
do not apply to the 2012 Claim Agreement.

(Id.  at 4 n.3.)

The

2012 Claim Agreement states that Gallagher’s fee “shall be earned
on the Effective Date (and any renewal thereof).”

(DE #43-4 at

2.) Gallagher issued an invoice for the 2013 Claim Fee, indicating
it was a “Renewal” with an “Effective Date” of January 1, 2013.
(DE #43-5.)

NIBCO paid that invoice in full without objection.

Moreover, the amount of the 2013 Claim Fee was the same as the fee
set forth in the 2012 Claim Agreement.

The Court therefore finds

that a second implied-in-fact contract existed for Gallagher’s
claim services in 2013 based on the parties’ renewal of the 2012
Claim Agreement (“Implied Claim Contract”).
Implied-In-Fact Contracts’ Termination Provision
Having found that two implied-in-fact contracts existed in
2013, the Court turns to the issue of whether these contracts
included a right of refund upon termination.

‐21‐ 

Both NIBCO and

Gallagher rely on the termination provision of the 2012 Agreements
as evidence of the parties’ intent regarding the implied-in-fact
contracts.

Section I of the 2012 Agreements states, “[t]his

Agreement shall commence on the Effective Date for a term of one
(1) year but may be terminated by either party at any time upon
thirty (30) days written notice.”

(DE #43-4, DE #43-4.)

The Court will first address whether Section I allowed a party
to terminate the 2012 Agreements midterm.
the

parties

did

not

intend

for

either

Gallagher asserts that
party

to

cancel

the

agreements midterm, but rather, intended for the agreements to
provide for an annual term of service. As evidence of the parties’
intent, Gallagher points to the annual fees, and the lack of any
mention of a return of fees in the 2012 Agreements.

Gallagher

also notes that during the parties’ business relationship of nearly
25

years,

Gallagher’s

services

were

ongoing

and

continuously

provided, carrying over from one year into the next.

According to

Gallagher, Section I merely provided a mechanism for either party
to terminate the agreement at the end of the term by providing
written notice.
NIBCO argues that Gallagher’s interpretation of Section I
nullifies the phrase “at any time,” and conflates the words
“termination” and “renewal.”

NIBCO asserts that if the parties

had intended Section I merely to allow parties to avoid renewing
the

agreement,

they

would

have

‐22‐ 

used

different

language

than

“termination” was permitted “at any time” upon 30 days’ written
notice.

The Court finds that Section I clearly allows termination

of the agreements “at any time,” rather than at the end of the
term, as Gallagher suggests.

See, e.g., Tech. Marketing Corp. v.

Hamlin, Inc., 974 F. Supp. 1224, 1227 (W.D. Wis. 1997) (applying
Indiana law to find “nothing ambiguous” about a termination clause
that

“plainly

provides

that

either

party

can

terminate

the

agreement by giving thirty days written notice”); Comm. Maint.,
Inc. v. Motorola, Inc., 761 F.2d 1202, 1210 (7th Cir. 1985)
(applying Indiana law to find that a clause that “[e]ither [party]
may terminate this agreement, with or without cause, upon thirty
days written notice to the other party” was correctly enforced
“according to its clear and express terms”).

Nothing in Section

I suggests that notice of termination only applies to the renewal
of the agreement.

Therefore, the Court finds that NIBCO had the

right to terminate the implied-in-fact contracts midterm.4

4

 NIBCO also asserts that the fact that the 2012 Agreements provide

for the upfront payment of annual fees does not mean that the
parties intended an annual term of service.
NIBCO points to
Section I, which allows termination “at any time,” as evidence
that they did not presuppose an annual term.
NIBCO analogizes
Gallagher’s position to an employee who contends that his
employment was fixed for a year because his compensation was
expressed in terms of an annual salary. Indiana courts have held
that such employment was at will, despite the fact that the
employee’s salary was stated in annual terms. Bee Window, Inc. v.
Turman, 716 N.E.2d 498 (Ind. Ct. App. 1999); Butts v. Oce-USA,
Inc., 9 F. Supp. 2d 1007 (S.D. Ind. 1998). The Court finds these
cases to be inapposite. As explained in Bee Window, “[s]tating
compensation and other benefits in annual terms is both common and
‐23‐ 

Gallagher maintains that, even if NIBCO could terminate the
agreements

midterm,

termination.

it

Gallagher

is

not

insists

entitled

to

that

terms

the

Agreements do not imply a right to refund.

a

refund

upon

of

2012

the

The 2012 Agreements do

not contain any provision explicitly entitling NIBCO to a refund.
Moreover, both of the 2012 Agreements provide that the fees are
“earned” on a particular date.
NIBCO does not cite any evidence that the 2012 Agreements, or
the subsequent implied-in-fact contracts, explicitly include a
right to a refund. Rather, NIBCO asserts that Section I implicitly
provides for a refund of fees upon termination.

According to

NIBCO, its right to terminate the agreements would be “nonsensical”
and “meaningless” unless NIBCO was entitled to a refund of all
unearned, prepaid fees.
nature

of

terminated

Section
the

I,

(DE #41 at 10.)
NIBCO

agreements

maintains

midyear,

Noting the bilateral

that

Gallagher

if

Gallagher

would

have

had
been

required “under basic principles of fairness” to refund the entire
fee paid by NIBCO, reduced only by whatever sums correlated to
services performed by Gallagher before termination.

(Id.)

NIBCO

does not cite any case law for this principle.

convenient, but does not necessarily mean that the employment is
for a definite period of one year.” 716 N.E.2d at 501. Here, in
contrast, the 2012 Agreements do not merely state Gallagher’s fees
in annual terms. Rather, each agreement clearly states that it
has “a term of one (1) year,” and that the fee was “earned” on a
particular date and was payable on invoicing. 
‐24‐ 

NIBCO also asserts that the 2012 Agreements are ambiguous as
to Gallagher’s duty to refund fees to NIBCO upon termination.
According to NIBCO, the general rule of commercial reasonableness
dictates that the 2012 Agreements be construed to entitle NIBCO to
a refund of unearned fees upon termination because to do otherwise
would

result

in

reasonableness

a

windfall

provides

contracts. . . .

gain

“guidance

to

Gallagher.

for

Commercial

interpreting

ambiguous

If one reading produces a plausible result for

which parties might be expected to bargain, that reading has a
strong

presumption

in

its

favor

producing an unlikely result.”

as

against

another

reading

Utica Mut. Ins. Co. v. Vigo Coal

Co., Inc., 393 F.3d 707, 711 (7th Cir. 2004) (citations and
internal quotations omitted).

But this presumption only comes

into play when interpreting ambiguous agreements.
additional
contract

obligations
does

not

(reasonableness
accurately

[])

into

describe

“[I]nferring
the

the

responsibilities of courts in interpreting contracts.

parties’

duties

and

Rather, the

proper posture for the court is to find and enforce the contract
as it is written and leave the parties where it finds them.”

Rothe

v. Revco D.S., Inc., 148 F.3d 672, 675 (7th Cir. 1998) (citation,
internal quotations and brackets omitted).
NIBCO cites no case law holding that a right to terminate
implies an entitlement to a refund, and the Court was unable to
locate any.

While not cited by either party, Seko Air Freight,

‐25‐ 

Inc. v. Transworld Systems, Inc., 22 F.3d 773 (7th Cir. 1994),
sheds light on this issue. In that case, Seko sued a debt collector
to recover an amount it prepaid for the right to send accounts for
collection over two years.

Eight months into the agreement, Seko

terminated the collection agreement without sending any accounts
to debt collector, and asked for its money back.

The termination

clause of the agreement allowed Seko to terminate with written
notice, but did not mention any right to a refund.

Like NIBCO,

Seko argued that the presence of a termination clause implied an
entitlement
provision

to

for

a
a

refund,
refund.

although
The

the

Seventh

agreement
Circuit

lacked

rejected

any
this

argument, noting that there are “many other situations in which
one side’s ability to walk away from a transaction does not
establish an entitlement to a refund.”
examples).

Id. at 774 (listing

The Seventh Circuit held that “there is no general

rule that a right to terminate implies a right to a refund; the
question,

rather,

is

how

best

to

understand

this

particular

contract.” Id. Under the terms of the collection agreement, “Seko
was entitled, but not obliged, to use” the defendant’s services;
“the termination clause ensured that if Seko used some of the
services, it could quit at any time.

Understanding that the

[prepayment] pays for the option to use [the defendant’s] services

‐26‐ 

shows that the payment is not refundable in full.”

Id. at 775

(affirming summary judgment in favor of the debt collector).5
Because there is no general rule that a right to terminate
implies a right to refund, the Court will look to the implied-infact contracts to determine whether NIBCO was entitled to a refund
upon termination.

In interpreting the Implied Claim Contract, the

Court looks to the terms of the 2012 Claim Agreement.

The 2012

Claim Agreement states that Gallagher’s fee was “earned” on the
Effective Date, allows either party to terminate the agreement “at
any time,” and does not refer to any right to a refund.

These

provisions, taken together, indicate that there was no right to a
refund upon termination in the 2012 Claim Agreement.

Because no

provision in the 2012 Claim Agreement required any refund upon
termination, the Court will not imply one for the Implied Claim
Contract.
Interpreting the Implied Service Contract is more complex.
As explained above, the Court has found that the Implied Service
Contract was not based on a renewal of the 2012 Service Agreement,
but rather, was based on the parties’ conduct and intent.

“[T]he

terms of a contract not reduced to writing are a matter to be
interpreted by the trier of fact.”

Paper Mfrs. Co., 60 F. Supp.

5

 Because Seko sought reimbursement of the full amount, the Seventh
Circuit did not address whether any portion of the payment would
be refundable. Seko Air Freight, 22 F.3d at 775.

‐27‐ 

2d at 883 (citing Ballew v. Town of Clarksville, 683 N.E.2d 636,
639 (Ind. Ct. App. 1997)).

Here, the parties concede that Section

I applies to the Implied Service Contract, and agree that this
termination provision contains no explicit right to a refund.
Gallagher argues that Section IV(B) also applies to the
Implied Service Contract, and that NIBCO is not entitled to a
refund because Gallagher’s fees were “fully earned” upon renewal.
NIBCO asserts that if Section IV(B) applies, Gallagher never earned
its fees because the parties never executed a renewal agreement.
As explained above, the Court finds that Section IV(B) required
the parties to execute a written renewal of the 2012 Service
Agreement in order to renew that agreement.

Because the parties

did not do so, they did not extend Section IV(B) to the Implied
Service Contract.
Gallagher also points to the parties’ course of conduct as
demonstrating that NIBCO had no right to a refund under the Implied
Service Contract.

NIBCO’s payment of the 2103 Service Invoice

without objection and its acceptance of services in 2013 allegedly
demonstrated its intent to proceed in accordance with the parties’
usual course of dealings, which Gallagher asserts did not include
a right to a refund upon termination.

NIBCO maintains that the

termination provision (Section I) implies a right to a refund, and
notes a lack of extrinsic evidence regarding the parties’ intent
regarding refunds.

(See DE #41 at 10-11 (asserting that the

‐28‐ 

parties never discussed the meaning of the termination provision
in the 2012 Agreements or attempted to exercise a termination
provision prior to 2013) (citing DE #41-1 at 53-54).)

The Court

finds that the evidence of the terms of the Implied Service
Contract is not “so one-sided that it points inescapably” in either
NIBCO’s or Gallagher’s favor.

See Thorne, 899 F. Supp. 2d at 824.

Rather, genuine issues of material fact exist as to whether the
terms of the Implied Service Contract included a right to a refund
upon termination.6
Voluntary Payments Doctrine
Gallagher also argues that NIBCO is not entitled to a refund
based on the voluntary payments doctrine.

The voluntary payments

doctrine states that “money voluntarily paid in the face of a
recognized uncertainty as to the existence or extent of the payor’s
obligation to the recipient may not be recovered, on the ground of
‘mistake,’ merely because the payment is subsequently revealed to
have exceeded the true amount of the underlying obligation.”

Time

Warner Entm’t Co., L.P. v. Whiteman, 802 N.E.2d 886, 892 (Ind.

6

At least one other jurisdiction has found that where a written
agreement had expired, “[w]hether [the parties] intended to be
bound by a new contract with the same terms presents a factual
question, and, except in the clearest cases, the question is for
the finder of fact to resolve.”
City of Scottsbluff v. Waste
Connections of Nebraska, Inc., 809 N.W.2d 725, 740 (Neb. 2011)
(finding that after a written agreement expired, the parties
operated under an implied-in-fact contract with different terms). 

‐29‐ 

2004) (citation omitted).

Gallagher maintains that NIBCO’s claim

for a refund fails as a matter of law because the 2012 Agreements
unambiguously provided that fees were earned on renewal, and NIBCO
voluntarily paid the fees in 2013.
NIBCO responds that the voluntary payments doctrine does not
apply here because there was no “recognized uncertainty as to the
existence or extent” of NIBCO’s obligation to Gallagher.

Id.

The

Court agrees. See CSX Transp., Inc. v. Appalachian Railcar Servs.,
Inc., 509 F.3d 384, 387 (7th Cir. 2007) (voluntary payments
doctrine “has no application to the payment of a claim that neither
party regards as doubtful”) (citation omitted).

There is no

evidence that the amount of Gallagher’s fees was in dispute when
NIBCO paid them in January 2013.

Moreover, there is no evidence

of a “recognized uncertainty” regarding NIBCO’s ability to obtain
a refund when NIBCO paid those fees.
evidence

that

NIBCO

knew

it

had

a

Gallagher presents no

right

of

refund

and

was

intentionally relinquishing this right by paying the fees in 2013.
For these reasons, the Court finds that the voluntary payments
doctrine does not apply here.
Timing of NIBCO’s Notice of Termination
The parties raise an issue of fact regarding the timing of
NIBCO’s notice of termination.7

Gallagher asserts that Section I

7

 Neither party raises a legal argument relating to the timing of

NIBCO’s notice of termination.

However, the Court recognizes that
‐30‐ 

required NIBCO to provide written notice of termination, and that
NIBCO did not do so until August 2013.

NIBCO responds that

Gallagher received notice of termination when it received NIBCO’s
RFP in April 2013.

The RFP stated that its purpose was to select

the broker responsible for placement of NIBCO’s casualty insurance
program with a renewal date of January 1, 2014.

According to

NIBCO, due to the lead time required to place such a program, the
RFP necessarily informed Gallagher that the broker selected would
need to begin performing work by the fall of 2013.

Gallagher

argues that the RFP did not indicate that NIBCO intended to
terminate Gallagher’s employment before the end of 2013, as it
stated that the new broker would take effect for only the casualty
program (one of three programs Gallagher serviced for NIBCO).
Because NIBCO invited Gallagher to participate in the broker review
process, Gallagher allegedly believed that NIBCO might select
Gallagher to continue its role as broker after 2013.
NIBCO
termination
Gallagher.

also

argues

based

on

that
oral

Gallagher

had

communications

actual
between

notice
NIBCO

of
and

See Goodman Jewelers, Inc. v. Walnut Brewery, Inc.,

No. 1:10-cv-01392, 2011 WL 3667714, at *5 (S.D. Ind. Aug. 22, 2011)
(“where actual notice indisputably occurred, minor deviations from

if the Implied Service Contract is found to include a right to a
refund upon termination, the timing of NIBCO’s notice of
termination may impact the amount of a refund of Gallagher’s
unearned fees. 
‐31‐ 

the contract terms governing notice do not render the notice
defective”).

NIBCO points to evidence of a meeting between Seitz

and Peterson on April 16, 2013, in which they discussed NIBCO’s
dissatisfaction with the parties’ relationship, and NIBCO’s intent
to conduct a broker review.

While NIBCO asserts that Seitz

notified Peterson of the termination at this meeting, an April 24,
2013 email from Peterson to his boss does not indicate a clear
understanding that the relationship between NIBCO and Gallagher
had terminated, but rather, the possibility that the relationship
would end.

Peterson states that, “I don’t have a warm and fuzzy

here at all . . . I’m getting the feeling that [Seitz] wants to
move the business before even getting to know us.”

(DE #41-1 at

88.)
NIBCO also asserts that Seitz told Peterson in May 2013 that
Gallagher had not been selected as NIBCO’s new broker.

Gallagher

responds that when Seitz informed Peterson that NIBCO had not
selected Gallagher, he did not indicate that NIBCO was terminating
their relationship midterm.

However, a June 2013 email between

two Gallagher employees stated that Gallagher was no longer NIBCO’s
broker.

Based on this and other conflicting evidence, the Court

finds that the parties raise a genuine issue of material fact as
to the timing of NIBCO’s notice of termination.

‐32‐ 

Unjust Enrichment Claim
NIBCO’s Complaint also alleges a claim of unjust enrichment
against Gallagher.

An unjust enrichment claim “is a legal fiction

invented by the common law courts in order to permit a recovery .
. . where the circumstances are such that under the law of natural
and immutable justice there should be a recovery.”
N.E.2d

at

220

(citation

omitted).

To

prevail

Zoeller, 904
on

an

unjust

enrichment claim, a plaintiff “must establish that a measurable
benefit

has

circumstances

been

conferred

that

the

on

the

defendant’s

without payment would be unjust.”

defendant

retention

of

under
the

such

benefit

Id. (citation omitted).

NIBCO

claims that it conferred a measurable benefit on Gallagher by
prepaying the fees for Gallagher’s services in 2013. NIBCO asserts
that Gallagher performed virtually no services in exchange for the
2013 fees, and that NIBCO gave Gallagher 30 days’ notice of
termination.
Gallagher argues that NIBCO’s unjust enrichment claim fails
because an unjust enrichment claim is not actionable where there
is a contract between the parties.
unjust

enrichment

is

not

See id. at 221.

cognizable

where

contract governs the parties’ behavior.

an

A claim for

implied-in-fact

See CoMentis, Inc. v.

Purdue Research Found., 765 F. Supp. 2d 1092, 1102 (N.D. Ind. 2011)
(“where an express contract governs the parties’ behavior, a claim
for unjust enrichment is not cognizable.”) (citations omitted); F.

‐33‐ 

McConnell and Sons, 84 F. Supp. 2d at 975 (noting that “the
difference between express and implied-in-fact contracts is merely
semantic, and there is no legally significant difference between
[them]”).

NICBO responds that its unjust enrichment claim was

pled in the alternative to its implied-in-fact contract claim.
A plaintiff seeking recovery for breach of contract may plead
unjust enrichment in the alternative “because this theory allows
for the possibility of recovery even if the court finds that no
contract existed or that a contract existed but was unenforceable.”
CoMentis, 765 F. Supp. 2d at 1102.

However, “[o]nce a valid

contract is found to exist, quasi-contractual relief is no longer
available.”

Id. at 1103 (citation omitted).

The Court has found

that implied-in-fact contracts existed for Gallagher’s brokerage
services and claim services in 2013.

Therefore, NIBCO’s claim for

unjust enrichment is no longer available. NIBCO’s claim for unjust
enrichment (Count I) is DISMISSED.
Prejudgment Interest
NIBCO seeks prejudgment interest on its alleged damages.

The

Court has found that NIBCO is not entitled to a refund of the 2013
Claim Fee under the Implied Claim Contract, and has dismissed
NIBCO’s claim for unjust enrichment.

The Court has also found

that a genuine issue of material fact exists as to whether the
Implied

Service

Contract

includes

‐34‐ 

a

right

to

a

refund

upon

termination.

For these reasons, NIBCO’s request for prejudgment

interest is DENIED.

CONCLUSION
For the reasons set forth above, Gallagher’s Motion for
Summary Judgment (DE #38) is GRANTED IN PART AND DENIED IN PART.
NIBCO’s Motion for Summary Judgment (DE #40) is DENIED.

Count I

of NIBCO’s Complaint is DISMISSED.

DATED:

March 29, 2016

/s/ RUDY LOZANO, Judge
United States District Court

‐35‐