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JOHN HANCOCK MUT. LIFE INS. CO. v. AMERFORD INTL.

September 28, 1993

JOHN HANCOCK MUTUAL LIFE INS. CO., Plaintiff,
v.
AMERFORD INTERNATIONAL CORP., Defendant.


KEENAN


The opinion of the court was delivered by: JOHN F. KEENAN

JOHN F. KEENAN, United States District Judge:

 Plaintiff has moved and Defendant cross-moved for summary judgment. For the reasons set forth below, Plaintiff's motion is granted and Defendant's cross-motion is denied.

 BACKGROUND

 Any amount that Hancock paid out beyond the CLL was deemed "Deficit," and the PFA required Hancock to reimburse Amerford for the Deficit. See Exhibit A to Mahon Aff., Section 4(o) (defining Deficit). Conversely, if the amount of claims paid out in any future month or year was less than the CLL, then "Margin" existed and Amerford was obligated to pay Hancock as additional premium any amounts over the CLL previously paid out (Deficit) plus expenses to the extent such amounts and expenses exceeded premium paid. See id. Section 4(n) (defining Margin). Thus, the PFA assured Amerford that Hancock would make all necessary payouts above the CLL, and that Amerford would not have to repay Hancock until Margin became available.

 Amerford renewed the PFA each year from 1985 through 1990, with each new contract year beginning on July 1 ("Policy Anniversary"). See id. Section 4(i) (defining "Contract Year"). The last Contract Year, which the PFA defines as beginning on a Policy Anniversary and ending on the date the PFA is terminated, see id. at Section 4(i)(2), began on July 1, 1990 and ended on September 30, 1990, when Amerford terminated the Agreement.

 Hancock contends that on the date of termination, it became entitled to collect as additional premium the lesser of the Margin for the last Contract Year or the total amount of Deficit that had not been previously recovered plus its expenses for the last Contract Year less any amounts due to Amerford. In mid-December 1990, Hancock sent Amerford a report setting forth the amount it owed Hancock under the relevant terms of the PFA for services during the last Contract Year: $ 101,028.00. See Mahon Aff. PP 15-26. Amerford refused to pay, claiming that the PFA requires no such payments. This lawsuit followed.

 DISCUSSION

 Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted if "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." It is axiomatic that the role of the court on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986).

 The movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the movant carries its initial burden, the party opposing the motion must then demonstrate a genuine dispute as to the material facts. See id. at 322; see also Greater Buffalo Press, Inc. v. Federal Reserve Bank, 866 F.2d 38, 42 (2d Cir.), cert. denied, 490 U.S. 1107, 104 L. Ed. 2d 1022, 109 S. Ct. 3159 (1989). The opposing party may not simply rely on its pleadings or on conclusory factual allegations. See Gray v. Darien, 927 F.2d 69, 74 (2d Cir.), cert. denied, 116 L. Ed. 2d 133, 112 S. Ct. 170 (1991). Rather, the opposing party must present specific evidence in support of its contention that there is a genuine dispute as to the material facts. See Celotex Corp. v. Catrett, 477 U.S. at 324. To demonstrate a "genuine dispute," the opposing party must come forward with enough evidence to justify a reasonable jury in returning a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

 In contract actions, "summary judgment is appropriate when the language of the contract is unambiguous, and reasonable persons could not differ as to its meaning." United States v. 0.35 of Acre of Land, 706 F. Supp. 1064, 1070 (S.D.N.Y. 1988). A court may not draw any inference or give any construction to the terms of a written contract that "may be in conflict with the clearly expressed language of the written agreement." Id.

 In this case, the Court finds the language of the PFA unambiguous. Section 9 II of the Agreement provides that

 
under the provisions of a Policy which permit [Hancock] to receive additional premium payments, [Amerford] agrees to make additional premium ...

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