MEI Int'l Inc., the plaintiff sought the professional advice of the defendant, a customs broker that "held itself out as an expert." 807 F. Supp. at 986. The court imposed a duty of care on the defendant because the plaintiff's specific request that the defendant act as an "honest broker," as it had done on two prior occasions, created a reasonable expectation between the parties that the plaintiff would rely on the defendant's professional advice. Id. Here, on the other hand, Heath negotiated with St. Paul on Farex's behalf. There is nothing in the record to suggest that St. Paul sought Heath's advice. Nor does the evidence in the record support a finding that Heath acted as a "broker" ("honest" or otherwise) on St. Paul's behalf.
Polycast is also distinguishable. In that case, the corporate defendants sold their subsidiary to the plaintiff. Polycast, 792 F. Supp. at 247. In denying defendants' summary judgment motion, the court found a special relationship between the parties because the defendants "repeatedly vouched for their projections" of the earnings of the subsidiary, had superior information throughout the negotiations, and formed a new corporation capitalized with over $ 100 million to effect the transaction. Id. at 270. In this case, by contrast, no evidence suggests, nor does St. Paul assert, that Heath made assurances, promises, or warranties to induce St. Paul to sign the Contract. No evidence in the record supports a finding that the negotiations for the Contract required any additional effort or investment by Heath to effect the transaction.
Lastly, St. Paul argues that the "long-term relationship between Kearney and Heath" gives rise to a "special relationship." (See Pl.'s Mem. Supp. Mot. Recons. at 14 (citing Thomas v. N.A. Chase Manhattan Bank, 1 F.3d 320 (5th Cir. 1993).) St. Paul's reliance on Thomas is misplaced. In that case, an investor, not a party to the case, hired defendant broker to locate an investment partner. Thomas, 1 F.3d at 322. Defendant contacted plaintiff, its business cohort on other projects, as a prospective partner for the investor. Id. at 327. Defendant sought a broker's fee from plaintiff and the investor. Id. at 324. Plaintiff formed a partnership with the investor based on defendant's assurances that the investor was a "highly-valued client"; the relationship, however, proved ruinous. Id. at 322.
Plaintiff sued defendant for negligent misrepresentation and the court found a "special relationship" between the parties based on their prior dealings and evidence in the record that defendant approached plaintiff for a "broker's fee." Id. at 327. The court held that defendant "was not directly opposite" to plaintiff in the transaction, but instead served as an "intermediary" between plaintiff and the investor. Id. at 324. Here, nothing in the record suggests that Heath served in any way as a broker on St. Paul's behalf or that Heath acted as an "intermediary" between St. Paul and Farex. Thus, Thomas is inapposite.
As the foregoing discussion has demonstrated, the cases finding a "special relationship" between parties with prior or ongoing dealings involve more intimate associations than ordinary business transactions. See, e.g., Brown v. Stinson, 821 F. Supp. 910, 915 (S.D.N.Y. 1993) (finding "special relationship" between defendant investment advisor and plaintiff because plaintiff relinquished control of her money to defendant and viewed defendant as her advisor); Mathis v. Yondata, 125 Misc. 2d 383, 480 N.Y.S.2d 173, 178 (Sup. Ct. Monroe County 1984) (denying defendants' motion for summary judgment on negligent misrepresentation claim because detailed promises, representations, and warranties made by defendants for purpose of guiding plaintiffs in business relationship created "special relationship" between parties); Coolite Corp. v. American Cyanamid Co., 52 A.D.2d 486, 384 N.Y.S.2d 808, 811 (App. Div. 1st Dep't 1976) (finding "intrinsically  more intimate association" than ordinary business relationship between parties because defendant required plaintiffs to form new company with solid capitalization before parties could enter distributorship agreement); see also supra pp. 14-16 (distinguishing MEI, Polycast, and Thomas).
Nothing in the record shows that Heath committed itself to any additional effort, expense, or warranty with regard to the Contract. As evidence of a special relationship, St. Paul offers: (1) Kearney's testimony concerning his prior dealings with Heath and their discussions about the Contract, and (2) MacKensie-Green's testimony regarding his relationship with Kearney. This evidence, however, does not fall within the rubric of essential factors required by caselaw to create a "special relationship."
The portion of Kearney's deposition relied upon by St. Paul indicates the following: (1) Kearney first spoke to Heath about the Contract in mid-October 1988; (2) Kearney requested additional loss information from Heath; (3) Playford told Kearney that the lineslip was "running very well, although some of the accounts still had a way to go" before executing the renewal slip; and (4) Kearney dealt primarily with Playford and MacKensie-Green at Heath, which was one of the top five brokers providing business to St. Paul. (See Pl.'s Objections July 1995 Report at 26-27 (citing Kearney Dep. at 13, 18-19, 1250, 1283-85 attached at Ex. B, at G and H to App. Exs. Pl.'s Objections July 1995 Report ("Kearney Dep.").) This testimony shows nothing more than an arm's length business transaction.
In its brief, St. Paul asserts that "MacKensie-Green and Kearney testified that they had a relationship of trust and reliance." (See Pl.'s Mem. Supp. Mot. Recons. at 14.) In fact, MacKensie-Green testified that he had a "good relationship" with Kearney. (See MacKensie-Green Dep. at 158.) The fact that the parties had a "good relationship" does not evidence that they enjoyed a special relationship more "intimate" than an ordinary business relationship.
Accordingly, the court finds nothing in the record to support the existence of a special relationship between St. Paul and Heath. Thus, even if the Court were to grant reargument, Heath would again prevail on its motion.
II. St. Paul's Motion for Reclarification
St. Paul asks the Court to clarify the portion of the December 1995 Opinion that states: "the Magistrate Judge found that Plaintiff failed to point to any duty owed to St. Paul by Heath." (See Pl.'s Mem. Supp. Mot. Recons. at 16 (citing St. Paul Fire and Marine Ins. Co., 1995 U.S. Dist. LEXIS 19847, 1996 WL 19028, at *9.) St. Paul claims that, without clarification, "Heath might argue that, in the context of St. Paul's fraud claim, this Court had determined that it would not have a duty to disclose omitted material facts to St. Paul . . . ." (Id.) The Court's December 1995 Opinion, however, made clear that its prior dismissal of St. Paul's negligence claim precluded St. Paul from pleading additional negligence claims. St. Paul Fire and Marine Ins. Co., 1995 U.S. Dist. LEXIS 19847, 1996 WL 19028, at *9. In no way does the December 1995 Opinion suggest that St. Paul's fraud claim is now dismissible. Thus, that portion of the December 1995 Opinion is self-explanatory and need not be clarified.
For the foregoing reasons, St. Paul's motions for reargument and clarification of its December 1995 Opinion are denied.
It Is So Ordered.
Dated: New York, New York
April 29, 1996
Mary Johnson Lowe
United States District Judge