(3d Cir. 1990) ("unsupported allegations in [a plaintiff's] memorandum and pleadings are insufficient to repel summary judgment"); Fed. R. Civ. P. 56(e) (requiring non-moving party to "set forth specific facts showing that there is a genuine issue for trial.") "In other words, the inquiry involves determining, whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Pitak v. Bell Atlantic Network Svcs., Inc., 928 F. Supp. 1354, 1366 (D.N.J. 1996) (citations omitted).
The Amended Complaint asserts two fraud claims against the defendants -- one for fraudulent inducement and one for fraudulent concealment.
The elements of a claim for common law fraud in New Jersey are: (1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon; and (5) resulting damages.
Gennari v. Weichert Co. Realtors, 288 N.J. Super. 504, 535, 672 A.2d 1190 (App. Div. 1996); see also McDonald's Corp. v. Miller, 1994 U.S. Dist. LEXIS 13243, 1994 WL 507822, at *9 (D.N.J. 1994), aff'd, 60 F.3d 815 (3d Cir. 1995); Raul Intern. Corp. v. Sealed Power Corp., 586 F. Supp. 349, 357 (D.N.J. 1984) (citations omitted). In addition, allegations of fraud must be proved by clear and convincing evidence. Vanguard Telecommunications, Inc. v. South New England Tel. Co., 722 F. Supp. 1166, 1187 (D.N.J. 1989), aff'd, 900 F.2d 645 (3d Cir. 1990); Fox v. Mercedes-Benz Credit Corp., 281 N.J. Super. 476, 484, 658 A.2d 732 (App. Div. 1995). Thus, to defeat a defendant's motion for summary judgment, a plaintiff must meet his or her "burden of coming forward with evidence which could lead a jury to find clear and convincing proof of fraud . . . ." Moffatt Enterprises, Inc. v. Borden Inc., 807 F.2d 1169, 1174-75 (3d Cir. 1986) (citations omitted).
Statements as to future or contingent events, to expectations or probabilities, or as to what will or will not be done in the future, do not constitute misrepresentations, even though they may turn out to be wrong. Chatlos Systems, Inc. v. National Cash Register Corp., 479 F. Supp. 738, 748-49 (D.N.J. 1979); aff'd in part, rev'd in part, 635 F.2d 1081 (3d Cir. 1980). Similarly, statements that can be categorized as "puffery" or "vague and ill-defined opinions" are not assurances of fact and thus do not constitute misrepresentations. Diaz v. Johnson Matthey, Inc., 869 F. Supp. 1155, 1165 (D.N.J. 1994); see also VT Investors v. R&D Funding Corp., 733 F. Supp. 823, 838 (D.N.J. 1990) (statements that company in which plaintiffs invested would soon generate positive cash flow in excess of $ 60,000 per month characterized by court as non-actionable "puffery" because it was an emphatic statement of opinion); see also Schott Motorcycle Supply, Inc. v. American Honda Motor Co., Inc., 976 F.2d 58, 63-64 (1st Cir. 1992) (court held that representations concerning a commitment to the motorcycle market and the future profitability of plaintiff's franchise were merely opinions of future events and could not be justifiably relied upon as "facts"); Vaughn v. General Foods Corp., 797 F.2d 1403, 1411 (7th Cir. 1986) (court rejected a franchisee's efforts to sustain a claim for fraudulent non-disclosure against its franchisor, based on the latter keeping confidential its intention to divest its unprofitable Burger Chef operations, while representing that it intended to build operation into a fast food contender). Indeed, in order to constitute a fact, a statement's content must be susceptible of "exact knowledge" at the time it is made. Id.; see also Notch View Assoc., A.D.S. v. Smith, 260 N.J. Super. 190, 202-03, 615 A.2d 676 (Super. Ct. Law Div. 1992) (statement as to future event has been held to constitute actionable misrepresentation when "the defendant [has] . . . no intention at the time he makes the statement of fulfilling the promise.")
In this case, the purported fraudulent statements that plaintiffs attribute to CIGNA P&C in the Amended Complaint are replete with predictions of future events -- such as "relationship would be long lasting", "agreement one in 'perpetuity'", "COMPAR part of CIGNA's future plans", "COMPAR would take CIGNA into the twenty-first century and beyond"); see also Martin Cert. Exs. 21 & 24 (stating, for example, that CIGNA P&C and its personnel were committed to the future success of the COMPAR program, that COMPAR was the "program for the 1990's and beyond," and that the COMPAR program was like a "marriage.") In short, virtually all of the statements plaintiffs recount use words such as "will," "plan" or "expect" to indicate their future orientation. However, predictions of the future, which were believed when made, cannot serve as a basis for a fraud claim just because they subsequently turn out not to be true.
In addition, "[a] contractual provision flatly contradictory to prior oral assurances should cause most people -- and particularly experienced, knowledgeable business people -- to pause." Elias Bros. Restaurants, Inc. v. Acorn Enterprises, Inc., 831 F. Supp. 920, 924 (D. Mass. 1993) (fraud claim rejected where precise terms of contract prevented reasonable reliance on prior oral statements); see also Pierce v. Atchison, Topeka and Santa Fe Railway Co., 65 F.3d 562, 569-70 (7th Cir. 1995) (party's reliance on oral statements inconsistent with written contract unreasonable as matter of law). Indeed, in this case, each Full Service Agency Agreement contained a merger or integration clause which explicitly nullified all prior oral and written agreements between the agency and CIGNA P&C. Supp. App. Ex. 2. The applicable provision of the 1990 Agreement reads as follows:
11. This Agreement is a Full Service Agency Agreement between you and us. Any previous agency agreement, either between you and us, whether oral or written, is now void. The Agreement may be amended only in writing and the amendment must be signed by you and us.