the ADC was a clear, unambiguous, enforceable contract. Id. at
1308. The Court examined (1) the contract itself, (2) the
parties' pre-execution conduct and (3) the parties'
post-execution conduct. Id. at 1309. The Court noted that the
negotiation of the ADC took well over a year, and that both sides
were represented by counsel throughout the negotiations. Id.
Construing the express language of the ADC, the Court concluded
that "Travelers owns the money deposited under the ADC as a
secured creditor. Any interest earned on the money after it was
deposited is the sole and exclusive property of Travelers." Id.
at 1316. This conclusion did not end the Court's inquiry. Noting
that the U.C.C. did not alter the Court's interpretation of the
ADC, the Court next examined the parties' conduct. Id. at 1317.
The Court found that the parties' pre-execution conduct evidenced
that Travelers had rejected several attempts by Briscoe to
include an interest component into the ADC. Id. at 1323.
Further, the Court found that in late 1989, William F. Kelly
distributed a Briscoe internal memorandum in which he proposed
several ways to interpret the ADC that would allow Briscoe to
increase its recovery. Id. That memorandum, coupled with
Briscoe's silence with respect to interest until 1989, led the
Court to conclude that Briscoe was making "an after-the-fact
attempt . . . to earn more money under the ADC." Id. The Court
found that "the post-execution conduct of the parties
demonstrates that after the Program dragged on far longer than
anyone anticipated, Briscoe began to search for ways to maximize
its share." Id. at 1325.
The Court also analyzed the trial testimony of the parties.
Id. at 1325-1332. The Court found the testimony of Briscoe's
two witnesses, Howard Loeffler, former Travelers employee, and
Gabriel Calafati, Briscoe President, not credible. Id. at
1325-1330, In contrast, the Court found the testimony of
Travelers' witness, Mark Larner, the ADC's scrivener, "highly
convincing." Id. at 1332. Larner testified, among other things,
that the ADC follows the U.C.C. and was designed to articulate
Travelers' rights after Briscoe's default under the Loan and
Security Agreement. Id. at 1330. The Court held that Briscoe
could not imply terms into the ADC based on the unsupported
contention that the driving force behind the ADC was Travelers'
fear of third-party claimants.*fn4 Id. at 1332.
The Court held that Travelers, as the exclusive owner of all
money deposited under the ADC, had no duty to accrue interest on
Briscoe's behalf. Id. at 1334. The Court based its holding on,
among other things, the following factual and legal conclusions:
(1) the ADC language and meaning was clear and unambiguous; (2)
the ADC created an agency relationship whereby Briscoe was
Travelers' agent; and (3) Travelers was the owner of all of the
collateral under the ADC. Id.
The Agency Opinion disposed of Briscoe's claim seeking interest
on the Program proceeds deposited with Travelers. The Agency
Opinion also set forth the Court's conclusions that the ADC was
the clear and complete expression of the parties' agreement, and
that the parties' relationship would be governed by the terms of
the ADC. As such, this Court now sets forth Briscoe's claims that
survived the Agency Opinion.
Briscoe's Complaint seeks the following relief:
(1) Count One — specific performance, forcing
Travelers to (a) fund the Program, (b) support
of its construction claims, (c) make a full
accounting to Briscoe of Program proceeds deposited,
(d) pay Briscoe its Entitlement under the Program and
(e) indemnify and defend Briscoe against third-party
(2) Count Two — injunctive relief, awarding the
relief requested in Count One, and further enjoining
Travelers' wrongful acts, such as the interference
with Briscoe's contract claims and the failure to
provide Program funding.
(3) Count Three — tortious interference with
prospective economic advantage, awarding compensatory
damages, punitive damages and costs of suit.
(4) Count Four — accounting, ordering Travelers to
make a full accounting to Briscoe because Travelers
failed to make the accountings over the life of the
Program as specified in the ADC.
(5) Count Five — breach of contract by improper
application of receipts and failure to release
Briscoe's money, ordering Travelers to make a full
accounting and pay Briscoe its Entitlement along with
the award of compensatory damages and costs of suit
because Travelers (a) failed to repay non-program
loans as funds became available, (b) did not properly
earn interest on net proceeds and (c) failed to
estimate and pay Briscoe its Entitlement.
(6) Count Six — breach of contract by failing to
credit interest to Briscoe and improper charging of
interest against Briscoe, awarding the relief
requested in Count Five because Travelers failed to
credit Briscoe with 15% interest on its estimated
Entitlement and improperly allowed interest to accrue
on the non-program loans instead of repaying them as
proceeds became available.
(7) Count Seven — breach of contract by improper
classification of expenses, awarding the relief
requested in Counts Five and Six because Travelers
improperly classified various expenses as non-program
loans when they actually were Program advances.
(8) Count Eight — failure to deal in good faith,
awarding the relief requested in Counts Five, Six and
Seven because Travelers did not deal with Briscoe
fairly, particularly with respect to funding the
Program and interfering with the settlement of
Briscoe's contract claims.
(9) Count Nine — breach of contract by failing to
pursue construction litigation, awarding the relief
requested in Counts Five, Six, Seven and Eight, and
indemnification against third-party claimants because
Travelers unilaterally cut funding of the pursuit of
various Briscoe contract claims.
(10) Count Ten — exercise of domination and control
over Briscoe, awarding the relief requested in Count
Nine because Travelers' refusal to act in good faith
reduced Briscoe's Entitlement and destroyed its
chance for continuance as a viable entity upon
Briscoe's Complaint essentially presents three legal causes of
action: (1) breach of contract; (2) interference with prospective
economic advantage; and (3) failure to act in good faith and fair