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First State Staffing Plus9/6/2005
ion included Hartstein's statement that if First State continued to pay "there wouldn't be a problem." When reviewed in context, however, that statement is ambiguous at best. Passwaters interpreted it to mean that continued payments would keep the policy in force. But as with other instances, Passwaters does not remember Hartstein using the term cancellation. Moreover, Passwaters remembers the conversation revolving around TIM's insistence that she sign the personal note. Hartstein denies discussing the personal note with Passwaters; instead, he asserts that they discussed First State's payment of the owed amounts and avoiding ending up in court. According to Hartstein, his reference to avoiding a "problem" related to avoiding the involvement of a collections agency or a lawsuit, not cancellation. Left with only Hartstein's ambiguous statement that "there won't be a problem," First State has simply failed to carry its burden to prove that Hartstein intentionally misled First State.
Furthermore, First State also has failed to prove its claim for fraudulent inducement in that it has failed to prove any harm. TIM could not fraudulently induce First State to pay past due premiums on services rendered-premiums that First State admits it owed and was obligated to pay. Implicit in First State's fraud claim is the contrary suggestion that, if it had known it could not avoid cancellation by making the partial payments it did in May, June and July 2000, it would not have made those payments. Yet, First State's own actions disprove that suggestion. For example, even after First State knew the workers' compensation policy had been canceled as of May 30, 2000, it paid off the remaining balance of the past due premium on that policy and obtained a new workers' compensation insurance policy through TIM. I find it reasonable to infer that First State recognized that it probably could not have obtained a new policy through TIM without paying any amount still outstanding on the Montgomery Mutual policy.
In sum, First State has failed to prove that Montgomery Mutual's agent committed any form of fraud. It has not proven that it was injured by any statements or silence of TIM, that TIM concealed from or misled First State as to any material facts, or that TIM intended to induce First State to act or not act by doing so. Since First State has not proven that TIM committed fraud, Montgomery Mutual cannot be liable for fraud.
IV. CONCLUSION
For the reasons stated herein, the Court finds in favor of Defendant Montgomery Mutual and against Plaintiff First State. An order will be entered consistent with this Memorandum Opinion.
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