Fincke v. United States

• Decision Date: 24 March 1982
• Docket Number: No. 470-80C.,470-80C.
• Citation: 675 F.2d 289
• Parties: D. Dennison FINCKE v. The UNITED STATES.
• Court: U.S. Claims Court

675 F.2d 289

D. Dennison FINCKE v. The UNITED STATES.

No. 470-80C.

United States Court of Claims.

March 24, 1982.

Michael B. L. Hepps, Philadelphia, Pa., atty. of record for plaintiff.

Stephen G. Anderson, with whom was Acting Asst. Atty. Gen. Stuart E. Schiffer, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, SKELTON, Senior Judge, and NICHOLS, Judge.

SKELTON, Senior Judge, delivered the opinion of the court:

This is a suit by D. Dennison Fincke, the plaintiff, to collect the sum of $300,000 from the United States for an alleged breach of an express contract by the United States Embassy in Athens, Greece, to pay him an insurance commission or, in the alternative, to collect such amount for an alleged breach of a contract implied in fact to pay him such commission or, in the further alternative, for the recovery of the reasonable value of his services by reason of an alleged implied quantum meruit contract to act as a consultant for the Embassy in connection with its purchase of a group hospitalization, surgical and medical insurance policy for its Greek employees. The defendant denies the existence of any contract relationship, express or implied, with the plaintiff, and moves to dismiss his suit. The case is before us on cross motions for summary judgment. We hold for the defendant. The facts are as follows:

The plaintiff, D. Dennison Fincke, was an independent insurance broker in Athens, Greece, in December, 1977, when he was requested by the then Counselor of the United States Embassy for Administrative Affairs in Athens, Mr. James J. Soldow, to come to the Embassy for a meeting to discuss group insurance benefits for foreign national employees of the Embassy. Theretofore, beginning on January 29, 1974, such employees had been provided group hospitalization, surgical and medical insurance under Contract No. S-23FA-1537 (the "Plan") by The Hospital Service Plan (HSP), a non-profit corporation of Kent, England, that was organized and doing business under the laws of the United Kingdom. Efforts to improve the Plan were undertaken from time to time by both the Embassy and the so-called "Committee of Ten" representing the foreign national employees. The proposed meeting between the plaintiff and Soldow was in furtherance of these efforts.

Pursuant to the request, the plaintiff went to the Embassy and conferred with Soldow about insurance that would provide better coverage and more benefits for the Greek employees. At the meeting, the plaintiff said that he needed a broker-of-record letter from the Embassy before he would begin work on locating a new group insurance plan for the Embassy. Soldow asked the plaintiff to draft such a broker-of-record letter. The plaintiff did so and submitted the letter to Soldow for his signature. Soldow was authorized by the Department of State in Washington to sign the letter and he signed it on February 2, 1978. It is as follows:

EMBASSY OF THE

UNITED STATES OF AMERICA

Athens, Greece

February 2, 1978

TO WHOM IT MAY CONCERN:

Please be advised that the Fincke Insurance Agency has been selected to act as Broker of record in connection with our group insurance program. You are instructed to deal only with this agency regarding your proposals for group Insurance Benefits and Premiums for the US Embassy employees.

Should your company be selected as our Insurance carrier, it is understood that the Fincke Insurance Agency will be the Broker for any and all Commissions payable.

Sincerely (Signed) James J. Soldow James J. Soldow Counselor of Embassy for Administrative Affairs

There is no evidence in the record that Soldow had any information or knowledge that the term "broker of record" had any meaning other than that which was stated in the letter. The plaintiff stated in an affidavit attached to his brief that he explained to Soldow that the purpose of the letter was to guarantee him that he would be eventually paid for the work that he was about to do. However, he did not explain how the guaranty would serve this purpose, nor who would be the guarantor, nor the amount that was to be guaranteed. He did inform Soldow that he would seek net quotations from insurance companies (i.e., without commissions) and that he would add approximately 10% to the quotation for his commission, which would be added to the premium and paid to him by the insurance company that was awarded the business.

Soldow stated in an affidavit that is in the record that when he met with the plaintiff the first time, the plaintiff offered to develop an insurance program for consideration by the Embassy at no cost. With reference to the purpose of the broker-of-record letter, Soldow stated that the plaintiff explained that the letter, which he had drafted, would assist him in dealing with the several insurance companies whom he planned to contact in developing the most advantageous insurance program. Soldow stated further that the plaintiff "reiterated" that the letter did not commit the Embassy to making any payment to him nor to accepting his eventual insurance proposal. The plaintiff has not denied making these statements.

After the plaintiff had made these representations, Soldow signed the letter and gave it to plaintiff. Soldow also furnished the plaintiff a copy of the existing insurance plan with HSP, an indication of past experience with the existing plan, the number and composition of the covered employees, a copy of their pay scale, and other data and information requested by the plaintiff. Thereafter, the plaintiff began soliciting proposals for group insurance for the Embassy's foreign national employees from various insurance companies in Europe and in the United States. He wrote to the Hospital Service Plan, the company servicing the existing plan, and asked it to submit a proposal. The company did so but it stated that it would not pay a fee or commission to get the business. The plaintiff received various other proposals from companies that would pay a fee or commission to him if awarded the contract, which fee or commission would be included in the premiums. One of these companies was American Life Insurance Company of the United States (ALICO).

On April 25, 1978, Mr. Fincke presented to the Embassy and its employees a comparison of the existing Hospital Service Plan coverage with a proposal for insurance coverage by the American Life Insurance Company. Mr. Fincke strongly urged that the Embassy terminate the existing coverage with HSP and sign a new agreement with ALICO.

The premiums for the existing HSP plan were paid entirely by the Embassy but, if benefits were to be significantly expanded, the new plan was expected to be contributory, with the employees paying a portion of the premium. The Embassy decided to poll the employees to determine their preference between the new plan of ALICO and the existing plan of HSP. The employees favored the existing HSP plan by a margin of 25 to 1. After the result of the poll was known, Patricia Kemper, personnel officer of the Embassy who favored the ALICO plan submitted by the plaintiff, stated that "the Greeks resented the fact that he the plaintiff was going to be paid by the insurance company." Of course, had the ALICO plan been adopted, the employees would have been required to pay a part of the plaintiff's commission by their contribution to the increased premiums which would have included the commission. Instead, the employees chose to keep the existing plan with no additional benefits and with the Embassy paying all of the premiums.

The Embassy acceded to the preference of the employees and renewed the HSP plan on June 28, 1978, for another year. When this was done, the plaintiff did not ask HSP to pay him a commission. Neither did he ask the Embassy to pay him a commission or any other remuneration for the work that he had done in getting the insurance proposals and in analyzing and presenting them to the Embassy with his recommendations. This is significant in view of the claims he is now making against the Embassy and the government in this case, which will be discussed fully below.

In September, 1978, Mr. Soldow retired and was replaced by Henry Boudreau. The personnel officer who had been assisting Mr. Soldow, Patricia Kemper, retired in November, 1978, and was replaced by Irene Bower.

Mr. Fincke continued his efforts from his office in Philadelphia, Pa., despite the renewal of the HSP plan. He solicited proposals from six major American insurance companies other than ALICO but none of them were initially interested. Eventually, however, a proposal was put together by The Travelers Insurance Companies ("Travelers") and its affiliate in Greece, Ruinione Adriatica DiSicurta ("Adriatica"). The Travelers/Adriatica proposal was to duplicate the 1978 ALICO plan at the same cost. In the meantime, however, HSP had itself offered a new plan to the Embassy. This prompted a second proposal from Travelers/Adriatica. Mr. Fincke sent charts to the Embassy dated March 5, March 27, and April 24, 1979, setting out comparisons among the new HSP plan (known as the Private Patients Plan or PPP), the 1978 ALICO plan, and the two Travelers/Adriatica plans. He recommended the Travelers/Adriatica plan.

On April 2, 1979, the Embassy published an administrative notice explaining the various proposals available to its foreign national employees and requesting that the employees indicate their preference among the four plans. As in the prior year, the overwhelming (94%) preference was for the HSP plan and, on April 30, 1979, the Embassy published an administrative notice advising the foreign national employees that it would contract for the new HSP plan, which would become effective June 1, 1979.

Having learned of the preference of the Greek employees shortly after the votes were counted, Mr. Fincke wrote to his Congressman, Richard T. Schulze, on April 26, 1979, with a carbon copy to Travelers, in which he related the foregoing...