UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ST. MARYS REFINING COMPANY, a

West Virginia corporation; GOMART, INCORPORATED, a West

Virginia corporation,

Plaintiffs-Appellants,

v.

HERBERT A. SULLIVAN,

No. 96-2041

INCORPORATED, a Massachusetts

corporation; J. HERBERT SULLIVAN

INSURANCE AGENCY, INCORPORATED, a

Massachusetts corporation;

PETROLEUM INSURANCE AGENCY,

INCORPORATED, a Massachusetts

corporation,

Defendants-Appellees.
ST. MARYS REFINING COMPANY, a

West Virginia corporation; GOMART, INCORPORATED, a West

Virginia corporation,

Plaintiffs-Appellants,

v.

HERBERT A. SULLIVAN,

No. 96-2105

INCORPORATED, a Massachusetts

corporation; J. HERBERT SULLIVAN

INSURANCE AGENCY, INCORPORATED, a

Massachusetts corporation;

PETROLEUM INSURANCE AGENCY,

INCORPORATED, a Massachusetts

corporation,

Defendants-Appellees.

Appeals from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, District Judge.

(CA-93-172-1)

Argued: April 9, 1997

Decided: May 5, 1997

Before RUSSELL, WILKINS, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Philip Melick, JACKSON & KELLY, Charleston,

West Virginia, for Appellants. John Sutton Stump, MCGUIRE,

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WOODS, BATTLE & BOOTHE, L.L.P., McLean, Virginia, for

Appellees. ON BRIEF: Steven P. Franckhauser, BURNS, WHITE &

HICKTON, L.L.C., Wheeling, West Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Sullivan Risk Management Group ("SRMG") is a collection of four

companies. As SRMG, the companies offer an insurance program to

members of the Society of Independent Gasoline Marketers of America (the "SIGMA Program"). SRMG is a domestic broker for overseas

insurance underwriters, and also provides a number of independent

services as part of its SIGMA Program. These services include: 1)

warranting the nature, condition and value of the property and risks

presented to be insured; 2) conducting the inspections, surveys and

oversight required to maintain the insurance program; and, 3) managing the accepted risks and any claims asserted against the insured.

Go-Mart, Inc., a large retailer of gasoline and convenience store

products, selected its insurance carrier through an annual bidding process. SRMG submitted a bid in late 1989 and engaged in negotiations

with Go-Mart. Go-Mart then chose SRMG to provide insurance coverage for 1990. SRMG's premium survey itemized the premiums for

each line of insurance and included a separate charge for "loss control" services provided by one of the SRMG companies, Cost Control

Corp. Go-Mart was also given a "Program Description and Cost Allocation" document stating, inter alia, that the insurance program was

"an integral whole and not designed to be fragmented by the elimination of certain of its components."

Although the original insurance coverage purchased by Go-Mart

did not include environmental impairment liability (i.e. pollution)

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insurance, Go-Mart added this coverage in the spring of 1990. In

1991, Go-Mart formed an affililate, St. Marys Refining Co. Initially

insured through Go-Mart, St. Marys eventually established a separate

bidding process. SRMG provided insurance for both companies until

the end of 1992. Go-Mart and St. Marys received the insurance coverage requested at the established prices, and these prices compared

favorably with those obtained from competing brokers in 1989 and

1993.

In late 1993, Go-Mart and St. Marys filed a diversity suit in federal

district court alleging that three of the four companies in SRMG, but

not Cost Control Corp., had overcharged them for insurance coverage.

The legal claims included statutory misrepresentation, breach of contract, and common law fraud. During the jury trial, Go-Mart and St.

Marys proceeded on two theories of liability. First, they alleged that

SRMG could only charge as a "premium" the amount paid to the

underwriters for risk transfer. Second, they alleged that SRMG

defrauded them by concealing that more was being paid for survey,

appraisal, risk management and claims management than the portion

of charges billed as "loss control" or "risk control" by Cost Control

Corp.

At the close of the plaintiffs' case-in-chief, SRMG moved for judgment as a matter of law on all of the claims pursuant to Federal Rule

of Civil Procedure 50. The district court found that"[t]here was a bargain or agreement to provide certain coverages at a certain price and

it was delivered." Go-Mart and St. Marys presented no evidence that

they could have obtained less expensive or more favorable insurance

coverage. Therefore, the district court granted SRMG's motion as to

the statutory misrepresentation and breach of contract claims based on

the lack of evidence establishing damages. The trial then proceeded

only on the issue of common law fraud.

In support of their fraud claims, Go-Mart and St. Marys asserted

that they were misled by SRMG's description of the SIGMA Program. They believed that all of the costs associated with the coverages

they purchased, other than the cost of risk transfer and any related

commissions, would be billed to them by Cost Control Corporation.

Instead, SRMG billed some of these additional costs as "premium."

SRMG also allegedly owed Go-Mart and St. Marys a fiduciary duty

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based on a broker-client relationship. At the close of all evidence,

SRMG renewed its motion for judgment as a matter of law on the

fraud claims. The district court found no evidence of reliance, a necessary element of common law fraud,1 and granted SRMG's motion.

By subsequent order, the district court dismissed the case on its merits. Go-Mart and St. Marys appeal the district court's rulings.

In federal diversity cases, once a party raises the issue of whether

a jury question has been presented, a district court must determine

"whether there is evidence on which a jury properly can base a verdict."2

Our review of a district court's grant of a Rule 50 motion is plenary.3

Having carefully reviewed the record, considered the submissions

of the parties, and heard oral argument, we find no error in the district

court's rulings. Accordingly, the judgment of the district court is

affirmed.

AFFIRMED

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1 See Lengyel v. Lint, 280 S.E.2d 66, 69 (W. Va. 1981) (listing elements

of fraud under West Virginia law).

2 Charleston Area Medical Ctr. v. Blue Cross, 6 F.3d 243, 247 (4th Cir.

1993).

3 Benner v. Nationwide Mut. Ins. Co., 93 F.3d 1228, 1234 (4th Cir.

1996).

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