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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

NIBCO INC., 

 Plaintiff, 

 vs. 

ARTHUR J. GALLAGHER RISK 

MANAGEMENT SERVICES, INC. 

 Defendant. 

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NO. 3:14–CV-00457 

OPINION AND ORDER

 This matter is before the Court on the Motion for Summary 

Judgment filed by Defendant Arthur J. Gallagher Risk Management 

Services, Inc. (“Gallagher”) on July 2, 2015 (DE #38), and the 

Motion for Summary Judgment filed by Plaintiff NIBCO Inc. 

(“NIBCO”), on July 6, 2015 (DE #40). For the reasons set forth 

below, Gallagher’s Motion for Summary Judgment (DE #38) is GRANTED 

IN PART AND DENIED IN PART. NIBCO’s Motion for Summary Judgment 

(DE #40) is DENIED. Count I of NIBCO’s Complaint is DISMISSED. 

BACKGROUND 

 For nearly 25 years, Gallagher provided insurance brokerage 

services to NIBCO. During that time, the parties rarely executed 

written agreements. In December 2012, Gallagher sent NIBCO 

invoices for services to be performed in the 2013 calendar year. 
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NIBCO paid those invoices in full without objection in January 

2013. In April 2013, NIBCO notified Gallagher that it had decided 

to conduct a broker review, and invited Gallagher to participate. 

Though the broker review process, NIBCO decided to move to a 

different broker. NIBCO notified Gallagher of its decision and 

requested a refund of the fees it had paid in January 2013. 

Gallagher refused to refund the fees. NIBCO’s complaint alleges 

two counts against Gallagher: unjust enrichment (Count I) and 

breach of implied-in-fact contract (Count II). Gallagher 

maintains that the fees were fully earned under the parties’ 

implied-in-fact contract, and are not refundable. 

NIBCO and Gallagher filed and fully briefed the instant 

motions for summary judgment. NIBCO’s motion seeks a refund of 

the fees it paid to Gallagher in 2013 under either its breach of 

implied-in-fact contract claim or its unjust enrichment claim, as 

well as prejudgment interest. Gallagher’s motion argues that 

NIBCO’s breach of implied-in-fact contract claim and unjust 

enrichment claim are without merit. 

FACTS 

For the purposes of the parties’ motions for summary judgment, 

the facts below are undisputed: 

Gallagher served as NIBCO’s insurance broker for 

approximately 25 years. During that time, Gallagher was 

responsible for consulting, handling, placing and servicing 
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insurance coverage for NIBCO. These services were delivered to 

NIBCO in three programs of coverage: property coverage, casualty 

coverage, and management liability coverage. The property 

coverage had a renewal anniversary of July 1, the casualty coverage 

had a renewal anniversary of December 31, and the management 

liability coverage had a renewal anniversary of January 1. The 

process for renewing property coverage began in March or April, 

leading up to the July 1 renewal date. The process for renewing 

casualty and management liability coverages generally took place 

during the fall and winter months leading up to their renewal 

dates. After the start of the next calendar year, Gallagher 

provided NIBCO with invoices, auto identification cards, and 

certificates of insurance. Gallagher also provided ongoing 

insurance claim services to NIBCO, including answering claim 

questions and securing claim advocates on NIBCO’s behalf. 

The parties rarely reduced their agreements to writing, 

having done so only in 2010 and 2012. In 2012, the parties entered 

into two written agreements: (1) an agreement for specified “Risk 

Management Services” (i.e., Gallagher’s brokerage services) for 

which NICBO paid a fee of $157,106 (“2012 Service Agreement”), and 

(2) an agreement for specified claims-related services for which 

NIBCO paid a fee of $7,850 (“2012 Claim Agreement”) (together, 

“2012 Agreements”). The 2012 Agreements were based on Gallagher’s 

standard form. NIBCO paid the fees due under the 2012 Agreements 
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in January 2012, though the 2012 Agreements were not executed until 

October 2012. 

Both of the 2012 Agreements provide in relevant part: 

I. TERM AND TERMINATION 

This Agreement shall commence on the Effective Date 

for a term of one (1) year but may be terminated by 

either party at any time upon thirty (30) days prior 

written notice. 

II. OBLIGATIONS OF GALLAGHER 

Gallagher will provide the services set out on 

Exhibit A attached hereto (collectively, the 

“Services”) to Client. . . . 

III. OBLIGATIONS OF CLIENT 

Client shall pay Gallagher an annual fee of . . . 

for the Services, which such fee may be revised at 

the time of renewal of this Agreement by the 

execution of an amendment to this Agreement signed 

by the parties hereto. . . . 

(DE #43-3 at 1, DE #43-4 at 1.) The 2012 Agreements include 

disclosures that contained different language. Section IV(B) of 

the 2012 Service Agreement provides: “Gallagher’s fees under this 

Agreement shall be fully earned on the execution of this Agreement 

(and any renewal thereof), and payable on invoicing. . . .” (DE 

#43-3 at 1 (emphasis added).) In contrast, Section IV(B) of the 

2012 Claim Agreement provides, “Gallagher’s fees under this 

Agreement shall be earned on the Effective Date (and any renewal 

thereof), and payable on invoicing. . . .” (DE #43-4 at 2 (emphasis 

added).) Neither party explains why these provisions differ. 

 On December 28, 2012, Gallagher submitted two invoices to 

NIBCO for “Service Fee – Renewal – Service Fee” (“2013 Invoices”). 
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(DE #43-5, DE #43-6.) The first invoice itemized the “2013 Service 

Fee” in the amount of $141,395 for the policy period of December 

31, 2012, to December 31, 2013, and had an effective date of 

December 31, 2012. (DE #43-6.) Gallagher charged a lower amount 

for the 2013 Service Fee ($141,395) than the fee set forth in the 

2012 Service Agreement ($157,106). Neither party explains why the 

fee for Gallagher’s brokerage services decreased for 2013. The 

second invoice itemized the “2013 Claim Fee” in the amount of 

$7,850 for the policy period of January 1, 2013, to January 1, 

2014, and had an effective date of January 1, 2013. (DE #43-5.) 

The amount of the 2013 Claim Fee was the same as the amount set 

forth in the 2012 Claim Agreement. NIBCO paid both invoices in 

January 2013, without any dispute as to the amount or any objection 

to the lack of the execution of new written agreements. The 

parties never executed any written agreements for services to be 

performed in 2013. 

 In late March 2013, James Seitz (“Seitz”) assumed the position 

of Corporate Risk Manager at NIBCO. (DE #41-1 at 56.) On April 

16, 2013, Seitz met with Dirk Peterson (“Peterson”), Gallagher’s 

“Client Executive” for the NIBCO account. During that meeting, 

Seitz informed Peterson that NIBCO would be conducting a “broker 

review” to select a new broker, and that Gallagher would be invited 

to participate in the review, along with other brokers. Seitz 

told Peterson that NIBCO was unhappy with its current relationship 
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with Gallagher and that, if Gallagher wanted to be selected as the 

new broker, Gallagher would have to offer NIBCO more in both 

services and pricing. Seitz claims that he told Peterson that 

NIBCO “intended to terminate its existing brokerage relationship 

with Gallagher without waiting until the end of the 2013 calendar 

year,” and that “the goal was to select the new broker in time for 

that broker to assume responsibility for the services associated 

with placement of NIBCO’s casualty and management liability 

programs that were expiring at year end.” (Id. at 56-57.) In an 

email dated April 24, 2013, Peterson wrote to his boss Bob Gorman 

(“Gorman”), “I don’t have a warm and fuzzy here at all. . . . I’m 

getting the feeling that [Seitz] wants to move the business before 

even getting to know us.” (Id. at 88.) 

 On April 25, 2013, Seitz emailed Peterson a letter inviting 

Gallagher to participate in NIBCO’s broker review. (Id. at 81-

82.) NIBCO’s Request for Proposal (“RFP”) stated that the purpose 

of the broker review was to “evaluat[e] brokers for the placement 

of the casualty insurance program” with “a renewal date of January 

1, 2014.” (Id. at 83.) The RFP stated that the target date for 

“BOR’s [broker of record] completed for 2014 renewal process” was 

July 1. (Id.) 

 On May 22, 2013, Gallagher made a presentation to NIBCO for 

the broker review. On May 24, 2013, Seitz orally informed Peterson 

that Gallagher had not been selected as NIBCO’s broker. The same 
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day, Gorman confirmed NIBCO’s decision to replace Gallagher in an 

email to NIBCO’s Vice Chairman. (Id. at 90.) On June 24, 2013, 

Gallagher employee Dylan Psotka sent an email to another Gallagher 

employee stating in part that “Gallagher is no longer the broker 

for NIBCO.” (Id. at 93.) 

 On August 15, 2013, Seitz emailed Peterson and his bosses 

(P.M. Gallagher and Gorman) that “NIBCO has made the decision to 

move the risk finance broker services to [another broker],” noting 

that he had “left [Peterson] a voicemail message with this news a 

few weeks ago but never received a return call.” (Id. at 7.) 

Seitz requested that Gallagher “refund at least half of the 2013 

service fee plus all of the claims management fee,” and expressed 

his belief that a partial refund “is more than fair compensation 

for the scope of work required of [Gallagher] during the first 

half of the year.” (Id.) Later the same day, Peterson emailed 

his bosses Gorman and P.M. Gallagher, stating in part: 

Regarding what we’ve done this year, [NIBCO’s] risk 

manager [(Seitz)] started early in the year and from the 

get go did not engage us to do much of anything. [Seitz] 

took over the property [coverage] directly with FM and 

took away our claim involvement; it was clear from the 

minute he started that his agenda was to replace us. 

(Id. at 6.) A few days later, Peterson emailed Gorman and P.M. 

Gallagher, stating in part: 

Once [Seitz] joined NIBCO, he essentially did not ask us 

to do hardly anything at all. Also, our fee includes 

the property [coverage] which has a 7/1 renewal date, 

but [Seitz] took this over direct before the renewal 
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process started. [Seitz] also took over direct claim 

mgt and therefore we did not get a chance to provide any 

claim advocacy work. The reason I mention this is if we 

say we earned 100% of our fee, they can continue to argue 

that we are not deserving of the total amount. 

(Id. at 10.) Gallagher refused to refund any fees to NIBCO, and 

this litigation ensued. 

SUMMARY JUDGMENT STANDARD 

 Summary judgment must be granted when “there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine 

issue of material fact exists when “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 

2505, 91 L. Ed. 2d 202 (1986). Not every dispute between the 

parties makes summary judgment inappropriate; “[o]nly disputes 

over facts that might affect the outcome of the suit under the 

governing law will properly preclude the entry of summary 

judgment.” Id. To determine whether a genuine dispute of material 

fact exists, the Court must construe all facts in the light most 

favorable to the non-moving party and draw all reasonable 

inferences in that party’s favor. See Ogden v. Atterholt, 606 

F.3d 355, 358 (7th Cir. 2010). A party opposing a properly 

supported summary judgment motion may not rely on allegations in 

his own pleading, but rather must “marshal and present the court 

with the evidence [it] contends will prove [its] case.” Goodman 
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v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). 

“[I]nferences relying on mere speculation or conjecture will not 

suffice.” Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009) 

(citation omitted). The party with the burden of proof on an issue 

can obtain a summary judgment “only where the evidence is so onesided that it points inescapably” in the movant’s favor, and “every 

reasonable jury” would decide that the movant has met its burden 

of proof. Thorne v. Member Select Ins. Co., 899 F. Supp. 2d 820, 

824 (N.D. Ind. 2012) (citations omitted). If the non-moving party 

fails to establish the existence of an essential element on which 

he bears the burden of proof at trial, summary judgment is proper. 

Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). Where the 

parties file cross-motions for summary judgment, the Court must 

consider each motion, but despite the parties’ agreement that no 

genuine issue of material fact exists, the Court can deny all 

motions if the parties do not establish their rights to judgment 

as a matter of law. See Grabach v. Evans, 196 F. Supp. 2d 746, 

747 (N.D. Ind. 2002). 

DISCUSSION 

 NIBCO asserts two alternative claims against Gallagher: 

unjust enrichment and breach of an implied-in-fact contract. See

Fed. R. Civ. P. 8(d). “Express and implied-in-fact contracts are 

traditional contracts, while constructive contracts, ‘also 
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referred to as quantum meruit, contract implied-in-law, [unjust 

enrichment], or quasi-contracts[,]’ are not contracts at all.” 

Zoeller v. E. Chicago Second Century, Inc., 904 N.E.2d 213, 220 

(Ind. 2009) (citation omitted, brackets in original).1 The Court 

will address NIBCO’s breach of implied-in-fact contract claim 

first. 

Breach of Implied-in-Fact Contract Claim 

Count II asserts that NIBCO is entitled to a refund of fees 

because Gallagher breached the parties’ implied-in-fact contract. 

A contract implied in fact refers to the class of 

obligations which arises from mutual agreement and 

intent to promise, when the agreement and promise have 

simply not been expressed in words. Unlike implied in 

law or quasi-contracts, which do not arise from the 

parties’ express agreement but which are implied by law 

to remedy a party’s wrongful enrichment, a contract 

implied in fact arises out of acts and conduct of the 

parties, coupled with a meeting of the minds and a clear 

intent of the parties in the agreement. 

Nationwide Ins. Co. v. Heck, 873 N.E.2d 190, 197 n.1 (Ind. Ct. 

App. 2007) (citations omitted). An implied-in-fact contract is 

treated like an express contract, “apart from the critical 

difference in the manner of proving the parties’ manifestations of 

their mutual promises.” ViaStar Energy, LLC v. Motorola, Inc.,

                                                            

1

Where, as here, “neither party raises a conflict of law issue in 

a diversity case, the federal court simply applies the law of the 

state in which the federal court sits.” Citadel Group Ltd. v. 

Washington Reg’l Med. Ctr., 692 F.3d 580, 587 n.1 (7th Cir. 2012) 

(quotation omitted). Thus, the Court will apply Indiana law in 

deciding these issues. 
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No. 1:05-cv-1095, 2007 WL 101810, at *6 n.2 (S.D. Ind. Jan. 9, 

2007) (citing F. McConnell and Sons, Inc. v. Target Data Sys., 

Inc., 84 F. Supp. 2d 961, 975 (N.D. Ind. 1999)). Thus, “[a]n 

implied-in-fact contract requires the same elements as express 

contracts, offer, acceptance and consideration; however, it is the 

conduct of the parties that expresses agreement.” Garwood 

Packaging, Inc. v. Allen & Co., Inc., No. IP 98–1058, 2002 WL 

31924512, at *19 (S.D. Ind. Dec. 26, 2002) (citation omitted). 

NIBCO’s breach of implied-in-fact contract claim relies in 

part on the 2012 Agreements. When interpreting a written contract, 

Indiana courts 

apply the four-corners rule, which requires that as to 

any matter expressly covered in the written contract, 

the provisions therein, if unambiguous, determine the 

terms of the contract. Words used in a contract are to 

be given their usual and common meaning unless, from the 

contract and the subject matter thereof, it is clear 

that some other meaning was intended. 

[Indiana courts] interpret a written contract by reading 

the contract as a whole, and . . . attempt to construe 

the language so as to not render any words, phrases, or 

terms ineffective or meaningless. Thus, [the court] 

must accept an interpretation of the contract which 

harmonizes its provisions. If the language of the 

contract is unambiguous and the intent of the parties is 

discernible from the written contract, the court must 

give effect to the terms of the contract. 

DLZ Indiana, LLC v. Greene County, 902 N.E.2d 323, 327-28 (Ind. 

Ct. App. 2009) (citation omitted). The 2012 Agreements are to be 

construed against Gallagher as the drafter of the agreements. See
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Cmty. Anesthesia & Pain Treatment, L.L.C. v. St. Mary Med. Ctr., 

Inc., 26 N.E.3d 70, 74 (Ind. Ct. App. 2015). 

Gallagher asserts that the parties had an implied-in-fact 

contract in 2013, and that the contract had the same terms as the 

2012 Agreements. “When one serves another under a contract for a 

year’s service and holds over, continuing in the same service after 

the expiration of the year, there is a presumption . . . that the 

parties assent to the continuance through another year of the 

contract of service.” Akron Milling Co. v. Leiter, 107 N.E. 99, 

103 (Ind. Ct. App. 1914); see 6 Ind. Law Encyc. Contracts § 5 (Jan. 

2016) (“Where the parties have been operating under an express 

contract, and continue to conduct themselves after the expiration 

of that contract as if it were still in force, an implied contract 

with the same terms as the express contract exists between them.”);

17 C.J.S. Contracts § 6 (2015) (“Where, without more, an agreement 

expires by its terms and the parties continue to perform as before, 

an implication arises that they have mutually assented to a new 

contract containing the same provisions as the old.”). The 

existence of an implied-in-fact contract is supported by NIBCO’s 

and Gallagher’s longstanding business relationship, during which 

they rarely executed written agreements. Moreover, when Gallagher 

issued the invoices for the “2013 Service Fee” and “2013 Claim 

Fee,” indicating that each fee was “Service Fee – Renewal – Service 

Fee,” NIBCO paid both invoices in full without objection. 
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In response, NIBCO addresses the 2012 Service Agreement and 

the 2012 Claim Agreement separately. NIBCO argues that the terms 

of the 2012 Service Agreement did not extend to an implied-in-fact 

contract for Gallagher’s brokerage services in 2013. NIBCO 

maintains that two provisions of the 2012 Service Agreement 

required the execution of a renewal or amended agreement in order 

to be extended. Section IV(B) states that “Gallagher’s fees under 

this Agreement shall be fully earned on the execution of this 

Agreement (and any renewal thereof), and payable on invoicing.” 

(DE #43-3 at 1.) Section III states that NIBCO “shall pay 

Gallagher an annual fee of $157,106 for the Services [(“2012 

Service Fee”)], which such fee may be revised at the time of 

renewal of this Agreement by the execution of an amendment to this 

Agreement signed by the parties hereto.” (Id.) NIBCO maintains 

that the 2012 Service Agreement was never renewed because the 2013 

Service Fee differed from the 2012 Service Fee, and the parties 

never executed any amendment or renewal of the agreement for 2013. 

Gallagher maintains that no language in the 2012 Service 

Agreement supports NIBCO’s argument that execution of a new 

agreement was required as a condition precedent to renewal. “A 

contractual condition precedent is a condition that must be 

performed before the agreement of the parties becomes a binding 

contract or that must be fulfilled before the duty to perform a 

specific obligation arises.” L.H. Controls, Inc. v. Custom 
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Conveyor, Inc., 974 N.E.2d 1031, 1050 (Ind. Ct. App. 2012) 

(citation omitted). Gallagher argues that Section IV(B) clearly 

and unambiguously provides that its fees were “fully earned” upon 

the execution of the 2012 Service Agreement “and any renewal 

thereof.” It insists that the only logical interpretation of this 

provision is that Gallagher fully earned the 2012 Service Fee upon 

the execution of the 2012 Service Agreement, and fully earned the 

2013 Service Fee upon the renewal of the agreement in 2013. 

NIBCO responds that Section IV(B) is ambiguous and can be 

interpreted as requiring not merely “execution of this Agreement,” 

but also “execution of . . . (any renewal thereof)” before 

Gallagher earned the fees for the renewal period. (DE #45 at 3.) 

NIBCO insists that Section IV(B) be construed against Gallagher as 

the drafter of the agreement. “A contract term is not ambiguous 

merely because the parties disagree about the term’s meaning. 

Rather, language is ambiguous only if reasonable people could come 

to different conclusions about its meaning.” Simon Property Group, 

L.P. v. Michigan Sporting Goods Distributors, Inc., 837 N.E.2d 

1058, 1070 (Ind. Ct. App. 2005) (citation omitted). The Court 

finds that Section IV(B) is ambiguous because reasonable people 

could come to different conclusions about whether it requires the 

execution of only the 2012 Service Agreement, or execution of both 

the 2012 Service Agreement and a renewal of that agreement. Where, 

as here, the contract language is subject to more than one 
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construction, “the intention of the parties is a question of fact 

and resort to extrinsic evidence is proper.” Stoneware, Inc. v. 

TecServ, Inc., No. 1:07-cv-1188, 2009 WL 5175193, at *7 (S.D. Ind. 

Dec. 21, 2009) (citing Anderson v. Horizon Homes, Inc., 644 N.E.2d 

1281, 1290 (Ind. Ct. App. 1995)). 

As evidence of the parties’ intent regarding Section IV(B), 

Gallagher points to NIBCO’s payment of the 2013 Service Invoice 

without requesting a written renewal of the 2012 Service Agreement, 

and NIBCO’s failure to object to Gallagher’s performance of some 

services in 2013. Gallagher also cites the fact that the parties 

did business together for years without written agreements, and 

rarely executed agreements throughout their course of dealing. 

(DE #44 at 12-13.) But this evidence does not necessarily 

demonstrate the parties’ intent to renew the 2012 Service Agreement 

without executing a written renewal. It just as easily 

demonstrates an intent to return to doing business together without 

a written agreement. Moreover, because Gallagher drafted the 2012 

Service Agreement, the ambiguity in Section IV(B) must be construed 

against it. See St. Mary Med. Ctr., Inc., 26 N.E.3d at 74. The 

Court therefore finds that Section IV(B) required the execution of 

a written renewal of the 2012 Service Agreement in order to renew 

that agreement. 

Gallagher also maintains that there is only one logical 

interpretation of Section III: that the 2012 Service Fee was set 
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for the annual term of service and not subject to modification 

until the time of renewal, and that the parties’ consent to the 

alteration of the 2013 Service Fee “was to be evidenced by the 

execution of an amendment to the agreement.” (DE #44 at 9.) 

Gallagher insists that this interpretation does not equate to a 

condition precedent. 

The Court finds Section III’s provision that the “fee may be 

revised at the time of renewal of this Agreement by the execution 

of an amendment to this Agreement signed by the parties hereto” to 

be clear and unambiguous. Indeed, to find that Gallagher’s 

revision of the fee amount did not require a signed amendment would 

improperly render this phrase “ineffective or meaningless.” DLZ 

Indiana, 902 N.E.2d at 327. It is undisputed that Gallagher 

charged NIBCO different amounts for the 2012 Service Fee and the 

2013 Service Fee. It is also undisputed the parties never executed 

an amendment to the 2012 Service Agreement. Because Section III 

provides that a revision of the fee is to be executed in a signed 

amendment to the 2012 Service Agreement, and the parties did not 

sign such an amendment, they did not renew the 2012 Service 

Agreement.2

                                                            

2 In its reply brief, Gallagher argues that even if the decrease in 

the amount of the service fee in 2013 required an amendment of the 

2012 Service Agreement, NIBCO waived this condition by paying the 

2013 Service Fee without objection, and thereby renewed the 2012 

Service Agreement. (DE #44 at 10-11.) Because NIBCO has not had 

the opportunity to respond to this argument, and the Court has 
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NIBCO claims that “[b]ecause the express language of the 2012 

Service Agreement did require a formal, written signed agreement 

to be renewed, the [C]ourt may not infer the existence of an 

implied-in-fact contract as to the parties’ relationship arising 

from NIBCO’s payment of the 2013 Service Fee and must instead 

analyze that relationship under the doctrine of implied-in-law 

contracts and unjust enrichment.” (DE #45 at 4.) NIBCO cites 

Nationwide Insurance Company v. Heck for the proposition that 

“[w]hile there is no written agreement signed by the parties, the 

validity of a contract is not dependent on the signature of the 

parties, unless such is made a condition of the agreement.” 873 

N.E.2d at 196 (citation omitted, emphasis added). In Nationwide, 

the court found that an implied-in-fact contract existed between 

the parties based an unsigned email setting forth terms of the 

parties’ agreement. The court explained that an implied-in-fact 

contract “arises out of the acts and conduct of the parties, 

coupled with a meeting of the minds and a clear intent of the 

parties in the agreement.” Id. at 196 n.1. “Some form of assent 

to the terms is necessary,” and “may be expressed by acts which 

manifest acceptance.” Id. at 196. While Nationwide argued that 

                                                            

already found that the 2012 Service Agreement was not renewed based 

on other grounds, the Court will not address this argument. See

Nationwide Ins. Co. v. Central Laborers' Pension Fund, 704 F.3d 

522, 527 (7th Cir. 2013) (“[i]t is well established that arguments 

raised for the first time in a reply brief are waived”) (citation 

omitted). 
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it never entered into the agreement, the court found no evidence 

that the parties’ signatures were a condition of the agreement, 

and determined that the conduct of Nationwide’s agent demonstrated 

the existence of the agreement. Id. at 197. 

Nationwide does not address the issue of whether parties can 

create an implied-in-fact contract after the expiration of a 

written agreement that required a signed amendment for its renewal. 

Neither party cites any case law addressing this issue, nor was 

the Court able to find such case law in Indiana.3 However, Indiana 

                                                            

3 The District of Minnesota has addressed the issue of whether 

parties created a new implied-in-fact contract after a written 

agreement expired. In Webb Candy, Inc. v. Walmart Stores, Inc., 

the parties’ written agreement provided that it could not be 

extended except by a formal, signed document. No. 09–CV–2056, 

2010 WL 2301461, at *6 (D. Minn. June 7, 2010). The parties had 

not signed such document, but continued to do business after the 

written agreement expired. The court explained: 

[W]hen parties continue to perform under an expired 

contract, their conduct can give rise to a new, impliedin-fact contract. But the fact that parties to an 

expired contract continue to deal with one another does 

not mean that they necessarily create a new contract — 

or, if they do, that every term of the expired contract 

becomes part of the new contract. The presumption of a 

new, implied-in-fact contract may be rebutted with 

evidence that the parties did not intend to create a new 

contractual relationship or did not intend to be bound 

by certain terms of the expired contract. 

Id. at *8 (citations omitted). Notwithstanding the expired 

agreement’s provision that it could not be extended except by a 

signed document, the court considered the parties’ conduct and 

intent after the agreement had expired. Id. at *10 (denying motion 

to dismiss because the court could not find as a matter of law 

that an implied-in-fact contract existed where the parties’ course 

of conduct changed after the written agreement expired). 
‐19‐ 

law recognizes that “circumstances may have arisen, or acts may 

have been done which, according to the dictates of reason and 

justice, and the ordinary course of dealing, or the common 

understanding of men, show a mutual intention to contract, in which 

case an implied-in-fact contract arises.” F. McConnell and Sons, 

84 F. Supp. 2d at 975 (citation omitted). “A contract can be 

implied in fact when the conduct of the parties infers a meeting 

of the minds, even in the absence of an express contract.” L.I. 

Combs & Sons, Inc. v. Indiana/Kentucky Reg’l Council of Carpenters,

No. 2:09CV150, 2010 WL 4553664, at *4 (N.D. Ind. Nov. 3, 2010) 

(citations omitted). “All that is required to render a contract 

enforceable is reasonable certainty in the terms and conditions of 

the promises made, including by whom and to whom; absolute 

certainty in all terms is not required.” Zukerman v. Montgomery, 

945 N.E.2d 813, 819 (Ind. Ct. App. 2011) (citation omitted). 

The parties’ conduct following the expiration of the 2012 

Service Agreement demonstrates that an implied-in-fact contract 

existed for Gallagher’s brokerage services in 2013. See Paper 

Mfrs. Co. v. Rescuers, Inc., 60 F. Supp. 2d 869, 883 (N.D. Ind. 

1999) (determining as a matter of law that a contract existed where 

it was “clearly evidenced by the course of dealings between the 

parties”). The evidence of an offer, acceptance, and consideration 

are undisputed. The parties do not dispute the types of services 

Gallagher had provided to NIBCO over their 25-year relationship 
‐20‐ 

(often without any written agreement), or that Gallagher intended 

to continue to provide such services to NIBCO in 2013. They do 

not dispute that Gallagher sent NIBCO an invoice for the 2013 

Service Fee for the policy period of December 31, 2013 to December 

31, 2014, and that NIBCO paid the 2013 Service Fee in full without 

objection in January 2013. 

While NIBCO argues that Gallagher performed virtually none of 

the services for which it had paid in January 2013, the undisputed 

evidence demonstrates that the bulk of Gallagher’s services were 

to occur later in the year. Historically, Gallagher began its 

renewal services for NIBCO’s property coverage in March or April, 

and its renewal services for NIBCO’s casualty and management 

liability coverages in the fall. Evidence also indicates that it 

was not until after Seitz became NIBCO’s risk manager in late March 

2013 that NIBCO “took away” the renewal of property coverage and 

claim services from Gallagher. (See DE # 41-1 at 6 (asserting 

that Seitz “took over property [coverage] . . . and took away 

[Gallagher’s] claim involvement”), 10 (asserting that Seitz took 

over property coverage “before the renewal process started. 

[Seitz] also took over direct claim mgt”).) NIBCO’s subsequent 

decision to terminate Gallagher’s brokerage services further 

indicates that the parties had intended to create an implied-infact contract in early 2013. Based on this undisputed evidence, 

the Court finds that an implied-in-fact contract existed for 
‐21‐ 

Gallagher’s brokerage services in 2013, after the expiration of 

the 2012 Service Agreement (“Implied Service Contract”). 

Turning to the 2012 Claim Agreement, NIBCO admits that “the 

relationship arising from NIBCO’s payment of the 2013 Claim Fee 

may be subject to the doctrine of implied-in-fact contracts” (DE 

#45 at 4 n.3), and that “the 2012 Claim Agreement arguably was 

renewed for 2013 pursuant to the doctrine of implied-in-fact 

contracts.” (Id. at 10 n.4.) As NIBCO concedes, it arguments 

against the extension of the terms of the 2013 Service Agreement 

do not apply to the 2012 Claim Agreement. (Id. at 4 n.3.) The 

2012 Claim Agreement states that Gallagher’s fee “shall be earned 

on the Effective Date (and any renewal thereof).” (DE #43-4 at 

2.) Gallagher issued an invoice for the 2013 Claim Fee, indicating 

it was a “Renewal” with an “Effective Date” of January 1, 2013. 

(DE #43-5.) NIBCO paid that invoice in full without objection. 

Moreover, the amount of the 2013 Claim Fee was the same as the fee 

set forth in the 2012 Claim Agreement. The Court therefore finds 

that a second implied-in-fact contract existed for Gallagher’s 

claim services in 2013 based on the parties’ renewal of the 2012 

Claim Agreement (“Implied Claim Contract”). 

Implied-In-Fact Contracts’ Termination Provision 

Having found that two implied-in-fact contracts existed in 

2013, the Court turns to the issue of whether these contracts 

included a right of refund upon termination. Both NIBCO and 
‐22‐ 

Gallagher rely on the termination provision of the 2012 Agreements 

as evidence of the parties’ intent regarding the implied-in-fact 

contracts. Section I of the 2012 Agreements states, “[t]his 

Agreement shall commence on the Effective Date for a term of one 

(1) year but may be terminated by either party at any time upon 

thirty (30) days written notice.” (DE #43-4, DE #43-4.) 

The Court will first address whether Section I allowed a party 

to terminate the 2012 Agreements midterm. Gallagher asserts that 

the parties did not intend for either party to cancel the 

agreements midterm, but rather, intended for the agreements to 

provide for an annual term of service. As evidence of the parties’ 

intent, Gallagher points to the annual fees, and the lack of any 

mention of a return of fees in the 2012 Agreements. Gallagher 

also notes that during the parties’ business relationship of nearly 

25 years, Gallagher’s services were ongoing and continuously 

provided, carrying over from one year into the next. According to 

Gallagher, Section I merely provided a mechanism for either party 

to terminate the agreement at the end of the term by providing 

written notice. 

NIBCO argues that Gallagher’s interpretation of Section I 

nullifies the phrase “at any time,” and conflates the words 

“termination” and “renewal.” NIBCO asserts that if the parties 

had intended Section I merely to allow parties to avoid renewing 

the agreement, they would have used different language than 
‐23‐ 

“termination” was permitted “at any time” upon 30 days’ written 

notice. The Court finds that Section I clearly allows termination 

of the agreements “at any time,” rather than at the end of the 

term, as Gallagher suggests. See, e.g., Tech. Marketing Corp. v. 

Hamlin, Inc., 974 F. Supp. 1224, 1227 (W.D. Wis. 1997) (applying 

Indiana law to find “nothing ambiguous” about a termination clause 

that “plainly provides that either party can terminate the 

agreement by giving thirty days written notice”); Comm. Maint., 

Inc. v. Motorola, Inc., 761 F.2d 1202, 1210 (7th Cir. 1985) 

(applying Indiana law to find that a clause that “[e]ither [party] 

may terminate this agreement, with or without cause, upon thirty 

days written notice to the other party” was correctly enforced 

“according to its clear and express terms”). Nothing in Section 

I suggests that notice of termination only applies to the renewal 

of the agreement. Therefore, the Court finds that NIBCO had the 

right to terminate the implied-in-fact contracts midterm.4

                                                            

4 NIBCO also asserts that the fact that the 2012 Agreements provide 

for the upfront payment of annual fees does not mean that the 

parties intended an annual term of service. NIBCO points to 

Section I, which allows termination “at any time,” as evidence 

that they did not presuppose an annual term. NIBCO analogizes 

Gallagher’s position to an employee who contends that his 

employment was fixed for a year because his compensation was 

expressed in terms of an annual salary. Indiana courts have held 

that such employment was at will, despite the fact that the 

employee’s salary was stated in annual terms. Bee Window, Inc. v. 

Turman, 716 N.E.2d 498 (Ind. Ct. App. 1999); Butts v. Oce-USA, 

Inc., 9 F. Supp. 2d 1007 (S.D. Ind. 1998). The Court finds these 

cases to be inapposite. As explained in Bee Window, “[s]tating 

compensation and other benefits in annual terms is both common and 
‐24‐ 

Gallagher maintains that, even if NIBCO could terminate the 

agreements midterm, it is not entitled to a refund upon 

termination. Gallagher insists that the terms of the 2012 

Agreements do not imply a right to refund. The 2012 Agreements do 

not contain any provision explicitly entitling NIBCO to a refund. 

Moreover, both of the 2012 Agreements provide that the fees are 

“earned” on a particular date. 

NIBCO does not cite any evidence that the 2012 Agreements, or 

the subsequent implied-in-fact contracts, explicitly include a 

right to a refund. Rather, NIBCO asserts that Section I implicitly 

provides for a refund of fees upon termination. According to 

NIBCO, its right to terminate the agreements would be “nonsensical” 

and “meaningless” unless NIBCO was entitled to a refund of all 

unearned, prepaid fees. (DE #41 at 10.) Noting the bilateral 

nature of Section I, NIBCO maintains that if Gallagher had 

terminated the agreements midyear, Gallagher would have been 

required “under basic principles of fairness” to refund the entire 

fee paid by NIBCO, reduced only by whatever sums correlated to 

services performed by Gallagher before termination. (Id.) NIBCO 

does not cite any case law for this principle. 

                                                            

convenient, but does not necessarily mean that the employment is 

for a definite period of one year.” 716 N.E.2d at 501. Here, in 

contrast, the 2012 Agreements do not merely state Gallagher’s fees 

in annual terms. Rather, each agreement clearly states that it 

has “a term of one (1) year,” and that the fee was “earned” on a 

particular date and was payable on invoicing.
‐25‐ 

NIBCO also asserts that the 2012 Agreements are ambiguous as 

to Gallagher’s duty to refund fees to NIBCO upon termination. 

According to NIBCO, the general rule of commercial reasonableness 

dictates that the 2012 Agreements be construed to entitle NIBCO to 

a refund of unearned fees upon termination because to do otherwise 

would result in a windfall gain to Gallagher. Commercial 

reasonableness provides “guidance for interpreting ambiguous 

contracts. . . . If one reading produces a plausible result for 

which parties might be expected to bargain, that reading has a 

strong presumption in its favor as against another reading 

producing an unlikely result.” Utica Mut. Ins. Co. v. Vigo Coal 

Co., Inc., 393 F.3d 707, 711 (7th Cir. 2004) (citations and 

internal quotations omitted). But this presumption only comes 

into play when interpreting ambiguous agreements. “[I]nferring 

additional obligations (reasonableness []) into the parties’ 

contract does not accurately describe the duties and 

responsibilities of courts in interpreting contracts. Rather, the 

proper posture for the court is to find and enforce the contract 

as it is written and leave the parties where it finds them.” Rothe 

v. Revco D.S., Inc., 148 F.3d 672, 675 (7th Cir. 1998) (citation, 

internal quotations and brackets omitted). 

NIBCO cites no case law holding that a right to terminate 

implies an entitlement to a refund, and the Court was unable to 

locate any. While not cited by either party, Seko Air Freight, 
‐26‐ 

Inc. v. Transworld Systems, Inc., 22 F.3d 773 (7th Cir. 1994), 

sheds light on this issue. In that case, Seko sued a debt collector 

to recover an amount it prepaid for the right to send accounts for 

collection over two years. Eight months into the agreement, Seko 

terminated the collection agreement without sending any accounts 

to debt collector, and asked for its money back. The termination 

clause of the agreement allowed Seko to terminate with written 

notice, but did not mention any right to a refund. Like NIBCO, 

Seko argued that the presence of a termination clause implied an 

entitlement to a refund, although the agreement lacked any 

provision for a refund. The Seventh Circuit rejected this 

argument, noting that there are “many other situations in which 

one side’s ability to walk away from a transaction does not 

establish an entitlement to a refund.” Id. at 774 (listing 

examples). The Seventh Circuit held that “there is no general 

rule that a right to terminate implies a right to a refund; the 

question, rather, is how best to understand this particular 

contract.” Id. Under the terms of the collection agreement, “Seko 

was entitled, but not obliged, to use” the defendant’s services; 

“the termination clause ensured that if Seko used some of the 

services, it could quit at any time. Understanding that the 

[prepayment] pays for the option to use [the defendant’s] services 
‐27‐ 

shows that the payment is not refundable in full.” Id. at 775 

(affirming summary judgment in favor of the debt collector).5

Because there is no general rule that a right to terminate 

implies a right to refund, the Court will look to the implied-infact contracts to determine whether NIBCO was entitled to a refund 

upon termination. In interpreting the Implied Claim Contract, the 

Court looks to the terms of the 2012 Claim Agreement. The 2012 

Claim Agreement states that Gallagher’s fee was “earned” on the 

Effective Date, allows either party to terminate the agreement “at 

any time,” and does not refer to any right to a refund. These 

provisions, taken together, indicate that there was no right to a 

refund upon termination in the 2012 Claim Agreement. Because no 

provision in the 2012 Claim Agreement required any refund upon 

termination, the Court will not imply one for the Implied Claim 

Contract. 

Interpreting the Implied Service Contract is more complex. 

As explained above, the Court has found that the Implied Service 

Contract was not based on a renewal of the 2012 Service Agreement, 

but rather, was based on the parties’ conduct and intent. “[T]he 

terms of a contract not reduced to writing are a matter to be 

interpreted by the trier of fact.” Paper Mfrs. Co., 60 F. Supp. 

                                                            

5 Because Seko sought reimbursement of the full amount, the Seventh 

Circuit did not address whether any portion of the payment would 

be refundable. Seko Air Freight, 22 F.3d at 775. 
‐28‐ 

2d at 883 (citing Ballew v. Town of Clarksville, 683 N.E.2d 636, 

639 (Ind. Ct. App. 1997)). Here, the parties concede that Section 

I applies to the Implied Service Contract, and agree that this 

termination provision contains no explicit right to a refund. 

Gallagher argues that Section IV(B) also applies to the 

Implied Service Contract, and that NIBCO is not entitled to a 

refund because Gallagher’s fees were “fully earned” upon renewal. 

NIBCO asserts that if Section IV(B) applies, Gallagher never earned 

its fees because the parties never executed a renewal agreement. 

As explained above, the Court finds that Section IV(B) required 

the parties to execute a written renewal of the 2012 Service 

Agreement in order to renew that agreement. Because the parties 

did not do so, they did not extend Section IV(B) to the Implied 

Service Contract. 

Gallagher also points to the parties’ course of conduct as 

demonstrating that NIBCO had no right to a refund under the Implied 

Service Contract. NIBCO’s payment of the 2103 Service Invoice 

without objection and its acceptance of services in 2013 allegedly 

demonstrated its intent to proceed in accordance with the parties’ 

usual course of dealings, which Gallagher asserts did not include 

a right to a refund upon termination. NIBCO maintains that the 

termination provision (Section I) implies a right to a refund, and 

notes a lack of extrinsic evidence regarding the parties’ intent 

regarding refunds. (See DE #41 at 10-11 (asserting that the 
‐29‐ 

parties never discussed the meaning of the termination provision 

in the 2012 Agreements or attempted to exercise a termination 

provision prior to 2013) (citing DE #41-1 at 53-54).) The Court 

finds that the evidence of the terms of the Implied Service 

Contract is not “so one-sided that it points inescapably” in either 

NIBCO’s or Gallagher’s favor. See Thorne, 899 F. Supp. 2d at 824. 

Rather, genuine issues of material fact exist as to whether the 

terms of the Implied Service Contract included a right to a refund 

upon termination.6

Voluntary Payments Doctrine 

Gallagher also argues that NIBCO is not entitled to a refund 

based on the voluntary payments doctrine. The voluntary payments 

doctrine states that “money voluntarily paid in the face of a 

recognized uncertainty as to the existence or extent of the payor’s 

obligation to the recipient may not be recovered, on the ground of 

‘mistake,’ merely because the payment is subsequently revealed to 

have exceeded the true amount of the underlying obligation.” Time 

Warner Entm’t Co., L.P. v. Whiteman, 802 N.E.2d 886, 892 (Ind. 

                                                            

6

 At least one other jurisdiction has found that where a written 

agreement had expired, “[w]hether [the parties] intended to be 

bound by a new contract with the same terms presents a factual 

question, and, except in the clearest cases, the question is for 

the finder of fact to resolve.” City of Scottsbluff v. Waste 

Connections of Nebraska, Inc., 809 N.W.2d 725, 740 (Neb. 2011) 

(finding that after a written agreement expired, the parties 

operated under an implied-in-fact contract with different terms).
‐30‐ 

2004) (citation omitted). Gallagher maintains that NIBCO’s claim 

for a refund fails as a matter of law because the 2012 Agreements 

unambiguously provided that fees were earned on renewal, and NIBCO 

voluntarily paid the fees in 2013. 

NIBCO responds that the voluntary payments doctrine does not 

apply here because there was no “recognized uncertainty as to the 

existence or extent” of NIBCO’s obligation to Gallagher. Id. The 

Court agrees. See CSX Transp., Inc. v. Appalachian Railcar Servs., 

Inc., 509 F.3d 384, 387 (7th Cir. 2007) (voluntary payments 

doctrine “has no application to the payment of a claim that neither 

party regards as doubtful”) (citation omitted). There is no 

evidence that the amount of Gallagher’s fees was in dispute when 

NIBCO paid them in January 2013. Moreover, there is no evidence 

of a “recognized uncertainty” regarding NIBCO’s ability to obtain 

a refund when NIBCO paid those fees. Gallagher presents no 

evidence that NIBCO knew it had a right of refund and was 

intentionally relinquishing this right by paying the fees in 2013. 

For these reasons, the Court finds that the voluntary payments 

doctrine does not apply here. 

Timing of NIBCO’s Notice of Termination 

The parties raise an issue of fact regarding the timing of 

NIBCO’s notice of termination.7 Gallagher asserts that Section I 

                                                            

7 Neither party raises a legal argument relating to the timing of 

NIBCO’s notice of termination. However, the Court recognizes that 
‐31‐ 

required NIBCO to provide written notice of termination, and that 

NIBCO did not do so until August 2013. NIBCO responds that 

Gallagher received notice of termination when it received NIBCO’s 

RFP in April 2013. The RFP stated that its purpose was to select 

the broker responsible for placement of NIBCO’s casualty insurance 

program with a renewal date of January 1, 2014. According to 

NIBCO, due to the lead time required to place such a program, the 

RFP necessarily informed Gallagher that the broker selected would 

need to begin performing work by the fall of 2013. Gallagher 

argues that the RFP did not indicate that NIBCO intended to 

terminate Gallagher’s employment before the end of 2013, as it 

stated that the new broker would take effect for only the casualty 

program (one of three programs Gallagher serviced for NIBCO). 

Because NIBCO invited Gallagher to participate in the broker review 

process, Gallagher allegedly believed that NIBCO might select 

Gallagher to continue its role as broker after 2013. 

NIBCO also argues that Gallagher had actual notice of 

termination based on oral communications between NIBCO and 

Gallagher. See Goodman Jewelers, Inc. v. Walnut Brewery, Inc.,

No. 1:10-cv-01392, 2011 WL 3667714, at *5 (S.D. Ind. Aug. 22, 2011) 

(“where actual notice indisputably occurred, minor deviations from 

                                                            

if the Implied Service Contract is found to include a right to a 

refund upon termination, the timing of NIBCO’s notice of 

termination may impact the amount of a refund of Gallagher’s 

unearned fees.
‐32‐ 

the contract terms governing notice do not render the notice 

defective”). NIBCO points to evidence of a meeting between Seitz 

and Peterson on April 16, 2013, in which they discussed NIBCO’s 

dissatisfaction with the parties’ relationship, and NIBCO’s intent 

to conduct a broker review. While NIBCO asserts that Seitz 

notified Peterson of the termination at this meeting, an April 24, 

2013 email from Peterson to his boss does not indicate a clear 

understanding that the relationship between NIBCO and Gallagher 

had terminated, but rather, the possibility that the relationship 

would end. Peterson states that, “I don’t have a warm and fuzzy 

here at all . . . I’m getting the feeling that [Seitz] wants to 

move the business before even getting to know us.” (DE #41-1 at 

88.) 

NIBCO also asserts that Seitz told Peterson in May 2013 that 

Gallagher had not been selected as NIBCO’s new broker. Gallagher 

responds that when Seitz informed Peterson that NIBCO had not 

selected Gallagher, he did not indicate that NIBCO was terminating 

their relationship midterm. However, a June 2013 email between 

two Gallagher employees stated that Gallagher was no longer NIBCO’s 

broker. Based on this and other conflicting evidence, the Court 

finds that the parties raise a genuine issue of material fact as 

to the timing of NIBCO’s notice of termination. 
‐33‐ 

Unjust Enrichment Claim 

NIBCO’s Complaint also alleges a claim of unjust enrichment 

against Gallagher. An unjust enrichment claim “is a legal fiction 

invented by the common law courts in order to permit a recovery . 

. . where the circumstances are such that under the law of natural 

and immutable justice there should be a recovery.” Zoeller, 904 

N.E.2d at 220 (citation omitted). To prevail on an unjust 

enrichment claim, a plaintiff “must establish that a measurable 

benefit has been conferred on the defendant under such 

circumstances that the defendant’s retention of the benefit 

without payment would be unjust.” Id. (citation omitted). NIBCO 

claims that it conferred a measurable benefit on Gallagher by 

prepaying the fees for Gallagher’s services in 2013. NIBCO asserts 

that Gallagher performed virtually no services in exchange for the 

2013 fees, and that NIBCO gave Gallagher 30 days’ notice of 

termination. 

Gallagher argues that NIBCO’s unjust enrichment claim fails 

because an unjust enrichment claim is not actionable where there 

is a contract between the parties. See id. at 221. A claim for 

unjust enrichment is not cognizable where an implied-in-fact 

contract governs the parties’ behavior. See CoMentis, Inc. v. 

Purdue Research Found., 765 F. Supp. 2d 1092, 1102 (N.D. Ind. 2011) 

(“where an express contract governs the parties’ behavior, a claim 

for unjust enrichment is not cognizable.”) (citations omitted); F. 
‐34‐ 

McConnell and Sons, 84 F. Supp. 2d at 975 (noting that “the 

difference between express and implied-in-fact contracts is merely 

semantic, and there is no legally significant difference between 

[them]”). NICBO responds that its unjust enrichment claim was 

pled in the alternative to its implied-in-fact contract claim. 

A plaintiff seeking recovery for breach of contract may plead 

unjust enrichment in the alternative “because this theory allows 

for the possibility of recovery even if the court finds that no 

contract existed or that a contract existed but was unenforceable.” 

CoMentis, 765 F. Supp. 2d at 1102. However, “[o]nce a valid 

contract is found to exist, quasi-contractual relief is no longer 

available.” Id. at 1103 (citation omitted). The Court has found 

that implied-in-fact contracts existed for Gallagher’s brokerage 

services and claim services in 2013. Therefore, NIBCO’s claim for 

unjust enrichment is no longer available. NIBCO’s claim for unjust 

enrichment (Count I) is DISMISSED. 

Prejudgment Interest 

NIBCO seeks prejudgment interest on its alleged damages. The 

Court has found that NIBCO is not entitled to a refund of the 2013 

Claim Fee under the Implied Claim Contract, and has dismissed 

NIBCO’s claim for unjust enrichment. The Court has also found 

that a genuine issue of material fact exists as to whether the 

Implied Service Contract includes a right to a refund upon 
‐35‐ 

termination. For these reasons, NIBCO’s request for prejudgment 

interest is DENIED. 

CONCLUSION 

 For the reasons set forth above, Gallagher’s Motion for 

Summary Judgment (DE #38) is GRANTED IN PART AND DENIED IN PART. 

NIBCO’s Motion for Summary Judgment (DE #40) is DENIED. Count I 

of NIBCO’s Complaint is DISMISSED. 

DATED: March 29, 2016 /s/ RUDY LOZANO, Judge 

 United States District Court