Full opinion text
OPINION AND ORDER JAMES L. GRAHAM, District Judge. This is an action filed by plaintiff The Scott’s Company LLC (“Scotts”) against defendant Liberty Mutual Insurance Company (“Liberty Mutual”). Jurisdiction is based on diversity of citizenship. Scotts is a company incorporated under the laws of Ohio, with its principal place of business in Marysville, Ohio. Liberty Mutual is a Massachusetts corporation with its principal place of business in that state. Scotts has been in existence in various forms and under various names since 1868. Scotts was owned by International Telephone and Telegraph Corporation (“ITT”), a new York corporation, between 1971 and 1986, but thereafter Scotts regained its status as an independent company. I. History of the Case Scotts manufactures and sells a variety of lawn care and garden products, some of which contain substances considered hazardous under environmental regulations. Beginning in the 1980s, Scotts was faced with a number of regulatory actions filed by the United States and Ohio Environmental Protection Agencies stemming from Scotts’ manufacturing activities at the Marysville plant. In 1997, the Ohio Attorney General initiated proceedings against Scotts to compel remediation of pollution at the Marysville facility. In response to this litigation, Scotts implemented the “Environmental Recovery Project” to negotiate with its past insurers to release any obligation for future environmental claims in exchange for a lump-sum cash payment. Joyce Armstrong, Scott’s risk manager, headed the project. Ms. Armstrong is a Chartered Property and Casualty Underwriter with over twenty years of experience in the insurance industry. In January of 1998, Scotts retained Dispute Resolution Management, Inc. (“DRM”), a consulting firm which specializes in the “cashing in” of pollution claims under old insurance policies, to assist Scotts in settling its pollution claims with its past insurers. Scotts’ principal contact at DRM was Diane Archangeli. Ms. Archangeli is an attorney with prior experience in the insurance industry, including serving as in-house counsel for Travelers and Aetna. As part of the recovery project, Scotts and DRM contacted insurers which had allegedly issued policies to Scotts from the late 1950s to 1971, and to ITT during the period from 1971 to 1986 during which ITT owned Scotts. These insurers included Liberty Mutual, Wausau, and PEIC. Scotts also contacted ITT to investigate whether funds would be available under policies issued to ITT while it owned Scotts. Ms. Armstrong contacted Liberty Mutual by letter dated August 14, 1998, and requested copies of any general liability insurance policies issued to Scotts in the 1950s and 1960s. Doc. No. 167, Francisco Decl. Ex. J. Scotts claimed to have secondary evidence of policies allegedly issued by Liberty Mutual in the 1960s, and indicated that general liability policies may also have been issued by Liberty Mutual to Scotts in the 1950s. The documents submitted with the letter related to automobile injury and property damage claims. Liberty Mutual did a preliminary search of its records, and notified Ms. Archangeli that it was unable to locate any policies. Prior to 1978, Liberty Mutual’s document retention practices called for keeping copies of insurance policies only six or seven years past their expiration date. Doc. No. 167, Francisco Decl. Exs. O, P. In a letter dated October 5, 1998, Ms. Archangeli informed Liberty Mutual about information provided by Wausau Insurance concerning general and umbrella coverage. Doc. 167, Francisco Decl. Ex. S. This information included a declaration page for an umbrella excess policy allegedly issued by Liberty Mutual under policy number LEI-181-01-660-097, in effect from 10-1-67 to 10-1-68, with policy limits of $5 million per oceurrence/aggregated excess of underlying limits; two endorsements; and an umbrella excess liability policy jacket. Item 6 of the umbrella policy refers to Liberty Mutual as the carrier for a 1967-1968 CGL policy, number LPI-181-010660-077, with property damage limits of $100,000 per occurrence and in the aggregate. The documents also included lists of public liability open claims from Scotts from 10-1-58 through 6-20-67 and automobile open claims from 1-1-59 to 10-1-66. LM Tab 11. By letter from Ms. Armstrong dated December 28, 1998, Scotts provided Liberty Mutual with notice of potential environmental claims. Doc. 167, Francisco Decl. Ex. M. In addition to the policy numbers provided above, the letter referred to policy number LG1-621-004092-033, dated 12-31-73 to 12-31-76, allegedly issued by Liberty Mutual to Scotts during the period Scotts was owned by ITT. Ms. Armstrong requested that Liberty Mutual review its records and provide Scotts with any policies which were issued to Scotts, as well as any policies issued to ITT which included Scotts as a named insured. The parties entered into negotiations toward the resolution of Scotts’ environmental claims. On March 5, 1999, Ms. Archangeli made a PowerPoint presentation to Liberty Mutual on Scotts’ behalf concerning the history of Scotts’ environmental pollution problems dating back to the early 1980s and the projected clean-up costs. See Letter of March 4, 1999, from Ms. Archangeli to Liberty Mutual, Doc. 167, Francisco Decl. Ex. B. Scotts indicated that it had $9.8 million in environmental claims, and that it was willing to accept $4.5 million from Liberty Mutual to settle all past, present and future environmental claims. In a letter dated April 27, 1999, Brian Merchant, an environmental claims specialist with Liberty Mutual, advised Ms. Archangeli that he had found three policies issued to ITT from the mid-1970s, but that he had been unable to locate any policies issued to Scotts during the 1950s and 1960s. Doc. No. 167, Francisco Decl. Ex. Q. He indicated that Liberty Mutual was continuing its search for any policies issued to Scotts. By letter dated May 18, 1999, Ms. Archangeli advised Mr. Merchant that Scotts was only seeking coverage for claims related to its Marysville facility and eighteen third party sites. Doc. No. 167, Francisco Decl. Ex. CC. Ms. Archangeli acknowledged receipt of the ITT policies. Id. Ms. Archangeli further stated: Scotts is content to negotiate a settlement based upon the policy information that is available at this point in time. It seems unlikely to us that after nine months of looking for these policies, Liberty Mutual will turn up any new policy information. Therefore, rather than delay negotiations while you continue to look for policies, we propose again that we try to negotiate a resolution to Scotts’ environmental claims based on the facts as we know them today. Ex. CC. In a letter to Mr. Merchant dated July 22, 1999, Ms. Archangeli stated, “Scotts still feels that an amicable resolution of its claim is possible and is committed to working with Liberty Mutual in order [to] expedite a settlement of this matter.” Doc. No. 167, Francisco Decl. Ex. DD. By cover letter dated August 27, 1999, Terri Yahia, in-house counsel for Liberty Mutual, sent copies of “documents which Liberty Mutual located during its internal search for any and all documents relating to OM Scotts and other entities for which OM Scotts indicated it may be seeking coverage.” Doc. No. 167, Francisco Deck Ex. U. She stated that Liberty Mutual did not locate any relevant policies during its search, and that the only documents not forwarded to Scotts related to reinsurance and directors’ and officers’ coverage, not to general liability coverage. In a letter to Ms. Archangeli dated December 6, 1999, Mr. Merchant noted that the documents provided by Scotts did not include any primary liability policies, and that Liberty Mutual’s internal search had not located any primary or excess liability policies of insurance issued to Scotts. Doc. No. 167, Francisco Deck Ex. R. He indicated that various documents had been found, and that these had been sent to Ms. Archangeli in a previous letter (presumably the letter of August 27, 1999). Mr. Merchant further stated that, in the absence of any primary liability policies issued by Liberty Mutual to Scotts, Liberty Mutual would not provide any coverage under the alleged primary policies. He stated that Liberty Mutual had been unable to verify that the documents relating to the umbrella excess policy obtained from Wausau constituted a complete and accurate copy of all of the terms and conditions of any policy that may have been issued by Liberty Mutual to Scotts. Mr. Merchant further indicated that Liberty Mutual was reserving its right to assert various defenses to the claims, including lack of coverage, lack of timely notice of the claims, lack of a duty to defend, the possibility of a pollution exclusion in the alleged policies, and the operation and exhaustion of policy limits of liability. In a letter to Ms. Archangeli dated March 3, 2000, Mr. Merchant questioned some of the costs submitted by Scotts, noting the lack of invoices for those costs. Doc. No. 167, Francisco Deck Ex. Y. In a letter dated March 23, 2000, Ms. Archangeli informed Mr. Merchant that Scotts had been unable to locate invoices for all of the remediation expenditures, but asserted that other documents supported these claims. Doc. No. 167, Ex. T. She also noted that Scotts had recently found a premium invoice for policy number LP1181-01066-075 TD 92, which showed the premium paid for a three-year general liability policy allegedly issued by Liberty Mutual to Scotts from 10-1-65 through 10-1-68. Since, at that point, Scotts had settled its claims against ITT for $2 million, Ms. Archangeli indicated that Scotts was no longer seeking payment for damages that occurred while Scotts was a named insured under the ITT policies. She stated that Scotts had revised its damages estimate based on alleged coverage from October 1957 through October 1, 1968, arriving at a figure of $3,434,076. Ms. Archangeli indicated that after applying discounts for defenses which Liberty Mutual could be expected to assert, Scotts was now willing to settle the claims for $2.4 million. By letter dated May 26, 2000, Ms. Archangeli summarized the documents upon which Scotts was relying to substantiate its damage claims and the existence of coverage. Doc. No. 167, Francisco Deck Ex. Z. She referred to a Wausau internal underwriting memorandum dated October 1, 1968, which discussed Liberty Mutual’s long history as a Scotts insurance carrier, and evidence concerning the alleged Liberty Mutual umbrella excess policy number LEI-181-010660-097 (10-1-67 to 10-1-68) and the underlying CGL insurance policy number LP1-181-010660-077, including an open claims list from 10-1-58 through 6-20-67. Ms. Archangeli stated, “While Terry [Yahia] was not sure that the claim numbers listed were actually Liberty Mutual claim numbers, Georges Prouty [formerly of Liberty Mutual’s environmental section] was unequivocal in his statement that the claim numbers listed on these sheets are actually old Liberty claim numbers.” Ex. Z. She also pointed to documents in the Wausau underwriting file which identified Liberty Mutual as a prior carrier which wrote public liability, general liability, and umbrella coverage for Scotts from the late 1950s, and noted that a former risk manager for Scotts and a former Liberty Mutual underwriter recalled that Liberty wrote insurance for Scotts. The parties continued their settlement negotiations, and a Settlement Agreement and Release (“the Release”) was executed on July 12, 2000. Doc. No. 167, Francisco Deck Ex. BB. Scotts also negotiated releases with Wausau and PEIC in exchange for lump-sum settlements. Under the Release signed by Liberty Mutual and Scotts, Liberty Mutual agreed to pay Scotts the sum of $650,000, and Scotts agreed that “this payment exhausts all limits under all Policies.” Release, Section III. The term “Policies” is defined as meaning “any and all general liability insurance policies, contracts or agreements, sold or issued, or alleged to have been sold or issued, by Liberty Mutual to [Scotts] or [ITT] prior to the date of this Agreement.” Release, Section I.A. In consideration for this payment, Scotts agreed in Section IV of the Release to release Liberty Mutual from “any and all liability, duty or obligation under the Policies” with respect to: (i) Any and all past, present, and future Claims, whether known or unknown; and (ii) Any and all claims for compensatory, punitive, consequential, statutory, or extra-contractual damages based upon any allegations of bad faith, unfair claims practices, unfair trade practices or other act or failure to act in connection with the investigation, handling, adjustment, litigation or settlement of any Claims referred to in IV.(i) above. Release, Section TV. The term “Claims” is defined as all past, present and future claims, demands, actions, suits, proceedings, demands [sic], requests, obligations and liabilities of any kind, nature and description whatsoever, whether known or unknown, asserted or unasserted, which have ever been or which may in the future be made by any Person or entity seeking any relief of any kind, nature and description whatsoever. Release, Section I.D. The Release contained a provision concerning the exhaustion of policies: The Parties further acknowledge and stipulate that upon Liberty’s payment of the Settlement Amount, all of the available bodily injury, personal injury, and property damage aggregate limits, and/or any other aggregate limits contained in or any available coverage under each of the Policies issued or allegedly issued are exhausted in full and complete satisfaction of any and all obligations of any nature whatsoever of Liberty. With respect to the [ITT] policies only, the aggregate limits under these policies will be deemed to be exhausted only with respect to [Scotts]. Release, Section VI. Scotts also agreed to defend, indemnify, and hold Liberty Mutual harmless from any past, present and future claims or actions which have been or may be asserted by any person or entity against Liberty Mutual arising out of the released claims. Release, Section IX. The Release further states that the Release “is intended to be and is a commercial accommodation between the Parties hereto and shall not be construed as an admission of coverage under the Policies[.]” Release, Section X. Subsequent to the execution of the Release, Scotts was faced with new claims, including asbestos claims. In 2003, Scotts hired law firms to conduct a thorough search of the company’s records in storage facilities throughout the country. The search did not result in the discovery of any Liberty Mutual policies, but did uncover documents related to claims purportedly filed against Liberty Mutual policies, including a previously unknown policy number. Scotts filed the instant action against Liberty Mutual seeking to rescind the Release, and also filed similar actions against Wausau, PBIC, and ITT. In the first amended complaint filed in this action on February 5, 2007, Scotts asserts claims under Ohio law. In Count One, Scotts asserts a claim for breach of fiduciary duty, alleging that Liberty Mutual breached its fiduciary duty to Scotts by failing to disclose information regarding coverage, making false representations about the lack of information, and concealing evidence relevant to the Release. In Count Two, Scotts asserts a claim of fraud in connection with Liberty Mutual’s negotiation of the Release. In Count Three, Scotts asserts a claim for breach of contract, seeking to establish coverage for asbestos claims under Liberty Mutual policies allegedly in existence from 1958 to 1968 and the 1974-1977 ITT policies, as well as coverage for the environmental clean-up of the Marysville site under policies allegedly in existence from 1958 to 1968. Count Four asserts that Liberty Mutual breached its contract with Scotts by breaching the covenant of good faith and fair dealing in performing its obligations under the alleged policies. In Count Five, Scotts asserts that Liberty Mutual acted in bad faith in the handling, processing and payment of claims made by Scotts, and in denying coverage for Scotts’ claims. The bad faith claim has been stayed pending the resolution of Scotts’ other claims. See Doc. No. 161. Finally, in Count Six, Scotts seeks the remedy of rescission of the Release, claiming that the Release was induced by fraud and/or mistake, and was the product of Liberty Mutual’s breach of fiduciary duty. This matter is before the court on Liberty Mutual’s motion for summary judgment, and for sanctions pursuant to Fed.R.Civ.P. 11. In addition, Scotts has filed a motion for partial summary judgment on Counts Three and Four of the first amended complaint, those being the breach of contract claims. II. Summary Judgment Standards The procedure for granting summary judgment is found in Fed.R.Civ.P. 56(c), which provides: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, “that is, if 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). However, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex and Matsushita effected “a decided change in summary judgment practice,” ushering in a “new era” in summary judgments. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir.1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479. In addition, in responding to a summary judgment motion, the nonmoving party “cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must ‘present affirmative evidence in order to defeat a properly supported motion for summary judgment.’ ” Id. (quoting Liberty Lobby, 477 U.S. at 257, 106 S.Ct. 2505). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely “ ‘show that there is some metaphysical doubt as to the material facts.’ ” Id. (quoting Matsushita, 475 U.S. at 586, 106 S.Ct. 1348). Moreover, “[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact.” Id. That is, the nonmoving party has an affirmative duty to direct the court’s attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact. III. The Release Liberty Mutual’s motion for summary judgment raises the issue of the validity of the Release. A release is a contract that is favored by the law to encourage the private resolution of disputes. Lewis v. Mathes, 161 Ohio App.3d 1, 7, 829 N.E.2d 318 (2005). A release of a cause of action ordinarily acts as an absolute bar to any later action on any claim encompassed within the release. Haller v. Borror Corp., 50 Ohio St.3d 10, 13, 552 N.E.2d 207 (1990). A releasor may avoid that bar by alleging that the release was obtained by fraud, see id., or was the result of mutual mistake, see Pizzino v. Lightning Rod Mutual Insurance Co., 93 Ohio App.3d 246, 252, 638 N.E.2d 146 (1994). A contract may also be void for reasons pertaining to breach of fiduciary duty. High Caliber Range Club, Inc. v. Komer, No. 47985 (8th Dist.unreported), 1984 WL 6358 at *4 (Ohio App. Dec. 13, 1984). See, e.g., Williams Electronics Games, Inc. v. Garrity, 366 F.3d 569, 580 (7th Cir.2004) (under Illinois law, a release obtained by breach of a fiduciary obligation is unenforceable). Since a release is a kind of contract, the rules generally applicable to contracts, such as the requirement of an offer and acceptance, apply. See Noroski v. Fallet, 2 Ohio St.3d 77, 79, 442 N.E.2d 1302 (1982). Where a contract is clear and unambiguous, its interpretation is a matter of law. Latina v. Woodpath Development Co., 57 Ohio St.3d 212, 214, 567 N.E.2d 262 (1991); Lewis, 161 Ohio App.3d at 8, 829 N.E.2d 318 (where release is clear and unambiguous, its interpretation is a matter of law). In construing the terms of a contract, the primary objective is to ascertain and give effect to the intent of the parties. Hamilton Ins. Serv. Inc. v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 273, 714 N.E.2d 898 (1999). The intent of the parties is presumed to reside in the language they choose to employ in their agreement. Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth, 78 Ohio St.3d 353, 362, 678 N.E.2d 519 (1997). Absent fraud or mutual mistake, broadly-worded releases are generally construed to include all prior conduct between the parties, even if the scope of such conduct or its damage is unknown to the releasor. Denlinger v. City of Columbus, Ohio Public Schools, No. 00AP-315 (10th Dist.unreported), 2000 WL 1803923 *5 (Ohio App. Dec. 7, 2000). The language of the Release in this case is clear and unambiguous. The Release bars all past, present and future claims, both known and unknown, asserted or unasserted, under any and all general liability insurance policies issued by Liberty Mutual to Scotts or ITT prior to July 12, 2000, the date of the release. The parties also agreed that upon payment of the settlement by Liberty Mutual, all policy limits were deemed to be exhausted in full and complete satisfaction of any and all obligations of any nature whatsoever of Liberty. The language of the Release is broad enough to encompass any breach of fiduciary duty claim relating to the handling of the environmental claims submitted by Scotts to Liberty Mutual prior to the execution of the release, as well as the claims asserted in Counts Three and Four of the first amended complaint. Those claims are barred by the Release if it is valid. Thus, the court must determine whether genuine issues of fact exist in regard to whether the Release is invalid or subject to rescission due to a breach of fiduciary duty, fraud or mutual mistake. IV. Failure to Allege Fraud under Fed. RCiv.P. 9(b) In regard to Scotts’ fraud-based claims, Liberty Mutual argues that Scotts has failed to plead fraud with particularity, as required by Fed. R.Civ.P. 9(b). Liberty Mutual correctly notes that the only allegation of fraudulent conduct pleaded with any degree of specificity is contained in paragraph 17 of the first amended complaint, where Scotts alleges that Liberty Mutual denied that the open claims attached to the umbrella policy found by Scotts were Liberty Mutual numbers. Scotts is no longer relying on this allegation to establish its fraud claim. Scotts has never moved to amend its complaint to allege additional acts of fraud, but rather made additional allegations of alleged fraudulent conduct for the first time in its memorandum opposing Liberty Mutual’s July 11, 2007, motion for sanctions, filed August 8, 2007 (Doc. No. 119), and in its response to Liberty Mutual’s January 15, 2008, motion for summary judgment, filed February 8, 2008 (Doc. No. 198). Liberty Mutual argues that since Scotts failed to allege any other acts of fraud in the first amended complaint sufficient to satisfy the requirements of Rule 9(b), that failure warrants the entry of summary judgment on the fraud-based claims. Rule 9(b) requires that averments of fraud must be stated with particularity. Ullmo ex rel. Ullmo v. Gilmour Academy, 273 F.3d 671, 678 (6th Cir.2001). The Sixth Circuit reads this rule liberally, requiring a plaintiff, at a minimum, to allege the time, place, and content of the alleged misrepresentation on which plaintiff relied, the fraudulent scheme, the fraudulent intent of the defendants, and the injury resulting from the fraud. Coffey v. Foamex L.P., 2 F.3d 157, 161-62 (6th Cir.1993). Likewise, where a breach of fiduciary duty claim is based on fraud, the fraud must be pleaded with particularity. See In re National Century Financial Enterprises, Inc., Investment Litigation, 504 F.Supp.2d 287, 311 (S.D.Ohio 2007). Several circuits have held that a district court may enter summary judgment dismissing a complaint alleging fraud if the complaint fails to satisfy the requirements of Rule 9(b). See Sanchez v. Triple-S Management, Corp., 492 F.3d 1, 12 (1st Cir.2007); Dongelewicz v. PNC Bank National Assoc., 104 Fed.Appx. 811, 819 n. 4 (3d Cir.2004) (noting that a contention of fraud in a brief may not be used as a substitute for an allegation in a complaint in light of Rule 9(b)’s requirements); Caballero-Rivera v. Chase Manhattan Bank, N.A., 276 F.3d 85, 87 n. 3 (1st Cir.2002); U.S. ex rel. Schwartz v. Coastal Healthcare Group, Inc., 232 F.3d 902 (table), 2000 WL 1595976 *4 (10th Cir.2000) (Rule 9(b) deficiency can be resolved by summary judgment); Murr Plumbing, Inc. v. Scherer Brothers Financial Services Co., 48 F.3d 1066, 1070 (8th Cir.1995) (district court may enter summary judgment dismissing a complaint alleging fraud if the complaint fails to satisfy the requirements of Rule 9(b)); Whalen v. Carter, 954 F.2d 1087, 1098 (5th Cir.1992) (upholding summary judgment on fraud claim for failure to comply with Rule 9(b), noting that the failure to state a claim is the functional equivalent of failure to raise a genuine issue of material fact). In Ullmo, 273 F.3d at 677-78, the Sixth Circuit declined to consider a fraud claim which was raised for the first time on appeal. In Jude v. Inez Deposit Bank, 968 F.2d 1215 (table), 1992 WL 158877 *4 (6th Cir.1992), the Sixth Circuit upheld the award of summary judgment where plaintiffs complaint failed to plead fraud as required under Rule 9(b). However, in those cases, the Sixth Circuit did not clearly address the issue of whether it is appropriate to enforce Rule 9(b) in summary judgment proceedings. In contrast, the Ninth Circuit in Cable & Computer Technology Inc. v. Lockheed Sanders, Inc., 214 F.3d 1030, 1038 (9th Cir.2000), held that it was error for the district court to apply Rule 9(b) to a summary judgment motion, where evidence, not pleading, was to be considered. In Schriemer v. Greenburg, 931 F.2d 893 (table), 1991 WL 66552 *2 (6th Cir.1991), the court noted that “[njeither the pleadings nor the evidence proffered on summary judgment” met the requirements of Rule 9(b), thus suggesting that evidence submitted in summary judgment proceedings could be considered. The Sixth Circuit has also noted that in the absence of a motion for a more definite statement under Fed.R.Civ.P. 12(e), dismissal on the sole basis of failure to comply with Rule 9(b) “would not be appropriate.” Coffey, 2 F.3d at 162. The purpose of Rule 9(b) is to provide a defendant with “at least the minimum degree of detail necessary to begin a competent defense.” U.S. ex rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 504 (6th Cir.2008). Another purpose of the rule is to discourage fishing expeditions and strike suits which appear more likely to consume a defendants resources than to reveal evidences of wrongdoing. Id. “Because the defendant is informed of which of its specific actions allegedly constitute fraud, it can limit discovery and subsequent litigation to matters relevant to these allegations.” Id. In addition, fair notice of the nature of a plaintiffs fraud claim can assist the defendant in determining what evidence to look for or elicit in discovery. The court is concerned that the pleadings in the instant case have not promoted the above purposes. Having reviewed the exhaustive record in this case, it is apparent that Scotts either knew or should have been aware of all of the alleged acts of fraud upon which it now relies prior to the filing of the first amended complaint on February 5, 2007, with the exception of the 2007 loss run, which is dated February 6, 2007, the day after the first amended complaint was filed. Despite this knowledge, Scotts never moved to further amend its fraud claim in the complaint. Instead, Scotts waited until August of 2007, after Liberty Mutual moved for dismissal as a Rule 11 sanction, to make additional allegations of fraud in its memorandum contra, then asserted even more allegations of fraud in its response to Liberty Mutual’s motion for summary judgment, after the close of discovery on December 21, 2007. See Pretrial Scheduling Order, Doc. No. 114. Although Scotts characterizes its forty separate allegations of fraud as mere evidence, these allegations are not simply evidence supporting the one arguably Rule 9(b)-compliant allegation of fraud in the complaint, but rather are additional allegations of fraud which should have been pleaded with particularity under Rule 9(b). Liberty Mutual did not file a motion to dismiss the complaint due to the fact that the complaint arguably pleaded at least one allegation of fraud with particularity. Liberty Mutual also did not file a motion under Fed.R.Civ.P. 12(e) for a more definite statement; however, until Scotts filed its response to Liberty Mutual’s motion for sanctions in August of 2007, Liberty Mutual could reasonably have been misled by the single well-plead allegation of fraud into thinking that this was the only act of fraud underlying the fraud claim. The unusual circumstances of this case lend significant support to the approach taken by other circuits which permit the enforcement of Rule 9(b) in summary judgment proceedings, and this court would be inclined to follow that view. However, the Sixth Circuit has not definitively decided the issue, and the fraud claims in this case have now been fully briefed on summary judgment. Therefore, in the alternative and in the interests of judicial economy, the court will address whether summary judgment is appropriate on Scotts’ fraud-based claims based on the evidence presented. V. Count One — Breach of Fiduciary Duty Liberty Mutual has moved for summary judgment on Scotts’ breach of fiduciary duty claim. In this claim, Scotts alleges that, as Scotts’ insurer, Liberty Mutual owed a fiduciary obligation to Scotts. Scotts further asserts that Liberty Mutual breached a fiduciary obligation to Scotts during the negotiations leading to the execution of the Release by allegedly failing to disclose information relevant to coverage under policies allegedly issued by Liberty Mutual to Scotts, by deliberately concealing information regarding the existence of coverage which would have been material to Scotts’ decision to enter into the Release, and by intentionally or recklessly misrepresenting that it did not have secondary evidence of coverage. In Count Six, Scotts claims that this alleged breach of fiduciary duty warrants rescission of the Release. Liberty Mutual first argues that the breach of fiduciary duty claim is barred by the four-year statute of limitations applicable to actions for breach of fiduciary duty. See Ohio Rev.Code § 2305.09. The limitations period for actions for breach of fiduciary duty under Ohio law is the four-year period found in § 2305.09. Crosby v. Beam, 83 Ohio App.3d 501, 509, 615 N.E.2d 294 (1992). An action for breach of fiduciary duty accrues “in the absence of undiscovered fraud” when the fiduciary relationship is terminated. State ex rel. Lien v. House, 144 Ohio St. 238, syllabus para. 2, 58 N.E.2d 675 (1944). In this case, the claim would have accrued on July 12, 2000, when the settlement negotiations between Scotts and Liberty Mutual were concluded with the signing of the Release. The original complaint in the instant case was filed on October 25, 2006, over six years later. However, Scotts argues that the statute of limitations should be tolled by the discovery provision in § 2305.09, which states that a cause of action “shall not accrue ... until the fraud is discovered.” “The ‘discovery rule’ generally provides that a cause of action accrues for purposes of the governing statute of limitations at the time when the plaintiff discovers or, in the exercise of reasonable care, should have discovered the complained of injury.” Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 179, 546 N.E.2d 206 (1989). Where a claim for breach of fiduciary duty is based on negligence or matters other than fraud, the discovery rule does not apply. Helman v. EPL Prolong, Inc., 139 Ohio App.3d 231, 249, 743 N.E.2d 484 (2000) (claim for breach of fiduciary duty stemming from transfer of assets accrued when the act or commission constituting the breach of fiduciary duty occurred and the discovery rule did not apply); Kondrat v. Morris, 118 Ohio App.3d 198, 207, 692 N.E.2d 246 (1997) (discovery provision did not toll limitations period for breach of fiduciary duty claim based on negligence); Herbert v. Banc One Brokerage Corp., 93 Ohio App.3d 271, 273-74, 638 N.E.2d 161 (1994) (breach of fiduciary duty claim based on negligent failure to train and supervise employee not tolled by discovery rule). However, in the case of a fraudulent breach of fiduciary duty, the discovery rule applies. Orvets v. National City Bank, Northeast, 131 Ohio App.3d 180, 189, 722 N.E.2d 114 (1999). To the extent that Scotts’ claim is based on conduct which falls short of fraud, such as a mere negligent failure to disclose information during the settlement negotiations or nonfraudulent mishandling of the environmental claims submitted by Scotts, it is barred by the statute of limitations. Insofar as this claim is based on alleged fraud, the discovery rule may be invoked to toll the limitations period. However, the court need not decide whether the fraud aspect of Scotts’ breach of fiduciary duty claim is time-barred, because the court concludes that summary judgment is appropriate on this claim on other grounds. Liberty Mutual argues that the breach of fiduciary duty claim fails because the evidence is insufficient to create a genuine issue of material fact as to the existence of a fiduciary relationship between Liberty Mutual and Scotts in regard to the negotiation of the Release. If Liberty Mutual owed no fiduciary duty to Scotts in negotiating the Release, then this claim fails, and therefore cannot serve as a basis for rescinding the Release. A breach of fiduciary duty claim has three elements: (1) the existence of a duty arising from a fiduciary relationship; (2) a failure to observe such duty; and (3) an injury proximately resulting therefrom. Strock v. Pressnell, 38 Ohio St.3d 207, 216, 527 N.E.2d 1235 (1988). Under Ohio law, fiduciary duties can arise either by law or by the operation of the relationship between the parties. Stone v. Davis, 66 Ohio St.2d 74, 419 N.E.2d 1094 (1981). A fiduciary relationship is defined as a relationship “in which special confidence and trust is reposed in the integrity and fidelity of another and there is a resulting position of superiority or influence, acquired by virtue of this special trust.” Schory & Sons, Inc. v. Society National Bank, 75 Ohio St.3d 433, 442, 662 N.E.2d 1074 (1996). A fiduciary relationship is not unilaterally created; rather, both parties must understand that a special trust or confidence has been reposed in the relationship. Umbaugh Pole Building Co., Inc. v. Scott, 58 Ohio St.2d 282, syllabus para. 1, 390 N.E.2d 320 (1979). In Ohio, an insurance company has a fiduciary responsibility toward its insured to act in good faith toward its insured in carrying out its duties under the contract. Motorists Mut. Ins. Co. v. Said, 63 Ohio St.3d 690, 694, 590 N.E.2d 1228 (1992), overruled in part on other grounds, Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397 (1994). However, Scotts’ claim, which is based on an alleged breach of fiduciary duty in connection with the negotiations for the Release, does not involve an alleged mishandling of a particular claim for insurance benefits, but rather the negotiation of an omnibus settlement where the very existence of the policies and the precise nature of any insurance coverage under those alleged policies were in dispute. Liberty Mutual correctly notes that under Ohio law, in the absence of special circumstances, no fiduciary relationship exists between parties negotiating an arm’s-length commercial transaction. Landskroner v. Landskroner, 154 Ohio App.3d 471, 485-86, 797 N.E.2d 1002 (2003) (citing Blon v. Bank One, Akron, N.A., 35 Ohio St.3d 98, 101, 519 N.E.2d 363 (1988)). “[I]n business transactions where parties deal at arm’s length, each party is presumed to have the opportunity to ascertain relevant facts available to others similarly situated and, therefore, neither party has a duty to disclose material information to the other.” Blon, 35 Ohio St.3d at 101, 519 N.E.2d 363. The fact that one party possesses more expertise concerning the matter under negotiation is insufficient in itself to establish a special relationship of trust. Greenberg v. Life Insurance Co. of Virginia, 177 F.3d 507, 521-22 (6th Cir.1999) (purchasers of life insurance policies failed to state claim against insurer for breach of fiduciary duty, citing Ohio law). Ohio courts have not addressed the precise question of whether an insurance company owes a fiduciary duty to a business entity claiming to be an insured, where arms-length negotiations occur concerning the existence of insurance policies and a release from any obligation, under the alleged policies. However, Liberty Mutual notes that Ohio courts have declined to find a fiduciary relationship in analogous commercial situations. For example, in Ed Schory & Sons, the Ohio Supreme Court held that there was no fiduciary relationship between debtor and creditor where the creditor and debtor were dealing at arm’s length in a commercial context, with each party protecting its own interests. 75 Ohio St.3d at 442-43, 662 N.E.2d 1074. The court noted in that case that neither party had, or could have had, a reasonable expectation that the creditor would act solely or primarily on behalf of the debtor, particularly since the debtor was not an unsophisticated individual, but rather an experienced developer who had been involved in thousands of loans. Id. at 443, 662 N.E.2d 1074. In Blon, the Ohio Supreme Court held that the creditor bank had no duty to disclose to the borrower the existence and details of a finder’s fee or similar arrangement with a credit manager. Blon, 35 Ohio St.3d at 101-03, 519 N.E.2d 363. The court concluded that the bank did not have a fiduciary relationship with the debtor because the credit arrangement was an ordinary arm’s-length transaction, where each party sought the desired advantages of the transaction, and the debtor had previous experience with credit transactions. Id. at 100-03, 519 N.E.2d 363. See also Groob v. KeyBank, 108 Ohio St.3d 348, 353, 843 N.E.2d 1170 (2006) (no fiduciary duty arose between bank and prospective borrower where there were no special circumstances, and where parties were dealing at arm’s length, looking out for their own best interests); Umbaugh Pole, 58 Ohio St.2d at 287, 390 N.E.2d 320 (debtor-creditor relationship did not create a fiduciary relationship where debtors entered into a relationship with “an institutional lender in a commercial context in which the parties dealt at arms length, each protecting his own interest.”). In another analogous situation, Ohio courts have held that the relationship of insurance agent and insured is not the type of relationship which automatically gives rise to a fiduciary relationship. See Nichols v. Schwendeman, No. 07AP-433 (10th Distunreported), 2007 WL 4305718 at *3 (Ohio App. Dec. 11, 2007) (noting that “Ohio courts have held that the relationship between an insurance agent and his client is generally not a fiduciary relationship, but, rather, an ordinary business relationship.”); Advent v. Allstate Insurance Co., No. 05AP-1092 (10th Distunreported), 2006 WL 1495066 at *3 (Ohio App. June 1, 2006) (same); Slovak v. Adams, 141 Ohio App.3d 838, 846 n. 2, 753 N.E.2d 910 (2001) (“ ‘While the law has recognized a public interest in fostering certain professional relationships, such as the doctor-patient and attorney-client relationships, it has not recognized the insurance agent-client relationship to be of similar importance.’ ”) (quoting Nielsen Enterprises, Inc. v. Ins. Unlimited Agency Inc., No. 85AP-781 (10th Distunreported), 1986 WL 5411 (Ohio App. May 8, 1986)). A confidential relationship between insurance agent and insured cannot be unilateral, and both parties must understand that a special trust or confidence has been reposed. Slovak, 141 Ohio App.3d at 847, 753 N.E.2d 910. Where there is no evidence that the insurance agent understood that a special trust or confidence had been reposed, and that he was undertaking a special duty, no fiduciary relationship is created. Id. (holding that where there was no evidence that agent understood that he was undertaking the responsibility of informing client regarding the nonrenewal of her policy or acquiring replacement coverage, no fiduciary relationship was created). Although Liberty Mutual was technically the alleged underwriter of insurance coverage, not an insurance agent, the above cases suggest by analogy that Liberty Mutual’s alleged status as an insurer is insufficient in itself to create a fiduciary duty owed by Liberty Mutual to Scotts for purposes of the parties’ arms-length negotiations concerning the existence and scope of any alleged past policies. The evidence shows that Scotts and Liberty Mutual negotiated for a one-time payment in settlement of any liability which Liberty Mutual might have had as a result of any general liability policies which Liberty Mutual may have issued to Scotts in the past. Since neither Scotts nor Liberty Mutual could locate the actual policies, the existence of the policies was in dispute. These negotiations fall within the category of an arms-length business transaction, with each party protecting its own interests. This is the type of relationship which, under Ohio law, would ordinarily not be fiduciary in nature in the absence of special circumstances where both parties understood that a special trust had been imposed. No evidence of special circumstances has been presented in this case. Scotts, a sophisticated business entity, had the assistance of its own experts. Ms. Armstrong, Scotts’ risk management director, had worked in the insurance area for over two decades, including working for insurance companies. LM Tab 10, Armstrong Dep. pp. 956-57. She had a CPCU (chartered property casualty underwriter) designation which required her to pass ten exams over the course of five years, including an exam on general liability insurance. Id. at pp. 597-98. Scotts also retained the services of DRM to assist with the negotiations. Scotts’ contact at DRM, Ms. Archangeli, is an attorney with prior experience in the insurance industry, including serving as in-house counsel for Travelers and Aetna. See Doc. No. 167, Francisco Deck Ex. D; LM Tab 33. In a letter to Scotts dated August 27, 1997, Ms. Archangeli stated, “DRM is a management consulting practice specializing in business-oriented settlements of environmental and insurance related disputes.” Doc. No. 167, Francisco Decl. Ex. D. DRM offered to assist Scotts’ efforts to recover environmental remediation costs from its liability and property insurance carriers. Id. DRM’s brochure states that its “highly specialized insurance archeology research is designed to fill gaps in coverage or identify coverage for the specific years in which the client has incurred liabilities.” Id. DRM’s literature further states, “We have assembled a multi-disciplinary team of seasoned attorneys, MBAs and former insurance litigators and professionals to deliver this service.” Id. There is no evidence in the record from which a jury could reasonably find that both Scotts and Liberty - Mutual would have understood that a special trust and confidence had been reposed in Liberty Mutual to protect Scotts’ interests during these negotiations, or that Liberty Mutual exerted a position of superiority or influence over Scotts. Scotts has failed to produce evidence sufficient to raise a genuine issue of material fact as to the existence of a fiduciary relationship between Scotts and Liberty Mutual in regard to the negotiation of the Release. Liberty Mutual is entitled to summary judgment on Scotts’ breach of fiduciary duty claim. VI. Count Two — Fraud A. Introduction Liberty Mutual argues that it is entitled to summary judgment on Scotts’ fraud claim. Liberty Mutual first contends that the fraud claim is barred by the limitations period applicable to fraud claims under § 2305.09. However, the court will not decide whether the fraud claim is time-barred, but will address whether genuine issues of fact have been shown to exist in regard to Scotts’ fraud claim. In order to establish a claim of fraud under Ohio law, Scotts must prove: (1) a representation, or silence where there is a duty to disclose; (b) which is material to the transaction; (c) made falsely, with knowledge of its falsity, or with such utter disregard as to its truth or falsity that knowledge may be inferred; (4) with the intent to mislead another into relying upon it; (5) justifiable reliance upon the representation or concealment; and (6) a resulting injury proximately caused by the reliance. Williams v. Aetna Finance Co., 83 Ohio St.3d 464, 475, 700 N.E.2d 859 (1998). The elements of the claim are conjunctive, and therefore all of them must be shown. Graham v. American Cyanamid Co., 350 F.3d 496, 507 (6th Cir.2003) (citing Schwartz v. Capital Sav. & Loan Co., 56 Ohio App.2d 83, 381 N.E.2d 957, 959 (1978)). When the plaintiff seeks to set aside a written document, clear and convincing evidence of fraud is required. Micrel, Inc. v. TRW, Inc., 486 F.3d 866, 873-74 (6th Cir.2007) (in action for rescission of a settlement and mutual release agreement on the grounds of fraudulent inducement, plaintiff was required to prove fraud by clear and convincing evidence) (citing Household Fin. Corp. v. Altenberg, 5 Ohio St.2d 190, 214 N.E.2d 667, 669-70 (1966)). A representation is material if it is essential to contract formation; in other words, if the contract would not be formed but for the representation, then the representation is material. Burke Lakefront Services v. Lemieux, No. 79665 (8th Dist.unreported), 2002 WL 1821962 *5 (Ohio App. Aug. 8, 2002). However, the statement must involve a past or present fact. “Generally, fraud is not predicated on a representation concerning a future event, as such representation is more in the nature of a promise or contract or constitutes mere predictions or opinions about what the future may bring.” Yo-Can, Inc. v. The Yogurt Exchange, Inc., 149 Ohio App.3d 513, 525, 778 N.E.2d 80 (2002); see also Micrel, Inc., 486 F.3d at 874 (applying Ohio law). In addition, to satisfy the elements of fraud, a representation must be as to a fact material in the transaction, not mere opinion. Aetna Insurance Co. v. Reed, 33 Ohio St. 283 (1877); Citizens Banking & Savings Co. v. Spitzer, Rorick & Co., 65 Ohio App. 309, 318, 29 N.E.2d 892 (1938). In Reed, the Ohio Supreme Court stated: If the representation be mere matter of opinion, or of a fact equally within the knowledge of both parties, or one upon which the party had no right to rely, the representations, though acted on, will not vitiate the transaction. This is always the case where the parties are mutually cognizant of the facts acted on, or stand on an equal footing in relation to them, and there exists no fiduciary relation between them. The law will not lend its aid to help one thus situated and advised, if he voluntarily neglects to protect himself by the exercise of his common sense. 33 Ohio St. at 292. The court went on to state that in the absence of a fiduciary relationship, “misrepresentations, touching a party’s legal rights, will generally afford no sufficient reason on which to avoid a contract. Such representations, however erroneous and strongly asserted, are to be treated, when made to a party free to inform himself of his legal rights, as mere statements of opinion.” Id. at 294-95; see also Lynch v. Dial Finance Co. of Ohio No. 1, Inc., 101 Ohio App.3d 742, 750, 656 N.E.2d 714 (1995) (a representation of law concerning the transaction is an opinion and cannot form the basis of an action for fraud). In Reed, the plaintiff alleged that he had been induced by fraudulent representations made by the defendant insurance company’s adjuster, including statements concerning plaintiffs legal rights under the policies, into making a settlement and release of his rights under certain insurance policies. The Ohio Supreme Court held: Where an agent of an insurance company makes representations to one having a claim for a loss against the company, the parties standing in antagonistic relations to each other, that the latter had no claim or rights that he could enforce by legal proceedings, such representations are only opinion — representations upon which he had no right to rely; and if he does so rely, it must be at his own risk, because the truth or falsehood of such representations could be ascertained by ordinary diligence. Reed, Syllabus Para. 3. Scotts has submitted a list of forty paragraphs containing allegedly fraudulent statements or omissions on the part of Liberty Mutual. These allegations include citations to documents, affidavits, declarations and deposition testimony in the record which are relied upon by Scotts to show that the statements were made and that they were false. The court has reviewed the exhibits cited in these paragraphs, and, unless otherwise indicated, the cited materials constitute evidence that the alleged statements were made. Some of these alleged statements are related and will be grouped for purposes of discussion. The exhibits found in Scotts Supplemental Exhibit Binder will be referred to with the preface “Scotts Ex.” The exhibits contained in the binder entitled Liberty Mutual Supplemental Exhibits will be referred to as “LM Tab” with the number designation, and the exhibits contained in the Liberty Mutual binder of exhibits referenced in the May 2, 2008, hearing on the motion for summary judgment will be referred to as “LM Tab” with the letter designation. B. Failure to Locate Policies The first group of allegations relates to statements by Liberty Mutual employees that no Scotts policies were located during Liberty Mutual’s search of its records: 1. On October 21, 1998, Christie O’Brien, Liberty Mutual’s claims handler assigned to the Scotts matter, spoke with Ms. Archangeli and “[informed her that we have not found any evidence or any policies for OM Scott.” Oct. 21, 1998, O’Brien Log, Ex. A-5 [Scotts’ Ex. 15]. The above statement is taken from the phone logs of Christie O’Brien, a Liberty Mutual environmental claims specialist, regarding her conversation with Ms. Archangeli. There is no evidence that, at the time this statement was made, Liberty Mutual had found any evidence of policies or policies which had been issued to Scotts. However, Scotts goes beyond the plain meaning of the statement and alleges that the reference to “any evidence” was false because it suggested that Liberty Mutual had already begun the search for secondary evidence, when, according to Scotts, it had not. Scotts also repeats this argument concerning secondary evidence in several of the allegations of fraud discussed below. A jury could not reasonably find that the matter of whether Liberty Mutual was searching for secondary evidence prior to April 22, 1999, when the Phase II request was distributed, was material. In regard to this particular claim, there is no reason why the issue of whether Liberty Mutual was searching for secondary evidence in October of 1998 was material to the settlement in July of 2000. Ms. O’Brien’s statement was made early in the investigation process. The search for policies continued, as evidenced by three additional policy search requests made to the Liberty Mutual librarian dated December 3, 1998, January 20, 1999, and March 3, 1999. LM Tabs 2-4. These searches were followed by a broader Phase II search request for documents dated April 22, 1999, which was sent to twenty-eight Liberty Mutual offices and divisions. See LM Tab 5. The documents found as a result of these searches were sent to Ms. Archangeli by Ms. Yahia with the cover letter dated August 27, 1999. LM Tab 7. There is also no evidence that Scotts relied on Ms. O’Brien’s statement, or that such reliance would have been reasonable. Scotts did not abandon its claims against Liberty Mutual after hearing Ms. O’Brien’s report. Rather, Scotts gave notice of its pollution claims by letter dated December 28,1998, and asked for copies of ITT policies. LM Tab 8. Scotts also continued to supply information to Liberty Mutual to further the search for documents which would support its claims. For example, additional records were furnished to Scotts by Letter dated March 23, 2000, from Ms. Archangeli to Mr. Merchant. LM Tab 12. As late as June 5, 2000, Ms. Armstrong spoke with Robert Kostecki of Liberty Mutual and requested that Liberty Mutual keep looking for policies. LM Tab 28. Scotts was aware that Liberty Mutual was continuing to search for documents even during the final stages of the settlement negotiations, yet Ms. Archangeli expressly asked that Liberty Mutual continue to negotiate toward a final settlement even though the search for records had not been completed. LM Tab 29. Scotts then decided to accept Liberty Mutual’s settlement offer before the second Phase II search was completed. LM Tab 43. In regard to whether the statement was false, Scotts’. argument assumes that everyone involved in the negotiations agreed on what constituted primary evidence and what constituted secondary evidence. While witnesses were occasionally asked during their depositions whether certain specific items of evidence, such as loss runs, could constitute secondary evidence of the existence of policies, the parties have pointed to no uniform definition or common understanding of the term. Fine distinctions could be drawn. For example, would primary evidence be confined to the actual paper documents of the original policy? Would a Liberty Mutual policy number be primary evidence or secondary evidence of a policy? There is no evidence that Ms. O’Brien, who is not an attorney, would have understood the phrase “any evidence” as being a reference to secondary evidence. As the term “evidence” is generally used, an actual policy document could constitute “evidence” of the existence of that policy. In arguing that Liberty Mutual would not have begun searching for evidence beyond actual policies at this point in time, Scotts relies on evidence concerning the two phases employed by Liberty Mutual for searching its records, referred to as Phase I and Phase II searches. Alan Schlemmer of Liberty Mutual’s Environmental Department described a Phase I search as a request to the library to find policies, and a Phase II search as trying to make every search which could be identified. Scotts Ex. 94, Schlemmer Dep. pp. 192-194. In this case, the Phase II search request was not distributed until April 22, 1999. See LM Tab 5. However, other evidence shows that Liberty Mutual’s search prior to the Phase II search request would not have been confined solely to a search for policies. The actual Phase I request form directed to the librarian includes the statement “DO YOU WANT RELATED MATERIALS?” with “Yes” and “No” boxes to check. See LM Tab 2. This indicates that the Phase I request is not limited to actual policy documents. The “Yes” box was checked on forms sent in the Scotts matter on December 3, 1998, January 20, 1999, and March 3, 1999. See LM Tabs 2-4. In addition, the record includes an e-mail from the Liberty Mutual policy librarian to Ms. O’Brien dated October 14, 1998, see LM Tab 1, states: I was unable to locate anything in my search for O.M. Scott policies. I searched our Stoughton database for anything containing Scott or equaling the serial number 010660. Nothing came up. I also contacted the Lewiston BPAP to see if they had any records. They responded that they had no records after 25 years. The librarian’s e-mail does not state that the search was confined to policies alone. The e-mail states that the librarian was unable to locate “anything” in the search for policies, that the database was searched for “anything” containing “Scott” or the number “010660,” and that the Lewiston facility was contacted to see if they had “any records.” The reference to “any records” suggests that the search was not confined to actual policies. In addition, a jury could not reasonably find that Ms. O’Brien intended through the use of the phrase “any evidence” to misrepresent the nature or scope of the search. Ms. O’Brien’s log notes do not contain the term “secondary evidence,” nor do they purport on their face to give a report concerning the nature or scope of the search being conducted at that point; they simply state that nothing regarding Scotts had yet been found. Ms. O’Brien testified in her deposition that she did not recall having any discussions with Ms. Archangeli concerning what searches had been done or the Phase II search. O’Brien Dep., pp. 73-77. There is also evidence that Ms. O’Brien was never assigned to the Scotts matter, that she was not involved in the actual search for documents, and that she was just asked to respond to Ms. Archangeli’s letter of October 5, 1998. O’Brien Dep. pp. 43-44, 70; Scotts Ex. 94, Schlemmer Dep. p. 213. There is no evidence that Ms. O’Brien had any information about the details or progress of the Scotts search request other than the e-mail from the librarian quoted above, or that she intended to make any statement concerning the scope of the search. Even if she was thinking in terms of the scope of the search, Ms. O’Brien could have reasonably interpreted the e-mail she received from the policy librarian as referring to a search for other information as well as actual policies. A jury could not reasonably conclude from the evidence that she knowingly or recklessly misrepresented the nature of the search. 2. On March 5,1999, representatives of Scotts, DRM, and Liberty Mutual met at Liberty Mutual’s office in Dover, New Hampshire. Ms. Armstrong from Scotts, Ms. Archangeli from DRM, Mr. Merchant, the new claims adjuster at Liberty Mutual, and Terri Yahia, an in-house lawyer for Liberty Mutual, attended the meeting. During the meeting, Ms. Yahia told Scotts and DRM “that Liberty Mutual had not been able to find any evidence of policies that had been issued to Scotts.” Armstrong Aff., ¶ 4, 5, Ex. A-8 [Scotts Ex. 24]. Scotts argues that this statement gave the impression that Liberty Mutual had been searching for secondary evidence in March of 1999 when in fact the Phase II search request was