Sutter Insurance Co v. Applied Systems Inc ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1871
SUTTER INSURANCE COMPANY,
Plaintiff-Appellant,
v.
APPLIED SYSTEMS, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 5849—Matthew F. Kennelly, Judge.
____________
ARGUED DECEMBER 2, 2004—DECIDED DECEMBER 28, 2004
____________
Before BAUER, POSNER, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. This is a diversity suit, governed by
Illinois law, for breach of contract. (Certain other claims
have dropped out.) The plaintiff, Sutter, is an insurance
company that purchased the “Diamond System,” a com-
puter software program, from the defendant, Applied, which
designs and sells business applications software. Sutter had
to replace its existing software because the provider had
announced that it would soon cease providing updates. The
district judge, after a bench trial, rejected Sutter’s claims but
also Applied’s counterclaim; only Sutter has appealed.
2 No. 04-1871
The contract, which was signed and took effect in March
of 2000, provides for the sale by Applied of “the Software
and Services as specified in the attached Schedule ‘A’.”
Schedule A, captioned “Diamond Base System Features and
Functions,” describes the features of the Diamond System
and indicates that it supports a variety of lines of insurance
business, including home, auto, and umbrella, and that it
handles billing and accounting, including agency billing (i.e.,
billing the insurance premium to an insurance agent rather
than to the insured directly), although a headnote to the
schedule warns that “based upon each company’s specifica-
tions and implementation plans, all listed features, and
functions may not be implemented.” By “company’s” is
meant “customer’s” because the contract defines “company”
to mean the customer, not Applied.
Schedule F of the contract specifies three prices: $300,000
for the Diamond Base System, $35,000 for “Line of Business
Fee,” and $25,000 for “State Fee.” The term “line of business”
refers to a line of insurance business, such as “Commercial
Auto,” “Vehicle Service Contracts,” and “Dwelling Fire.”
Sutter sells 28 lines. The “state fee” is a fee for adapting the
Diamond Base System to the insurance regulatory environ-
ment of a given state, such as California, where Sutter does
most of its business, though it sells in three other states as
well. The $60,000 in fees over and above the $300,000 for the
base system were thus fees for tailoring the Diamond
System to a single line of business in a single state.
Schedule F specifies that the line to which the Diamond
Base System is to be tailored is Preferred Homeowner and
the state is California. The total price of $360,000 is to be
paid when the Diamond System, adapted to the California
Preferred Homeowner line, is delivered to Sutter. But the
delivery must “includ[e] the minimum functionality indi-
cated as ‘necessary to go live’ on Schedule ‘A.’ ” “Go live”
No. 04-1871 3
means placing the system in operation, though there might
still be bugs to work out, for the contract warns Sutter that
“in the design and development of complex computer soft-
ware systems limited system defects or errors may be ex-
pected.” (No kidding!)
The California Preferred Homeowner line was a new line
and one for which Sutter bills directly rather than through
insurance agents. After some hitches, the application of the
Diamond System to that line “went live,” and at that point
Sutter had to complete payment of the $360,000 specified in
the contract, and it did so. But the California Preferred
Homeowner line is only a tiny part of Sutter’s business, for
remember that Sutter sells 28 lines in four states, and it uses
agency rather than direct billing in 26 of its 27 other lines in
all four states. So with the software for the California Pre-
ferred Homeowner line up and running, the parties imme-
diately turned to the other lines (the “Tier I” lines, they
called them). Unfortunately, Applied proved unable to
adapt the Diamond System to agency billing, which meant
that Sutter had to find another vendor. So, Sutter announced
that it was canceling the contract, though it said it would
continue to use the Diamond software on the California
Preferred Homeowner line until the existing policies ex-
pired, because it had no other software that could handle
that line of business. It was, as we said, a new line, and
Sutter’s previous provider had not served it and could not
do so. Applied, perhaps contrite, did not object.
A provision of the contract that we have not yet men-
tioned states that after acceptance of delivery Sutter may no
longer revoke the contract without Applied’s consent. This
scotches Sutter’s alternative argument—alternative to the
argument that Applied broke the contract—that Sutter
rightfully revoked the contract when Applied proved unable
to adapt the Diamond System to agency billing and is there-
4 No. 04-1871
fore entitled to the return of the $360,000 irrespective of
whether Applied broke the contract in failing to adapt the
Diamond System to Sutter’s other lines of business. Cf.
Roach v. Concord Boat Corp., 880 S.W.2d 305, 308 (Ark. 1994);
General Motors Acceptance Corp. v. Anaya, 703 P.2d 169, 171
(N. Mex. 1985); Baker v. Wade, 949 S.W.2d 199, 201 (Mo. App.
1997). As we have just seen, the contract forbade revocation
at will. It did not foreclose Sutter from terminating the con-
tract if Applied failed to honor its terms. Basselen v. General
Motors Corp., 792 N.E.2d 498, 505-06 (Ill. App. 2003); cf. Barry
& Sewall Industrial Supply Co. v. Metal-Prep of Houston, Inc., 912
F.2d 252, 257 (8th Cir. 1990). But that is the breach of
contract issue, and has nothing to do with revocation rights.
Let us turn, then, to the contract issue. Sutter paid Ap-
plied a total of $492,811—$360,000 for the Diamond System
and $132,811 for servicing and maintaining the system. It
claims these as damages and also claims to have incurred
some incidental damages as a result of having to obtain an
alternative system (consisting in fact of updates to its
existing system) to handle agency billing for its other lines
of business. The district judge ruled that Applied’s inability
to adapt the Diamond System to agency billing was not a
breach of contract, and so Sutter was out of luck and must
swallow its entire loss. But he also rejected Applied’s
counterclaim, which sought recovery of the expense that
Applied had incurred in its futile efforts on the Tier I lines.
The judge found that Applied’s work on those lines “did not
conform to the specifications ‘stated in Schedule A,’ as the
[contract] required.” “Specifically, they did not meet
Schedule A’s representations regarding agency billing and
related functions. . . .[T]hese specifications, reasonably
construed, communicated to Sutter that the software would
conform to its agency billing reconciliation needs. The
No. 04-1871 5
software failed to do so, and it was not capable of doing so
without further work for which Applied proposed to bill
Sutter.”
There appears to be an inconsistency in the district judge’s
opinion. It says on the one hand that Applied’s inability to
furnish Sutter with software capable of handling agency
billing was not a breach of contract, but on the other hand
that Applied’s unsuccessful efforts to furnish such software
did not conform to the specifications in Schedule A. (Those
“specifications, reasonably construed, communicated to
Sutter that the software would conform to its agency billing
reconciliation needs. The software failed to do so.”) That
sounds like a breach of contract by Applied, since Schedule
A was of course part of the contract, though the judge may
simply have meant that even if Sutter could not terminate
the contract merely because Applied was unable to furnish
software for any line of business except the Preferred
Homeowner line, Applied had no right to an additional
$35,000 fee for providing software that didn’t work.
Applied—ignoring Schedule A—interprets the contract to
mean that Sutter’s only entitlement is, at a price of $360,000,
for software for one line of business in one state. The first
line Sutter selected was the Preferred Homeowner line and
once the software for that line was up and running, Sutter
had to pay $360,000 to Applied and Applied had no further
obligations to Sutter. The judge’s ruling on the counter-
claim, quoted above, is difficult to reconcile with such an
interpretation.
In nevertheless ruling for Applied on the main claim, the
judge did not explain how Applied’s interpretation could be
squared with either the language of Schedule A or the
extrinsic evidence that had been placed in evidence at the
trial without objection (though why there was no objection
is unclear, since the contract contains an integration clause)
6 No. 04-1871
in order to help guide interpretation of the contract. That
evidence included testimony that Sutter had made clear to
Applied during the negotiations leading up to the signing
of the contract its desire to convert all its lines of business to
the Diamond System—and remember that Schedule A
specifies agency billing as one of the capabilities of the sys-
tem. It is true that Schedule A warns that some of these
capabilities “may not be implemented” because of the cus-
tomer’s “specifications and implementation plan,” but the
evidence indicates that the impossibility of implementing
the other lines had nothing to do with Sutter’s “specifi-
cations and implementation plan.” It had rather to do with
the fact that, as an internal communication of Applied states,
“we [Applied] do not have a lot of experience with [agency
billing].” A later such communication states: “This should
be a learning experience [for us].” (Learning at Sutter’s
expense!) And then there is Applied’s inability to furnish
working software for the Tier I lines—Applied’s failure, the
judge found, not Sutter’s.
It is also true that the contract warns of “limited system de-
fects or errors” (emphasis added). The apparent reference is
to the usual bugs that afflict a software program, bugs that
might take a long time to work out. But the district judge’s
ruling on the counterclaim indicates, as we have just noted,
that Applied was incapable of adapting the Diamond
System to agency billing, rather than that its software for
doing so had bugs that could eventually be eliminated.
Another reason to doubt Applied’s interpretation of the
contract is that it would not make sense for Sutter to pay
$360,000 for software good for only a minor line of business
(the Preferred Homeowner line accounted for only 1 percent
of Sutter’s total business) and in a single state (albeit its
most important state). The two-part price—a fixed price of
$300,000 plus a price that varied with the number of lines of
No. 04-1871 7
business—was an invitation to Sutter to order software for
additional lines beyond the first in order to spread the fixed
base fee over more lines and so reduce Sutter’s average cost
of billing insurance premiums. The implication was that
Sutter could in fact obtain from Applied the additional
software specified in Schedule A, and thus reduce
its average cost. If Sutter had to obtain software from a
different company for agency billing, moreover, it might
have to pay another stiff flat fee and anyway the added
burden on its computer staff would be great. These consid-
erations support an inference that Applied was committing
itself to adapt the Diamond System to all of Sutter’s lines,
provided that Sutter itself didn’t, by its specifications or
implementation plans, prevent Applied from doing the
necessary adapting at reasonable cost.
Aware of these points, the district judge remarked: “This
was not a particularly sensible contract for Sutter to sign.”
Yet at the same time he described Sutter correctly as a
commercially sophisticated enterprise. What is more, Sutter
was an experienced user of computer software for agency
billing. It is nevertheless possible that it bought a pig in a
poke for $360,000—a piece of software that, usable only for
Sutter’s smallest line of business, was absurdly overpriced.
But how plausible is the suggestion? Commercial reason-
ableness is a useful guide to the interpretation of an am-
biguous contract. Fox v. Commercial Coin Laundry Systems,
757 N.E.2d 529, 532 (Ill. App. 2001); Chicago Title & Trust Co.
v. Telco Capital Corp., 685 N.E.2d 952, 955-56 (Ill. App. 1997);
NutraSweet Co. v. American Nat’l Bank & Trust Co. of Chicago,
635 N.E.2d 440, 444-45 (Ill. App. 1994); Utica Mutual Ins. Co.
v. Vigo Coal Co., No. 04-1015, 2004 WL 2930973, at *3 (7th Cir.
Dec. 20, 2004); Baldwin Piano, Inc. v. Deutsche Wurlitzer GmbH,
No. 04-1617, 2004 WL 2904311, at *2-4 (7th Cir. Dec. 16,
2004); National Tax Institute, Inc. v. Topnotch at Stowe Resort
8 No. 04-1871
& Spa, 388 F.3d 15, 19 (1st Cir. 2004). “Generally the contract
price is roughly equivalent to the value of the contractual
performance . . . . An enormous disparity between price and
value is a clue that something may be amiss.” PMC, Inc. v.
Sherwin-Williams Co., 151 F.3d 610, 615 (7th Cir. 1998); see
also Joseph v. Wilson, 372 N.E.2d 1110, 1113 (Ill. App. 1978).
Or as the Illinois Appellate Court put it in the NutraSweet
case, “where a contract is susceptible to one of two construc-
tions, one of which makes it fair, customary, and such as
prudent men would naturally execute, while the other
makes it inequitable, unusual, or such as reasonable men
would not be likely to enter into, the interpretation which
makes a rational and probable agreement must be pre-
ferred.” 635 N.E.2d at 445.
Moreover, this is not a case in which the language of the
contract is at war with the “reasonable” interpretation urged
by the party whose position the language disfavors. The
language as a whole favors Sutter, not Applied. Sutter’s
interpretation fits both the language of the contract and the
contract’s commercial setting better than Applied’s does.
But this is not to say that the district judge’s ruling was
necessarily wrong. Some of the evidence that we have re-
ferred to in support of Sutter’s interpretation was contested
and the judge did not indicate which side he believed.
Although the language of the contract and the economic
setting favor Sutter, there may conceivably be enough con-
trary evidence, depending on the resolution of the conflicts
in it, to support the judge’s decision. However, because his
findings do not trace a clear path from the evidence to the
judgment, we are constrained to vacate the judgment and
remand the case for further proceedings. Ueland v. United
States, 291 F.3d 993, 994-95 (7th Cir. 2002); Louis Vuitton, S.A.
v. K-Econo Merchandise, 813 F.2d 133, 134-35 (7th Cir. 1987);
Pearson v. Fair, 808 F.2d 163, 165-66 and n. 2 (1st Cir. 1986)
No. 04-1871 9
(per curiam); United States for Use of Belcon, Inc. v. Sherman
Construction Co., 800 F.2d 1321, 1324 (4th Cir. 1986). On
remand the judge can if he wishes conduct a further eviden-
tiary hearing. And since the total amount of money at stake
in this case is modest by the standards of modern federal
litigation, maybe this opinion will provide sufficient
guidance to enable the parties to settle the case.
VACATED AND REMANDED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-28-04