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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : : : v. : : NATIONAL AUTO CARE CORPORATION : : ...o0o...

LEN STOLER, INC.

Civil Action No. CCB-08-288

MEMORANDUM Now pending before the court is a motion to dismiss Count IV of a complaint brought by plaintiff Len Stoler, Inc. ("LSI) for failure to state a claim, filed by defendant National Auto Care Corporation ("NAC"). See Fed. R. Civ. P. 12(b)(6). In Count IV, LSI alleges intentional misrepresentation with respect to the execution of a contract between it and NAC, in violation of Maryland law. The issues in this case have been fully briefed and no hearing is necessary. For the reasons stated below, the defendant's motion to dismiss Count IV will be granted.

BACKGROUND The following facts are presented in the light most favorable to the plaintiff. In 1997, NAC, an Ohio-based corporation, approached Maryland-based LSI through NAC's agent Richard Blanken to solicit its participation in certain extended warranty and insurance arrangements offered by NAC. Over the course of the next seven years, LSI entered into three contracts with NAC: (1) a Used Vehicle Certification Program Dealer Agreement, signed on November 21, 1997 ("Agreement 1"); (2) a Vehicle Service Contract Profit Sharing Agreement, signed on April 20, 1998 ("Profit Sharing Agreement"); and (3) a Service Contract Sales 1

Agreement, signed on August 13, 2004 ("Agreement 3"). Under the terms of Agreements 1 and 3, NAC would underwrite and administer limited warranties and insurance for LSI's used vehicles, enabling LSI to market its used vehicles as "certified." In return, LSI would remit to NAC at least twenty used vehicle certifications per month. Under the terms of the related Profit Sharing Agreement, NAC agreed to provide 100% of the "profits" on the insurance premiums it collected from these arrangements to LSI. Profits were defined in that Agreement as "earned premiums less claims incurred, and allocated claims expenses, and bank fees and charges, and excise and premium taxes, if any, and all other expenses payable directly on the premiums." (Compl. Ex.2, Profit Sharing Agreement

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Maryland Law