Novakv.Nationwide Mutual Insurance Company

Not overruled or negatively treated on appealinfoCoverage
Michigan Court of AppealsJun 1, 1999
235 Mich. App. 675 (Mich. Ct. App. 1999)
235 Mich. App. 675599 N.W.2d 546

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No. 204162

Submitted February 2, 1999, at Detroit.

Decided June 1, 1999, at 9:05 A.M.

James W. Bigelow, for the plaintiff.

Harvey Kruse, P.C. (by Thomas F. Kauza and William F. Rivard), for the defendants.

Before: MACKENZIE, P.J., and GRIBBS and Wilder, JJ.


Plaintiff Terry Novak (plaintiff), who alleged that the Nationwide defendants (defendants) illegally terminated his position as an insurance sales agent because they found his Detroit-area clients economically undesirable, appeals as of right from an order granting defendants' motion for summary disposition of his nine-count complaint. We affirm.

Factual Background

In August 1991, in anticipation of assuming responsibility for his father's insurance agency, Novak Associates Insurance, Inc., plaintiff signed an employment agreement with defendants. Among other things, the agreement specified that (1) if plaintiff successfully completed a training period, defendants would enroll him in their New Agent Development Program or New Business Agent Program, (2) if plaintiff successfully handled his father's former accounts for two years, he would then begin to receive full commissions on those accounts, (3) plaintiff was not to sell insurance for any insurance carriers other than defendants unless defendants specifically directed him to do so, and (4) plaintiff's employment with defendants was terminable at will by either party.

In March 1993, defendants terminated plaintiff's employment. Plaintiff filed suit, claiming, among other things, that the at-will provision in the employment contract was inapplicable to him and that defendants improperly terminated his employment on the basis of his reluctance to move his agency out of Wayne County. Defendants argued that notwithstanding the at-will provision, they properly terminated plaintiff's employment because he (1) commingled personal and business funds, (2) often remitted premium payments to them in an untimely fashion, and (3) allowed unauthorized individuals to sign insurance certificates.

Standards of Review

Except for his claim under the federal Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq., discussed infra, all of plaintiff's claims were dismissed under MCR 2.116(C)(10). We review de novo a trial court's grant of summary disposition under MCR 2.116(C)(10). Paul v. Lee, 455 Mich. 204, 210; 568 N.W.2d 510 (1997). Like the trial court, we look at the entire record, view the evidence in favor of the nonmoving party, and decide if there exists a relevant factual issue about which reasonable minds might differ. Id. If, as in the instant case, the nonmoving party would bear the burden of proof at trial, that party, in order to avoid summary disposition, must provide documentary evidence showing the existence of a disputable issue. Quinto v. Cross Peters Co., 451 Mich. 358, 362; 574 N.W.2d 314 (1996).

The trial court dismissed plaintiff's FHA claim under MCR 2.116(C)(7) because it concluded that the period of limitation for the claim had run. We review a grant of summary disposition under MCR 2.116(C)(7) de novo. Iovino v. Michigan, 228 Mich. App. 125, 131; 577 N.W.2d 193 (1998). We consider all documentary evidence submitted by the parties and accept the plaintiff's well-pleaded allegations, except those contradicted by documentary evidence, as true. Id.; Patterson v. Kleiman, 447 Mich. 429, 433-435; 526 N.W.2d 879 (1994). We view the uncontradicted allegations in favor of the plaintiff and determine whether the claim is time-barred. Id.

Wrongful Discharge and Breach of Legitimate Expectations

Plaintiff argues that the termination of his employment violated an implied just-cause employment agreement and that the trial court therefore should not have summarily disposed of his wrongful discharge and breach of legitimate expectations claims. He bases this argument on an alleged oral statement by one of defendants' employees that the at-will termination provision in the written employment contract would not apply to him. This alleged oral statement, however, did not negate the at-will provision in the written contract, which also contained a provision requiring that modifications of the contract be in writing and be signed by a company representative. When an employment contract expressly provides for employment at will, a plaintiff, by signing the contract, assents to employment at will and cannot maintain a cause of action based on a prior oral agreement for just-cause employment. Nieves v. Bell Industries, Inc., 204 Mich. App. 459, 463; 517 N.W.2d 235 (1994); see also Stopczynski v. Ford Motor Co., 200 Mich. App. 190, 193; 503 N.W.2d 912 (1993). Thus, the trial court properly dismissed plaintiff's wrongful discharge claim. The court also properly dismissed plaintiff's breach of legitimate expectations claim, because a claim based on legitimate expectations rests on the employer's promises to the work force in general — for example, promises contained in a company handbook — rather than on promises made to an individual employee, and because plaintiff made no claim that defendants promised just-cause employment to the work force in general. Nieves, supra at 464; see also Dolan v. Continental Airlines/Continental Express, 454 Mich. 373, 384, 386-387; 563 N.W.2d 23 (1997).

Insurance Code Anti-Redlining Provisions

Plaintiff argues that notwithstanding the employment contract's at-will provision, defendants nevertheless improperly terminated his employment because the Insurance Code precludes the termination of an agent's employment for certain specified reasons even if an employment contract otherwise allows for it. Specifically, plaintiff claims that there was a question of fact regarding whether defendants discharged him because of the loss history and geographic location of his Wayne County agency and thereby violated the anti-redlining provisions contained in § 209 of the Michigan Insurance Code, MCL 500.1209; MSA 24.11209, which states, in pertinent part, as follows:

(3) As a condition of maintaining its authority to transact insurance in this state, an insurer transacting automobile insurance or home insurance in this state shall not cancel an agent's contract . . . except for 1 or more of the following reasons:

(a) Malfeasance.

(b) Breach of fiduciary duty or trust.

(c) A violation of this act.

(d) Failure to perform as provided by the contract between the parties.

(e) Submission of less than 25 applications for home insurance and automobile insurance within the immediately preceding 12-month period.

(4) Subsection (3) shall not be construed as permitting a termination of an agent's authority based primarily upon any of the following:

(a) The geographic location of the agent's home insurance or automobile insurance business.

(b) The actual or expected loss experience of the agent's automobile or home insurance business, related in whole or in part to the geographical location of that business.

* * *

(5) Subsection (3) . . . shall not apply with respect to an agent who is an employee of an insurer . . . if the property rights in the renewal are owned by the insurer . . . and the cancellation or termination of the agent's contract does not result in the cancellation or nonrenewal of any home or automobile insurance policy. [Emphasis added.]

Plaintiff argues that he did not fall within the parameters of subsection 5 — and that he was therefore protected by subsections 3 and 4 — because his discharge resulted in the cancellation of home and automobile insurance policies. He additionally argues that even if subsection 5 had applied to him, defendants nevertheless impermissibly terminated his employment because subsection 4, which prohibits termination based on location and loss experience, is not inextricably linked to subsection 3 and is thus unaffected by subsection 5. We disagree with both of these arguments.

First, there was no genuine factual dispute regarding whether plaintiff fell within the parameters of subsection 5. Plaintiff did not and does not dispute that he was an employee of defendants or that defendants owned the property rights in his customers' policy renewals. Accordingly, the only question relevant to the requirements of subsection 5 is whether plaintiff's termination resulted in the cancellation or nonrenewal of any home or automobile insurance policies. Although the record did suggest that after plaintiff's discharge a slightly higher cancellation rate of automobile insurance policies occurred than was usual, there was no evidence that any of these policies were canceled for invalid reasons. As the party who opposed summary disposition and who would bear the burden of proof at trial, plaintiff had the obligation to show that at least one home or automobile policy cancellation resulted from his termination as an agent and not from a legitimate reason. See Quinto, supra at 362. Plaintiff failed to do so. He implies that some customers' policies were "constructively" canceled because Nationwide made the servicing of their policies so difficult that the customers were forced to seek other insurance. We agree with the trial court, however, that inefficient servicing of an account cannot be equated with a policy cancellation under the unambiguous language of subsection 5. Because plaintiff was defendants' employee, because defendants owned the renewal rights in the policies, and because plaintiff did not produce evidence that his termination caused the cancellation of at least one policy, he satisfied the requirements of subsection 5 and therefore did not enjoy the protection of subsection 3.

Nor did plaintiff enjoy the protection of subsection 4, because that subsection, by its plain wording, merely construes subsection 3. In other words, if subsection 3 is inapplicable, then subsection 4 is also inapplicable. We do not agree with plaintiff's argument that subsection 4 stands alone. In statutory interpretation, the primary goal must be to ascertain and give effect to the Legislature's intent, People v. Stanaway, 446 Mich. 643, 658; 521 N.W.2d 557 (1994), and the judiciary should presume that the Legislature intended a statute to have the meaning that it clearly expresses. People v. Roseburgh, 215 Mich. App. 237, 239; 545 N.W.2d 14 (1996). A court should not speculate about the legislative intent beyond the statute's actual words. In re Schnell, 214 Mich. App. 304, 310; 543 N.W.2d 11 (1995). Here, the wording of subsection 4 clearly does not state a separate rule of law but merely clarifies the meaning of subsection 3. Thus, subsection 4 does not stand alone but is instead, like subsection 3, subject to the exclusion found in subsection 5. Because plaintiff fell within the subsection 5 exclusion, he was not protected by subsection 4, and his claim that defendants illegally terminated his employment because of his agency's loss history and location was therefore not viable.

Promissory Estoppel

Next, plaintiff argues that a viable claim of promissory estoppel existed because defendants told him that the at-will provision in the contract did not apply to him. Although related to theories of wrongful discharge and breach of legitimate expectations, promissory estoppel is a distinct cause of action. See Marrero v. McDonnell Douglas Capital Corp., 200 Mich. App. 438, 442; 505 N.W.2d 275 (1993). The elements of promissory estoppel are (1) a promise, (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee, and (3) that in fact produced reliance or forbearance of that nature in circumstances such that the promise must be enforced if injustice is to be avoided. Id. In determining whether a requisite promise existed, we are to objectively examine the words and actions surrounding the transaction in question as well as the nature of the relationship between the parties and the circumstances surrounding their actions. First Security Savings Bank v. Aitken, 226 Mich. App. 291, 313; 573 N.W.2d 307 (1997); State Bank of Standish v. Curry, 442 Mich. 76, 86; 500 N.W.2d 104 (1993). We are to exercise caution in evaluating an estoppel claim and should apply the doctrine only where the facts are unquestionable and the wrong to be prevented undoubted. Marrero, supra at 442-443. Here, assuming arguendo that one of defendants' employees told plaintiff that the at-will provision in the written contract did not apply to him, the circumstances surrounding the statement precluded an objective finding of a clear and definite promise of just-cause employment, because the signed contract contained an at-will provision, along with an integration clause, that expressly contradicted the alleged oral representation. Therefore, plaintiff's employment with defendants was terminable at will, and the trial court properly dismissed plaintiff's promissory estoppel claim.

Fraudulent and Innocent Misrepresentation

Next, plaintiff argues that he raised viable claims of fraudulent and innocent misrepresentation regarding several statements defendants allegedly made in connection with hiring him. He claims that defendants induced him into signing the written contract by fraudulently informing him that (1) he would immediately begin to receive commissions on renewals of policies that had been serviced by his father, (2) they would do "everything in their power" to facilitate the transfer of his father's agency to him, (3) his office expenses would be paid directly to the creditors, (4) the at-will provision in the written contract did not apply to him, and (5) he would be allowed to sell insurance for companies other than Nationwide.

The elements of fraudulent misrepresentation are (1) the defendant made a material representation, (2) the representation was false, (3) when making the representation, the defendant knew or should have known it was false, (4) the defendant made the representation with the intention that the plaintiff would act upon it, and (5) the plaintiff acted upon it and suffered damages as a result. MD, Inc. v. W.B. McConkey, 231 Mich. App. 22, 27; 585 N.W.2d 33 (1998). A claim of innocent misrepresentation is shown if a party to a contract detrimentally relies on a false representation in such a manner that the injury suffered by that party inures to the benefit of the party who made the representation. Id. at 27-28. We find no evidence of either fraudulent or innocent misrepresentation with regard to the above statements about which plaintiff complains.

First, regarding statement 1 above, that plaintiff would immediately begin to receive commissions on the renewals of policies that had been serviced by his father, plaintiff testified that the allegedly false information defendants gave him about commissions occurred after he signed the contract; thus, he could not have relied on the information in signing the contract. Second, there is no evidence that defendants made statement 2 above; the employment manual referenced by plaintiff in conjunction with this alleged statement says only that defendants would "sincerely endeavor" to facilitate the transfer of retired agents' agencies to relatives, provided that certain other criteria were met, and there was no evidence that defendants failed to do this. Regarding statement 3, that plaintiff's office expenses would be paid directly to the creditors, plaintiff did not show that this statement was false; instead, the evidence showed that defendants did intend to pay plaintiff's creditors directly but later found that they were unable to do so because of unforeseen billing difficulties and because the office expenses had to be apportioned between plaintiff and his non-Nationwide office mate.

Finally, the written contract, with its integration clause, expressly contradicted statements 4 and 5, making plaintiff's alleged reliance on these statements unreasonable. See Nieves, supra at 460-465 (plaintiff acted unreasonably in relying on oral statements that were contradicted by a written employment agreement). There is a conflict in this Court regarding whether reliance on a false representation must be reasonable to support a fraud claim. In Nieves, supra at 464, Webb v. First of Michigan Corp., 195 Mich. App. 470, 474-475; 491 N.W.2d 851 (1992), State-William Partnership v. Gale, 169 Mich. App. 170, 179; 425 N.W.2d 756 (1988), and Cormack v. American Underwriters Corp., 94 Mich. App. 379, 385; 288 N.W.2d 634 (1979), this Court indicated that the reliance must be reasonable. The panel in Phinney v. Perlmutter, 222 Mich. App. 513, 534-537; 564 N.W.2d 532 (1997), disagreed. Citing People v. Young, 212 Mich. App. 630, 639; 538 N.W.2d 456 (1995), remanded on other grounds 453 Mich. 976 (1996), as authority, the Phinney panel indicated that it was not following Nieves, a 1994 opinion, under Administrative Order No. 1996-4 (the predecessor to MCR 7.125, which requires that this Court follow rules of law established in Court of Appeals opinions issued on or after November 1, 1990) because there were opinions both before and after Nieves that dispensed with the reasonableness requirement. Phinney, supra at 536.

Young, however, clearly indicated that in cases of conflicting opinions issued on or after November 1, 1990, the Court is to follow the first opinion that addresses the matter at issue. Young, supra at 639. Thus, the Phinney Court's reliance on cases issued after Nieves in deciding that Nieves need not be followed was misplaced. Indeed, the Phinney Court could follow a case conflicting with Nieves only if it was issued before Nieves and after November 1, 1990. Phinney cited one case in this category Brownell v. Garber, 199 Mich. App. 519, 534; 503 N.W.2d 81 (1993) — and one Supreme Court case, Kassab v. Michigan Basic Property Ins. Ass'n, 441 Mich. 433, 442-443; 491 N.W.2d 545 (1992). Phinney, supra at 536. These two opinions, however, merely reiterated the well-known requirement that reliance must occur for a successful fraud claim; they did not directly address the issue at hand, i.e., whether the reliance must be reasonable. Both Nieves, supra at 464, and Webb, supra at 474-475, however, did address this issue, holding that the reliance must indeed be reasonable. Thus, the Phinney panel was required to follow this interpretation, as are we, under MCR 7.215 and Young, supra at 639. Notwithstanding our obligation to follow Nieves and Webb, we believe these opinions stated the correct rule of law, because a person who unreasonably relies on false statements should not be entitled to damages for misrepresentation. Thus, because plaintiff's reliance on statements 4 and 5 was not reasonable in light of the written contract, the statements, as a matter of law, did not support a misrepresentation claim. See Nieves, supra at 464-465.

The Federal Fair Housing Act

Next, plaintiff argues that the trial court improperly dismissed his claim based on the FHA, which, among other things, prohibits racial discrimination in transactions involving residential real estate. There is a split of authority regarding whether insurance redlining is actionable under the FHA, see Mackey v. Nationwide Ins. Cos., 724 F.2d 419 (CA 4, 1984), and Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351 (CA 6, 1995), but we need not attempt to resolve this issue today, because plaintiff's claim was untimely. The limitation period for claims under the FHA is two years, 42 U.S.C. § 3613(a)(1)(A), and plaintiff filed suit two years and three months after his discharge. Therefore, his FHA claim was barred by the statute of limitations. Plaintiff attempts to avoid this result by alleging that continuing violations of the act served to extend the limitation period. See Equal Employment Opportunity Comm. v. Penton Industrial Publishing Co., Inc., 851 F.2d 835, 838-839 (CA 6, 1988) (similar discriminatory acts occurring within the limitation period can extend the filing deadline for a claim that would otherwise be time-barred). Specifically, plaintiff alleges that cancellations of homeowner insurance policies within the two years preceding the initiation of his suit were continuing violations of the act. However, the basis for plaintiff's FHA claim had to be the economic consequences of his discharge, see Mackey, supra at 422-423 (insurance agent gains standing under FHA by virtue of economic injury), meaning that the critical violation for the purposes of his claim was the firing itself, which led to financial loss, and not the cancellation of insurance policies after his termination. Thus, plaintiff cannot logically argue that later policy cancellations were continuing violations that extended the limitation period for his FHA claim, especially because a key to whether the continuing violations doctrine should apply is whether the original discriminatory act had the degree of permanence that should trigger an employee's assertion of rights. Anderson v. City of Bristol, 6 F.3d 1168, 1175 (CA 6, 1993). Plaintiff's firing did indeed have a degree of permanence that should have triggered his assertion of his rights, and he was therefore obligated to commence his FHA claim within two years of the date of his discharge. The trial court properly dismissed plaintiff's FHA claim under MCR 2.116(C)(7).

The Civil Rights Act

Finally, plaintiff argues that the trial court improperly dismissed his claims based on the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. He claims that defendants' alleged attempt to deny insurance to minorities violated § 302 of the act, MCL 37.2302; MSA 3.548(302), which prohibits racial discrimination in the provision of goods and services. We agree with the trial court, however, that plaintiff had no standing to raise this claim. In order to have standing, a person must have a "legally protected" interest that is in jeopardy of being adversely affected by the challenged action. In re Foster, 226 Mich. App. 348, 358; 573 N.W.2d 324 (1997). While plaintiff did have an economic interest that was adversely affected by his discharge, this interest was not legally protected. Section 302 of the Civil Rights Act protects the persons who are being denied goods and services, not the persons who are attempting to provide the goods and services. The minorities to whom defendants allegedly denied insurance coverage, as the persons protected by the statute, are the proper plaintiffs for a redlining claim. See Health Central v. Comm'r of Ins., 152 Mich. App. 336, 348; 393 N.W.2d 625 (1986). Indeed, in the absence of a rule of law conferring standing, plaintiff could not bring civil rights claims on behalf of those seeking insurance. See Mackey, supra at 421-423, Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103; 99 S.Ct. 1601; 60 L.Ed.2d 66 (1979), and Havens Realty Corp. v. Coleman, 455 U.S. 363, 372; 102 S.Ct. 1114; 71 L.Ed.2d 214 (1982) (insurance agent who alleges racially discriminatory redlining has standing under broad standing provisions of FHA but does not have standing under federal Civil Rights Act). Since the Civil Rights Act itself does not confer standing on insurance agents for claims under § 302, plaintiff was not the proper person to seek enforcement of the rights of those seeking insurance.

Plaintiff also claims that defendants violated § 701 of the Civil Rights Act, MCL 37.2701; MSA 3.548(701). He alleges violations of subsections e and f, which state:

Two or more persons shall not conspire to, or a person shall not:

* * *

(e) Willfully obstruct or prevent a person from complying with this act or an order issued or rule promulgated under this act.

(f) Coerce, intimidate, threaten, or interfere with a person in the exercise or enjoyment of, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act. [MCL 37.2701; MSA 3.548(701).]

We disagree that there was a question of fact regarding whether defendants violated subsection f, because the evidence shows that plaintiff did not help any minority insurance applicants gain equal access to insurance coverage as guaranteed under § 302 of the act. His deposition testimony indicated that when defendants told him not to insure someone through Nationwide, he reluctantly obeyed them. Subsection f would have applied only if plaintiff disobeyed defendants in their alleged redlining scheme and was threatened or intimidated as a result. Nor do we agree that there was a question of fact regarding whether defendants violated subsection e. With regard to this subsection, plaintiff alleges that defendants prevented him from issuing automobile insurance to newly licensed drivers. However, newly licensed drivers are not a subset of persons protected by the Civil Rights Act, meaning that even if plaintiff did try to insure these people through Nationwide, he was not trying to "comply with the act" under subsection e. Accordingly, the trial court properly dismissed plaintiff's claims under § 701 of the Civil Rights Act.


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