Walker v. Nationwide Mut. Ins. Co. , 2018 Ohio 1810 ( 2018 )

[Cite as Walker v. Nationwide Mut. Ins. Co., 2018-Ohio-1810.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
William D. Walker, :
Plaintiff-Appellant, :
No. 16AP-894
v. : (C.P.C. No. 14CV-13157)
Nationwide Mutual Insurance Company, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on May 8, 2018
On brief: Caryn Groedel & Associates, Co., LPA, Matthew S.
Grimsley, and Caryn M. Groedel, for appellant. Argued:
Matthew S. Grimsley.
On brief: Jones Day and Matthew A. Kairis, for appellee.
Argued: Matthew A. Kairis.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Plaintiff-appellant, William D. Walker, appeals from the decision of the
Franklin County Court of Common Pleas entering judgment in favor of defendant-appellee,
Nationwide Mutual Insurance Company ("Nationwide"), on Walker's claims for wrongful
termination in violation of public policy. The trial court determined that Tennessee law
applies to Walker's claims, and that they are time-barred under that state's statute of
limitations. For the following reasons, we affirm.
I. Factual and Procedural Background
{¶ 2} Nationwide is an Ohio corporation with its principal place of business in
Franklin County, Ohio. (Jun. 1, 2016 Answer at ¶ 2.) Walker first started working for
Nationwide in 1991 in Indianapolis, Indiana. In 1992, Nationwide transferred him to
No. 16AP-894 2
Tennessee to work in its South Central Region, which encompasses Tennessee, Kentucky,
Arkansas, Mississippi, Minnesota, and Iowa. Walker was a resident of Tennessee during
the remainder of his employment with Nationwide, which was terminated on April 2, 2013.
(Answer at ¶ 5-6; Mar. 3, 2015 Second Am. Compl. & Answer at ¶ 1, 5-6, 51; Aff. of Terry F.
Saharski, hereinafter "Saharski Aff.," at ¶ 2 & 8.)
{¶ 3} From December 2001 until the termination of his employment, Walker held
the title of Sales Manager.1 In this position, Walker was responsible for recruiting and
managing new insurance agents for Nationwide. Beginning in 1998, Walker's direct
supervisor was Terry Saharski, who held the title of Associate Vice President of Sales at the
time of Walker's termination. Saharski lived and worked in Tennessee. (Second Am. Compl.
& Answer at ¶ 13 & 15; Saharski Aff. at ¶ 1, 6- 7.)
{¶ 4} Saharski reported to Shelley Brazeau Temple, who was Nationwide's
Regional Vice President for the South Central Region. Temple lived in Tennessee beginning
in 2011. As Nationwide's Regional Vice President, Temple had final authority over all
personnel decisions in the South Central Region. (Aff. of Shelley Brazeau Temple,
hereinafter "Temple Aff.," at ¶ 2-4, 7.)
{¶ 5} As a Sales Manager, Walker received a base salary and variable compensation
in the form of a possible bonus based on the amount of the "loss ratio" of the agents he
managed. The loss ratio was a calculation of the defined losses incurred for paid claims,
plus certain expenses, divided by the total amount of premiums earned. Walker was only
to receive a variable compensation bonus if his agents attained a loss ratio of 55 percent or
less. Claims based on catastrophic losses, such as tornados, hurricanes, or floods are not
included in the loss ratio calculation. (Pl.'s Memo. Contra Def.'s Mot. for Summ. Jgmt., Ex.
D; Second Am. Compl. & Answer at ¶ 25-31.)
{¶ 6} Walker's loss ratio for 2012 was calculated at 55.2 percent. Consequently, he
did not receive a variable compensation bonus for that year. Walker contacted Robert
McCartney, a Nationwide employee on its Sales Operation Automation team, for assistance
with the calculation of his loss ratio and information on how catastrophic claims were
designated. After researching the issue, Walker reported to Nationwide that he believed
1Walker refers to his position title as "Agency Sales Manager" and Nationwide refers to it as "Sales
Manager." The inconsistency does not amount to a dispute of an issue of material fact.
No. 16AP-894 3
that the company had failed to designate a number of claims arising from hail storms as
catastrophic, resulting in an incorrect calculation of his loss ratio. (Second Am. Compl. &
Answer at ¶ 31-33.)
{¶ 7} Walker alleges that the designation of these claims as non-catastrophic
constituted "insurance fraud." He also alleges that in January 2013, he provided a report
describing the issue to an upper-level claims manager, who subsequently circulated it
among Nationwide's upper management. Walker also claims that he met with Saharski on
February 7, 2013 "to discuss the miscoding issue," and that Saharski rebuffed him and
accused him of trying to procure an additional bonus. (Second Am. Compl. & Answer at
¶ 42.) Walker alleges that when he and Saharski met a week later, Walker gave him evidence
that Nationwide was engaged in "insurance fraud." Walker also claims that he advised an
agent to seek legal advice immediately before the agent was fired by Saharski. Nationwide
denies each of the foregoing allegations. (Second Am. Compl. & Answer at ¶ 36, 39-45.)
{¶ 8} On March 15, 2013, Walker was notified that his employment with
Nationwide was terminated effective April 2, 2013. The decision was made by Temple and
Saharski concurred. (Second Am. Compl. & Answer at ¶ 51; Saharski Aff. at ¶ 8; Temple Aff.
at ¶ 8.)
{¶ 9} Walker filed suit against Nationwide in the Franklin County Court of
Common Pleas on December 16, 2014. He alleged two claims of wrongful termination in
violation of public policy. The first claim arose from an allegation in the original complaint
that Nationwide retaliated against Walker for testifying against Saharski and Nationwide
in a lawsuit the company filed against several of its insurance agents. The second claim
arose from Walker's allegation that Nationwide fired him for reporting the "insurance
fraud" of not properly designating the claims of catastrophic loss. (Dec. 16, 2014 Compl.)
{¶ 10} Walker filed an amended complaint on December 18, 2014. On February 17,
2015, Nationwide moved the trial court to dismiss the claims under Civ.R. 12(B)(6).
Nationwide argued that, under Ohio's borrowing statute, R.C. 2305.03, Tennessee's one-
year statute of limitations should apply to Walker's claims, rendering them untimely. In
response, Walker filed a motion for leave to file a second amended complaint under Civ.R.
No. 16AP-894 4
15(A).2 The trial court sustained Nationwide's motion and overruled Walker's motion to file
a second amended complaint as futile. (Apr. 21, 2015 Decision and Entry.)
{¶ 11} Walker appealed. We reversed. We observed that the "set of allegations" in
the second amended complaint tying the decision to terminate Walker to Ohio went "far
beyond what was contained in the first amended complaint," and noted:
If orders came from corporate headquarters to withhold
Walker's pay in 2013 for improper reasons and then to fire him,
and the orders were merely carried out in Tennessee, the
second amended complaint does in fact state a claim which
could be adjudicated in Ohio courts under Ohio law.
Walker v. Nationwide Mut. Ins. Co., 10th Dist. No. 15AP-520, 2015-Ohio-5371, ¶ 29.
{¶ 12} After remand, Nationwide filed a motion for summary judgment. Citing the
affidavits of Saharski and Temple, Nationwide argued that the undisputed evidence showed
that the decision to terminate Walker was made and carried out in Tennessee, and that
Walker could not show that Ohio had a more significant relationship to his claims to
overcome the presumption that Tennessee law should apply. (June 2, 2016 Mot. for Summ.
Jgmt.)
{¶ 13} In opposition to Nationwide's motion, Walker pointed to a number of pieces
of evidence that he believed demonstrated that the orders to withhold his pay and terminate
his employment came from the company's Columbus headquarters. These included the
following: a separation letter from a company vice president in Columbus; a separation
agreement created by the company's general counsel in Columbus; a draft termination
letter for Walker, to be delivered by Saharski, stating that the "decision was reached in
conjunction with our Office of Associate Relations and Office of General Counsel and fully
supported by appropriate South Central Regional leadership"; the fact that Nationwide
processed and administered Walker's payroll in Columbus; and the fact that the variable
compensation plan was a creation of the company's employees in its Columbus office.
(Oct. 6, 2016 Memo. Contra.)
{¶ 14} After determining that the evidence cited by Walker could not overcome the
presumption that Tennessee law applied to his claims, the trial court sustained
2 The second amended complaint modified one of the wrongful termination claims to arise from Walker
allegedly suggesting that an insurance agent seek legal counsel before being terminated instead of the
allegation that he was fired for testifying against Nationwide.
No. 16AP-894 5
Nationwide's motion. (Nov. 30, 2016 Decision and Entry.) Walker again appealed and
asserts the following assignment of error:
The trial court erred in granting Appellee's Motion for
Summary Judgment on the basis that Appellant's claims are
barred by Tennessee's one-year statute of limitations when, in
fact, Appellant's claims were brought under Ohio law, are
timely pursuant to Ohio's four-year statute of limitations, and
the evidence, when construed in his favor, establishes that Ohio
has the most significant relationship to this lawsuit.
II. Standard of Review
{¶ 15} Summary judgment decisions are reviewed under a de novo standard. Comer
v. Risko, 106 Ohio St. 3d 185, 2005-Ohio-4559, ¶ 8. A court may enter summary judgment
only if the undisputed evidence in the record shows that there is no genuine issue as to any
material fact, the moving party is entitled to judgment as a matter of law, and reasonable
minds can only come to a conclusion adverse to the nonmoving party. Civ.R. 56(C). The
nonmoving party is entitled to have the evidence construed most strongly in its favor. Id.
{¶ 16} A de novo standard also applies to appellate review of a trial court's choice of
law determination. Hoyt v. Nationwide Mut. Ins. Co., 10th Dist. No. 04AP-941, 2005-Ohio-
6367, ¶ 24, citing White v. Crown Equip. Corp., 160 Ohio App. 3d 503, 2005-Ohio-1785, ¶ 7
(3d Dist.).
III. Analysis
{¶ 17} A plaintiff with a cause of action that is time-barred in the state where it
accrued may attempt to file it in a state with a longer statute of limitations. The filing state's
borrowing statute will circumvent such an attempt at forum shopping by requiring the
court to apply the statute of limitations of the state where the action accrued. See Combs v.
Internatl. Ins. Co., 354 F.3d 568, 589 (6th Cir.2004) (describing history and purpose of
borrowing statutes). Ohio's borrowing statute states that:
No civil action that is based upon a cause of action that accrued
in any other state, territory, district, or foreign jurisdiction may
be commenced and maintained in this state if the period of
limitation that applies to that action under the laws of that
other state, territory, district, or foreign jurisdiction has
expired or the period of limitation that applies to that action
under the laws of this state has expired.
R.C. 2305.03(B).
No. 16AP-894 6
{¶ 18} "Where the cause of action accrued is the key element of the borrowing
statute." Taylor v. First Resolution Invest. Corp., 148 Ohio St. 3d 627, 2016-Ohio-3444,
¶ 42. Thus, whether or not Ohio's borrowing statute applies to Walker's wrongful
termination claims depends on where they "accrued."
{¶ 19} Historically, under the lex loci delicti rule, "the substantive law of the place
where the injury occurred was controlling" to determine where a tort action accrued.
Morgan v. Biro Mfg. Co., 15 Ohio St. 3d 339, 340 (1984). The rule was applied inflexibly, in
an "automatic" fashion "without reference to the facts of the case." Id. Accordingly, the
Supreme Court of Ohio eventually adopted the analysis of Restatement of the Law 2d,
Conflict of Laws, which asks which jurisdiction has the most significant relationship to the
action:
When confronted with a choice-of-law issue in a tort action
under the Restatement of the Law of Conflicts view, analysis
must begin with Section 146. Pursuant to this section, a
presumption is created that the law of the place of the injury
controls unless another jurisdiction has a more significant
relationship to the lawsuit. To determine the state with the
most significant relationship, a court must then proceed to
consider the general principles set forth in Section 145. The
factors within this section are: (1) the place of the injury; (2) the
place where the conduct causing the injury occurred; (3) the
domicile, residence, nationality, place of incorporation, and
place of business of the parties; (4) the place where the
relationship between the parties, if any, is located; and (5) any
factors under Section 6 which the court may deem relevant to
the litigation. All of these factors are to be evaluated according
to their relative importance to the case.
Id. at 342.
{¶ 20} Because a plaintiff's injury in a wrongful termination claim is the loss of
employment, the place where the plaintiff lives and works is the place of injury. See Hoyt
at ¶ 27 (recognizing that a plaintiff's wrongful termination claim arose from "the injury to
her employment," which occurred in the state where she "lived and worked"). Walker lived
and worked in Tennessee at the time his employment was terminated. Thus, a presumption
arises that the law of Tennessee applies to his wrongful termination claims. Id. (finding that
the state where the plaintiff lost her employment was "presumed to be the state with the
most significant relationship"); Morgan at 342.
No. 16AP-894 7
{¶ 21} Walker argues that a presumption that the law of the place where the conduct
causing the injury occurred may arise, in addition to the presumption based on the place of
injury specifically recognized in Morgan. (Appellant's Brief at 23-24.) But the case he cites
to support his argument, Muncie Power Prods. v. United Technologies Automotive, Inc.,
328 F.3d 870 (6th Cir.2003), did not recognize any presumption other than the one created
by the place of injury. Id. at 874 (stating that "in Ohio, a party may overcome the
presumption that the law of the place where the injury occurs will be applied to a tort action,
if it can demonstrate that another state has a more significant relationship to the action").
There are no alternative presumptions in the choice of law analysis. As Morgan expressly
states, the place where the conduct that caused the injury occurred is one of five "factors"
that, when considered, may overcome the presumption to apply the law of the place of
injury.
{¶ 22} Turning to this factor, there is scant evidence to support Walker's assertion
that the conduct causing his injury occurred in Ohio. Nationwide submitted two affidavits
in support of its contention that the decision to terminate Walker's employment was made
and carried out in Tennessee. Temple avers that she made the decision to fire Walker, and
Saharski states that Temple made the decision. According to Temple, Saharski concurred
in the decision. Both affidavits state that Temple made the decision during the week of
March 4, 2013. (Saharski Aff. at ¶ 8; Temple Aff. at ¶ 8.) Walker points to no evidence that
demonstrates a reason to doubt Temple or Saharski, or any inconsistency in Nationwide's
evidence on this issue. In fact, his briefing fails to even mention either affidavit. Instead,
Walker points to a number of documents in the record, some of which were created in or
have a tangential relationship to Ohio. For the following reasons, none of these documents
raise a genuine issue of fact as to where the decision was made to terminate his employment
or suggest that conduct contributing to his injury occurred in Columbus.
{¶ 23} First, Walker cites a letter stating that the "decision" to terminate his
employment "was reached in conjunction with our Office of Associate Relations and Office
of General Counsel," and was "supported by appropriate South Central Regional
leadership." (Pl.'s Memo. Contra Def.'s Mot. for Summ. Jgmt., Ex. C.) Walker claims that
this letter is evidence that the decision to fire him came from Ohio, and that Saharski was
simply "instructed" to give it to him. (Appellant's Brief at 25.) Walker selectively presents
No. 16AP-894 8
only one page of this document. According to the email that is the first page of the entire
document, the page Walker presents is "a draft of communication" that Temple and Earl
Lamons, the South Central Human Resources Director, "discussed" together before
Lamons sent it to Temple on March 8, 2013 along with several other documents that he
prepared to assist with terminating Walker's employment. (Def.'s Reply in Support of Mot.
for Summ. Jgmt., Ex. 14.) Like Temple and Saharski, Lamons lives and works in Tennessee.
(Saharski Aff. at ¶ 8.) Instead of creating an issue of fact as to where the decision was made
to terminate his employment, the letter bolsters the assertions of Temple and Saharski that
it occurred only in Tennessee. In addition, the March 8, 2013 date of the letter is consistent
with Temple's assertion that she made the decision during the week of March 4, 2013.
{¶ 24} Second, Walker points to an email from Leslie Winkler, who worked at
Nationwide's headquarters in Columbus, containing the terms of his separation.3 Walker
asserts that this letter shows that Winkler gave "instructions to Saharski on what to tell
Walker during his upcoming termination meeting." (Emphasis sic.) (Appellant's Brief at
26.) The only instructions in Winkler's email are: (1) "When you meet with him, please ask
for an alternate email address" and (2) tell Walker that Pete Hendey will send him the
separation agreement. (July 27, 2016 Pl.'s Memo. Contra Def.'s Mot. for Summ. Jgmt., Ex.
F.) This email demonstrates nothing more than Winkler performing administrative tasks
to prepare for the termination of Walker's employment.
{¶ 25} Third, Walker provides a copy of the separation letter he received from Pete
Hendey, Associate Vice President, Human Resources Associate Relations, asking him to
review an attached severance agreement and advising him to have an attorney review it.
(Def.'s Resp. to Pl.'s Mot. for Summ. Jgmt., Ex. A1.) Walker also points out that Nationwide
admitted in an interrogatory that Hendey and Winkler, who worked in Columbus,
participated in the decision to offer him a severance agreement. Nationwide's response to
the interrogatory in question states that Temple, Saharski, Lamons, Winkler, and Hendey,
were all "involved" in the decision to offer him severance. At any rate, this admission does
not demonstrate that the decision to terminate Walker originated in Columbus, which is
the material issue regarding the place of injury.
3In his brief, Walker identifies Leslie Winkler as a "Senior Associate Relations Consultant." (Appellant's
Brief at 25.) This title does not appear in the email. Walker cites no portion of the record associating Winkler
with this title.
No. 16AP-894 9
{¶ 26} Fourth, Walker points to choice of law provisions in the severance agreement
and the variable compensation plan requiring those agreements to be governed by Ohio
law. (Appellant's Brief at 27.) Because Walker's case sounds in tort and does not arise from
a breach of either of those agreements, any choice of law provision in them is irrelevant.
{¶ 27} Fifth, Walker points to the assertion—in his own affidavit opposing summary
judgment—that Saharski told him that "the company" had decided to terminate his
employment. (Appellant's Brief at 27.) This statement is not inconsistent with his or
Temple's affidavits. Indeed, it would be strange if Saharski had not used this language, and,
instead of referring to "the company," had specifically identified Temple as the
decisionmaker to Walker during the period of his termination. The statement does not
create a genuine issue of fact regarding the place where the decision was made or who made
it.
{¶ 28} Sixth, Walker points out that his compensation was processed and
administered at Nationwide's payroll department in Columbus. This fact is only marginally
relevant and does not weigh in favor of applying Ohio law to Walker's claims.
{¶ 29} Finally, Walker also points out that the variable compensation plan was
created by employees at Nationwide's Columbus headquarters and states that, pursuant to
its terms, the company's Business Unit Chief Officer had "sole and absolute discretion of all
aspects" of it. (Appellant's Brief at 27-28.) These facts provide little to no weight to support
Walker's assertion that Nationwide engaged in any conduct in Ohio that led to his
termination. To repeat, we identified the key issues on remand as follows:
If orders came from corporate headquarters to withhold
Walker's pay in 2013 for improper reasons and then to fire him,
and the orders were merely carried out in Tennessee, the
second amended complaint does in fact state a claim which
could be adjudicated in Ohio courts under Ohio law.
Walker at ¶ 29.
{¶ 30} It is telling that, after remand and an opportunity to engage in discovery, the
only evidence that Walker can point to in order to support the assertion that Nationwide's
conduct in Columbus was improper or wronged him is the variable compensation plan itself
and the fact that it was created there. The only reasonable inference is that discovery
resulted in an absence of the key evidence that, if found, might have supported his claims.
No. 16AP-894 10
At any rate, these facts about the variable compensation plan provide no evidence that any
conduct leading to his injury occurred in Columbus. In short, the evidence in the record
overwhelmingly points to Tennessee as the place where the conduct causing the injury
occurred. The evidence cited by Walker does very little to shift the focus to Ohio.
{¶ 31} Nor does our consideration of the remaining factors identified by Morgan
suggest that applying Ohio law to this dispute is the proper result. The third factor is "the
domicile, residence, nationality, place of incorporation, and place of business of the
parties." Id. at 342. This factor is evenly balanced between Tennessee and Ohio because
Walker is a resident of Tennessee and Nationwide is an Ohio corporation with its principal
place of business in Columbus. The fourth Morgan factor is "the place where the
relationship between the parties, if any, is located." Id. This factor leans toward the
application of Tennessee law because Walker worked in Tennessee as an employee of
Nationwide for decades. We identify no other factors that are relevant to this litigation.
Under Morgan, there is no basis to overcome the presumption that Tennessee law applies
to this dispute because that state has the most significant relationship to Walker's claims.
Accordingly, for purposes of Ohio's borrowing statute, the claims accrued in Tennessee, and
its statute of limitations must apply to Walker's claims. R.C. 2305.03(B).
{¶ 32} In conclusion, the trial court did not err when it concluded that Nationwide
was entitled to summary judgment on Walker's claims. Under Morgan, Tennessee law
applies to Walker's wrongful termination claims, which are consequently barred under that
state's statute of limitations. Walker's sole assignment of error is overruled and the trial
court's judgment is affirmed.
Judgment affirmed.
TYACK and SADLER, JJ., concur.
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