Fox v. Nationwide Mut. Ins. Co. , 117 N.E.3d 121 ( 2018 )

[Cite as Fox v. Nationwide Mut. Ins. Co., 2018-Ohio-2830.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
JamiLynn Fox, :
Plaintiff-Appellant, :
v. : No. 17AP-745
(C.P.C. No. 15CV-4567)
Nationwide Mutual Insurance Company :
et al., (REGULAR CALENDAR)
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on July 17, 2018
On brief: Caryn Groedel & Associates, Co., LPA, Matthew S.
Grimsley, and Caryn M. Groedel, for appellant.
Argued: Matthew S. Grimsley.
On brief: Isaac Wiles Burkholder & Teetor, LLC, J. Stephen
Teetor, and Shawn K. Judge, for appellee Nationwide Mutual
Insurance Co. Argued: J. Stephen Teetor.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiff-appellant, JamiLynn Fox, appeals from a judgment of the Franklin
County Court of Common Pleas in favor of defendants-appellees, Nationwide Mutual
Insurance Company ("Nationwide") and Shymal Sogal. For the reasons that follow, we
affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Immediately prior to the events that give rise to this case, Fox owned and
operated two Allstate Insurance ("Allstate") offices in New York City. According to Fox, she
owned the book of business that she had acquired at Allstate, which meant that she retained
No. 17AP-745 2
servicing rights on the policies she sold and received a certain percentage of premiums paid
to Allstate for those policies.
{¶ 3} In spring 2011, Nationwide Sales Manager Sogal and Associate Vice President
Kim Ward began recruiting Fox to purchase a Nationwide agency in Ohio. In May 2011,
Fox met with Sogal to discuss an agency opportunity with Nationwide. Fox has maintained
that she was only interested in an opportunity in the Columbus, Ohio area, but Sogal told
Fox there were no such opportunities in Columbus. Instead, Sogal informed Fox of a
"unique opportunity" to purchase two existing Nationwide agencies in Sylvania, Ohio,
which is in Northwest Ohio on the Michigan border. (Fox Dep. at 45.) According to Fox,
Sogal told her that two Nationwide agents, Craig Riker and Carlo Gibellato, were scheduled
to retire and that their respective books of business would be combined and available to
purchase. Sogal reportedly told Fox that the "Riker-Gibellato" book of business contained
$4,000,000 in Direct Written Premium ("DPW"), that it would generate $500,000 in
premium revenue annually, that Fox could expect to receive an additional $200,000
annually if she purchased the "Riker-Gibellato" book of business, and that future sales in
the Michigan market were unlimited.
{¶ 4} Fox claims Sogal failed to inform her that Nationwide intended to increase
premiums for policy holders in the Michigan market, which would cause policy holder
defections and decreased future sales opportunities. Fox also claims Sogal failed to disclose
that Nationwide had provided lucrative incentives to Sogal and to Ward for recruiting new
agents and convincing those agents to purchase existing books of business. Fox claims she
was also unaware that her future compensation from Nationwide was variable, which
meant her earnings depended largely on the number of new agents she could recruit to
work for her and their relative success.
{¶ 5} In July 2011, Nationwide Vice President Eric Smith interviewed Fox for a
position in Nationwide's Replacement Agency Executive ("RAE") program. According to
Fox, Smith told her that Nationwide had significantly decreased its rates in the Midwest
region and that she would be able to reap the benefit of increased sales in the Michigan
market as a "border agent" in the RAE program. (Fox Dep. at 53, 56.) Fox alleges that
Smith did not tell her about the planned rate increase and did not tell Fox that Nationwide
No. 17AP-745 3
planned to cancel many of the policies currently in the Riker-Gibellato book of business
after she purchased it from Nationwide.
{¶ 6} Fox accepted the position with Nationwide and agreed to sell her two Allstate
offices. Fox testified she "did quite well in the sale" of her Allstate agency. (Fox Dep. at
223.) Fox subsequently worked with Sogal to develop a pro forma financial statement and
business plan for her proposed Nationwide agency. On October 6, 2011, Fox executed the
Nationwide RAE program agreement ("RAE agreement"). The pro forma statement and
business plan developed by Fox and Sogal were attached to the RAE agreement and made
a part thereof.
{¶ 7} According to Fox, she relied on Sogal's representations regarding the
substance of the RAE agreement, as well as her experience in the insurance industry and
with Allstate. Fox admits she did not read the RAE agreement before she signed it.
Pursuant to paragraph 13 of the RAE agreement, Fox received a $15,000 signing bonus.
{¶ 8} Paragraph 47 of the RAE agreement states "Nationwide extends to Agent the
opportunity to service the designated Nationwide-owned policies that were previously
serviced by the former agency of CRAIG A RIKER and CARLO M GIBELLATO (the
'Assigned Policies'). A list of the Assigned Policies is attached hereto as Exhibit I."
(Emphasis sic.) (RAE agreement, Def.'s Ex. D, Fox Dep.) Pursuant to Exhibit B to the RAE
agreement, the stated value of the Riker-Gibellato book is $3,860,594 in DWP, and in
paragraph 48 of the RAE agreement, Fox is to pay $482,574 for the Riker-Gibellato book
with an initial 10 percent down payment. The subsequent payment schedule called for
monthly installments of $1,809.65, which were to be deducted from Fox's monthly
commissions.
{¶ 9} The RAE agreement also contained provisions quantifying Fox's production
requirements for the RAE program and her commission/bonus schedule. The RAE
agreement defines Fox's Administrative Minimum Production Plan ("MPP") as Property
and Casualty Direct Written Premium ("P&C DWP") and Life Sales "which Agent must
satisfy on a monthly and cumulative basis as set forth in Exhibit B." (RAE Agreement at
¶ 7.) The term of the RAE agreement was 36 months. On successful completion of the RAE
agreement, Fox had the option to enter into Nationwide's "RAE Independent Contractor
Agent's Agreement and/or the RAE Corporate/LLC Agency Agreement available for
No. 17AP-745 4
execution by Agent at that time (hereinafter collectively the 'RAE Career IC Agreement')
[or] cancel [her] relationship with Nationwide." (RAE Agreement at ¶ 8.)
{¶ 10} Paragraph 8 of the RAE agreement further provides:
All requirements of the [MPP] must be met on a monthly basis
throughout the term of this Agreement, including the P&C
DWP and Life Sales components. The total cumulative life
sales required and P&C DWP, as outlined in Exhibit B, will be
measured monthly. Nationwide shall, in its sole discretion,
measure the achievement of Agent. The monthly P&C DWP
and Life Sales data shall be measured pursuant to Revenue
Connection, or such other database developed by Nationwide
in its sole discretion for use in making such determination.
{¶ 11} Paragraph 8 also sets forth the consequences of failing to meet MPP as
follows:
Agent further agrees and understands that failure to meet the
requirements of the [MPP] will result in cancellation of this
Agreement. Agent understands that Nationwide has
established reports, policies and procedures to address Agent's
failure to meet [MPP] requirements and that these reports,
policies, and procedures may change from time to time.
{¶ 12} In November 2011, Fox opened her Nationwide agency in Sylvania, Ohio in
the office formerly run by Gibellato. Fox operated her agency as a limited liability company
known as the J. Fox Agency, LLC ("J. Fox Agency"). Fox hired her daughter Jennifer to
work at the agency and she retained one of Gibellato's employees, Karen Benner. Within a
relatively short period of time, however, Fox began struggling to meet her MPP
requirements.
{¶ 13} At some point in 2012, Fox recognized that her agency was nearing a
production shortfall, which meant she was not meeting her MPP as set forth in Exhibit B to
the RAE agreement. In spring 2013, Fox met with Smith and Ward. According to Fox, it
was at that meeting she first became aware Nationwide could cancel the RAE agreement if
she did not meet her MPP.
{¶ 14} In September 2013, Fox sent an email correspondence to her sales manager,
Manny Mansour, detailing a number of family medical issues and events she was currently
experiencing and asking for some relief from her MPP. Fox testified she believed
No. 17AP-745 5
Nationwide's production requirements were "too steep," and she wanted Nationwide to
relax the requirements. (Compl. at ¶ 23; Fox Dep. at 186.) As a result of Fox's email
correspondence, Nationwide agreed to suspend Fox's MPP for three months. On
December 23, 2013, Fox executed an amendment to the RAE agreement. The amendment
memorialized Nationwide's agreement to suspend Fox's MPP for a three-month period
beginning August 1 and ending October 31, 2013. The amendment also contained the
following language just above the signature lines:
By signing this amendment, Agent hereby reaffirms his/her
promises, covenants, and obligations as set forth in the
Agreement, and waives all claims that he/she has or may have
against Nationwide as of the date of his/her execution of this
Amendment.
(Emphasis added.) (Def.'s Ex. L at 2, Fox Dep.)
{¶ 15} Following the suspension of Fox's MPP in 2013, she continued to struggle to
meet her MPP. One of Fox's issues with regard to the MPP requirements was the poor
retention rate for policies in the Riker-Gibellato book of business. On June 23, 2014,
Mansour contacted Fox by email to inform her he would be stopping by her office the next
day with another amended RAE agreement to review and complete, a copy of which was
attached to the email. Fox claims that Mansour threatened to cancel the RAE agreement if
she did not sign the amendment. Fox testified that she contacted legal counsel regarding
the amended RAE agreement and that she subsequently refused to sign the amendment on
advice of counsel. On August 29, 2014, Fox submitted a "30-day resignation notice per
section 32 of [her] contract." (Mincy Aff. at Ex. A, attached to Mar. 3, 2016 Joint Mot. for
Summ. Jgmt.)
{¶ 16} On May 28, 2015, Fox commenced an action against Nationwide and Sogal
alleging breach of contract, fraudulent inducement, intentional misrepresentation, unjust
enrichment, false light invasion of privacy, invasion of privacy-misappropriating Fox's
name, interference with business relationships, and gender discrimination-sexual
stereotyping. Fox sought injunctive relief relative to the invasion of privacy claims and
damages.
{¶ 17} On August 30, 2016, Nationwide filed a motion for partial summary
judgment arguing the only reasonable inference to be drawn from the evidence is that Fox
No. 17AP-745 6
worked for Nationwide as an independent contractor, not an employee. On that same date,
Fox, with leave of court, filed a cross-motion for summary judgment arguing the evidence
established that she worked for Nationwide as an employee. The parties agree that Fox's
status as an employee of Nationwide is an essential element of her discrimination claim.
{¶ 18} The trial court ruled on the cross-motions for summary judgment on
October 27, 2016. The trial court concluded as follows:
Upon review of all factors under the manner and means
common law test, the court finds that reasonable minds could
not differ in finding that Defendant Nationwide did not reserve
the right to control over [Fox] on the manner and means of
doing the work. The court holds [Fox] was an independent
contractor for Defendant Nationwide, not an employee.
Therefore, the court GRANTS summary judgment for
[Nationwide] on the matter of the independent contractor
relationship.
(Emphasis sic.) (Oct. 27, 2016 Decision at 12.)1
{¶ 19} Fox filed her second motion to compel discovery on December 13, 2016. On
January 25, 2017, Nationwide filed a motion for summary judgment as to Fox's remaining
claims. The trial court granted Fox's motion to compel, in part, and ordered Nationwide to
provide identifying information to Fox regarding responsive documents previously
provided in a redacted form.
{¶ 20} On August 4, 2017, the trial court issued a decision and judgment entry
granting Nationwide's motion for summary judgment in part. The trial court's entry reads,
in relevant part, as follows:
[T]he Court finds issues of material fact remain for [Fox's]
Counts 1 (concerning §§25 and 30 of the RAE Agreement), 8,
and 9. No dispute of material fact exists for all other claims. As
such, the Court GRANTS IN PART [Nationwide's] motion for
summary judgment on counts 1 (relating to §§8, 33, and 47 of
the RAE Agreement), 3, 4, 6, 7, 10, and 12.
(Emphasis sic.) (Aug. 4, 2017 Entry at 13.)
1 On December 27, 2016, the trial court issued an "Order and Entry" dismissing Fox's gender discrimination
claim "[b]ased on the Court's ruling on October 2[7], 2016 that Plaintiff Fox was an independent contractor,
not an employee."
No. 17AP-745 7
{¶ 21} Following the trial court's August 4, 2017 judgment, Fox's remaining claims
included breach of contract corresponding to Nationwide's post-cancellation use of Fox's
name on written materials and her likeness on certain advertising, as well as Fox's claims
for invasion of privacy based on those same allegations.2
{¶ 22} On August 9, 2017, Fox filed both a motion for reconsideration of the trial
court's August 4, 2017 judgment and a "motion for clarification" wherein Fox sought
clarification whether the determination that issues of fact remained for trial as to certain
aspects of her breach of contract claim also precluded summary judgment for Nationwide
as to Fox's corresponding claim for breach of an implied covenant of good faith and fair
dealing. On August 23, 2017, Nationwide filed a motion seeking reconsideration of that
portion of the trial court's August 4, 2017 judgment holding that issue of fact existed
regarding certain of Fox's claims. Nationwide argued the trial court overlooked certain
evidence establishing the absence of factual issues for trial.
{¶ 23} On September 21, 2017, the trial court issued a decision granting
Nationwide's motion for reconsideration and denying Fox's cross-motions for
reconsideration and for clarification. The trial court determined, on reconsideration, that
there were no genuine issues of material fact as to Fox's remaining claims and that
Nationwide was entitled to judgment as a matter of law. The September 21, 2017 judgment
entry disposed of all remaining claims in the case.
{¶ 24} Fox timely appealed to this court from the following judgments of the trial
court: (1) October 27, 2016 decision and entry granting Nationwide's motion for partial
summary judgment and denying Fox's motion for partial summary judgment;
(2) February 6 and March 16, 2017 decisions denying, in part, Fox's motion to compel;
(3) August 4, 2017 decision and entry granting, in part, Nationwide's motion for summary
judgment; and (4) September 21, 2017 decision and entry granting Nationwide's motion for
reconsideration.
II. ASSIGNMENTS OF ERROR
{¶ 25} Appellant sets forth the following assignments of error:
2 On May 25, 2017, Fox dismissed her claims against Sogal by filing a notice of voluntary dismissal pursuant
to Civ.R. 41(A)(1)(a).
No. 17AP-745 8
[1.] The trial court erred in deciding on summary judgment
that Plaintiff-Appellant, JamiLynn Fox ("Fox") was an
independent contractor for Defendant-Appellee, Nationwide
Mutual Insurance Company ("NW"), when Fox offered
abundance evidence that she was an employee.
[2.] The trial court erred in entering summary judgment in
favor of NW on Count 1 (breach of the RAE Agreement).
[3.] The trial court erred by entering summary judgment in
favor of NW on Count 2 (breach of the RAE Agreement's
implied covenant of good faith and fair dealing).
[4.] The trial court erred by dismissing Counts 3, 4, and 7
(fraud-related claims) on the basis that Fox released these
claims, because Fox was unaware of the fraud and damages
arising therefrom at the time of the release.
[5.] The trial court erred by dismissing Counts 3, 4, and 7
(fraud-related claims) on the basis that Fox released these
claims, because a genuine issue of material fact remains as to
whether the release is unenforceable.
[6.] The trial court erred in entering summary judgment in
favor of NW on Count 6 (unjust enrichment).
[7.] The trial court erred by, on reconsideration, entering
summary judgment in NW's favor on Counts 8
(misappropriation of name and likeness) and 9 (false light).3
III. STANDARD OF REVIEW
{¶ 26} We review a summary judgment motion de novo. Leonard v. MBB
Partnership, 10th Dist. No. 15AP-956, 2016-Ohio-3534, ¶ 7, citing Regions Bank v. Seimer,
10th Dist. No. 13AP-542, 2014-Ohio-95, ¶ 9. Pursuant to Civ.R. 56(C), summary judgment
"shall be rendered forthwith if the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if
any, timely filed in the action, 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."
3 None of the assignments of error challenge the trial court's February 6 and March 16, 2017 decisions denying,
in part, Fox's motion to compel.
No. 17AP-745 9
{¶ 27} "[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St. 3d 280, 292 (1996). The
burden then shifts to the defending party to set forth specific facts showing there is a
genuine issue for trial. Id. If the defending party does not so respond, summary judgment,
if appropriate, may be entered in favor of the party seeking affirmative relief. Id.
IV. LEGAL ANALYSIS
A. First Assignment of Error
{¶ 28} In appellant's first assignment of error, appellant argues the trial court erred
when it determined, as a matter of law, that Nationwide employed appellant as an
independent contractor and not as an employee. We disagree.
{¶ 29} In Barcus v. Buehrer, 10th Dist. No. 14AP-942, 2015-Ohio-3122, this court
set forth the relevant test under Ohio law for determining whether a person is an employee
or independent contractor:
Whether a person is an employee or independent contractor
depends on the facts of the particular case, with the key
question being who had the right to control the manner and
means of doing the work. [Bostic v. Connor, 37 Ohio St. 3d
144,] 146 [(1988)]. If the employer reserves the right to control
the manner and means of doing the work, as well as the result,
then an employer-employee relationship is created. State ex
rel. Nese v. State Teachers Retirement Bd., 136 Ohio St. 3d 103,
2013-Ohio-1777, ¶ 33, 991 N.E.2d 218. On the other hand, if
the employer only specifies the result and the worker
determines the manner and means of doing the job, then an
independent contractor relationship is created. Id. In
determining what kind of relationship exists, multiple factors
must be considered, including who controls the details and
quality of the work; who controls the hours worked; who selects
the materials, tools, and personnel used; who selects the routes
travelled; the length of employment; the type of business; the
method of payment; and any pertinent agreements or
contracts.
Id. at ¶ 7, citing Bostic v. Connor, 37 Ohio St. 3d 144, 146 (1988).
No. 17AP-745 10
{¶ 30} At the outset of our discussion, we note Fox's assertion that she was an
employee of Nationwide and not an independent contractor arises primarily from her
comparison of the conditions of employment with Nationwide to the conditions of her
employment with Allstate. Based on Fox's representations regarding the terms of her
relationship with Allstate, there is no question that Allstate exercised less control of the
manner and means of Fox's work than did Nationwide. Nevertheless, this court will
determine whether issues of fact exist as to the nature of Fox's relationship with Nationwide
based on our analysis of the Bostic factors, not on a comparison to Fox's employment with
Allstate.
{¶ 31} Turning to the Bostic factors, the pertinent agreement in this case is the RAE
agreement. Paragraph 2 of the RAE agreement expressly states:
The parties agree that the purpose of this Agreement will be
best served by Agent acting as an independent contractor
exclusive agent. Because Agent is an independent contractor
exclusive agent and not an employee, Agent is solely
responsible for paying all federal, state, and local income and
self-employment taxes as well as the timely and correct
reporting and paying of all other taxes. As an independent
contractor exclusive agent, Agent shall exercise independent
judgment as to time, place, and manner of soliciting
insurance, servicing policyholders, and otherwise carrying
out the provisions of the Agreement consistent with Agent's
obligation to provide the best possible service to Nationwide
and its customers. However, Agent understands that
Nationwide has exclusive ownership, use and control of all
policies and policy expirations and therefore has the right to
service Nationwide customers at any time.
(Emphasis added.)
{¶ 32} Though Fox claims that Nationwide provided her with an inadequate
opportunity to review the RAE agreement before she signed it and that she did not read the
agreement prior to signing, the fact remains that the plain language used by the parties
identifies Fox as "an independent contractor exclusive agent and not an employee." (RAE
Agreement at ¶ 2.) There is no question that paragraph 2 of the RAE agreement evidences
that the parties intended to create an independent contractor relationship.
No. 17AP-745 11
{¶ 33} In addition to the conspicuous designation of Fox as "an independent
contractor exclusive agent" in paragraph 2 of the RAE agreement, paragraph 3 of the RAE
agreement provides the following with regard to "expenses":
As an independent contractor exclusive agent, Agent is
responsible for and will pay all expenses in connection with
his/her Nationwide insurance agency, including, but not
limited to, expenses for staff or employees, manuals, forms,
and record supplies. Agent will not incur any indebtedness on
behalf of Nationwide, nor will Nationwide be responsible for
any expense incurred by Agent to comply with any term of this
Agreement.
{¶ 34} In her deposition, Fox acknowledged that, with the exception of Nationwide's
contributions to her advertising co-op expenses, she paid all of her own business expenses.
Fox also selected and paid for her own office equipment and supplies. Fox argues, however,
that Nationwide required Fox to purchase Nationwide's proprietary software programs
pertaining to rate quotations and recordkeeping. She claims that such a requirement
indicates Nationwide selects the material and tools she uses. Given the fact that the
insurance industry is a highly regulated business in Ohio, we do not perceive Nationwide's
mandate that the J. Fox Agency utilize Nationwide's standardized reporting and rate
quotation software to be indicative of Nationwide's control of the manner and means by
which Fox performed her work. Furthermore, as this court noted in Barcus, the type of
business conducted by the parties is one of the Bostic factors that the court may consider in
determining the nature of the parties' relationship.
{¶ 35} In this regard, we note in paragraph 4 of the RAE agreement, Fox agrees "[a]s
an independent contractor" to be "responsible for securing and keeping in effect any
licenses required by Nationwide or regulatory agencies * * * to * * * engage in the sale,
solicitation or service of Nationwide policies, financial services or products." This provision
evidences the parties' acknowledgment that important aspects of Fox's relationship with
Nationwide are governed by certain regulatory authorities rather than Nationwide. There
is no dispute in this case that Fox is required to obtain and keep in effect certain licenses
issued by the Ohio Department of Insurance in order to sell Nationwide products and
services.
No. 17AP-745 12
{¶ 36} With regard to the personnel employed by the J. Fox Agency, we note that
Benner, who was employed in Gibellato's Nationwide agency prior to being retained by Fox
to work in the J. Fox Agency, submitted an affidavit in this matter. Benner averred, in
relevant part, as follows:
2. I was formerly an employee of the J. Fox Agency, LLC,
located in Sylvania, Ohio. I began working for the J. Fox
Agency, LLC on approximately November 1, 2011. When I left
the J. Fox Agency, LLC, in approximately 2014, I did so on good
terms. * * *
***
4. During my tenure with the J. Fox Agency, LLC, I was paid as
a salaried employee and received a W2 from the J. Fox Agency,
LLC annually. All of my compensation was paid to me directly
by the J. Fox Agency, LLC and I did not receive any
compensation directly from Nationwide.
5. During my employment with J. Fox Agency, LLC, Plaintiff
Jami[L]ynn Fox controlled all aspects of the agency and made
all business decisions associated with the agency, including on
matters such as the hiring and firing of employees.
(Benner Aff. at 1-2, attached to Mar. 3, 2016 Joint Mot. for Summ. Jgmt.)
{¶ 37} Though some of the averments in Benner's affidavit are conclusory in nature,
the only reasonable conclusion to be drawn from the facts in the affidavit and the other
evidence submitted in this case is that Fox maintained control of hiring, payment, and
supervision of all employees in her agency. Fox acknowledged in her deposition that she
chose the employees she wished to hire for the J. Fox Agency. Fox argues, however, that
Nationwide controlled her hiring practices pursuant to provisions in the RAE agreement
that required her to submit potential employee information to Nationwide for background
checks and mandated that new agency employees execute contracts drafted by Nationwide.
We do not agree such evidence supports a finding that Nationwide exercised control over
Fox's personnel given the undisputed evidence that Fox chose the employees she wished to
hire, their job titles, the tasks they performed, and she measured their performance
pursuant to her own standards. Given the highly regulated nature of the insurance
industry, the fact that Nationwide checked backgrounds of candidates and required new
No. 17AP-745 13
employees of the J. Fox Agency to execute contracts with Nationwide evidences
Nationwide's need to protect its business interests rather than control the means and
manner of Fox's work.
{¶ 38} In a related argument, Fox maintains that provisions in the RAE agreement
requiring her to report weekly to Nationwide on her activities related to the sale of
Nationwide products and services, as well as the activities of her employees, demonstrate
Nationwide's control of the means and manner of performing her work. Fox alleges that
the weekly reporting requirement reflect Nationwide's control over the details of her work.
{¶ 39} Fox's deposition establishes, however, the weekly reports provided a
quantitative basis for Nationwide to instruct Fox how much and what type of Nationwide
product her agency needed to sell in order for her to meet her MPP. In other words, the
purpose of the weekly reporting requirement was not to facilitate instruction from
Nationwide on how to sell Nationwide products and whom to sell them to. Rather, when
viewed in the proper context, the weekly reports were all about tracking the results of Fox's
work against her MPP, and they had little to do with the means and methods employed by
Fox or her employees in order to achieve those results. Importantly, there is no dispute
that Fox was free to solicit sales from any available customers in her region.
{¶ 40} In our view, this case arises under similar circumstances to those addressed
by the Sixth Circuit Court of Appeals in Wolcott v. Nationwide Mut. Ins., 884 F.2d 245 (6th
Cir.1989). In that case, a former commissioned agent sued Nationwide alleging breach of
contract and seeking retirement benefits under a violation of the Employee Retirement
Income Security Act ("ERISA"). The district court granted summary judgment for the
agent. The Sixth Circuit affirmed the district court judgment for the agent on his breach of
contract claim but reversed the district court on the ERISA claim. Id. at 251. The Sixth
Circuit determined the agent was an independent contractor as a matter of law, not an
employee of Nationwide entitled to ERISA's vesting protections. Id. In making its
determination, the Sixth Circuit applied common-law rules of agency in determining
No. 17AP-745 14
whether the agent was an employee for ERISA purposes.4 The Wolcott court reasoned as
follows:
The record shows that Wolcott hired his own employees and
exercised managerial skill in the operation of his business.
Further, Wolcott owned his own office condominium;
maintained the office where the business was located; was
responsible for most all of his own expenses; paid his own
insurance; and was responsible for obtaining and maintaining
a license to sell insurance. Further, he was paid on
commission, and Nationwide made no deductions for Social
Security or income taxes. In fact, Wolcott was responsible for
reporting his own self-employed income to the Internal
Revenue Service ("IRS"). He reported his commission income
and business expenses to the IRS as self-employed income.
Moreover, the Agent's Agreement stated that Wolcott was an
independent contractor and not an employee. In addition,
Wolcott was not eligible for regular employee benefits,
including sick pay, vacation pay, and leave time, or any of the
employee pension or retirement plans provided to
Nationwide's regular employees. Finally, Wolcott admitted
that he maintained his own Keough retirement plan. Given
these undisputed facts, we conclude that Wolcott was not
Nationwide's "employee" within the meaning of ERISA.
Id. at 251.
{¶ 41} Here, the undisputed evidence shows that Fox leased her own office in
Sylvania, Ohio; maintained the office where the business was located; was responsible for
most all of her own expenses; paid her own insurance; and was responsible for obtaining
and maintaining a license to sell insurance. J. Fox Agency was paid by Nationwide on
commission, and J. Fox Agency issued W-2 employee earnings statements to Fox and the
other J. Fox Agency employees. Nationwide made no deductions for Social Security or
4 The criteria to be considered include: "1) the degree of control and supervision over the manner in which the
work is performed; 2) whether or not the 'employee' is engaged in his own business; 3) the company's right to
hire and discharge the persons doing the work; 4) the method of compensation to the 'employee'; 5) whether
the 'employee' receives the same benefits as the company's regular employees; 6) who has control of the
premises where the work is done; 7) how the parties structure their Social Security and income relations;
8) whether the 'employee' stands to make a profit on the work of those working for him; 9) the amount of the
'employee's' investment in facilities and equipment; 10) the belief of the parties as to their business
relationship; 11) the amount of skill required in the particular occupation; and 12) the duration of time for
which the 'employee' is employed." (Additional citations omitted.) Wolcott at 251, citing Holt v. Winpisinger,
811 F.2d 1532, 1539-40 (D.C.Cir. 1987).
No. 17AP-745 15
income taxes. Fox acknowledged that she was responsible for reporting J. Fox Agency's
self-employed income to the Internal Revenue Service ("IRS"). The tax records in this case
show that Fox reported J. Fox Agency's commission income, business expenses, and profits
and losses to the IRS, and she paid taxes on her self-employed income. As previously noted,
Fox is repeatedly referred to as an independent contractor throughout the RAE agreement.
Considering the facts before us, similar to the facts in Wolcott, we conclude that Fox was an
independent contractor of Nationwide as a matter of law.
{¶ 42} Fox counters the 36-month term of the RAE agreement permits an inference
of an employer-employee relationship. We disagree. Under the particular circumstances
of the parties' relationship, we find the duration of the RAE agreement has little impact on
defining the parties' relationship in this case. Similarly, though Fox places emphasis on the
fact Nationwide reportedly informed her that her office needed to remain open to the public
during certain hours, we do not find that such a requirement permits the inference of
control the hours she worked given the fact that insurance sales is essentially a retail
business. Fox did not testify that Nationwide required her to personally man the Sylvania
office during those business hours.
{¶ 43} Based on our de novo review of the relevant Bostic factors, we agree with the
trial court that no reasonable trier of fact could find that Fox operated the J. Fox Agency as
an employee of Nationwide. On this record, the only reasonable conclusion to draw is that
Fox and the J. Fox Agency were independent contractors of Nationwide. Fox counters that
because some of the Bostic factors arguably permit an inference that her relationship with
Nationwide was that of employer-employee, triable issues of fact necessarily exist which
preclude summary judgment.
{¶ 44} In Barcus, we rejected a similar argument:
Due to the fact-intensive nature of the employee/independent
contractor analysis, a trier of fact ordinarily ends up deciding
whether a person is an employee or independent contractor.
[Bostic] at 145-46. If the evidence allows reasonable minds to
reach different conclusions on that question, then a trial court
must deny a motion for summary judgment and submit the
matter to a trier of fact. Id. at 147; accord Brown v. CDS
Transport, Inc., 10th Dist. No.. 10AP-46, 2010-Ohio-4606,
¶ 10. However, where the evidence is not in conflict or the facts
are admitted, the trial court may determine, as a matter of law,
No. 17AP-745 16
whether a person is an employee or independent contractor.
Bostic at 146.
Id. at ¶ 8.
{¶ 45} In this instance, our conclusion that no reasonable trier of fact could find Fox
was an employee of Nationwide is based primarily on the terms of the RAE agreement and
other undisputed facts. Consequently, summary judgment for Nationwide is appropriate
on this case. Barcus; Wolcott.
{¶ 46} For the reasons set forth above, Fox's first assignment of error is overruled.
B. Second Assignment of Error
{¶ 47} Fox first contends the trial court erred when it found that no issues of fact
existed as to Nationwide's breach of paragraphs 25 and 30 of the RAE agreement. We
disagree.
{¶ 48} In support of this claim, Fox produced evidence that Nationwide continued
to use her name on certain customer cancellation notices and other correspondence for a
period of three years after her cancellation of the RAE agreement. The relevant paragraphs
of the RAE agreement are as follows:
25. Agent Number
For the benefit of Nationwide and the Agent, a number is
assigned to Agent to facilitate more efficient use of
Nationwide's computer system. This number is the property of
Nationwide and may be reassigned for identification within
that system. Agent's name may be printed for Agent's benefit
on billings and materials received by our policyholders. If this
Agreement is canceled, Agent's name will be removed as soon
as a new permanent agent or agency has been assigned and
Nationwide's computers have been reprogrammed to identify
the new agent or agency, but Agent acknowledges that it may
continue to be printed for some extended period of time after
cancellation.
***
30. Authorization to Direct Bill
Agent and Nationwide agree that it is to their mutual benefit
for Nationwide to bill the policyholders directly, Agent hereby
gives Nationwide permission to use his or her name on those
No. 17AP-745 17
billings and use of his or her name for a reasonable period
following the cancellation of this agreement.
(Emphasis sic and added.)
{¶ 49} The trial court, in its August 4, 2017 decision on Nationwide's motion for
summary judgment, made the following determination:
[Fox] puts forth evidence of the use of her agency name by
[Nationwide] on billing statements and other correspondence
to Nationwide clients consistently through April 29, 2015, then
once again on October 23, 2015, and finally one more time on
April 24, 2017. [Fox's] Memorandum Contra, Ex. D-4. If the
evidence did not reach, however sparsely, to April 24, 2017, the
Court might have considered summary judgment on the
matter. Yet, due to this single extended incident, the Court
finds a reasonable dispute of fact exists as to whether or not
[Fox's] name was removed pursuant to §25 of the RAE
Agreement.5
(Aug. 4, 2017 Entry at 5.)
{¶ 50} Nationwide moved the trial court for reconsideration arguing the trial court
erred when it considered correspondence Nationwide issued on October 23, 2015 and
April 24, 2017 in ruling that issues of fact exist whether Nationwide violated paragraphs 25
and 30 of the RAE agreement because those correspondence postdated the complaint. The
trial court agreed with Nationwide, and in its September 21, 2017 judgment entry, the trial
court found as follows:
[B]ecause [Fox] did not raise a claim based on Defendant
Nationwide's April 2016 or April 2017 uses in her Complaint or
anytime thereafter, these transactions cannot create a genuine
issue of fact as to [Fox's] claims currently before the Court.
Further, the Court will not permit [Fox] to amend her pleadings
at this late date. Although Civ.R. 15(A) provides that courts
"shall freely give leave [to amend] when justice so requires,"
such motions can be denied when they are untimely and
prejudicial. Ohio courts have consistently held that an attempt
to amend a complaint following the filing of a motion for
summary judgment raises the spectre of prejudice. Here,
allowing [Fox] to amend her pleadings would be inappropriate
5The trial court did not expressly rule on Fox's claim that Nationwide breached paragraph 30 of the RAE
agreement.
No. 17AP-745 18
because the parties have undergone extensive discovery and
multiple rounds of dispositive motions.
[Fox] also suggests this issue can be resolved pursuant to Civ.R.
15(B), which allows a party to amend the pleadings to conform
to the evidence tried by express or implied consent of the
parties. However, Civ.R. 15(B) is applicable only in cases that
have gone to trial, not those determined on summary
judgment. * * *
Finally, even if the isolated 2016 and 2017 transactions were
properly before the Court, the Court finds the evidence put
forth by [Fox] in support of her remaining claims for breach of
contract, false light, and invasion of privacy to be isolated
incidents and not a course of conduct creating a dispute of fact
as to whether [Nationwide] intentionally acted to harm [Fox].
(Quotations and citations omitted.) (Sept. 21, 2017 Jgmt. Entry at 4-5.)
{¶ 51} In our view, the trial court reached the correct ruling but cited the incorrect
provision of Civ.R. 15. Civ.R. 15(E) provides in relevant part:
Supplemental pleadings. Upon motion of a party the court
may, upon reasonable notice and upon such terms as are just,
permit him to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened
since the date of the pleading sought to be supplemented. * * *
If the court deems it advisable that the adverse party plead to
the supplemental pleading, it shall so order, specifying the time
therefor.
{¶ 52} A trial court ruling denying a motion to supplement a pleading will not be
reversed on appeal absent an abuse of discretion. Zestos v. Powertrain Div., GMC, 3d Dist.
No. 4-06-12, 2006-Ohio-4545. In this instance, Fox never moved the trial court for leave
to file a supplemental pleading setting forth information regarding Nationwide's use of her
name on Nationwide's correspondence subsequent to 2015 and never served a pleading
setting forth those allegations. Fox argues the trial court's strict application of Civ.R. 15
essentially required her to seek leave to supplement her pleading whenever she discovered
Nationwide had published correspondence in her name. We disagree. Had Fox simply
moved the trial court for leave to supplement her complaint within a reasonable time of
discovering post-complaint correspondence, the trial court could have dealt with the issue
No. 17AP-745 19
at that time by issuing an entry setting forth "such terms as are just." Civ.R. 15(E). Under
the circumstances, we cannot say the trial court abused its discretion in ruling the
allegations regarding correspondence in 2016 and 2017 were not properly before the court
in the context of its ruling on summary judgment. Accordingly, we hold the trial court did
not err when it granted summary judgment to Nationwide as to Fox's claim that Nationwide
breached paragraphs 25 and 30 of the RAE agreement, albeit for slightly different reasons
than those asserted by the trial court.
{¶ 53} Fox next contends that issues of fact exist whether Nationwide breached
paragraph 33 of the RAE agreement by refusing, following cancellation, to refund monies
she paid to Nationwide for the Riker-Gibellato book of business. We disagree.
{¶ 54} Fox claims paragraph 33 of the RAE agreement obligated Nationwide to
refund 80 percent of all monies she paid for the Riker-Gibellato book of business.
Paragraph 33 of the RAE agreement provides for a "refund payment" in the event of
cancellation as follows:
If this Agreement is cancelled by either party any time after six
(6) months following the Effective Date and Agent's Payment
of the First Payment (defined below in Section 48) * * * Agent
shall be eligible to receive a Refund Payment of eighty percent
(80%) of all monies paid to Nationwide for the Reimbursement
pursuant to Section 48(B)(1) or (2). * * *
***
* * * Agent agrees and understands that Agent shall forfeit the
right to receive the Refund Payment if Agent uses or attempts
to use the telephone number(s) or fax number(s) assigned to
Agent's agency for any purpose other than the operation of a
Nationwide agency. Agent shall also forfeit the right to receive
any Refund Payment if Agent violates any provision of Sections
2, 17, 32 or 36. Agent and Nationwide understand and agree
that a termination of Nationwide's liability to pay Agent an
Refund Payment hereunder is not be construed as liquidated
damages, and is not a substitute for any of the remedies to
which Nationwide may otherwise be entitled.
(Emphasis added.) (RAE Agreement at ¶ 33.)
{¶ 55} The undisputed evidence in the record establishes that shortly after her
cancellation of the RAE agreement, Fox re-affiliated herself with Allstate, continued to
No. 17AP-745 20
occupy the office space she had used with Nationwide, and continued to use the same fax
and telephone numbers J. Fox Agency had used in the RAE program. Accordingly,
pursuant to the relevant provisions of the RAE agreement, Fox forfeited any right she may
have had to a refund. Fox contends, however, Nationwide materially breached paragraph
47 of the RAE agreement by failing to transfer servicing rights to all of the Riker-Gibellato
policies identified by Exhibit I of the RAE agreement.6 Fox maintains Nationwide's
material breach relieved her of her remaining obligations under the agreement, including
the prohibition against the use of Nationwide's telephone and fax numbers. "Generally, in
contract law, an insubstantial or minor breach of contract will not eliminate the parties'
obligations to perform; to the contrary, a material breach will relieve the other side of its
obligations under the contract." Miller v. Walker, 10th Dist. No. 96APE08-1070 (June 12,
1997), citing Software Clearing House, Inc. v. Intrak, Inc., 66 Ohio App. 3d 163, 170 (1st
Dist.1990); Kichler's, Inc. v. Persinger, 24 Ohio App. 2d 124, 126 (1st Dist.1970).
{¶ 56} According to Nationwide, Fox acknowledged, pursuant to paragraph 48 of
the RAE agreement, circumstances may arise that excuse Nationwide from transferring
servicing rights to all policies listed in Exhibit I. Paragraph 48(C) provides, in relevant part,
as follows:
Agent agrees and understands that the Reimbursement
described in Article 48A above is based upon the anticipated
assignment of the rights to service the policies set forth in the
attached Exhibit I. Agent acknowledges that the Nationwide
policies identified in Exhibit I may be cancelled by the
policyholders at any time. Agent accepts the risk that the rights
to service some of these policies may not be assigned to Agent
because the policyholders cancel or non-renew the policies, or
request that another Nationwide agent or distribution channel
service their policies. Agent agrees that Agent shall not be
entitled to an adjustment or reduction of the Reimbursement
in the event such events occur.
(Emphasis added.)
6 Paragraph 47 of the RAE agreement provides for the "Assignment of Servicing Rights" as follows: "Pursuant
to this Agreement, Nationwide extends to Agent the opportunity to service the designated Nationwide-owned
policies that were previously serviced by the former agency of CRAIG A RIKER and CARLO M GIBELLATO
(the 'Assigned Policies'). A list of the Assigned Policies is attached hereto as Exhibit I." (Emphasis sic.)
No. 17AP-745 21
{¶ 57} The audit of the Riker-Gibellato book of business was not completed until
March 24, 2014. Fox cancelled the RAE agreement on August 29, 2014. Under paragraph
48(C), a breach of paragraphs 47 and 48(A) of the RAE agreement occurs when Nationwide
fails to adjust or reduce the price paid by Fox for the Riker-Gibellato book of business to
account for policies cancelled, non-renewed, or transferred other than as prescribed in
paragraph 48. Paragraph 48 does not prescribe the time period or manner in which
Nationwide must adjust or reduce reimbursement. Even though Fox produced evidence
that Nationwide may not have transferred servicing rights to her for certain policies in the
Riker-Gibellato book of business that it should have, such evidence, standing alone, does
not create an issue of fact whether Nationwide committed either a breach of paragraph 47
of the RAE agreement for the purpose of contract claims or a material breach for the
purpose of excusing her non-compliance with the restrictions in paragraph 33 of the RAE
agreement.
{¶ 58} For the foregoing reasons, we hold the trial court did not err when it granted
summary judgment to Nationwide as to Fox's breach of contract claim. Fox's second
assignment of error is overruled.
C. Third Assignment of Error
{¶ 59} In Fox's third assignment of error, she argues the trial court erred when it
granted summary judgment to Nationwide on her claim for breach of implied covenant of
good faith and fair dealing. We disagree.
{¶ 60} "In addition to a contract's express terms, every contract imposes an implied
duty of good faith and fair dealing in its performance and enforcement." Lucarell v.
Nationwide Mut. Ins. Co., 152 Ohio St. 3d 453, 2018-Ohio-15, ¶ 42, citing Restatement of
the Law 2d, Contracts, Section 205 (1981). The Supreme Court of Ohio has recognized that
" ' "[g]ood faith" is a compact reference to an implied undertaking not to take opportunistic
advantage in a way that could have not been contemplated at the time of drafting, and which
therefore was not resolved explicitly by the parties.' " Ed Schory & Sons, Inc. v. Soc. Natl.
Bank, 75 Ohio St. 3d 433, 443 (1996), quoting Kham & Nate's Shoes No. 2, Inc. v. First Bank
of Whiting, 908 F.2d 1351, 1357 (7th Cir.1990).
{¶ 61} " 'Good faith performance or enforcement of a contract emphasizes
faithfulness to an agreed common purpose and consistency with the justified expectations
No. 17AP-745 22
of the other party.' " Lucarell at ¶ 43, quoting Restatement, Section 205, comment a. The
Supreme Court has, however, "rejected the contention that a party breaches the implied
duty of good faith and fair dealing merely by seeking to enforce the contract or by acting as
permitted by its express terms." Lucarell at ¶ 43, citing Ed Schory & Sons at 443-44;
Wendy's Internatl., Inc. v. Saverin, 337 Fed.Appx. 471, 477 (6th Cir.2009); 23 Lord,
Williston on Contracts, Section 63:22 (4th Ed.2003). "[T]here is no violation of the implied
duty unless there is a breach of a specific obligation imposed by the contract, such as one
that permits a party to exercise discretion in performing a contractual duty or in rejecting
the other party's performance." Lucarell at ¶ 43, citing Ed Schory & Sons at 443-44; 23
Lord, Section 63:22; Restatement, Section 205, comment e. Accordingly, there is no
separate cause of action in Ohio for breach of the implied duty of good faith and fair dealing.
Lucarell at ¶ 47. See also Interstate Gas Supply, Inc. v. Calex Corp., 10th Dist. No. 04AP-
980, 2006-Ohio-638, ¶ 98.
{¶ 62} Because we have determined Fox failed to produce evidence creating a
genuine issue of material fact regarding an alleged breach of the RAE agreement by
Nationwide, we hold the trial court did not err in granting summary judgment to
Nationwide as to Fox's claim for breach of an implied covenant of good faith and fair
dealing. Fox's third assignment of error is overruled.
D. Fourth Assignment of Error
{¶ 63} In Fox's fourth assignment of error, Fox argues the trial court erred when it
determined that Fox waived her fraud claims when she executed the amended RAE
agreement containing the release. We disagree.
{¶ 64} Initially, we note Fox's fraud claims are predicated, in part, on alleged
misrepresentations contained in the pro forma and business plan. Recently, however, the
Supreme Court addressed the very same claims in Lucarell. In that case, a former
Nationwide agent who participated in Nationwide's Agency Executive ("AE") program as it
existed in 2005, filed an action against Nationwide alleging several claims for relief,
including fraudulent inducement. The trial court directed a verdict in favor of Nationwide
as to that claim, but the jury returned a verdict in favor of Lucarell as to her claims for
breach of contract and invasion of privacy. The Seventh District Court of Appeals affirmed
the jury verdict in favor of Lucarell on her claims for breach of contract and invasion of
No. 17AP-745 23
privacy but reversed a directed verdict entered by the trial court in favor of Nationwide on
her claim for fraud.
{¶ 65} In reversing a directed verdict on fraud, the Seventh District concluded there
were triable issues of fraud based on evidence that Nationwide led Lucarell to believe she
would earn $200,000 a year in commissions when it knew or should have known that its
AE program agents were failing, that sales managers had a financial incentive to recruit
new program agents, and that someone fraudulently altered Lucarell's loan application to
mislead the bank into giving her a loan. Lucarell, 2018-Ohio-15, at ¶ 31, citing Lucarell v.
Nationwide Mut. Ins. Co., 7th Dist. No. 13 MA 74, 2015-Ohio-5286, ¶ 172. In reversing the
Seventh District, the Supreme Court concluded as follows:
[A] party cannot predicate fraud on predictions or projections
relating to future performance; rather, we have long recognized
that to be actionable, a misrepresentation must involve a
matter of fact that relates to the past or present. See Block v.
Block, 165 Ohio St. 365, 377, 135 N.E.2d 857 (1956); Armstrong
v. Karshner, 47 Ohio St. 276, 24 N.E. 897 (1890), paragraph
one of the syllabus. Thus, a pro forma is "not * * * an actionable
representation because it is a prediction about the future, not a
statement about the past or even the present." Bye v.
Nationwide Mut. Ins. Co., 733 F. Supp. 2d 805, 819
(E.D.Mich.2010); see also Rorig v. Thiemann, S.D.Ohio No.
1:05CV801, 2007 U.S. Dist. LEXIS 51653, 2007 WL 2071909,
*7 (July 17, 2007) ("a proforma by definition represents figures
based on financial assumptions or projections").
Lucarell, 2018-Ohio-15, at ¶ 63.
{¶ 66} It is evident from Fox's complaint and her deposition testimony that many of
the allegedly fraudulent representations Fox claims Nationwide made to her are merely
projections of potential sales and forecasts of potential earnings based on certain
assumptions. A representation about the amount of money Fox could earn or the
legitimacy and accuracy of her pro forma and business plan are not " 'a statement about the
past or even the present.' " Id., quoting Bye v. Nationwide Mut. Ins. Co., 733 F. Supp. 2d
805, 819 (E.D.Mich.2010). As such, they are not actionable under a fraud theory as a matter
of law.
{¶ 67} Nevertheless, the crux of Fox's allegations of fraud in this case are
Nationwide's alleged misrepresentations regarding the value of the Riker-Gibellato book of
No. 17AP-745 24
business. Fox claims Nationwide's misrepresentations induced her to sell her successful
Allstate agency, purchase the Riker-Gibellato book of business at a greatly inflated price,
and agree to participate in the RAE program with Nationwide. Fox also alleges Nationwide
failed to inform her that it intended to initiate a program, after she purchased the Riker-
Gibellato book of business, whereby Nationwide would reinspect certain insured properties
and then cancel the policies covering those properties. Fox claims, as a result of
Nationwide's conduct in concealing this fact, she paid Nationwide for policies that she was
never permitted to service.
{¶ 68} In addition to her fraud claims surrounding the Riker-Gibellato book of
business, Fox claims that Nationwide made false representations about potential sales in
the Michigan market when Nationwide knew it would be reducing its presence in that
market, that Nationwide fraudulently concealed the fact that it intended to raise rates in
Michigan and Ohio, and that Nationwide would not enforce policies prohibiting other
Nationwide agents from "stealing" her customers. (Fox Dep. at 188.) The trial court
determined that Fox released Nationwide from any liability for the alleged fraud when Fox
executed the amended RAE agreement containing a waiver of claims in December 2013.
We agree.
{¶ 69} " '[A] release is a binding agreement between the parties under which at least
one party to the agreement relinquishes an existing claim or cause of action against another
party to the agreement.' " Id. at ¶ 55, quoting 29 Lord, Williston on Contracts, Section 73:1,
at 8 (4th Ed.2003). "[W]hen a party signs and delivers a release, that party relinquishes all
claims encompassed within it and has no other contractual or other duties to perform."
Lucarell, 2018-Ohio-15, at ¶ 56. 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. Thayer v. Diver, 6th Dist. No.
L-07-1415, 2009-Ohio-2053, ¶ 54; Haller v. Borror Corp., 50 Ohio St. 3d 10, 13 (1990).
{¶ 70} "Whether a release operates upon a certain liability depends entirely upon
the intention of the parties, which is to be gathered from the language of the release and the
state of facts then existing." Task v. Natl. City Bank, 8th Dist. No. 65617 (Feb. 10, 1994),
citing Whitt v. Hutchison, 43 Ohio St. 2d 53 (1975); Kelly v. Med. Life Ins. Co., 31 Ohio St. 3d
130 (1987), paragraph one of the syllabus; Shifrin v. Forest City Ent., Inc., 64 Ohio St.3d
No. 17AP-745 25
635 (1992). "[A]bsent 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. Columbus, 10th Dist. No. 00AP-
315 (Dec. 7, 2000), citing Task (given broad language of the release, it was incumbent on
releasor to ascertain, at that time, whether he had any causes of action against defendant
and, if so, to expressly manifest his intent to exclude those claims from the scope of the
release).
{¶ 71} In Denlinger, the plaintiff, a former employee of Columbus Public Schools,
sought damages from the city of Columbus for breach of contract, defamation, breach of
privacy, and intentional infliction of emotional distress. The trial court dismissed the
complaint because the waiver and release provisions of the separation agreement precluded
plaintiff's claims.
{¶ 72} On Denlinger's appeal to this court, we noted the broadly worded separation
agreement provided the former employee waived all claims "arising from or in connection
with" his employment and resignation with the school. Id. This court determined that
because the former employee's claims unquestionably arose from and/or were connected
with his employment and/or resignation from employment, the release and waiver
provision in the contract "clearly and unambiguously" encompassed the allegations in the
complaint. Id. Accordingly, we affirmed the trial court's dismissal of those claims.
{¶ 73} In Sourial v. Nationwide Mut. Ins. Co., 10th Dist. No. 17AP-731, 2018-Ohio-
2528, this court recently determined that a release containing the same language as the
release executed by Fox effectively waived fraud claims based on alleged
misrepresentations made by Nationwide prior to the date of execution. In Sourial, a former
Nationwide agent brought suit against Nationwide alleging fraudulent inducement and
misrepresentation. In that case, the former agent alleged Nationwide made numerous false
representations in recruiting him to join its AE program. The trial court held the former
agent waived fraud claims against Nationwide when the agent executed an amended AE
agreement containing a release. In Sourial, the release signed by the former agent provided
that "[b]y signing this Amendment, [Sourial] waives all claims that he/she has or may have
against Nationwide * * * as of the date of his/her execution of this Amendment." (Emphasis
sic.) Id. at ¶ 38.
No. 17AP-745 26
{¶ 74} One of the issues for this court in the agent's appeal in Sourial was whether
the release encompassed fraud claims that may not have accrued prior to the date the
former agent signed the release. In affirming the trial court, this court noted:
[T]he language the parties used in the amended AE agreement
evidences the parties' intent to waive any claims that Sourial
"has or may have" against Nationwide arising out of Sourial's
participation in the ACB and AE programs. (Amendment to AE
Agreement at 1.) In our view, the language in the instant
release is broad enough to encompass the tort claims alleged in
Sourial's complaint. Thus, the language of the release clearly
and unambiguously encompasses the allegations in Sourial's
complaint that comprise Sourial's claims for fraud in the
inducement and misrepresentation.
***
[T]o the extent Sourial has alleged an actionable claim of
fraudulent inducement and/or fraudulent misrepresentation
against Nationwide based on facts that existed when he
executed the release, Sourial waived any such claim as a matter
of law.
Id. at ¶ 44, 48.
{¶ 75} Here, as was the case in Sourial, the language the parties used in the amended
RAE agreement evidences the parties' intent to waive any claims that Fox "has or may have"
against Nationwide arising out of Fox's participation in the RAE program. (Amendment to
RAE Agreement at 2.) Just as in Denlinger and Sourial, the evidence unquestionably shows
that Nationwide made the allegedly fraudulent representations and inducements prior to
the time Fox executed the release. In our view, the language in the instant release is broad
enough to encompass the fraud claims alleged in Fox's complaint.
{¶ 76} Nevertheless, Fox argues she was unaware of the extent to which Nationwide
misrepresented the value of the Riker-Gibellato book of business until March 2014, when
the results of an internal audit revealed its true value. Accordingly, Fox maintains she did
not release Nationwide from liability for fraud based on Nationwide's allegedly false and
fraudulent representations regarding the value of the Riker-Gibellato book of business
because the claim based on those facts had not yet accrued when she signed the release.
We find Fox's argument both legally and factually flawed.
No. 17AP-745 27
{¶ 77} Releases from liability for future tortious conduct are generally not favored
by the law and will be narrowly construed. Denlinger, citing Glaspell v. Ohio Edison Co.,
29 Ohio St. 3d 44, 46-47 (1987); Swartzentruber v. Wee-K Corp., 117 Ohio App. 3d 420, 424
(4th Dist.1997); see also Thompson v. Otterbein College, 10th Dist. No. 95APE08-1009
(Feb. 6, 1996). For example, it is error for a trial court to grant summary judgment to a
defendant based on a release of liability where the release did not encompass intentionally
tortious conduct that took place after plaintiff executed the release. Haller. Fox argues,
under Ohio law, a party cannot release fraud claims that have not yet accrued when the
release is executed. In Sourial, however, this court rejected that argument:
Sourial argues, under Ohio law, a party cannot release fraud
claims that have not yet accrued when the release is executed.
We disagree. As previously stated, the operative language of
the release encompasses any claims Sourial "has or may have"
against Nationwide. (Amendment to AE Agreement at 1.) This
court has previously stated that "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."
McBroom v. Safford, 10th Dist. No. 11AP-885, 2012-Ohio-
1919, ¶ 12, citing Task (given broad language of the release, it
was incumbent on releasor to ascertain, at that time, whether
he had any causes of action against defendant and, if so, to
expressly manifest his intent to exclude those claims from the
scope of the release).
Id. at ¶ 54.
{¶ 78} Here, as was the case in Sourial, the authorities relied on by Fox expressing
an opposing view arise primarily under federal statutory law. See, e.g., Anderson v. A.C. &
S., Inc., 154 Ohio App. 3d 393, 2003-Ohio-4943 (8th Dist.) (case decided under the Federal
Employees Liability Act which provides at 45 U.S.C. 55 that "[a]ny contract * * *, the
purpose or intent of which shall be to enable any common carrier to exempt itself from any
liability created by this act * * *, shall to that extent be void"); Forry, Inc. v. Neundorfer,
Inc., 837 F.2d 259, 267 (6th Cir.1988) (case decided under the federal copyright laws). We
declined to apply those authorities in Sourial, and we decline to apply them herein.
{¶ 79} Moreover, the only reasonable inference supported by the evidence in this
case is Fox's fraud claims accrued prior to the time she executed the release. In Cundall v.
No. 17AP-745 28
U.S. Bank, 122 Ohio St. 3d 188, 2009-Ohio-2523, the Supreme Court determined claims for
fraud accrue as follows:
"A cause of action for fraud or conversion accrues either when
the fraud is discovered, or [when] in the exercise of reasonable
diligence, the fraud should have been discovered. Investors
REIT One v. Jacobs (1989), 46 Ohio St. 3d 176, 546 N.E.2d 206,
paragraph 2b of the syllabus; Burr v. Stark Cty. Bd. of
Commrs. (1986), 23 Ohio St. 3d 69, 76 [23 OBR 200], 491
N.E.2d 1101. When determining whether the exercise of
reasonable diligence should have discovered a case of fraud, the
relevant inquiry is whether the facts known ' "would lead a fair
and prudent man, using ordinary care and thoughtfulness, to
make further inquiry * * *." ' Hambleton v. R.G. Barry Corp.
(1984), 12 Ohio St. 3d 179, 181 [12 OBR 246], 465 N.E.2d 1298,
quoting Schofield v. Cleveland Trust Co. (1949), 149 Ohio St.
133, 142 [36 Ohio Op. 477], 78 N.E.2d 167." Stokes v. Berick, Lake
App. No. 98-L-094, 1999 Ohio App. LEXIS 6264, 1999 WL
1313668, *5.
As the First District has recognized, "this standard does not
require the victim of the alleged fraud to possess concrete and
detailed knowledge, down to the exact penny of damages, of the
alleged fraud; rather, the standard requires only facts sufficient
to alert a reasonable person of the possibility of fraud."
(Emphasis added.) Palm Beach Co. v. Dun & Bradstreet.
(1995), 106 Ohio App. 3d 167, 171, 665 N.E.2d 718.
"[C]onstructive knowledge of facts, rather than actual
knowledge of their legal significance, is enough to start the
statute of limitations running under the discovery rule."
(Emphasis sic.) Flowers v. Walker (1992), 63 Ohio St. 3d 546,
549, 589 N.E.2d 1284.
Id. at ¶ 29-30.
{¶ 80} There is no doubt on this record that Fox had constructive knowledge of
Nationwide's overvaluation of the Riker-Gibellato book of business prior to the time she
executed the release. In her deposition, Fox testified that when she executed the original
RAE agreement, the Nationwide records available to her were both out-of-date and
inaccurate. Fox testified that in spring 2012, when the relevant records were updated, she
became aware of problems with the Michigan policies that were included in the Riker-
Gibellato book of business. Fox acknowledges that on October 29, 2013, two months before
she signed the release, Fox asked a Nationwide underwriter to audit the policies in the
No. 17AP-745 29
Riker-Gibellato book of business. There can be no doubt on this record that the facts known
by Fox as early in spring 2012 would have led a reasonable person in Fox's position to
suspect that Nationwide falsely represented the value of the Riker-Gibellato book of
business. Prior to signing the release, Fox made an effort to determine the extent of
Nationwide's overvaluation by seeking the audit. Though Fox may not have known the
extent to which Nationwide had overvalued the Riker-Gibellato book of business until the
audit was completed in March 2014, there is no question that Fox had constructive
knowledge of the facts allegedly supporting the fraud claim prior to the date she signed the
release. Accordingly, her fraud claim against Nationwide necessarily accrued prior to the
date she signed the release.
{¶ 81} The same is true of Fox's remaining fraud claims. There is no factual dispute
on this record that Fox knew, well before she signed the release, Nationwide had reduced
its presence in the Michigan market, raised rates in Ohio, and permitted other agents to
obtain servicing rights both for policies in the Riker-Gibellato book of business and other
policies she had sold. Thus, Fox's fraud claims based on these allegedly false inducements,
representations, and/or concealments are barred by the release as a matter of law.
{¶ 82} For the foregoing reasons, we hold the trial court did not err when it
determined the release contained in the amended RAE agreement executed by Fox in
December 2013 barred Fox's fraud claims in this case as a matter of law. Accordingly, Fox's
fourth assignment of error is overruled.
E. Fifth Assignment of Error
{¶ 83} In her fifth assignment of error, Fox argues alternatively that the amended
RAE agreement containing the release was not enforceable due to the lack of consideration.
There is, however, no factual dispute that Nationwide suspended Fox's MPP requirements
for the three-month period preceding the amended RAE agreement and that the amended
MPP schedule attached to the amended RAE agreement memorializes the three-month
suspension. Thus, Fox's argument has no basis in fact or law.
{¶ 84} We also find no merit in Fox's contention that the release is unenforceable
because Mansour fraudulently induced Fox to sign the amended RAE agreement by falsely
claiming the amended RAE agreement would get her back on track to make her MPP. Given
the plain language in the two-page document comprising the amended RAE agreement, no
No. 17AP-745 30
trier of fact could conclude that Fox reasonably believed the amended RAE agreement
accomplished anything other than a three-month suspension of her MPP. Accordingly,
there is no factual or legal merit to Fox's argument.
{¶ 85} For the foregoing reasons, we hold the trial court did not err when it
determined that the release contained in the amended RAE agreement executed by Fox in
December 2013 barred Fox's fraud claims as a matter of law. Accordingly, Fox's fifth
assignment of error is overruled.
F. Sixth Assignment of Error
{¶ 86} In Fox's sixth assignment of error, Fox contends that the trial court erred by
entering summary judgment in favor of Nationwide as to her claim for unjust enrichment.
The trial court determined the existence of the fully integrated RAE agreement barred Fox's
unjust enrichment claim as a matter of law. We agree.
{¶ 87} Under Ohio law, when "a written contract between the parties addresses the
matter in dispute, the contract governs the parties' performance, unless the contract is void
due to illegality, fraud, or otherwise cannot govern the relationship." Saraf v. Maronda
Homes, Inc., 10th Dist. No. 02AP-461, 2002-Ohio-6741, ¶ 12. Thus, in the absence of proof
of bad faith, fraud, or some other illegality, the existence of a written agreement bars a claim
of unjust enrichment. Id. See also Cristino v. Admr., 10th Dist. No. 12AP-60, 2012-Ohio-
4420, ¶ 24.
{¶ 88} There is no dispute the written RAE agreement expressly provides that
Nationwide retains ownership of the policies sold by appellant under the RAE program and
also sets forth the specific circumstances under which Fox may obtain a refund of monies
paid to Nationwide for the Riker-Gibellato book of business. Fox has not alleged illegality
of purpose, nor do the misrepresentations alleged by Fox, if proven, prevent contract
formation in this case. See Restatement of the Law 2d, Contracts, Sections 163 and 164.
{¶ 89} For the foregoing reasons, we conclude the RAE agreement barred Fox's
unjust enrichment claim as a matter of law. Fox's sixth assignment of error is overruled.
G. Seventh Assignment of Error
{¶ 90} In Fox's seventh assignment of error, Fox argues the trial court erred by
entering summary judgment for Nationwide, on reconsideration, as to Fox's claims for
misappropriation of name and likeness and false light invasion of privacy. We disagree.
No. 17AP-745 31
{¶ 91} Under a false light invasion of privacy theory, "[o]ne who gives publicity to a
matter concerning another that places the other before the public in a false light is subject
to liability to the other for invasion of privacy if (a) the false light in which the other was
placed would be highly offensive to a reasonable person and (b) the actor had knowledge of
or acted in reckless disregard as to the falsity of the publicized matter and the false light in
which the other would be placed." (Emphasis added.) Welling v. Weinfeld, 113 Ohio St. 3d
464, 2007-Ohio-2451, syllabus, adopting Restatement of the Law 2d, Torts, Section 652E
(1997). To succeed under a false light theory, the information must be made public, i.e.,
communicated "to the public at large, or to so many persons that the matter must be
regarded as substantially certain to become one of public knowledge." Welling at ¶ 53.
{¶ 92} Here, as the trial court noted in it decision on reconsideration, the evidence
that Nationwide continued to issue correspondence using Fox's name in 2016 and 2017 was
not properly before the court in the context of Nationwide's motion for summary judgment.
Moreover, even if we were to consider Fox's evidence that Nationwide issued "several letters
in 2016 and at least one letter in April 2017," and even if we were to conclude that falsely
affiliating Fox with Nationwide would be highly offensive to a reasonable person, Fox failed
to produce evidence to support the "publicity" element of her false light claim. (Sept. 7,
2017 Reply at 12.) Accordingly, Fox cannot recover damages under a false light theory as a
matter of law.
{¶ 93} Similarly, "[i]t is only when the publicity is given for the purpose of
appropriating to the defendant's benefit the commercial or other values associated with the
name or the likeness [of another] that the right of privacy is invaded." (Emphasis added.)
Restatement of the Law 2d, Torts, Section 652C, comment d (1997); Vinci v. Am. Can Co.,
69 Ohio App. 3d 727, 729 (8th Dist.1990) ("mere incidental use of a person's name or
likeness is not actionable under the 'right of publicity' "). Having determined issues of fact
do not exist regarding the "publicity" element of Fox's false light claim and given the fact
Fox's misappropriation claim arises factually out of Nationwide's issuance of the same
correspondence, Fox's misappropriation claim fails as a matter of law.7
7Fox has not appealed from the trial court's rulings related to the allegation that Nationwide continued to use
Fox's name and likeness on billboard advertising following cancellation.
No. 17AP-745 32
{¶ 94} For the foregoing reasons, we hold the trial court did not err when it granted
summary judgment to Nationwide on Fox's invasion of privacy claims. Fox's seventh
assignment of error is overruled.
V. CONCLUSION
{¶ 95} Having overruled Fox's seven assignments of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and DORRIAN, JJ., concur.
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