Nationwide Mutual Insurance v. Housing Opportunities Made Equal, Inc. , 259 Va. 8 ( 2000 )

CHIEF JUSTICE CARRICO

delivered the opinion of the Court.

The Virginia Fair Housing Law, Code §§ 36-96.1 through -96.23, makes it “unlawful for any person or other entity ... to discriminate against any person in making available [a residential real estate-related] transaction, or in the terms or conditions of such a transaction, . . . because of race, color, religion, national origin, sex, elderliness, familial status, or handicap.” Code § 36-96.4(A). A residential real estate-related transaction means, inter alia, “[t]he . . . insuring ... of residential real property.” Code § 36-96.4(B)(2).

In an amended motion for judgment filed March 21, 1997, Housing Opportunities Made Equal, Inc. (HOME), a fair housing organization, sought damages from Nationwide Mutual Insurance Company and Nationwide Mutual Fire Insurance Company (collectively, Nationwide) for discriminatory practices allegedly employed by Nationwide in the provision of homeowners insurance to African-Americans in the Richmond area. A jury awarded HOME a verdict of $500,000 in compensatory damages and $100,000,000 in punitive damages. The trial court entered judgment on the verdict, and we awarded Nationwide this appeal.

The Parties

HOME is a nonprofit Virginia corporation formed in 1971 with the mission of promoting fair housing in Central Virginia, including the Richmond metropolitan area. In carrying out its mission, HOME’S first priority is counseling, education is second, and advocacy, which includes litigation, is third. HOME counsels clients about their housing needs or problems. HOME trains the housing industry “to make sure [its members] don’t violate the fair housing laws” and also educates “housing consumers about what their rights . . . and . . . responsibilities are.” HOME resorts to litigation if counseling and education “are not enough to ensure equal access.”

Nationwide writes insurance. It states on brief that it “has long been one of the leading providers of homeowners’ insurance in the Richmond metropolitan area, [insuring] thousands of houses throughout the city and the surrounding suburbs.”

The Nature of the Controversy

HOME charged in its amended motion for judgment that “Nationwide has, for many years, intentionally pursued a strategy whereby the company avoids providing insurance in African-American neighborhoods” and “has followed an express policy of not targeting urban areas, containing significant minority populations, for the marketing of homeowners policies.” In its grounds of defense, Nationwide denied HOME’S allegations.

HOME submitted the following evidence concerning the discriminatory practices allegedly employed by Nationwide.

Marketing Activities

In the late 1980s, Nationwide was “in a position of stagnánt market share growth, and if [it] did not make some significant change, [it] would begin losing [its] market share.” Accordingly, in 1990, Nationwide developed a “Marketing Strategy” for the Richmond area which stated that “after reviewing household growth, median income, median home value, 13+ years of schooling, and median age,” the nearby counties of Henrico, Hanover, and Chesterfield “were identified as grow fast areas” and as “targeted counties.” The City of Richmond was mentioned in the strategy only tangentially; it was not included as a targeted market.

The strategy identified eleven zip codes in the three counties as representing “the profile of Nationwide’s select risk market.” However, 23227, a Henrico zip code bordering the northern edge of the City of Richmond, was singled out for this comment:

We have no data to support identification of emerging ethnic or minority groups. However, of our targeted counties, only one zip code was discovered to have greater than the statewide average for minority groups — this was zip code 23227 (Henrico).

Following development of the marketing strategy, Nationwide implemented a marketing tool known as “MicroVision,” which “is produced on a zip code basis [and] characterizes zip codes by particular lifestyle categories. . . . [T]hese lifestyle segments purport to describe various homogeneous populations ... by their race, by the kinds of things they read, ... by their income.”¹ The segments were assigned designations with such names as “Lap of Luxury,” “Established Wealth,” “Metro Minority Families,” “Struggling Minority Mix,” and “Difficult Times.” The segments were then placed into one of five marketing groups: “Affluent”; “Mainstream”; “Mature”; “Country Living”; and “Remaining Diverse.” The first four groups were considered desirable markets. The fifth, “Remaining Diverse,” was considered undesirable. MicroVision placed every predominantly minority neighborhood of the City of Richmond, i.e., those with minority population of 50% or more, in the “Remaining Diverse” group.

Nationwide’s marketing activities also included the production of a “Local Area Market Plan” (LAMP), which divided a given geographic area into zip codes and ranked them as “Best in State,” “Best in Market,” “Next Best in Market,” and “Remaining.” The first three zip codes were considered desirable markets. The fourth, “Remaining,” was considered undesirable. Like MicroVision, LAMP placed every predominantly minority neighborhood of the City of Richmond in the “Remaining” group.

Further, Nationwide performed a “geographic realignment” to “identify where [it wanted its] markets to be, and which populations [it wanted] to target.” Among the “natural geographic boundaries” to be considered in “planning the ideal geographic market” were “cultural or ethnic areas.” In Nationwide memoranda dated March 25, 1996, and April 3, 1996, recommending realignment of marketing districts in Central Virginia, the population of the City of Richmond was not included in any marketing district, although rural jurisdictions with smaller populations were included.²

Finally, HOME highlights Nationwide’s treatment of zip code 23227 in Henrico County. This was one of the eleven zip codes identified by Nationwide in its 1990 Marketing Strategy as representing the profile of its select risk market. HOME says that “[ejach of the 11 areas was overwhelmingly white, but. . . 23227 . . . had a minority percentage in excess of the state average,” and Nationwide over the years has consistently ignored “this one zip code, while devoting extra attention to the other 10.” The differential treatment consisted of excluding 23227 from Nationwide’s targeted zip codes and placing it in the undesirable “Remaining” category in every LAMP and Micro Vision listing.

Location of Agents

An expert witness called by HOME testified that Nationwide followed “a consistent pattern ... of placing [its] agents in the target markets.” Nationwide encouraged existing agents to move their offices, or to change their focus, from a non-targeted to a targeted area and, if they refused, the company would “ultimately [remove their] binding authority if necessary.” Without binding authority, an agent cannot deliver a policy to a customer “until it’s gone through the whole underwriting process.” While Nationwide had four agency offices in predominantly minority areas of the City of Richmond in 1990, it had none at the time of trial.

HOME again highlights Nationwide’s treatment of zip code 23227. In 1990, three of the eleven zip codes targeted in Henrico, Hanover, and Chesterfield Counties, including 23227, had no agents. By the time of trial, however, Nationwide had placed agents in every one of the eleven zip codes except 23227, despite the fact that 23227 had one of the best loss ratios of the eleven zip codes in 1990.

Hiring and Training Policies

Nationwide instructed its managers to “search for the agent candidate and staff within the target market.” One manager testified that of thirty-two agents he supervised in an area including the City of Richmond prior to the time this proceeding was filed, none was African-American. Another manager in the Richmond area testified that he had hired thirteen new agents in the period from 1991 to the time this proceeding was filed, and none was African-American.

Nationwide required its new agents to undergo extensive instruction, but the course did not include anti-redlining training, i.e., instruction on the necessity to avoid the unlawful exclusion of geographical areas from consideration for homeowners insurance. An early version of LAMP cautioned against redlining, but Nationwide later removed the cautionary language.

Underwriting Standards

Nationwide’s underwriting standards were described as having “a disproportionate effect on people who live in minority neighborhoods.” Nationwide offered two types of homeowners policies, the “Golden Blanket” policy, providing for replacement of a dwelling and its contents regardless of actual replacement cost, and the “Elite II” policy, providing for replacement limited to the face value of the policy. Nationwide called Golden Blanket its “Cadillac” policy and Elite II its “weak-sister” policy. Golden Blanket policies were not available for dwellings that were more than 30 years of age or valued at less than $90,000. Elite II policies were available for older dwellings, but if they were more than fifty years old and located in the “inner city,” agents were “required to carefully inspect each home inside and out before actually writing the application.” It was established that “the minority population lives . . . predominantly in the areas with older housing much more so than the white population.”

HOME cites evidence from Nationwide’s “own documents [which] showed that its market penetration in Richmond’s minority zip codes was less than 50 percent of its penetration in white zip codes” and that “[t]he penetration for the Golden Blanket policy was more than 20 times higher in white neighborhoods than in minority neighborhoods.” HOME says that “Nationwide had so avoided minority neighborhoods in Richmond that one of the company’s managers described those areas as the ‘hole in the donut.’ ”

Pricing

The evidence showed that the company placed the City of Richmond in a separate pricing territory and then established “base rates for the city . . . higher than the base rates for the surrounding counties.” The rates were “actually somewhat higher than indicated by Nationwide’s own experience in Richmond,” and the “price would have been less, except [that Nationwide] used ... an unsound practice of using competitor information in Richmond.” Nationwide also charged a higher premium for its “weak-sister” Elite II policy, which was more adaptable to the older housing found in minority areas, than it charged for the Golden Blanket policy.

Advertising

Nationwide conducted a minority market study and produced a report that the specific minority groups studied, which included African-Americans, “separately and together, are large enough to be important market segments.” The report also stated that “the African-American market would be the easiest and most efficient (as a result of [Nationwide’s] geographic concentration) for which to formulate new programs.” The report cautioned that African-Americans cannot be reached by advertising in mass-market publications like Time and Newsweek but that “to reach specific segments efficiently within the Black population, advertising must include black-interest publications (e.g Black Enterprise, Ebony).” The report’s conclusion was that “a specific marketing strategy to target these groups individually does not seem warranted for Nationwide’s property/casualty operations,” and Nationwide continued to advertise in “primarily the weeklies, Time or Newsweek, Sports Illustrated, Southern Living, People Magazine.”

Testers

HOME employed trained testers to contact Nationwide agents for “insurance quotes” on test homes over a period extending from June or July of 1995 to October of 1996. HOME chose three pairs of test homes. Each pair was matched for similar features and age, but one home of the pair was located in a minority neighborhood and the other in a white neighborhood. When completed, the testing showed that quotes had been denied in nine out of fifteen tests for homes in the minority neighborhoods and only four out of sixteen tests in the white neighborhoods.

The agents gave various reasons for their denial of quotes in the minority neighborhoods, including that Nationwide did not insure homes more than fifty years old or valued at less than $60,000 and that the company required thirty-days notice prior to closing to write insurance. One agent admitted on the witness stand that an employee of his office had told an untruth when she informed an African-American tester that the office did not insure homes more than fifty years old. Shortly before, the office had given a quote to a white homeowner on a house of similar age.³

Discussion

Nationwide’s appeal presents a number of questions, including whether HOME has standing to maintain its action for damages against Nationwide. “Standing to maintain an action is a preliminary jurisdictional issue having no relation to the substantive merits of an action,” Andrews v. American Health & Life Insurance Co., 236 Va. 221, 226, 372 S.E.2d 399, 402 (1988), and, accordingly, is a matter for determination by the court.

Nationwide raised the standing issue in a motion for summary judgment that was filed, heard, and denied pretrial. HOME contends, however, that Nationwide later conceded the standing issue by failing to object to an instruction granted by the trial court that permitted the jury to consider damage to HOME’S “mission, purpose, and efforts to promote equal access to housing.” We disagree with HOME.

We recently confronted a similar situation in Wright v. Norfolk & Western Railway Co., 245 Va. 160, 427 S.E.2d 724 (1993). There, the railway company failed to object to an instruction which permitted the jury to decide whether the plaintiff was guilty of contributory negligence. During argument on the railway company’s motion to set aside an adverse verdict, the plaintiff argued that by failing to object to the instruction, the railway company had “waived its right to rely on the proposition that [the plaintiff] was guilty of contributory negligence as a matter of law.” Id. at 166, 427 S.E.2d at 727. The trial court ruled that no waiver had occurred and that the plaintiff was guilty of contributory negligence as a matter of law. Id.

We affirmed. We said there was no waiver because the railway company had consistently maintained the position throughout the trial that no jury issue was presented on the question of the plaintiff’s contributory negligence. This, we stated, gave the trial court the opportunity to rule intelligently on the issue, which is the main purpose of our contemporaneous objection rule, Rule 5:25. 245 Va. at 168, 427 S.E.2d at 728. See also Chawla v. BurgerBusters, Inc., 255 Va. 616, 622, 499 S.E.2d 829, 832 (1998).

Here, Nationwide continued throughout the proceedings to ' insist that HOME lacked standing to maintain its action against Nationwide. Nationwide took this position in its pretrial motion for summary judgment, in its motion to strike at the close of HOME’S evidence, in its motion to strike at the conclusion of all the evidence, and in its motion for a new trial.⁴ This clearly afforded the trial court ample opportunity to rule on the issue of HOME’S standing. Indeed, at the very end of the case, after Nationwide’s counsel told the trial court he was concerned “that all [his] objections are preserved for the record,” the judge remarked: “I say that you have preserved every argument that you have made from the time that the case was filed until now.” We hold that Nationwide did not waive or concede the standing issue.

This brings us to the merits of Nationwide’s contention that HOME lacked standing to maintain its action for damages because it “failed to establish below that it was in any way ‘aggrieved” by Nationwide’s alleged discrimination against ‘African-American neighborhoods’ in the City of Richmond.” An “aggrieved person” is defined in the Virginia Fair Housing Law as one who “claims to have been injured by a discriminatory housing practice” or “believes that such person will be injured by a discriminatory housing practice that is about to occur.” Code §36-96.1:1. “Person” is defined to include, inter alia, “fair housing organizations.” Id.⁵ And “[a]n aggrieved person may commence a civil action in an appropriate United States district court or state court ... to obtain appropriate relief with respect to such discriminatory housing practice . . . .” Code § 36-96.18.

HOME argues that “[tjhere can be no question that [it] is a fair housing organization and that it has claimed Nationwide’s discriminatory housing practices have injured it.” “Thus,” HOME concludes, “under the plain language of the statute, HOME has standing.” In other words, it is HOME’S position that the statute imposes a less restrictive standard for standing than might otherwise be required, with the result that HOME establishes its standing merely by stating the terms of the statute.

When HOME made this argument in the trial court, the trial judge remarked, “You can’t just say it, there really has ... to be some —,” at which point HOME’S counsel said, “There has to be some meat to it, yes, Your Honor. And HOME has showed that there is meat to it in this case. And that’s shown under the common law of Virginia and we’ve presented to the court [the] common law of Virginia with respect to standing.” HOME’S counsel also said “the federal law, which is persuasive authority, . . . likewise shows that HOME has standing in this case,” and counsel named Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), as the persuasive authority.

Thus, in the trial court, HOME asserted three bases for its claim to standing, i.e., the Supreme Court’s decision in Havens, the Virginia Fair Housing Law, and the common law of Virginia. HOME asserts the same three bases on appeal.

Havens Realty Corp. v. Coleman

HOME says that Havens “establishes [its] standing.” In Havens, HOME and others brought a class action under the federal Fair Housing Act against Havens Realty Corp. for declaratory, injunctive, and monetary relief for Havens’ alleged “racial steering” in its operation of two apartment complexes in Henrico County. HOME alleged that Havens’ discriminatory practices had injured HOME by frustrating its mission and causing a drain on its resources. On Havens’ pretrial motion, the district court dismissed the action, holding that the plaintiffs lacked standing. The United States Court of Appeals for the Fourth Circuit reversed, and the Supreme Court granted certiorari. 451 U.S. 905 (1981).

In its opinion, the Supreme Court stated that “the sole requirement for standing to sue under [the federal Fair Housing Act] is the [federal Constitution’s] Art. HI minima of injury in fact: that the plaintiff allege that as a result of the defendant’s actions he has suffered ‘a distinct and palpable injury.’ ” 455 U.S. at 372. The Court held that HOME’S allegations of injury concerning the frustration of its mission and a drain on its resources were sufficient to withstand Havens’ motion to dismiss. Id. at 379. The Court observed in a footnote that “HOME will have to demonstrate at trial that it has indeed suffered impairment in its role of facilitating open housing before it will be entitled to judicial relief.” Id. n.21.

Havens involved interpretation of the federal Fair Housing Act in a context presenting a question of non-constitutional federal law. Accordingly, the decision is not binding on this Court in this case involving a state statute and a pure question of state law.⁶ While the Virginia statute contains a provision (Code § 36-96.23) that “[n]othing in [the Virginia Fair Housing Law] shall abridge the federal Fair Housing Act of 1968 (42 U.S.C. § 3601 et seq.),” nothing in the Virginia statute requires that it be interpreted according to federal law.⁷

The Virginia Fair Housing Law

It is true, of course, as HOME maintains, that the statute permits an action to be brought by an “aggrieved person,” defined as one who claims to have been or believes he will be injured. But the statute does not fix a standard for determining whether standing exists. Undeniably, HOME is a “person” under the statute, but whether it is an “aggrieved person” turns on whether it has been or will be injured. Hence, the key word is “injured”; however, it is undefined. We resort, therefore, to the common law of Virginia for the appropriate standard for determining standing, a standard that was already in place in 1991 when the Virginia Fair Housing Law was amended to include the definition of an “aggrieved person” and to add fair housing organizations to the definition of “person.” 1991 Va. Acts ch. 557. And nothing in the 1991 amendment indicates an intention on the part of the General Assembly to lower that standard.

The Virginia Common Law

Admittedly, the Virginia common law standard is more restrictive than its federal counterpart. In Nicholas v. Lawrence, 161 Va. 589, 171 S.E. 673 (1933), we said that for a person to have standing to invoke the jurisdiction of a court, “he must show that he has an immediate, pecuniary and substantial interest in the litigation, and not a remote or indirect interest.” Id. at 593, 171 S.E. at 674 (emphasis added). In Cupp v. Board of Supervisors, 227 Va. 580, 318 S.E.2d 407 (1984), we said that the “concept of standing concerns itself with the characteristics of the person or entity who files suit” and that “[t]he essence of the standing inquiry is whether [such person or entity has] ‘a personal stake in the outcome of the controversy.’ ” Id. at 589, 318 S.E.2d at 411 (quoting Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 72 (1978) (emphasis added in Cupp)). And in Virginia Beach Beautification Commission v. Board of Zoning Appeals, 231 Va. 415, 344 S.E.2d 899 (1986), we said:

In order for a petitioner to be “aggrieved,” it must affirmatively appear that such person has some direct interest in the subject matter of the proceeding that he seeks to attack. . . . [I]t is not sufficient that the sole interest of the petitioner is to advance some perceived public right or to redress some anticipated public injury .... The word “aggrieved” in a statute contemplates a substantial grievance and means a denial of some personal or property right ... or imposition of a burden or obligation upon the petitioner different from that suffered by the public generally.

Id. at 419-20, 344 S.E.2d at 902-03 (emphasis added).

HOME says it has standing to maintain its action against Nationwide because it “can identify economic and non-economic injuries resulting from Nationwide’s discriminatory activities.” According to HOME, its injuries consist of the frustration of its mission, the diversion of its resources, and the discrimination practiced against its “tester/agents.”

Frustration of Mission

HOME’S claim based upon the frustration of its mission fails the Virginia test for standing. HOME itself has not suffered any denial of homeowners insurance and cannot claim injury based upon such a denial. It relies instead upon the purported injury to others resulting from Nationwide’s discriminatory practices. And, in the trial court, HOME included in its claim of purported injury to others resulting from Nationwide’s practices “the harm caused to the city of Richmond, individuals, neighborhoods, the tax base.”

Hence, HOME’S interest in the litigation and its purported injury are not “immediate, pecuniary and substantial” but “remote or indirect.” Nicholas, 161 Va. at 593, 171 S.E. at 674. HOME’S purported injury is not “different from that suffered by the public generally.” Virginia Beach Beautification Commission, 231 Va. at 420, 344 S.E.2d at 903. And HOME’S interest in this litigation is reduced to an effort “to advance some perceived public right or to redress some anticipated public injury.” Id. at 419, 344 S.E.2d at 902.

Furthermore, Virginia is not a class-action state, and “[a]n individual or entity does not acquire standing to sue in a representative capacity by asserting the rights of another, unless authorized by statute to do so.” W. S. Carnes, Inc. v. Board of Supervisors, 252 Va. 377, 383, 478 S.E.2d 295, 300 (1996). The Virginia Fair Housing Law does not bestow such representative authority. To say, therefore, that HOME has standing in this case would, in effect, convert the proceeding into a class action and permit HOME to sue in a representative capacity for discriminatory housing practices directed against someone else who may not himself have the required standing to sue.

Diversion of Resources

HOME’S claim to standing based upon the diversion of its resources involves some $56,000 that HOME spent investigating and testing Nationwide for its alleged discriminatory practices. This sum consists in part of $6,000 to $7,000 of HOME’S own funds, representing the cost of staff time spent in preparation for this litigation. The balance, paid from federal grants totaling approximately $1.2 million, represents the pro rata share attributable to Nationwide of the cost of HOME’S investigation of approximately thirty insurance companies, including Nationwide, writing homeowners coverage in Richmond. Also involved in HOME’S diversion of resources claim to standing is the value of a federal grant for education that HOME lost when it chose instead an enforcement grant in order to continue with its investigation of the insurance industry. Finally, HOME says that it had to divert resources from other testing and education programs to identify Nationwide’s discriminatory practices.

It is elementary that one who seeks damages as redress for wrongful action must not only prove the wrongful action but also a causal connection between the wrongful action and the injury complained of. Phillips v. Southeast 4-H Educ. Ctr., 257 Va. 209, 215, 510 S.E.2d 458, 461 (1999). Even Havens requires that an injury be “ ‘fairly traceable’ ” to a discriminatory practice to satisfy the requirement of injury in fact. 455 U.S. at 376.

There can be no causal connection between action, even though wrongful, and injury that is self-inflicted. HOME’S executive director testified below that “[p]rior to HOME undertaking ... the systemic industry homeowners insurance investigation” when HOME’S first federal grant “came through” on January 1, 1995, HOME had “received no complaints about Nationwide in the Richmond area.”⁸ HOME’S decisions to undertake the investigation, to spend part of the grant funds on the investigation, to devote staff time to preparation for this litigation, to choose an enforcement grant rather than an educational grant, and to divert resources from other testing and education programs were all made voluntarily, independent of anything Nationwide did or failed to do with respect to minority neighborhoods in the City of Richmond.

What was said in Fair Employment Council v. BMC Marketing Corp., 28 F.3d 1268 (D.C. Cir. 1994), is pertinent here:

The diversion of resources to testing might well harm the Council’s other programs, for money spent on testing is money that is not spent on other things. But this particular harm is self-inflicted; it results not from any actions taken by BMC, but rather from the Council’s own budgetary choices.

Id. at 1276.

And this from Association for Retarded Citizens v. Dallas County, 19 F.3d 241 (5th Cir. 1994), a fair housing case:

The mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing upon the organization.

Id. at 244.

Also pertinent is this statement from another fair housing case, Project Sentinel v. Evergreen Ridge Apartments, 40 F. Supp.2d 1136 (N.D. Cal. 1999):

Plaintiff cannot manufacture standing by first claiming a general interest in lawful conduct and then alleging that the costs incurred in identifying and litigating instances of unlawful conduct constitute injury in fact.

Id. at 1139.

Discrimination against “Tester/Agents”

HOME’S claim to standing based upon the discrimination practiced against its “tester/agents” rests on even shakier grounds. HOME theorizes that “when the testers encountered discrimination by Nationwide, that was an affront to the testers, who were HOME’S agents, and an insult to HOME’S fair housing work.”

But the testers suffered no recognizable injury. They had no bona fide interest in purchasing insurance from Nationwide; indeed, HOME stipulated that “none of the testers were authorized to purchase insurance.” The testers did not even ask for quotes on their own homes.

Furthermore, a tester did not know who his or her partner was or what race the partner belonged to, did not know what home the partner was testing, whether the partner received quotes from Nationwide, or what the results of the partner’s tests were. In short, the testers never directly encountered the effects of Nationwide’s allegedly discriminatory practices and, hence, had no standing themselves to maintain an action for those practices. And it follows that the testers could not derivatively have bestowed standing upon HOME.

That the testers have suffered no recognizable injury is exemplified by a holding of the trial court that is not at issue in this appeal. Originally, in addition to HOME, several individual owners of test homes in African-American neighborhoods in the City of Richmond were named as plaintiffs. However, they were dismissed from the case on Nationwide’s motion because, as the trial judge explained, they had not “suffered any damages that the law can recognize.” Yet, HOME insisted that “[t]he individual plaintiffs in this case stand on the same footing, essentially, as testers.” Nationwide says that “[t]he testers, who were merely pretending to be homeowners, cannot possibly have greater rights under the law,” and we agree.

As one court put the matter in a fair housing case:

[Testers] are investigators; they suffer no harm other than that which they invite in order to make a case against the persons investigated; there is no suggestion in this case that they were paid less to be testers than the opportunity costs of their time. The idea that their legal rights have been invaded seems an arch-formalism.

Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1990).

CONCLUSION

With due respect for HOME’S worthy mission of providing equal housing opportunities in the metropolitan Richmond area, we conclude nonetheless that HOME lacks standing to maintain its action against Nationwide. The trial court erred, therefore, in denying Nationwide’s motion for summary judgment. Accordingly, we will reverse the judgment of the trial court, set aside the jury’s verdict, and enter final judgment here in favor of Nationwide.

Reversed and final judgment.

1 Nationwide’s director of retail sales testified that “an effort [was made] to withdraw any racial references . . . completely” before the MicroVision materials were distributed.

2 HOME states on brief that two former Nationwide agents “testified without contradiction that Nationwide consistently denied insurance to insurable homes in minority neighborhoods.” However, what one of the former agents actually said was that Nationwide “never told us nothing in writing, but they implied it,” and the other former agent said that “they didn’t tell you . . . not to write in those sections, but the way the rules were written up, it seems like we could not do it.”

3 In a section of its brief entitled “Nationwide’s Recognition of its Discrimination in Richmond,” HOME cites the report of a 1996 Urban Market Study conducted by Nationwide. HOME points to language in the report to the effect that Nationwide was “reducing market share in the city,” that one of the challenges to Nationwide’s increasing its presence in the “Inner City Market” was “Ethnic Neighborhoods,” that there was “Higher Fraud/Theft Potential” in the inner city, and that Nationwide “would want to evaluate [its] homeowners pricing in the city to be less competitive.”

4 HOME also contends that Nationwide conceded the standing issue in its post-trial motion for a new trial, but the portions of the motion HOME refers us to cannot possibly be read as constituting a concession and, in any event, Nationwide prefaced the motion with the statement that the motion “incorporates by reference ... all issues previously raised by Nationwide, including (but not limited to): (i) HOME lacked standing as a matter of law.”

5 HOME points out that the Virginia Fair Housing Law originally included only a “corporation, association or unincorporated organization” in its definition of “person” and that, in 1991, the General Assembly added “fair housing organizations” to the definition. HOME says that, by this addition, “the legislature made clear that the standing of [fair housing] organizations was to be distinguishable from generic types of corporations, associations, or organizations.”

6 We note that HOME cites “numerous” (10) lower federal court decisions in which standing was found to exist under the federal Fair Housing Act.

7 HOME’S counsel stated during oral argument that the Virginia fair housing statute provides that “it is to be interpreted in a manner substantially equivalent to federal law.” However, the statute does not support this statement.

8 HOME’S executive director testified HOME knew that Nationwide had been sued in Toledo, Ohio, for discriminatory practices and had filed a lawsuit against the Secretary of Housing and Urban Development contending that the fair housing laws did not cover Nationwide.