The full case caption appears at the
end of this opinion. Plaintiff Terry Novak (plaintiff), who alleged that the Nationwide defendants (defendants) illegally terminated his position as an insurance sales agent because they found his Detroit-area clients economically undesirable, appeals as of right from an order granting defendants’ motion for summary disposition of his nine-count complaint. We affirm. Factual Background In August 1991, in anticipation of assuming responsibility for his father’s insurance agency, Novak & Associates Insurance, Inc., plaintiff signed an employment agreement with defendants. Among other things, the agreement specified that (1) if plaintiff successfully completed a training period, defendants would enroll him in their New Agent Development Program or New Business Agent Program; (2) if plaintiff successfully handled his father’s former accounts for two years, he would then begin to receive full commissions on those accounts; (3) plaintiff was not to sell insurance for any insurance carriers other than defendants unless defendants specifically directed him to do so; and (4) plaintiff’s employment with defendants was terminable at will by either party. In March 1993, defendants terminated plaintiff’s employment. Plaintiff filed suit, claiming, among other things, that the at- will provision in the employment contract was inapplicable to him and that defendants improperly terminated him based on his reluctance to move his agency out of Wayne County. Defendants argued that notwithstanding the at-will provision, they properly terminated plaintiff because he (1) commingled personal and business funds; (2) often remitted premium payments to them in an untimely fashion; and (3) allowed unauthorized individuals to sign insurance certificates. Standards of Review Except for his claim under the Federal Fair Housing Act (FFHA), discussed
infra, all of plaintiff’s claims were dismissed under MCR 2.116(C)(10). We review de novo a trial court’s grant of summary disposition under MCR 2.116(C)(10).
Paul v Lee, 455 Mich 204, 210; 568 NW2d 510 (1997). Like the trial court, we look at the entire record, view the evidence in favor of the nonmoving party, and decide if there exists a relevant factual issue about which reasonable minds might differ.
Id. If, as in the instant case, the nonmoving party would bear the burden of proof at trial, that party, in order to avoid summary disposition, must provide documentary evidence showing the existence of a disputable issue.
Quinto v Cross & Peters Co, 451 Mich 358, 362; 574 NW2d 314 (1996). The trial court dismissed plaintiff’s FFHA claim under MCR 2.116(C)(7) because it concluded that the statute of limitations for this claim had run. We review a grant of summary disposition under MCR 2.116(C)(7) de novo.
Iovino v Michigan, 228 Mich App 125, 131; 577 NW2d 193 (1998). We consider all documentary evidence submitted by the parties and accept the plaintiff’s well- pleaded allegations, except those contradicted by documentary evidence, as true.
Id.;
Patterson v Kleiman, 447 Mich 429, 433-435; 526 NW2d 879 (1994). We view the uncontradicted allegations in favor of the plaintiff and determine whether the claim is time-barred.
Id. Wrongful Discharge and Breach of Legitimate Expectations Plaintiff argues that his termination violated an implied just-cause employment agreement and that the trial court therefore should not have summarily disposed of his wrongful discharge and breach of legitimate expectations claims. He bases this argument on an alleged oral statement by one of defendants’ employees that the at-will termination provision in the written employment contract would not apply to him. This alleged oral statement, however, did not negate the at-will provision in the written contract, which also contained a provision requiring that modifications of the contract be in writing and be signed by a company representative. When an employment contract expressly provides for employment at will, a plaintiff, by signing the contract, assents to employment at will and cannot maintain a cause of action based on a prior oral agreement for just-cause employment.
Nieves v Bell Industries, Inc, 204 Mich App 459, 463; 517 NW2d 235 (1994); see also
Stopczynski v Ford Motor Co, 200 Mich App 190, 193; 503 NW2d 912 (1993). Thus, the trial court properly dismissed plaintiff’s wrongful discharge claim. The court also properly dismissed plaintiff’s breach of legitimate expectations claim, since a claim based on legitimate expectations rests on the employer’s promises to the work force in general � for example, promises contained in a company handbook � rather than on promises made to an individual employee, and since plaintiff made no claim that defendants promised just-cause employment to the work force in general.
Nieves, supra at 464; see also
Dolan v Continental Airlines/Continental Express, 454 Mich 373, 384, 386-387; 563 NW2d 23 (1997). Insurance Code Anti-Redlining Provisions Plaintiff argues that notwithstanding the employment contract’s at-will provision, defendants nevertheless improperly terminated him because the insurance code precludes the termination of an agent’s employment for certain specified reasons even if an employment contract otherwise allows for it. Specifically, plaintiff claims that there was a question of fact regarding whether defendants discharged him based on the loss history and geographic location of his Wayne County agency and thereby violated the Michigan Insurance Code’s anti-redlining provisions contained in MCL 500.1209; MSA 24.11209 (section 209). This statute states, in pertinent part, as follows: (3)
Reasons for terminating agent’s authority. As a condition of maintaining its authority to transact insurance in this state,
an insurer transacting automobile insurance or home insurance in this state shall not cancel an agent’s contract . . .
except for 1 or more of the following reasons: Malfeasance. Breach of fiduciary duty or trust. A violation of this act. Failure to perform as provided by the contract between the parties. Submission of less than 25 applications for home insurance and automobile insurance within the immediately preceding 12-month period.
Termination of agent’s authority; prohibited reasons. Subsection (3) shall not be construed as permitting a termination of an agent’s authority based primarily upon any of the following: The
geographic location of the agent’s home insurance or automobile insurance business. The
actual or expected loss experience of the agent’s automobile or home insurance business, related in whole or in part of [sic] the geographical location of that business. * * * (5)
Application of law. Subsection (3) . . . shall not apply with respect to an agent who is an employee of an insurer . . . if the property rights in the renewal are owned by the insurer . . . and the cancellation or termination of the agent’s contract does not result in the cancellation or nonrenewal of any home or automobile insurance policy. [MCL 500.1209; MSA 24.11209.] Plaintiff argues that he did not fall within the parameters of subsection 5 � and that he was therefore protected by subsections 3 and 4 � because his discharge resulted in the cancellation of home and automobile insurance policies. He additionally argues that even if subsection 5
had applied to him, defendants nevertheless impermissibly terminated him because subsection 4, which prohibits termination based on location and loss experience, is not inextricably linked to subsection 3 and is thus unaffected by subsection 5. We disagree with both of these arguments. First, there was no genuine factual dispute regarding whether plaintiff fell within the parameters of subsection 5. Plaintiff did not and does not dispute that he was an employee of defendants or that defendants owned the property rights in his customers’ policy renewals. The only question relevant to subsection 5′s requirements, then, is whether plaintiff’s termination resulted in the cancellation or nonrenewal of any home or automobile insurance policies. Although the record did suggest a slightly higher-than- usual cancellation rate of automobile insurance policies after plaintiff’s discharge, there was no evidence that any of these policies were canceled for invalid reasons. As the party who opposed summary disposition and who would bear the burden of proof at trial, it was plaintiff’s obligation to show that at least one home or automobile policy cancellation resulted from his termination as an agent and not from a legitimate reason. See
Quinto, supra at 362. Plaintiff failed to do so. He implies that some customers’ policies were “constructively” canceled because Nationwide made the servicing of their policies so difficult that the customers were forced to seek other insurance. We agree with the trial court, however, that inefficient servicing of an account cannot be equated with a policy cancellation under the unambiguous language of � 209(5). Because plaintiff was defendants’ employee, because defendants owned the renewal rights in the policies, and because plaintiff did not produce evidence that his termination caused the cancellation of at least one policy, he satisfied the requirements of subsection 5 and therefore did not enjoy the protection of subsection 3. Nor did plaintiff enjoy the protection of subsection 4, since that subsection, by its plain wording, merely
construes subsection 3. In other words, if subsection 3 is inapplicable, then subsection 4 is also inapplicable. We do not agree with plaintiff’s argument that subsection 4 stands alone. In statutory interpretation, the primary goal must be to ascertain and give effect to the Legislature’s intent,
People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1995), and the judiciary should presume that the Legislature intended a statute to have the meaning that it clearly expresses.
People v Roseburgh, 215 Mich App 237, 239; 545 NW2d 14 (1996). A court should not speculate about the legislative intent beyond the statute’s actual words.
In re Schnell, 214 Mich App 304, 310; 543 NW2d 11 (1995). Here, the wording of subsection 4 clearly does
not state a separate rule of law but merely clarifies the meaning of subsection 3. Thus, subsection 4 does not stand alone but is instead, like subsection 3, subject to the exclusion found in subsection 5. Since plaintiff fell within the subsection 5 exclusion, he was not protected by subsection 4, and his claim that defendants illegally terminated him because of his agency’s loss history and location was therefore not viable. Promissory Estoppel Next, plaintiff argues that a viable claim of promissory estoppel existed because defendants told him that the at-will provision in the contract did not apply to him. Although related to theories of wrongful discharge and breach of legitimate expectations, promissory estoppel is a distinct cause of action. See
Marrero v McDonnell Douglas Capital Corp, 200 Mich App 438, 442; 505 NW2d 275 (1993). The elements of promissory estoppel are (1) a promise; (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee; (3) which in fact produced reliance or forbearance of that nature; and (4) in circumstances such that the promise must be enforced if injustice is to be avoided.
Id. In determining whether a requisite promise existed, we are to objectively examine the words and actions surrounding the transaction in question as well as the nature of the relationship between the parties and the circumstances surrounding their actions.
First Security Savings Bank v Aitken, 226 Mich App 291, 313; 573 NW2d 307 (1997);
State Bank of Standish v Curry, 442 Mich 76, 86; 500 NW2d 104 (1993). We are to exercise caution in evaluating an estoppel claim and should apply the doctrine only where the facts are unquestionable and the wrong to be prevented undoubted.
Marrero, supra at 442-443. Here, assuming arguendo that one of defendants’ employees told plaintiff that the at-will provision in the written contract did not apply to him, the circumstances surrounding the statement precluded an objective finding of a clear and definite promise of just-cause employment, since the signed contract contained an at- will provision, along with an integration clause, that expressly contradicted the alleged oral representation. Therefore, plaintiff’s employment with defendants was terminable at will and the trial court properly dismissed plaintiff’s promissory estoppel claim. Fraudulent and Innocent Misrepresentation Next, plaintiff argues that he raised viable claims for fraudulent and innocent misrepresentation regarding several statements defendants allegedly made in connection with hiring him. He claims that defendants induced him into signing the written contract by fraudulently informing him that (1) he would immediately begin to receive commissions on renewals of policies that had been serviced by his father; (2) they would do “everything in their power” to facilitate the transfer of his father’s agency to him; (3) his office expenses would be paid directly to the creditors; (4) the at-will provision in the written contract did not apply to him; and (5) he was allowed to sell insurance for companies other than Nationwide. The elements of fraudulent misrepresentation are: the defendant made a material representation; the representation was false; when making the representation, the defendant knew or should have known it was false; the defendant made the representation with the intention that the plaintiff would act upon it; and the plaintiff acted upon it and suffered damages as a result.
M & D, Inc v W B McConkey, 231 Mich App 22, 27; 585 NW2d 33 (1998). A claim of innocent misrepresentation is shown if a party to a contract detrimentally relies upon a false representation in such a matter that the injury suffered by that party inures to the benefit of the party who made the representation.
Id. at 27-28. We find no evidence of either fraudulent or innocent misrepresentation with regard to the above statements about which plaintiff complains. First, regarding statement (1) above, that plaintiff would immediately begin to receive commissions on the renewals of policies that had been serviced by his father, plaintiff testified that the allegedly false information defendants gave him about commissions occurred
after he signed the contract; thus, he could not have relied upon the information in signing the contract. Second, there is no evidence that defendants made statement (2) above; the employment manual referenced by plaintiff in conjunction with this alleged statement says only that defendants would “sincerely endeavor” to facilitate the transfer of retired agents’ agencies to relatives, provided that certain other criteria were met, and there was no evidence that defendants failed to do this. Regarding statement (3), that plaintiff’s office expenses would be paid directly to the creditors, plaintiff did not show that this statement was false; instead, the evidence showed that defendants
did intend to pay plaintiff’s creditors directly but later found that they were unable to do so because of unforeseen billing difficulties and because the office expenses had to be apportioned between plaintiff and his non-Nationwide office mate. Finally, the written contract, with its integration clause, expressly contradicted statements (4) and (5), making plaintiff’s alleged reliance on these statements unreasonable. See
Nieves, supra at 460-465 (plaintiff acted unreasonably in relying upon oral statements that were contradicted by a written employment agreement). There is a conflict in this Court regarding whether reliance upon a false representation must be reasonable to support a fraud claim. In
Nieves, supra at 464,
Webb v First of Michigan Corp, 195 Mich App 470, 474-475; 491 NW2d 851 (1992),
State-William Partnership v Gale, 169 Mich App 170, 179; 425 NW2d 756 (1988), and
Cormack v American Underwriters Corp, 94 Mich App 379, 385; 288 NW2d 634 (1979), this Court indicated that the reliance must be reasonable. The panel in
Phinney v Perlmutter, 222 Mich App 513, 534-537; 564 NW2d 532 (1997), disagreed. Citing
People v Young, 212 Mich App 630, 639; 538 NW2d 456 (1995), remanded on other grounds 453 Mich 976; 557 NW2d 315 (1996), as authority, the
Phinney panel indicated that it was not following
Nieves, a 1994 opinion, under Administrative Order No. 1996-4 (the predecessor to MCR 7.125, which requires that this Court follow rules of law established in Court of Appeals opinions issued on or after November 1, 1990) because there were opinions both before and after
Nieves that dispensed with the reasonableness requirement.
Phinney, supra at 536.
Young, however, clearly indicated that in cases of conflicting opinions issued on or after November 1, 1990, the Court is to follow the first opinion on the issue.
Young, supra at 639. Thus, the
Phinney Court’s reliance on cases issued
after Nieves in deciding that
Nieves need not be followed was misplaced. Indeed, the
Phinney Court could follow a case conflicting with
Nieves only if it was issued before
Nieves and after November 1, 1990.
Phinney cited one case in this category �
Brownell v Garber, 199 Mich App 519, 534; 503 NW2d 81 (1993) � and one Supreme Court case,
Kassab v Michigan Basic Property Ins Ass’n, 441 Mich 433, 442-443; 491 NW2d 545 (1992).
Phinney, supra at 536. These two opinions, however, merely reiterated the well-known requirement that reliance must occur for a successful fraud claim; they did not directly address the issue at hand, i.e., whether the reliance must be reasonable. Both
Nieves, supra at 464, and
Webb, supra at 474-475, however, did address this issue, holding that the reliance must indeed be reasonable. Thus, the
Phinney panel was required to follow this interpretation, as are we, under MCR 7.215 and
Young, supra at 139. Notwithstanding our obligation to follow
Nieves and
Webb, we believe these opinions stated the correct rule of law, since a person who
unreasonably relies upon false statements should not be entitled to damages for misrepresentation. Thus, because plaintiff’s reliance on statements (4) and (5) was not reasonable in light of the written contract, the statements, as a matter of law, did not support a misrepresentation claim. See
Nieves, supra at 464-465. The Federal Fair Housing Act Next, plaintiff argues that the trial court improperly dismissed his claim based on the FFHA, 42 USC 3604
et seq., which, among other things, prohibits racial discrimination in transactions involving residential real estate. There is a split of authority regarding whether insurance redlining is actionable under the FFHA, see
Mackey v Nationwide Ins Cos, 724 F 2d 419 (4th Cir, 1984), and
Nationwide Mut Ins Co v Cisneros, 52 F 3d 1351 (6th Cir, 1995), but we need not attempt to resolve this issue today, since plaintiff’s claim was untimely. The limitation period for claims under the FFHA is two years, 42 USC 3613(a)(1)(A), and plaintiff filed suit two years and three months after his discharge. Therefore, his FFHA claim was barred by the statute of limitations. Plaintiff attempts to avoid this result by alleging that continuing violations of the act served to extend the limitation period. See
Equal Employment Opportunity Comm v Penton Industrial Publishing Co, Inc, 851 F2d 835, 838-839 (CA 6, 1988) (similar discriminatory acts occurring within the limitation period can extend the filing deadline for a claim that would otherwise be time-barred). Specifically, plaintiff alleges that cancellations of homeowner insurance policies within the two years preceding the initiation of his suit were continuing violations of the act. However, the basis for plaintiff’s FFHA claim had to be the economic consequences of his discharge, see
Mackey, supra at 422-423 (insurance agent gains standing under FFHA by virtue of economic injury), meaning that the critical violation for the purposes of his claim was
the firing itself, which led to financial loss, and not the cancellation of insurance policies after his termination. Thus, plaintiff cannot logically argue that later policy cancellations were continuing violations that extended the limitation period for his FFHA claim, especially since a key to whether the continuing violations doctrine should apply is whether the original discriminatory act had the degree of permanence that should trigger an employee’s assertion of rights.
Anderson v Bristol, 6 F3d 1168, 1175 (CA 6, 1993). Plaintiff’s firing did indeed have a degree of permanence that should have triggered his assertion of his rights, and he was therefore bound by the two-year statute of limitations. The trial court properly dismissed plaintiff’s FFHA claim under MCR 2.116(C)(7). The Civil Rights Act Finally, plaintiff argues that the trial court improperly dismissed his claims based on the civil rights act, MCL 37.2101
et seq.; MSA 3.548(101)
et seq. He claims that defendants’ alleged attempt to deny insurance to minorities violated � 302 of the act, MCL 37.2302; MSA 3.548(302), which prohibits racial discrimination in the provision of goods and services. We agree with the trial court, however, that plaintiff had no standing to raise this claim. In order to have standing, a person must have a “legally protected” interest that is in jeopardy of being adversely affected by the challenged action.
In re Foster, 226 Mich App 348, 358; 573 NW2d 324 (1997). While plaintiff did have an economic interest that was adversely affected by his discharge, this interest was not legally protected. Section 302 of the civil rights act protects
the persons who are being denied goods and services, not the persons who are attempting to provide the goods and services. The minorities to whom defendants allegedly denied insurance coverage, as the persons protected by the statute, are the proper plaintiffs for a redlining claim. See
Health Central v Comm’r of Ins, 152 Mich App 336, 348; 393 NW2d 625 (1986). Indeed, in the absence of a rule of law conferring standing, plaintiff could not bring civil rights claims on behalf of those seeking insurance. See
Mackey, supra at 421-423,
Gladstone Realtors v Village of Bellwood, 441 US 91, 103; 99 S Ct 1601; 60 L Ed 2d 66 (1979), and
Havens Realty Corp v Coleman, 455 US 363, 372; 102 S Ct 1114; 71 L Ed 2d 214 (1983) (insurance agent who alleges racially discriminatory redlining has standing under broad standing provisions of FFHA but does not have standing under federal civil rights act). Since the civil rights act itself does not confer standing on insurance agents for claims under � 302, plaintiff was not the proper person to seek enforcement of the rights of those seeking insurance. Plaintiff also claims that defendants violated � 701 of the civil rights act, MCL 37.2701; MSA 3.548(701). He claims violations of subsections (e) and (f), which state: Two or more persons shall not conspire to, or a person shall not: * * * Willfully obstruct or prevent a person from complying with this act or an order issued or rule promulgated under this act. Coerce, intimidate, threaten, or interfere with a person in the exercise or enjoyment of, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act. We disagree that there was a question of fact regarding whether defendants violated subsection (f), since the evidence shows that plaintiff did
not help any minority insurance applicants gain equal access to insurance coverage as guaranteed under � 302 of the act. His deposition testimony indicated that when defendants told him not to insure someone through Nationwide, he reluctantly obeyed them. Subsection (f) would have applied only if plaintiff
disobeyed defendants in their alleged redlining scheme and was threatened or intimidated as a result. Nor do we agree that there was a question of fact regarding whether defendants violated subsection (e). With regard to this subsection, plaintiff alleges that defendants prevented him from issuing automobile insurance to newly-licensed drivers. However, newly-licensed drivers are not a subset of persons protected by the civil rights act, meaning that even if plaintiff did try to insure these people through Nationwide, he was not trying to “comply with the act” under subsection (e). Accordingly, the trial court properly dismissed plaintiff’s claims under � 701 of the civil rights act. Affirmed. /s/ Barbara B. MacKenzie /s/ Roman S. Gribbs /s/ Kurtis T. Wilder
Novak v Nationwide Mutual Ins Co No. 204162 Wayne Circuit Court. LC No. 95-516999 CK FOR PUBLICATION June 1, 1999 9:05 a.m.
STATE OF MICHIGAN COURT OF APPEALS TERRY NOVAK, Plaintiff-Appellant, and NOVAK & ASSOCIATES INSURANCE, INC., Plaintiff, v NATIONWIDE MUTUAL INSURANCE COMPANY, NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, NATIONWIDE LIFE INSURANCE COMPANY, NATIONWIDE GENERAL INSURANCE COMPANY, NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY, and NATIONWIDE VARIABLE LIFE INSURANCE COMPANY, Defendants-Appellees, and EDWARD MALINOWSKI, doing business as EDWARD MALINOWSKI INSURANCE, Defendant. Before: MacKenzie, P.J., and Gribbs and Wilder, JJ. MacKENZIE, P.J.
