                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 13a0420n.06

                                          No. 12-4126
                                                                                     FILED
                              UNITED STATES COURT OF APPEALS                     Apr 25, 2013
                                   FOR THE SIXTH CIRCUIT                   DEBORAH S. HUNT, Clerk


COMA INSURANCE AGENCY, INC.,                        )
                                                    )
       Plaintiff-Appellant,                         )       ON APPEAL FROM THE UNITED
                                                    )       STATES DISTRICT COURT FOR
v.                                                  )       THE NORTHERN DISTRICT OF
                                                    )       OHIO
SAFECO INSURANCE CO., et al.,                       )
                                                    )
       Defendants-Appellees.                        )


       Before: MOORE and STRANCH, Circuit Judges; and HOOD, District Judge.*

       HOOD, District Judge. Plaintiff-Appellant CoMa Insurance Agency (“CoMa”) asks us to

consider whether the district court erred when it granted the Motion for Judgment on the Pleadings

filed by Defendants-Appellees Safeco Insurance Company of America, General Insurance Company

of America, First National Insurance Company of America, Safeco National Insurance Company,

Safeco Insurance Company of Illinois, Safeco Lloyds Insurance Company, Safeco Insurance

Company of Oregon, Safeco Insurance Company of Indiana, American States Insurance Company,

American Economy Insurance Company, American States Insurance Company of Texas, American

States Lloyds Insurance Company, American States Preferred Insurance Company, and Insurance

Company of Illinois (hereinafter, collectively, “Safeco”). [1:11-cv-1473, DE 19.] First, we must

determine whether the district court correctly concluded that Safeco did not breach the parties’

Agency Agreement when it unilaterally changed the commission schedule which governed payments



* The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
to be made to CoMa after the termination of their Agency Agreement. We agree with the district

court that Safeco did not breach the parties’ Agency Agreement. We then conclude that the district

court did not err when it determined that equitable theories of relief were no longer available to

Plaintiff once it was determined that a valid contract governed the dispute. The judgment of the

district court will be affirmed. [DE 20.]

                                                  I.

       CoMa managed an on-line platform that allowed customers to obtain insurance quotes, based

on an on-line questionnaire, from multiple insurance carriers. Customers were also able to purchase

any of the quoted policies through this platform. On March 1, 2003, CoMa and Safeco entered into

an agreement in which CoMa agreed to sell Safeco’s insurance policies through the platform in

exchange for commissions on the initial sale and any subsequent renewal of the policy. Section 5.1

of that Agreement provided that Safeco “will pay [CoMa] commissions on written premiums. . .”

[DE 1-1 at 19.] Section 5.1.1 provided that the “commissions payable to [CoMa] shall be at the rates

set forth in Schedule A attached hereto and incorporated herein by reference.” [DE 1-1 at 20.]

Schedule A, itself, provided that the listed “[r]ate applies to annual Net Written Premium and may

vary only as specified in [Schedule A] or an addendum hereto.” [DE 1-1 at 29.] Section 5.1.2

provided that Safeco “may make changes to its commission schedules upon sixty (60) days prior

written notice to Agency.” [DE 1-1 at 20.] Section 9.2 provides that “All terms, conditions and

limitations in this Agreement shall continue to be effective after termination [without cause]

pursuant to Article[] 8.3 . . . for so long as Policies or Renewals are in effect. . .” [DE 1-1 at 23.]

Section 12.13 provides that “[n]o change, alteration, or modification [of the Agency Agreement] may

be made except in writing that expressly refers to this Agreement and is signed by both parties.” [DE

1-1 at 27.]



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       The applicable commission rates were amended several times during the course of the

parties’ Agreement. For example, in 2004, CoMa expanded its business to fourteen new states, and

the Schedule A rates were replaced with the commission rates available at safecoplaza.com as of

January 1, 2004. [DE 1-1 at 59.] In that instance, Safeco agreed with CoMa that it would not lower

the rates in force on January 1, 2004, until December 31, 2005, and that it would pay an additional

three percent commission on new policies written in the fourteen new states. [DE 1-1 at 59.]

       On July 22, 2010, CoMa notified Safeco that it was terminating the agreement without cause,

effective 180 days from the notice date, in keeping with Section 8.3 of the Agreement. [See DE 1-3;

DE 1-1 at 22] The parties agreed, in a letter of the same date, that from July 22, 2010, until at least

six months after termination of the agreement, the commission rates effective as of the date of

CoMa’s notice would continue, “subject to any general adjustment (increase or decrease) in agent

commission rates made by [Safeco].” [DE 4-2.]

       Then, by a letter dated May 23, 2011, Safeco notified CoMa that it would be reducing the

commission rates paid for renewal policies, effective on or after August 1, 2011, lowering agent

renewal rates to zero percent and reducing CoMa’s renewal rates to five percent [DE 4-3].

                                                  II.

       We review de novo a district court’s decision on a motion for judgment on the pleadings

made pursuant to Fed. R. Civ. P. 12(c). Wee Care Child Ctr., Inc. v. Lumpkin, 680 F.3d 841, 846

(6th Cir. 2012) (quoting Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008)).

A motion for judgment on the pleadings is evaluated by the same standard as a Rule 12(b)(6) motion

to dismiss. Id. To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “For

purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the

pleadings of the opposing party must be taken as true, and the motion may be granted only if the

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moving party is nevertheless clearly entitled to judgment.” McGlone v. Bell, 681 F.3d 718, 728 (6th

Cir. 2012) (quoted case omitted).

                                                 III.

       We are asked to determine whether Safeco breached the parties’ Agency Agreement when

it unilaterally changed commission rates payable to CoMa after the termination of the Agency

Agreement and conclude that Safeco committed no breach of the terms of that Agency Agreement

when the terms are given their plain meaning and read together as a whole. For the reasons stated

here, we conclude that Safeo committed no breach. We further conclude that the district court did

not err when it determined that equitable theories of relief were no longer available to Plaintiff once

it was determined that a valid contract governed the dispute.

                                                  A.

       Under Ohio law, to prevail on a breach of contract claim, a plaintiff must demonstrate “the

existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss

to the plaintiff.” Doner v. Snapp, 649 N.E.2d 42, 44 (Ohio Ct. App. 1994) (citing 2 Ohio Jury

Instructions (1993), Section 253.01, at 111-12; Am. Sales, Inc. v. Boffo, 593 N.E.2d 316, 321 (Ohio

Ct. App. 1991)). We consider the terms of the contract between the parties to determine whether

Safeco breached the agreement, as Plaintiffs aver. Contract terms are generally to be given their

ordinary meaning when the terms are clear on their face, and we will apply the plain language of the

contract when the intent of the parties is evident from the clear and unambiguous language in a

provision. Lincoln Elec. Co. v. St. Paul Fire and Marine Ins. Co., 210 F.3d 672, 683 (6th Cir. 2000);

Karabin v. State Auto. Mut. Ins. Co., 462 N.E.2d 403, 406 (Ohio 1984) (interpreting insurance

policy). The language of a contract is ambiguous “only where its meaning cannot be determined

from the four corners of the agreement or where the language is susceptible of two or more

reasonable interpretations.” United States Fid. & Guar. Co. v. St. Elizabeth Med. Ctr., 716 N.E.2d

                                                  4
1201, 1208 (Ohio Ct. App. 1998) (citing Potti v. Duramed Pharm., Inc., 938 F.2d 641, 647 (6th Cir.

1991)). A contractual “term is not ambiguous merely because two parties offer substantially

different interpretations.” Glidden Co. v. Kinsella, 386 F. App’x 535, 542 (6th Cir. 2010) (citing 216

Jamaica Ave., LLC v. S & R Playhouse Realty Co., 540 F.3d 433, 440 (6th Cir. 2008)). Nor does

a term in a contract “become ambiguous by reason of the fact that in its operation it will work a

hardship upon one of the parties thereto and a corresponding advantage to the other. . .[;] it is not the

province of courts to relieve parties of improvident contracts. . . .” Ohio Crane Co. v. Hicks, 143

N.E. 388, 389 (Ohio 1924). Finally, a contract is to be read as a whole, and effect must be given

to each provision of the contract, if it is reasonable to do so. Saunders v. Mortensen, 801 N.E.2d

452, 455 (Ohio 2004) (citing Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention

Facilities Auth., 678 N.E.2d 519, 526 (Ohio 1997); Expanded Metal Fire-Proofing Co. v. Noel

Constr. Co., 101 N.E. 348, 350 (Ohio 1913)). “‘[W]here two interpretations can be given to a term

in a contract, [but ] one will make a provision meaningless, and one. . .will give full force to all

provisions, the latter must be adopted.’” Aho v. Cleveland-Cliffs, Inc., 219 F. App’x 419, 423 (6th

Cir. 2007) (quoting Lightning Rod Mut. Ins. Co. v. Midwestern Indem. Co., No. 85-C-61, 1987 WL

8425, *3 (Ohio Ct. App. Mar. 24, 1987)).

        Section 5.1.1 of the Agreement provides that Plaintiff is to be paid commissions as set forth

in Schedule A to the agreement which, itself, further limits that commission payments are to be paid

“as specified in this schedule or an addendum [thereto].” [R. at 1-1.] Section 5.1.2 provides that

Safeco may make changes to its commission schedules—with no further specification of which

commission rates the section refers—upon 60 days written notice to CoMa. CoMa asks us to

conclude that Section 5.1.2's provision for Safeco to unilaterally change its commission schedules

does not apply to the Schedule A commission rates agreed to by the parties in Section 5.1.1, as

though Schedule A is not itself a commission schedule. CoMa argues that Schedule A may be

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changed only by mutual agreement of the parties pursuant to Section 12.13 of the Agency Agreement

because Section 5.1.1's specific term, “Schedule A,” controls over the general term “commission

schedules” found in Section 5.1.2. We disagree.

       Ohio law teaches that a specific contractual term will control a general term where two

clauses in a contract appear inconsistent, see Penton Media, Inc. v. Affiliated FM Ins. Co., 245 F.

App’x 495, 500 (6th Cir. 2007), but Sections 5.1.1 and 5.1.2 are not inconsistent. Schedule A is a

commission schedule and, thus, it can be modified unilaterally under Section 5.1.2 in the absence

of some specific exclusion of that particular commission schedule from the provisions of Section

5.1.2. Section 5.1.1 sets out only where the commission schedule is to be found, while 5.1.2 sets out

the terms under which that commission schedule may change. Similarly, section 12.13, the

integration clause, is not inconsistent with section 5.1.2. Section 12.13 provides that the “Agreement

embodies the entire understanding between the parties”; all prior communications are merged into

the Agreement; and “[n]o change, alteration, or modification . . . may be made except in writing that

expressly refers to this Agreement and is signed by both parties.” The parties’ integrated Agreement

included Section 5.1.2, which permits Safeco to change its commission schedules with sixty days

prior written notice to CoMa. The parties mutually agreed to Section 5.1.2 when the Agreement was

initially negotiated and reduced to writing and thus, Section 12.13 does not create a conflict

       Further, we do not agree with CoMa that this reading of the Agency Agreement fails to give

effect to Section 9.3, which provides that, if the Agency Agreement is terminated, Safeco “shall

continue to pay [CoMa] renewal commission for each Renewal in accordance with Article 5.2, and

subject to Section 5.4.” [DE 1-1 at 23.] Sections 5.2 and 5.4 set forth the timing of commission

payments and the amounts to be “set off” from them. They do not address Safeco’s right to change

commission rates under Section 5.1.2 with appropriate notice.




                                                  6
        Since Safeco had the right to unilaterally change commission rates with adequate notice, we

conclude that it did not breach the Agency Agreement when it sent its May 23, 2011, letter notifying

CoMa of the rate changes that would take effect more than 60 days later, on August 1, 2011. We

affirm the judgment of the district court in this regard.

                                                   B.

        Finally, the district court properly concluded that Plaintiff cannot recover under its alternative

theories of relief—promissory estoppel and unjust enrichment. Since a contract governs the dispute

in this instance, equitable relief is not available to Plaintiff under Ohio law. See Aerel, S.R.L. v. PCC

Airfoils, L.L.C., 371 F. Supp. 2d 933, 943 (N.D. Ohio 2005) (“Ohio law is clear that a plaintiff may

not recover under the theory of unjust enrichment or quasi-contract when an express contract covers

the same subject.”) (citing Ullmann v. May, 72 N.E.2d 63 (1947); Joseph Oldsmobile/Nissan, Inc.

v. Tom Harrigan Oldsmobile, Inc., No. 14788, 1995 WL 276804 (Ohio Ct. App. May 10, 1995); City

of Cincinnati v. Cincinnati Reds, 483 N.E.2d 1181 (Ohio Ct. App. 1984); Randolph v. New England

Mut. Life Ins. Co., 526 F.2d 1383, 1387 (6th Cir. 1975)).

                                                   IV.

        Accordingly, we AFFIRM the judgment of the district court.




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