                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0356n.06

                                           No. 19-4082

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                         FILED
 LANCE BROWNING, Individually and On Behalf )                                      Jun 16, 2020
 of All Others Similarly Situated,              )                              DEBORAH S. HUNT, Clerk
                                                )
         Plaintiff-Appellant,
                                                )
                                                )
 v.
                                                )                ON APPEAL FROM THE
                                                )                UNITED STATES COURT
 OHIO       NATIONAL          LIFE   INSURANCE
                                           LIFE )                FOR THE SOUTHERN
 COMPANY;           OHIO       NATIONAL
                                          OHIO )                 DISTRICT OF OHIO
 ASSURANCE            CORPORATION;
 NATIONAL           EQUITIES,      INC.;  OHIO )
                                                )
 NATIONAL FINANCIAL SERVICES, INC.,
                                                )
         Defendants-Appellees.                  )


Before: GIBBONS, McKEAGUE, and STRANCH, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Lance Browning asks us to reverse the district

court’s decision dismissing his breach of contract and unjust enrichment claims against Ohio

National Life Insurance Company, Ohio National Life Assurance Company, and Ohio National

Equities, Inc. (collectively, “Ohio National”) for lack of standing and failure to state a claim.

Browning insists that, because he was essential to the purposes of Ohio National’s contract with

his employer, LPL Financial, LLC (“LPL”), he was an intended third-party beneficiary and

therefore has standing to sue for breach of contract under Ohio law. Browning also argues that,

even if he lacks standing to sue Ohio National for breach of contract, he should have been permitted

to advance an unjust enrichment claim. Our precedent requires us to affirm the district court’s

judgment.
Case No. 19-4082, Browning v. Ohio Nat’l Life Ins. Co., et al.


                                                  I.

       Ohio National is an Ohio insurance corporation that offers, among other products,

guaranteed minimum income benefit annuities. Ohio National contracts with broker-dealers like

LPL, which employs licensed securities representatives (“representatives”) to “solicit sales” of its

annuities. DE 11-2, Selling Agreement, Page ID 298. Section 8 of the Selling Agreement provides

that all payments received by LPL “are the property of [Ohio National] and shall be transmitted to

[Ohio National] . . . immediately.” Id. at 299. Section 9 provides Ohio National pays LPL based

on a “Commission Schedule.” Id. The Commission Schedule includes “Trail Commissions,” for

which LPL receives payment “equal to .50% of the total qualified cash values (monthly average)

on” the annuities. DE 11-2, Commission Schedule, Page ID 310. Compensation to LPL’s

representatives is “governed by agreement between [LPL] and its Representatives and its payment

will be [LPL]’s responsibility.” DE 11-2, Selling Agreement, Page ID 299. The terms of

compensation survive the agreement “unless the Agreement is terminated for cause by [Ohio

National].” Id.

       Lance Browning, of Whitehouse, Texas, has been a licensed securities representative for

LPL since 2012. Browning was previously a licensed securities representative for other broker-

dealers that sold Ohio National’s annuities. He “has sold over 100 Annuities that have currently

not been surrendered, annuitized, or under a death claim. The trailing commissions he has received

as a result of those annuities has been a significant part of his business, having earned and received

approximately $89,000 in trailing commissions per year for many years.” DE 11, Am. Compl.,

Page ID 286–87.

       On September 28, 2018, Ohio National sent a letter to broker-dealers with which it had a

Selling Agreement informing them that it planned to cancel the Selling Agreement on December



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Case No. 19-4082, Browning v. Ohio Nat’l Life Ins. Co., et al.


12, 2018. Ohio National also declared that it would no longer pay trailing commissions. Browning

has not received a trailing commission since December 12, 2018, even though “he continues to

provide advice and recommendations to his customers who own Annuities.” Id. at 287.

       In January 2019, Browning filed an amended complaint seeking damages on behalf of

himself and other LPL representatives from Ohio National under a number of theories, including

breach of contract and unjust enrichment. Ohio National moved to dismiss the suit for lack of

standing and failure to state a claim. A magistrate judge recommended that motion be denied.

Ohio National filed objections to that recommendation. The district court declined to adopt the

magistrate judge’s recommendations and instead dismissed Browning’s suit. Browning timely

appealed.

                                                II.

       Our court recently addressed the same claim brought by an employee of a different broker-

dealer who entered into the same agreement with Ohio National as did LPL here. Cook v. Ohio

Nat’l Life Ins. Co., ___ F.3d ___, No. 19-3984, 2020 WL 3056228 (6th Cir. June 9, 2020). Indeed,

the district court order under review in Cook is virtually identical to the one we review here.

Compare Cook v. Ohio Nat’l Life Ins. Co., No. 1:19-cv-195, 2019 WL 4885500 (S.D. Ohio Oct.

3, 2019), with Browning v. Ohio Nat’l Life Ins. Co., No. 1:18-cv-763, 2019 WL 4885205 (S.D.

Ohio Oct. 3, 2019). Our court’s decision in Cook dictates the outcome of Browning’s appeal.

       First, Browning argues that the Selling Agreement evinces an intent for him to benefit from

the agreement and therefore the district court erred in concluding that he lacked standing to bring

suit against Ohio National as a third-party beneficiary. The Ohio Supreme Court has held that a

party is a third-party beneficiary only where “the contract was intended to directly benefit that

third party.” Huff v. FirstEnergy Corp., 957 N.E.2d 3, 7 (Ohio 2011) (emphasis added). And,



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Case No. 19-4082, Browning v. Ohio Nat’l Life Ins. Co., et al.


recognizing that development in Ohio law, we have explained that “[t]he mere conferring of some

benefit on the supposed beneficiary by the performance of a particular promise in a contract [is]

insufficient; rather, the performance of that promise must also satisfy a duty owed by the promisee

to the beneficiary.” Lawyers Title Co., LLC v. Kingdom Title Sols., Inc., 592 F. App’x 345, 352

(6th Cir. 2014) (quoting Norfolk & W. Co. v. United States, 641 F.2d 1201, 1208 (6th Cir. 1980)).

“Courts generally presume that a contract’s intent resides in the language the parties chose to use

in the agreement.” Huff, 957 N.E.2d at 7.

       Cook concluded, and we agree, that nothing in the Selling Agreement evinces an intent for

employees of the broker-dealers to directly benefit. 2020 WL 3056228, at *4–6. Among other

provisions, Cook highlighted § 9, which provides that broker-dealers—not their employees—

receive commissions from Ohio National, gives Ohio National the right to “offset future

compensation payable to [the broker-dealer] against any compensation to be returned to [Ohio

National],” and explains that “[c]ompensation to [the broker-dealer’s] Representatives for

Contracts solicited by the Representatives and issued by [Ohio National] will be governed by

agreement between [the broker-dealer] and its Representatives.” Id. at *5. These provisions “cut[]

against any suggestion that the Selling Agreement was intended to directly benefit representatives

like [Browning].” Id.

       Browning points to the Schedule of Commissions, which allowed representatives to select

a trail commission payment plan. But Cook accounted for that provision as well, recognizing that

it “was not a commitment to remit each trail commission payment in full to the representatives”

because “[LPL] could have elected on the same form to make the trail commission plan selection

itself instead.” Id. The Selling Agreement does not evince an intent for employees like Browning




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Case No. 19-4082, Browning v. Ohio Nat’l Life Ins. Co., et al.


to benefit directly. Accordingly, Browning cannot claim third-party standing status and lacks

standing to sue Ohio National for breach of contract.

       Second, Browning argues that the district court erred in dismissing his unjust enrichment

claim. Cook also settles this claim. “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.”

Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 799 (6th Cir. 2009) (quoting Lehmkuhl v. ECR Corp.,

No. 06 CA 039, 2008 WL 5104747, at *5 (Ohio Ct. App. Dec. 2, 2008)). As Cook recognized, the

Selling Agreement “expressly covers the same subject giving rise to plaintiff’s unjust enrichment

claim—the payment of commissions by Ohio National on previously sold variable annuity

contracts” and thus precludes Browning’s unjust enrichment claim. 2020 WL 3056228, at *7.

                                                III.

       Browning lacks standing to sue Ohio National for breach of contract because the Selling

Agreement does not evince an intent for him to directly benefit from Ohio National’s agreement

with LPL. And because the Selling Agreement covers the same subject as Browning’s unjust

enrichment claim, Ohio law does not permit Browning to sue Ohio National for unjust enrichment.

Accordingly, the judgment of the district court is affirmed.




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