Redies v. Nationwide Mut. Ins. Co.
Decision Date | 14 April 1989 |
Docket Number | Civ. A. No. 87-B-115. |
Citation | 711 F. Supp. 570 |
Parties | Charles O. REDIES, Plaintiff, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Nationwide Mutual Fire Insurance Company, Nationwide General Insurance Company, and Nationwide Property and Casualty Insurance Company, Defendants. |
Court | U.S. District Court — District of Colorado |
Raymond J. Connell and Linda S. Comer, Hall & Evans, Denver, Colo., for plaintiff.
Herbert A. Delap, Stutz, Dyer, Miller and Delap, Denver, Colo., for defendants.
This matter is before the Court on defendants' (Nationwide) motion for partial summary judgment. Oral argument will not materially assist the Court in the resolution of this motion. The motion is granted in part and denied in part.
The action was originally filed in the Denver District Court. It was removed to this Court pursuant to 28 U.S.C. §§ 1441(a) and 1446(b). Jurisdiction is invoked pursuant to 28 U.S.C. § 1332.
This case arises out of plaintiff's business relationship as an insurance agent for Nationwide. Before joining Nationwide, plaintiff operated an independent insurance agency selling insurance policies through several insurance companies. In 1984, while still operating his independent insurance agency, plaintiff began writing some policies through Nationwide. In 1985 Nationwide decided to open a regional office in Denver. Plaintiff and Nationwide discussed Nationwide's expansion plans and plaintiff's role in that expansion.
On March 24, 1986 plaintiff entered into an exclusive agency contract with Nationwide. Pursuant to that agreement, plaintiff terminated his agency agreements with all other insurance companies and began selling insurance exclusively through Nationwide. Problems then developed between plaintiff and Nationwide and in September 1986, Nationwide terminated plaintiff's employment. Thereafter, plaintiff filed this action for damages based on a statutory wage claim under § 8-4-101, C.R.S. (1986 Repl.Vol. 3B), false representation, non-disclosure or concealment, negligent misrepresentation, interference with contracts, and breach of contract. Nationwide moves for summary judgment on all claims except the statutory wage claim.
Fed.R.Civ.P. 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Summary judgment is appropriate when the Court can conclude that no reasonable juror could find for the non-moving party on the basis of the evidence presented in the motion and response. Matsushita, supra. The non-moving party must present evidence sufficient so that a reasonable juror could find for him. The standard is whether the non-movant has presented evidence which is persuasive enough for a reasonable juror to rule in its favor. Id. Further, the non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex, supra.
Nationwide contends that plaintiff's claims for fraud, false representation, non-disclosure or concealment, and negligent misrepresentation must fail because plaintiff cannot prove that Nationwide made any representations as to past or existing material fact. They also contend that any representations made concerned future events and are not actionable. I disagree.
The elements of fraud are:
Morrison v. Goodspeed, 100 Colo. 470, 477-78, 68 P.2d 458, 462 (1937). Also, "a promise concerning a future act, when coupled with a present intention not to fulfill the promise, can be a misrepresentation which is actionable as fraud." Stalos v. Booras, 34 Colo.App. 252, 256, 528 P.2d 254, 256 (1974).
A claim for negligent misrepresentation is cognizable in Colorado based on the following elements:
First Nat'l Bank in Lamar v. Collins, 44 Colo.App. 228, 616 P.2d 154 (1980). Research fails to reveal any Colorado case which applies the tort of negligent misrepresentation to an employer's misrepresentations about the future conditions of employment. However, other courts have applied this tort to such misrepresentations. See Abdulrahim v. Gene B. Glick Co., Inc., 612 F.Supp. 256 (N.D.Ind.1985); Berry v. Playboy Enterprises, Inc., 195 N.J. Super. 520, 480 A.2d 941 (1984).
This Court concludes that plaintiff's claims for fraud, false representation, non-disclosure or concealment, and negligent misrepresentation may be maintained based on representations regarding future conditions of employment.
Plaintiff alleges that Nationwide misrepresented that:
The parties' pleadings, exhibits, depositions, and affidavits reflect significant factual dispute concerning these alleged representations. Accordingly, there being genuine issues of material fact and Nationwide not being entitled to judgment as a matter of law, summary judgment on the claims for fraud, false representation, non-disclosure or concealment, and negligent misrepresentation is improper. Matsushita, supra.
Next, Nationwide moves for summary judgment on plaintiff's breach of contract and wrongful termination claims arguing that Colorado does not recognize an implied covenant of good faith and fair dealing in the employment context. I agree.
"An implied covenant of good faith and fair dealing found in some commercial contracts does not extend to at-will employment contracts." Farmer v. Central Bancorporation, Inc., 761 P.2d 220 (Colo.App. 1988), cert. denied, September 6, 1988; Pittman v. Larson Distributing Co., 724 P.2d 1379 (Colo.App.1986). These opinions are well reasoned and there is no persuasive authority that the Colorado Supreme Court would decide the issue differently. See Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569 (10th Cir.1984).
Accordingly, to the extent that plaintiff's claims of breach of contract and wrongful termination are based on an implied covenant of good faith and fair dealing, Nationwide is entitled to summary judgment as a matter of law.
Plaintiff also asserts that he has a claim for breach of contract and wrongful termination based on provisions of Nationwide's compensation and security handbook (CASH manual). Summary judgment is also proper as to this claim.
An employment manual can supplement an employment contract and limit the employment at-will doctrine. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988). Thus, an employee "originally hired under a contract terminable at will may be able to enforce termination procedures in an employee manual under one of two alternative theories." Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo. 1987).
Under ordinary contract principles, the employee must show that in promulgating termination procedures, the employer was making an offer to the employee and the employee's initial or continued employment constitutes acceptance of those procedures. Id. In order to prevail on the related but distinct promissory estoppel theory, an employee must establish that the employer should reasonably have expected the employee to consider the employee manual as a commitment from the employer to follow its termination procedures, and injustice can be avoided only by the enforcement of the manual's termination procedures. Id. Express disclaimers in an employee manual which negate the existence of a contract claim based on provisions in the manual are given...
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