NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0420n.06 No. 12-4126 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

COMA I NSURANCE AGENCY, I NC. , )

) Plaintif f-Appellant , ) ON APPEALFROM THE U NI TED ) STATES DI STRI CT COURT FOR v. ) THE NORTHE RN DI STRI CT OF ) OHI O SAFECO I

NSURANCE CO., et al., ) ) Defendants-A

ppellees. )

Be fore : MOORE and STRANCH, Circuit J udg es; and HO OD, District Judge. * HOOD, Dis t ri ct J udg e. Plaintiff-Appellant CoM a I nsuranc e Age ncy (“CoMa” ) asks us to consider whether the district court err ed when it g rante d the Motion for J udg ment on the Pleading s filed by Def

endants-A

ppellees Safec o I nsuranc e Company of Americ a, Gene ral Insuranc e Company of America, First National I nsuranc e C ompany of America, Safeco Nati o n al I nsuranc e C ompany , Safec o I nsuranc e Company of I llinois , Safec o L l o y ds I nsuranc e Company , Safec o I nsuranc e Company of Ore g on, Safec o I nsuranc e Company of I ndiana, Americ an States I nsuranc e Company , Americ an Economy Insuranc e Company , Americ an States Insuranc e Company of Texas, Americ an States L loy ds I nsuranc e C ompany , Am eric an S tates P ref err ed I nsuranc e C ompany , and I nsuranc e Company of I llinois (her einaf ter, collectively , “S af

ec o”). [1: 11-cv- 1473, DE 19.] First, we must deter mine whether the district court corr ectly conclude d that Safec o did no t b re ac h the parties’ Ag ency A g r e e me n

t w h e n it u n ilatera lly chang ed the commission schedule which g overne d pay ments

* The Honora

ble J oseph M. Hood, United States District J udg e for the Easter n District of Kentucky , sitti ng by desig nation.to be made to CoMa afte r t he termination of t heir Age ncy Ag re em en t

. We ag ree with the di strict

court that Safec o did not brea ch the parties’ Ag ency Ag ree ment. We then conclude that the district
court did not err when it deter mined that equitable theories of re lief wer e no longe r available to Plaintiff once it was deter mined that a valid contra ct g overne d the dispute. The judgme nt of the district court will be af

firmed. [DE 20.] I. CoMa manag ed an on-lin e p latform that allowed customers to obtain insurance quotes, based

on an on-line questionnaire, from multipl e insurance car riers. Customers wer e also able to purcha se any of the quoted policies throug h this platform. On Marc h 1, 2003, CoMa and Safec o enter ed into

an ag ree ment in which CoMa ag ree d to sell Safec o’s insurance policies throug h the platform in exchang e for commissions on the initial sale and any subsequent rene wal of the policy

. Section 5.1 of t hat Agre ement provided that Safec o “will pay [C oMa] commission s on written premiums.

. .” [DE 1-1 at 19.] Section 5.1.1 provided that the “commissions pay able to [C oMa] shall be at the rate s set forth in Schedule A attache d here to and i n co rp orate d here in by ref ere nce.” [DE 1-1 at 20.] Schedule A, itself, provided that the listed “ [r] ate applies to a nnual Net Writt en Premium and may vary onl y as specifie d in [S chedule A] or an addendum here to.” [DE 1-1 at 29.] Section 5.1.2 provided that Safec o “may make chang es t o i t s commission schedule s upon six ty (60) day s prior written n o t i ce t o Ag ency .” [DE 1-1 at 20.] Section 9.2 provides that “All terms, conditions and limit ations in this Ag ree ment shall continue to b e ef fe ct i v e afte r termination [wit hout cause ] pursuant to Article[] 8.3

. . . for so long as Policies or Renewa ls are in eff ect.

. . ” [ DE 1-1 at 23.] Section 12.1 3 p r o v id e s th a t “ [n ]o chang e, alteration, or modification [of the Ag ency Ag ree ment] may be made except in writing that expressly ref ers to this Ag ree ment and is signe d by both parties.” [DE 1-1 at 27.]

2The applicable commission rate s wer e amende d several t i m es during the course of the

parties’ Ag ree ment. For example, in 2004, CoMa expanded its business to fourtee n new states, and the Schedule A rate s we re re p l ac ed with the commission rate s available at safe coplaza.com as of J anuar y 1, 2004. [DE 1-1 at 59.] I n that instance, Safec o ag ree d with CoMa that it would not lower the rate s in f

orce on J anuar

y 1, 2004, until Dec ember 31, 2005, and that it would pay an additional three perc ent commission on new policies written in the f ourtee n new state s. [DE 1-1 at 59.] On J uly 22, 2010, CoMa notified Safec o that it was terminating the ag ree ment without cause , eff ective 180 day s from the notice date, in keeping with Section 8.3 of the Ag ree ment. [ See DE 1-3; DE 1-1 at 22] The parties ag ree d, in a letter of the same date, that from J uly 22, 2010, until at least six months afte r terminatio n o f t h e agre ement, the commission rate s eff ective as of the date of CoMa’s notice would c ontinue, “subjec t to any g ener al adjustment (incr ease or dec rea se) in ag ent commission rates made by [S afe co].” [DE 4-2.] Then, by a letter dated May 23, 2011, S af ec o n o t ified C oMa t hat i t would be reducing the

co m m i s s i o n ra tes paid for rene wal policies, eff ective on or afte r August 1, 2011, lowering ag ent

rene wal rates to zero perc ent and r educingCoMa’s re newa l rates to five perc ent [DE 4-3]. II. W e re v i ew de novo a district court’s decision on a motion for judgme nt on the pleadings made pur suant to Fe d. R. Civ. P. 12(c)

. W ee Care Child C tr., Inc. v. Lumpk in , 680 F.3d 841, 846 (6th Cir. 2012) (quoting Tucker v. Middleburg-Legac y Place , 539 F.3d 545, 549 ( 6th Cir. 2008) ). A motion for judgme nt on the pleading s 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 fac ts to state a claim
to r elief that is pla

usible on its fa ce.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). “F or purposes of a motion for judgme nt on the pl ea d i n gs , al l well-plea ded materia l alleg ations of the pleading s of the opposing party must be taken as true, and the motion m ay be g rante d only if the
3moving party is never theless clea

rly entitled to judgme nt.” McG lone v. Bell , 681 F.3d 718, 728 (6th Cir. 2012) (quoted c ase omitted). III. We are asked to de termine whe ther Safe co bre ache d the par ties’ Ag ency

Ag ree ment when it unilatera lly chang ed commission rate s pay able to C o M a af t er the termination of the Ag ency Ag ree ment and conclude that Safec o committed no brea ch of the terms of that Ag ency Ag ree ment when the te rms are g iven their plain mea ning a nd rea d toge ther as a whole. For the rea sons stated here , we conclude that Safeo committed no brea ch. We f urther conclude that the district c ourt did
not err when it deter

mined that equitable theories of relief wer e no longe r available to Plaintiff once it was deter

mined that a valid contr act g overne d the dispute. A. Under Ohio law, to preva il on a brea ch of contra ct claim, a plaintiff must de monstrate “the exis tence of a contra ct, performanc e by the pl aintiff, breac h by the defendant, and damage or l oss t o t h e plaintiff.” Doner v. Snapp , 649 N.E.2d 42, 44 (Ohio Ct. App. 1994) (citing 2 Ohi o J u ry I nstructions (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 contra ct b et we en the parties to deter mine whether Safec o brea ched the ag ree ment, as Plaintiffs aver . Contract terms are g ener all y t o b e gi v en their ordinary meaning when the terms are clea r on their fac e, and we will apply the plain lang uag e of the

co n t ra ct when the intent of the parties is evident from the clea r and unambig uous lang uage i n 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) (inter p reting insurance policy ). The lang uag e of a contra ct is ambig uous “only wher e its meaning cannot be deter mined from the four corne rs of the ag ree ment or wher e the languag e i s s u s ce p t i ble of two or more

rea sonable interpre tations.” United States Fid. & Guar. Co. v. St. Elizabeth Med. Ctr. , 716 N.E.2d

41201, 1208 (Ohio Ct. App. 1998) (citing Potti v. Duramed Pharm

. , Inc. , 938 F.2d 641, 647 (6th Cir.

1991)). A contra ctual “ter m is not ambig uous mere ly beca use two parties offe r substantially differ ent interpre tations.” Glidden Co. v. Kinsella , 386 F. App’x 535, 542 (6th Cir. 2010) (citing 216 Jamaica Ave., LL C v. S & R Playhouse Realty Co. , 540 F.3d 433, 440 (6th Cir. 2008)). Nor does

a term in a contra ct “bec ome ambi gu o u s b y re as o n of the fac t that in its operation it will work a hardship upon one of the parties there to and a corr esponding advanta g e to the other.

. .[; ] it is not the prov ince of courts to relieve parties of improvident contra cts.

. . .” Ohio Crane Co. v. Hicks , 143 N.E. 388, 389 (Ohio 1924). Finally , a contract is to be read as a whole, and effec t must be given
to eac h provision of t he contract, if it is rea sonable to do so. Sau n der s v. Mo r t ensen , 801 N.E.2d 452, 455 (Ohio 20 0 4 ) (c iting Foster W heele r Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth. , 6 7 8 N. E .2d 519, 526 (Ohio 1997); Expande d Metal Fire-Proofing Co. v. Noel Constr. Co. , 101 N.E. 348, 350 (Ohio 1913)). “‘[W] here two interpre tations can be g iven to a term in a contract , [ b u t ] o n e wi ll make a provision meaning less, and one. . .will g ive full forc e to all provisions, the latter must be adopted.’ ” Aho v. Cleveland-Cliffs, I nc. , 219 F. App’x 419, 423 (6th Cir. 2007) (quoting Lightni ng 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 Ag ree ment provides that Plaintiff is to be paid commissions as set forth in Schedule A to the ag ree ment which, itself, further limit s that commission pay ments are to be paid “as spe cified in this schedule or an a ddendum [thereto].” [R . at 1-1.] Section 5.1.2 provides that Safec o may make chang es to its commis s i o n s ch edules—with no further specific ation of which commission rate s the section ref ers—upon 60 day s wr i t t en notice to CoMa. CoMa asks us to conclude that Section 5.1.2' s provision f or Safec o to unilate rally chang e its c ommissi on schedule s does not app l y to the Schedule A commission rate s ag ree d 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

5chang ed only by mutual ag ree ment of the parties pursuant to Section 12.13 of the Ag ency Ag ree ment

beca use Section 5.1.1' s specific term, “Schedule A,” controls over the g ener al term “commission schedule s” found in Section 5.1.2. We disag ree . Oh i o law teac hes that a specific contra ctual term will control a g ener al term wher e t wo clause s in a contract appear inconsistent, see Pent o n Me d i a , Inc. v. Aff iliated FM Ins. Co. , 245 F. App’x 495, 500 (6th Cir. 2007), but Sections 5.1.1 and 5.1.2 are not inc onsistent. Schedule A is a commission schedule and, thus , it can be m odified uni latera lly under Section 5.1.2 in the absence

o f s o m e s pecif

ic ex clusion of t hat particular commis sion schedule from the provisions of S ection 5.1.2. Section 5.1.1 sets out only wher e the commission schedule is to be found, while 5.1.2 sets out the terms under wh i ch that commission schedule may chang e. Simi larly , section 12.13, the integ ration clause , is not inconsisten t with section 5.1.2. Section 12.13 provides that the “Agree ment embodies the entire understanding betwee n the parties” ; all prior communications are merg ed into the Ag ree ment; and “[n] o chang e, alteration, or modification

. . . may be made except in writing that expressly ref

ers to this Ag ree ment and is signe d by both parties.” The parties’ integ rate d Ag ree ment included S ection 5.1.2, which perm its Safec o to chang e it s commission schedule s with six ty day s prior written notice to CoMa. The parties mutually ag ree d to Section 5.1.2 when the Ag ree ment was initially neg otiated and r educe d to writing a nd thus, Section 12.13 does not cre ate a conflict Fur ther, we do not ag ree with CoMa that this rea ding of the Ag ency Ag ree ment fails to g ive ef fe ct to Section 9.3, which provides that, if the Ag ency Ag ree ment is terminated, Safec o “sha l l continue to pay [C oMa] rene wal commission for eac h Renewa l in acc ordanc e with Article 5.2, and subject to Section 5.4.” [DE 1-1 at 23.] Sections 5

. 2 an d 5

. 4 s et forth the timing of commission pay ments and the amounts to be “set off” from them. They do not addre ss Safec o’s rig ht to chang e commission rates under

Section 5.1.2 with appropriate notice.

6Since Safec o had the rig ht to unilatera lly chang e commission rate s with adequate notice, we

conclude that it did not brea ch the Ag ency Ag ree ment when it sent its May 23, 2011, letter notify ing CoMa of t he rate chang es t hat would take effe ct m ore than 60 day s later, on Augu s t 1, 2011. We aff irm the judg ment of the district cour t in this reg ard. B. F in a ll y , th e d is tr ict court proper ly conclude d that Plaintiff cannot rec over under its altern a ti v e theories of relief

—promissory estoppel and unjust enric hment. Since a contra ct g overns 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) (“O hio law is clea r that a plaintiff may not rec over under the theory of unjust enric hment or quasi-contr act when an express contra ct cover s 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. Acc ording ly , we AF F IRM the judg ment of the district cour t.

7