Mulvey v. GuideOne Mut. Ins. Co.

[Cite as Mulvey v. GuideOne Mut. Ins. Co., 2017-Ohio-7902.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Thomas J. Mulvey, :

Plaintiff-Appellant, :

No. 17AP-47

v. : (C.P.C. No. 15CV-10595)

GuideOne Mutual Insurance : (REGULAR CALENDAR)

Company et al.,

:

Defendants-Appellees.

:

D E C I S I O N

Rendered on September 28, 2017

On brief: Curry, Roby & Mulvey Co., LLC, and Thomas J.

Mulvey, pro se. Argued: Thomas J. Mulvey.

On brief: Emily D. Smith, for appellees. Argued: Emily D.

Smith.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Plaintiff-appellant, Thomas J. Mulvey, appeals from a judgment of the

Franklin County Court of Common Pleas granting summary judgment in favor of

defendants-appellees GuideOne Mutual Insurance Company, GuideOne America

Insurance Company, GuideOne Specialty Mutual Insurance Company, GuideOne Elite

Insurance Company, and GuideOne Services, L.L.C. (collectively "GuideOne").

I. Facts and Procedural History

{¶ 2} Mulvey began this action with a complaint seeking payment of severance

benefits arising from termination of his employment with GuideOne in November 2002.

The complaint sets forth claims for breach of written contract, unjust enrichment, quasi-

contract, and detrimental reliance.

No. 17AP-47 2

{¶ 3} The parties filed cross-motions for summary judgment and the trial court

granted summary judgment in favor of GuideOne. Based on the evidence presented in

support of and in opposition to summary judgment, the court concluded there remained

no genuine issue of material fact because there was no written contract between the

parties, the quasi-contract and unjust enrichment claims were time barred, and Ohio does

not recognize an independent action for "detrimental reliance," which is merely an

element of actions for quasi-contract or promissory estoppel.

II. Assignments of Error

{¶ 4} Appellant appeals and asserts the following two assignments of error for our

review:

[I.] The Trial Court erred when it granted the Motion for

Summary Judgment filed by Defendant-Appellee GuideOne

Mutual Insurance Company by determining as a matter of

law Thomas J. Mulvey was not entitled to severance pay.

[II.] The Trial Court erred when it denied the Motion for

Summary Judgment filed by Plaintiff-Appellant for the

breach of contract claim.

Appellant's two assignments of error present identical issues and will be addressed

together.

III. Discussion

{¶ 5} The trial court decided this matter by summary judgment, which under

Civ.R. 56(C) may be granted only when there remains no genuine issue of material fact,

the moving party is entitled to judgment as a matter of law, and reasonable minds can

come to but one conclusion, that conclusion being adverse to the party opposing the

motion. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 629 (1992),

citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978). The moving party

cannot discharge its burden under Civ.R. 56 simply by making conclusory assertions that

the non-moving party has no evidence to prove its case. Dresher v. Burt, 75 Ohio St.3d

280, 293 (1996). Rather, the moving party must point to some evidence that affirmatively

demonstrates the non-moving party has no evidence to support each element of the stated

claims. Id. "A plaintiff or counterclaimant moving for summary judgment does not bear

No. 17AP-47 3

the initial burden of addressing the nonmoving party's affirmative defenses." Todd Dev.

Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, syllabus.

{¶ 6} An appellate court's review of summary judgment is de novo. Hudson v.

Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29. Thus, we conduct an

independent review of the record and stand in the shoes of the trial court. Abrams v.

Worthington, 169 Ohio App.3d 94, 2006-Ohio-5516, ¶ 11 (10th Dist). Our review grants

no deference to the trial court's determination. Zurz v. 770 West Broad AGA, L.L.C., 192

Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d

807, 2009-Ohio-4490, ¶ 6 (10th Dist.). As such, we have the authority to overrule a trial

court's judgment if the record does not support any of the grounds raised by the movant,

even if the trial court failed to consider those grounds. Bard v. Soc. Natl. Bank, 10th Dist.

No. 97APE11-1497 (Sept. 10, 1998).

{¶ 7} While denial of summary judgment is usually not a final appealable order,

we may address and rule on such a denial when the trial court has entered final judgment

in the matter and the case turns on undisputed facts and purely legal questions. Holdren

v. Garrett, 10th Dist. No. 09AP-1153, 2011-Ohio-1095, ¶ 13; see also Morgan at ¶ 16

(approving grant of summary judgment in favor of non-moving party).

{¶ 8} The undisputed facts generally establish that Mulvey initially worked for

PSIC, a company that GuideOne purchased and absorbed by January 2000, at which time

Mulvey became an employee of GuideOne. (Mulvey received a certificate in 2002

marking his 15 years of employment with GuideOne; this manifestly included his previous

service with PSIC.)

{¶ 9} GuideOne soon decided to divest itself of certain business units, including

the activities arising from its recent acquisition of PSIC. In August 2000, GuideOne

posted for employees a document entitled "GuideOne Insurance Severance Pay Policy In

The Event Of Qualifying Job Eliminations." (Aug. 31, 2016 Mulvey Mot. for Sum. Jgmt. at

Ex. 3.) This document provided that, in the event of job eliminations within the company,

"affected employees who are terminated as a result of job elimination may qualify for

severance pay and benefits continuation." (Aug. 31, 2016 Mulvey Mot. for Sum. Jgmt. at

Ex. 3.) "Qualified" employees were required to execute a release before receiving their

severance payments. A schedule appended to the policy announcement provided for

No. 17AP-47 4

severance payments in the amount of two or more weeks of pay per year of service,

depending on employee grade and classification.

{¶ 10} Mulvey's deposition testimony and affidavit in support of summary

judgment alleged that, in reliance on the posted severance policy,1 he remained an

employee through a period of company contraction until November 29, 2002, at which

time he was terminated without severance pay. Mulvey does not dispute that no written

and signed severance agreement or release was executed between the parties.

{¶ 11} The stated reason for the company's denial of severance was that Mulvey

could have accepted an equivalent position with the company that acquired his PSIC

employment group from GuideOne. Shortly after termination, Mulvey wrote to his

former employer to protest the lack of severance pay. He denied that he received an offer

of comparable employment from the acquirer, which had only offered him a position of

lesser responsibility and requiring more travel. He asserted that the posted severance

policy contained no such restriction on eligibility for severance benefits, and that another

similarly situated GuideOne employee had eventually been offered severance benefits

despite her rejection of an offer from the PSIC group acquirer. The company declined to

revisit the severance issue for Mulvey.

{¶ 12} We first consider whether the severance policy constituted a binding written

contract offered to certain GuideOne employees. Because Mulvey did not provide express

assent to the terms of the severance policy by signature or otherwise, the contract, if

formed, is in the form of a unilateral contract, which typically involves an offer made by a

party which invites acceptance by performance rather than by a reciprocal promise to

perform. Bell v. Dimmerling, 149 Ohio St. 165, 171 (1948); Precision Concepts Corp. v.

Gen. Emp. & Triad Personnel Servs., 10th Dist. No. 00AP-43 (July 25, 2000); Harwood

v. Avaya Corp., U.S.D.C. No. C2-05-828 (May 25, 2007).

{¶ 13} When a company posts or otherwise disseminates to employees a written,

formal employment policy, a unilateral contract may result: "Ohio regards an employer's

promulgation of employment manuals, employee handbooks or other writings, styled

'personnel policies and practices,' as giving rise to rights enforceable in contract, if the

1 It appears that GuideOne also offered, and Mulvey accepted, a separate "retention bonus" offered to certain

employees to encourage them to stay on in positions affected by cutbacks. This bonus operated

independently of the severance policy and does not affect our analysis thereof.

No. 17AP-47 5

necessary elements reasonably appear from the facts." Barron v. Vision Serv. Plan, 575

F.Supp.2d 825, 832 (N.D.Ohio 2008). As with other contracts, the elements of such a

unilateral employment contract include an offer, an acceptance, contractual capacity,

consideration in the form of bargained-for benefit or detriment, a manifestation of mutual

assent, and legality of purpose. Lake Land Emp. Group of Akron, L.L.C. v. Columber, 101

Ohio St.3d 242, 2004-Ohio-786, ¶ 14 (enforcing a non-competition agreement in favor of

former employer).

{¶ 14} Severance pay is one permissible term of such contracts: "[The employer's]

offer of severance pay precipitated the formation of a unilateral contract, and acceptance

was effective when appellants remained with Landmark after learning of the new

severance policy. * * * For purposes of consideration, the employee's retention of his

position and continued performance of his work suffice to render the new condition of

severance pay enforceable." Helle v. Landmark, Inc., 15 Ohio App.3d 1, 10-11 (6th

Dist.1984).

{¶ 15} Questions regarding the existence of a contract and its meaning are

questions of law subject to de novo review on appeal. Saunders v. Mortensen, 101 Ohio

St.3d 86, 2004-Ohio-24, ¶ 9. In the present case, the terms of the contract must be drawn

from the posted severance policy. When construing the terms of a written contract, the

court's objective is to give effect to the intent of the parties, which is presumed to rest in

the language the parties chose to employ. Common words appearing in a written

instrument will be given their ordinary meaning unless manifest absurdity results.

Alexander v. Buckeye Pipeline, Co., 53 Ohio St.2d 241 (1978), paragraph two of the

syllabus. Where the terms are clear and unambiguous, the court need not go beyond the

plain language of the contract in order to ascertain the rights and obligations of the

parties. Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d 51, 53 (1989).

{¶ 16} GuideOne's severance policy posted in 2000 provided in pertinent part as

follows:

From time to time, GuideOne Insurance must eliminate job

positions for a number of reasons. The Company also

attempts to minimize the impact of job eliminations by

transferring qualified employees where possible to available

positions. If it is not possible to preserve employment,

affected employees who are terminated as a result of job

No. 17AP-47 6

elimination may qualify for severance pay and benefits

continuation.

Retention of "Qualified" employees

Employees are generally deemed "qualified" for the purpose

of this policy if (1) overall performance including (but not

limited to) attendance, motivation, work qualify and level of

production, are evaluated as at least "competent" on the

Company's performance review system, and (2) the

employee is not currently subject to a probationary or

disciplinary situation. The employee also must be "qualified"

to perform in an open position as determined in accordance

with this policy. (Employees are considered "qualified" for a

position if their education, training and job performance

meet the minimum standards for the new position.) The

Human Resources Department will consider affected

employees for alternative positions according to the

following guidelines, generally in the order listed:

1. Placement in a position of similar rating within the same

section or department.

2. Placement in a position of similar rating in another section

or department of the Company.

3. If no position of similar rating for which the employee is

qualified is available, the employee will be considered for

lower rated positions for which they are qualified in the same

order of same department and then other departments as

described above.

4. If no suitable position is available, the employee will be

terminated and the severance policy will then be made

available.

As with other positions offered by the Company, the affected

employee may accept or reject any offer. If the job offer is

declined the employee will be eligible for severance.

***

Severance Agreement and General Release signed

before payment of benefits

All employees qualifying for benefits under this policy must

sign a severance agreement and general release as a

No. 17AP-47 7

condition to, and in consideration for, receiving any

severance benefits under this policy.

Sale or transfer of assets

No severance payment will be made in connection with the

sale or transfer of assets or of a subsidiary where an

employee(s) continue to work without interruption for a new

employer.

{¶ 17} The trial court did not expressly decide that this policy could not constitute

a written, unilateral contract offer that Mulvey could accept through performance. The

court held in the alternative that, even if the policy were sufficiently definite to constitute

a contractual offer, Mulvey had failed to satisfy a condition precedent because he did not

execute the requisite release to claim severance benefits. We disagree with the conclusion

of the trial court and reverse both the grant of summary judgment in favor of GuideOne

and the denial of summary judgment for Mulvey.

{¶ 18} First, we hold that the posted policy is sufficiently definite in its terms to

constitute a contractual offer. The policy sets clearly defined parameters for employee

eligibility and scope of benefits. In particular, the use of the term "may" does not indicate

that the policy is discretionary, but only indicates that not all employees will meet the

precisely defined terms for eligibility. The identity of the contracting parties and the

consideration offered are clear, as is the manner of acceptance. "Qualifying employees"

could therefore effect an acceptance-through-performance of this unilateral contract offer

by continuing employment until terminated, thereby binding the employer to its

contractual promise. See generally Barron and Helle.

{¶ 19} Next, we conclude that Mulvey was a "qualifying employee" under the

policy. The policy addresses two distinct forms of job elimination: in-house reductions in

company workforce, and separation of staff through sale of company assets or business

units. The options for employees affected by the former include reassignment within the

company, with the right to refuse the new position and take severance. For the latter,

which is Mulvey's case, the policy differs in that it does not discuss reassignment within

GuideOne, nor does it require GuideOne employees to accept offers to continue

employment with the purchaser/acquirer of the assets/business.

No. 17AP-47 8

{¶ 20} The policy regarding sale or transfer of assets merely states that no

severance will be paid "where an employee continues to work without interruption for a

new employer." It does not further restrict severance eligibility for those who might

refuse employment with the acquiring company. The stated ground for refusing

severance benefits for Mulvey was that he had refused such an offer from the new

employer. Because the language of the policy does not restrict his right to severance

benefits in this way, he was a "qualifying employee" and GuideOne has asserted no other

impediment, such as poor performance ratings,2 and he is entitled to severance.

{¶ 21} Finally, we conclude that execution of a severance agreement and release

was not a condition precedent until GuideOne had triggered it by offering severance pay

to Mulvey. A condition precedent is a condition that must be performed before

obligations in a contract become effective. Transtar Elec., Inc. v. A.E.M. Elec. Servs.,

Corp., 140 Ohio St.3d 193, 2014-Ohio-3095, ¶ 22. " 'Essentially, a condition precedent

requires that an act must take place before a duty to perform a promise arises. If the

condition is not fulfilled, the parties are excused from performing.' " Corey v. Big Run

Indus. Park, LLC, 10th Dist. No. 09AP-176, 2009-Ohio-5129, ¶ 18, quoting Atelier Dist.

LLC v. Parking Co. of Am. Inc., 10th Dist. No. 07AP-87, 2007-Ohio-7138, ¶ 35.

{¶ 22} When a plaintiff brings an action conditioned upon the execution of a

condition precedent, the complaint must expressly state that the condition precedent has

been fulfilled. Civ.R. 9(C); Natl. City Mtge. Co. v. Richards, 182 Ohio App.3d 534, 2009-

Ohio-2556 (10th Dist.). To determine whether the parties intended a condition

precedent, we consider the language of the contract. Atelier Dist. at ¶ 35, citing Mumaw

v. W. & S. Life Ins. Co., 97 Ohio St. 1, 11 (1917).

{¶ 23} If the release was a condition precedent to benefits here, it was not one that

had matured to excuse GuideOne from performance. In an October 17, 2000 information

update, senior claims management informed GuideOne employees: "You will have 45

days, once you have received your Severance Agreement & Release, to sign the agreement

2We also note that GuideOne did not aver that it had modified, revoked, suspended, terminated, or changed

the policy effective August 16, 2000. The final paragraph of that policy states: "This policy supersedes all

previous policies related to job severance, job elimination or layoffs. The Company reserves the right to

modify, revoke, suspend, terminate or change this policy, in whole or in part, at any time, with or without

notice. The Senior Vice President or Assistant Vice President of Human Resources must approve any

exceptions to this policy in writing."

No. 17AP-47 9

and return it to us. Once you have returned your executed Severance Agreement, it will

be signed by the appropriate person and a copy will be sent to you, along with a letter of

reference explaining that your job was eliminated due to a business restructure." (Mulvey

Depo., at Ex. 2.) GuideOne never established that it sent Mulvey the severance agreement

and release. Therefore, Mulvey's not signing the release cannot be grounds at this time to

deny severance. In other words, there was a condition precedent to the condition

precedent: Mulvey could hardly execute a release until the company declared him eligible,

offered severance, and tendered a release for signature. It did not do this; therefore,

Mulvey did not forfeit any rights under the policy in this way.

{¶ 24} In sum, we hold the trial court erred in granting summary judgment in

favor of GuideOne on Mulvey's claim for breach of a written contract. Mulvey himself was

entitled to summary judgment on this claim.

IV. Conclusion

{¶ 25} In accordance with the foregoing, we overrule in part and sustain in part

Mulvey's first and second assignments of error. Accordingly, we affirm in part and

reverse in part the judgment of the Franklin County Court of Common Pleas granting

summary judgment in favor of GuideOne. The matter is remanded to that court to enter

partial summary judgment in favor of Mulvey on his claim for breach of written contract

of employment, and for further proceedings including the computation of damages.

Judgment affirmed in part;

reversed in part, and cause remanded.

LUPER SCHUSTER, J., concurs.

HORTON, J., dissents.

HORTON, J., dissenting.

{¶ 26} I respectfully dissent. I simply disagree with the majority's analysis and

believe the trial court was spot on in its analysis and conclusions. This is a relatively

simple case. If Mulvey was interested in receiving severance from GuideOne, pursuant to

the posting, he was required to qualify as an employee (which he did), sign a release

(which he did not), and continue working (which he did). Mulvey received compensation

for the work he performed. Any additional compensation via severance required

additional consideration, i.e., signing a release. He failed to sign a release and therefore

No. 17AP-47 10

should be precluded from receiving the benefits of severance as he provided no additional

consideration. Thus, as a matter of law, I would affirm the trial court on both assignments

of error.

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