Matthew Frisch v. Nationwide Mutual Ins. Co., 553 F. App'x 477

Background

Frisch was recruited by Nationwide in 2005 as an exclusive agent and signed an Agency Executive Agreement (AE) and an Independent Contractor Agreement (IC); the IC allowed termination by either party "with or without cause." Frisch also took a $250,000 loan from Nationwide’s credit union.
Nationwide presented a Modified Agency Executive Agreement (MAE) in 2007 that changed production targets and measurement periods and offered Frisch cash and expense reimbursements plus a capital infusion; Frisch signed an MOU and the MAE.
The MAE provided that if Frisch met requirements at the six-month anniversary but then failed to meet the Modified Minimum Production Plan for two successive quarters, Nationwide could terminate the relationship.
After the six-month mark, Frisch repeatedly missed production targets (notably Feb 2009 and May 2009); Nationwide placed him on probation and terminated him on Sept. 4, 2009.
Frisch sued in 2012 in Ohio federal court asserting: (1) breach of contract (MAE), (2) breach of implied covenant of good faith and fair dealing, and (3) fraud (misrepresentations in Dec. 2006, Jan. 2007, Mar. 2007).
The district court dismissed Counts 2 and 3 (Count 3 on statute-of-limitations via Ohio’s borrowing statute) and granted summary judgment to Nationwide on Count 1; the Sixth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Nationwide breached the MAE by terminating Frisch for failing production	Frisch contended termination was improper because measurement/ambiguous life-sales timing meant he had not failed two successive quarters	Nationwide produced unrefuted data showing Frisch missed required P&C DWPs and/or life-sales at the quarter endpoints (Feb 2009, May 2009), triggering MAE termination	Affirmed for Nationwide: summary judgment for defendant — Frisch failed to meet MAE production requirements
Whether a separate claim for breach of the implied covenant of good faith exists under Ohio law	Frisch asserted a standalone covenant claim based on Nationwide’s conduct and alleged coercion into the MAE	Nationwide argued Ohio does not recognize an independent good-faith claim separate from breach of contract; Frisch accepted and performed under the MAE	Affirmed dismissal: Ohio law treats good-faith duty as part of contract claim, not a separate cause of action
Whether Frisch’s fraud claim is time-barred and which state’s limitations period applies	Frisch argued Ohio’s 4-year statute applies (bringing claim timely)	Nationwide argued Pennsylvania’s 2-year statute applies because the alleged misrepresentations accrued there; Ohio’s borrowing statute adopts the shorter out-of-state period	Affirmed dismissal: fraud claim accrued in Pennsylvania and is time-barred under Pennsylvania’s two-year statute as applied by Ohio’s borrowing statute
Whether contractual choice-of-law in MAE controls limitations period	Frisch relied on MAE’s Ohio choice-of-law clause to invoke Ohio procedural rules	Nationwide noted the clause covers substantive law only and does not override forum procedural rules absent explicit agreement on limitations	Court applied Erie rule: contractual choice-of-law did not import another state’s limitations period absent explicit provision

Key Cases Cited

Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563 (6th Cir.) (standard of review for summary judgment)
Ventas, Inc. v. HCP, Inc., 647 F.3d 291 (6th Cir.) (summary judgment standard quotation)
GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804 (6th Cir.) (contract modification requires mutual consent and consideration)
Cole v. Mileti, 133 F.3d 433 (6th Cir.) (contractual choice-of-law provisions cover substantive law but not procedural limitations absent express intent)
Cundall v. U.S. Bank, 909 N.E.2d 1244 (Ohio Ct. App.) (fraud accrual under discovery rule)
Jarvis v. First Resolution Mgmt. Corp., 983 N.E.2d 380 (Ohio Ct. App.) (place and time of accrual intertwined; Restatement approach for accrual analysis)