B. Thomas & Company v. Universal Warranty Corporation et al

Filing 104

MEMORANDUM AND ORDER that the Defendants' Motion for Summary Judgment (Filing 79 ) is granted in full. Defendants Motion in Limine (Filing 83 ) is denied as moot. Plaintiffs Complaint is dismissed in its entirety. A separate judgment will be entered. Ordered by Judge Brian C. Buescher. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

B. THOMAS AND COMPANY,
Plaintiff,

8:18-CV-112

vs.
UNIVERSAL WARRANTY CORP., and ALLY
INSURANCE HOLDINGS INC.,

MEMORANDUM AND ORDER

Defendants.

I. INTRODUCTION
This is a contract case involving claims of breach of contract, tortious interference, unjust
enrichment, breach of the duty of good faith and fair dealing, fraudulent concealment, and
negligent misrepresentation. See Filing 1. Plaintiff claims it is entitled to continuing commission
payments on certain contracts it entered into with Defendants. Filing 1 at 19. This matter comes
before the Court on Defendants’ Motion for Summary Judgment as to all of Plaintiff’s claims.
Filing 79.
In deciding Defendants’ Motion, the Court has reviewed the contracts, the evidence
submitted, and the law applicable to the contracts in detail. Upon such review, the Court has
concluded the material provisions of the contracts implicated by this lawsuit are unambiguous.
The continuing commissions requested by Plaintiff in this lawsuit are not obligations of the
Defendants pursuant to the plain language of the agreements that both parties signed.
In its response to Defendants’ Motion for Summary Judgment, Plaintiff invites this Court
to manufacture ambiguity in contracts that clearly outline the terms upon which commissions are
owed through providing “course of performance” and “extrinsic” evidence. Binding Nebraska law

1

and Eighth Circuit precedent do not allow such evidence to control over clear contractual language.
For the reasons stated herein, the Court grants Defendants’ Motion for Summary Judgment.
II. BACKGROUND
A. The Parties
Plaintiff, B. Thomas and Company d/b/a/ National Financial (“National Financial”),1 is an
independent agent offering vehicle service contracts and related products to motor-vehicle dealers
for sale to the dealers’ customers. Filing 91 at 11. As an independent agent, National Financial
markets vehicle service contracts and guaranteed asset protection (“GAP”) contracts to automobile
dealers to sell to their customers. Filing 91 at 12. The vehicle service contracts and GAP contracts
at issue in this case were administered by Defendants, the Universal Warranty Corporation
(“Universal Warranty”), a wholly owned subsidiary of Ally Insurance Holdings, Inc. (“Ally”),
who competed with other companies to have automobile dealers sell their products. Filing 91 at
11; Filing 91 at 12. Universal Warranty, in addition to administering the contracts National
Financial sold to dealers, also engaged in some direct sales to dealers itself. Filing 91 at 14.
B. The Products
Vehicle service contracts are warranties that protect an automobile against mechanical
breakdown. Filing 91 at 11. GAP contracts insure vehicles by paying to a vehicle owner the
difference between the cash value and the balance of a lease or loan if the vehicle is destroyed or
stolen. Filing 91 at 11. Defendant Universal Warranty marketed VehicleOne-branded vehicle
service contracts and VehicleOne Primary-branded GAP contracts. Filing 91 at 11. Universal
Warranty also offered another vehicle service contract known as the GM Protection Plan. Filing

B. Thomas and Company does business as National Financial Services (“National Financial”), see Filing 1 at 1, and
both parties refer to the business as National Financial rather than B. Thomas and Company throughout their briefing.
See Filing 80; Filing 91; Filing 98.
1

2

81-17 at 4. The GM Protection Plan was generally marketed directly to dealers by Universal
Warranty’s in-house sales employees rather than through the use of independent agents like
National Financial. Filing 81-17 at 4; Filing 91 at 14.
In November of 2016, Ally’s license to use General Motors’ name and trademark expired,
so Ally retired the GM Protection Plan. Filing 81-17 at 4. Ally then implemented a new vehicle
service contract known as Ally Premier Protection (“Ally Premier”). Filing 81-17 at 5. Defendants
designed Ally Premier to replace the GM Protection Plan and potentially the VehicleOne vehicle
service contracts as well. Filing 81-17 at 5; Filing 92-10 at 1; Filing 92-17 at 1. Defendants have
not allowed National Financial to sell Ally Premier, and thus National Financial has not earned
any commissions from that product. Filing 98 at 15; Filing 99-1.
C. The Contracts
1. VehicleOne Contracts
National Financial marketed VehicleOne vehicle service contracts to dealers on Universal
Warranty’s behalf under a contract with Universal Warranty dated March 26, 2003 (the “2003 V1
Rep. Agreement”). Filing 81-2. Under a separate contract dated August 1, 2008 (the “2008 V1
GAP Rep. Agreement”), National Financial marketed Universal Warranty’s VehicleOne Primary
GAP contracts. Filing 81-8. Both VehicleOne contracts granted National Financial authority to
solicit and service the VehicleOne programs on Universal Warranty’s behalf. Filing 81-2 at 1-2,
§§ 2, 5(a); Filing 81-8 at 1, §§ 3-4. When National Financial successfully solicited a dealer to sell
Universal Warranty’s VehicleOne products, Universal Warranty required each solicited dealer to
obtain Universal Warranty’s direct contractual authorization, subject to Universal Warranty’s
discretion to reject any dealer, prior to selling Universal Warranty’s products. Filing 81-18 at 25;
Filing 81-2 at 2, § 5(a); Filing 81-8 at 1, § 6(a).

3

National Financial was eligible to receive a “representative fee” or commission on certain
Universal Warranty contracts. Specifically, National Financial received a representative fee when
three requirements were met: a dealer National Financial had solicited sold a contract to a
consumer, Universal Warranty had “received the Dealer Cost, and . . . [National Financial wa]s
currently servicing such Dealer account on behalf of [Universal Warranty].” Filing 81-2 at 2, §
7(b); Filing 81-8 at 3, § 8(b). Both the 2003 V1 Rep. Agreement and 2008 V1 GAP Rep.
Agreement limited representative fee payments to the sale of VehicleOne products. Filing 91 at
16. Either National Financial or Universal Warranty could terminate the 2003 V1 Rep. Agreement
and 2008 V1 GAP Rep. Agreement without cause sixty days after giving the other party written
notice. Filing 81-2 at 4, § 16; Filing 81-8 at 5, § 17.
On March 12, 2003, Universal Warranty sent a signed letter to, National Financial’s thenowner, Charles Ballou informing him that Universal Warranty would pay commissions under the
2003 V1 Rep. Agreement even after its termination provided certain requirements were met,
including that National Financial continued to service the dealer accounts on behalf of Universal
Warranty. Filing 81-3. The parties have honored the promises made in this letter as to the 2003 V1
Rep. Agreement and payments as promised in the letter are not in dispute because Defendants have
made and continue to make such payments. Filing 81-18 at 14.
2. Universal Warranty Contracts
On October 2, 2003, National Financial and Universal Warranty executed a contract (the
“2003 Universal Warranty Rep. Agreement”) authorizing National Financial “to solicit and service
[Universal Warranty’s] vehicle service contract program.” Filing 81-5 at 1. This contract did not
specify a particular type or category of vehicle service contract. See generally Filing 81-5.
However, National Financial’s then-owner, Ballou, returned a signed copy of the agreement to

4

Universal Warranty with an accompanying transmittal letter stating, “I am faxing you the agency
agreement authorizing [National Financial] to offer other Universal Warranty programs in addition
to VehicleOne.” Filing 81-4. However, Ballou later stated he understood the contract as
authorizing him to solicit a specific product known as the AutoMax service program. Filing 99-4
at 10.
On May 1, 2005, National Financial and Universal Warranty executed a contract
authorizing National Financial to solicit and service Universal Warranty’s AC Delco vehicle
service contract program (the “2005 AC Delco Rep. Agreement”). Filing 81-6. On October 20,
2005, Universal Warranty and National Financial executed a contract authorizing National
Financial to solicit and service Universal Warranty’s SAAB vehicle service contract program (the
“2005 SAAB Rep. Agreement”). Filing 81-7. Similar to the V1 Rep. Agreement, these contracts
allowed National Financial to receive a representative fee only if Universal Warranty had already
received payment from the dealer and National Financial was currently servicing the dealer “on
behalf of [Universal Warranty].” Filing 81-5 at 2-3, § 7(b).
On March 24, 2010, National Financial and Universal Warranty executed another contract
(the “2010 Universal Warranty Rep. Agreement”) authorizing National Financial “to solicit and
service [Universal Warranty]’s vehicle service contracts.” Filing 81-9. This contract did not
reference any specific branded product and stated it “constitute[d] the entire agreement between
the parties with respect to its subject matter, and any prior agreement, whether oral or written, shall
be of no further force or effect.” Filing 81-9 at 4, § 18. The 2010 Universal Warranty Rep.
Agreement specifically stated that National Financial was not entitled to representative fees after
termination of the agreement. Filing 81-9 at 4, § 16(g).
3. The Core Representative Addendum

5

In 2013, National Financial and Universal Warranty executed another contract (the “Core
Rep. Addendum”) which amended and supplemented both the “VehicleOne Program
Representative Agreement in effect as of March 24, 2010, and the VehicleOne Primary GAP
Program Representative Agreement in effect as of August 1, 2008.” Filing 81-10 at 1. The Core
Rep. Addendum did not further clarify whether it applied to the 2003 V1 Rep. Agreement executed
on March 26, 2003, or the 2010 Universal Warranty Rep. Agreement executed on March 24, 2010.
Filing 81-10. The Core Rep. Addendum allowed National Financial to share in the profits of its
vehicle service contract sales in exchange for exclusively offering VehicleOne products. Filing
81-10 at 1-1, §§ 1(a)(i), (b). This was in contrast to the previous arrangement which only allowed
National Financial to receive a representative fee. However, the new fee-sharing arrangement only
applied to “Assigned Dealers,” which were “dealer[s] for which responsibility to market and
service the VehicleOne [vehicle service contract] and GAP programs ha[d] been assigned to
[National Financial]” as opposed to National Financial “originating” the relationship. Filing 81-10
at 1, § 1; Filing 91 at 28. Universal Warranty did not assign National Financial any dealers. Filing
81-18 at 16. The Core Rep. Addendum stated that it terminated immediately upon termination of
either of the underlying agreements. Filing 81-10 at 3, § 3(b).
4. Termination
Universal Warranty issued notice of termination of all agreements on April 29, 2015, with
an effective date of July 1, 2015. Filing 81-12 at 1. This termination included the 2003 V1 Rep.
Agreement, 2003 Universal Warranty Rep. Agreement, 2005 AC Delco Rep Agreement, 2005
SAAB Rep Agreement, 2008 V1 GAP Rep. Agreement, 2010 Universal Warranty Rep.
Agreement, and Core Rep. Addendum. Filing 81-12 at 1. The termination letter stated that all

6

payments of representative fees to National Financial would end on the termination date except
for certain enumerated exceptions. Filing 81-12.
Universal Warranty later discontinued the VehicleOne Primary GAP product effective
September 28, 2017. Filing 81-14. Despite termination of the underlying agreement, Universal
Warranty continued to pay National Financial post-termination representative fees on VehicleOne
service contract sales made by National Financial-solicited dealers that were subject to the 2003
V1 Rep. Agreement. Filing 81-18 at 14. Payments of such commissions were still “open” at the
time of Thomas’s deposition. Filing 81-18 at 14.
Prior to termination of the contracts, Defendants and/or their agents made numerous
statements and gave presentations about incorporating National Financial into their long-term plan,
building a long-term relationship, and National Financial, as a Core Agent, playing a key role in
growing Ally’s business. Filing 92-4; Filing 92-3 at 3; Filing 92-24 at 5; Filing 92-30 at 18, 24.
III. STANDARD OF REVIEW
“Summary judgment is appropriate when the evidence, viewed in the light most favorable
to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881,
884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c). “[S]ummary judgment is not disfavored and is
designed for every action.” Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012)
(internal quotation marks omitted) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043
(8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view “the
record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in
that party’s favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v.
Harsco Corp., 356 F.3d 920, 923–24 (8th Cir. 2004)). Where the nonmoving party will bear the

7

burden of proof at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment
motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the
mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce
evidence showing “an absence of a genuine issue of material fact.” Johnson v. Wheeling Mach.
Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting Celotex Corp., 477 U.S. at 325). Instead, “the
burden on the moving party may be discharged by ‘showing’ . . . that there is an absence of
evidence to support the nonmoving party’s case.” St. Jude Med., Inc. v. Lifecare Int’l, Inc., 250
F.3d 587, 596 (8th Cir. 2001) (quoting Celotex Corp., 477 U.S. at 325).
In response to the moving party’s showing, the nonmoving party’s burden is to produce
“specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM Parking Servs.,
Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844,
853 (8th Cir. 2012)). The nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come forward with specific facts showing
that there is a genuine issue for trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015)
(quoting Torgerson, 643 F.3d at 1042). “[T]here must be more than ‘the mere existence of some
alleged factual dispute’” between the parties in order to overcome summary judgment. Dick v.
Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of
Missouri, Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).
IV. DISCUSSION
National Financial alleges claims of breach of contract, tortious interference, unjust
enrichment, breach of the duty of good faith and fair dealing, fraudulent concealment, and
negligent misrepresentation. See generally Filing 1. Universal Warranty and Ally have moved for

8

summary judgment as to all of National Financial’s claims. Filing 79. The Court will address each
of National Financial’s claims in turn and ultimately will grant summary judgment to Defendants
on all claims.
A. Breach of Contract
National Financial alleges Defendants breached the 2003 V1 Rep. Agreement, 2003
Universal Warranty Rep. Agreement, 2008 V1 GAP Rep. Agreement, 2010 Universal Warranty
Rep. Agreement, and the Core Rep. Addendum by failing to pay post-termination commissions on
all vehicle service contract and GAP contract sales by National Financial-solicited dealers.2 Filing
1 at 19-20.
“In order to recover in an action for breach of contract, the plaintiff must plead and prove
the existence of a promise, its breach, damage, and compliance with any conditions precedent that
activate the defendant’s duty.” United States v. Nebraska Beef, Ltd., 901 F.3d 930, 934 (8th Cir.
2018) (quoting Henriksen v. Gleason, 263 Neb. 840, 643 N.W.2d 652, 658 (2002)).
As an initial matter, the Court notes that “interpretation of a contract and whether the
contract is ambiguous are questions of law.” Wintroub v. Nationstar Mortg. LLC, 303 Neb. 15, 20,
927 N.W.2d 19, 23 (2019). Accordingly, the Court will analyze and interpret each contract.3
Ultimately, the Court concludes there is no dispute of material fact as to the contracts and their
unambiguous language, and Defendants are entitled to judgment as a matter of law on all of
National Financial’s breach-of-contract claims.

2

Because the Complaint does not allege breach of the 2005 AC Delco and 2005 SAAB Rep. Agreements and the
parties do not discuss these agreements beyond generalities, the Court need not address these contracts.
3
In its response brief (Filing 91), National Financial addresses the 2003 Universal Warranty Rep. Agreement but fails
to address Defendants’ arguments on several of the contracts, including the 2003 V1 Rep. Agreement, 2010 Universal
Warranty Rep. Agreement, and Core Rep. Addendum. See Filing 80; Filing 91. “[F]ailure to oppose a basis for
summary judgment constitutes waiver of that argument.” City of Kennett v. Envtl. Prot. Agency, 887 F.3d 424, 430
(8th Cir. 2018) (quoting Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir. 2009). Though
summary judgment is appropriate on this ground alone, the Court will address all contracts for the sake of clarity.

9

1. 2003 V1 Rep. Agreement
The Court first addresses whether Universal Warranty breached the 2003 V1 Rep.
Agreement. National Financial’s Complaint suggests two means by which Universal Warranty
may have breached the 2003 V1 Rep. Agreement: by failing to pay any commissions on Ally
Premier sales and by failing to pay post-termination commissions on VehicleOne contract sales.
Filing 1-1 at 19-20. The Court concludes summary judgment is proper on National Financial’s
claim for breach of the 2003 V1 Rep. Agreement because Universal Warranty has not breached
this contract in either respect.
The Court first examines whether Universal Warranty could have breached the 2003 V1
Rep. Agreement by refusing to pay commissions on Ally Premier sales. By the plain language of
its title (“VehicleOne Program Representative Agreement”), the 2003 V1 Rep. Agreement only
applies to sales of VehicleOne vehicle service contracts. Filing 81-2 at 1 (emphasis added). As
such, it cannot apply to Ally Premier or any other brand of vehicle service contracts other than
VehicleOne. Thus, National Financial is not entitled to any Ally Premier commissions based on
this contract, and Defendants did not breach the contract in this regard.
Turning to whether there is a breach of the 2003 V1 Rep. Agreement for failure to pay
post-termination commissions on VehicleOne contract sales, the undisputed facts show no breach.
In his deposition, Thomas, on behalf of National Financial, indicated that he had been paid
commissions for ongoing sales of VehicleOne contracts after termination of the 2003 V1 Rep.
Agreement. Filing 81-18 at 14. Defendants argue this payment is based on a March 12, 2003, letter
a Universal Warranty director sent to National Financial. Filing 80 at 19-20. Defendants
characterize this letter as a “Perpetuity Amendment” to the 2003 V1 Rep. Agreement which they
claim amends the terms of the contract by authorizing National Financial to provide post-

10

termination servicing to dealers it solicited prior to termination, thereby requiring Universal
Warranty to pay post-termination commissions on sales of the VehicleOne products authorized
under the 2003 V1 Rep. Agreement. Filing 80 at 19-20. National Financial responds that the letter
is merely a statement confirming the parties’ understanding that post-termination commissions
were allowed by the terms of the 2003 V1 Rep. Agreement. Filing 91 at 20-21. National Financial
further notes the author of the letter, a Universal Warranty sales director, believed the letter
confirmed that post-termination commissions were available “more broadly” under the 2003
Universal Warranty Rep. Agreement. Filing 91 at 22. However, the language of the letter clearly
states that it was written in reference only to the 2003 V1 Rep. Agreement and National Financial
does not dispute that fact. Filing 91 at 20. Accordingly, any effect the letter may have is limited to
the 2003 V1 Rep. Agreement, pursuant to its plain terms.
Ultimately, the Court need not decide whether the letter was adequate to amend the 2003
V1 Rep. Agreement because there is no dispute that Universal Warranty has, at least until the time
of National Financial’s deposition, paid National Financial all post-termination representative fees
on VehicleOne sales made by National Financial-solicited dealers. Filing 81-18 at 14. Because
Universal Warranty has paid and may still be paying any commissions due National Financial,
there can be no breach of any duty to pay such commissions. Accordingly, the Court will grant
summary judgment on National Financial’s claim for breach of the 2003 V1 Rep. Agreement.
2. 2003 Universal Warranty Rep. Agreement
Summary judgment is proper on National Financial’s claim for breach of the 2003
Universal Warranty Rep. Agreement because termination of the agreement ended Universal
Warranty’s grant of authority to National Financial to solicit and service any contracts on
Universal Warranty’s behalf. Nebraska case law on contractual interpretation is clear:

11

In interpreting a contract, a court must first determine, as a matter of law, whether
the contract is ambiguous. A contract is ambiguous when a word, phrase, or
provision in the contract has, or is susceptible of, at least two reasonable but
conflicting interpretations or meanings. When the terms of a contract are clear, a
court may not resort to rules of construction, and the terms are to be accorded their
plain and ordinary meaning as an ordinary or reasonable person would understand
them. The fact that the parties have suggested opposing meanings of a disputed
instrument does not necessarily compel the conclusion that the instrument is
ambiguous.
Gibbons Ranches, L.L.C. v. Bailey, 289 Neb. 949, 955–56, 857 N.W.2d 808, 813–14 (2015). Parol
evidence cannot be used to vary the terms of an unambiguous contract, and the Court must
determine the intention of the parties from the contract’s contents alone. Id. at 959, 857 N.W.2d at
816.
The parties do not dispute the validity of the contract but instead dispute the meaning and
intent of the contract’s provisions. National Financial urges the Court to find the 2003 Universal
Warranty Rep. Agreement ambiguous so the myriad extrinsic evidence it has provided becomes
relevant to show National Financial and several Universal Warranty managers believed the 2003
Universal Warranty Rep. Agreement authorized National Financial to service dealers and receive
post-termination commissions Filing 91 at 53-56.
The contract clearly provides that “[National Financial] has authority to solicit and service
the Program in Dealers as outlined herein.” Filing 81-5 at 1. “[National Financial] is not authorized
and is expressly forbidden to . . . process [sic] or exercise any authority on behalf of [Universal
Warranty] other than expressly stated in this Agreement.” Filing 81-5 at 1, § 2. Furthermore, “the
Representative Fee will be paid only in respect to those service contracts for which [Universal
Warranty] has received the Dealer Cost, and provided [National Financial] is currently servicing
such Dealer account on behalf of [Universal Warranty].” Filing 81-5 at 2-3, § 7(b) (emphasis

12

supplied). Either party could terminate the agreement without cause upon giving sixty days’ notice.
Filing 81-5 at 4, § 16(b). The Court finds no ambiguity in this language.
In Superior Services, Inc. v. Universal Warranty Corp., No. 8:15-CV-396; 8:15-CV-398,
2016 WL 2986253, at *6 (D. Neb. May 20, 2016), a different plaintiff but the same defendants
present in this case argued at the motion-to-dismiss stage over whether contracts similar to those
in the present case were ambiguous. The Court concluded in Superior Services that the contracts
at issue “as amended by the core addenda,” were ambiguous as to the requirement to pay posttermination commissions “at this stage in the proceedings.” Id. In National Financial’s response to
Defendants’ Motion for Summary Judgment, National Financial argues that Defendants ignore the
finding of Judge Bataillon in Superior Services that the “contractual documents are at least
ambiguous, if not inconsistent regarding Defendant’s obligation to pay post-termination
commissions.” Filing 91 at 8; Filing 91 at 53. The Court rejects National Financial’s contention
that Judge Bataillon’s decision in Superior Services is applicable or persuasive in the present case.
Judge Bataillon’s decision at the motion-to-dismiss stage is distinguishable for several
reasons. First, the 2003 Universal Warranty Rep. Agreement was not one of the contracts involved
in that case, and the 2003 Universal Warranty Rep. Agreement is not amended by the Core Rep.
Addendum. Filing 81-10 at 1 (stating the Core Rep. Addendum is “an amendment and supplement
to the VehicleOne Program Representative Agreement in effect as of March 24, 2010 and the
VehicleOne Primary GAP Program Representative Agreement in effect as of August 1, 2008” and
therefore not an amendment of the 2003 Universal Warranty Rep. Agreement); see also Filing 91
at 8, 53. The applicability of the Core Rep Addendum was one of the facts upon which Judge
Bataillon relied in finding the contracts ambiguous in Superior Services and thus a key
distinguishing factor between that case and the one at hand. 2016 WL 2986253, at *6. Further, this

13

Court is not obligated to follow Judge Bataillon’s conclusion in a different case between different
parties, even if the findings in the case were applicable in the present dispute. See Reid v. BCBSM,
Inc., 787 F.3d 892, 895 (8th Cir. 2015) (quoting Gould v. Bowyer, 11 F.3d 82, 84 (7th Cir. 1993)
(“A district court decision binds no judge in any other case, save to the extent that doctrines of
preclusion (not stare decisis) apply.”). Given the different procedural posture of the case and the
different contracts involved, the findings in Superior Services are neither conclusive nor binding
in this case.
The Court finds the terms of the 2003 Universal Warranty Rep. Agreement unambiguous
with regard to the issues raised by Defendants’ motion. No extrinsic evidence is necessary to
determine that contract’s meaning. The agreement granted National Financial authority to solicit
and service Universal Warranty products but also limited that authority in certain ways. Just as the
agreement granted National Financial authority to solicit and service Universal Warranty products,
its termination ended any authority National Financial had to solicit and service Universal
Warranty products. Once the agreement was terminated, effective July 1, 2015, National
Financial’s authority to service dealer accounts on behalf of Universal Warranty was likewise
terminated. As a result, National Financial could not service dealer accounts in accordance with
the terms of the contract, and Universal Warranty was not obligated to pay National Financial any
representative fees. Thus, the Court will grant summary judgment on National Financial’s claim
with respect to the 2003 Universal Warranty Rep. Agreement because Defendants did not breach
the contract.
3. 2008 V1 GAP Rep. Agreement

14

Summary judgment is also proper on National Financial’s claim for breach of the 2008 V1
GAP Rep. Agreement because termination of the agreement ended Universal Warranty’s grant of
authority to National Financial to solicit and service any contracts on Universal Warranty’s behalf.
As an initial matter, the Court again notes that the 2008 V1 GAP Rep. Agreement only
applies to sales of VehicleOne GAP contracts as indicated by its plain language and title:
“VehicleOne Primary GAP Representative Agreement.” Filing 81-8 at 1 (emphasis added). As
such, it does not apply to Ally Premier or any vehicle service contracts other than VehicleOne
GAP contracts.
Moving on to the issue of post-termination commissions, the Court finds the 2008 V1 GAP
Rep. Agreement language regarding National Financial’s post-termination authority to be identical
to that of the 2003 Universal Warranty Rep. Agreement. The 2008 V1 GAP Rep. Agreement
clearly provides that “[National Financial] has authority to solicit and service the Program in
Dealers as outlined herein.” Filing 81-8 at 1, § 4. “[National Financial] is not authorized and is
expressly forbidden to . . . process [sic] or exercise any authority on behalf of [Universal Warranty]
other than as expressly stated in this Agreement.” Filing 81-8 at 1, § 4(e). Furthermore, “the
Representative Fee will be paid only in respect to those debt waiver forms for which [Universal
Warranty] has received the Dealer Cost, and provided [National Financial] is currently servicing
such Dealer account on behalf of [Universal Warranty].” Filing 81-8 at 3, § 8(b) (emphasis
supplied). Either party could terminate the agreement without cause upon giving sixty days’ notice.
Filing 81-8 at 5, § 17(a). The Court finds no ambiguity in this language.
This language is nearly identical to that contained in the 2003 Universal Warranty Rep.
Agreement. See Filing 81-5. The agreement granted National Financial authority to solicit and
service VehicleOne GAP products but also limited that authority in certain ways. Just as the

15

agreement granted National Financial authority to solicit and service Universal Warranty products,
its termination ended any authority National Financial had to solicit and service Universal
Warranty products. Once the agreement was terminated, effective July 1, 2015, National
Financial’s authority to service dealer accounts on behalf of Universal Warranty was likewise
terminated. As a result, National Financial could not service dealer accounts in accordance with
the terms of the contract, and Universal Warranty was not obligated to pay National Financial any
representative fees. Thus, the Court will grant summary judgment on National Financial’s claim
with respect to the 2003 Universal Warranty Rep. Agreement because Defendants did not breach
the contract.
4. 2010 Universal Warranty Rep. Agreement4
Summary judgment is also proper on National Financial’s claim for breach of the 2010
Universal Warranty Rep. Agreement. The agreement specifically states, “[National Financial]
shall not be entitled to any Representative Fees on Program sales made by Dealers after the
effective date of termination of this Agreement, unless this provision is superseded by any
amendment to this Agreement.” Filing 81-9 at 4, § 16(g). Once Universal Warranty terminated
this agreement, effective July 1, 2015, National Financial’s entitlement to any representative fees
ended. Accordingly, the Court will grant summary judgment on National Financial’s claim for
breach of the 2010 Universal Warranty Rep. Agreement.
5. Core Rep. Addendum
Lastly, summary judgment is proper on National Financial’s claim for breach of the Core
Rep. Addendum because Universal Warranty did not breach this agreement. The Core Rep.

4

Both parties address whether the 2010 Universal Warranty Rep. Agreement superseded the 2003 Universal Warranty
Rep. Agreement and thereby precluded post-termination commission payments. See Filing 80 at 38-40; Filing 91 at
56-57. However, as discussed herein, the plain language of both contracts precludes post-termination commission
payments. Accordingly, the Court need not address this issue.

16

Addendum amends and supplements “the VehicleOne Program Representative Agreement in
effect as of March 24, 2010 and the VehicleOne Primary GAP Program Representative Agreement
in effect as of August 1, 2008.” Filing 81-10 at 1. The Core Rep. Addendum allowed National
Financial to share in the profits of its vehicle service contract sales in exchange for exclusively
offering VehicleOne products. Filing 81-10 at 1-1, §§ 1(a)(i), (b). The agreement does not discuss
or include Ally Premier sales. Further, this arrangement only applied to “Assigned Dealers,”
defined as any dealers originated by Universal Warranty and assigned to National Financial. Filing
81-10 at 1, § 1. Universal Warranty did not assign National Financial any dealers. Filing 81-18 at
16. Therefore, the provisions of the Core Rep. Addendum were inapplicable to National Financial
and Universal Warranty could not have breached the contract’s terms.
Additionally, the Core Rep. Addendum expressly states that it terminates immediately
upon termination of either of the underlying agreements. Filing 81-10 at 3, § 3(b). Regardless of
which agreements the Core Rep. Addendum amends and supplements, it suffers the same fate as
the underlying agreements in that none of the underlying contracts provide for post-termination
commissions. See supra Section IV(A)(1) (finding no breach of the 2003 V1 Rep. Agreement);
Section IV(A)(2) (finding no breach of the 2003 Universal Warranty Rep. Agreement); Section
IV(A)(3) (finding no breach of the 2008 V1 GAP Rep. Agreement). The Court will grant National
Financial summary judgment on this final breach of contract claim because (1) the contracts which
the Core Rep. Addendum amended were not breached due to either payment of post-termination
commissions or National Financial’s loss of authority to continue servicing dealers on Universal
Warranty’s behalf; and (2) Defendants did not breach the additional terms of the Core Rep.
Addendum.
B. Tortious Interference

17

National Financial also asserts a common-law claim for tortious interference based on
Defendants’ alleged interference with National Financial’s independent relationship with its
dealer–customers and “ability to continue servicing its dealer-customers after [termination of all
contracts].” Filing 1 at 20-21. National Financial extends its arguments to include tortious
interference both before any contracts terminated on July 1, 2015, and after termination. Filing 91
at 67-68.
To succeed on a claim for tortious interference with a business relationship
or expectancy, a plaintiff must prove (1) the existence of a valid business
relationship or expectancy, (2) knowledge by the interferer of the relationship or
expectancy, (3) an unjustified intentional act of interference on the part of the
interferer, (4) proof that the interference caused the harm sustained, and (5) damage
to the party whose relationship or expectancy was disrupted.
Steinhausen v. HomeServices of Neb., Inc., 289 Neb. 927, 944–45, 857 N.W.2d 816, 831 (2015).
“[A] party to a contract cannot tortiously interfere with that contract as a matter of law.”
Fastrich v. Cont’l Gen. Ins. Co., No. 8:16CV487, 2017 WL 3610535, at *7 (D. Neb. Aug. 21,
2017) (citing Huff v. Swartz, 258 Neb. 820, 827, 606 N.W.2d 461, 467–68 (2000)). But in the
insurance-industry context, “independent insurance agents . . . may have business relationships
with their clients that are independent of the client-policyholders’ contracts with an insurer, and
an insurer can tortiously interfere with such an independent relationship.” Id.
National Financial argues it has relationships with its dealer–customers independent of
soliciting them to sell Universal Warranty’s products because it marketed other non-Universal
Warranty products to dealers as well. Filing 91 at 67; Filing 92-30 at 8. National Financial claims
this is the case because it was not merely an agent of Universal Warranty, but it also sold other
vehicle service contracts and products to dealers. Filing 91 at 11-12. The facts National Financial
points toward in support of its motion all relate to the terms of the 2003 V1 Rep. Agreement, 2003

18

Universal Warranty Rep. Agreement, 2008 V1 GAP Rep. Agreement, and 2010 Universal
Warranty Rep. Agreement, and the Core Rep. Addendum or products discussed therein.
For example, National Financial notes Defendants began competing with National
Financial for dealership business prior to the contracts’ termination date. Filing 92-55 at 2; Filing
92-56 at 1; Filing 92-18 at 4; 92-20 at 3. “[A]n intentional, but justified, act of interference, such
as valid competition, cannot be the basis for a tortious interference claim.” The Lamar Co., LLC
v. City of Fremont, 278 Neb. 485, 498, 771 N.W.2d 894, 906 (2009)). However, use of “improper
means” to compete is not privileged. Id. at 278 Neb. at 497, 771 N.W.2d at 906. The 2003 V1 Rep.
Agreement, 2003 Universal Warranty Rep. Agreement, 2008 V1 GAP Rep. Agreement, and 2010
Universal Warranty Rep. Agreement each expressly state that Universal Warranty’s grant of
authority to National Financial to solicit and service the vehicle service and GAP contracts
addressed within was “non-exclusive.” Filing 81-2 at 1, § 1(a); Filing 81-5 at 1, § 1(a); Filing 818 at 1, § 3; Filing 81-9 at 1, § 1(a). In no way do these grants of non-exclusive authority prevent
Universal Warranty from developing new products, changing its product marketing, or otherwise
competing. Thus, Defendants’ actions were not improper but were rather a permissible form of
competition. Further, Defendants had contractual relationships with the dealers in question. Filing
91 at 13. National Financial’s claim for interference is based on contracts to which Defendants are
parties and with which they cannot, as a matter of law, tortiously interfere. See Fastrich, 2017 WL
3610535, at *7.
National Financial also points to Defendants’ act of trying to “cut National Financial out
of the equation” by encouraging a dealer to stop selling VehicleOne contracts. Filing 91 at 68.
However, National Financial’s relationship with this dealer related to VehicleOne contracts arises
from National Financial’s solicitation and service pursuant to contracts to which Defendants are

19

parties. Again, Defendants cannot tortiously interfere with such contracts as a matter of law.
Accordingly, National Financial’s claims of tortious interference fail.
C. Unjust Enrichment
National Financial next claims that Defendants were unjustly enriched by retaining
representative fees that “should be paid to [National Financial].” Filing 1 at 21. National Financial
is permitted to allege both breach of contract and unjust enrichment claims arising from the same
subject matter. See Bloedorn Lumber Co. of N. Platte v. Nielson, 300 Neb. 722, 729, 915 N.W.2d
786, 793 (2018) (citing Prof’l Recruiters, Inc. v. Oliver, 235 Neb. 508, 456 N.W.2d 103 (1990)).
When a plaintiff alleges both, as National Financial has done here, the Court must first address the
contract claim. Id. (citing City of Scottsbluff v. Waste Connections of Neb., Inc., 282 Neb. 848, 809
N.W.2d 725 (2011); Associated Wrecking & Salvage Co. v. Wiekhorst Bros. Excavating & Equip.
Co., 228 Neb. 764, 424 N.W.2d 343 (1988)).
As discussed above, express contracts govern the subject matter at issue in this case, and
Defendants have not breached those contracts. Both Defendants and National Financial
acknowledge that an express agreement precludes relief based on unjust enrichment. See Filing 80
at 51-52 (citing City of Scottsbluff, 282 Neb. at 860, 809 N.W.2d at 740; Washa v. Miller, 249 Neb.
941, 950, 546 N.W.2d 813, 818 (1996)); Filing 91 at 69 (citing Siebler Heating & Air Conditioning
v. Jenson, 212 Neb. 830, 833, 326 N.W.2d 182, 184 (1982)). As a result, the express contracts
“supersede” and “displace” National Financial’s unjust enrichment claim. Bloedorn Lumber Co.
of N. Platte, 300 Neb. at 729, 915 N.W.2d at 793. In light of a lack of disputed facts related to this
claim and Defendants’ entitlement to judgment as a matter of law, the Court will grant summary
judgment on National Financial’s unjust enrichment claim.
D. Breach of the Duty of Good Faith and Fair Dealing

20

National Financial next alleges Universal Warranty breached its implied duty of good faith
and fair dealing arising from the agreements between the parties. Filing 1 at 22-23. “The implied
covenant of good faith and fair dealing exists in every contract and requires that none of the parties
to the contract do anything which will injure the right of another party to receive the benefit of the
contract.” Spanish Oaks, Inc. v. Hy-Vee, Inc., 265 Neb. 133, 143, 655 N.W.2d 390, 400 (2003).
“A violation of the covenant of good faith and fair dealing occurs only when a party violates,
nullifies, or significantly impairs any benefit of the contract.” Id. “The scope of conduct prohibited
by the covenant of good faith is circumscribed by the purposes and express terms of the contract.
Id. “The implied covenant of good faith is read into contracts in order to protect the express
covenants or promises of the contract.” Id.
National Financial argues certain facts illustrate a question of fact as to whether Universal
Warranty breached its duty of good faith and fair dealing arising from the parties’ contracts. See
Filing 91 at 70-71. The Court will address each.
National Financial argues Universal Warranty competed with National Financial by
prodding dealers to sell Ally Premier in place of VehicleOne and by engaging in such competition
prior to termination of the parties’ contracts. Filing 92-55 at 2; Filing 92-56 at 1; Filing 92-18 at
4; Filing 92-20 at 3. Defendants even “[e]ncourag[ed] dealers to temporarily discontinue selling
Ally’s products so they could ‘cut National Financial out of the equation’ and stop paying National
Financial post-termination commissions.” Filing 92-48 at 2. However, the express terms of the
2003 V1 Rep. Agreement, 2003 Universal Warranty Rep. Agreement, 2008 V1 GAP Rep.
Agreement, and 2010 Universal Warranty Rep. Agreement (and, by effect, the 2013 Core Rep.
Addendum which amended several of these contracts but did not displace the terms relevant here)
each grant National Financial authority to solicit and service certain Universal Warranty products.

21

See, e.g., Filing 81-2 at 1-2, §§ 2, 5(a); Filing 81-8 at 1, §§ 3-4; Filing 81-5 at 1. Further, each
contract states that Universal Warranty’s grant of authority to National Financial to solicit and
service its vehicle service contracts and GAP contracts was “non-exclusive.” Filing 81-2 at 1, §
1(a); Filing 81-5 at 1, § 1(a); Filing 81-8 at 1, § 3; Filing 81-9 at 1, § 1(a). The express contract
terms do not require Universal Warranty to exclusively rely on National Financial. Instead, the
contract terms require Universal Warranty to offer products solicited by National Financial. In
short, the contracts in no way prohibit competition.5 Rather, the contracts allow National Financial
to solicit and service Universal Warranty products. Because the purposes and express terms of the
contracts do not prohibit competition, “the scope of conduct prohibited by the covenant of good
faith is circumscribed” accordingly. Spanish Oaks, Inc., 265 Neb. at 143, 655 N.W.2d at 400.
National Financial also argues Universal Warranty terminated the Core Rep. Addendum in
violation of its terms and before National Financial could qualify for the incentives allowed by the
contract. However, as previously discussed, the Core Rep. Addendum expressly terminated upon
termination of the underlying agreements. See Filing 81-10 at 3, § 3(b) (“This Core Addendum
shall terminate immediately and without notice in the event of . . . termination of either of the
Agreements.”). All of the underlying contracts allowed termination by either party without cause
upon provision of sixty-days’ notice. Filing 81-2 at 4, § 16; Filing 81-5 at 4, § 16(b); Filing 81-8
at 5, § 17. Thus, Universal Warranty did not terminate the Core Rep. Addendum in violation of its
terms. Further, Universal Warranty did not terminate the Core Rep. Addendum early or before any
contractually promised amount of time had passed because the underlying contracts allowed for
termination at any time.

5

Given the contract terms specifically allow for competition, then even if it were true that Defendants encouraged
dealers to temporarily discontinue selling any of Defendants’ products solicited by National Financial, that would in
no way violate the agreement because Defendants had no obligations to sell or prefer Plaintiffs’ products over other
available products.

22

Next, National Financial argues Universal Warranty’s refusal to pay post-termination
commissions on Ally Premier sales breached its duty of good faith and fair dealing. Filing 91 at
71. However, as discussed above, Universal Warranty has no contractual obligation to pay such
commissions based on the express terms of the contracts. National Financial also argues Universal
Warranty restricted its access to certain dealer information post-termination. Filing 91 at 71.
Again, as previously discussed, the plain language of the contracts granted National Financial
authority to solicit and service Universal Warranty products, but that authority to act on behalf of
Universal Warranty ended with the contracts. Therefore, National Financial’s access to dealer
information ended at the same time. Because no facts show Universal Warranty’s violation,
nullification, or impairment of any benefits granted by the express purposes and terms of the
contracts in question, Universal Warranty did not violate its duty of good faith and fair dealing
based on these facts.
Accordingly, summary judgment in Defendants’ favor is appropriate on National
Financial’s breach of good faith and fair dealing claim.
E. Fraudulent Concealment and Negligent Misrepresentation
National Financial, in its fifth and sixth causes of action, alleges Defendants fraudulently
concealed and negligently misrepresented numerous material facts related to Ally Premier. Filing
1 at 23-27. To prove fraudulent concealment or negligent misrepresentation, National Financial
must show (1) Defendants had a duty to disclose a material fact; (2) Defendants, with knowledge
of the material fact, concealed the fact; 6 (3) the material fact was not within National Financial’s

6

While in a fraudulent misrepresentation case the defendant becomes liable for breaching the general duty of good
faith or honesty, “in a case of negligent misrepresentation, the defendant need not know the statement is false. That
is, the defendant’s carelessness or negligence in ascertaining the statement’s truth will suffice for negligent
misrepresentation.” Lucky 7, L.L.C. v. THT Realty, L.L.C., 278 Neb. 997, 1002-03, 775 N.W.2d 671, 675 (2009). In
their respective briefs, both parties simultaneously discuss these two distinct claims due to the similarity between their

23

reasonably diligent attention, observation, and judgment; (4) Defendants concealed the fact; (5)
National Financial, reasonably relying on the fact or facts as National Financial believed them to
be as the result of the concealment, acted or withheld action; and (6) National Financial was
damaged by the its own action or inaction in response to the concealment. Knights of Columbus
Council 3152 v. KFS BD, Inc., 280 Neb. 904, 927, 791 N.W.2d 317, 334 (2010).
In support of their request for summary judgment, Defendants argue (1) National Financial
did not reasonably rely on any misrepresentations or concealments, (2) National Financial’s claims
cannot rest on unfulfilled promises or statements of future events, and (3) they do not owe National
Financial a duty of disclosure. The Court need not look beyond Defendants’ first argument.
In Defendants’ first argument, they contend National Financial’s reliance on any
statements regarding a long-term partnership or access to Ally Premier was unreasonable given
the numerous agreements between the parties which all contained sixty-day termination clauses,
and all described National Financial as an independent contractor. Filing 80 at 43-45. Defendants
rely, in part, on Baer Gallery, Inc. v. Citizen’s Scholarship Found. of Am., Inc., 450 F.3d 816, 820
(8th Cir. 2006), in which the court concluded that a contractual provision directly prohibiting the
sale of a full-size image precluded a claim of fraudulent concealment based on the defendant’s
statement implying it would sell a full-size image. In coming to its conclusion, the Baer court
relied on Houlihan v. Offerman & Co., 31 F.3d 692, 695 (8th Cir. 1994), in which the court applied
Minnesota case law when noting, “[r]eliance on implied misrepresentations is unjustifiable . . . if
a written contract provision explicitly states a fact completely contradictory to the claimed
misrepresentation.”

elements, with the exception of the defendant’s mental state. See Filing 80 at 42; Filing 91 at 58; (both citing Lucky
7, L.L.C., 278 Neb. at 1002, 775 N.W.2d at 675). Because the Defendants’ mental state is not at issue with respect to
these claims and because the claims otherwise share identical elements, the Court will also discuss both fraudulent
concealment and negligent misrepresentation in tandem.

24

Defendants also rely on several Nebraska cases which address the propriety of granting
summary judgment or dismissing fraud claims when the plaintiff did not exercise ordinary
prudence in relying on a false statement. See Lucky 7, L.L.C., 278 Neb. 997, 775 N.W.2d 671;
Schuelke v. Wilson, 250 Neb. 334, 549 N.W.2d 176 (1996). In Lucky 7, L.L.C., the court noted that
“[j]ustifiable reliance must be decided on a case-by-case basis” in light of the totality of the
circumstances, including factors such as “the nature of the transaction, the form and materiality of
the representation, the relationship of the parties, the respective intelligence, experience, age, and
mental and physical condition of the parties, and their respective knowledge and means of
knowledge.” Lucky 7, L.L.C., 278 Neb. at 1005, 775 N.W.2d at 677. The court considered, among
other things, that the plaintiff was a businessman with experience in the subject matter; the contract
contained limiting language; the explicit nature of the contractual provisions; and inspection and
price of the property in question. Id.
Here, National Financial and Defendants are both experienced and sophisticated parties.
Defendants and/or their agents made statements about incorporating National Financial into their
long-term plan, a long-term relationship, and National Financial, as a Core Agent, playing a key
role in growing Ally’s business. Filing 92-4; Filing 92-3 at 3. Defendants allegedly made numerous
statements of this tenor, though many such statements are disputed. See Filing 92-24 at 5; Filing
92-30 at 18, 24. However, the “means of knowledge” or contract language is undisputed: the
parties’ contracts were terminable at any time without cause. As a matter of law, the contracts do
not provide for post-termination commissions. National Financial had knowledge of these
contractual terms. See Ray Tucker & Sons, Inc. v. GTE Directories Sales Corp., 253 Neb. 458,
462, 571 N.W.2d 64, 68 (1997) (“A party is charged with knowledge of the contents of a writing
when he signs it . . . .”).

25

The parties had several contracts, none of which provided for a relationship in which
National Financial was more than an independent contractor with authority terminable without
cause by either party. The agreements contained integration clauses allowing modification only by
a written instrument signed by both parties. See Filing 81-9 at 4, § 18; Filing 81-2 at 4, § 18; Filing
81-5 at 4, § 18; Filing 81-8 at 5, § 19. In light of the contractual terms known to it, National
Financial cannot show reasonable reliance on Defendants’ subsequent statements, even assuming
such statements were made as alleged by Plaintiff. See Smidt v. Porter, 695 N.W.2d 9, 22–23 (Iowa
2005) (holding that an employee could not justifiably rely on an employer’s promise of long-term
employment when the employee was at-will pursuant to her negotiated employment contract).
Accordingly, summary judgment is proper on National Financial’s fraudulent-concealment and
negligent-misrepresentation claims.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted in full.
IT IS ORDERED:
1. Defendants’ Motion for Summary Judgment (Filing 79) is granted in full;
2. Defendants’ Motion in Limine (Filing 83) is denied as moot;
3. Plaintiff’s Complaint is dismissed in its entirety; and
4. A separate judgment will be entered.
Dated this 21st day of February, 2020.

BY THE COURT:

___________________________
Brian C. Buescher
United States District Judge
26