Opinion
No. 58550-9-I.
October 22, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-2-27304-8, Suzanne M. Barnett, J., entered June 30, 2006.
Affirmed by unpublished opinion per Coleman, J., concurred in by Baker and Agid, JJ.
The issues in this case are whether former Farmers insurance salesman Steve Pearson established any genuine issues of material fact in his claims for breach of contract, breach of the implied duty of good faith and fair dealing, and defamation. We affirm because Pearson's claims present no genuine issues of material fact.
FACTS
From 1989 until 2004, Pearson sold insurance policies for Farmers as an independent contractor pursuant to an Agent Appointment Agreement. The agreement stated that Pearson was an independent contractor.
Nothing contained herein is intended or shall be construed to create the relationship of employer and employee; rather, the Agent is an independent contractor for all purposes.
The time to be expended by the Agent is solely within the Agent's discretion, and the persons to be solicited and the area wherein solicitation shall be conducted is at the election of the Agent.
The Agent shall, as an independent contractor, exercise sole right to determine the time, place and manner in which the objectives of this Agreement are carried out, provided only that the Agent conform to normal good business practice, and to all State and Federal laws governing the conduct of the Companies and their Agents.
Clerk's Papers (CP) at 372. The agreement could not be modified absent a writing "signed by the Agent and an authorized representative of [Farmers]." CP at 372.
The agreement was terminable by either party on three months' written notice. It also provided that either party could, on thirty days' notice, terminate the agreement for breach by either party. Further, it could be terminated immediately, either by mutual consent or by Farmers for five stated reasons, including embezzlement and willful misrepresentation.
Farmers agents are grouped into districts. Each district has a district manager (DM), whose primary role is to recruit and train new agents, but also supports existing agents. Matt Lambert was Pearson's DM at all times relevant to this case. Farmers' districts are grouped into divisions. Each division is assisted by a division marketing manager (DMM) who reports to a state executive. During the period relevant to this case, Pearson's DMM until January 2003 was John Thompson, who was succeeded by John Henle, who was then succeeded by Burke Anderson in January 2004. Rick Shriver was the state executive at all relevant times.
By 2001, Farmers was concerned about Pearson's agency. Initially, Farmers' concern was based on Pearson's poor loss ratio on the policies he sold. In 2000, his loss ratio for auto policies was 178 percent. This meant that for every dollar Farmers earned in premiums from auto policies written by Pearson in 2000, it paid out $1.78 in claims and claim-related expenses. In that same year, Pearson's loss ratio for property policies was 111 percent. A poor loss ratio is often an indication of poor field underwriting practices by the agent. By the summer of 2001, Farmers was also concerned about Pearson's declining number of policies-in-force (PIF). When an agent has a declining PIF count, the agent is losing more policies than he or she is selling.
To help Pearson improve his agency, Farmers placed him on the Quality Business Management program. Marletta England, a portfolio underwriter, worked with him to develop better underwriting practices. She soon developed concerns.
When Farmers receives a request for property insurance (also known as fire insurance), an agent is required to inspect the property and confirm that it meets Farmers' eligibility criteria before binding coverage. Farmers relies on its agents to conduct underwriting inspections to ensure that it is not taking on an unacceptable level of risk. It often hires independent inspectors to confirm agents' underwriting.
In July 2001, Pearson bound coverage on a house in Port Orchard. He was required to take photos of the front and back of the properties so that a portfolio underwriter could audit his inspection. He sent England a photo of the front of the house, which looked acceptable, but did not send her a photo of the back of the house. England asked Pearson if he had inspected the back of the house, and he indicated that he had, that it looked fine, but that he did not take a photo because he ran out of film.
A subsequent independent inspection revealed that the house did not meet Farmers' eligibility criteria — the back of the house was strewn with trash, there was an above ground swimming pool that was not enclosed, and the second story deck had no railing. England discussed the issue with Pearson and told him to re-inspect the house. Pearson later told her that he had and that the problems were fixed.
In January 2002, England was in the Port Orchard area and decided to inspect the property herself. She discovered that the back was strewn with trash, the swimming pool was not enclosed, and the deck did not have a railing. England was upset at what she construed to be Pearson's misrepresentation. She notified Shriver, Lambert, and Thompson about her concerns, and Thompson called a meeting with Pearson at Farmers' offices on April 12, 2002.
Pearson, Thompson, England, and Lambert attended the meeting. While Pearson's apparent misrepresentation regarding the inspection of the Port Orchard home was the primary issue addressed at the meeting, several other concerns were also raised such as rate class administration, loss ratio, and premium collection issues.
Thompson addressed what appeared to be Pearson's improper rate classification of auto policies, including his own. Auto policies are assigned a rate class based on the use of the vehicle and a policy's premium depends, in part, on rate class. Farmers has a low-premium "pleasure use" rate class for vehicles that are driven less than 5,000 miles annually and are not used for business purposes.
Pearson's agency had a disproportionately high number of policies rated as pleasure use and all three vehicles in Pearson's own household were rated as pleasure use. This indicated to Farmers that Pearson was misclassifying the policies he was writing in order to get lower premiums for himself and his clients.
Thompson also addressed Pearson's loss ratio. The profitability of Pearson's agency was a concern because in 2001, his loss ratio for property policies was 190.6 percent. And as mentioned above, his loss ratio for auto and property policies was over 100 percent in 2000.
Finally, Thompson raised a concern that Pearson had reinstated auto policies that were out of force without first collecting earned premiums. Earned premium is the money that is due on a policy for insurance that has already been consumed by the insured. If an agent wants to reinstate a policy that is out of force for nonpayment of premiums, the agent is first required to collect all earned premiums due on the policy as well as 50 percent of the new premiums. According to Pearson's declaration,
[Thompson] said that my practices for collecting premiums were "like stealing." He never gave me the opportunity to explain that I had received approval to reinstate the policies, and that I had been told numerous times that it was a good business decision to apply the earned premiums to future payments.
CP at 557.
At a meeting four days later, Lambert met with Pearson to discuss Pearson's options. Pearson described this meeting in his declaration.
[Lambert] said, "We've decided on termination and the reason will be embezzlement." He tried to force me to sign a letter of resignation. He said I was facing imminent termination and that I should just resign. . . .
. . . .
. . . Confused about the entire situation I asked Mr. Lambert why Farmers considered what I did was embezzlement. He said it occurred when I did not collect the full amount earned when I reinstated policies of long-standing members who had not paid earned premiums, but instead were going to pay over time. I again tried to explain that I had received approval, but it was to no avail.
CP at 557-58. Pearson refused to resign.
Shortly after this meeting, Shriver informed Pearson that Farmers was not terminating his agreement. On June 16, Thompson sent Pearson a letter stating his "serious concerns with your overall business operations, including underwriting procedures and standards, fiduciary concerns, and your understanding of requirements concerning policy issuance and reinstatement," and Pearson's profitability. CP at 261. Pearson was advised that "future violations of underwriting guidelines, or any breach of your duties and responsibilities under your Agent Appointment Agreement, may result in termination of your Agreement." CP at 261. Pearson was also placed on the Referral Agent Program where England continued to monitor his underwriting.
While on the Referral Agent Program, concerns with Pearson's profitability, production, and business retention continued. In 2002, his performance ranked second from the bottom in Lambert's district, only ahead of an agent who was nearing retirement and winding down her agency. In January 2003, England prepared an underwriting summary of Pearson's agency for his new DMM, Henle, in which she noted that Pearson's auto and fire policies were unprofitable four out of five years and that there was a recurring problem with rate class administration. DM Lambert informed Henle that Pearson's average monthly sales count in 2002 was 30, but the district average was 94. Further, Pearson was losing many existing policies. In December 2001, Pearson had a PIF count of 594, but a year later it had declines to 549. Finally, 56 percent of the auto policies that Pearson was writing were rate class 7s and 9s, which Lambert noted was an unusually high number of low-premium policies. Lambert requested that Henle place Pearson on the Deteriorating Agency Rehabilitation Program ("DARG" or "Guidelines").
Farmers developed DARG as a way to assist struggling agents in improving their business results. DARG is an internal Farmers resource for DMMs and DMs to use when dealing with an agent with a deteriorating agency. The Guidelines identify examples of unacceptable business results, including decline in PIFs, persistent low production, unfavorable underwriting trends or poor loss ratios, fiduciary problems, and inability to grow agency PIF to minimum company expectations. They suggest steps for DMs to follow in identifying, counseling, monitoring, and documenting the progress of agents Farmers is attempting to rehabilitate. The Guidelines are not a contract, nor are they referenced or incorporated into agency appointment agreements. Pearson did not see a copy of the Guidelines until after his agreement was terminated. When placing an agent on DARG, Farmers retains the option of terminating the agent's appointment agreement.
Henle placed Pearson on DARG effective June 1, 2003, because of the steady decline in PIFs, unfavorable underwriting trends and poor loss ratio, low life insurance "issued and paid" totals, and persistent low production. Pearson was advised that he would have to meet certain minimum expectations while on the program, including production of at least 100 total sales count for each of the next three months, issuance and payment of one life policy per month, and growth of his book of business by five policies per month. He was warned that failure to meet the minimum requirements "may be grounds for termination" of his agreement. Pearson was also advised that he would need to continue his participation in the Quality Business Management Program, implement a program to manage customer contacts, and make use of technology provided by Farmers, including the agency dashboard (an online resource tool). Pearson was also encouraged to submit a business plan.
The next month, Pearson had a 24 sales count, no life insurance policies issued and paid, and no policies input using available technology. In October 2003, after concluding that Pearson had not demonstrated sufficient improvement on DARG, Henle asked Shriver for permission to terminate Pearson's agreement. Shriver in turn requested permission from Bernard Schulz in Farmers' home office. Schulz recognized "the obviously unacceptable business results of the Pearson agency," but denied the request and explained, "The denial of authority to terminate is being issued to correct the DMM's misapplication of the DARG." CP 396. In his declaration, Schulz further explained this decision.
It was clear to me that Mr. Pearson's agency was producing unacceptable business results. I was concerned, however, that it appeared that Mr. Pearson's Division Marketing Manager, John Henle, had placed production requirements on Mr. Pearson in connection with DARG. Farmers does not set production requirements on its agents. I therefore denied Mr. Shriver's request to terminate Mr. Pearson's agency.
CP at 365. In November 2003, Farmers officially continued Pearson on DARG for 90 days.
Despite the extension, Pearson failed to demonstrate satisfactory improvement of his business results. For example, he lost three policies more than he sold in November 2003 and five policies more than he sold in December 2003. In 2003, his PIF count decreased by 50 policies, while the district as a whole gained 598 policies. By the end of 2003, Pearson had less than 500 policies in force, which was a low number for a 15-year agent.
In February 2004, Henle submitted to Shriver a second request for permission to terminate Pearson's agreement, which Shriver submitted to the home office. The home office approved the termination request. In late March, Farmers notified Pearson by letter that the agreement was being terminated effective June 30, 2004, in accordance with its three months' written notice provision. Pearson had a contractual right to a review of his termination, and he requested a hearing. The termination review board unanimously recommended to the home office that the termination be upheld.
Pearson sued Farmers for defamation, intentional and negligent infliction of emotional distress, and wrongful discharge. He voluntarily dismissed his wrongful discharge claim with prejudice and filed an amended complaint alleging defamation, breach of contract, and breach of the implied duty of good faith and fair dealing. Farmers moved for summary judgment on all claims. After hearing oral argument, the trial court granted Farmers' motion. Pearson appeals.
Analysis Breach of Contract
Pearson argues that the trial court should not have granted summary judgment because there was evidence that Farmers breached the agreement by imposing quotas and other requirements under DARG in June, July, and August 2003. He further argues that he suffered damages because he lost "time, attention, and money . . . trying to satisfy or cope with the extra-contractual demands" of DARG. Br. of Appellant at 15. We reject these arguments.
A grant of summary judgment is reviewed de novo. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). The reviewing court may affirm the trial court's grant of summary judgment if it is supported by any ground in the record, whether or not the trial court relied upon that ground. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989). Summary judgment is appropriately granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). When reasonable minds could reach but one conclusion, questions of fact may be determined as a matter of law. Michelsen v. Boeing Co., 63 Wn. App. 917, 920, 826 P.2d 214 (1991).
The agreement did not prohibit the identification of minimum acceptable business results. The agreement stated that Pearson was an independent contractor who had the sole right to determine the "time, place and manner in which the objectives of this Agreement are carried out," provided only that when carrying out these objectives, he "conform[ed] to normal good business practice" and complied with state and federal law. CP at 372. Nothing in the agreement prohibited Farmers from identifying minimum sales and growth expectations, or marketing, planning, and administrative expectations. These were consistent with Pearson's obligation to carry out the objectives of the agreement that required Pearson to "sell insurance." CP at 369.
Pearson argues that Farmers breached the agreement because the Guidelines stated that it was not Farmers' practice to assign sales quotas or goals or to require agents to provide written plans. See Deteriorating Agency Rehabilitation Guidelines, CP at 376 ("Agents who represent Farmers accept with pride their status as independent businesspersons. In keeping with our contractual relationship, agents are not assigned sales quotas or sales goals, nor are they required to provide written plans and objectives for the development of the agency."). Pearson's agreement, however, was not modified by the Guidelines, which are an internal resource for DMMs and DMs. Any modification to the agreement had to be in writing and signed by Pearson and a Farmers representative. In fact, Pearson admits that he never saw the Guidelines until after his agreement was terminated.
The agreement stated that Pearson was an independent contractor, and the brief imposition of sales quotas and marketing requirements did not breach this portion of the agreement. The test for independent contractor status is a complex one, involving many factors, but a crucial element is "the extent of control which, by the agreement, the master may exercise over the details of the work." Hollingbery v. Dunn, 68 Wn.2d 75, 80, 411 P.2d 431 (1966). See also Kelsey Lane Homeowners Ass'n v. Kelsey Lane Co., 125 Wn. App 227, 236-37, 103 P.3d 1256 (2005) (relevant distinction between agent and independent contractor is whether the principal has the right to control the method or manner in which the work is done, as opposed to the result of the work). Farmers had the right under the agreement to take steps to help Pearson rehabilitate his deteriorating agency. Whether those steps are characterized as extra-contractual demands, quotas, requirements, or expectations is irrelevant — they did not change the independent contractor aspect of the agreement because Pearson still had discretion over when, where, and how he would sell insurance policies. See Adcock v. Chrysler Corp., 166 F.3d 1290, 1293 (9th Cir. 1999) (upholding summary judgment that agreement requiring car dealer to use its "'best efforts to promote energetically and sell aggressively and effectively,'" created an independent contractor relationship between car dealer and manufacturer despite manufacturer's setting of minimum sales, financial, and marketing requirements); and United States EEOC v. Catholic Knights Ins. Soc'y Co., 915 F. Supp. 25 (N.D. Ill. 1996) (sales quotas did not render insurance agents employees).
Pearson also failed to establish damages. He submitted no evidence in support of his allegation that he lost "time, attention, and money" as a result of Farmer's alleged breach. See, e.g., Estate of Jones v. State, 107 Wn. App. 510, 517, 15 P.3d 180 (2000) (when defendant moves for summary judgment, burden is on plaintiff to establish specific and material facts that would support a prima facie case on each element of the claim); Plaisted v. Tangen, 72 Wn.2d 259, 263, 432 P.2d 647 (1967) (plaintiff "may not rest upon mere allegations" to avoid a summary judgment); Wilkerson v. Wegner, 58 Wn. App. 404, 409-10, 793 P.2d 983 (1990) (speculation regarding damages does not support a cause of action for breach of contract). Moreover, any time, attention, or money Pearson spent while placed in DARG would only have inured to his benefit because DARG was designed to improve his business.
The next issue is whether the trial court properly granted summary judgment on Pearson's claim for breach of implied duty of good faith and fair dealing. Pearson argues: (1) that Farmers acted with personal vindictiveness towards him and set out to destroy his business; and (2) that the agreement's three-month notice termination provision should be "interpreted in harmony" with its provision allowing for a termination review board hearing, thereby imposing a requirement of good faith or good cause for termination of the agreement. Br. of Appellant at 17. We are not required to consider these arguments because Pearson presents them for the first time on appeal. Furthermore, they lack merit.
"The appellate court may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a). With regard to summary judgment specifically, RAP 9.12 provides that "[o]n review of an order granting or denying a motion for summary judgment the appellate court will consider only evidence and issues called to the attention of the trial court." "Arguments or theories not presented to the trial court will generally not be considered on appeal." Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 290, 840 P.2d 860 (1992).
Pearson argued to the trial court that Farmers breached its implied duty by requiring him to meet quotas and by implementing DARG without his knowledge. In his response to Farmers' motion for summary judgment, he expressly denied that his claim was premised on his termination.
Mr. Pearson is not alleging that a breach of good faith and fair dealing in regards to his termination. Mr. Pearson is basing the breach of his duty on Farmers' failure to adhere to the terms of the contract, which allows the agent to "exercise sole right to determine the time, place and manner in which the objectives of this Agreement are carried out." See Exhibit H pg, 4 J. Whether Farmers breached the duty of good faith and fair dealing when it required Mr. Pearson to meet quotas and be subject to DARG requirements, as opposed to Mr. Pearson's termination, is an issue of material fact in dispute that a jury should decide.
CP at 544. Pearson also conceded to the trial court that Farmers had the right to terminate the agreement without cause.
The court: But you acknowledge, do you not, that they had the right to terminate on three months' notice without cause[?]
Mr. Rojas: Yes, of course. They had the right. They had the right to terminate in three months without cause.
VRP 19-20 (June 29, 2006). Pearson never argued below that Farmers breached its implied duty by acting with personal vindictiveness or by terminating the agreement without cause.
Even if we were to consider Pearson's new arguments on appeal, they are without merit. Pearson's only evidence of "personal vindictiveness" is that DM Lambert "reacted angrily" when he learned that Pearson had faxed a letter to Shriver and that Thompson, England and Lerese Simensen (a specialist in Farmers' Washington State Office) assembled "negative information" about him. Br. of Appellant at 16. Notably, Pearson does not argue that any of the negative information was false. Pearson has not shown that any of those actions interfered with his efforts to sell insurance policies or provide service to the policyholders. "[T]here cannot be a breach of the duty of good faith when a party simply stands on its rights to require performance of a contract according to its terms." Badgett v. Sec. State Bank, 116 Wn.2d 563, 570, 807 P.2d 356 (1991).
We reject Pearson's contention that the agreement contains an implicit "good cause for termination" requirement. The agreement's termination provision, paragraph C, is unambiguous and contains no "good cause" requirement when either party chooses to terminate the agreement on three months' written notice. The termination review procedures in paragraph D of the agreement do not change that result.
When reviewing similar contracts, other courts have held that the mere inclusion of a termination review process does not create a good cause requirement. See, e.g., Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 779 (9th Cir. 2003) (termination review provision did not add a "good cause" requirement to the at-will termination provision, and "Agents cannot graft a good cause requirement onto the Termination Provision using the implied covenant of good faith and fair dealing"); Olander v.; State Farm Mut. Auto. Ins. Co., 317 F.3d 807 (8th Cir. 2003) (an agency agreement's termination review procedures did not render the terminable-at-will agreement terminable only for cause). The only case Pearson cites holding otherwise is Wallis v. Farmers Group, Inc., 220 Cal. App. 3d 718, 269 Cal. Rptr. 299 (1990), and that case has been criticized by California courts. See, e.g., Dore v. Arnold Worldwide, Inc., 39 Cal. 4th 384, 46 Cal. Rptr. 3d 668 (2006) (California Supreme Court disapproving of Wallis to the extent it is inconsistent with its holding that a similar contract contained no good cause requirement); Bionghi v. Metro. Water Dist., 70 Cal. App. 4th 1358, 1368-69, 83 Cal. Rptr. 2d 388 (1999) (" Wallis is contrary to the holding of Pacific Gas Electric[, 69 Cal.2d 33, 69 Cal. Rptr 561 (1968)]. A good cause limit on the right to terminate is a significant contract term. In our view, a contract which provides that it may be terminated on specified notice cannot reasonably be interpreted to require good cause as well as notice for termination, unless extrinsic evidence establishes that the parties used the words in some special sense. Instead, such a contract allows termination with or without good cause.").
The final issue is whether the trial court properly granted summary judgment in favor of Farmers on Pearson's defamation claim. Pearson contends that Farmers defamed him in a May 20, 2003 letter written to him by Lambert, which stated, in part,
The particular aspects of your Agency, which are indicative of unsuccessful development, are:
. . . .
Fiduciary controls : Several previous issues regarding premium collection when implementing policy changes and new insurance coverage.
CP at 523. Pearson claims that DMM Henle and State Executive Shriver read this letter and that it was included in his agent file, which was sent to Farmers' state office and home office. He argues that a jury could find that this statement republished accusations of embezzling and stealing that his managers allegedly made in the April 2002 meetings. We affirm the trial court's order dismissing Pearson's defamation claim.
To state an actionable claim of defamation, a plaintiff must show (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages. Bender v. City of Seattle, 99 Wn.2d 582, 599, 664 P.2d 492 (1983). To defeat a motion for summary judgment, a plaintiff must make a prima facie showing as to all four elements. Mohr v. Grant, 153 Wn.2d 812, 827, 108 P.3d 768 (2005).
Nothing in Lambert's letter refers to or republishes accusations of embezzlement or stealing. Even if it did, the letter was protected by the "common interest" qualified privilege. This privilege permits the publication of otherwise defamatory matter between people sharing a common interest in the subject matter of the communication, such as a legitimate business interest. Ward v. Painters' Local Union, 41 Wn.2d 859, 865, 252 P.2d 253 (1953); Moe v. Wise, 97 Wn. App. 950, 957, 989 P.2d 1148 (1999). The recipients of the letter, Pearson, Henle (Pearson's DMM), and Shriver (Farmers' State Executive) were all affiliated with Farmers and shared a common interest in the performance of Pearson's agency. See, e.g., Ward, 41 Wn.2d at 865-66 (statements by members of union discussing officers and members were privileged); Messerly v. Asamera Minerals, (U.S.) Inc., 55 Wn. App. 811, 817, 780 P.2d 1327 (1989) (statements by employer that former employees were terminated for using marijuana were privileged because employer and its employees had a common interest in workplace safety and the employer reasonably believed that the former employees had used marijuana).
Pearson argues that the common interest qualified privilege does not defeat his defamation claim because Lambert abused the privilege. To establish a prima facie case of abuse of the common interest privilege, Pearson was required to come forward with evidence from which a jury could conclude, under the clear and convincing standard, that Lambert knew his statement was false or acted with reckless disregard to its truth of falsity. Moe, 97 Wn. App. at 962-64. Pearson made no such showing and, in fact, admits that Lambert did not investigate and did not "confirm or refute" his claim of service center approval. Br. of Appellant at 20. "Failure to investigate is not sufficient to prove recklessness." Herron v. KING Broadcasting Co., 112 Wn.2d 762, 777, 776 P.2d 98 (1989); accord, Parry v. George H. Brown Assocs., Inc., 46 Wn. App. 193, 196-98, 730 P.2d 95 (1986). Pearson therefore failed to establish a prima facie case of abuse of the qualified privilege, and Pearson's defamation claim fails as a matter of law.
Pearson also failed to show that he was damaged by the letter because he did not demonstrate that the two lines altered the "sting" of the letter as a whole. When a communication contains a mixture of true and false statements, as part of the requisite showing of damages, a defamation plaintiff must show that the falsehood affects the "sting'" of the communication. See Herron, 112 Wn.2d at 769 (analyzing the "sting" of a communication as part of proving falsity). "The 'sting' of a report is defined as the gist or substance of a report when considered as a whole." Herron, 112 Wn.2d at 769. A false statement affects the "sting" of a communication only when "'significantly greater opprobrium'" results from the communication containing the falsehood than would result from the communication without the falsehood. Herron, 112 Wn.2d at 769.
Even assuming that the two lines contained false statements, they represented only one concern among many that Lambert had about Pearson's agency, such as his low production, declining PIFs, high auto loss ratio, low sales of life insurance, lack of knowledge regarding technical and underwriting issues, and lack of a policyholder contact program. The substance of the letter was that there were many deficiencies in Pearson's agency — deficiencies that Pearson does not deny (aside from the premium collection issue). Pearson failed to show that the two lines resulted in damage that is distinct from that caused by the true negative statements contained in the letter.
For the foregoing reasons, we affirm.