United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2430

___________ Jerry J. Kerr, * * Plaintiff - Appellant, * * v. * * Federal Emergency Management * Appeal from the United States Agency, * District Court for the * Western District of Missouri Defendants, * * Bellmon Adjustors, Inc., * * Defendants - Appellees. *

___________ Submitted: December 12, 1996 Filed: May 15, 1997

___________ Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

___________ FLOYD R. GIBSON, Circuit Judge. Appell ant Jerry J. Kerr insured his property against flood loss through th e Federal Emergency Management Agency ("FEMA"). On May 7, 1993, Kerr' s property, located in Be lton, Missouri, suffered flood damage. Kerr notified FEMA of the los s, and FEMA assigned Bellmon Adjustors, Inc. ("Bellmon") to adjust Kerr' s claim. When FEMA denied Kerr's claim, Kerr sued Bellmon under a negligence theoryKerr also br ought a breach of contract claim against FEMA, which the district 1 court dismissed. Kerr initially appeale d that decision but has since dropped his appeal against FEMA. Neither of the parties has contested jurisdiction over the remainin g claim again st Bellmon. We note, however, that it was properly within the distric t court's discretion to retain jurisdiction over Kerr's negligence claim against Bellmon. See28 U.S.C. § 1367(c)(3) (1994); Pioneer Hi-Bred Int'l v. Holde n Found. Seeds, Inc. , 35 F.3d 1226, 1242 (8th Cir. 1994). The HONORABLE DEAN WHIPPLE, United States District Judge for th e 2 Western District of Missouri. -2- and assert ed that Bellmon undertook an independent duty to sufficiently adjust Kerr's claim and subsequently breached that duty when it failed to provide FEMA with th e information necessary to process his claim. The dis trict court dismissed Kerr's cause 1 2 of action against Bellmon. Kerr appeals, and we affirm.

I. BACKGROUND

B e fore expounding upon the facts of this case, we must determine whether we are reviewing the grant of a motion to dismiss or for summary judgment. In its Order dismissing the case, the distr ict court stated that because it considered matters beyond the pleadings, it evaluated Bellm on's motion as one for summary judgment as required by Fe d. R. Civ. P. 12(c). However, the court concluded its Order by stating it would grant Be llmon's motion to dismiss and therefore deny as moot Bellmon's motion fo r
su mmary judgment. Kerr contends that the district court's inconsistency resulted i n error. Admittedly, the district court's inconsistent posture on t he nature of the dismissal created a so mewhat confusing Order. However, if the district court failed to vie w Bellmon's motion as one for summary judgment as required by Rule 12(c), any error in doing so was harmless. See Gibb v. Scott , 958 F.2d 814, 816 (8th Cir. 1992) ("A failure of this type is harmless if the nonmoving party had an adequate opportunity to respond to the motion and material facts were neither disputed nor missing from th e record."). Because the district court considered matters beyond the pleadings, we-3-

revi ew the case under the summary judgment standard, see id. , and accordingly view the facts in the light most favorable to Kerr. See Buck v. FDIC , 75 F.3d 1285, 1289 (8th Cir. 1996).

On May 7, 1993, a flood caused damage to Kerr's Belton property. Ker r prompt ly notified FEMA, and FEMA assigned Bellmon to adjust the claim. On May 23, 1993, Jim Nemecheck, a Bellmon agent, toured Kerr's property to ob serve the flood damage. Neme check advised Kerr to sign a blank proof of loss form. He informe d Kerr tha t he would complete the form and file it with FEMA on Kerr's behalf. At the time of Nemec heck's visit, Kerr had not completed a list of lost or damaged property, but on May 2 8, 1993, Kerr mailed a list of such property to Nemecheck. Throug h repeated letters and phone calls, Kerr attempted to fo llow-up on Nemecheck's progress in adv ancing his claim. Nemecheck did not respond to Kerr's attempte d correspondenc e. Around September 1, 1993, FEMA sent Kerr a letter informing him that it was attempting to process claims as quickly as possible.

The FEMA dwelling policy Kerr was insured under required the following : "Within 60 days after the loss, send us a proof of loss, which is yo ur statement as to the amount you are claiming under the policy and signed sworn to by you ." Bellmon App. at 27 (emphasis added). The policy further provides:

The insurance adjuster whom we hire to investigate your claim ma y furnish you with a proof of loss form, and she or he may help you t o complete it. However, this is a matter of courtesy o nly, and you must still send us a proof of loss within 60 days after the loss even if the adjuster does not furnish the form or help you complete it.

Id. (emphasi s added). On November 3, 1993, FEMA denied Kerr's claim stating that "[t]he a djuster's investigation revealed that he was unable to confirm the damage s related to the flood." J.A. at 98. FEMA asserted that Kerr had violated several-4-

provisions of his insurance policy and had not filed the information required to process his claim within the sixty-day time period.

In his Comp laint, Kerr alleged that Bellmon breached its duty to him when i t failedto accurately investigate his claim. The district court determined that Bellmon did not owe an independent tort d uty to Kerr and therefore could not be held liable for
an y economic loss suffered by Kerr. Because we agree that Bellmon did not owe a duty to Kerr, we affirm the district court's decision.

II. DISCUSSION
We review a gra

nt of summary judgment de novo

. See Buck , 75 F.3d at 1289. We will uphold a district court's gr ant of summary judgment when the facts, viewed in the light mo st favorable to the nonmoving party, see id. , establish "that there is n o genuine issue as to any material fact and that the mov ing party is entitled to a judgment as a matter of law," Firs t S. Ins. Co. v. Jim Lynch Enter., Inc. , 932 F.2d 717, 718 (8th Cir. 1991)(quotation omitted).

In his Co mplaint Kerr alleged that "Bellmon negligently failed in its duty t o [Kerr ] to accurately investigate and determine if [Kerr's] loss was covered by th e policy." J.A. at 5. To establish a claim of general negligence under Missouri law, Kerr is requir ed to show that (1) Bellmon owed a duty to Kerr; (2) Bellmon breached it s duty to Kerr b y act or omission; and (3) as a result of the breach, Kerr suffered injury or damage

. See American Mortgage Inv. Co. v. Hardin-Stockton Corp. , 671 S.W.2d 283, 292-93 (Mo. Ct. App. 1984). Kerr agrees with the general rule of Missouri law that an insurer's agent is not liable for econ omic loss suffered by an insured when the agent fails to perform a duty owed to the insurer. See State ex rel. Ranni Assocs., Inc. v. Hartenbach , 742 S.W.2d 134, 139-40 (Mo. 1987). However, Kerr asserts that Bellmon's conduct falls within anKer r

also contends that Bellmon's conduct "arguably constitute s 3 misrepresentation, an additional independent tort." Kerr's Br. at 16. Not only has Kerr raised this argument for the first time on appeal, but he has also neglected to support this allegati on with any specific law or facts from the record. Therefore, we consider the ar gument waived and need not address it on appeal. See Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp. , 986 F.2d 1208, 1212 (8th Cir. 1993). -5- ex ception to this rule because an agent is liable to the insured "if he commits [an act] whichwould constitute an independent tort." Id. at 139. Kerr contends that a contractual duty arose between him and Bellmon when Nemecheck agreed to complete Kerr's proof of loss form and file it with FEMA. Kerr claims that because Bellmo n breached the duty to perform the alleged agreement with "skill, care, and reasonable expedi ence and faithfulness," American Mortgage , 671 S.W.2d at 293, Bellmon ha s committed

an independent tort against Kerr for which it should be held liable. Kerr 3

asser ts that the following facts establish that Bellmon undertook a separate duty t o Kerr:

1. A May 18, 1993, letter from FEMA advised Kerr that Bel lmon was

his a ssigned adjuster and " may help [him] present [his] claim. " J.A. at 71 (emphasis added).
2. Neme check

represented to Kerr that he would file the require d inf ormationwith FEMA as soon as Kerr provided it. As of Ma y 28, 1993, Kerr had provided Ne mecheck with a proof of loss form itemizing his damage and other information regarding his loss.
3. FEMA sent Kerr a subsequent form letter around September 1 , 1993, which stated that "[f]or those of you who are awaitin g finaliz ation of your claim by the assigned adjuster, we hav e re quested all adjusters to do whatever is necessary to properl y conclude the losses." J.A. at 72.
4. AFEMA representative advised Kerr that he could only obtain a proof of loss form from an adjuster, only adjusters were authorized-6-

to file pr oof of loss forms with FEMA, and that FEMA did not strictl y enforce the requirement tha t an insured file his claim within sixty days of the loss.

At the outset, we note that Kerr claims the letter received from FEMA o n September 1 caused him to believe that Bellmon wo uld complete his claim. He further contends that the FEMA representative induced him to rely on Bel lmon to file his claim because she informed him that this was the proper and only acceptable procedure. We seriously doubt, howev er, that FEMA's representations could create an "independent" tort duty on the part of Bellmon. Rather, these representations relate only to Bellmon's expected performance as FEMA's agent.
Even if FEMA's representations could have created an "independent" duty , Kerr's re liance on the representations was not reasonable. Kerr admits that hi s
conver sation with the FEMA representative did not occur until the summer of 1995

. J.A. at 144, 147. Because Kerr received the letter from FEMA and conversed with the FEMA representative well after the sixty-day filing deadline had pass ed, Kerr could not have reasonably relied upon this information in failing to submit his c laim. Furthermore, Kerr's insurance policy stated:

The insurance adjuster whom we hire to investigate your claim ma y furnish you with a proof of loss form, and she or he may help you t o complete it. However, this is a matter of courtesy o nly, and you must still send us a proof of loss within 60 days after the loss even if the adjuster does not furnish the form or help you complete it.

Bell mon App. at 27 (emphasis added). Therefore, FEMA advised Kerr that he wa s ultimate ly responsible for completing and filing the required information. Whe n Nemecheck failed to respond to Kerr's letters and phone calls , Kerr should have known not to further rely on Nemecheck to file his claim.-7-

Throu ghout

his course of dealings with Kerr, Nemecheck conducted onl y activities w hich related to his duty as FEMA's adjuster. Because Kerr has no t estab lishedthat Bellmon undertook a separate duty to Kerr, he cannot claim that a n indepen dent

tort arose which would cause Bellmon to be liable for Kerr's economi c harm. See Ranni , 742 S.W.2d at 139. Any cause of action Kerr has with regard t o Bellmon 's alleged negligence must be brought against FEMA, as Bellmon's principal. See4 Lee R . Russ and Thomas F. Segalla, Couch on Insurance § 48:63, at 48-93 (3d ed. 1995).

III. CONCLUSION

Because the district cou rt correctly concluded that Bellmon did not undertake a separate duty to Kerr and

therefore could not have committed an independent tort, we affirm the district court's grant of summary judgment.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT