### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 2290

M.G. S KINNER AND A SSOCIATES I NSURANCE A GENCY

, I NC

. AND

W ESTERN C ONSOLIDATED P REMIUM P ROPERTIES

, I NC

., Plaintiffs

‐ Appellants

,

v.

N ORMAN

‐ S PENCER A GENCY

, I NC

., Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12

‐ cv

‐ 3481

— Robert W. Gettleman

, Judge

.

____________________

A RGUED J ANUARY 14, 2016

— D ECIDED J ANUARY 4, 2017

____________________

Before F LAUM and R IPPLE

, Circuit Judges

, and P ETERSON

,

District Judge

. 

P ETERSON

, District Judge

. This case arises out of a complex

insurance transaction that ended badly because the sup

‐ posed insurance turned out to be a complete fraud. Despite

 Of the Western District of Wisconsin, sitting by designation.2 No. 15

‐ 2290

the complexities of the broader transaction and the litigation

that it spawned, this appeal presents, essentially, a single

question: whether Norman

‐ Spencer Agency, Inc., an Ohio

insurance agency, owed a duty to M.G. Skinner and Associ

‐

ates Insurance Agency, Inc. and Western Consolidated Pre

‐

mium Properties, Inc., two entities that had engaged a chain

of sub

‐ brokers to procure insurance for a vast collection of

real property.

M.G. Skinner and Associates and Western Consolidated

Premium Properties, plaintiffs

‐ appellants here, contend that

defendant

‐ appellee Norman

‐ Spencer Agency was one of the

sub

‐ brokers in the chain, and thus it owed them a duty of

reasonable care in procuring the insurance, which Norman

‐ Spencer Agency breached by failing to point out obvious

signs that the ultimate provider of the insurance was dis

‐

honest. But according to Norman

‐ Spencer Agency, it was

never asked and it never agreed to procure insurance for

plaintiffs

‐ appellants, and thus it owed them no duty. The

district court agreed with Norman

‐ Spencer Agency, and in

separate orders, granted summary judgment in its favor,

against each plaintiff

‐ appellant. We agree with the district

court and affirm both orders.

I. Background

A. Factual background

Appellee Norman

‐ Spencer Agency, Inc., which we will

call Norman

‐ Spencer, is an Ohio

‐ based insurance agency. We

will leave Norman

‐ Spencer to the side for the moment and

begin the story with appellants.

Appellant Western Consolidated Premium Properties,

Inc. (WCPP), a California corporation, is a risk purchasingNo. 15

‐ 2290 3

group through which the owners or managers of commercial

property can purchase insurance. Appellant M.G. Skinner

and Associates Insurance Agency, Inc. (MGSA), also a Cali

‐

fornia corporation, is an insurance broker that acts as the

program administrator for WCPP. Michael Skinner is the

sole shareholder of both WCPP and MGSA. WCPP and its

affiliated broker MGSA represent more than 600 commercial

properties, including office buildings, shopping centers, and

residential complexes. The total insured value of these prop

‐

erties is nearly $3.5 billion.

In late 2011, MGSA sought renewal coverage for the

WCPP properties. MGSA contracted with MC Risk Services,

LLC (MC Risk), a Texas insurance broker specializing in hab

‐

itational and commercial real estate, to procure the renewal

insurance for WCPP. Jed Morash was co

‐ owner of MC Risk.

Insurance placements as large as this one commonly involve

sub

‐ brokers. In this case, MC Risk engaged National Condo

& Apartment Insurance Group LLC (NCAIG), an Ohio in

‐

surance broker. NCAIG’s sole member is Kenneth Littlejohn.

NCAIG had previous insurance

‐ placement experience with

Michael A. Ward and his company JRSO, LLC. By November

1, 2011, Littlejohn and Morash intended to place the WCPP

coverage with JRSO. The chain of brokers was thus com

‐ plete: from MGSA, to MC Risk, to NCAIG, and ultimately to

Ward and JRSO, who would provide the insurance.

Except that Ward and JRSO did not provide insurance.

As it turns out, Ward had created a fictitious insurance poli

‐

cy for WCPP that was not actually backed by a legitimate

insurer. Ward was convicted of wire fraud, sentenced to 10

years in prison, and ordered to pay more than $9 million in

restitution to various victims of his fraud, including WCPP.4 No. 15

‐ 2290

So that’s the main arc of the story. To fit Norman

‐ Spencer

in, we must backtrack and add some details.

One of the property groups in the WCPP program was

Myan Management Group, representing dozens of commer

‐

cial and multi

‐ unit residential properties in the southwest.

The Myan properties had a history of losses, and Morash (at

MC Risk) thought that cheaper coverage could be obtained

by splitting the Myan properties off from the main WCPP

group. So, with Littlejohn’s advice, MGSA and MC Risk

agreed to place Myan Management directly with JRSO for

insurance. The Myan Management coverage was bound ef

‐

fective October 1, 2011, the premium was invoiced on Octo

‐

ber 4, and paid on November 3. But this coverage was also

fictitious.

In previous deals in which NCAIG had worked with

Ward and JRSO, they had used Mulberry Insurance Services

as program administrator. But Mulberry’s work had been

unsatisfactory, so NCAIG’s Littlejohn recommended to Ward

that he replace Mulberry with Norman

‐ Spencer as program

administrator.

Ward, Littlejohn, and Norman

‐ Spencer’s president, Brian

Norman, met on November 11, 2011, to discuss Norman

‐ Spencer’s potential retention as the JRSO program adminis

‐

trator. Following that meeting, Norman drafted a document

titled “Memorandum of Understanding” that purported to

outline the agreement between Ward and Norman. Among

the terms of this agreement was that Norman

‐ Spencer would

issue a backlog of approximately 64 already

‐ bound policies

in exchange for $25,000, and that going forward, Norman

‐ Spencer would underwrite and issue policies for the JRSO

program. The memorandum of understanding was neverNo. 15

‐ 2290 5

signed, but Norman

‐ Spencer was paid the $25,000 and began

issuing the backlogged policies. The 64 backlogged policies

included Myan Management’s coverage, but not WCPP’s.

Norman pushed to be involved in more business with

Ward. But whatever the terms of Ward and Norman

‐ Spencer’s November 11, 2011, agreement, Ward did not al

‐

low Norman

‐ Spencer to be involved in the WCPP place

‐

ment. In December 2011, Norman and Littlejohn (for

NCAIG) discussed Norman

‐ Spencer accepting a reduced

commission to convince Ward to allow Norman

‐ Spencer into

the WCPP placement. But Ward never let Norman

‐ Spencer

into the deal. Littlejohn said this was because Ward thought

the margin would be “too thin” if Norman

‐ Spencer earned a

commission on the placement.

Along the way, Norman became aware of facts that

MGSA and WCPP contend should have been “red flags”

showing Ward’s lack of trustworthiness. In November 2011,

Norman discovered an order of conservation issued against

Ward and JRSO by the Circuit Court of Cook County that

Norman thought could cause concern about Ward’s ability to

bind coverage. Norman knew that Ward worked out of his

home following the order of conservation’s provision confis

‐ cating JRSO’s property. When Norman asked Ward for a

copy of Ward’s reinsurance agreement, Ward delayed for

over a month before producing a signed agreement, and

even then, that agreement had irregularities that might have

made it suspicious. But Norman

‐ Spencer did not inform

WCPP or MGSA about these problems.

In December 2011, MC Risk gave WCPP a quote for the

renewal coverage on JRSO letterhead, stating that Ward and

JRSO had obtained coverage for WCPP. WCPP accepted the6 No. 15

‐ 2290

quote and paid more than $1.3 million as an initial install

‐

ment of the premium. In the process, at least four insurance

proposals were prepared for the WCPP coverage under the

JRSO program. The various proposals were prepared on the

letterheads of MC Risk, NCAIG, North American Capacity

Insurance Company, and JRSO. None of the proposals or any

pricing information came through Norman

‐ Spencer. MC

Risk and NCAIG each received a commission from the pre

‐

mium; Norman

‐ Spencer did not.

After Ward’s fraud was discovered, the Myan Manage

‐

ment coverage was reincorporated into the WCPP place

‐

ment. MGSA and WCPP ultimately procured new insurance

that cost more than $2 million more than the original, fraud

‐

ulent insurance.

B. Procedural background

WCPP and MGSA filed a lawsuit in the United States

District Court for the Northern District of Illinois against MC

Risk, NCAIG, Norman

‐ Spencer, JRSO, and Ward. All claims

except those against Norman

‐ Spencer were resolved through

default or settlement. 1 WCPP and MGSA each brought

claims for negligence and breach of fiduciary duty against

Norman

‐ Spencer, alleging that Norman

‐ Spencer should

have alerted them to the “red flags” it had uncovered that

suggested that Ward and JRSO were untrustworthy.

1 MGSA and WCPP obtained entries of default against Ward and

JRSO for their failure to appear and defend. MGSA and WCPP reached a

settlement agreement with MC Risk and NCAIG in January 2014. MC

Risk and NCAIG assigned their respective cross

‐ claims for contribution

and indemnity against Norman

‐ Spencer to MGSA and WCPP.No. 15

‐ 2290 7

Norman

‐ Spencer moved for summary judgment twice,

first with regard to WCPP’s claims, and later with regard to

MGSA’s claims. The district court granted Norman

‐ Spencer’s

motion for summary judgment regarding WCPP’s claims on

February 25, 2015. The district court concluded that Nor

‐

man

‐ Spencer did not owe a duty to WCPP under the Illinois

Insurance Placement Liability Act (IIPLA), 735 ILCS 5/2–

2201, because neither WCPP nor any broker in the procure

‐

ment chain ever requested Norman

‐ Spencer’s assistance

with that placement. The court granted Norman

‐ Spencer

summary judgment on WCPP’s breach of fiduciary duty

claim for similar reasons, concluding that Norman

‐ Spencer

could not be liable under that theory because it did not par

‐ ticipate in the placement or receive any WCPP funds from

that placement.

The district court granted summary judgment in favor of

Norman

‐ Spencer on MGSA’s claims on May 13, 2015, con

‐ cluding in part that MGSA was not an “insured” on the My

‐

an Management policy for purposes of the IIPLA. The court

granted summary judgment in favor of Norman

‐ Spencer on

MGSA’s breach of fiduciary duty claim, concluding that be

‐

cause MGSA was not the “insured” on the Myan Manage

‐

ment policy and did not make any payment toward that pol

‐ icy, Norman

‐ Spencer could not have wrongly retained any

MGSA funds. 2

2 In both orders, the district court granted Norman

‐ Spencer sum

‐

mary judgment on MC Risk’s and NCAIG’s cross

‐ claims for contribution

and indemnity that had been assigned to appellants, because Norman

‐ Spencer was not liable on any of appellants’ direct claims.8 No. 15

‐ 2290

II. Discussion

A. Standard of review

We review the district court’s opinions granting sum

‐

mary judgment in favor of Norman

‐ Spencer de novo and

construe the facts in the light most favorable to WCPP and

MGSA as the non

‐ moving parties. Rahn v. Bd. of Trs. of N. Ill.

Univ.

, 803 F.3d 285, 287 (7th Cir. 2015). Summary judgment is

appropriate if there is no genuine dispute of material fact

and Norman

‐ Spencer is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a).

B. WCPP’s claims

1. Negligence

Under Illinois law, 3 an insurance broker has a duty to ex

‐

ercise ordinary care and skill in renewing, procuring, bind

‐ ing, or placing coverage requested by the insured or pro

‐ posed insured. See 735 ILCS 5/2–2201. This duty was an as

‐

pect of Illinois common law of negligence even before the

statute was enacted. AYH Holdings, Inc. v. Avreco, Inc.

, 357 Ill.

App. 3d 17, 40–41, 826 N.E.2d 1111, 1131–32 (2005).

There are three principles applicable to the duty of insur

‐

ance brokers that are significant here. First, if the broker is

authorized to engage sub

‐ brokers, then the duty extends

down the line to the sub

‐ brokers who are engaged to pro

‐

cure insurance. Id

. at 1126–27. Second, the duty can be

breached if a broker fails to disclose information about the

insurer that would be material to the insured’s decision to

place the insurance with that insurer. Id

. at 1132. And third,

3 Plaintiffs

‐ appellants brought their claims under Illinois law, and

Norman

‐ Spencer does not dispute that Illinois law governs their claims.No. 15

‐ 2290 9

the duty arises once the insured—or prospective insured—

requests specific insurance coverage. Skaperdas v. Country

Cas. Ins. Co.

, 2015 IL 117021, ¶ 37, 28 N.E.3d 747, 756 (“Under

section 2–2201(a), a duty to exercise ordinary care arises only

after coverage is ‘requested by the insured or proposed in

‐ sured.’”).

WCPP relies heavily on AYH Holdings

, because that case,

too, involved placement of a large, complex risk through a

chain of brokers and sub

‐ brokers. WCPP contends that, like

the negligent sub

‐ brokers in AYH Holdings

, Norman

‐ Spencer

was negligent in failing to inform WCPP about the red flags

Norman

‐ Spencer discovered while investigating Ward and

JRSO. WCPP argues that Norman

‐ Spencer had a duty to

WCPP under the IIPLA because NCAIG “directly requested

that Norman

‐ Spencer participate as a sub

‐ agent.” 4 Appel

‐

lants’ Brief, at 8. But this last point is a factual contention that

must be supported by evidence.

On appeal, WCPP contends that three pieces of evidence

supported this contention: (1) the unexecuted “Memoran

‐

dum of Understanding” created by Brian Norman memori

‐ alizing Norman

‐ Spencer’s role in Ward’s JRSO program, as

4 In the fact section of their brief

‐ in

‐ chief, appellants state that

NCAIG “directly requested that Norman

‐ Spencer participate as a sub

‐ agent.” Appellants’ Brief, at 8. Appellants’ cite for this proposition the

expert report of Scott Stein, Dist. Ct. Dkt. 199

‐ 17. But appellants do not

cite or rely on this report in the argument section of their brief. Our re

‐

view of the report shows that the specific page cited by appellants, id

. at

9, does not contain any suggestion that NCAIG directly requested Nor

‐

man

‐ Spencer’s involvement as a sub

‐ agent, nor does the document as a

whole explain when or how NCAIG requested Norman

‐ Spencer’s in

‐

volvement. And, of course, this is a factual proposition that would not

likely be within the personal knowledge of an expert.10 No. 15

‐ 2290

discussed at their November 11, 2011, meeting; (2) a Decem

‐

ber 2011 conversation between Norman and Littlejohn (of

NCAIG) discussing Norman

‐ Spencer accepting a reduced

commission for it to be involved in the WCPP insurance

placement; and (3) a January 17, 2012 email from Mark

Young of York Risk Services to Norman and Littlejohn re

‐ garding WCPP claims that identified Norman

‐ Spencer as the

“broker on this program.”

But none of this evidence creates a genuine dispute of

material fact about Norman

‐ Spencer’s involvement. We start

with the memorandum of understanding. Even if we ignore

the fact that the memorandum was not executed, the docu

‐

ment as written indicated only Ward’s desire to have Nor

‐

man

‐ Spencer involved in the WCPP placement. The docu

‐

ment does not support WCPP’s argument that NCAIG re

‐ quested Norman

‐ Spencer’s involvement. And WCPP does

not develop an argument that a request from Ward or JRSO

would trigger liability for Norman

‐ Spencer under § 2–

2201(a). Such an argument would be futile because Ward

and JRSO were the providers of the purported insurance;

they were not positioned to ask Norman

‐ Spencer to procure

insurance for WCPP. But all this is hypothetical, because the

undisputed facts show that Ward made it clear that Norman

‐ Spencer was not to be involved with the WCPP placement

because Ward did not want to cut Norman

‐ Spencer in on the

commissions.

The December 2011 conversation between Norman and

Littlejohn discussing Norman

‐ Spencer accepting a reduced

commission to be involved in the placement does not estab

‐

lish that there was any request from NCAIG either. At that

point, NCAIG was a part of the chain of insurance procurersNo. 15

‐ 2290 11

in the WCPP placement. But by November 1, NCAIG had

already agreed to place the WCPP renewal with JRSO. Lit

‐ tlejohn “suggested that he didn’t think it was fair” that

Norman

‐ Spencer was not involved in the placement, and

clearly, Norman

‐ Spencer would have liked to be involved in

the placement. Appellants call this discussion a “negotiation

with NCAIG for reduced commission rates for the WCPP

renewal,” Reply Brief, at 13 n.5, but that is a misleading

characterization, because there were no commissions for

Norman

‐ Spencer to reduce. To the extent that Norman

‐ Spencer ever “negotiated” for any commission on the WCPP

placement, that negotiation was with Ward, who rejected

Norman

‐ Spencer’s attempts to be involved.

Finally, the January 17, 2012 email from Mark Young

suggesting that Norman

‐ Spencer was the broker on the

WCPP placement was simply a mistake on Young’s part.

Young’s confusion about the scope of Norman

‐ Spencer’s in

‐

volvement in the various components of the JRSO program

does not create a dispute of material fact about Norman

‐ Spencer’s actual involvement. WCPP concedes that the mes

‐

sage from Young was inaccurate. And in any event, the mes

‐

sage does not support the specific argument WCPP makes

here: that NCAIG requested that Norman

‐ Spencer become a

sub

‐ agent in the chain of procuring agents.

The district court was correct: there is no evidence that

any broker in the procurement chain ever requested that

Norman

‐ Spencer serve as a sub

‐ broker to procure insurance

for WCPP. Norman

‐ Spencer had no duty to WCPP under

§ 2–2201(a).

WCPP poses an alternative argument: that Norman

‐ Spencer owed a duty not just under § 2–2201(a), but under12 No. 15

‐ 2290

more general “common law negligence principles.” Appel

‐

lants’ Brief, at 34 n.4. WCPP argues that “every person owes

a duty of ordinary care to all others to guard against injuries

which naturally flow as a reasonably probable and foreseea

‐

ble consequence of an act,” id

. at 25 (citing Skaperdas

, 2015 IL

117021, ¶ 25), and that “[a]n insurance producer also owes a

duty of care based on the negligence principle of affirmative

undertaking, which provides that a person who begins a

service for another must exercise reasonable care in perform

‐ ing the service to avoid injury to the beneficiary of the un

‐ dertaking,” id

. (citing Talbot v. Country Life Ins. Co.

, 8 Ill. App.

3d 1062, 1065, 291 N.E.2d 830, 832 (1973)).

WCPP’s alternative argument is neither well developed

nor persuasive. None of the cases that WCPP cites involve an

insurance agent or broker held to have undertaken a duty in

the absence of a request for specific coverage or the equiva

‐

lent of such a request. For example, in Talbot

, the insured

filled out an application and paid a premium for life insur

‐

ance. 291 N.E.2d at 831. But the agent failed to process the

application, and the beneficiary’s claim was denied. Id

. The

Illinois appellate court held that the agent had entered an

affirmative undertaking by taking the application and thus

had induced the insured’s reliance, and under those circum

‐

stances, the agent owed a duty to the applicant. Id

. at 832; see

also Bovan v. Am. Family Life Ins. Co.

, 386 Ill. App. 3d 933, 940,

897 N.E.2d 288, 294 (2008) (“If an insurance agent acts so as

to induce detrimental reliance by the proposed insured, the

agent thereby undertakes an individual duty not to betray

that reliance by his subsequent acts.”). Here, the evidence

shows that Norman

‐ Spencer wanted to get in on the WCPP

deal, but no one asked it to procure insurance for WCPP, and

it made no affirmative undertaking to do so.No. 15

‐ 2290 13

After the enactment of § 2–2201, Illinois courts consider

‐ ing negligence claims against insurance brokers have been

reluctant to expand the duties of brokers and agents beyond

those articulated in the statute. Generally, a duty to the in

‐

sured arises only after specific coverage is requested, and

courts have not considered negligence claims grounded in

more general negligence principles outside the scope of § 2–

2201(a)’s language. See Skaperdas

, 2015 IL 117021, ¶ 37; see also

Office Furnishings, Ltd. v. A.F. Crissie & Co., Ltd.

, 2015 IL App

(1st) 141724, ¶ 25, 44 N.E.3d 562, 568–69 (“Plaintiff, however,

is essentially arguing that by engaging in the aforemen

‐

tioned conduct, Werner created a duty, beyond the exercise

of ordinary care outlined in Skaperdas

, to verify the accuracy

of the information on the insurance application and to re

‐

view the application with defendants. [The Illinois Supreme

Court] made clear in Skaperdas that section 2–2201(a) of the

Code imposes on an insurance producer only a duty to exer

‐

cise ordinary care in renewing, procuring, binding, or plac

‐ ing the coverage specifically requested by the insured.”), pe

‐

tition for leave to appeal denied

, No. 120348 (Ill. Mar. 30, 2016);

Melrose Park Sundries, Inc. v. Carlini

, 399 Ill. App. 3d 915, 920,

927 N.E.2d 132, 136 (2010) (“To hold Carlini responsible for

insurance coverage beyond that requested by Melrose Park

would extend the duty of ordinary care beyond that express

‐ ly defined [in § 2–2201(a)] by the legislature.”).

We conclude that under Illinois law, and the facts of this

case, Norman

‐ Spencer had no duty to WCPP, and the district

court properly entered summary judgment in favor of Nor

‐

man

‐ Spencer on WCPP’s negligence claim.14 No. 15

‐ 2290

2. Breach of fiduciary duty

WCPP appears to have abandoned its breach of fiduciary

duty claim, because appellants briefed the fiduciary duty is

‐

sue only in the context of the Myan Management policy. Per

‐ functory and undeveloped arguments are waived, as are ar

‐

guments unsupported by legal authority. United States v.

Hook

, 471 F.3d 766, 775 (7th Cir. 2006). In any event, this

claim would fail for reasons similar to the negligence claim.

The district court granted Norman

‐ Spencer summary

judgment on WCPP’s breach of fiduciary duty claim, apply

‐ ing § 2–2201(b) of the IIPLA. That section narrowly defines

the scope of a breach of fiduciary duty claim, limiting such

claims to “conduct

... involv[ing] the wrongful retention or

misappropriation

... of any money that was received as

premiums, as a premium deposit, or as payment of a claim.”

The court concluded that Norman

‐ Spencer could not be

liable under this provision because it did not receive any

money from the WCPP placement or participate in that

placement. We agree. WCPP does not present any evidence

showing that Norman

‐ Spencer retained or misappropriated

any WCPP funds. Rather, it is undisputed that Norman

‐ Spencer did not receive a commission for the WCPP place

‐

ment.

C. MGSA’s claims

1. Negligence

MGSA also brought a negligence claim against Norman

‐ Spencer regarding the Myan Management policy. 5 Norman

‐

5 To the extent that MGSA brought a negligence claim based on the

WCPP policy, the district court concluded that its order dismissingNo. 15

‐ 2290 15

Spencer was involved in the Myan Management policy; it

was one of the 64 backlogged policies that Norman

‐ Spencer

issued as part of its administration agreement with Ward.

But the policy was bound before Norman

‐ Spencer got in

‐

volved, and Norman

‐ Spencer received a flat fee for perform

‐ ing certain administrative tasks on all the backlogged poli

‐

cies.

Norman

‐ Spencer’s limited role in the Myan Management

policy raises similar questions to those discussed above

about whether Norman

‐ Spencer owed a duty to the in

‐

sured—here, Myan Management. The district court opinion

suggests that MGSA’s claim failed for multiple reasons: be

‐

cause Myan Management itself did not request insurance

from Norman

‐ Spencer; because none of the brokers in the

procurement chain requested insurance from Norman

‐ Spencer; and because none of Norman

‐ Spencer’s actions

constituted “renewing, procuring, binding, or placing” the

Myan Management policy under § 2–2201(a).

But it is unnecessary for us to consider these possibilities

because there is a more obvious defect in this claim. Even if

Norman

‐ Spencer had a duty to the “insured” under § 2–

2201(a), MGSA could not sustain a claim regarding the Myan

Management policy because MGSA was not the insured on

that policy. This is clear from the face of the policy, which

lists “Myan Management Group” as the insured, not MGSA.

Dist. Ct. Dkt. 215

‐ 11.

WCPP’s claims applied to any claims MGSA might have brought regard

‐ ing the WCPP policy as well. We agree with that conclusion, and affirm

the district court’s ruling on those claims for the same reasons discussed

above regarding WCPP’s claims.16 No. 15

‐ 2290

MGSA does not explicitly address this issue in its brief

‐

in

‐ chief, which would be reason enough to consider any ob

‐ jection to that portion of the district court’s ruling waived.

See Hook

, 471 F.3d at 775. Even overlooking the potential

waiver, MGSA fails to show that it is entitled to a trial on this

claim.

In appellants’ reply brief, MGSA contends that it quali

‐

fied as an “insured” because it was acting in the same capac

‐ ity toward Myan Management as WCPP was acting toward

the properties in the WCPP program. But this is belied by

the face of the insurance documents: WCPP is listed as the

insured on the executed WCPP insurance proposal, 6 whereas

MGSA is not listed as the insured on the Myan Management

policy. MGSA goes on to say that it “was not acting simply

as the Myan Account’s broker; it was acting as an end user,

client representative, non

‐ site management entity, and pro

‐

gram administrator.” Reply Brief, at 16. But MGSA does not

explain how any of these other roles convert it into an “in

‐

sured” on Myan Management’s insurance contract for pur

‐

poses of a claim under § 2–2201(a). This undeveloped argu

‐

ment gives no reason to reverse the district court’s judgment

on this claim.

MGSA attempts to sidestep § 2–2201(a) entirely by argu

‐ ing that its negligence claims are based on “common law

negligence principles” in addition to § 2–2201(a), which we

take to be an argument that Norman

‐ Spencer owed MGSA a

duty even if MGSA is not actually the “insured” on the My

‐

an Management policy. MGSA argues that “every person

6 The parties agree on this point, but they do not point to the actual

WCPP insurance policy in the record.No. 15

‐ 2290 17

owes a duty of ordinary care to all others to guard against

injuries which naturally flow as a reasonably probable and

foreseeable consequence of an act.” Appellants’ Brief, at 25.

As we explained above, Illinois courts have not viewed the

duty of insurance brokers so expansively: § 2–2201(a) alone

defines the duty of ordinary care regarding the procurement

of insurance in Illinois. MGSA does not fall within that defi

‐

nition because it is not the insured, and appellants point us

to no case in which an insurance broker owed a duty to a

similarly situated non

‐ insured.

Finally, MGSA argues that because it absorbed the addi

‐

tional cost in obtaining replacement insurance rather than

passing those costs onto Myan Management, it “bore the

costs on behalf of another and, in equity, should receive re

‐

imbursement for the payment of such costs.” Reply Brief, at

17 (citing Remsen v. Midway Liquors, Inc.

, 30 Ill. App. 2d 132,

143–44, 174 N.E.2d 7 (1961) (discussing subrogation agree

‐

ment in car insurance policy)). This argument is waived,

both because MGSA did not raise it until its reply brief and

because MGSA does not explain why subrogation principles

should apply in this instance.

2. Breach of fiduciary duty

MGSA also brought a breach of fiduciary duty claim

against Norman

‐ Spencer for wrongfully retaining money it

received for issuing the Myan Management policy. MGSA

cannot bring a claim under § 2–2201(b) of the IIPLA because

Norman

‐ Spencer did not misappropriate MGSA’s funds. Be

‐

cause Myan Management was the insured on that policy,

Myan Management’s funds paid for the premium, not

MGSA’s—MGSA merely forwarded the premium payment

using Myan Management’s funds.18 No. 15

‐ 2290

D. MC Risk’s and NCAIG’s cross

‐ claims

MC Risk and NCAIG assigned their respective cross

‐

claims for contribution and indemnity against Norman

‐ Spencer to WCPP and MGSA. Because neither WCPP nor

MGSA can sustain direct claims against Norman

‐ Spencer,

the cross

‐ claims for contribution and indemnity also fail.

III. Conclusion

The judgment of the district court is AFFIRMED.