IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60001

GEORGE MEARS, 

 Plaintiff - Appellant

v.

LANCE FAGAN JONES; MISSISSIPPI FARM BUREAU CASUALTY 

INSURANCE COMPANY, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:17-CV-6

Before STEWART, Chief Judge, KING and OWEN, Circuit Judges.

PER CURIAM:*

George Mears appeals the district court’s grant of summary judgment in 

favor of Lance Fagan Jones and Mississippi Farm Bureau Casualty Insurance 

Company on his negligence, negligent misrepresentation, and failure-to-train 

claims, as well as his claims for vicarious liability. He also appeals the district 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 6, 2018

Lyle W. Cayce

Clerk

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court’s refusal to award punitive damages. We AFFIRM IN PART and 

REVERSE and REMAND IN PART.

I.

A.

This dispute results from a suspected case of arson by a third party and 

the insurance claim that followed. In May 2015, George Mears contacted 

insurance agent Lance Fagan Jones seeking builders risk and home owners 

insurance for a home he intended to build in Long Beach, Mississippi. During 

their first conversation, Mears indicated to Jones that he wished to obtain 

$400,000 in coverage. In June 2015, Jones provided Mears with a nonbinding 

quote from Lexington Insurance Company for that amount. 

About a year after they initially made contact, Mears contacted Jones 

and told him that he was ready to begin construction and wanted to finalize 

his insurance policy. Jones thereafter sought out quotes from Lloyd’s of London 

and the Mississippi Residential Property Insurance Underwriting Association 

(“MRPIUA”), the state’s insurance agency. Altogether and including the prior 

Lexington quote, Jones sought quotes from three agencies. 

The parties dispute what happened next. According to Mears, Jones 

informed him that his only insurance option was the MRPIUA policy, which 

had a maximum limit of $200,000.1 Mears wrote in an affidavit that Jones 

stated that “no other insurer would write coverage for properties on the beach 

and that the maximum amount of coverage that could be obtained under any 

circumstances was $200,000.” At his deposition, Mears testified that Jones told 

him that Lexington would no longer provide the earlier-quoted insurance 

 

1 Mears denies any awareness of the Lloyd’s quote, and maintains that any such quote 

would be “meaningless” because it only provided $200,000 of coverage and did not provide 

wind coverage. 

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because it “was not going to write the policy based on upon the [house’s] 

location . . . on the beach.” 

Contrary to Mears’s account, Jones avers that he provided all three 

quotes to Mears at this time, including the Lexington quote for $400,000. Jones 

claims that he gave Mears the opportunity to choose the higher Lexington 

quote but Mears refused and instead opted for the MRPIUA policy. 

In October 2016, Mears’s under-construction house burned to the ground 

as the result of a suspected arson attack. After the fire, MRPIUA paid out the 

policy limit of $200,000. Mears claims that the fire caused damages far in 

excess of the $200,000 policy. According to Mears’s complaint, Mears 

subsequently discovered that there were other available insurance policies 

that would have covered the entire value of his house. 

B.

Also of relevance to this appeal is Jones’s relationship to appellee 

Mississippi Farm Bureau Casualty Insurance Company (“Farm Bureau”). 

Jones and Farm Bureau entered into an “agent contract” in 2007, which 

governs their relationship. The contract appoints Jones “to act as a licensed 

sales representative for [Farm Bureau],” but it specifies that he is “an 

independent contractor.” It clarifies that Jones is “responsible and answerable 

for any breaches hereto or acts of negligence” caused by him or anyone working 

on his behalf and gives him the freedom to control his “daily activities and the 

means by which the provisions of [the agent contract] are carried out.” The 

contract allows Jones to represent and sell insurance from other insurance 

companies but only after receiving prior written consent from Farm Bureau. It 

also requires Jones to follow the guidelines and instructions contained in Farm 

Bureau’s rate books, manuals, and underwriting guidelines, “provided, 

however, that such guideline, manuals, or instructions shall not interfere with 

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[Jones’s] status as an independent contractor.” Jones has not worked for any 

insurance company other than Farm Bureau. 

Jones operates out of two offices, both of which bear a Farm Bureau sign 

on the front of the building. Jones’s email signature states “MS Farm Bureau 

Insurance.” Jones is also featured on the “Mississippi Farm Bureau” website 

as an “agent.”2 The record is not precisely clear as to the relationship between 

Mississippi Farm Bureau and Mississippi Farm Bureau Casualty Insurance 

Company, but it is evident that the two are not one and the same. There is no 

indication in the record that Jones has his own website or advertises separately 

from Mississippi Farm Bureau. 

C.

On January 9, 2017, Mears brought the instant action against Jones and 

Farm Bureau in federal district court under the court’s diversity jurisdiction. 

Mears alleged that Jones was negligent in advising him on what insurance he 

could and should purchase and in finding insurance for him. He also alleged 

that Jones was liable for negligent misrepresentation for telling him that only 

the MRPIUA policy was available. Mears sought to hold Farm Bureau liable 

for both claims on a theory of vicarious liability. He also alleged that Farm 

Bureau was directly liable for its failure to train and supervise Jones. Mears 

sought compensatory and punitive damages.

The district court granted Jones and Farm Bureau’s motion for summary 

judgment as to all of Mears’s claims in two separate orders. On Mears’s 

negligence claim against Jones, the court found that there was no Mississippi 

caselaw imposing a duty on an insurance agent to advise an insured as to the 

 

2 Jones and Farm Bureau correctly point out that this website is the website for 

Harrison County Farm Bureau (an organization, they submit, that has no direct connection 

to Mississippi Farm Bureau Casualty Insurance Company). But both Harrison County Farm 

Bureau and appellee Mississippi Farm Bureau Casualty Insurance Company host their 

websites on the same domain: “Mississippi Farm Bureau Insurance” (i.e., www.msfbins.com).

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availability of other coverage options. On Mears’s negligent misrepresentation 

claim, the district court determined that Jones’s statement that other 

insurance options were not available was a statement of an opinion as to future 

events and not a statement of present fact, as is required under Mississippi 

law for a negligent misrepresentation claim. 

The district court also refused to hold Farm Bureau vicariously liable. It 

first determined that the doctrine of apparent authority was not applicable;

the court concluded it was not reasonable for Mears to rely on the existence of 

an agency relationship between Jones and Farm Bureau because Jones’s 

alleged representations concerned non-Farm Bureau insurance products. It 

also refused to find that Farm Bureau was liable on a theory of respondeat 

superior as the employer of Jones because Jones’s agent contract designated 

him as an independent contractor. The district court also found that Farm 

Bureau was not directly liable for failing to train or supervise Jones because 

Mears failed to establish “that Farm Bureau had a duty to train Jones on a 

product that was not its own.” Finally, the court found that punitive damages 

were not appropriate as to either defendant. Mears appeals each of these 

orders. 

II.

A.

We review the district court’s grant of summary judgment de novo, 

applying the same standard as the district court. Kubow v. Hartford Cas. Ins. 

Co., 475 F.3d 672, 674-75 (5th Cir. 2007). Summary judgment is warranted 

when “there is no genuine issue as to any material fact and . . . the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Our role at this 

stage is not to weigh the evidence or make credibility determinations. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Instead, this court 

must view the evidence in the light most favorable to the nonmovant and draw 

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all legitimate inferences in his favor. Id. At summary judgment, the central 

question is whether a reasonable jury could return a verdict for the nonmovant. 

Id. at 248.

In diversity cases, we apply state substantive law. Erie R.R. Co. v. 

Tompkins, 304 U.S. 64, 78 (1938). In doing so, we look to the decisions of the 

highest court in the state. Keen v. Miller Envtl. Grp., Inc., 702 F.3d 239, 243-

44 (5th Cir. 2012). In the absence of an on-point decision from the highest court 

in the state, we make an “Erie guess” as to how the court would decide the case, 

considering relevant precedent from the state’s highest court and decisions 

from the its intermediate appellate courts. Id. The parties do not dispute that 

the applicable law in this case is the law of Mississippi. 

B.

Mears first challenges the district court’s grant of summary judgment as 

to his negligence claim against Jones. Although Mears’s initial complaint 

alleged several potential acts of negligence on the part of Jones, Mears focuses 

his appeal on Jones’s failure to advise him as to other available insurance 

options. Mears argues that Mississippi law imposed on Jones a “duty to advise 

[him] of available insurance.” According to Mears, Jones breached this duty by 

advising him that no other insurer would insure his house past $200,000 

because it was on a beach, when in fact other insurers would do so. 

Under Mississippi law, a negligence claim consists of “duty, breach, 

causation, and harm.” Funches v. Progressive Tractor & Implement Co., 905 

F.3d 846, 851 (5th Cir. 2018). As to duty, the Mississippi Supreme Court has 

held that “[a]n insurance agent must use that degree of diligence and care with 

reference thereto which a reasonably prudent [person] would exercise in the 

transaction of his own business.” Mladineo v. Schmidt, 52 So. 3d 1154, 1162 

(Miss. 2010) (second alteration in original). 

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The district court rejected Mears’s negligence claim, finding that he had 

failed to make a sufficient showing as to the first element. In doing so, the court 

noted that it was aware of “no case law holding that Jones had a duty to advise 

Plaintiff as to the availability of other coverage options that could be available 

on the market.” The district court also distinguished this case from Mladineo, 

where the Mississippi Supreme Court found an insurance agent had breached 

his duty to the plaintiffs when he incorrectly represented to the plaintiffs that 

they did not need flood insurance because their house was not on a flood plain. 

Id. at 1157, 1163-64. The district court found the facts before it were materially 

dissimilar because Jones did not advise Mears as to what his coverage needs 

were. Instead, “[b]oth Jones and Plaintiff were aware that Plaintiff’s coverage 

needs exceeded the $200,000 policy. Nevertheless, Plaintiff requested and 

received the $200,000 policy.” 

The district court reads Mladineo too narrowly. As the district court 

recognized, Mladineo held that while insurance agents lack “an affirmative 

duty to advise buyers regarding their coverage needs,” when they “do offer 

advice to insureds, they have a reasonable duty to exercise care in doing so.” 

Id. at 1163. We note at the outset that a fair reading of this capacious language

regarding the duty to advise would include giving advice as to what coverage 

options exist. Appearing to anticipate this issue, Jones and Farm Bureau argue 

that Jones did not offer “advice” by making the alleged statement but rather 

merely “opined that only MRPIUA would insure his property.”3 However, this

statement had the consequence of leading Mears to purchase the MRPIUA 

policy.4 This brings Jones’s statement within the holding of Mladineo. Jones 

 

3 For reasons that will become clear in our discussion of Mears’s misrepresentation 

claim below, Jones and Farm Bureau choose the word “opine” deliberately. 

4 For illustration, consider the following hypothetical: if person A asks person B when 

she should drive to work in the morning, and person B tells person A that the roads are 

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therefore had a duty to exercise reasonable care in offering advice to Mears as 

to what insurance was available and (by implication) what insurance he should 

purchase.

Jones and Farm Bureau also contend that, even if this court finds that 

Mears had adequately demonstrated the existence of a duty, the breach of such 

duty did not proximately cause Mears’s damages under the duty-to-read and 

imputed-knowledge doctrines. Under these conjoined doctrines, “an insured is 

charged with the knowledge of the terms of the policy upon which he or she 

relies for protection.” Mladineo, 52 So. 3d at 1161. Where reading the policy 

would have revealed the claimed inadequacy of coverage, the Mississippi 

Supreme Court has found that proximate cause is lacking as a matter of law. 

Id. at 1164. Here, Jones and Farm Bureau claim that, assuming Jones actually 

made the representations alleged, his remarks directly contradicted the earlier 

Lexington quote for $400,000. This argument lacks merit for two reasons. 

First, the above language from Mladineo concerns the “policy upon which he 

or she relies for protection,” id. at 1161, not nonbinding quotes such as the one 

from Lexington. Second, Mears testified that he understood the Lexington 

quote to no longer be valid at the time he accepted the MRPIUA policy because 

Jones had told him that Lexington “was not going to write the policy based on 

upon the location . . . on the beach.” Therefore, because the alleged 

misrepresentation is not of the type “that would have been disclosed by reading 

the policy,” id. at 1162-63, the duty-to-read and implied-knowledge doctrines 

are inapplicable. 

Because the district court erred in determining that Mears failed to 

make a sufficient showing as to duty, we reverse and remand to the district 

 

usually closed from 8 to 9 a.m., person B is impliedly advising person A to depart for work 

outside of this timeframe.

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court to consider the remainder of Mears’s claim that Jones was negligent in 

advising him that only the MRPIUA policy was available. 

C.

Mears also argues that Jones is liable for negligent misrepresentation 

for his alleged statement that only MRPIUA would insure the property. A 

cause of action for negligent misrepresentation under Mississippi law consists 

of the following elements:

(1) a misrepresentation or omission of a fact; (2) that the 

representation or omission is material or significant; (3) that the 

person charged with the negligence failed to exercise that degree 

of diligence and expertise the public is entitled to expect of such 

persons; (4) that they reasonably relied upon the [defendant’s]

misrepresentation or omission; (5) that they suffered damages as 

a direct and proximate result of such reasonable reliance.

Spragins v. Sunburst Bank, 605 So. 2d 777, 780 (Miss. 1992) (quoting Bank of 

Shaw v. Posey, 573 So. 2d 1355, 1360 (Miss. 1990)). “The first element of 

negligent misrepresentation, misrepresentation [or omission] of a fact, must 

concern a fact rather than an opinion.” Id. Additionally, it must “concern a past 

or present fact as contrasted with a promise of future conduct.” Id. The district 

court found Jones’s statement to Mears to be an inactionable opinion because 

it “speculates as to what unnamed third parties might do in unspecified 

circumstances.” 

We disagree. By his own admission, Jones had looked for insurance from 

other companies before Mears accepted the MRPIUA policy. This demonstrates 

that Jones’s alleged remarks were not speculative but rather the result of his 

experience interacting with the three insurance companies. 

Once again anticipating this issue, Jones and Farm Bureau advance a 

more robust view of what constitutes an opinion. According to them, this court 

should only consider Jones’s remark a statement of fact if he had made it after 

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“exhaust[ing] each and every possible insurance option.” Jones and Farm 

Bureau would have us hold that an insurance agent must survey the entire 

universe of insurance options before his assessment of the available coverage 

options could be deemed anything other than an opinion. This cannot be the 

standard. While this court need not determine the precise line between fact 

and opinion, we can definitively say that the standard does not require the 

speaker’s certainty that the statement made is true. If this were the case, the 

very cause of action for negligent misrepresentation would disappear; if the 

existence of a factual statement required certainty or near certainty as to its 

truth or falsehood, then only intentional misrepresentations could be 

actionable.

The district court also erred when it found that Jones’s alleged statement 

was inactionable because it dealt with future activity. This conclusion is based 

on a misreading of Spragins. In Spragins, the Mississippi Supreme Court 

found inactionable a bank’s promise to buy plaintiff’s property at a foreclosure 

sale because it did not “concern a past or present fact as contrasted with a 

promise of future conduct.” 605 So. 3d at 781. But neither Spragins nor the 

cases it cites in support of this statement go so far as to hold that all statements 

as to future conduct are inactionable; rather, only promises made by the 

defendant as to his own future conduct fall within this rule. See Spragins, 605 

So. 2d at 780 (citing Bank of Shaw, 573 So. 2d at 1360 (“[E]ven if [defendant] 

had made the representation, it was a promise of future conduct and not a 

statement of fact sufficient to constitute the kind of representation which 

would support a claim of negligent misrepresentation.”)). The cases cited by 

the Spragins court, which formed the basis for that court’s adoption of the 

future-conduct rule, also confirm this understanding. See Murray v. Xerox 

Corp., 811 F.2d 118, 123 (2d Cir. 1987) (“Murray also claims that [defendants] 

were negligent in promising promotions and job transfers. These negligent 

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misrepresentation claims, however, all suffer from a common defect. Promises 

of future conduct are not actionable as negligent misrepresentations.”); 

Margrove Inc. v. Lincoln First Bank of Rochester, 54 A.D.2d 1105, 1106 (N.Y. 

App. Div. 1976) (“The mere failure of defendant to abide by its commitment 

cannot be made the basis of an action in tort for misrepresentation. The alleged 

negligent misstatements all relate to promised future conduct, if 

misstatements they be, and there is a lack of any element of misrepresentation 

as to an existing material fact so as to come within the doctrine of negligent 

misrepresentation as previously enunciated in the courts.”). The 

representations here, on the other hand, did not concern a promise by Jones to 

perform some future act.

Moreover, even under the district court’s understanding of Spragins, 

Mears’s claim for negligent misrepresentation remains viable. For the reasons 

stated above, Jones’s alleged statement concerned the availability of insurance 

as it existed at the time he made the statement, not as it would be in the future. 

Accordingly, the future-conduct rule from Spragins does not bar Mears’s 

negligent misrepresentation claim.

Jones and Farm Bureau also argue that even if Jones’s statement was 

an opinion, we should still affirm summary judgment because Mears did not 

reasonably rely on Jones’s statement. They contend that Mears’s reliance was 

unreasonable because (1) he only knew that Jones attempted to procure 

insurance from Lexington and MRPIUA and (2) he had already received the 

quote for $400,000 from Lexington. Neither contention has merit. As to Jones 

and Farm Bureau’s first point, the existence of only two quotes does not of its 

own weight render Mears’s reliance so unreasonable as to preclude the issue 

from going to a jury. A rational jury might conclude that it was reasonable for 

Mears to expect that Jones had extrapolated from even this small sample size 

that the desired coverage was not available. On Jones and Farm Bureau’s

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second point, as discussed above, Mears testified that Jones told him that the 

Lexington quote was no longer valid at the time Jones made the alleged 

statements. Accordingly, that quote cannot render Mears’s reliance 

unreasonable. 

Since the district court erred in finding that Mears failed to demonstrate 

the first element of a negligent misrepresentation claim, we reverse and 

remand to the district court to consider that claim under the framework 

articulated in this opinion. 

D.

Mears also appeals the district court’s grant of summary judgment on 

the issue of punitive damages against Jones. Under Mississippi law, “[i]n order 

to warrant the recovery of punitive damages, there must enter into the injury 

some element of aggression or some coloring of insult, malice or gross 

negligence, evincing ruthless disregard for the rights of others, so as to take 

the case out of the ordinary rule.” Bradfield v. Schwartz, 936 So. 2d 931, 936 

(Miss. 2006) (quoting Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch., 

Inc., 759 So. 2d 1203, 1215 (Miss. 2000)). Despite Mears’s conclusory 

allegations of “intentional falsehoods,” the evidence adduced reveals, at the 

very most, ordinary negligence. We therefore affirm the district court’s grant 

of summary judgment on the issue of punitive damages against Jones. 

III.

A.

Mears also sought to hold Farm Bureau vicariously liable for Jones’s 

alleged torts. He first claims that Farm Bureau can be held liable under the 

doctrine of apparent authority. Under Mississippi law:

[T]he principal is bound if the conduct of the principal is such that 

persons of reasonable prudence, ordinarily familiar with business 

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practices, dealing with the agent might rightfully believe the agent 

to have the power he assumes to have. The agent’s authority as to 

those with whom he deals is what it reasonably appears to be so

far as third persons are concerned, the apparent powers of an 

agent are his real powers.

Andrew Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172, 1180-81 (Miss. 

1990) (alteration in original) (quoting Steen v. Andrews, 223 Miss. 694, 697-98 

(1955)). While this doctrine typically comes up in the context of issues arising 

in contract law, it can also be applied in tort cases to hold a principal liable for 

the acts of its agent when the agent acts within the scope of his apparent 

authority. See Jenkins v. Cogan, 238 Miss. 543, 555 (1960) (“The general rule 

is well recognized . . . that where a servant commits a tortious act in 

furtherance of his master’s business and within the real or apparent scope of 

his authority, the master becomes liable notwithstanding the fact that the act 

may not have been within the actual scope of the servant’s employment.”). To 

demonstrate apparent authority, a plaintiff must show the following: “(1) acts 

or conduct on the part of the principal indicating the agent’s authority, (2) 

reasonable reliance on those acts, and (3) a detrimental change in position as 

a result of such reliance.” Andrew Jackson, 566 So. 2d at 1181.

Mears fails on the first prong of this test. In order for Mears to succeed, 

he must point to actions on the part of Farm Bureau that clothed Jones with 

authority. See id. Although Mears presents evidence that would suggest to an 

outside observer that Jones was authorized by Farm Bureau as its agent, he 

does not tie that evidence to any acts by Farm Bureau Casualty5 itself. For 

example, while Jones appears on the Farm Bureau website, it is actually the 

website for Harrison County Farm Bureau, a company that Jones and Farm 

 

5 To avoid confusion, we refer to appellee Farm Bureau as Farm Bureau Casualty in 

this section.

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Bureau submit— unrebutted by Mears6—has no connection to appellee Farm 

Bureau Casualty. Absent any evidence to the contrary, a reasonable juror could 

not find that Jones’s appearance on this website was the result of Farm Bureau 

Casualty’s acts. The same goes for Jones’s secretary (employed by Harrison 

County Farm Bureau), his office (provided by Harrison County Farm Bureau), 

and his furniture (paid for by Harrison County Farm Bureau). Mears fails to 

present any evidence linking Jones’s appearance of authority to Farm Bureau 

Casualty. The only such evidence apparent on record is the agent contract 

between the two, which Mears admits he was not aware of. Mears therefore 

cannot point to this evidence as acts by Farm Bureau Casualty clothing Jones 

with authority, since—looking ahead to the second prong of the analysis—he 

could not say that he reasonably relied on those acts. Accordingly, Mears 

cannot hold Farm Bureau Casualty vicariously liable on the doctrine of 

apparent authority. 

B.

Mears also seeks to hold Farm Bureau vicariously liable as an employer 

of Jones. Farm Bureau contends that Jones was not its employee but rather an 

independent contractor. Under Mississippi law, an employer is responsible for 

the acts of negligence committed by its employee within the scope of the 

employee’s authority. Commercial Bank v. Hearn, 923 So. 2d 202, 204 (Miss. 

2006). However, “[a]n employer of an independent contractor is not responsible 

 

6 That is to say, Mears fails to point us to any evidence in the record actually 

substantiating such a rebuttal. While Mears claims that the website cited by Jones and Farm 

Bureau was not “the website used by Mears to locate Jones and Farm Bureau,” he does not 

indicate which website he used, nor does he point to any evidence in the record of a Farm 

Bureau Casualty website that features Jones. Mears also claims that “Harrison County Farm 

Bureau Insurance, Mississippi Farm Bureau Casualty Insurance Company, and Southern 

Farm Bureau Casualty are identified on the web paged cited by defendants as a single entity, 

‘Farm Bureau.’” This is false. The joint privacy notice Mears cites makes no reference to 

Harrison County Farm Bureau. We caution Mears against misrepresenting the record. 

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for the torts of the contractor.” Heirs & Wrongful Death Beneficiaries of 

Branning ex rel. Tucker v. Hinds Cmty. Coll. Dist., 743 So. 2d 311, 318 (Miss. 

1999). The central question in cases such as this, then, is whether the agent 

(here, Jones) is an employee or independent contractor of the principal (here, 

Farm Bureau). The Mississippi Supreme Court has recognized that the 

distinction between an employee and an independent contractor is “a twilight 

zone filled with shades of gray.” Richardson v. APAC-Miss., Inc., 631 So. 2d 

143, 149 (Miss. 1994) (quoting Fruchter v. Lynch Oil Co., 522 So. 2d 195, 199 

(Miss. 1988)). The difference, while vague, depends primarily on the principal’s 

ability to control the agent in his performance of their contract. McKee v. 

Brimmer, 39 F.3d 94, 96 (5th Cir. 1994) (citing Richardson, 631 So. 2d at 148). 

The Mississippi Supreme Court also has articulated factors courts should use 

to conduct this inquiry: 

Whether the principal master has the power to terminate the 

contract at will; whether he has the power to fix the price in 

payment for the work, or vitally controls the manner and time of 

payment; whether he furnishes the means and appliances for the 

work; whether he has control of the premises; whether he 

furnishes the materials upon which the work is done and receives 

the output thereof, the contractor dealing with no other person in 

respect to the output; whether he has the right to prescribe and 

furnish the details of the kind and character of work to be done; 

whether he has the right to supervise and inspect the work during 

the course of the employment; whether he has the right to direct 

the details of the manner in which the work is to be done; whether 

he has the right to employ and discharge the subemployees and to 

fix their compensation; and whether he is obliged to pay the wages 

of said employees.

Kisner v. Jackson, 132 So. 90, 91 (Miss. 1931). Except in cases where the failure 

to extend liability to the principal would deprive the plaintiff of his remedy 

because of the agent’s inability to respond in damages, courts are limited to the 

terms of the contract between the two parties in conducting this inquiry. See

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Richardson, 631 So. 2d at 151. A contract’s designation of an agent as an 

independent contractor is not dispositive of the inquiry; in such cases, the court 

must look beyond the contractual designation to determine whether the 

principal has the right to control the agent under the contract based on the 

factors articulated above. See McKee, 39 F.3d at 98.7

Here, Jones and Farm Bureau have submitted that Jones is “more than 

adequately insured against the claims asserted by Mears.” Accordingly, under 

Richardson, we limit our analysis of the relationship between Jones and Farm 

Bureau to the four corners of their contract. 

The contract between Jones and Farm Bureau contains many of the 

indicia of a principal/independent contractor relationship. First, while not 

dispositive, the contract expressly provides that Jones is an independent 

contractor. It also states that Jones has the “right to control [his] daily 

activities and means by which the provisions of [the contract] are carried out,” 

“exercise independent judgment as to the persons from whom applications for 

insurance policies will be solicited,” and “determine the time, place, and 

manner of soliciting and servicing policyholders of [Farm Bureau].” 

In support of his argument that Jones was Farm Bureau’s employee, 

Mears largely cites evidence from outside the agent contract. For example, 

Mears emphasizes that “Farm Bureau furnished the means, appliances, 

 

7 Jones and Farm Bureau argue that the Mississippi Supreme Court’s holding in 

Richardson prohibits this court from looking beyond Jones’s designation as an independent 

contractor under his agent contract with Fam Bureau because Mears has an adequate 

remedy against Jones. Jones and Farm Bureau misread Richardson. That case stands for the 

proposition that, where the plaintiff has an adequate remedy against the agent defendant, 

courts will not look beyond the four corners of a contract in conducting the independent 

contractor analysis. This is confirmed by the Richardson court’s approving citation of the 

court’s prior holding that a party cannot, by contract, designate an agent an independent 

contractor and at the same time retain the right to control the agent’s business. Richardson, 

631 So. 2d at 150 (quoting Gulf Ref. Co. v. Nations, 145 So. 327, 333 (Miss. 1933)). It is also 

confirmed by an absence of any cases where a court has deemed a party an independent 

contractor simply by virtue of his contractual designation.

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computers, staff, offices and materials for Jones to sell all types of insurance.” 

First, as discussed, Jones and Farm Bureau have submitted to this court that 

Harrison County Farm Bureau, and not Farm Bureau Casualty, furnished 

these resources. Second, and more to the point, even if such resources were 

furnished by Farm Bureau Casualty, there is nothing in the agent contract 

attesting to that fact. 

Several provisions of the agent contract do cut in Mears’s favor, however. 

Most notably, the contract requires Farm Bureau’s authorization before Jones 

can “[m]ake, alter, or discharge any contract of insurance” or sell insurance for 

any other entity. It also requires Jones to comply with company guidelines and 

instructions, provided, however, that compliance “shall not interfere with 

[Jones’s] status as an independent contractor.” 

For support, Mears cites Elder v. Sears, Roebuck & Co., 516 So. 2d 231 

(Miss. 1987), and Miller v. Shell Oil Co., 783 So. 2d 724 (Miss. Ct. App. 2000). 

In Elder, the Mississippi Supreme Court found that a Sears catalogue 

merchant was an employee of Sears for purposes of vicarious liability in a slipand-fall lawsuit. 516 So. 2d at 236. In Miller, the Mississippi Court of Appeals 

found that a truck stop lessee was an employee of Shell Oil company. Miller, 

783 So. 2d at 729. Instead of analogizing his case to the above cases, or even 

explaining how Mississippi courts conduct the independent contractor 

analysis, Mears simply avers that “[a] review of the Miller and Elder factors 

clearly establishes that Jones was acting as a servant and not as an 

independent contractor when he was advising Mears and misrepresenting the 

availability of insurance.” 

A review of the two cases discloses several important differences between 

those cases and the case at bar, however. In Miller, the court noted that Shell 

“furnished the means, appliances and materials of the work.” Miller, 783 So. 

2d at 727. It also noted that the agent was “required to merchandise and 

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promote Shell Products” and “maintain the truck stop . . . in a neat, clean and 

orderly manner.” Id. Similarly, in Elder, Sears required its agent to “maintain 

his premises in a safe, clean and attractive condition” and reserved the right 

to “review the merchant’s books and records and to inspect the premises,” as 

well as “fix prices of goods sold and control[] the manner and time of payment.” 

Elder, 516 So. 2d at 234. No analogous provisions exist in the agent contract 

here. Additionally, both cases appear to have injected some version of an 

apparent-authority analysis into their opinions. See id. at 235 (“Beyond this, 

the premises are arranged so that members of the consuming public think they 

are dealing with Sears.”); Miller, 783 So. 2d at 729 (“Shell, notwithstanding 

the provision in the jobber contract purporting to shield it from liability, had 

indicia of control and induced members of the public doing business with its 

agent to believe they were doing business with Shell.”).8 As we have discussed 

here, Farm Bureau may not be held liable under the doctrine of apparent 

authority in the case at bar. 

Jones and Farm Bureau point us to another, more analogous, case. In 

College Network v. Mississippi Department of Employment Security, 114 So. 3d 

740 (Miss. Ct. App. 2013), the Mississippi Court of Appeals determined that a 

College Network salesperson was an independent contractor.9 In that case, the 

 

8 In light of Richardson’s four-corners doctrine, it is unlikely that the injection of such 

apparent-authority reasoning into an independent contractor analysis remains appropriate 

under existing law, at least where the plaintiff has an adequate remedy without the 

invocation of vicarious liability. See Richardson, 631 So. 2d at 151. Since Elder precedes 

Richardson, we view the latter case as clarifying the former. To the extent that Miller’s 

reasoning is inconsistent with Richardson, we are bound to follow the latter opinion, as it 

comes from the highest court in the state.

9 Mears argues that College Network is inapplicable because it involved an attempt by 

a plaintiff himself to be recognized as an employee under Mississippi unemployment 

compensation law. These distinctions do not preclude College Network’s application to this 

case. The unemployment compensation law at issue in that case expressly cross-referenced 

Mississippi common law and the court therefore applied the same analysis that we apply 

here, albeit with a slightly different recitation of the relevant factors. Coll. Network, 114 So. 

3d at 744. Nor does it matter that College Network involved a plaintiff’s attempt to be 

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salesperson operated under the College Network name and College Network 

restricted the territory in which the salesperson could operate; set prices; 

provided the training, materials, and forms; and approved all orders before a 

sale occurred. Id. at 745. The court nonetheless found that the salesperson was 

an independent contractor because these constraints implicated activities 

“before and after the actual work of conducting sales” and did not reflect 

College Network’s right to control “how, when or by what means [the 

salesperson] conducted sales.” Id. at 746, 747.

We find College Network highly persuasive in the case at bar. While 

Farm Bureau required Jones to obtain its authorization before he sold 

insurance, it did not dictate the manner in which he sold it. For example, Farm 

Bureau did not prescribe his sales techniques or dictate how Jones solicited 

customers or what customers he solicited. Nor did Farm Bureau dictate what 

hours Jones worked or where he worked. While the contract did require 

compliance with Farm Bureau’s guidelines, the contract makes clear that such 

guidelines should not interfere with his status as an independent contractor. 

While we are wary of such language, Mears has not explained how the 

enforcement of such guidelines would alter Jones’s conducting of sales, nor has 

he even discussed what they entail. The only constraints on Jones’s work 

therefore appear to relate only to matters before and after the actual work of 

conducting sales, which the College Network court refused to grant substantial 

weight. Elder and Miller, on the other hand, involved much more substantial 

control of the agent’s operation of its business for the reasons described above.

 

recognized as an employee; save for Richardson (which does not alter the analysis on this 

point), this court is aware of no Mississippi case holding that the independent contractor 

analysis is in any way altered by the fact that it is the plaintiff seeking to be recognized as 

an employee. 

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Accordingly, we find that Jones was an independent contractor under 

Mississippi law and that Farm Bureau thus cannot be held vicariously liable 

for his alleged torts. We therefore affirm the district court’s grant of summary 

judgment in favor of Farm Bureau as to vicarious liability.

C.

Finally, Mears seeks to hold Farm Bureau directly liable for its failure 

to train Jones. A failure-to-train claim proceeds under Mississippi law along 

the same lines as a standard negligence claim: the plaintiff must show duty, 

breach, causation, and harm. See Cameron v. Werner Enters., Inc., No.

2:13CV243-KS-JCG, 2015 WL 4393068, at *2 (S.D. Miss. July 15, 2015); Booth 

v. S. Hens, Inc. 244 So. 3d 888, 891 n.2 (Miss. Ct. App. 2018). The district court 

rejected this claim because Mears did not cite any authority establishing that 

“Farm Bureau had a duty to train Jones on any product that was not its own.” 

We express no opinion on this line of reasoning, for we believe there is a 

sounder basis for affirmance. Meister v. Tex. Adjutant Gen.’s Dep’t, 233 F.3d 

332, 339 (5th Cir. 2000) (“[I]t is well-settled that we will not reverse a judgment 

of the district court if it can be affirmed on any legally sufficient ground, even 

one not relied upon by the district court.”). As we have already determined, the 

relationship between Jones and Farm Bureau was one of an independent 

contractor and a principal. Mears cites no authority, and we are aware of none, 

holding principals liable for the failure to train their independent contractors. 

Indeed, there is at least one extrajurisdictional authority that has held directly 

to the contrary. See Jones v. Sw. Newspapers Corp., 694 S.W.2d 455, 457 (Tex. 

App.—Amarillo 1985, no writ) (“[T]hat duty [to train], involving as it must the 

control of the manner of performing the independent contractor’s undertaking, 

is repugnant to the status of an independent contractor.”). This argument was 

raised in Jones and Farm Bureau’s brief, but Mears does not respond to it in 

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his reply. Absent some showing that Mississippi law would be hospitable to

such an expansion of failure-to-train liability, we refuse to recognize such an 

expansion. See SMI Owen Steel Co. v. Marsh USA, Inc., 520 F.3d 432, 442 (5th 

Cir. 2008) (“When making an Erie guess, ‘[o]ur task is to attempt to predict 

state law, not to create or modify it.’”) (quoting Herrmann Holdings, Ltd. v. 

Lucent Techs., Inc., 302 F.3d 552, 558 (5th Cir. 2002)). Accordingly, the district 

court properly rejected Mears’s failure-to-train claim. 

Because the district court did not err in dismissing all of Mears’s claims 

against Farm Bureau, it also did not err in granting summary judgment on the 

issue of punitive damages. We therefore affirm the district court’s grant of 

summary judgment on the issues of direct liability and punitive damages as to 

Farm Bureau.

IV.

We therefore AFFIRM as to Mears’s claim for punitive damages against 

Jones and Farm Bureau and for vicarious and direct liability against Farm 

Bureau and REVERSE and REMAND as to Mears’s negligence and negligent 

misrepresentation claims against Jones. Each party shall bear its own costs.

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