                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2008-CA-02011-SCT

JOHN P. MLADINEO AND SHERRY MLADINEO

v.

RICHARD EARL SCHMIDT, MICHAEL
FELSHER INSURANCE AGENCY AND
NATIONWIDE PROPERTY & CASUALTY
INSURANCE COMPANY


DATE OF JUDGMENT:                         10/31/2008
TRIAL JUDGE:                              HON. BILLY G. BRIDGES
COURT FROM WHICH APPEALED:                JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 CHARLES R. WILBANKS, JR.
                                          MATTHEW R. DOWD
                                          FRANK T. MOORE, JR.
ATTORNEYS FOR APPELLEES:                  H. MITCHELL COWAN
                                          LAURA L. HILL
NATURE OF THE CASE:                       CIVIL - INSURANCE
DISPOSITION:                              AFFIRMED IN PART, REVERSED IN PART
                                          AND REMANDED - 10/28/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    John and Sherry Mladineo sued Richard Schmidt, Michael Felsher d/b/a the Felsher

Insurance Agency, and Nationwide Property & Casualty Company (collectively referred to

as “the defendants”) on multiple counts arising out of noncovered claims made on the

Mladineos’ homeowner’s insurance policy after Hurricane Katrina. The trial court granted

summary judgment to the defendants as to all issues. The Mladineos appeal the trial court’s
grant of summary judgment. After review, this Court reverses the ruling of the trial court in

part, affirms in part, and remands the matter to the trial court.

                         FACTS AND PROCEDURAL HISTORY

¶2.    The Mladineos purchased a home in Ocean Springs, Mississippi. Prior to closing on

the property, John Mladineo discussed obtaining insurance coverage for the home and other

structures on the property with Richard Schmidt, a Nationwide insurance salesman employed

with the Felsher agency. The Mladineos alleged in their complaint that during those

discussions, John Mladineo had requested “full protection” for the dwelling and other

structures from all weather conditions. The Mladineos further alleged that Schmidt had

responded that John would need to purchase a “hurricane policy” in order to obtain the

requested coverage.

¶3.    The Mladineos averred that John had inquired as to whether such a policy would

cover all wind and water damage and was assured by Schmidt that all such damage from any

named storm was covered. The Mladineos did not obtain a separate flood insurance policy

on the property, although John admits he knew such a policy was available. They alleged

this was because Schmidt had advised John that the property was not in a flood zone, such

a policy would not be required by a mortgage lender, and because the property would be

covered for all wind and water damage from a named storm through the “hurricane policy.”

John testified in his deposition that Schmidt never had offered to sell the Mladineos flood

insurance. John further alleged he later had learned that the rear portion of the property does,

in fact, lie in a flood zone.




                                               2
¶4.    After Schmidt faxed John various quotes for insurance coverage on the Ocean Springs

property, John advised Schmidt that he would purchase a “hurricane policy,” and chose a

particular deductible and limit. Approximately ten days later – on March 10, 2005, the day

the Mladineos closed on the Ocean Springs property – the homeowner’s policy became

effective. The policy premium also was paid on that day. The Mladineos allege that neither

Schmidt nor the Felsher Agency had provided a copy of the policy for the Mladineos to

review prior to this date. The purchased policy was written through Nationwide Property &

Casualty Insurance Company.

¶5.    The Mladineos received their homeowner’s policy approximately six weeks after the

closing on their Ocean Springs home. Under the heading of “Hurricane Coverage,” the

policy states:

       Coverage under this policy includes loss or damage caused by the peril of
       windstorm during a hurricane. It includes damage to a building’s interior or
       property inside a building caused directly by rain, snow, sleet, hail, sand or
       dust if direct force of the windstorm first damages the building causing an
       opening through which the above enters and causes damage.

       Hurricane coverage does not include loss caused by flooding, including but
       not limited to flooding resulting from high tides or storm surges.

(Emphasis added.) In the “Property Exclusions” section of the policy, it further states:

       We do not cover loss to any property resulting directly or indirectly from any
       of the following. Such a loss is excluded even if another peril or event
       contributed concurrently or in any sequence to cause the loss. . . .
              . . . Loss resulting from water or water-borne material damage
              described below is not covered even if other perils contributed directly
              or indirectly to cause the loss. Water and water-borne material damage
              means:
                      1) flood, surface water, waves, tidal waves, overflow of a body
                      of water, spray from these, whether or not driven by wind. . . .



                                             3
(Emphasis added.) John testified in his deposition that, upon receipt of the policy, he filed

it away and did not read it. The Mladineos had no further conversations with Schmidt

regarding this policy prior to Hurricane Katrina.

¶6.    Hurricane Katrina hit the Mississippi Gulf Coast on August 29, 2005. Along with

extensive damage throughout the entire Gulf region, Katrina severely damaged the

Mladineos’ Ocean Springs home and the other structures on the property. The Mladineos

filed a claim with Nationwide on their Ocean Springs property, and it was denied as to

damage caused by water.      Nationwide also initially denied coverage on the pier and

boathouse that were damaged during Hurricane Katrina, but subsequently paid claims on

those structures.

¶7.    Thereafter, Schmidt and John had several conversations in person regarding the

coverage. The Mladineos allege that Schmidt admitted to John that he never had indicated

during negotiations that an exclusion existed in the policy for water damage. Schmidt filed

an errors and omissions claim regarding this matter, which he completed in John’s presence.

¶8.    The Mladineos filed suit against Schmidt, the Felsher Insurance Agency, and

Nationwide on September 29, 2006, making the following claims:

       a.     failure of Schmidt and the Felsher Agency to procure the requested
              coverage;
       b.     negligence by Schmidt, and through him, the Felsher Agency;
       c.     negligent misrepresentation of material facts by Schmidt, and through
              him, the Felsher Agency;
       d.     independent tort against Schmidt and the Felsher Agency for
              misrepresentations made in an alleged attempt to cover Schmidt’s
              actions;
       e.     Nationwide is bound by the representation of its agents and should be
              required to provide coverage in accordance with such representations;



                                             4
       f.     Nationwide breached the implied duty of good faith and fair dealing
              contained in the contract between itself and the Mladineos;
       g.     tortuous breach of contract against Nationwide; and
       h.     Nationwide, Schmidt and the Felsher Agency acted in bad faith.

The Mladineos demanded judgment in their favor and requested the insurance coverage they

allegedly had requested originally, compensatory damages, punitive damages, interest and

attorney’s fees.

¶9.    The matter was removed to federal court and subsequently was remanded. Thereafter,

the Honorable Billy G. Bridges, Senior Status Judge, was specially appointed to preside over

the matter in the Circuit Court of Jackson County. The parties began discovery and entered

into an Agreed Scheduling Order.

¶10.   After extensive discovery, the defendants – Schmidt, the Felsher Agency, and

Nationwide – filed a motion for summary judgment. In the motion, the defendants asserted

that there is no genuine issue of material fact as to any of the Mladineos’ claims. The

defendants claimed the negligence, negligent-misrepresentation, and independent-tort claims

fail because Mississippi law imposes on insureds a duty to read their insurance contracts and

imputes to them knowledge of the contents of such contracts. Therefore, the defendants

asserted that reliance on any misrepresentation which would have been clarified by reading

the policy is per se unreasonable. Further, the defendants asserted that the Mladineos’

failure-to-procure claim fails because, once the policy has been delivered, the insured has a

duty to read it, is imputed with knowledge of its terms, and has the responsibility to cure any

deficiencies regarding what coverage is actually contained in the policy as compared to what

coverage was requested.



                                              5
¶11.   The defendants’ motion for summary judgment further argued that the Mladineos’

claims for breach of contract and breach of the implied duty of good faith and fair dealing

fail because Nationwide enforced its policy as written. Further, the defendants asserted that

the Mladineos’ bad-faith claim should be dismissed because Nationwide had a legitimate or

arguable reason to deny payment of the Mladineos’ insurance claim. For the same reason,

the defendants asserted that the Mladineos’s claim for punitive damages should be dismissed.

¶12.   The Mladineos filed a response to the defendants’ motion for summary judgment. In

it, they labeled the “duty-to-read” and “imputed-knowledge” doctrines raised by the

defendants an affirmative defense. The Mladineos asserted that the defendants had waived

such defense by participating in the litigation for more than two years without raising the

defenses. The Mladineos further claimed that the “duty-to-read” and “imputed-knowledge”

doctrines do not automatically bar the Mladineos’ claims, but rather, there are factual

determinations that must be considered and weighed by a jury to evaluate the applicability

of those claims.

¶13.   The defendants filed a rebuttal in support of their original motion for summary

judgment, which asserted that the “duty to read” is a settled principle of Mississippi law, not

an affirmative defense.    Further, the defendants contended their motion for summary

judgment was in compliance with the agreed scheduling order entered in the matter. Finally,

the defendants argued that each of the Mladineos’ claims should be dismissed through

summary judgment, as no genuine issue of material fact existed as to any of them.




                                              6
¶14.   The Mladineos filed their own motion for partial summary judgment as to the

defendants’ defenses regarding the “duty-to-read” and “imputed-knowledge” doctrines. The

Mladineos requested the court dismiss those claims as waived by the defendants.

¶15.   After a hearing on the matter, the trial court granted the defendants’ motion for

summary judgment as to each of the Mladineos’ claims. The trial court found that the

defendants did not waive their right to rely upon the “duty to read,” and that the doctrine is

a principle of law and not an affirmative defense. Further, the trial court found Mississippi

law imposes a duty on insureds to read their insurance policies, and that the Mladineos’

reliance on Schmidt’s representations that contradicted the plain language of the policy was

per se unreasonable. Therefore, the trial court held that the Mladineos’ misrepresentation

claim failed as a matter of law.

¶16.   The trial court further found the Mladineos’ failure-to-procure and negligence claims

failed because of the “duty-to-read” and “imputed-knowledge” doctrines, reasoning that four

months was ample time for the Mladineos to have read their policy and raise any objections

regarding the coverage or lack thereof. Therefore, regardless of whether the Mladineos

requested coverage they did not receive, the trial court held that they could not establish that

any failure on the part of Schmidt or the Felsher Agency was the cause of any damages

resulting from the lack of coverage.

¶17.   Furthermore, the trial court found that, because none of Nationwide’s actions

contradicted the plain language of the written policy the Mladineos had purchased, there was

no genuine issue of material fact as to the Mladineos’ breach-of-contract, tortious-breach-of-

contract, and breach-of-the-duty-of-good-faith-and-fair-dealing claims. The trial court found


                                               7
that the Mladineos’ independent-tort and bad-faith claims failed as a matter of law because

Nationwide had a legitimate or arguable basis for its coverage decisions. Finally, the trial

court found that Nationwide owed no duty to the Mladineos to investigate the errors-and-

omissions incident report filed by Schmidt, and a claim for bad faith could not be premised

on an alleged failure by Nationwide to investigate the report.

¶18.   The trial court dismissed all of the Mladineos’ claims with prejudice. The Mladineos

now appeal and raise the following issues:

       I.     Whether the Mladineos are entitled to present evidence of their failure-
              to-procure, negligent-misrepresentation, and other claims and to have
              those issues and the issues of comparative fault and causation
              determined by a jury, rather than have those issues decided on a motion
              for summary judgment.

       II.    Whether the Mladineos’ claims of negligence, negligent
              misrepresentation, and failure to procure are automatically barred by
              the “duty-to-read” defense.

       III.   Whether Nationwide had a duty to conduct a fair, prompt and adequate
              investigation of the claims of agent error and whether failure to do so
              is actionable in tort.

       IV.    Whether the defendants waived the “duty-to-read” defense.

       V.     Whether the “duty to read” automatically bars a claim against an
              insurance company for the misrepresentations of its agent acting with
              apparent authority.

       VI.    Whether considerations of public policy prohibit the application of the
              “duty to read” as interpreted by the trial court.

                                      DISCUSSION 1




       1
      The issues will not be discussed in the order in which the Mladineos raised them.
However, each issue will be addressed.

                                             8
¶19.     The well-established standard of review on a trial court’s grant of summary judgment

is de novo. Duckworth v. Warren, 10 So. 3d 433, 436 (Miss. 2009) (citing One South, Inc.

v. Hollowell, 963 So. 2d 1156, 1160 (Miss. 2007)).       Where “the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law” summary judgment is appropriate. Id. (citing Miss. R. Civ.

P. 56(c)). See also Johnson v. City of Cleveland, 846 So. 2d 1031, 1034-35 (Miss. 2003).

“The evidence must be viewed in the light most favorable to the party against whom the

motion has been made.” Id. (quoting One South, 963 So. 2d at 1160). The burden is on the

moving party to “demonstrat[e] that [no] genuine issue of material fact exists, and the

non-moving party must be given the benefit of the doubt concerning the existence of a

material fact.” Id. Where there are undisputed facts which are susceptible to more than one

interpretation, summary judgment is inappropriate. Id. (citing Johnson, 846 So. 2d at

1036).

         I.    Whether the Defendants Waived the “Duty to Read.”

¶20.     We will begin our discussion with the fourth issue the Mladineos raise on appeal:

whether the defendants waived their right to rely on the “duty-to-read” and “imputed-

knowledge” doctrines. The foundation of this argument is the proposition that the “duty-to-

read” and “imputed-knowledge” doctrines constitute an affirmative defense. The Mladineos

assert that, because the defendants did not include the “affirmative defense” in their denial

letters to the Mladineos prior to litigation, failed to plead the “duty-to-read” and “imputed-

knowledge” doctrines as an affirmative defense in any responsive pleading filed in this case

                                              9
prior to filing the motion for summary judgment, and actively participated in the litigation

for more than two years before raising the “affirmative defense” in the motion for summary

judgment, they waived their right to pursue the “affirmative defense.”

¶21.   Because the Mladineos label the “duty to read” as an affirmative defense, they claim

this Court’s ruling in MS Credit Center, Inc. v. Horton controls. See MS Credit Center, Inc.

v. Horton, 926 So. 2d 167 (Miss. 2006). In Horton, this Court held that a substantial and

unreasonable delay in pursuing the right to compel arbitration, coupled with active

participation in the litigation process, waived that right. Id. at 180. We further explained,

“a defendant's failure to timely and reasonably raise and pursue the enforcement of any

affirmative defense or other affirmative matter or right which would serve to terminate or

stay the litigation, coupled with active participation in the litigation process, will ordinarily

serve as a waiver.” Id. (emphasis added).

¶22.   Here, the trial court held that the the Mladineos’ “waiver argument [was] misplaced.”

and explained that the defendants’ motion for summary judgment was “based on well-settled

principles of Mississippi law, not an ‘affirmative defense’ as [the Mladineos] suggest.” The

trial court further found that the defendants had complied with the agreed scheduling order

entered into between the parties in filing the motion for summary judgment, and that Horton

was, therefore, inapplicable.

¶23.   We agree with the trial court.        The “duty-to-read” and “imputed-knowledge”

doctrines, as discussed in Section II, infra, are substantive rules of law. The defendant’s

defense is simply that the language of the policy the Mladineos purchased excludes the

coverage the Mladineos are attempting to claim. The defendants asserted this in their

                                               10
Answer, in which they stated “coverage provisions and exclusions of Plaintiff’s Nationwide

homeowner’s policy speak for themselves.” This language put the Mladineos on notice that

the defendants intended to rely on the policy language and its exclusions in the course of this

litigation.

¶24.     Because the motion for summary judgment was filed within the time frame established

by the parties in their agreed scheduling order, the trial court did not err in finding the

Mladineos’ waiver argument to be misplaced. The “duty-to-read” and “imputed-knowledge”

doctrines are substantive rules of law – not affirmative defenses, as the Mladineos contend.

Accordingly, we affirm the trial court as to this issue.

         II.    Negligence, Failure to Procure, and Negligent Misrepresentation

¶25.     The first and second issues the Mladineos raise on appeal was whether the “duty-to-

read” and “imputed-knowledge” doctrines automatically bar the negligence, negligent-

misrepresentation, and failure-to-procure-the-requested-coverage claims against Schmidt and

the Felsher agency, and whether the Mladineos are entitled to present evidence of those

claims for determination by a jury.

         The “Duty-to-Read” and “Imputed-Knowledge” Doctrines

¶26.     This Court has held as a matter of law that an insured is charged with the knowledge

of the terms of the policy upon which he or she relies for protection. Atlas Roofing Mfg.

Co., Inc. v. Robinson & Julienne, Inc., 279 So. 2d 625, 629 (Miss. 1973). Again, we

emphasized that “knowledge of an insurance policy is imputed to an insured regardless of

whether the insured read the policy.” Oaks v. Sellers, 953 So. 2d 1077, 1083-84 (Miss.

2007).     This Court repeatedly has held this. See Stephens v. Equitable Life Assurance

                                              11
Soc’y of U.S., 850 So. 2d 78, 83 (Miss. 2003) (“insureds are bound as a matter of law by the

knowledge of the contents of a contract in which they entered notwithstanding whether they

actually read the policy”); Cherry v. Anthony, Gibbs, Sage, 501 So. 2d 416, 419 (Miss.

1987) (“Even if [the insureds] had not [read the subject insurance policy], knowledge of its

contents would be imputed to them as a matter of law.”); Zepponi v. Home Ins. Co., 248

Miss. 828, 833-34, 161 So. 2d 524 (Miss. 1964) (holding as a matter of law that where the

insured’s mortgagee required insurance and had possession of the subject insurance policy,

the insured is charged with knowledge of the terms of the policy because he relied on the

policy for protection). Thus, the “duty-to-read” and “imputed-knowledge” doctrines are

firmly rooted in Mississippi precedent.

¶27.   The Mladineos attempt to distinguish the present matter from many of these cases by

pointing out that the insureds in those matters had possession of their policies for far longer

than the Mladineos did. The Mladineos had possession of their policy for approximately four

months prior to Hurricane Katrina, whereas the insureds in many of the above-referenced

cases had their policies for much longer – some as long as twenty-nine years. However, the

Mladineos did have possession of their policy for four months – enough time to have read

the policy – and are imputed with knowledge of the policy’s contents pursuant to our

precedent.

       Negligence

¶28.   The elements of a negligence claim are duty, breach of duty, proximate cause, and

damages. Holiday v. Pizza Inn, Inc., 659 So. 2d 860, 864 (Miss. 1995) (quoting Skelton v.




                                              12
Twin County Rural Elec. Ass’n, 611 So. 2d 931, 936 (Miss. 1992)). In their complaint, the

Mladineos claim that Schmidt, and, through him, the Felsher Agency:

        . . . were negligent in not properly and completely inspecting the property; in
       not seeing the obvious pier and boathouse to the rear of the property; by not
       taking further precautions about procuring coverage for damage which could
       be caused by water, given the fact that the rear portion of the property was in
       a flood zone; by not ascertaining the exact flood plain status of the subject real
       property; by not informing John of the exact flood plain status of the subject
       real property . . .

In his deposition, John Mladineo testified that Schmidt had told him, “Since you’re not in the

flood plain,2 the bank would not require a separate flood insurance policy.” John testified

that Schmidt told him this in response to John’s question as to whether a “hurricane policy”

would cover all wind and water damage.

¶29.   An 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.

McKinnon v. Batte, 485 So. 2d 295, 297 (Miss. 1986) (quoting Security Ins. Agency, Inc.

v. Cox, 299 So. 2d 192, 194 (Miss. 1974)). See also Taylor Machine Works, Inc. v. Great

American Surplus Lines Ins. Co., 635 So. 2d 1357, 1362 (Miss. 1994); Security Ins.

Agency, Inc. v. Cox, 299 So. 2d 192, 194 (Miss. 1974); and First United Bank of

Poplarville v. Reid, 612 So. 2d 1131, 1137 (Miss. 1992). It is a question of fact whether

Schmidt breached this duty by allegedly informing the Mladineos that their property was not

in a flood plain and counseling against flood insurance. Further, it is a question of fact

whether any such breach proximately caused any damages to the Mladineos, such as


       2
          The Mladineos allege they later learned the rear portion of their property was, in
fact, in a flood plain.

                                              13
uninsured claims resulting from a lack of flood coverage. While the dissent believes our

position to be contradictory, it is not. We are not “carving out an exception to the ‘duty to

read.’” These alleged omissions and misrepresentations are not barred by the “imputed

knowledge” of the policy because they are not misrepresentations that would have been

disclosed by reading the policy. Ballard v. Commercial Bank of DeKalb, 991 So. 2d 1201,

1207 (Miss. 2008). The Mladineos are barred from arguing that they did not know what was

in the policy. We have not yet said that they are barred from arguing that Schmidt’s alleged

negligence caused them to underestimate the coverage they would need, making summary

judgment improper.

¶30.   Other jurisdictions have dealt more specifically with pure negligence claims against

insurance agents. In Southwest Auto Painting and Body Repair, Inc. v. Binsfeld, the

Arizona Court of Appeals reversed summary judgment where store owners were not advised

of the availability of fidelity coverage. Southwest Auto Painting and Body Repair, Inc. v.

Binsfeld, 183 Ariz. 444, 904 P.2d 1268, 1272 (Ariz. App. Div. 1, 1995). In contrast, the

New Hampshire Supreme Court has criticized this rule, saying “[An agent’s] general duty

of care [to the insured] excludes an affirmative obligation to give advice regarding the

availability or sufficiency of coverage.” Sintros v. Hamon, 148 N.H. 478, 481, 810 A.2d

553, 555 (N.H. 2002). A majority of states hold that a special relationship could impose

upon an insurance agent an affirmative duty to provide advice regarding the availability or

sufficiency of insurance coverage. See, e.g., Harts v. Farmers Ins. Exchange, 461 Mich.

1, 10, 597 N.W.2d 47, 52 (1999); Murphy v. Kuhn, 90 N.Y. 2d 266, 269, 682 N.E.2d 972,

974-75 (1997).

                                             14
¶31.   While their imputed knowledge prohibits the Mladineos from relying on the

characterization of their policy as a “hurricane policy” to get coverage not provided on the

face of the policy, they may argue that, but for Schmidt’s misrepresentation of the fact that

their property was in a flood plain, they would have bought flood coverage. Even actual

knowledge and understanding of every word, phrase, and idea of the policy does not preclude

the possibility that they may have bought more extensive coverage absent Schmidt’s alleged

negligence.

¶32.   We go further to clarify that, contrary to a minority of jurisdictions, we do not find

that insurance agents in Mississippi have an affirmative duty to advise buyers regarding their

coverage needs. The majority of jurisdictions have stated strong policy reasons for finding

that an agent does not have an affirmative duty to advise the insured of coverage needs:

insureds are in a better position to assess their assets and risk of loss,3 coverage needs are

often personal and subjective,4 and imposing liability on agents for failing to advise insureds

regarding the sufficiency of their coverage would remove any burden from the insured to

take care of his or her own financial needs.5 However, we find that if agents do offer advice

to insureds, they have a duty to exercise reasonable care in doing so. A jury should be

allowed to decide whether reasonable care was exercised here.

¶33.   Therefore, summary judgment was improperly granted as to this issue. The

Mladineos’ negligence claim against Schmidt, and through him, the Felsher Agency, is


       3
           Peter v. Schumacher Enters., Inc., 22 P. 3d 481, 486 (Alaska 2001).
       4
           Sadler v. Loomis, 139 Md. App. 374, 776 A. 2d 25, 40 (2001).
       5
           Nelson v. Davidson, 155 Wis. 2d 674, 456 N.W. 2d 343, 346 (1990).

                                              15
remanded to the trial court for further proceedings to determine if Schmidt’s alleged

representation regarding the Mladineos’ need, or lack thereof, of flood insurance breached

his professional duty and proximately caused any damage to the Mladineos.

       Failure to Procure the Requested Coverage

¶34.   The Mladineos allege that Schmidt and the Felsher Agency breached their duty to

procure the insurance coverage the Mladineos requested. The trial court granted summary

judgment to the defendants on this issue and found that, “where an insured has such fair

notice of the terms of his policy and ample time to reject it if he considers it insufficient, he

cannot complain that his agent failed to obtain requested coverage.”

¶35.   As stated above, the elements of a negligence claim are duty, breach of duty,

proximate cause, and damages. Holiday v. Pizza Inn, Inc., 659 So. 2d 860, 864 (Miss. 1995)

(quoting Skelton v. Twin County Rural Elec. Ass’n, 611 So. 2d 931, 936 (Miss. 1992)).

With respect to the element of duty in the present matter, it is well-settled that if an insurance

agent or broker with a view to being compensated agrees to procure insurance for another

and through fault or neglect fails to do so, he will be liable for any damage that results

thereby. McKinnon, 485 So. 2d at 297 (quoting Simpson v. M.P. Enter., Inc., 252 So. 2d

202, 207 (Miss. 1971)).

¶36.   Here, it is disputed whether Schmidt, and through him, the Felsher Agency, breached

this duty. The Mladineos clearly have damages, as they have incurred uninsured losses

caused by Hurricane Katrina. The central inquiry is causation – if Schmidt breached his duty

as an insurance agent, did that proximately cause the Mladineos’ injury?




                                               16
¶37.    John claims he made a request for insurance coverage, including both wind and water

damage for any named storm. However, the rule of this Court for more than a century has

been:

        The [insurance] policy itself [is] notice to the assured that the company . . .
        assured against loss to [the] extent [of the policy’s language] only; that it
        expressly excluded every interest from the insurance, unless the assured
        immediately notified it that there was a different interest, and procured a
        written consent thereto. The silent acceptance of the policy by the assured
        closed the contract, and bound the assured to the agreement tendered by the
        policy . . .

Rosenstock v. Miss. Home Ins. Co., 82 Miss. 674, 35 So. 309, 311 (1903) (emphasis added).

Mladineo admitted he knew that flood policies can be purchased separately from

homeowner’s policies, yet he did not request such a policy at the time of the initial

negotiations, or after receipt of the subject policy. As quoted supra, the policy language

clearly excludes damage from water – and the Mladineos’ silent acceptance of this policy

bound them to its terms.

¶38.    The trial court was correct: even if Schmidt breached his duty as an insurance agent

to procure the requested coverage, the Mladineos’ silence was the proximate cause of their

damage. If they had executed their duty to read the policy, they would have noticed that the

policy plainly did not cover the things that they assumed “hurricane” policies would cover.

Therefore, the trial court is affirmed as to the dismissal of the claim for negligent failure to

procure requested coverage.

        Negligent Misrepresentation

¶39.    The Mladineos also claim Schmidt negligently misrepresented the terms of their

policy, which caused the Mladineos damage.                “In order to establish negligent


                                              17
misrepresentation, the following elements must be proven: ‘(1) a misrepresentation or

omission of a fact; (2) that the representation or omission is material or significant; (3) that

the person/entity charged with the negligence failed to exercise that degree of diligence and

expertise the public is entitled to expect of such persons/entities; (4) that the plaintiff

reasonably relied upon the misrepresentation or omission; and (5) that the plaintiff suffered

damages as a direct and proximate result of such reasonable reliance.’” Hazlehurst Lumber

Co., Inc. v. Miss. Forestry Comm'n, 983 So. 2d 309, 313 (Miss. 2008) (quoting Horace

Mann Life Ins. Co. v. Nunaley, 960 So. 2d 455, 461 (Miss. 2007)).

¶40.   This issue turns on whether the Mladineos’ reliance on any alleged misrepresentations

by Schmidt was reasonable. Schmidt’s alleged misrepresentations regarding the need for

flood insurance have been discussed above in the context of simple negligence. We reiterate

that we think summary judgment for those claims was improper. Those claims also could

be brought under a theory of negligent misrepresentation.

¶41.   But as for misrepresentations that could have been cleared up by reading the policy,

we affirm the trial court. Specifically, the Mladineos allege that Schmidt assured them their

property would be covered for all damage from a named storm under the policy they

purchased, including damage caused by water. The Mladineos argue that they had no

document in their possession at the time Schmidt and the Felsher Agency made the alleged

misrepresentations regarding the terms of the policy.         They contend that the alleged

misrepresentations were material and took place weeks before the policy with the contrary

terms was delivered to them. Because the Mladineos had their policy in hand for only four




                                              18
months prior to Hurricane Katrina, they argue that it is a question for the jury whether

reliance on Schmidt’s misrepresentations was reasonable.

¶42.   We repeatedly have held, “insureds are bound as a matter of law by the knowledge

of the contents of a contract in which they entered notwithstanding whether they actually

read the policy. Any alleged oral agreement . . . does not have any effect on the written

insurance contract.” Stephens v. Equitable Life Assurance Soc’y of U.S., 850 So. 2d 78, 83

(Miss. 2003). This Court further stated that a contracting party “will not as a general rule be

heard to complain of an oral misrepresentation the error of which would have been disclosed

by reading the contract.” Id. (quoting Godfrey, Bassett & Kuykendall Architects, Ltd. v.

Huntington Lumber & Supply Co., 584 So. 2d 1254, 1257 (Miss. 1991)).

¶43.   The Mladineos rely on this Court’s rulings in United Insurance Co. v. Merrill, 978

So. 2d 613 (Miss. 2007), and American Income Life Insurance Co. v. Hollins, 830 So. 2d

1235 (Miss. 2002), as support for their position that reliance on the alleged

misrepresentations of Schmidt was reasonable. In Merrill, the life insurance policy at issue

contained a two-year incontestability clause, in which the insurance company reserved the

right to deny the claims on certain bases if the insured died within two years of purchasing

the policy. The insurance agent testified that she had been instructed by the insurance

company to tell applicants that “someone always pays.” Merrill, 978 So. 2d at 622. The

agent further testified that she had not been informed of the incontestability clause by the

insurance company and did not inform the plaintiff of such a clause while selling the policy.

Id.




                                              19
¶44.   The insurance company objected to this testimony on appeal. In analyzing whether

the trial court properly admitted the insurance agent’s testimony, this Court said:

       [The insurance company] argues that knowledge of the incontestability clause
       should have been imputed to the [insureds] as it is the law that a person is
       bound by the . . . documents that they sign. However, the [insureds] did not
       have [the policy] at the time they applied . . . .This might be true as applied to
       the [insureds] after they received the policy. . . .

Merrill, 978 So. 2d at 632 (internal citations omitted). The Mladineos argue that this Court

found that the “duty-to-read” doctrine was inapplicable in Merrill, based in the foregoing

quote. This is not a correct reading of the Merrill case. We said knowledge of the

incontestability clause should have been imputed to the insureds “after they received the

policy, ” as is the case in the present matter. Id. (emphasis added). A duty to read cannot

be placed on one who not yet received the policy.

¶45.   Hollins is a plurality opinion from this Court in which the plaintiff sought a hospital

indemnity insurance policy. In response to a specific question from the plaintiff, the

insurance agent told her that, as long as she had not undergone surgery for a pre-existing

condition, it would be covered by the policy. At the time the agent made this statement to

her, the plaintiff had not been notified that the policy specifically excluded pre-existing

conditions.    The Hollins plaintiff did not receive the policy until sometime after the

application was complete and the premium had been paid. The policy stated that “[n]o agent

may change this policy or waive any of its provisions.” This Court held that the plaintiff

already had relied on the agent’s statement prior to receiving it. The plurality opinion went

on to state:




                                              20
       That [the plaintiff] did not read it does not alter the fact that she relied on [the
       agent’s] statements before the policy was provided to her. The exclusion
       contained in the policy, while unambiguous, was not made available until after
       she had purchased the insurance in reliance on [the agent’s] statement.
       Because [the plaintiff] was not informed otherwise prior to relying on [the
       agent’s] statement, her reliance on the statement that her [pre-existing]
       condition would be covered was reasonable.

Hollins, 830 So. 2d at 1237-1238.

¶46.   This holding in Hollins directly contradicts our well-settled precedent regarding an

insured’s duty to read his or her policy. See e.g. Gulf Guar. Life Ins. Co. v. Kelley, 389 So.

2d 920, 922 (Miss. 1980) (“[An insured] may not neglect or purposely omit acquainting

himself with the terms and conditions of the insurance policy and then complain of his

ignorance of them.”) Where Hollins is contradictory to the “duty-to-read” and “imputed-

knowledge” doctrines, it is hereby overruled.

¶47.   Based on the foregoing analysis, the Mladineos reasonably cannot have relied on the

alleged assurances of coverage by Schmidt that directly contradicted the plain language of

the policy they had in their possession. Because at least one of the elements required for a

negligent-misrepresentation claim is not present, we affirm the trial court’s grant of summary

judgment as to the claim of negligent misrepresentation.

       III.   Whether the “Duty to Read” Automatically Bars Claims Against
              Nationwide.

¶48.   The fifth issue raised by the Mladineos is whether the “duty-to-read” and “imputed-

knowledge” doctrines automatically bar claims against Nationwide for the alleged

misrepresentations of its agents, Schmidt and the Felsher Agency, who the Mladineos allege

acted with apparent authority.      The Mladineos allege that Nationwide is bound by the



                                               21
alleged representation of its agents that the subject policy covered both wind and water

damage to the Mladineos’ Ocean Springs home. The trial court granted summary judgment

to the defendants on all of the Mladineos’ claims, including whether Nationwide was liable

for Schmidt’s alleged misrepresentations.

¶49.   “Apparent authority exists when a reasonably prudent person, having knowledge of

the nature and usages of the business involved, would be justified in supposing, based on the

character of the duties entrusted to the agent, that the agent has the power he is assumed to

have.” Andrew Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172, 1180 (Miss. 1990)

(quoting Ford v. Lamar Life Ins. Co., 513 So. 2d 880, 888 (Miss. 1987)). To recover under

the theory of apparent authority, the following three factors must be present: (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. Id.

¶50.   The Mladineos again look to this Court’s holdings in Merrill and Hollins as support

for their argument that Mississippi law supports holding Nationwide responsible for the acts

of its agent. However, in making this argument, the Mladineos miss a key factual distinction

between those cases and the present case: the agent made misrepresentations to the insurance

company in Merrill and Hollins, not to the consumer, as alleged in the present matter.

¶51.   As stated above, Hollins involved a hospital indemnity policy, while Merrill involved

a life insurance policy. In both matters, the agent took charge of the policy applications and

asked the plaintiffs the questions contained therein. Although both applicants were truthful

in their responses, both applications misrepresented prior health history of the applicants.

When claims were filed pursuant to these policies, they were denied in both matters due to

                                             22
the misrepresentations on the application, and the Hollins policy was rescinded, while the

premiums paid on the Merrill policy were refunded.

¶52.   This Court has said, “in cases where the agent takes charge of the application or

suggests the answers to the question, the company shall not avoid the policy because they are

false or untrue, if full disclosures were made by the applicant to him.” Hollins, 430 So. 2d

at 1235 (citing McCann v. Gulf Nat’l Life Ins. Co., 574 So. 2d 654, 657 (Miss. 1990).

¶53.   The facts in the present matter are not similar to those in Merrill and Hollins. Here,

the alleged misrepresentation by the agent was made to the consumer (the Mladineos), not

to the insurance company (Nationwide). For four months, the Mladineos had possession of

a policy with terms in direct conflict with the alleged misrepresentation, which was enough

time to recognize and remedy the deficit in coverage. Further, as discussed in Section II,

supra, after receipt of the insurance policy, it was not reasonable for the Mladineos to rely

on any oral representations by Schmidt which contradicted the terms of that policy.

Nationwide’s denial of claims as to flood damage is in accordance with the terms of that

policy. Therefore, the trial court is affirmed as to this issue.

       IV.    Public Policy

¶54.   The sixth issue raised by the Mladineos is whether considerations of public policy

prohibit the application and interpretation of the “duty-to-read” and “imputed-knowledge”

doctrines as interpreted by the trial court. The crux of the Mladineos’ argument is that if the

“duty-to-read” and “imputed-knowledge” doctrines are interpreted and applied as the trial

court applied them, insurance companies and their agents may induce consumers to purchase

policies through misrepresentation and face no liability for such behavior by simply

                                              23
delivering to the consumers a policy with different terms after the transaction is complete.

The defendants, on the other hand, argue that prohibiting the “duty-to-read” defense would

allow insureds knowingly to underinsure themselves and then complain that they did not get

the coverage they requested after sustaining an uncovered loss.

¶55.   Mississippi law is very clear: insureds are imputed with knowledge of the contents of

their insurance policy, whether or not they have read the policy. It is therefore not against

the public policy of this state to hold them to have knowledge of their insurance policy’s

contents.

¶56.   Also, Mississippi law requires insurance companies and their agents to adhere to the

standard of care for their profession, and they will be liable for any breach of this standard

of care which proximately causes damages. Further, principals can be bound by the acts of

their agents when the relevant three-part test is met.6 Accordingly, agents and insurance

companies cannot market, sell, and induce consumers to purchase policies through

misrepresentations and be absolved of liability simply by delivering the subject policy to the

insureds, as the Mladineos contend.

¶57.   For the foregoing reasons, the “duty-to-read” and “imputed-knowledge” doctrines, as

applied by the trial court, are not in conflict with the public policy of this State. This issue

is without merit.

       V.     Nationwide’s Investigation of Schmidt’s Errors-and-Omissions Claim




       6
         See e. g., Andrew Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172 (Miss. 1990)
(holding Andrew Jackson Life Insurance Company to be bound by the contract formed by
its apparently authorized agents.)

                                              24
¶58.   Finally, we will discuss the third issue raised on appeal by the Mladineos: whether

Nationwide owed the Mladineos a duty to conduct a fair, prompt, and adequate investigation

of the errors-and-omissions claim filed by Schmidt, and whether violation of such duty is

actionable in tort. The Mladineos allege that Nationwide had a legal duty to deal fairly and

in good faith with its insured in order to conduct a prompt, reasonable, and adequate

investigation into whether Schmidt had committed negligence in the procurement of the

specifically requested insurance coverage.

¶59.   The Mladineos point out that Mississippi law imposes a duty on the insurance

company promptly and fully to investigate any claim. Life & Cas. Ins. Co. of Tenn. v.

Bristow, 529 So. 2d 620, 623 (Miss. 1988). The Mladineos complain that the investigation

of Schmidt’s errors-and-omissions claim was not adequate and did not meet the standard set

forth in Bristow.

¶60.   However, no duty exists on the part of Nationwide to investigate the errors and

omissions of its agents in the present matter. The Mladineos admit that this is “an action by

a policyholder against its insuror.” While Bristow requires that insurance companies

adequately investigate claims made against the insurance policies they provide, it does not

impose a duty on insurance companies to investigate claims against the company itself.

Therefore, the trial court was correct in granting summary judgment as to this issue.

                                     CONCLUSION

¶61.   In conclusion, the defendants did not waive their right to rely on the “duty-to-read”

and “imputed-knowledge” doctrines. Therefore, the Mladineos’ claims for failure to procure

the requested coverage and negligent misrepresentation fail as a matter of law, because the

                                             25
Mladineos had a duty to read their insurance policy, were imputed with knowledge of its

contents, and cannot reasonably rely on any oral statements which contradict the

unambiguous terms of the contract. Nationwide cannot be held liable through the theory of

apparent authority in this matter, nor did Nationwide owe the Mladineos a duty to investigate

the errors-and-omissions claims filed by Schmidt. Therefore, summary judgment was proper

as to these issues, as well as to public policy. However, the trial court’s grant of summary

judgment on the claim of negligence in this matter is reversed and remanded for further

proceedings as to that issue. The trial court’s judgment is affirmed in part, reversed in part

and remanded.

¶62.   AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

    WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND
CHANDLER, JJ., CONCUR. KITCHENS, J., DISSENTS, WITH SEPARATE
WRITTEN OPINION. GRAVES, P.J., CONCURS IN PART AND DISSENTS IN
PART WITH SEPARATE WRITTEN OPINION.

       KITCHENS, JUSTICE, DISSENTING:

¶63.   The majority theorizes that “[t]he ‘duty-to-read’ and ‘imputed-knowledge’ doctrines

are substantive rules of law – not affirmative defenses.” Maj. Op. at ¶ 24. Because I do not

agree that substantive rules of law cannot be affirmative defenses, I dissent.

¶64.   Mississippi Rule of Civil Procedure 8(c) provides in pertinent part:

       In pleading to a preceding pleading, a party shall set forth affirmatively accord
       and satisfaction, arbitration and award, assumption of risk, contributory
       negligence, discharge in bankruptcy, duress, estoppel, failure of consideration,
       fraud, illegality, injury by fellow servant, laches, license, payment, release, res
       judicata, statute of frauds, statute of limitations, waiver, and any other matter
       constituting an avoidance or affirmative defense.




                                               26
M.R.C.P. 8(c) (emphasis added). Every defense specifically mentioned or alluded to in this

rule is an established principle of law, and each is subject to waiver if not properly and timely

pled. We have interpreted Rule 8(c) of the Mississippi Rules of Civil Procedure “to mean

that, generally, if a party fails to raise an affirmative defense in its original answer, the

defense will be deemed waived.” Hutzel v. City of Jackson, 33 So. 3d 1116, 1119 (Miss.

2010) (citing Pass Termite and Pest Control, Inc. v. Walker, 904 So. 2d 1030, 1033 (Miss.

2004). Because the defendants failed to raise affirmatively the plaintiffs’ duty to read the

insurance policy and their imputed knowledge of the contents of the policy as defenses in any

responsive pleading and thereafter participated actively in the litigation process for nearly

two years before moving for summary judgment, the defendants have waived the right to

raise these defenses, which obviously are affirmative in every sense.

¶65.   In MS Credit Center, Inc. v. Horton, 926 So. 2d 167 (Miss. 2006), this Court

considered whether a defendant’s failure to pursue actively the right to compel arbitration

for eight months amounted to a waiver of that defense. We held that, where a defendant

failed “timely and reasonably [to] raise and pursue the enforcement of any affirmative

defense or other affirmative matter . . . , coupled with active participation in the litigation

process,” the defense ordinarily will have been waived. Id. at 180 (emphasis added).

However, we declined to set a minimum number of days which will constitute an

unreasonable delay, but did hold “that – absent extreme and unusual circumstances – an eight

month unjustified delay in the assertion and pursuit of any affirmative defense or other right

. . . constitutes waiver as a matter of law.” Id.




                                               27
¶66.    In compliance with the rule announced in Horton, “this Court consistently has held

that, absent a reasonable explanation, failure to plead an affirmative defense according to

Rule 8(c) will result in a waiver of that defense.” Hutzel, 33 So. 3d at 1120. In Hutzel, we

held that a defendant’s failure to assert and pursue actively the affirmative defense of accord

and satisfaction for twenty-six months while actively participating in the litigation, with no

reasonable explanation for such delay, amounted to a waiver. Hutzel, 33 So. 3d at 1121-

1122.

¶67.    In this case, the plaintiffs filed their original complaint on September 26, 2006. The

defendants participated actively in the litigation process by engaging in written discovery,

deposing witnesses, and designating an expert witness. It was not until September 18, 2008,

that the defendants filed their motion for summary judgment, based on duty-to-read and

imputed-knowledge defenses. The defendants participated in the litigation actively for

almost two full years before asserting the duty-to-read and imputed-knowledge defenses.

The failure of the defendants to plead these defenses in a timely manner, coupled with their

active participation in the litigation process, bars the defendants from belatedly asserting

them, and it was error for the trial judge to dismiss this case on summary judgment on the

basis of such untimely defenses.

¶68.    Accordingly, I would reverse the trial court’s grant of summary judgment and remand

the case for further proceedings.

     GRAVES, PRESIDING                JUSTICE,       CONCURRING           IN   PART      AND
DISSENTING IN PART:




                                              28
¶69.   I disagree with the majority’s holding that summary judgment was improperly granted

as to the issue of whether Schmidt breached his duty as an insurance agent and proximately

caused any damages to the Mladineos. Because I would explicitly affirm the trial court in

toto, I respectfully concur in part and dissent in part.

¶70.   As stated by the majority, this Court repeatedly has held that knowledge of an

insurance policy is imputed to an insured regardless of whether he has read the policy. See

Stephens v. Equitable Life Assurance Soc’y of U.S. , 850 So. 2d 78, 83 (Miss. 2003); Oaks

v. Sellers, 953 So. 2d 1077, 1083-84 (Miss. 2007); Cherry v. Anthony, 501 So. 2d 416, 419

(Miss. 1987); and Atlas Roofing Mfg. Co. v. Robinson & Julienne, Inc., 279 So. 2d 625,

629 (Miss. 1973).

¶71.   The majority finds that the “Mladineos did have possession of their policy for four

months – enough time to have read the policy – and are imputed with knowledge of the

policy’s contents pursuant to our precedent.” (Maj. Op. at ¶ 27). The majority then offers

an analysis of the negligence claim, correctly pointing out that the elements of a negligence

claim are duty, breach of duty, proximate cause and damages. (Maj. Op. at ¶ 28). The

majority finds that it is a question of fact whether Schmidt breached his duty or proximately

caused any damages to the Mladineos. The majority holds that summary judgment was

improperly granted, and remands the negligence claim against Schmidt to the trial court for

proceedings to determine whether Schmidt breached his duty and proximately caused any

damages. However, in the same opinion, the majority also holds:

              The trial court was correct: even if Schmidt breached his duty as an
       insurance agent to procure the requested coverage, the Mladineos’ silence was
       the proximate cause of their damage. If they had executed their duty to read

                                              29
       the policy, they would have noticed that the policy plainly did not cover the
       things that they assumed “hurricane” policies would cover. Therefore, the trial
       court is affirmed as to the dismissal of the claim for negligent failure to
       procure requested coverage.

(Maj. Op. at ¶ 38) (emphasis original).

¶72.   The majority’s analysis is contradictory. The proximate cause of the Mladineos’

damages would remain the same under a negligence theory or a negligent-failure-to-procure

theory. Likewise, the duty to read and the imputed-knowledge provisions would apply under

both theories.   Further, the majority also applies those provisions to the negligent-

misrepresentation theory. The majority holds:

               Based on the foregoing analysis, the Mladineos reasonably cannot have
       relied on the alleged assurances of coverage by Schmidt that directly
       contradicted the plain language of the policy they had in their possession.
       Because at least one of the elements required for a negligent-misrepresentation
       claim is not present, we affirm the trial court’s grant of summary judgment as
       to the claim of negligent misrepresentation.

(Maj. Op. at ¶ 47).

¶73.   The majority contradicts itself once again in the last paragraph when it holds that

summary judgment was improper as to the issue of Schmidt’s negligence, but was proper as

to all other issues, “as well as to public policy.” (Maj. Op. at ¶ 61).

¶74.   The majority fails to adequately explain how it carves out an exception to the duty to

read and the imputed-knowledge provisions under only the negligence theory. The majority

also fails to adequately explain how Schmidt possibly could have proximately caused the

damages under the negligence theory but not under the negligent-failure-to-procure or

negligent-misrepresentation theories, when all three theories are intertwined.




                                              30
¶75.   In the second amended complaint, the Mladineos asserted three counts: failure of an

agent to procure requested coverage, negligence, and negligent misrepresentation. With

regard to the negligence count, the Mladineos reasserted the allegations of their failure-to-

procure count and also alleged:

              Said defendants were negligent in not properly and completely
       inspecting the property; in not seeing the obvious pier and boathouse to the
       rear of the property; by not taking further precautions about procuring
       coverage for damage which could be caused by water, given the fact that the
       rear portion of the property was in a flood zone; by not ascertaining the exact
       flood plain status of the subject real property; by not informing John of the
       exact flood plain status of the subject real property; by being unfamiliar with
       the terms of the policies being marketed; by not informing John of the
       exclusions under the policy; by not offering flood insurance; by not
       maintaining proper notes and other documents, including a properly completed
       and signed application; and by other similar sloppy and negligent acts.

With regard to the negligent-misrepresentation count, the Mladineos also reasserted the

allegations in the two prior counts. It is impossible to separate these counts.

¶76.   Dr. John Mladineo testified during his deposition that he never had requested a

separate flood insurance policy from Schmidt on the unoccupied, two-story home in Ocean

Springs. Mladineo further testified that he never had asked Schmidt to investigate and

determine the exact flood-plain status of the entire property and that he never read his policy

once he received it. Further, Mladineo testified that Schmidt “also indicated ‘Since you were

not in the flood plain, the bank would not require a flood pol – a separate flood policy.’”

Later, Mladineo again testified: “I think his wording was, ‘Since you’re not in the flood

plain, the bank would not require a separate flood insurance policy.’” This testimony does

not indicate that Schmidt told Mladineo he did not need flood insurance, but merely says that




                                              31
the bank was not going to require it. Further, the claims for the pier and the boathouse

ultimately were paid.

¶77.   The majority cites McKinnon v. Batte, 485 So. 2d 295, 297 (Miss. 1986), for the duty

of an insurance agent. However, McKinnon involved a jury verdict for the defendants, as

opposed to summary judgment. Also, the McKinnon opinion opens with a statement that the

“primary issue of this appeal is the duty owed by a licensed surveyor to those with whom he

has contracted to perform a survey.” Id. at 296. More importantly, the portion of McKinnon

on which the majority relies specifically says:

              “It seems to be a well-settled rule that if an agent or broker with a view
       of being compensated agrees to procure insurance for another and through
       fault or neglect fails to do so, he will be liable for any damage that results
       thereby.” Simpson v. M.P. Enterprises, Inc., 252 So. 2d 202, 207 (Miss.
       1971). The standard of care of an insurance agent is “to use that degree of
       diligence and care with reference thereto which a reasonably prudent [person]
       would exercise in the transaction of his own business.” Security Insurance
       Agency, Inc. v. Cox, 299 So. 2d 192, 194 (Miss. 1974).7 The Court holds the
       jury was properly instructed as to the applicable standard of care for the
       defendant Batte.

McKinnon, 485 So. 2d at 297.

¶78.   Again, the instant case involves summary judgment, not jury instructions. Further,

there is no evidence that Schmidt agreed to procure flood insurance for Mladineo and then

failed to do so. Finally, there is no basis to find, under the applicable authority, that Schmidt

somehow had a duty to sell the Mladineos more insurance than they actually sought to

procure or to convince them to purchase additional policies which were not required.


       7
        Security Insurance Agency, Inc. v. Cox, 299 So. 2d 192, 194 (Miss. 1974), was a
case involving an agency’s duty to inform an insured that his policy on a rental house would
not be renewed. Such is not the case here.

                                               32
¶79.   As acknowledged by the majority, the Mladineos had a duty to read the policy, were

imputed with knowledge of its terms and had the responsibility to cure any deficiencies in

coverage. As also acknowledged by the majority, Schmidt was not the proximate cause of

the Mladineos’ damages. The claims for negligence, negligent failure to procure, and

negligent misrepresentation are intertwined and must be analyzed consistently. Because I

would hold that the trial court must be affirmed in toto, I respectfully concur in part and

dissent in part.




                                            33
