     Case: 18-60001      Document: 00514751108         Page: 1    Date Filed: 12/06/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 18-60001
                                                                                FILED
                                                                        December 6, 2018
                                                                           Lyle W. Cayce
GEORGE MEARS,                                                                   Clerk

              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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 18-60001      Document: 00514751108        Page: 2    Date Filed: 12/06/2018



                                     No. 18-60001
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.
                                            2
    Case: 18-60001      Document: 00514751108   Page: 3   Date Filed: 12/06/2018



                                 No. 18-60001
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


                                       3
    Case: 18-60001      Document: 00514751108        Page: 4    Date Filed: 12/06/2018



                                    No. 18-60001
[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).
                                           4
    Case: 18-60001    Document: 00514751108     Page: 5   Date Filed: 12/06/2018



                                 No. 18-60001
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
                                       5
    Case: 18-60001    Document: 00514751108      Page: 6     Date Filed: 12/06/2018



                                 No. 18-60001
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).


                                        6
     Case: 18-60001       Document: 00514751108         Page: 7     Date Filed: 12/06/2018



                                       No. 18-60001
       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
                                              7
     Case: 18-60001      Document: 00514751108        Page: 8     Date Filed: 12/06/2018



                                     No. 18-60001
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.
                                            8
    Case: 18-60001    Document: 00514751108     Page: 9   Date Filed: 12/06/2018



                                 No. 18-60001
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

                                       9
    Case: 18-60001    Document: 00514751108       Page: 10   Date Filed: 12/06/2018



                                  No. 18-60001
“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
                                        10
   Case: 18-60001     Document: 00514751108        Page: 11   Date Filed: 12/06/2018



                                    No. 18-60001
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
                                         11
   Case: 18-60001     Document: 00514751108     Page: 12   Date Filed: 12/06/2018



                                 No. 18-60001
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

                                       12
    Case: 18-60001      Document: 00514751108       Page: 13    Date Filed: 12/06/2018



                                    No. 18-60001
      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 Casualty 5 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.
                                          13
    Case: 18-60001       Document: 00514751108        Page: 14     Date Filed: 12/06/2018



                                      No. 18-60001
Bureau submit— unrebutted by Mears 6—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.
                                            14
   Case: 18-60001     Document: 00514751108     Page: 15   Date Filed: 12/06/2018



                                 No. 18-60001
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

                                       15
    Case: 18-60001       Document: 00514751108          Page: 16     Date Filed: 12/06/2018



                                       No. 18-60001
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.
                                             16
    Case: 18-60001        Document: 00514751108    Page: 17   Date Filed: 12/06/2018



                                    No. 18-60001
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 slip-
and-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
                                         17
    Case: 18-60001        Document: 00514751108           Page: 18     Date Filed: 12/06/2018



                                        No. 18-60001
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
                                               18
    Case: 18-60001       Document: 00514751108          Page: 19     Date Filed: 12/06/2018



                                       No. 18-60001
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.
                                             19
    Case: 18-60001    Document: 00514751108      Page: 20   Date Filed: 12/06/2018



                                  No. 18-60001
      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
                                        20
   Case: 18-60001     Document: 00514751108      Page: 21   Date Filed: 12/06/2018



                                  No. 18-60001
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.




                                       21
