                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


OUT OF CHAOS, LIMITED,                 
                Plaintiff-Appellant,
                 v.
AON CORPORATION; AON/ALBERT G.
RUBEN INSURANCE SERVICES,
             Defendants-Appellees,
                and                             No. 00-2592
THE CHUBB CORPORATION; THE
FEDERAL INSURANCE COMPANY;
VIGILANT INSURANCE COMPANY;
PACIFIC INDEMNITY COMPANY; THE
INSURANCE COMPANY OF THE STATE OF
PENNSYLVANIA,
                       Defendants.
                                       
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
               Leonie M. Brinkema, District Judge.
                         (CA-00-592-A)

                       Argued: June 6, 2001

                      Decided: August 3, 2001

  Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge,
   and Andre M. DAVIS, United States District Judge for the
          District of Maryland, sitting by designation.



Affirmed by unpublished per curiam opinion.
2                     OUT OF CHAOS v. AON CORP.
                              COUNSEL

ARGUED: Edward Brian MacMahon, Jr., LAW OFFICE OF
EDWARD B. MACMAHON, JR., Middleburg, Virginia, for Appel-
lant. Davis D. Carr, AON CORPORATION, Chicago, Illinois, for
Appellees. ON BRIEF: Daniel D. Kasten, AON CORPORATION,
Chicago, Illinois; Griffith Lowell Green, SIDLEY & AUSTIN, Wash-
ington, D.C., for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).



                              OPINION

PER CURIAM:

   Appellant, Out of Chaos, Ltd ("OCL"), a "start up" film production
company, filed a multi-count lawsuit against Appellees Aon Corpora-
tion and Aon/Albert G. Ruben Insurance Services (hereinafter,
jointly, "Aon/AGR"), an insurance agency, and other entities not par-
ties to this appeal, in the United States District Court for the Eastern
District of Virginia, seeking substantial damages for losses OCL
incurred in connection with an aborted film production. The district
court granted judgment on the pleadings in favor of Appellees on
OCL’s claims for fraud and conversion. Subsequently, at the conclu-
sion of discovery, the district court granted summary judgment in
favor of Appellees on OCL’s negligence claims.1 We discern no error
in the district court’s rulings; accordingly, we affirm.

    1
   The district court also granted summary judgment to Aon/AGR on
OCL’s breach of contract claim, but OCL has waived its right to appeal
the unfavorable judgment on the breach of contract claim by failing to
address it in its appellate briefs. Canady v. Crestar Mortgage Corp., 109
F.3d 969, 973 (4th Cir. 1997).
                     OUT OF CHAOS v. AON CORP.                       3
                                   I

   Brothers James and Randall Starrett formed OCL and entered into
a one million dollar contract with Discovery Communications, Inc.
("Discovery"), to film "Tournament of Shadows," a docudrama about
the British explorer Sir Francis Younghusband’s expedition into the
mountains of central Asia.

   On Discovery’s recommendation, the Starretts contacted Kristi
Jones, a broker with Aon/AGR, to secure insurance for their undertak-
ing, as the contract required. Jones advised the Starretts that OCL
would be eligible to obtain insurance under the Discovery blanket
policy with Chubb. Jones faxed to OCL a document which stated as
follows: "The following brief description of motion picture and televi-
sion production insurance is general in nature and is not meant to be
a complete explanation of the policy terms. Specimen policies are
available through our firm." (J.A. 336.) The Starretts never requested
specimen policies prior to paying the necessary premiums. Randy
Starrett testified on deposition that he understood that the policies
"cover[ed] all risk [sic] except those risks which are excepted." (J.A.
339.)

   In fact, Aon/AGR procured coverage for that part of OCL’s pro-
duction of "Tournament of Shadows" that would not be based in Paki-
stan under a package of insurance provided by Federal Insurance
Company, Vigilant Insurance Company and Pacific Indemnity Com-
pany, three companies affiliated with Chubb Corporation (hereinafter,
collectively, "Chubb"). Aon/AGR obtained on OCL’s behalf a sepa-
rate foreign policy from the Insurance Company for the State of Penn-
sylvania ("ICSOP") to provide workers’ compensation, automobile
and commercial general liability insurance for filming in Pakistan.

   In her communications with the Starretts, Jones did not explain
every policy exclusion. Specifically, she did not explain that there
was an employee infidelity exception in the Chubb coverage. Signifi-
cantly, neither of the Starretts advised Jones that OCL faced any spe-
cial risk of misconduct by employees or representatives. Moreover,
James Starrett specifically stated on deposition that he would not have
attempted to purchase different or additional insurance had he known
beforehand about the employee infidelity exclusion.
4                    OUT OF CHAOS v. AON CORP.
   Aon/AGR faxed OCL confirmation that it had bound OCL’s insur-
ance effective in June 1997. The fax transmission included a declara-
tions page stating that all standard exclusions applied.

   After it had obtained the insurance, OCL hired Pavel Lounguine to
develop the screenplay and direct the film; shortly thereafter, filming
began in Pakistan. Relations between Lounguine and the Starretts
soon soured. By the time principal photography in Pakistan had been
completed in December 1997, the project was seriously over budget.
Lounguine and his editor went to Paris to process and assemble the
film. In February 1998, after he had completed this work, Lounguine
absconded with the computer disks containing the film assembly and
announced he would no longer work for OCL.

   In March 1998, Lounguine filed a lawsuit against OCL in Paris
("the French lawsuit"), and the bailiff of the French court seized the
film. Discovery advised OCL that it must settle the French lawsuit
and cease all production activity. By April 1998, OCL’s counsel had
negotiated a settlement of the French lawsuit "upon terms dictated by"
Discovery. Discovery obtained possession of the film, which it
retains. Pursuant to the French settlement, OCL paid $7,000 uncondi-
tionally, and it deposited an additional $45,875 in escrow. When the
French lawsuit was not dismissed as required by the settlement, the
French court dismissed the case. Virtually all of the escrowed settle-
ment funds were returned to OCL. Discovery advised OCL that
before OCL could regain possession of the film and complete the pro-
duction, it had to pay the extra expenses the project had incurred,
totaling $975,510. (J.A. 125.) OCL has not paid these extra costs and
has never completed the film.

   A portion of the damages OCL sought in this action allegedly
resulted directly from the French lawsuit and its surrounding circum-
stances, while other claimed damages resulted indirectly. In particu-
lar, OCL alleged that it incurred $63,057 in defense costs in
connection with the French lawsuit. According to OCL, its other dam-
ages claims against Aon/AGR are rooted in (1) the "undisclosed"
employee infidelity exclusion in the Chubb coverage and (2) the con-
fusion and delay (which OCL asserts resulted in the failure of the
entire production) attending Aon/AGR’s awkward efforts to process
and deliver to the appropriate insurers OCL’s claims for indemnity
                      OUT OF CHAOS v. AON CORP.                          5
under the policies that Aon/AGR had obtained on OCL’s behalf from
the various insurers.2 In short, OCL has sought to assign as a cause
of the collapse of the film project Aon/AGR’s acts and omissions.

   Ultimately, OCL filed this suit in April 2000. OCL joined as defen-
dants all of the insurers with whom Aon/AGR had placed insurance,
as well as Aon/AGR. Eventually, all defendants except Aon/AGR
were dismissed from the lawsuit. Specifically, ICSOP settled with
OCL and paid it $113,097.32. According to the uncontradicted affida-
vit of ICSOP’s vice-president, even if ISCOP had received timely
notice of the French lawsuit, ISCOP would have merely provided
OCL a defense through a reasonable period (i.e., September 1998) in
order to effect a reasonable settlement, which OCL had indeed
achieved on its own, albeit under pressure from Discovery. Chubb
also settled the claims asserted by OCL’s in this action, but the terms
of that settlement are not in the record.3

                                    II

  As relevant to this appeal, in its amended complaint OCL asserted
  2
     The record is not entirely clear as to when OCL notified Aon/AGR
about the French lawsuit and its production delay losses, and as to when
Aon/AGR notified the various insurance companies providing coverage
to OCL. OCL asserts that it notified Jones at Aon/AGR in late March
1998 of the French lawsuit. OCL requested that Aon/AGR notify Vigi-
lant Insurance Company, Pacific Indemnity Company and "any other
insurance company that affords [OCL] coverage for" the lawsuit and the
costs of the delay. (J.A. 68.) In November 1998, Aon/AGR forwarded
notice of OCL’s claims to Chubb, but mistakenly, not to ICSOP. From
December 1998 to July 1999, a Chubb employee in New Jersey repeat-
edly told OCL’s attorney that Chubb’s property policy did not cover
OCL’s claims. Another Chubb employee in Los Angeles erroneously
informed OCL in September 1999 that a workers’ compensation policy
was the only policy Chubb had sold to OCL. Chubb later acknowledged
that it also sold the other policies to OCL, but asserted that OCL’s claims
were not covered because of the employee infidelity exclusion.
   3
     OCL also brought an action against Lounguine in the United States
District Court for the Eastern District of Virginia and has obtained a
default judgment in the amount of $3.1 million.
6                     OUT OF CHAOS v. AON CORP.
three claims against Aon/AGR: (1) fraud; (2) conversion; and negli-
gence.

    The district court entered judgment on the pleadings in respect to
the claims for fraud and conversion. The court noted that under Rich-
mond Metropolitan Authority v. McDevitt, Street, Bovis, Inc., 507
S.E.2d 344 (Va. 1998), a claim for an alleged misrepresentation as to
a duty or obligation that was specifically required by a contract
sounds in contract. The district court observed that fraud in the
inducement would be an exception to the rule in that case, and repeat-
edly indicated that if OCL could, within "the strictures of Rule 11,"
allege that Aon/AGR "told you something, never intending to perform
it," then OCL could further amend its complaint. (J.A. 245, 262-63,
269.) OCL never attempted further to amend its complaint.

   The parties proceeded with discovery as to the contract and negli-
gence claims and Aon/AGR filed a motion for summary judgment.
During oral argument on Aon/AGR’s motion, counsel for OCL con-
ceded that it was "clear that [Aon/AGR] bought insurance for my cli-
ent that’s been produced in discovery and it is there," and that the
issue OCL "tried to raise is whether it was the appropriate insurance,"
which was "more of a negligence question than a contract claim."
(J.A. 396.)

   Accordingly, the district court granted summary judgment for
Aon/AGR on the breach of contract claim because it was clear
Aon/AGR had procured insurance. The surviving claims concerned
the adequacy of that insurance and the reasonableness of Aon/AGR’s
handling of the claim processing efforts it undertook. The district
court granted summary judgment on the negligence claims, as well,
however, ruling that the undisputed facts established that the insur-
ance policies that OCL obtained were essentially the standard sort of
policies ordinarily obtained by, or for, Discovery, if not also the entire
film industry, and that OCL had communicated no unique or special
issues which could have placed Aon/AGR on notice that it had a duty
to obtain a policy that would provide coverage for losses occasioned
by employee infidelity. Furthermore, the district court concluded that
OCL had failed to establish that any of the damages that it suffered
were proximately caused by a breach of duty chargeable to Aon/AGR
in its handling of the claims processing functions.
                      OUT OF CHAOS v. AON CORP.                         7
                                   III

   We review de novo a district court’s grant of judgment on the
pleadings under Federal Rule of Civil Procedure 12(c). Pacific Ins.
Co. v. American Nat’l Fire Ins., 148 F.3d 396, 405 (4th Cir. 1998),
cert. denied, 525 U.S. 1104 (1999). In so doing, we apply the standard
for a Rule 12(b)(6) motion. Edwards v. City of Goldsboro, 178 F.3d
231, 243 (4th Cir. 1999). We review the grant of summary judgment
de novo, Chisolm v. UHP Projects, Inc., 205 F.3d 731, 734 (4th Cir.
2000), applying the standards of Fed. R.Civ. P. 56.

                                   IV

   OCL’s amended complaint alleged that Aon/AGR committed fraud
and conversion when it did not obtain the insurance it agreed to obtain
and when it utilized OCL’s insurance premiums for its own purposes.
Under Virginia law, "a party can, in certain circumstances, show both
a breach of contract and a tortious breach of duty." Richmond Metro-
politan Authority v. McDevitt, Street, Bovis, Inc., 507 S.E.2d 344, 347
(Va. 1998) (internal quotations omitted).4 The Virginia Supreme
Court further held that "the duty tortiously or negligently breached
must be a common law duty, not one existing between the parties
solely by virtue of the contract." Id. (internal quotations omitted).

   A claim for "fraud in the inducement" is not foreclosed by the rule
of McDevitt, Street, Bovis, Inc., 507 S.E.2d at 348 (citing Flip Mort-
gage Corp. v. McElhone, 841 F.2d 531 (4th Cir. 1988)). To make out
such a claim, the plaintiff must allege facts that demonstrate the
defendant’s intent (at the time the promises are made) never to abide
by the terms of the contract. Id. When, as in the instant case, the alle-
gations of fraud or conversion "are nothing more than allegation[s] of
negligent performance of contractual duties," such alleged breaches of
duty are not actionable in tort. Id. at 347.

  Essentially, OCL alleged that it had a contract with Aon/AGR that
OCL would pay premiums and Aon/AGR would secure insurance for
"Tournament of Shadows." OCL alleged that Aon/AGR did not
  4
   The parties agreed that the substantive law of Virginia is controlling.
8                      OUT OF CHAOS v. AON CORP.
secure insurance as the contract required, and made fraudulent state-
ments and issued fraudulent documents stating that it had. In addition,
OCL alleged that Aon/AGR converted OCL’s premiums for its own
use. Each of these alleged wrongful acts arise from Aon/AGR’s con-
tractual duty to OCL, i.e., to use OCL’s payments to buy insurance.
Aon/AGR had no separate common law duty to do these things for
OCL; rather, such duties inhere solely in Aon/AGR’s contractual
undertakings.

    Plainly, as the district court correctly concluded, OCL did not plead
that it had been fraudulently induced to enter into the (oral) contract
with Aon/AGR for the procurement of insurance.5 Nor is there a scin-
tilla of evidence that Aon/AGR misapplied funds intended for use as
premium payments. Thus, the district court properly entered judgment
on the pleadings as to the claims for fraud and conversion.6

                                     V

   We are likewise satisfied that the district court did not err in grant-
ing summary judgment to Aon/AGR on OCL’s negligence claims.
OCL theorized that Aon/AGR negligently "fail[ed] to procure [ade-
quate] insurance" and negligently "fail[ed] to professionally process"
OCL’s claims for coverage. Even if Aon/AGR had an independent
    5
     OCL’s fraud allegations concern statements or verbal acts Aon/AGR
made after the contract had been formed. For example, OCL alleged:
Aon/AGR "repeatedly stated that it had procured the Chubb insurance
package for OCL"; "Aon and Chubb delivered to OCL various insurance
certificates and declaration sheets indicating that OCL was insured. . . ."
(J.A. 141-43.)
   6
     OCL purports to challenge the district court’s entry of judgment on
the pleadings by making allegations that are not set forth in its amended
complaint. For instance, OCL now argues that Aon/AGR’s fraud was to
induce OCL to enter a contract for insurance when Aon/AGR knew it
planned to buy the insurance from a company, Chubb, which would lose
its policy and fail to pay its claims. It is patent, however, that post facto
arguments about matters not in the pleadings and raised for the first time
on appeal will not provide an appellate court grounds to reverse a district
court’s grant of judgment on the pleadings. See Northern Indiana Gun
& Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 453 n.5 (7th
Cir. 1998).
                     OUT OF CHAOS v. AON CORP.                        9
tort duty to comply with a relevant standard of care which required,
specifically, that it disclose and explain to the Starretts the employee
infidelity exclusion, or to expeditiously process OCL’s claims, and
even if we assume that Aon/AGR breached these duties, there is no
genuine dispute of material fact whether OCL suffered any damages
proximately caused by these ostensible breaches. It did not.

                                   A

   The district court correctly granted summary judgment to
Aon/AGR on the adequacy of insurance issue because the record
stands undisputed that even if James Starrett had obtained actual pos-
session of the policy documents (as he was invited to do) and dis-
cussed with Jones, the Aon/AGR broker, the employee infidelity
clause in the Chubb coverage, he would not have sought substitute
coverage or otherwise done anything differently. Thus, the fact that
the Chubb coverage obtained by Aon/AGR contained an employee
infidelity exclusion was not a proximate cause of injury to OCL.

                                   B

   Similarly unavailing is OCL’s contention that Aon/AGR’s breach
of its duty to process OCL’s claims in a professionally reasonable
manner and to provide timely notice of loss to the respective insur-
ance companies proximately caused injury to OCL. Even if Aon/AGR
had an independent duty to provide timely notice to the insurers of
OCL’s claims, the breach of which would give rise to a claim sound-
ing in tort, OCL failed to generate a genuine dispute of material fact
as to whether a breach of such duty caused it injury or damage.

   It is undisputed that ICSOP’s policy covered third party claims for
personal injury or property damage, and that the French lawsuit
included a claim for personal injury to Lounguine. Thus, there was a
potentiality of coverage. ICSOP, though belatedly notified of the
French litigation, has settled with OCL, paying recompense for the
direct damages caused by the French lawsuit. (J.A. 378.) Without
contradiction, ICSOP’s vice-president has attested that had ICSOP
known about the French lawsuit while it was pending,7 it would have
  7
   OCL settled the French lawsuit on March 30, 1998, only six days
after OCL allegedly first notified Aon/AGR of its existence.
10                   OUT OF CHAOS v. AON CORP.
covered OCL’s defense costs only for the purpose of securing a
prompt settlement of that action. (J.A. 379.) OCL alleges it was
forced to settle the French lawsuit because no insurance company
came forward to defend it; however, the most that OCL would have
obtained from ICSOP would have been assistance in settling the case.
More to the point, it was Discovery that insisted that OCL cease film
production and settle the French case immediately. Pursuant to the
French settlement, OCL paid $7,000 unconditionally and deposited an
additional $45,875 in escrow. When Lounguine failed to dismiss the
French lawsuit in accordance with the terms of the settlement, virtu-
ally all of the escrowed funds were returned to OCL. As a matter of
law, therefore, as the district court correctly concluded, OCL suffered
no cognizable damage from the delay in ICSOP’s receipt of notice of
the claim.

   OCL alleges that Discovery canceled production of "Tournament
of Shadows" because of the French lawsuit, and that Aon/AGR’s fail-
ure to deliver timely notice to ICSOP of the French lawsuit was there-
fore the proximate cause of the damages flowing from the production
cancellation. These bald allegations are unsupported by any evidence
in the summary judgment record and therefore lack merit. First, as
explained above, even if Aon/AGR had notified ICSOP sooner, this
possibility would not have altered the consequences to OCL of the
seizure of the film and the institution of the French lawsuit. ICSOP,
like Discovery, would have insisted on prompt settlement, which is
precisely what occurred.

   Second, OCL has failed to generate a factual dispute as to whether
the film production was actually canceled as a result of the French
lawsuit. The undisputed evidence in the record shows that, in accor-
dance with the French settlement, the film was returned to Discovery,
which retains possession of it. Discovery informed OCL that it would
not allow it to complete the film until OCL paid Discovery $975,510
in cost overruns. Plainly, it is because OCL has never paid this sum
to Discovery that the production was canceled.

   OCL insists that the $975,510 should have been paid by Chubb or
ICSOP. But there is no factual support in the record for OCL’s asser-
tion that the policies with these companies did or would have required
any such payments. Accordingly, the issue of whether Aon/AGR
                     OUT OF CHAOS v. AON CORP.                     11
unreasonably failed to provide timely notice to the insurers of OCL’s
losses resulting from the cancellation of the production is immaterial
to the issue that is dispositive of OCL’s damages claims based on its
negligence theories.

  In sum, the district court correctly concluded that OCL failed to
produce evidence that Aon/AGR’s acts or omissions were a proxi-
mate cause of OCL’s damages.

                                                         AFFIRMED
