                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 23, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    ROCKY WALKER; KRISTI
    WALKER,

                Plaintiffs-Appellants,
                                                          No. 11-5122
    v.                                        (D.C. No. 4:09-CV-00556-TCK-PJC)
                                                          (N.D. Okla.)
    PROGRESSIVE DIRECT
    INSURANCE COMPANY,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, McKAY, and GORSUCH, Circuit Judges.



         Plaintiffs Rocky and Kristi Walker appeal from the district court’s

decisions granting summary judgment in favor of defendant Progressive Direct

Insurance Company and denying the Walkers’ motion to alter or amend the

judgment. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                         I.

      The Walkers were covered by a Progressive insurance policy for their 2003

Chevrolet Tahoe. On July 29, 2008, Ms. Walker called Progressive to report that

their vehicle had been stolen while they were out of town on vacation. The

vehicle was recovered, but it had been burned and suffered damage. On

August 22, Progressive decided to refer the claim to its Special Investigations

Unit (“SIU”) because: (1) the vehicle was for sale at the time of the loss, (2) the

column was not compromised, (3) the vehicle was a “gas guzzler”; and (4) both

sets of keys were in the Walkers’ possession at the time of loss. Aplt. App.,

Vol. 2 at 566. An expert for Progressive testified that these factors are “generally

recognized indicators of insurance fraud.” Id., Vol. 1 at 471. On August 25,

Progressive notified the Walkers that there were certain coverage issues with their

claim and that it was being investigated by the SIU.

      On September 9, Progressive requested that the Walkers provide them with

a key for inspection and copies of vacation photographs to prove that they were

out of town when the theft occurred. As of September 16, Progressive had not

received the requested items so it again asked the Walkers to provide them. On

September 25, Progressive received copies of the vacation photos and a key.

Upon review of the photos, it appeared as though the photos had been altered.

      On October 7, Progressive’s claim file notes that a “possible issue surfaced

with the keys.” Id. at 296. The Walkers’ stated that they had only two keys to

                                        -2-
the vehicle and had both keys in their possession at the time of the theft, but a

Progressive employee discovered the existence of a third key. On that same day,

a Progressive employee left a voicemail message for Ms. Walker asking for a call

back, requesting receipts and further documentation from their vacation, advising

her that the vacation photos did not seem to be original photos, and informing her

that Progressive would like to speak with the other parties who accompanied the

Walkers on vacation. Progressive did not hear back from Ms. Walker. On

October 16, Progressive sent a letter to the Walkers by regular and certified mail

following up on its request for receipts from the Walkers’ vacation.

      On November 3, Mr. Walker contacted Progressive by email, stating that no

one had contacted them in over a month about their car. On that same day, Doug

Mallory, a Progressive employee, spoke with Ms. Walker and she denied

receiving the October 16 letter. Mr. Mallory asked about the vacation photos and

Ms. Walker explained that the photos were taken with a blank background and

then they could select a background of their choice. She provided a website so

that Mr. Mallory could review the photos. Mr. Mallory did review the photos and

confirmed the pictures and dates matched what Ms. Walker had submitted to

Progressive.

      Progressive’s claim file notes that the origin of the third key remained

unresolved as of November 3. The next day, however, the claim file notes that

Progressive had authorized coverage for the loss and that the documentation had

                                         -3-
shown the Walkers were not in town on the date of loss. On November 17,

Progressive notified the Walkers that it had completed its coverage review, had

resolved the coverage issue, and would be providing coverage for their loss.

      On June 12, 2009, the Walkers brought suit in state court asserting that

Progressive acted in bad faith in the handling of their insurance claim.

Progressive removed the action to federal court and then moved for summary

judgment. The district court granted summary judgment in Progressive’s favor.

The Walkers filed a motion for a new trial, which the district court construed as a

motion to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules

of Civil Procedure. The district court denied the motion. The Walkers now

appeal.

                                          II.

      To establish a bad-faith claim, the Walkers must show, among other things,

that Progressive’s actions were unreasonable under the circumstances and that

Progressive failed to deal fairly and act in good faith in the handling of the

Walkers’ claim. See Badillo v. Mid Century Ins. Co., 121 P.3d 1080, 1093 (Okla.

2005). When considering a motion for summary judgment on a bad-faith claim

under Oklahoma law, a district court “must first determine, under the facts of the

particular case and as a matter of law, whether insurer’s conduct may be

reasonably perceived as tortious.” Oulds v. Principal Mut. Life Ins. Co., 6 F.3d

1431, 1336-37 (10th Cir. 1993). “Until the facts, when construed most favorably

                                          -4-
against the insurer, have established what might reasonably be perceived as

tortious conduct on the part of the insurer, the legal gate to submission of the

issue to the jury remains closed.” Id. at 1437.

      In Progressive’s motion for summary judgment, it argued that the Walkers’

had failed to offer any evidence showing that its actions were unreasonable or

taken in bad faith. In response to Progressive’s motion for summary judgment,

the Walkers explained that “[t]he grounds on which [Progressive] has breached its

duty of good faith and fair dealing . . . concern the focus and method of

[Progressive’s] investigation, not any alleged disagreement concerning the value

of the loss or whether [Progressive] had a right to investigate whether [the

Walkers] were involved in the theft.” Aplt. App., Vol. 2 at 552. They alleged

that Progressive conducted an untimely and improper investigation based on

Progressive’s handling of two issues--the existence of the third key to their car

and the authenticity of the vacation photos. Specifically, the Walkers argued that

Progressive’s actions were unreasonable because “[i]t was knowable to the

insurance company that the pictures were valid and that the third key was created

after the loss.” Id. at 558. The Walkers also complained that Progressive

“allowed the ‘key’ issue to be presented to its expert, Barry Zalma, who used that

to accuse the [Walkers] of fraud in his 2/25/10 expert report.” Id. at 553.

      After considering the parties’ submissions, the district court concluded that

the Walkers could not defeat Progressive’s motion for summary judgment because

                                         -5-
they had failed to explain how they were damaged by Progressive’s alleged

unreasonable actions, which is a required element of a bad faith claim, and they

had further failed to show that Progressive’s investigation was unreasonable. As

the court explained, “although Progressive did not immediately call Dixie

Stampede [, where the photos were reportedly taken,] to confirm the legitimacy of

the Branson photographs, as [the Walkers] contend should have occurred,

Progressive determined the validity of the pictures by other means.” Id. at 705.

With respect to the third-key issue, the district court stated that the Walkers’

“reliance on Zalma’s use of the third key in his expert report is misplaced, as this

report was prepared in the course of this litigation and was not part of

Progressive’s investigation, making it inapplicable to [the Walkers’] bad faith

claim.” Id. Finally, the court explained that although it “might have been

preferable for Progressive to determine the origin of the third key prior” to the

deposition of one the repair shop employees who testified that he created the key

himself, “an insurer’s investigation need only be reasonable, not perfect.” Id.

(quotations omitted).

                                         III.

      We review de novo the grant of summary judgment, applying the same

standard as the district court. Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243,

1246 (10th Cir. 2010). Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter

                                          -6-
of law.” Fed. R. Civ. P. 56(a). We review for abuse of discretion the district

court’s denial of a Rule 59(e) motion. Phelps v. Hamilton, 122 F.3d 1309, 1324

(10th Cir. 1997).

      On appeal, the Walkers argue that the district court erred in granting

summary judgment because (1) Progressive did not meet its initial burden of

proof; (2) there were jury questions as to Progressive’s investigation;

(3) Progressive’s post-litigation conduct was a continuation of its improper

investigation; and (4) there was a genuine issue as to the Walkers’ damages. The

Walkers further argue that the district court abused its discretion in denying their

Rule 59(e) motion.

      The federal rules require that an appellant support the arguments in its

opening brief “with citations to the authorities and parts of the record on which

the appellant relies,” Fed. R. App. P. 28(a)(9)(A), and “[i]t is well-settled that

arguments inadequately briefed in the opening brief are waived,” United States v.

Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (quotation omitted). Progressive

contends that “[t]he Walkers’ Opening Brief consists almost entirely of

conclusory assertions, unsupported by citations to case law and/or the district

court record.” Aplee. Br. at 17. Progressive further contends that the Walkers

have waived some of their arguments due to inadequate briefing. We agree with

both contentions.




                                          -7-
       The Walkers’ brief contains a meager five pages of argument; there are no

citations to the district court record in any of the argument sections and many of

the assertions are conclusory and fail to sufficiently explain how the district court

erred. For example, the Walkers present one paragraph to support their first issue

in which they contend that Progressive did not meet its “initial burden of proof”

and did “not address the undisputed material facts set forth by Plaintiff.” Aplt.

Br. at 8. Other than a passing reference to Fed. R. Civ. P. 56, the Walkers offer

no legal authority for their argument and no citations to the record to demonstrate

how Progressive failed to address their undisputed material facts. Id.

      Next, the Walkers assert that there are jury questions regarding

Progressive’s investigation, but the bulk of this argument section is a string of

case citations with no explanation of how the cited cases demonstrate error in

light of the facts of their own case. See id. at 9-10. Near the conclusion of this

section, the Walkers do state that “one of the facts not investigated by

PROGRESSIVE was the storage fee.” Id. at 10. But even this statement is not

supported by a citation to the record. See id. The lack of record citation may be

due to the fact that the Walkers did not raise this issue in their response to

summary judgment. The Walkers’ bad-faith claim was based on Progressive’s

handling of the existence of the third key and its position that the vacation photos

were not originals. See Aplt. App., Vol. 2 at 553, 557-558. They did not argue

that any failure by Progressive to investigate a storage fee constituted bad faith.

                                          -8-
See id. at 552-558. Failing to raise an argument with the district court provides

another basis for waiver. See Harsco Corp. v. Renner, 475 F.3d 1179, 1190 (10th

Cir. 2007).

      Finally, the Walkers present a mere two sentences in support of their claim

that the district court abused its discretion in denying their Rule 59(e) motion.

They state: “The District Court’s Order granting summary judgment was, as a

matter of law, adverse to the cause of bad faith of the State of Oklahoma. See

McCorkle v. Great Atlantic Ins. Co., 1981 OK 128, 637 P.2d 503 (Reasonableness

is a jury question). As such, there was clear error on the need to prevent manifest

injustice.” Aplt. Br. at 12. The Walkers have not adequately explained or

developed this issue. “Perfunctory complaints that fail to frame and develop an

issue are not sufficient to invoke appellate review.” Femedeer v. Haun, 227 F.3d

1244, 1255 (10th Cir. 2000) (quotation omitted).

      For the foregoing reasons, we conclude that the Walkers have waived their

first, second and fifth issues due to inadequate briefing and/or failing to raise

them with the district court in the first instance.

      In their third issue, the Walkers complain that Progressive’s post-litigation

conduct was a continuation of its improper investigation and that the district court

failed to properly consider this issue. They argue that it was twenty months

before Progressive determined the origin of the third key and that Progressive’s

expert accused them of felony insurance fraud in his expert report. This argument

                                           -9-
has no relevance to the Walkers’ bad-faith claim. The fact that the origin of the

key was not determined until March 2010 did not impact the timeliness or the

reasonableness of the investigation into the Walkers’ claim. Once Progressive

verified that the Walkers were out of town during the date of loss, it authorized

coverage for the claim, even though the origin of the third key remained

unresolved. We therefore agree with Progressive that “it was irrelevant when

Progressive determined the origin of the third key because Progressive agreed to

pay for the repairs to The Vehicle in November 2008.” Aplee. Br. at 31.

Likewise, we agree with the district court that the expert report prepared for the

litigation in February 2010 is inapplicable to the Walkers’ bad-faith claim, which

was based on Progressive’s investigation from the date the claim was submitted

on July 29, 2008, until coverage was authorized on November 17, 2008.

      In their fourth issue, the Walkers contend that there is a genuine issue as to

their damages. We need not reach this issue, however, because we agree with the

district court’s alternate holding that the Walkers failed to show that

Progressive’s handling of the vacation photos or the third-key issue was

unreasonable or rose to the level of bad faith.

                                         IV.

      We AFFIRM the district court’s judgment.

                                                     Entered for the Court


                                                     Monroe G. McKay
                                                     Circuit Judge

                                         -10-
