Edward Schaumburg v. State Farm Mutual Auto Ins Co., et al

Filing

UNPUBLISHED OPINION FILED. [09-30714 Affirmed in Part, Reversed in Part, and Remanded] Judge: CDK , Judge: JLW , Judge: JLD Mandate pull date is 04/29/2011 [09-30714]

Case: 09-30714 Document: 00511440452 Page: 1 Date Filed: 04/08/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
April 8, 2011
No. 09-30714

Lyle W. Cayce
Clerk

EDWARD J. SCHAUMBURG,
Plaintiff-Appellant
v.
STATE
STATE
STATE
STATE

FARM
FARM
FARM
FARM

MUTUAL AUTOMOBILE INSURANCE COMPANY;
LIFE INSURANCE COMPANY;
FIRE & CASUALTY COMPANY;
GENERAL INSURANCE COMPANY,
Defendants-Appellees

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-9839

Before KING, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Edward J. Schaumburg was an independent
insurance agent for defendants-appellees State Farm Mutual Automobile
Insurance Company, State Farm Life Insurance Company, State Farm Fire &
Casualty Company, and State Farm General Insurance Company (collectively
“State Farm”) for more than twenty years. Soon after his retirement, he
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.

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brought suit against State Farm, claiming breach of contract, breach of the
duty of good faith and fair dealing, negligent misrepresentation, and fraud.
The district court granted State Farm’s motion for summary judgment and
dismissed all of Schaumburg’s claims. We reverse the dismissal of the
negligent misrepresentation claim, and affirm the dismissal of the other
claims.
I. FACTS & PROCEEDINGS
A. Facts
Schaumburg was a State Farm insurance agent from 1981 until he
retired in 2006. In 1981, Schaumburg entered into a written contract, the
State Farm Agent’s Agreement (hereinafter “Agreement”), to solicit
applications for State Farm insurance as an independent contractor, not as
an employee. Either party could terminate the Agreement at any time by
furnishing written notice to the other. The Agreement was silent as to any
required procedures for or restrictions on Schaumburg’s ability to relocate his
office, other than stating that State Farm “anticipate[d] that in the location or
relocation of [Schaumburg’s] office [Schaumburg would] not unduly infringe
on the established office location of any other agent.”
Schaumburg worked out of his office in Chalmette, Louisiana from 1981
until August 2005, when that office and the surrounding area were destroyed
by Hurricane Katrina. Schaumburg then set up a temporary office in
Metairie, Louisiana. He was not required to sign a new contract or to
relinquish his book of business while he was temporarily located in Metairie.
According to Schaumburg, he did not want to stay in Metairie because it was
crowded with other State Farm agents who had temporarily moved there
after Katrina. He became interested in moving to Belle Chasse, Louisiana.
In September 2005, Schaumburg attended a meeting in Baton Rouge,
Louisiana for State Farm agents. He claims that Timothy McFadden, State
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Farm’s Vice-President of Agency for Louisiana, told the agents in attendance
that they would have to sign new contracts with State Farm if they wanted to
relocate their agencies. Another topic addressed at the Baton Rouge meeting
was a temporary special retirement plan that State Farm was making
available to its agents, modifying its Early Notification Program (ENP) to
allow agents to receive termination payments calculated on the basis of the
commissions they had earned prior to Hurricane Katrina, rather than the
lower commissions they would likely receive after Katrina. This favorable
calculation of termination payments was made available only to agents who
accepted the deal and agreed to retire by December 31, 2005. (That is, the
date on which an agent entered into an agreement to retire had to be no later
than the end of 2005; the actual date of retirement could be later.) A State
Farm employee, Tracey Cemo, described the Baton Rouge meeting as follows:
“[the agents] were told that if they moved locations that they would have to
sign a new contract, but they were also told that if they were to retire, that
they would have special packages set up if they decided to take early
retirement.”
According to Schaumburg, signing a new contract in order to relocate
was not a mere formality, but would have had a significant financial effect on
him. The record includes testimony from other State Farm agents that the
new contracts gave agents lower commissions and retirement benefits
compared to the older contracts such as the Agreement that Schaumburg
signed with State Farm in 1981.
In his deposition, McFadden denied having told the agents that they
would have to sign new contracts before relocating. Furthermore, McFadden
denied that it was State Farm’s policy, between August 2005 and the end of
2005, to require agents to sign new contracts before they could relocate.
McFadden said that at that time, if an agent wanted to relocate his office
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from Chalmette to Belle Chasse, the agent could do so without signing a new
contract.
After learning that a State Farm agent in Belle Chasse was retiring,
Schaumburg became interested in the possibility of taking over the retiring
agent’s business. In November or December 2005, according to Schaumburg,
Theresa Hollander, a State Farm Agency Field Executive, told him that, if he
took over the existing agency office in Belle Chasse, he would have to sign a
new contract and would not be able to bring his existing book of clients with
him. In her deposition, Hollander denied having talked with Schaumburg
about these topics.
As a result of these meetings with McFadden and Hollander,
Schaumburg contends, State Farm effectively left him with only three
options: (1) sign a new contract in order to relocate his existing business to
Belle Chasse or anywhere else; (2) sign a new contract and give up his
existing book of business in order to take over the retiring agent’s office in
Belle Chasse1 ; or (3) retire under the special post-Katrina ENP. In December
2005, Schaumburg signed an agreement to retire under the special ENP,
effective December 31, 2006. According to Schaumburg, his belief that he
would be unable to move his business to Belle Chasse without signing a new
contract was “a major factor in my decision-making process” leading to the
decision to retire. When he retired at the end of 2006, Schaumburg was 62
years old. He claimed that he had previously planned to continue working
“probably ten years” from January 2005. Thus, his decision to retire rather

1

Schaumburg’s brief often fails to clearly distinguish between these first two
alternatives. He sometimes complains that State Farm required him to give up his existing
book of business in order to relocate his office at all. However, the evidence in the record does
not support this contention. Rather, the record contains evidence that (1) McFadden told
Schaumburg he would have to sign a new contract in order to relocate his office, and (2)
Hollander told Schaumburg he would have to sign a new contract and give up his existing book
of clients if he took over the retiring agent’s business in Belle Chasse.

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than go on working allegedly resulted in the loss of roughly eight years’ worth
of income.
In November 2006, Schaumburg learned that another agent had
relocated to Belle Chasse without being required to sign a new contract. That
news prompted Schaumburg to file this suit against State Farm.
B. Proceedings
Schaumburg’s complaint asserted claims under Louisiana law for
breach of contract, breach of the duty of good faith and fair dealing, negligent
misrepresentation, and fraud. He alleged that State Farm had breached the
Agreement by prohibiting him from relocating without signing a new
contract. He also alleged that State Farm had either negligently or
intentionally misrepresented its own policy governing the relocation of
agents. He further alleged that State Farm’s actions caused him to lose
revenue and resulted in a reduction of his retirement benefits. State Farm
denied liability and moved for summary judgment.
The district court granted State Farm’s motion for summary judgment
and dismissed all of Schaumburg’s claims with prejudice. The district court
dismissed the claims of breach of contract and breach of the duty of good faith
and fair dealing because, “assuming the Plaintiff’s factual allegations to be
true, the Court does not find that the Defendants have breached any terms of
the contract.” The court reasoned that the Agreement is silent as to whether
an agent may relocate without signing a new contract or giving up his
existing book of clients; therefore, “the Plaintiff does not identify any terms of
the contract violated by State Farm’s purported action.”
The district court dismissed the claims of negligent misrepresentation
and fraud because the court considered that “[t]here is no evidence that the
Plaintiff was provided with incorrect information. Although State Farm later
instituted procedures for the relocation of agents without a new client book or
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contract, there is no evidence that the information that Plaintiff received was
incorrect at the time that it was provided.” The court reasoned that because
State Farm had not supplied incorrect information or misrepresented the
truth, it could not be liable for negligent misrepresentation or fraud.2
Schaumburg timely filed a notice of appeal.
II. ANALYSIS
A. Standard of Review
We review a district court’s grant of a motion for summary judgment de
novo. Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009).
The evidence and inferences from the record are viewed “in the light most
favorable to the nonmovant.” Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d
460, 465 (5th Cir. 2005). Summary judgment should be granted only if “there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Only disputes over facts
that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The moving party, here State Farm, has the
burden of showing that there is no genuine dispute of material fact and that
it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986).
B. Breach of Contract
Schaumburg claims that State Farm breached the Agreement by
“[r]efusing to allow [him] to relocate to Belle Chasse” without signing a new

2

Schaumburg also assserted a claim of tortious interference with contract, which the
district court dismissed because Schaumburg himself conceded that “recovery for tortious
interference with contract is not available based on the facts and law at issue in the instant
case.” On appeal, Schaumburg does not contest the district court’s dismissal of this claim.

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contract. Appellant’s Br. 18-19.3 We must determine, therefore, whether the
Agreement gave Schaumburg a right to relocate his office and, if so, whether
State Farm breached that right.
The Agreement states:
[State Farm] anticipate[s] that in the location or relocation of
[Schaumburg’s] office [Schaumburg] will not unduly infringe on
the established office location of any other agent. [Schaumburg]
agrees that [he] will not establish any office in addition to [his]
principal office without prior approval of [State Farm].
Schaumburg contends that this provision gave him a right to relocate his
office, subject to only two specified conditions: that his doing so must not
“unduly infringe on” another agent’s established location and that he must
not establish any additional offices without prior approval. State Farm
counters that this provision did not affirmatively require it to allow
Schaumburg to relocate to any particular area under any conditions, and that
the absence of an explicit right “simply means that the right does not exist.”
Appellees’ Br. 30-31.
Assuming for the sake of argument that this provision did create a right
of relocation, Schaumburg still has not presented any evidence that State

3

Schaumburg asserts in his brief that State Farm also refused to allow him to relocate
while retaining his book of business. But, in his deposition, Schaumburg testified that
Hollander told him he would have to give up his book of business only if he wanted to take over
the retiring agent’s business in Belle Chasse. There is no testimony or evidence in the record
that anyone ever told Schaumburg that he would have to give up his book of business if he
simply relocated his own office.
What Schaumburg did testify to, however, was that McFadden announced to all of the
agents at the Baton Rouge meeting that they would have to sign new contracts if they
relocated their offices. Therefore, we will only address Schaumburg’s arguments that are
based on State Farm’s alleged refusal to let him relocate his office without signing a new
contract.
Schaumburg has not identified any provision of the Agreement that even arguably gave
him a right to take over another agent’s business while also keeping his existing book of
business; therefore, Hollander’s alleged statement to him on this matter cannot have
amounted to a breach of contract.

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Farm prevented him from exercising this contractual right. Schaumburg
claims that State Farm “refused” to allow him to relocate without signing a
new contract. However, McFadden’s alleged announcement at the Baton
Rouge meeting does not in and of itself constitute a breach of the Agreement.
State Farm did not take any action contrary to the terms of the Agreement;
neither did it fail to perform any obligation required by the Agreement.
Neither did Schaumburg ever make any affirmative attempt to relocate his
office, so State Farm never could have breached the Agreement by interfering
with his relocation.
At most, Schaumburg could argue that the statement attributed to
McFadden was an anticipatory breach of contract, conveying that State Farm
intended to impose a condition on Schaumburg in the future that would
violate his rights under the Agreement.4 However, an anticipatory breach
must be “a refusal to perform” a contractual obligation. Andrew Dev. Corp. v.
W. Esplanade Corp., 347 So. 2d 210, 213 (La. 1977). “Where a party refuses
and does not merely fail or neglect to comply with his contractual obligation,
his refusal constitutes an active breach of the contract which relieves the
other party of the obligation of continuing to perform under the contract.” Id.
at 212-13. “The princip[al] thesis of this doctrine is that an obligee has a
cause of action when an obligor’s acts or omissions reduce his ability to
execute, or signify his intent to repudiate, a contractual obligation.” Fairfield
Dev. Co. v. Jackson, 438 So. 2d 664, 671 (La. App. 2d Cir. 1983).
McFadden’s announcement at the Baton Rouge meeting, as described
by Schaumburg, did not signify an intent to repudiate a contractual
obligation. At most, the announcement can be understood as signifying State

4

Louisiana recognizes the concept of anticipatory breach. See, e.g., Marek v. McHardy,
101 So. 2d 689, 695 (La. 1958) (“[W]e deduce that an anticipatory breach of contract is
actionable in Louisiana.”).

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Farm’s intention to terminate Schaumburg’s contract if he relocated his
business without first signing a new contract. However, that is not the same
as an intention to breach the contract, because the Agreement permitted both
Schaumburg and State Farm to terminate it at will.5 Therefore, an
announcement of State Farm’s intention to terminate the contract if
Schaumburg relocated his office without first signing a new contract — if
such an announcement was made — would not amount to an anticipatory
breach. See Fullerton v. Scarecrow Club, Inc., 440 So. 2d 945, 949 (La. App.
2d Cir. 1983) (“[B]ecause the defendant has not breached the contract or
indicated an intent to do so, [the plaintiff] may not avail himself of the
doctrine of anticipatory breach to seek remedies in contract against the
breaching party . . . .”). We affirm the district court’s dismissal of
Schaumburg’s claim of breach of contract.
C. Breach of the Duty of Good Faith and Fair Dealing
Schaumburg claims that State Farm’s actions amounted to a breach of
the obligation of good faith and fair dealing. Under Louisiana law, every
contract implies an obligation of good faith performance. See La. Civ. Code
art. 1983 (“Contracts must be performed in good faith.”). A breach of the duty
of good faith and fair dealing requires a breach of a contract. “In order to

5

The Agreement declared: “You or State Farm have the right to terminate this
Agreement by written notice delivered to the other or mailed to the other’s last known
address.” Schaumburg argues that the Agreement permitted State Farm to terminate agents
only for cause, not at will, because it provided for a review procedure: “In the event we
terminate this Agreement, you are entitled upon request to a review in accordance with the
termination review procedures approved by the Boards of Directors of the Companies, as
amended from time to time.” However, courts have consistently held that this particular
contractual language does not limit State Farm’s right to terminate agents at will. E.g.,
Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 778 (9th Cir. 2003) (“On the contrary,
the Termination Review Provision suggests State Farm’s desire to prevent arbitrary
terminations without limiting its legal entitlement to terminate at-will by written notice.”);
Olander v. State Farm Mut. Auto. Ins. Co., 317 F.3d 807, 810-12 (8th Cir. 2003) (en banc).
Schaumburg’s brief cites no cases in which courts have interpreted this contractual language
as preventing at-will termination.

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establish that [State Farm] breached an implied covenant of good faith in
connection with [the Agreement], [Schaumburg is] required to prove that
[State Farm] violated that agreement with a dishonest or morally
questionable motive.” Barbe v. A.A. Harmon & Co., 705 So. 2d 1210, 1220
(La. App. 4th Cir. 1998). See also Fertel v. Brooks, 832 So. 2d 297, 306 n.12
(La. App. 4th Cir. 2002) (“Bad faith is not the mere breach of faith in not
complying with a contract, but a designed breach of it from some motive of
interest or ill will.”). Regardless of what State Farm’s motives may have
been, Schaumburg cannot show that State Farm breached the duty of good
faith and fair dealing because he has failed to show that the company
breached any contractual obligation. Accordingly, we affirm the district
court’s dismissal of this claim.
D. Negligent Misrepresentation
Schaumburg contends that State Farm committed negligent
misrepresentation because when McFadden allegedly stated at the Baton
Rouge meeting in September 2005 that agents would be required to sign new
contracts before they could relocate their offices, he misinformed them about
State Farm’s then-existing policy regarding relocation.6 Under Louisiana
law, the tort of negligent misrepresentation has three elements: “(1) there
must be a legal duty on the part of the defendant to supply correct
information; (2) there must be a breach of that duty; and (3) the breach must
have caused damages to the plaintiff.” Cypress Oilfield Contractors, Inc. v.

6

Schaumburg’s brief also seems to argue that Hollander’s telling him that he would
have to give up his existing book of business in order to take over the retiring agent’s business
in Belle Chasse amounted to negligent misrepresentation (or perhaps fraud). However,
Schaumburg has not identified any evidence in the record that this statement by Hollander
was an inaccurate description of State Farm’s then-existing policies toward its agents.
Because there is no evidence that this statement was incorrect, Schaumburg’s claims of
negligent misrepresentation and fraud cannot be predicated on it. Accordingly, we focus on
McFadden’s alleged statement at the Baton Rouge meeting.

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McGoldrick Oil Co., 525 So. 2d 1157, 1162 (La. App. 3d Cir. 1988) (citing La.
Civ. Code arts. 2315, 2316; Dohmann v. United Gas Pipe Line, 457 So. 2d 307
(La. App. 3d Cir. 1984); Beal v. Lomas & Nettleton Co., 410 So. 2d 318 (La.
App. 4th Cir. 1982)).7
The district court’s dismissal of Schaumburg’s negligent
misrepresentation claim was based on the second of these three elements: the
court considered that there was “no evidence that the information that the
Plaintiff received was incorrect at the time that it was provided.” However, it
is undisputed in the record that at the time of the Baton Rouge meeting,
State Farm’s policy was that agents were not required to sign new contracts
before relocating their offices. McFadden testified to this in his deposition.
And, because Schaumburg is the nonmoving party on summary judgment, we
must accept his version of what McFadden said at the Baton Rouge meeting:
that agents were required to sign new contracts before relocating their offices.
Therefore, viewing the record in the light most favorable to Schaumburg, the
evidence is sufficient to permit a rational trier of the facts to find that
McFadden did provide Schaumburg with information that was incorrect at
the time it was provided. Accordingly, contrary to the district court’s
conclusion, there is a genuine factual dispute regarding the second element of
negligent misrepresentation.
Consequently, we must go on to consider the remaining elements of the
tort. We will next address the first element: whether, under the
circumstances, State Farm had a duty to supply correct information to
Schaumburg. “Louisiana negligent misrepresentation cases are evaluated

7

The Louisiana Supreme Court’s “jurisprudence has . . . limited negligent
misrepresentation tort theory to cases wherein contract or fiduciary relationship exists.” Daye
v. Gen. Motors Corp., 720 So. 2d 654, 659 (La. 1998). This limitation does not bar
Schaumburg’s claim, since there was a contractual relationship between him and State Farm
at the relevant time.

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using the duty-risk analysis.” Daye v. Gen. Motors Corp., 720 So. 2d 654, 659
(La. 1998). “The principal juridical element of an action in negligence is a
duty, apparent to reason and common sense, to avoid acts and omissions
which engender an unreasonable risk of harm to others.” Smith v. Roussel,
809 So. 2d 159, 165 (La. App. 1st Cir. 2001) (quoting Stephens v. State,
Through Dep’t of Transp., 440 So. 2d 920, 925 (La. App. 2d Cir. 1983)).
“Whether a duty is owed is a question of law.” Id. As part of the duty-risk
analysis, the plaintiff must show that “the risk of harm was within the scope
of protection afforded by the duty breached.” Id. at 164-65. “In determining
the limitation to be placed on liability for a defendant’s substandard conduct,
the proper inquiry is how easily the risk of injury to plaintiff can be
associated with the duty sought to be enforced. Although ease of association
encompasses the idea of foreseeability, it is not based on foreseeability alone.
Absent an ease of association between the duty breached and the damages
sustained, there is no legal fault.” Id. (citing Roberts v. Benoit, 605 So. 2d
1032, 1045 (La. 1991)). The Louisiana Supreme Court has held that a duty to
provide correct information was “imposed by law based upon policy
considerations due to the tortfeasor’s knowledge of the prospective use of the
information which expands the bounds of his duty of reasonable care to
encompass the intended user.” Barrie v. V.P. Exterminators, Inc., 625 So. 2d
1007, 1016 (La. 1993). “The theme in [Louisiana cases on negligent
misrepresentation] is that one is liable for negligent disclosure if he has
superior knowledge and knows the other party is relying upon him for such
knowledge.” Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort
Law § 5.07[8] (2d ed. 2004) (citing Barrie; Devore v. Hobart Mfg. Co., 367 So.
2d 836 (La. 1979); Cagle v. Lloyd, 617 So. 2d 592 (La. App. 3d Cir. 1993)).
In this case, viewing the evidence in the light most favorable to the
nonmoving party on summary judgment, it appears that State Farm had good
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reason to expect Schaumburg to use and rely on the information that was
given to him at the Baton Rouge meeting. The purpose of that meeting
appears to have been to inform agents about what their options were in the
aftermath of Katrina. Agents were told about what they must do in order to
relocate their businesses, and also about the option of retiring under the
special post-Katrina ENP which State Farm made available to them until the
end of 2005. It would be reasonable to expect those agents, including
Schaumburg, to rely on the information they were given at that meeting as
they made important decisions about their futures. According to
Schaumburg, he was given incorrect information by McFadden and, in
reliance on that information, made the decision to retire, thereby losing
several years’ worth of income that he could have earned by continuing to
work. If McFadden had correctly informed him that he could have relocated
his business without signing a new (and unfavorable) contract, he would
instead have continued to work and earn income. The harm that
Schaumburg claims to have suffered due to the allegedly incorrect
information was both foreseeable and easily associated with State Farm’s
duty to provide correct information, because the information was presented in
a context that led agents to rely on it in making decisions with important
financial consequences. Therefore, under the duty-risk analysis, State Farm
had a duty to provide correct information, and the risk of the harm that
Schaumburg allegedly suffered was within the scope of protection afforded by
the duty.
The only remaining element of negligent misrepresentation is that the
breach of the duty to provide correct information caused damages to the
plaintiff. Again, taking the evidence in the light most favorable to
Schaumburg, his reliance on the allegedly incorrect information given to him
by State Farm caused him to suffer financial harm because it induced him to
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make the decision to retire early instead of continuing to work and earn
income. Under this version of the facts, Schaumburg plainly did suffer
damages caused by State Farm’s breach of the duty to provide correct
information. Cf., e.g., Barrie, 625 So. 2d at 1008-09 (holding that plaintiffs
who suffered financial losses because they unknowingly bought a termitedamaged building while relying on an incorrect termite inspection report
could state a claim against the inspector for negligent misrepresentation).
In summary, State Farm could reasonably have expected Schaumburg
to rely on the information he was given at the Baton Rouge meeting in
making important decisions such as whether to retire; therefore, State Farm
had a duty to provide correct information, and the risk of harm to
Schaumburg was within the scope of protection afforded by that duty. The
record, viewed in the light most favorable to Schaumburg, shows that State
Farm breached its duty when McFadden incorrectly informed Schaumburg at
the Baton Rouge meeting that a then-existing company policy required him to
sign a new contract before he could relocate his office. This breach of duty
caused damages to Schaumburg because he relied on the incorrect
information when he made the decision to retire and forgo several years’
worth of income. Therefore, Schaumburg has put forth summary judgment
evidence establishing that there is at least a disputed question of material
fact as to each of the elements of the tort of negligent misrepresentation. We
must reverse the district court’s grant of summary judgment in State Farm’s
favor on this claim.
E. Fraud
Schaumburg has also brought a claim of fraud which is likewise
predicated on the allegedly wrong information given by McFadden at the
Baton Rouge meeting. “Louisiana jurisprudence indicates that the following
are the elements of the tort of fraud: 1. a misrepresentation of material fact;
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2. made with the intent to deceive; 3. reasonable or justifiable reliance by the
plaintiff; and 4. resulting injury. The intent to deceive is a specific intent.”
Wooley v. Lucksinger, 14 So. 3d 311, 378-79 (La. App. 1st Cir. 2008); see also
La. Civ. Code art. 1953; Guidry v. U.S. Tobacco Co., 188 F.3d 619, 627 (5th
Cir. 1999). The elements of fraud are similar to those of negligent
misrepresentation, but with the addition of the specific intent to deceive.
Wooley, 14 So. 3d at 379. “Fraud . . . may be established by circumstantial
evidence.” La. Civ. Code art. 1957; accord Lafayette Ins. Co. v. Pennington,
966 So. 2d 136, 138 (La. App. 2d Cir. 2007).
State Farm argues that the company gained nothing from
Schaumburg’s retirement, so it had no motive to intentionally deceive him
into retiring. We need not decide whether the evidence in the record permits
a rational inference that State Farm (through McFadden) intended to deceive
Schaumburg, because Schaumburg has waived this issue by failing to brief it
on appeal. See Fed. R. App. P. 28(a)(9)(A) (appellate briefs must contain
“contentions and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies”); United States v. Thames,
214 F.3d 608, 612 n.3 (5th Cir. 2000) (when a party fails to adequately brief
an issue, the issue is waived). His brief contains a few general references to
the fraud claim, but no specific argument regarding intent to deceive. We
therefore affirm the district court’s dismissal of the fraud claim.
III. CONCLUSION
Schaumburg has demonstrated that the evidence in the record shows at
least genuine disputes of material fact regarding all the elements of his claim
of negligent misrepresentation. Accordingly, we REVERSE the district
court’s dismissal of that claim, AFFIRM the district court’s dismissal of
Schaumburg’s other claims, and REMAND the case for further proceedings.

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No. 09-30714
WIENER, Circuit Judge, concurring in part and dissenting in part.
I concur in the panel majority’s opinion to the extent that it affirms the
district court’s dismissal of each of Schaumburg’s claims other than the one
for negligent misrepresentation. As to that claim, I respectfully disagree with
the majority’s conclusion that, as non-movant, Schaumburg presented
evidence that establishes the existence of a genuine issue of material fact
sufficient to defeat State Farm’s motion for summary judgment on that claim.
More specifically, I do not question the well-reasoned and well-supported
opinion of the panel majority that such a genuine dispute exists regarding
misrepresentation; rather, I disagree that Schaumburg has presented
evidence sufficient to defeat summary judgment on the facet of the claim that
any such misrepresentation resulted from negligence.
Even assuming arguendo that State Farm’s Vice-President of Agency
for Louisiana, Timothy McFadden, misspoke concerning the requirement that
agents like Schaumburg were required to sign a new contract before they
could relocate their offices following Hurricane Katrina, the panel majority’s
crediting of Schaumburg’s evidence as establishing a genuine issue regarding
McFadden’s negligence in making that putative misstatement might possibly
hold true when viewed in a vacuum. Not so to my thinking, however, when
the question of negligence is addressed in the real-world framework of (1)
Schaumburg’s personal qualities and (2) the horrendous post-Katrina turmoil
in which both he and State Farm’s personnel were forced to deal with myriad
problems under extreme conditions of dislocation, disruption, and theretofore
never-experienced confusion and difficulties of communication. I address
each element of that framework in order.
Although Schaumburg was undeniably a victim of Katrina’s disruption
and confusion, he was certainly better equipped by age, intelligence, business
experience, and financial acumen than the great majority of the victims of the
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No. 09-30714
storm. The record reflects that he had been a highly successful State Farm
agent for almost a quarter century, was netting in the neighborhood of
$1,000,000 as an independent State Farm agent, and was otherwise a
seasoned and experienced insurance entrepreneur. He was very familiar with
his own contract with State Farm, the retirement provisions of that contract,
and his various options regarding the change of his office locations and
regaining or relinquishing his book of business, all depending on where he
went post-Katrina and under what circumstances. Schaumburg was also
aware and, apparently, very impressed with the special, highly favorable onetime retirement option that State Farm was offering to him and others
similar situated agents to cope with their Katrina woes—an option that
included, inter alia, the flexibility of declaring retirement by the end of 2005
and acquiring benefits based on pre-Katrina commissions, coupled with the
right to make retirement effective at a much later date of the agent’s own
choosing.
Louisiana courts evaluate negligent misrepresentation claims on a
case-by-case basis, using a duty-risk analysis: “Plaintiff must prove that the
conduct in question was a cause-in-fact of the resulting harm, the defendant
owed a duty of care to the plaintiff, the requisite duty was breached by the
defendant and the risk of harm was within the scope of protection afforded by
the duty breached.”1 Causation is a factual determination,2 but determining
whether the alleged harm was within the scope of the duty—the third
element of the duty-risk analysis—is not:
In the duty/risk analysis, the foreseeability element of proximate
cause is subsumed into the scope of the duty element and

1

Daye v. Gen. Motors Corp., 720 So. 2d 654, 659 (La. 1998).

2

See Smith v. State, 523 So. 2d 815, 822 (La. 1988) (“Causation is a question of fact.”)
(citations omitted).

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becomes part of a question of law of whether the particular risk
falls within the scope (ambit of protection) of the duty.
Foreseeability is not a question of fact in Louisiana.3
To determine foreseeability, Louisiana has “adopted the ease of
association test, which asks how easily the risk of harm can be associated
with the rule which was breached.”4 “Legal cause requires a proximate
relation between the actions of a defendant and the harm which occurs and
such relation must be substantial in character.”5 Specifically, the Louisiana
Supreme Court has acknowledged that when the defendant expects that the
plaintiff will use the information that was negligently provided, the plaintiff’s
resulting loss is “a foreseeable probability,” especially when use of the
information “was ‘not merely one possibility among many, but the end and
aim of the transaction.’” 6
Assuming arguendo that State Farm owed Schaumburg a duty to
provide truthful, accurate information about State Farm’s relocation policy
and that State Farm breached that duty, Schaumburg still cannot establish
that State Farm could have reasonably anticipated that its misrepresentation
would cause Schaumburg to incur damages.7 First, McFadden’s alleged

3

Wooley v. Lucksinger, 14 So. 3d 311, 429 (La. Ct. App. 2008) (citing Roberts v. Benoit,
605 So. 2d 1032 (La. 1991); Smith v. Roussel, 809 So. 2d 159 (La. Ct. App. 2001)).
4

Roberts, 605 So. 2d at 1055. See also Faucheaux v. Terrebonne Consol. Gov’t, 615 So.
2d 289, 294 (La. 1993) (“The scope of protection inquiry asks whether the enunciated rule
extends to or is intended to protect this plaintiff from this type of harm arising in this manner.
. . . [T]he proper inquiry is often how easily the risk of injury to plaintiff can be associated with
the duty sought to be enforced.”).
5

Sinitiere v. Lavergne, 391 So. 2d 821, 825-26 (La. 1980).

6

Barrie v. V.P. Exterminators, Inc., 625 So. 2d 1007, 1016-17 (La. 1993) (quoting
Ultramares Corp. v. Touche, 174 N.E. 441, 445 (N.Y. 1931)).
7

See Daye, 720 So. 2d at 660-61 (“A negative answer to any of the inquiries of the
duty-risk analysis results in a determination of no liability. Because we find that plaintiff has
failed the first prong of the duty-risk analysis, we need not examine the remaining elements

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statement was made at a regional meeting of all State Farm agents affected
by Hurricane Katrina, and not in the context of Schaumburg’s own relocation
or of his own consideration of retiring. Even though Schaumburg’s decision to
retire might have been one possibility among many resulting from
McFadden’s statement, it was not the aim of the statement allegedly
announced to all area State Farm agents at the September meeting.
Ultimately, Schaumburg took McFadden’s alleged announcement out of the
context in which it was made and, to his own detriment, relied on it
unilaterally and without seeking further clarification or verification.
State Farm could not have foreseen the harm experienced by
Schaumburg because State Farm had no way of knowing the other factors,
unique to Schaumburg, that contributed to his decision to retire. Although
“[i]t is well settled in Louisiana law that an intervening act does not
automatically absolve a prior negligent party from liability,” an intervening
act will absolve a negligent party if it itself was not “an easily foreseeable
result of the [negligent party’s] conduct.”8 Here, State Farm could not have
foreseen Schaumburg’s failure to investigate the truth of the alleged
misrepresentation as it applied to his individual situation. Before Hurricane
Katrina, Schaumburg earned more than $1 million annually as a State Farm
agent. He had worked for State Farm for more than two decades, making him
a knowledgeable and sophisticated agent of the company—not to mention
making him personally familiar with State Farm executives and other State

and find no liability on the part of the defendant under the theory of negligent
misrepresentation.”) (internal citation omitted).
8

Roberts, 605 So. 2d at 1055-56 (emphasis added) (citing Hernandez v. Toney, 289 So.
2d 318, 321 (La. Ct. App. 1973)) (explaining that when an apartment complex manager
required an unattended five-year-old to leave a fenced playground, the risk of the child getting
hit by a car was easily associated with the manager’s negligence, despite the negligence of the
driver).

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Farm agents. Yet, Schaumburg conceded in testimony that he did not make
any attempt to gather further information or to verify the comments made
about State Farm’s relocation policy, despite acknowledging that electing to
retire was a “very significant” life decision.
Neither could State Farm have foreseen that Schaumburg would reject
or discount the value of the available option of continuing to work in Metairie
under his existing Agreement. Schaumburg framed the situation as, “I just
knew what I wanted to do, and if I couldn’t do that, [ ] I would retire. And I
did not want to be an agent in Metairie, Louisiana.” Yet he never
communicated this subjective desire to anyone at State Farm; and he did
have the option of staying in Metairie, which would not have involved retiring
or signing a new contract. Therefore, even though State Farm arguably could
have foreseen that misstatements about the relocation policy might have
dissuaded some agents from relocating, it could not have foreseen that
misstatements of that nature could cause Schaumburg to take the drastic
step of retiring if doing so was not otherwise in his best interest.
Schaumburg also attempts to minimize the other factors that
necessarily affected his decision. At the age of sixty-two, Schaumburg was
nearing his expected retirement age, and the post-Katrina ENP offered
advantageous benefits that might not have been comparable to those he
would receive if he waited. Schaumburg also tries to discount the facts that
relocating his office to a new area would involve his incurring particular costs
and that reestablishing a profitable business in the post-Katrina marketplace
was a risky endeavor. Schaumburg even testified that, ideally, he would have
liked to go back to his original office in Chalmette, “[b]ut realizing that four
months after this hurricane, September, October, November, December, it
was still chaos, who knew anything about anything?” Thus, we must consider
the fact that Schaumburg’s decision to retire just three years before his
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No. 09-30714
earliest expected retirement under the advantageous post-Katrina ENP
offered gratuitously by State Farm, presented the least risky option for him
personally, no matter what State Farm allegedly misstated about signing new
contracts. Another example of “no good deed goes unpunished.”
At bottom, Schaumburg’s claim is based entirely on the benefit of 20/20
hindsight. State Farm, like most other businesses in the region, was in a
state of flux and disarray following Hurricane Katrina. It held the Baton
Rouge meeting only one month after the storm in an effort to regroup and
introduce State Farm’s amended ENP. Tellingly, Schaumburg testified, “I
was happy with my decision to retire, but I felt like that after I had
announced my retirement and done what I did that the rules of engagement
changed.” Although Schaumburg now questions his decision to retire under
the post-Katrina ENP, he cannot blame State Farm’s alleged
misrepresentation for his decision: State Farm could not have foreseen that
Schaumburg would make such a “life-changing” decision without any further
investigation of his options. And, regardless, Schaumburg’s decision was
based on many competing interests, not least of which was the risk involved
in relocating his office in the chaotic aftermath of Hurricane Katrina.
Therefore, even if we assume that State Farm had a duty to provide
accurate relocation information to Schaumburg and, arguendo, that State
Farm breached that duty, Schaumburg still fails to establish that State Farm
could have reasonably foreseen the specific harm that Schaumburg allegedly
incurred based solely on McFadden’s general announcement at the Baton
Rouge meeting to all regional State Farm agents. I would hold that the
undisputed evidence does not support the inference that State Farm’s alleged
misrepresentation was the legal cause of Schaumburg’s damages and,
therefore, that the district court’s grant of State Farm’s motion for summary

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No. 09-30714
judgment dismissing Schaumburg’s negligent misrepresentation should be
affirmed.
Schaumburg’s fraud claim must be dismissed for the same reasons,9
coupled with the fact that Schaumburg presents no evidence that McFadden’s
announcement was made “with the intention either to obtain an unjust
advantage for one party or to cause a loss or inconvenience to the other.”10 To
the contrary, as noted above, Schaumburg repeatedly testified that he did not
believe that State Farm wanted him to retire, only that they made a
misrepresentation. I, therefore, respectfully dissent from the majority’s
reversal of the district court judgment.

9

See Wooley, 14 So. 3d at 379 (“Negligent misrepresentation is essentially a less
culpable version of fraud because fraud requires specific intent [to deceive].”).
10

LA . CIV . CODE art 1953.

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