REVISED April 30, 2012

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

                                                            FILED
                                 No. 11-60260              April 23, 2012

                                                          Lyle W. Cayce
JAMES P. GRISSOM,                                              Clerk



                                          Plaintiff - Appellee

v.

LIBERTY MUTUAL FIRE INSURANCE COMPANY,


                                          Defendant - Appellant




                 Appeal from the United States District Court
                   for the Southern District of Mississippi


Before STEWART, CLEMENT, and GRAVES, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      James Grissom purchased flood insurance for his home in Pascagoula,
Mississippi under the Federal National Flood Insurance Program (“NFIP”).
Grissom was eligible for a preferred risk insurance policy, but did not know
about his eligibility.   Following the destruction of his home in Hurricane
Katrina, Grissom sued Liberty Mutual for negligent misrepresentation to
recover the difference between the coverage he had and the coverage he could
                                 No. 11-60260

have purchased under the preferred risk policy. The district court concluded
that Grissom’s claim was not preempted by federal law and sent the case to the
jury which awarded Grissom $212,900 in compensatory damages.                  We
REVERSE the ruling of the district court with instructions to DISMISS
Grissom’s claim.
                       FACTS AND PROCEEDINGS
      In 1977 Grissom first purchased flood insurance through the Federal
Emergency Management Agency’s (“FEMA”) Write Your Own (“WYO”) flood
insurance program under the National Flood Insurance Act. Liberty Mutual was
Grissom’s WYO insurance provider when Hurricane Katrina severely damaged
his property. This court has previously discussed the WYO program:
      By enacting the National Flood Insurance Act of 1968, Congress
      established the Program to make flood insurance available on
      reasonable terms and to reduce fiscal pressure on Federal flood
      relief efforts. FEMA administers the Program. Within the Program,
      the WYO program allows private insurers to issue flood insurance
      policies in their own names. Under this framework, the Federal
      government underwrites the policies and private WYO carriers
      perform significant administrative functions including “arrang[ing]
      for the adjustment, settlement, payment and defense of all claims
      arising from the policies.” WYO carriers must issue policies
      containing the exact terms and conditions of the [Standard Flood
      Insurance Policy (“SFIP”)] set forth in FEMA regulations.
      Additionally, FEMA regulations govern the methods by which WYO
      carriers adjust and pay claims. Although WYO carriers play a large
      role, the government ultimately pays a WYO carrier’s claims. When
      claimants sue their WYO carriers for payment of a claim, carriers
      bear the defense costs, which are considered “part of the . . . claim
      expense allowance”; FEMA reimburses these costs. Yet, if “litigation
      is grounded in actions by the [WYO] Company that are significantly
      outside the scope of this Arrangement, and/or involves issues of
      agent negligence,” then such costs will not be reimbursable to the
      WYO carrier.
Campo v. Allstate Ins. Co., 

, 754 (5th Cir. 2009) (internal citations
omitted). WYO insurance companies are subject to the Federal Emergency

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Management      Agency,    Federal    Insurance    Administration,      Financial
Assistance/Subsidy Arrangement (the “Arrangement”), a set of terms and
conditions between FEMA and the private insurers governing the program. 44
C.F.R. pt. 62 app. A.
      In 1989 a preferred risk policy became available for the flood zone on
which Grissom’s home was located, but Grissom is unsure if he was ever
explicitly offered the preferred risk policy. There is no indication that Liberty
Mutual affirmatively informed Grissom he was eligible for preferred coverage.
In 2004 he renewed his Liberty Mutual policy with covered total loss of up to
$121,200 for a $531 premium. Had he been enrolled in the preferred risk policy,
he would have had $350,000 in total covered loss for a $317 premium. The 2004
renewal notice from Liberty Mutual mentioned the existence of preferred rate
policies, but did not indicate whether Grissom was eligible.
      In August 2005, Grissom’s home was destroyed by Hurricane Katrina.
Liberty Mutual paid Grissom’s $121,200 claim, the policy maximum. Grissom
then sued Liberty Mutual in Mississippi state court to recover the difference
between the coverage he had and the coverage he could have had under the
preferred risk policy. Liberty Mutual removed the case to the Southern District
of Mississippi which denied Liberty Mutual’s Rule 12 and Rule 56 motions and
submitted the case to the jury. Liberty Mutual appeals.
                          STANDARD OF REVIEW
      Liberty Mutual is not appealing facts determined by the jury, but rather
the legal conclusions of the district judge which we review de novo. City of New
Orleans v. Mun. Admin. Servs., 

, 506 (5th Cir. 2004) (“We review
conclusions   of   law–including     contractual   interpretations–de     novo.”).
Determining whether federal funds were at stake is based on whether the
Arrangement—a contract—bound FEMA to pay the expenses. The federal



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                                      No. 11-60260

preemption question and the question of Mississippi law are legal questions this
court reviews de novo.
                                     DISCUSSION
       We address three of the issues Liberty Mutual raised on appeal: (1)
whether the district court erred by determining this was a policy procurement
case rather than a claims handling case subject to federal preemption; (2)
whether the district court erred by allowing this case to go to a jury when federal
funds were at risk; and (3) whether Mississippi law recognizes negligent
misrepresentation in the insurance context.
I.     Federal Preemption
       Liberty Mutual argues the district court erred in holding that this dispute
related to the procurement of insurance which is not preempted by federal law
under Campo. Grissom alleges the district judge would not have permitted this
case to go to the jury had it not been procurement related. Grissom asserts that
Campo controls and that there is no preemption because Liberty Mutual’s
negligence occurred while seeking to renew Grissom’s policy rather than in the
course of some other policy administration task.
       We have held “[f]ederal law preempts ‘state law tort claims arising from
claims handling by a WYO.’” 

(emphasis in original)
(quoting Wright v. Allstate Ins. Co., 

, 390 (5th Cir. 2005)). And
further that “federal law does not preempt state-law procurement-based claims.”

The dispute is whether Liberty Mutual’s failure to inform a current
customer, Grissom, he might be eligible for a richer insurance policy constitutes
“claims handling” or is “insurance procurement.” If it is claims handling,
Grissom’s suit is preempted.1


       1
         Liberty Mutual also introduces a third category, “policy administration” (supported
by the FEMA memorandum discussed infra in footnote 2) which it claims also should receive
federal preemption. This circuit has not recognized the “policy administration” category

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                                       No. 11-60260

       Our precedent distinguishes between the two categories. In Wright, this
court labeled interactions between the insurer and an insured seeking payment
for hurricane damage to his home “claims handling.” See 

. Further, in Borden v. Allstate Insurance Company, we held that a
dispute surrounding the receipt of a renewal notice was claims handling. 

, 173 n.2 (5th Cir. 2009). On the other hand, in Campo, the panel
majority held that an individual whose insurance had lapsed was a former and
potential future customer of Allstate and thus the interactions between Campo
and the insurer related to the procurement of insurance. 

(“Allstate’s
alleged misrepresentations occurred when Campo’s only relationship with
Allstate was that of both a former and a potential future policyholder.”). Grissom
erroneously believes Campo stands for the proposition that all renewals are
procurement despite Campo’s clear holding that the lapse in coverage turned
what would otherwise be a renewal into the procurement of a new policy.2 Cf.

(“Campo’s coverage had expired; there was thus nothing


previously and we do not adopt the “policy administration” category here because it is
unnecessary to our disposition of the appeal.
       2
          FEMA also issued a memorandum following Campo stating the intent of its
regulations was
         to preempt state law claims related to policy formation, renewal, and
         administration arising from allegations of WYO company error . . . . Rather
         than its application in Campo, Federal preemption should apply not just to
         claims handling activities, but also to policy administration. Specifically,
         preemption should apply to the nationally uniform and FEMA-mandated
         processes governing policy issuance and the administration of existing flood
         policies, including but not limited to rating, renewal, transfer, non-renewal,
         cancellation, or reformation.
See U.S. DEPARTMENT OF HOMELAND SECURITY, MEMORANDUM WYO PROGRAM BULLETIN W-
09038, NOTICE OF FEMA’S INTENT TO ADOPT, BY REGULATION, A CLARIFICATION OF THE
CURRENT EXPRESS PREEMPTION CLAUSE OF THE STANDARD FLOOD INSURANCE POLICY (2009)
available at: http://www.nfipiservice.com/stakeholder/pdf/bulletin/w-09038.pdf (emphasis
added).    While this memorandum is not controlling, FEMA’s desire to publish such a
memorandum less than three months after this court’s opinion in Campo indicates the agency’s
intent that federal preemption apply to renewals of flood insurance and other activities which
occur after the initial policy is procured.

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                                  No. 11-60260

to continue. Instead, as a former policyholder, Campo would have had to procure
flood insurance.”).
      The key factor to determine if an interaction with an insurer is “claims
handling” is the status of the insured at the time of the interaction between the
parties. If the individual is already covered and in the midst of a non-lapsed
insurance policy, the interactions between the insurer and insured, including
renewals of insurance, are “claims handling” subject to preemption. See 

; 

n.2.
       Grissom was insured by Liberty Mutual at the time of his interactions
with Liberty Mutual. He filed a claim for coverage which was granted and paid
in full. Only after Grissom discovered his eligibility for additional subsidized
coverage did he raise the negligent misrepresentation claim to obtain additional
covered payments. Grissom is alleging that while he was already insured, his
insurer should have been more proactive in informing him of his eligibility for
additional subsidized flood insurance coverage. Because Grissom’s dispute with
Liberty Mutual relates to his renewal of a policy already in place—claims
handling, not the initial procurement of the insurance policy—Campo does not
control and we hold that Grissom’s state law claim is preempted.
II.   Federal Funds
      Although we hold that Grissom’s claim is preempted by federal law, we
proceed to consider whether cases under the NFIP may be heard by a jury.
Liberty Mutual alleges that the district court erred in submitting this case to the
jury because the federal government would be required to pay any damages
award and has not affirmatively and unambiguously granted the right to a jury
trial for such matters. See Lehman v. Nakshian, 

, 160 (1981).
Grissom does not dispute that if federal funds are at stake a jury trial is
inappropriate, but alleges FEMA is not obligated to pay damage awards that
result from omissions by WYO insurance companies because the insurance

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                                 No. 11-60260

company receives a commission for signing up insureds. By submitting the case
to the jury, the district court implicitly determined that the Arrangement which
forms a contract between WYO insurers and FEMA does not require FEMA to
either defend or indemnify Liberty Mutual.
      The NFIP establishes private insurers “as fiscal agents of the United
States.” 42 U.S.C. § 4071(a)(1). The federal government pays flood insurance
claims and reimburses costs, including defenses costs, for adjustment and
payment of claims by private insurers in the WYO program. See 

n.15; 44 C.F.R. pt. 62 app. A. art. III (D)(1)-(2). The federal
government will both indemnify and defend WYO insurers in the program for
many insurance and litigation expenses unless the “‘litigation is grounded in
actions by the [WYO] Company that are significantly outside the scope of this
Arrangement, and/or involves issues of agent negligence.’” 

(quoting
44 C.F.R. pt. 62, app. A, art. III(D)(3)(a)). The question is whether there is a
presumption FEMA will cover the expenses.
      All NFIP policies are subject to the Arrangement which provides specific
requirements for insurance companies to become and remain eligible to write
policies under the NFIP. 44 C.F.R. pt. 62 app. A. The Arrangement also
explains the relationship between the federal government and the private
insurance companies. Liberty Mutual and Grissom read the Arrangement to
stand for alternative presumptions: Liberty Mutual claims the Arrangement
presumes the government will defend and indemnify WYO insurers while
Grissom claims the Arrangement presumes WYO insurers bear their own costs.
      We review the Arrangement to identify the presumptive payor. The
Arrangement requires companies to notify FEMA of litigation expenses and
requires FEMA’s Office of the Chief Counsel to ensure the litigation is based on
actions within the scope of the Arrangement and does not involve agent
negligence. 44 C.F.R. pt. 62 app. A. art. III(D)(2)-(3)(a). If and only if FEMA’s

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Chief Counsel, along with the Federal Insurance Administrator, determine “that
the litigation is grounded in actions by the Company that are significantly
outside the scope of this Arrangement, and/or involves issues of agent
negligence” the Federal Insurance Administrator has thirty days to inform the
insurer that the litigation expenses (in whole or in part) will not be covered.
(D)(3)(a)-(d). Unless FEMA explicitly notifies the insurance company of its
intent not to defend or indemnify, FEMA is presumed to pay the litigation
expenses and any resulting damages awards. In the absence of this document
or even any allegation FEMA notified Liberty Mutual of its intent not to defend
or indemnify, FEMA is assumed to be paying the expenses of the litigation.
       The right to a jury trial has not been extended by the government to WYO
cases. See Gowland v. Aetna, 

, 955 (5th Cir. 1998); see e.g. Newton
v. Capital Assurance Corp., 

, 1312 (11th Cir. 2001) (“. . . the line
between between a WYO company and FEMA is too thin to matter for the
purposes of federal immunities such as the no-interest rule”). Because FEMA
is presumed to be paying both the litigation expenses and any resulting damage
award, the district court erred in submitting this case to the jury.
III.   Negligent Misrepresentation by Insurer in Mississippi
       Although the state law claim is preempted, Grissom’s negligent
misrepresentation by an insurer claim also does not find a basis in Mississippi
law. In Mississippi, a plaintiff must meet five factors to succeed in a claim of
negligent misrepresentation:
       (1) a misrepresentation or omission of a fact; (2) that the
       representation or omission is material or significant; (3) that the
       person/entity charged with the negligence failed to exercise that
       degree of diligence and expertise the public is entitled to expect of
       such persons/entities; (4) that the plaintiff reasonably relied upon
       the misrepresentation or omission; and (5) that the plaintiff suffered
       damages as a direct and proximate result of such reasonable
       reliance.


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                                 No. 11-60260

Mladineo v. Schmidt, 

, 1164-65 (Miss. 2010) (quotation marks and
citation omitted). Liberty Mutual argues that Mississippi law does not recognize
a claim for negligent misrepresentation against an insurer because an insurer
has no fiduciary duty to insureds and no affirmative duty to advise buyers about
their individual insurance needs (factor 3). 

Grissom counters that
insurers have a duty to use reasonably prudent diligence and care in “business
transactions” and thus misrepresentation may be alleged for failure to disclose
information.
      There is no Mississippi law directly on point, but Mississippi courts have
spoken to the relationship between insurers and insureds and have also
discussed the duties owed to the insured. The Mississippi Court of Appeals
explained the Mississippi legal principle that the purchase of insurance is an
arms-length transaction and no fiduciary duty arises between an insurance
company or its agents and the purchaser of the insurance. Taylor v. S. Farm
Bureau Cas. Co., 

, 1049 (Miss. Ct. App. 2007). The court stated:
      In Mississippi, a claim of fraud by omission arises only where the
      defendant had a duty to disclose material facts purportedly omitted.
      This duty generally arises only where there is a fiduciary
      relationship between the parties. . . . “Under Mississippi law, there
      is no fiduciary relationship or duty between an insurance company
      and its insured in a first party insurance contract.”

v. Bigelow, 

, 756 (Miss. Ct. App. 2002)).
Further,
      we do not find that insurance agents in Mississippi have an
      affirmative duty to advise buyers regarding their coverage needs.
      . . . [I]mposing liability on agents for failing to advise insureds
      regarding the sufficiency of their coverage would remove any burden
      from the insured to take care of his or her own financial needs.

.
      Liberty Mutual is not required to provide advice to insurance customers.
Because Liberty Mutual was not offering insurance advice, was not a fiduciary

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                                No. 11-60260

of Grissom, and did not offer any statement to Grissom to imply the lack of
alternative insurance options, Mississippi law would not recognize negligent
misrepresentation as a cause of action against Liberty Mutual and the
submission of negligent misrepresentation to the jury was error.
                              CONCLUSION
     For the foregoing reasons we REVERSE the ruling of the district court
with instructions to DISMISS Grissom’s claim.




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