OPINION AND ORDER
J. LEON HOLMES, District Judge.
The plaintiffs, who farm land in Arkansas, allege that an agent of their crop insurance company, ARMtech Insurance Services, falsely told them that certain crops would be covered by their federally reinsured policies. ARMtech, in turn, has filed a third-party complaint against the agent, Larry Church, and his agency, LDC, III, Inc. ARMtech has now moved for summary judgment on all claims, the plaintiffs have moved to amend their complaints, and Church has moved for summary judgment on ARMtech's third-party complaint. For the following reasons, ARMtech's motions for summary judgment are granted in part and denied in part, the plaintiffs' motion to amend is denied, and Church's motion for summary judgment is denied.
A court should enter summary judgment if the evidence demonstrates that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The moving party bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party meets this burden, the nonmoving party must respond by coming forward with specific facts establishing a genuine dispute for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc). In deciding a motion for summary judgment, a court views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. PHL Variable Ins. Co. v. Fulbright McNeill, Inc., 519 F.3d 825, 828 (8th Cir.2008). A genuine dispute exists only if the evidence is sufficient to allow a jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. When a nonmoving party cannot make a showing sufficient to establish a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552.
In 1938, Congress enacted the Federal Crop Insurance Act (FCIA) "to promote the national welfare by improving the economic stability of agriculture through a sound system of crop insurance and providing the means for the research and experience helpful in devising and establishing such insurance." Alliance Ins. Co. v. Wilson, 384 F.3d 547, 549 (8th Cir.2004) (quoting 7 U.S.C. § 1502). Originally, the FCIA permitted only the Federal Crop Insurance Corporation (FCIC) to issue crop insurance policies and handle claims on those policies. Id. That changed in 1980, when Congress amended the FCIA and authorized the FCIC to allow private insurance companies such as ARMtech to sell and service crop insurance policies to farmers. Id.; see also Williams Farms of Homestead, Inc. v. Rain & Hail Ins. Servs., Inc., 121 F.3d 630, 633 (11th Cir. 1997). These policies are then fully reinsured by the FCIC so long as the insurance companies use the standard policy guidelines, including terms and conditions, established by the FCIC. Williams Farms, 121 F.3d at 633; Nobles v. Rural
The plaintiffs consist of two groups, the Pelzers and the Hunts.
The coverage provisions of the insurance policies stated that the plaintiffs were protected against "unavoidable loss" that directly resulted from a specified "naturally occurring event." Document #53-2, at 15 (Basic Provisions § 13). The plaintiffs would not be covered, however, if they failed to follow "recognized good farming practices for the insured crop." Id. (Basic Provisions § 13(b)); see also 7 U.S.C. § 1508(a)(3)(A)(iii). The policies defined "good farming practices" as:
Document #53-2, at 3 (Basic Provisions § 1: Good farming practices). The policies further stated that "We [ARMtech] may, or you [the insured] may request us to, contact FCIC to determine whether or not production methods will be considered to be `good farming practices.'" Id.
With their policies in hand, the plaintiffs, with the exception of H & D Farms, then planted non-irrigated corn behind winter wheat on several parcels of their land, and they certified to ARMtech in writing that they were doing so. ARMtech issued schedules of insurance to the plaintiffs based on these certifications. David Pelzer planted 375.7 acres of non-irrigated corn behind harvested wheat in Desha County. David & Matthew Pelzer, LLC did the same for 175 acres in Desha County and 62.7 acres in Drew County. David
When the plaintiffs made claims pursuant to their ARMtech insurance policies, they were asked to provide documentation to show that planting non-irrigated corn behind harvested winter wheat was a good farming practice in Arkansas. The plaintiffs were unable to do so. ARMtech was advised by representatives of the Farm Service Agency and the University of Arkansas Cooperative Extension Service that this type of double-cropping was not considered a good farming practice anywhere in Arkansas.
The Hunts and the Pelzers then separately requested reconsideration of this determination from a regional office of the Risk Management Agency (RMA) in Jackson, Mississippi.
In their remaining claims, the plaintiffs allege that, because of Church's assurance that their double-cropping would be insured, ARMtech is liable for negligence, deceit, constructive fraud, and deceptive trade practices under Arkansas law. The plaintiffs also seek reformation of the insurance contracts. As noted above, ARMtech has moved for summary judgment on all of these claims, the plaintiffs have moved to amend their complaints to add a breach of contract claim, and Church has moved for summary judgment on ARMtech's third-party complaint.
ARMtech makes several arguments as to why the plaintiffs' state-law claims should be dismissed. First, ARMtech argues that all of the plaintiffs' claims are
"The general law of preemption is grounded in the Constitution's command that federal law `shall be the supreme Law of the Land.'" In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., 621 F.3d 781, 791 (8th Cir.2010) (quoting U.S. Const. art. VI, cl. 2); see also Lefaivre v. KV Pharm. Co., 636 F.3d 935, 938-39 (8th Cir.2011). "State law is preempted when Congress expressly prohibits state regulation, when Congress implicitly leaves no room for state involvement by pervasively occupying a field of regulation, and when state law directly conflicts with federal law." Chapman v. Lab One, 390 F.3d 620, 624 (8th Cir.2004). "Federal regulations also may preempt state law, if the agency intends its regulations to have preemptive effect, and the agency is acting within the scope of its delegated authority." Id.
Congress, in passing the FCIA and subsequent amendments, "did not intend to preempt all state-based regulation of companies that sell federally reinsured crop insurance." Alliance Ins., 384 F.3d at 552; see also Rio Grande Underwriters, Inc. v. Pitts Farms, Inc., 276 F.3d 683, 685-86 (5th Cir.2001) (noting that the circuits "agree that the FCIA does not completely displace state law remedies against crop insurers or their agents"); Meyer v. Conlon, 162 F.3d 1264, 1268-70 (10th Cir. 1998) (similar); Williams Farms, 121 F.3d at 634-35 (similar); Holman v. Laulo-Rowe Agency, 994 F.2d 666, 669 (9th Cir. 1993) (similar). But see Owen v. Crop Hail Mgmt., 841 F.Supp. 297 (W.D.Mo. 1994) (finding that the FCIA completely preempts state-law claims). While ARMtech does not dispute this, it does argue that the plaintiffs' state-law claims in this action are nonetheless preempted.
7 C.F.R. § 400.98(e) states that an "insured cannot file suit against the reinsured company for determinations of good farming practices." Instead, the insured must seek reconsideration of the determination by the RMA and may bring suit after doing so only against the FCIC. Id.
The plaintiffs have made it abundantly clear, however, that they are no longer challenging the determination that planting non-irrigated corn behind winter wheat was not a good farming practice in Arkansas. See Document #116, at 22 (plaintiffs' attorney during oral argument: "That issue is dead. Everyone can agree for purposes of this hearing, for purposes of this trial that planting corn behind harvested wheat in Miller County, Desha County, and Drew County, Arkansas is not a good farming practice as that is determined by
The plaintiffs' contract claims, however, are preempted. The insurance policies state that, with the exception of good farming practice determinations, all disagreements with determinations made by the private insurer must be resolved through arbitration. See Document #53-2, at 22-23 (Basic Provisions § 20(a)).
These policy provisions mirror the federal regulations. For example, 7 C.F.R. § 400.352, entitled "State and local laws and regulations preempted," states:
Additionally, 7 C.F.R. § 400.176, entitled "State action preemptions", states in part (b) that:
As the Tennessee Court of Appeals explained in Plants, by virtue of these policy provisions and regulations, contract claims against private insurers are preempted but tort claims are not.
2012 WL 3291805, at *10-11 (citations omitted).
The third sentence of the insurance policies here states: "The provisions of the policy may not be waived or varied in any way by us, our insurance agent, or any other contractor or employee of ours or any employee of USDA unless the policy specifically authorizes a waiver or modification by written agreement." Document #53-2, at 1. The plaintiffs' reformation claim in essence asks the Court to reform the contracts so that their corn crops would be insured even though the planting of them was not a good farming practice; but to reform the contracts in that manner would mean that a central provision of the contract had been waived or varied based on statements by an agent, which is explicitly barred by the insurance policy itself.
Moreover, until the 2005 crop year, 7 C.F.R. § 457.6, entitled "Good Faith Reliance on Misrepresentations," provided that whenever an insured relied in good faith on a misrepresentation or erroneous advice by an agent, the insured could be granted relief "the same as if otherwise entitled thereto." See Laux, 442 F.Supp.2d at 501 & n. 10; Nobles, 122 F.Supp.2d at 1297. The 2004 amendments to the regulations repealed this section. See 69 Fed. Reg. 48652-01, at 48654-56 (Aug. 10, 2004). In its response to comments to the proposed repeal, the FCIC explained:
It also appears that the plaintiffs argue, perhaps alternatively, that they only entered into state-law contracts that were not federally reinsured.
Finally, it could be that the plaintiffs instead meant to argue that the parties entered both into contracts that were federally reinsured and contracts that were not federally insured. This argument would posit that ARMtech entered into the non-federally reinsured contracts through Church's assurances and through the schedules of insurance provided to the plaintiffs, which confirmed to the plaintiffs that their double-cropping was indeed covered and that ARMtech had bound the coverage. The plaintiffs, however, have provided no evidence that any of the parties actually intended to enter both into contracts that were federally reinsured and contracts that were not. See Arciniaga v. Gen. Motors Corp., 460 F.3d 231, 237 (2d Cir.2006) ("[M]ultiple agreements may be read as one contract only if the parties so intended, which we determine from the circumstances surrounding the transaction."); Dziga, 28 Ark.App. at 245, 773 S.W.2d at 107; Mid-Am. Real Estate Co. v. Iowa Realty Co., Inc., 406 F.3d 969, 972 (8th Cir.2005) ("The parties' intentions at the time that they executed the contract
In summary, except for challenges to determinations of good farming practices, breach of contract claims under the FCIA must be submitted to arbitration. The plaintiffs have submitted no claims to arbitration. Challenges to determinations of good farming practices must be appealed to the agency, after which they may be appealed to district court. That was done, and the plaintiffs lost. Unless the contracts are reformed, no breach-of-contract claim can succeed, but as a matter of law, the contracts for federally reinsured crop insurance cannot be reformed. The law thus bars all of the plaintiffs' contract claims against ARMtech. Therefore, the plaintiffs' motion to amend will be denied as futile. See Roberson v. Hayti Police Dep't, 241 F.3d 992, 995 (8th Cir.2001) ("[A] district court's denial of leave to amend pleadings is appropriate ... [when] futility of the amendment ... can be demonstrated.").
B. Justifiable Reliance
ARMtech next argues that the state-law tort claims fail, even if they are not preempted, because each tort claim requires justifiable reliance as an essential element and, as a matter of law, the plaintiffs cannot establish that element.
In 1947, the Supreme Court held that federal regulations bound all persons covered by the FCIA — which at the time meant all those persons directly insured by the FCIC — regardless of whether they had actual knowledge of any specific regulation. FCIC v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 3-4, 92 L.Ed. 10 (1947). In 1983, the Fourth Circuit held in a similar context that farmers are "charged with knowledge of the regulation and the policy." Mann v. FCIC, 710 F.2d 144, 147 (4th Cir.1983). In 1994, the District of South Carolina held that insureds are bound by regulations and policy provisions even when they are directly insured by private insurers and not the FCIC. Walpole v. Great Am. Ins. Cos., 914 F.Supp. 1283, 1290-91 (D.S.C.1994). Finally, the FCIC in 2004 stated that "all FCIC personnel, insurance providers, agents and producers are presumed to know the provisions of the [FCIA] and the regulations, including all policy provisions...." 69 Fed. Reg. at 48656. Thus, regardless of their actual knowledge, the plaintiffs may be charged with constructive knowledge of their policy and the relevant regulations.
Here, the policy states in its introduction that the insurer "will use the procedures (handbooks, manuals, memoranda and bulletins) as issued by FCIC and published on the RMA website ... in the administration of this policy, including the adjustment of any loss or claim submitted hereunder." Document #53-2, at 1. Relying on this provision, ARMtech points to a
Document #53-5, at 6 (RMA Bulletin No. MGR-05-010 I.6.).
The same bulletin, however, describes this written, dated, and supported determination as typically coming after a crop has been planted and a claim has been asserted (i.e. during the loss adjustment period). See id., at 1 (MGR-05-010 Background). In addition, the bulletin and the policy contemplate informal consultation between the insurer and the insured concerning what is and is not a good farming practice before a crop is planted. For example, the policy states that, "We may, or you may request us to, contact FCIC to determine whether or not production methods will be considered `good farming practices.'" Document #53-2, at 3 (Basic Provisions § 1: Good farming practices). And the bulletin states that:
Document #53-5, at 3 (MGR-05-010 § I.B.).
These provisions in the policy and the bulletin undermine ARMtech's argument that the plaintiffs could not justifiably rely on an informal, unwritten statement by ARMtech's representative that planting non-irrigated corn behind winter wheat would be insurable. Both the policy and the bulletin encourage consultation before a crop is planted, and neither warns a farmer that he cannot rely on an oral assurance by the insurer during this consultation. Thus, the Court cannot say as a matter of law that the plaintiffs' reliance on Church's statements was unreasonable.
ARMtech next argues that the Pelzers' state-law tort claims should be dismissed because Bryant only told Church that double-cropping was insurable in regard to Miller County, Arkansas, where the Hunts farmed. There is evidence, however, that
C. Soliciting Agent
As noted above, Church and his agency have moved for summary judgment on ARMtech's third-party complaint, arguing that Church was a soliciting agent and, as such, had no authority to vary or waive the terms of the insurance policies. Hence, according to Church, ARMtech could not be liable based on his conduct but only because of its own tortious conduct.
Based apparently on Church's contention, ARMtech asserted for the first time during oral argument that the plaintiffs' state-law claims should be dismissed because Church was merely a soliciting agent who had no authority to waive or vary the terms of the coverage provided by ARMtech. See Holland v. Interstate Fire Ins. Co., 229 Ark. 491, 493, 316 S.W.2d 707, 709 (1958) ("[Soliciting agent] has no authority to agree upon the terms of the policies or to change or waive those terms, nor can his knowledge be imputed to the company he represents."). As to the tort claims, which are the only claims that survive, no allegation is made that Church could change or waive the terms of the policies. Instead, it is alleged that he made representations that the double-cropped corn would be insurable when, in fact, it was not; and it is alleged that he relied on statements by ARMtech's national claims manager in making these false statements.
The closest case that has been cited by the parties is Jackson v. M.F.A. Mut. Ins. Co., 169 F.Supp. 633 (W.D.Ark.1958), aff'd, 271 F.2d 180 (8th Cir.1959). The policy in Jackson was a fire insurance policy on a building. The contract provided that the insurance coverage would be suspended if the fire hazard was increased by means within the control or knowledge of the insured. While renewing the policy, the insured informed the insurance agent that the use of the premises was being changed. The insurance agent said that "he would take care of any changes that came up." Id. at 635. The building then burned down. After the loss occurred, the insurance company denied coverage because the aforementioned change of use had substantially increased the fire hazard on the premises. Jackson then brought suit. The district court held that the insurance agent's statements could not vary or waive the terms of the policy because the agent was merely a soliciting agent. Id. at 635-36. Even so, the district court held that the insurance company was liable to Jackson because the agent had actual or apparent authority to advise the insured and because the statement made by the agent could be construed as a statement of fact — that is, that the proposed change did not increase the fire hazard — within the scope of the agent's apparent authority. Id. at 636-38. The court stated that its "holding is limited to the proposition that the representations or misrepresentations of a soliciting agent as to a fact outside of the policy and not in conflict therewith, if made within his actual or apparent authority, are binding upon his principal." Id. at 638.
Here, Church's statements that double-cropped corn would be insurable are, at least in part, factual statements to the
D. Deceptive Trade Practices Act
In their reply brief, which was filed after oral argument, ARMtech argued for the first time that the plaintiffs' Arkansas Deceptive Trade Practices Act claims should be dismissed. As a general rule, courts do not address arguments raised for the first time in a reply brief. Akeyo v. O'Hanlon, 75 F.3d 370, 374 n. 2 (8th Cir.1996); Cuningkin v. City of Benton, Ark., No. 4:05CV01130, 2007 WL 707343, at *4 (E.D.Ark. March 5, 2007); Adams v. City of Manchester, No. 4:11 CV 1309, 2012 WL 3242078, at *4 (E.D.Mo. Aug. 7, 2012) (citing K.C. 1986 Ltd. P'ship v. Reade Mfg., 472 F.3d 1009, 1018 n. 2 (8th Cir.2007)). Because the plaintiffs have not had an opportunity to brief this issue, the Court will not decide it at this juncture.
For the above reasons, ARMtech's motions for summary judgment are GRANTED with respect to the plaintiffs' reformation claims, and DENIED with respect to all other claims. Document #53; Document #102. The plaintiffs' joint motion for leave to file an amended complaint is DENIED. Document #81. Church's motion for summary judgment is DENIED. Document #106. The plaintiffs' reformation claims are dismissed.