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WILLIAM GRIFFIN & IRENE C. GRIFFIN v. JOE C. WARE & MIKE WOOTTON

OCTOBER 10, 1984

WILLIAM GRIFFIN & IRENE C. GRIFFIN
v.
JOE C. WARE & MIKE WOOTTON, A PARTNERSHIP, d/b/a WARE & WOOTTON, GENERAL ADJUSTERS



BEFORE WALKER, P.J., ROBERTSON & SULLIVAN, JJ., AND SUGG, RETIRED SUPREME COURT JUSTICE

SUGG, RETIRED SUPREME COURT JUSTICE, FOR THE COURT: *fn1

The question on this appeal is whether adjusters employed by an insurer, who were not parties to the agreement for insurance, are subject to an implied duty of good faith and fair dealing to the insured. We answer the question in the negative and affirm the judgment of the trial court.

Appellees were employed by the National Flood Insurance Program (hereafter Program) as adjusters to investigate a claim for damages to a home formerly owned by appellants under a flood insurance policy issued by the Program. Appellants settled with the Program on December 1, 1982, for $2,876.90.

 After obtaining the settlement appellants sued appellees in the Circuit Court of the First Judicial District of Hinds County. Appellants charged that they formerly owned a home in Jackson, Mississippi, and had a flood insurance policy with the Program on or about May 1979, and at all times material thereafter.

 Appellants also alleged:

 1. The structure and foundation of their home was damaged by an underground flow of water which came about during a fifteen inch rain in April of 1979 which preceded the April flood of 1979, at which time the ditch next to their residence had "gotten out of its banks and came within approximately 2" of coming into the residence. "

 2. Appellants discovered damage in the spring of 1981, jacked up the foundation, and inserted wooden blocks in an effort to realign the floors and sills of their home.

 3. In 1982, appellants again noticed that a door in the house was misaligned and difficult to close. Appellants again jacked up the house and inserted more shims and blocks.

 4. As a result of the continued settling of the foundation appellants notified Robinson & Julienne Insurance Agency, agents for the National Flood Insurance Program, about the

 problem and were advised that an adjuster would examine the house.

 5. Appellees were employed to adjust appellants' claim. According to Exhibit" 2 "annexed to the bill of complaint, appellees were assigned the responsibility of adjusting the claim on May 5, 1982, and sent Jack A. Cameron, a certified structural engineer, to inspect the premises in May 1982. Cameron made a report to appellees on May 10, 1982, a copy of the report being annexed as Exhibit" 1 "to the complaint.

 6. Appellees wrote the Program on May 19, 1982, enclosed a copy of the Cameron report, and recommended that the claim be denied.

 7. Appellants were able to get their claim reconsidered and settled with the Program based on the report of another adjuster.

 8. Appellants charge that appellees acted in bad faith and," deliberately, maliciously and willfully stated that the damage was caused by Yazoo clay "when appellees should have known that the damage was not caused by Yazoo clay but by the sub-surface flow of water.

 Appellees filed a motion to dismiss and for a judgment on the pleadings under Rule 12 (b)(6), or in the alternative, for a summary judgment under Rule 56. Appellees alleged in their motion: (1) the complaint fails to state a claim or cause of action against the defendants upon which relief can be granted; (2) Defendants were employed by National Flood Insurance Program to investigate the claim of the plaintiffs and were at all times the known agents of a disclosed principal and at all times the defendants represented themselves to the plaintiffs to be such agents of a disclosed principal; (3) the complaint alleges various causes of action sounding in breach of contract and plaintiffs never had any contract with these defendants; (4) there was no privity of contract between plaintiffs and defendants and defendants owed no contractual or fiducial duties to the plaintiffs and are not therefore liable to the plaintiffs; (5) the plaintiffs contract was with National Flood Insurance program and any cause of action plaintiffs may have for breach of such contract or an independent ...


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