concurring in the result in part and dissenting in part:
I concur in the result regarding Rule 11 sanctions imposed by the district court. I respectfully dissent from the majority’s conclusion that George Souran has a meritorious claim against The Travelers Insurance Company for negligence or negligent misrepresentation. I find the claim in count III devoid of merit.1
Some confusion apparently exists about the cause of action that count III purports to state. Part II.A. of the majority opinion approaches the claim as one for negligent misrepresentation, while part II.B. ana*1511lyzes it in terms of simple negligence. Either way, the claim fails.
The majority’s primary focus on negligent misrepresentation is curious in light of Souran’s failure to argue the theory before this court. Souran first asserted negligent misrepresentation in his memorandum to the district court opposing Travelers’ motion for a directed verdict. (R.3-60.) In his other district court submissions and in his briefs to this court, however, Souran describes count III as sounding in common-law negligence. (E.g., Appellant’s Br. at 12; R.1-16 at 8; R.2-43 Exh. A.) Historically, in Florida an action for negligent misrepresentation sounds in fraud rather than negligence. See Watson v. Jones, 41 Fla. 241, 255, 25 So. 678, 683 (1899); Ostreyko v. B. C. Morton Org., Inc., 310 So.2d 316 (Fla.Dist.Ct.App.1975). The difference is significant here because the district court found that Souran’s negligent misrepresentation argument was untimely. (R.3-58 at 7, Order of Mar. 14, 1990.) Souran has not challenged the district court’s order on this point.2
Assuming that Souran has presented a timely claim for negligent misrepresentation, the facts do not support it. The majority concludes that the sending of claim forms constituted a misrepresentation that the policy remained unpaid. I disagree.
A Florida statute required Travelers to send the claim forms. The statute provides that “[a]n insurer shall furnish, upon written request of any person claiming to have a loss under an insurance contract issued by such insurer, forms of proof of loss for completion by such person____” Fla.Stat. Ann. § 627.425 (West 1984). Significantly, Florida does not require an insurer to furnish claim forms only to the first claimant requesting them, but to “any person claiming to have a loss.” Id. It is clear that in furnishing forms to Souran’s attorney, Travelers was doing only what Florida law mandated that it do.
Moreover, another Florida statute provides:
(1) Without limitation of any right or defense of an insurer otherwise, none of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy or of any defense of the insurer thereunder:
(a) Acknowledgement of the receipt of notice of loss or claim under the policy.
(b) Furnishing forms for reporting a loss or claim, for giving information relative thereto, or for making proof of loss, or receiving or acknowledging receipt of any such forms or proofs completed or uncompleted.
Id. § 627.426. Thus, if Travelers had a defense based upon its prior payment, it did not waive this defense by furnishing proof forms.
The majority declares that “[a] reasonable jury could find that by sending the claim forms, Travelers represented that Souran could sensibly expect that Travelers would seriously consider his claim to his daughter’s policy proceeds.” Maj. Op., supra p. 1503. This reasoning escapes me. What it apparently means is that by furnishing proof forms Travelers was saying that if you file a claim we will seriously consider waiving any defense predicated upon the argument that we have previously paid the proceeds to a person entitled to collect them. Such reasoning flies in the face of the Florida statute’s nonwaiver provision. Furthermore, no evidence supports the inference that Travelers did not “seriously consider” Souran’s claim under the policy. Souran’s real problem would seem to be that he did not have a valid claim under the policy — a fact his attorneys acknowledged when they dismissed counts I and II.
The cryptic letter to Travelers from Souran’s attorney included no request for *1512information about the status of claims by-others. Nevertheless, the majority sees an implicit misrepresentation by Travelers because the company gave Souran no more information than he requested and no less than the Florida statute requires.
Turning to the simple negligence theory, a great deal of the discussion in the parties’ briefs focuses on the issue of whether Travelers owed a duty to Mr. Souran to advise him of its prior payment. Souran concedes that “there is no case which states unequivocally that an insurer has a duty to timely advise claimants who give it notice of a claim that the policy proceeds have been exhausted.” (Appellant’s Br. at 45.) Nevertheless, he asks this court to do what Florida courts and the Florida Legislature have not done, that is, to declare that the “public policy” of Florida requires an insurer to provide policy payment information to claimants who do not request it. (See id.) Why this would be good policy, Souran does not say.
The majority opinion dispenses with the duty question by observing that “[e]ven if Travelers had no duty to respond, since it did respond, it incurred a duty to exercise due care.” Maj. Op., supra p. 1506. This overlooks the fact that Fla.Stat.Ann. § 627.425 required Travelers to send the claim forms. Travelers satisfied the statutory duty. There is no basis for holding that Travelers, as a matter of law, assumed yet a broader duty simply by fulfilling its statutory obligation.
The majority opinion also overlooks proximate cause, another essential element of Souran’s claim. In a negligence action, proximate cause “is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla.1992) (emphasis added). Although the precise manner or extent of the injury need not be foreseeable, “an injury caused by a freakish and improbable chain of events would not be ‘proximate’ precisely because it is unquestionably unforeseeable.” Id. at 503. A defendant is held responsible for only that harm which “prudent human foresight would lead one to expect.” Id. As with a simple negligence claim, proximate cause also is a key to recovery for negligent misrepresentation. See Alna Capital Assocs. v. Wagner, 758 F.2d 562, 565-66 (11th Cir.1985) (discussing Florida law); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 110, at 767 (5th ed. 1984).
What injury does Souran contend Travelers should have foreseen when it sent proof of loss forms? We find the answer on page 41 of Souran’s brief: “Clearly, the harm that it could foresee was not necessarily that Mr. Souran would settle a lawsuit against Von Bergen without knowing the latter had already claimed the Travelers money, but that Mr. Souran was going to file a claim to the proceeds which would be denied.” (Emphasis in original.)
It is certainly foreseeable that one requesting proofs of loss will file a claim; it is even foreseeable that a claim may be denied. But, Travelers had no reason to foresee that Souran would, after requesting proof of loss forms, enter into a settlement agreement with the beneficiary of the Travelers policy by the terms of which he would give value for an assignment of the policy and surrender any right to recover from Von Bergen the proceeds Von Bergen had already collected. “Prudent human foresight” would not have led Travelers to expect this kind of injury.
I agree with the district court’s conclusion that count III lacks merit.
. The majority does not reach Souran’s argument that the district court violated the 10-day notice requirement for summary judgment under Federal Rule of Civil Procedure 56(c). Therefore, I do not address that issue here.
. The majority holds that the negligent misrepresentation claim was timely because count III of Souran’s complaint “embraces” that theory of recovery. Maj. Op., supra p. 1503 n. 6. This holding misses the point: Souran has not appealed the district court's ruling that his negligent misrepresentation claim was untimely. Whatever the majority’s view of the claim’s timeliness, the issue is not properly before this court.