No. 22-1895 ___________________________

Boulevard RE Holdings, LLC

lllllllllllllllllllllPlaintiff - Appellant

v.

Mixon Insurance Agency, Inc.

lllllllllllllllllllllDefendant - Appellee ____________

Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________

Submitted: January 10, 2023 Filed: July 20, 2023 ____________ Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges. ____________ SMITH, Chief Judge.

Boulevard RE Holdings, LLC, (Boulevard) sued Mixon Insurance Agency, Inc., (Mixon), alleging breach of contract and negligent procurement of insurance. Mixon moved for summary judgment. The district court1 granted Mixon’s motion. Boulevard now appeals that order. For the following reasons, we affirm.

I. Background A. Factual History Boulevard owned commercial property in which BMG Service Group, LLC, (BMG) operated a bar (Property). Boulevard entered into a contract for deed with BMG for the sale of the Property for $1,275,000. Under the contract, Boulevard retained the Property’s legal title until BMG paid the purchase price in full. The contract also obligated BMG to obtain, at its own expense, fire insurance in the amount of the purchase price. The insurance was to be issued in Boulevard’s name.

BMG approached Mixon, an insurance broker, and requested coverage equal to the purchase price of the Property. BMG also requested to have Boulevard listed as a “named insured, loss payee, additional insured, and mortgagee” on the insurance policy. Boulevard RE Holdings v. Mixon Ins. Agency, No. 4:20-cv-01288-SEP, 2022 WL 950820, at *1 (E.D. Mo. Mar. 30, 2022) (quoting R. Doc. 40, at ¶ 4). Mixon procured the policy from Berkley Assurance Co. The policy was issued in Mixon’s name and contained an endorsement called the Fire Protective Safeguard Endorsement (Endorsement). The Endorsement required the insured to maintain a working automatic sprinkler system on the Property. The Endorsement also excluded all coverage for loss or damage by fire if the sprinkler system was inoperative. However, the policy, as issued, did not list Boulevard as a “named insured, loss payee, additional insured, and mortgagee.” Id. (quoting R. Doc. 40, at ¶ 4). Mixon did not inform Boulevard or BMG that Boulevard was not listed.

1 The Honorable Sarah E. Pitlyk, United States District Judge for the Eastern District of Missouri.

-2- Approximately one year later, the Property was destroyed by fire. At the time of the fire, the sprinkler system was inoperative.

B. Procedural History 1. The Berkley Lawsuit Boulevard submitted a proof of loss to Berkley Assurance, claiming to have an interest in the property as a “lender.” Id. at *2 (quoting R. Doc. 35, at ¶ 8). In response to the claim, Berkley Assurance filed a declaratory action (Berkley Lawsuit),2 seeking an order that Boulevard had no coverage under the policy and that Berkley Assurance thus had no obligation under the policy to pay Boulevard.

Boulevard then filed a third-party complaint against Mixon, alleging breach of contract and negligent procurement of insurance. Boulevard contended that it was an intended third-party beneficiary of BMG’s insurance purchase through Mixon. Boulevard’s complaint alleged that it was “foreseeably damaged” in the amount of $1,275,000, as a direct result of both Mixon’s negligent procureme