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Cox v. Provident Life & Accident Insurance Co.

United States Court of Appeals, Fifth Circuit

December 29, 2017

DAVID M. COX, Plaintiff-Appellant,
v.
PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, Defendant-Appellee.

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

          Before JONES, SMITH, and PRADO, Circuit Judges.

          JERRY E. SMITH, CIRCUIT JUDGE.

         David Cox challenges a summary judgment in favor of Provident Life & Accident Insurance Company ("Provident") on breach-of-contract and tortious-breach-of-contract claims stemming from two disability insurance policies that Provident issued to Cox. Under the policies, Cox is entitled to receive disability benefits for life if, and only if, his disability resulted from injury rather sickness. The district court held that Cox had failed to introduce evidence raising a question of material fact as to the cause of his injury. We disagree and reverse as to the breach-of-contract claim only.

         I.

         In 1975 and 1987, Cox purchased two separate individual disability income insurance policies from Provident ("the Policies"). The Policies provided coverage for disability caused by injury or sickness and contain provisions tying the period of benefit payments to the cause of the insured's disability. If the insured is rendered disabled at the age of 60 as a result of an accident or injury, the Policies provide for lifetime benefit payments. By contrast, if the insured is rendered disabled at the age of 60 as a result of sickness, the Policies provide that benefit payments will be paid only until age 65. The greater of the two applicable benefits periods applies when the disability results from a combination of the two.[1]

         In 2010, Cox, then 60 years old, injured his left knee when he fell into a hole while walking his dog. Two days later, he saw Dr. Massie Headley, who ordered an MRI of the knee. The MRI revealed joint effusion, a peripheral tear of the medial meniscus, a medial collateral ligament ("MCL") sprain, and degenerative thinning of the articular cartilage. Headley referred Cox to Dr. James O'Mara, who performed arthroscopic surgery to repair the meniscus tear in January 2011.

         In February 2011, Cox filed a claim with Provident for disability benefits under the Policies. Provident approved the claim and paid total disability benefits until O'Mara indicated that Cox could return to work without restrictions in March 2011. Provident closed Cox's claim with no further benefits payable. In July 2011, O'Mara performed a second arthroscopic surgery on Cox's left knee to repair a recurrent medial meniscus tear. Following the surgery, Provident agreed to reopen the disability-benefits claim.

         In August 2011, Dr. Walter Shelton took over Cox's care. He noted some improvement to the knee in August and September 2011, though Shelton requested an MRI scan in October 2011 to rule out any other underlying pathology. A subsequent MRI revealed "severe" arthritis in his patellofemoral joint. Shelton performed a diagnostic arthroscopy that revealed that Cox's knee was shedding articular cartilage from his patella, which was causing synovitis and inflammation. Shelton also found extensive grade four chondromalacia of Cox's patella, the most severe and painful form of osteoarthritis or degenerative joint disease. Over the next few years, Shelton performed a range of examinations and procedures on the left knee. In July 2013, after Cox complained to Shelton of pain in his right knee, an MRI revealed grade four chondromal-acia or osteoarthritis in that knee similar to his left. Meanwhile, Provident continued to pay Cox total disability benefits under the Policies.

         In March 2014, relying on a claim review performed by orthopaedic surgeon Dr. Philip Lahey, Provident advised Cox that his ongoing claim for disability was being administered under the "sickness" provision of the Policies because it considered degenerative arthritis, not the December 2010 injury, to be the cause of Cox's total disability. Cox disagreed and spent the next few months communicating back and forth with Provident about the issue. He ultimately appealed their determination to Provident's in-house appeals unit- they similarly found his disability was a result of degenerative arthritis.

         In June 2015, Cox filed this diversity suit, alleging breach of contract and tortious breach of contract against Provident for ceasing to pay benefits. He sought damages, including punitives, in excess of $541, 000. The Court granted Provident's motion for summary judgment, concluding that Cox had failed to raise a genuine issue of material fact as to (1) whether his disability-causing arthritis was caused by an injury rather than a sickness and (2) whether Provident had breached the Policies or acted in bad faith when it terminated Cox's benefits at the age of 65.

         II.

         Cox challenges the summary judgment on two accounts: First, he contends the court disregarded unequivocal deposition testimony from Shelton that the injury contributed to his disability; second, he asserts with little argument that his claim for tortious breach of contract should have been submitted to a jury. Only ...


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