DAVID M. COX, Plaintiff-Appellant,
PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, Defendant-Appellee.
from the United States District Court for the Southern
District of Mississippi
JONES, SMITH, and PRADO, Circuit Judges.
E. SMITH, CIRCUIT JUDGE.
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.
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
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
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
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.
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.
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.
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 ...