                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         October 12, 2006
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                      ))))))))))))))))))))))))))                 Clerk

                            No. 05-60365
                          Summary Calendar
                      ))))))))))))))))))))))))))

WILLIAM HAND

                Plaintiff–Appellant,

     v.

UNUM PROVIDENT CORPORATION; THE PAUL REVERE LIFE INSURANCE
COMPANY

                Defendants–Appellees.


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

                          No. 3:01-CV-0267



Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     This is an appeal by an insured of several district court

orders following a jury trial that found that the arthritic

condition in the insured’s hands that prevented him from

performing orthopedic surgery was not covered by the insured’s

“own occupation” disability insurance policy.      Because we find no

reversible error in either the district court’s rulings or the


     *
       Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
jury’s verdict, we AFFIRM.

                             I. BACKGROUND

     Plaintiff-Appellant Dr. William Hand (“Hand”), a Mississippi

resident, practiced orthopedic surgery for approximately thirty

years.   In December 1992, Hand purchased an “own occupation”

disability insurance policy (“the policy”) from Defendant-

Appellee Paul Revere Life Insurance Company, whose parent company

is Defendant-Appellee UNUM Provident Corporation (collectively,

“Defendants”).    Pursuant to the policy, Defendants were obligated

to pay Hand $6000 a month should he ever become totally disabled.

As defined by the policy,

     “Total Disability”     means   that   because   of   Injury   or
     Sickness:

           a. You are unable to perform the important duties
           of Your Occupation; and

           b.   You are receiving Physician’s Care.

“Your Occupation” is defined in the policy as “the occupation or

occupations in which You are regularly engaged at the time

Disability begins.”

     Hand subsequently developed severe arthritis in his hands,

which he contends resulted in the total and permanent loss of his

ability to perform orthopedic surgery by January 1, 1999.          Hand,

however, did not seek treatment from a doctor at that time.

Instead, he sought and obtained a series of jobs that did not

require him to perform orthopedic surgery.       It was not until



                                    2
April 18, 2000, that Hand visited Dr. Aubrey Lucas (“Dr. Lucas”)

for evaluation of his arthritis.       Dr. Lucas determined that

Hand’s arthritis prevented him from performing orthopedic

surgery, and Hand then filed a claim for disability benefits with

Defendants.

     Defendants conducted an investigation into Hand’s claim, and

on September 22, 2000, issued a letter denying Hand’s request for

disability benefits.   Defendants’ stated reason for denial was

that, as of April 18, 2000, Hand’s occupation was that of a non-

operating orthopedic physician, not an orthopedic surgeon.

Therefore, the arthritis that kept Hand from performing

orthopedic surgery did not render Hand unable to perform the

important duties of his occupation.

                       II. PROCEDURAL HISTORY

     Dissatisfied with this result, Hand brought suit in

Mississippi state court, claiming that Defendants breached the

insurance contract and acted in bad faith in denying his claim.

He requested both compensatory and punitive damages.       Defendants

removed the case to federal court on the basis of diversity.       See

28 U.S.C. § 1332 (1993 & Supp. 2006).       The parties filed motions

for summary judgment shortly before trial, and concluded briefing

on the motions three days before the final pretrial conference.

The district court denied both motions, and the case proceeded to

trial before a jury.



                                   3
     Following several days of testimony, the court presented the

jury with the following two interrogatories:

          1. Do you find that the plaintiff, William Hand, is
     totally disabled to perform the important duties of the
     occupation of Orthopedic Surgeon?

                               . . .

          2.   If you answered the immediately preceding
     interrogatory “Yes,” what is the date on which the
     plaintiff was totally disabled?

With respect to the first interrogatory, the trial court

specifically instructed the jurors that they were not to consider

the Physician’s Care clause in reaching their decision.1    The

jury answered “Yes” to the first interrogatory, and “April 18,

2000" to the second interrogatory.

     Based on these responses, the trial court found that

Defendants were not liable under the policy.   Because it was

undisputed that Hand had not performed orthopedic surgery since

October 1998, the trial court reasoned that Hand’s occupation as

of April 18, 2000, did not require him to perform orthopedic

surgery.   Therefore, Hand’s arthritis did not render him totally

disabled from performing the important duties of his occupation.

Accordingly, the court entered judgment for Defendants, and Hand

now appeals.

                          III. DISCUSSION

     1
        The Physician’s Care clause is the second prong of the
definition of “Total Disability,” which requires the insured to
be under a doctor’s care before he is considered totally disabled
under the policy.

                                 4
     Hand brings eleven points of error in this appeal.    The

court will address Hand’s challenges to the trial court’s summary

judgment rulings, the trial court’s interpretation of the policy,

the admission of certain evidence and argument, the jury

instructions, and the jury’s findings.    Because of our

disposition of the above issues, we need not address the

remaining points of error brought by Hand.

A.   Summary Judgment Rulings

     Hand first claims that the district court erred in denying

his motion for partial summary judgment.    However, orders denying

summary judgment are not reviewable on appeal where a final

judgment adverse to the movant has been rendered on the basis of

a subsequent full trial on the merits.     Johnson v. Sawyer, 120

F.3d 1307, 1316 (5th Cir. 1997); Black v. J.I. Case Co., 22 F.3d

568, 569-70 (5th Cir. 1994).    Because Hand received an adverse

final judgment after a jury trial on the merits of his case, he

may not now appeal the denial of his motion for partial summary

judgment.   Thus, the court will not consider whether Hand’s

motion was properly denied.

     In a related argument, Hand asserts that by denying

Defendants’ motion for summary judgment, which asserted that the

policy was unambiguous, the trial court impliedly found that the

policy was ambiguous, which Hand claims should result in a

verdict in his favor.   Hand’s argument is misplaced.   Even in the

absence of a factual dispute, “a district court has the power to

                                  5
‘deny summary judgment in a case where there is reason to believe

that the better course would be to proceed to a full trial.’”

Black, 22 F.3d at 572 (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986)).   Further, the grant or denial of a

partial summary judgment is interlocutory in nature and may be

revised by the district court at any time.   See Streber v.

Hunter, 221 F.3d 701, 737 (5th Cir. 2000); see also F.D.I.C. v.

Massingill, 24 F.3d 768, 774 (5th Cir. 1994) (noting a partial

summary judgment order has no res judicata effect).   Thus, the

trial court’s denial of Defendants’ motion for summary judgment

did not necessarily mean that the trial court found the policy

ambiguous, nor did it bind the trial court to a finding in favor

of Hand.   Therefore, the trial court’s rulings on the summary

judgment motions were not erroneous.

B.   Contract Interpretation

     Hand next faults the trial court’s interpretation of the

policy, specifically, the trial court’s interpretation of “Your

Occupation” and the Presumptive Total Disability Benefits clause.

We review the district court’s interpretation of an insurance

contract de novo.   Coleman v. Sch. Bd. of Richland Parish, 418

F.3d 511, 515 (5th Cir. 2005).

     Hand first claims that the trial court erred in not finding

the term “Your Occupation” ambiguous.   As noted above, “Your

Occupation” is defined as “the occupation or occupations in which

[the insured is] regularly engaged at the time Disability

                                 6
begins.”    Defendants claim “Disability” must be a “Total

Disability” before benefits are due, while Hand asserts that his

“Disability” began at the onset of his arthritic condition.

Thus, Hand argues that “Your Occupation” is ambiguous, and must

be construed in his favor.    As the parties agree that Mississippi

law applies to this case, the court turns to Mississippi case law

for its principles of contract interpretation.

     Pursuant to Mississippi law, when a contract is clear and

unambiguous as to its wording, its meaning and effect are matters

of law.    Farmland Mut. Ins. Co v. Scruggs, 886 So. 2d 714, 717

(Miss. 2004); U.S. Fid. & Guar. Co. v. Omnibank, 812 So. 2d 196,

198-99 (Miss. 2002).    When interpreting a contract, the court’s

focus is upon the objective facts, that is, the language of the

contract.    Tupelo Redev. Agency v. Abernathy, 913 So. 2d 278, 284

(Miss. 2005); Facilities, Inc. v. Rogers-Usry Chevrolet, Inc.,

908 So. 2d 107, 110-11 (Miss. 2005).    In the case of insurance

contracts, ambiguous terms are to be construed most strongly

against the insurance company who prepared the contract.

Farmland, 886 So. 2d at 717.

     The conflict over the interpretation of “Your Occupation” in

this case stems from differing beliefs as to the meaning of

“Disability.”    In interpreting an insurance policy, the court is

to look at the policy as a whole, consider all relevant portions

together and, whenever possible, give operative effect to every

provision in order to reach a reasonable overall result.     J & W

                                  7
Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So. 2d 550,

552 (Miss. 1998).    Section 1.13 of the policy defines the term

“Disability” as “continuing periods of Total Disability, Residual

Disability and/or Recovery.”    As Residual Disability and Recovery

are not at issue in this case, Disability must mean Total

Disability.    Therefore, “Your Occupation” is defined, for

purposes of Hand’s situation, as the occupation in which he was

regularly engaged at the time he became totally disabled.

Because the policy is clear and unambiguous as to the definition

of “Your Occupation,” the trial court did not err in its

interpretation of “Your Occupation.”2

     Hand next argues that the trial court erred in denying his

motion for judgment as a matter of law on his claim for

Presumptive Total Disability Benefits (the PTDB provision).

Pursuant to the PTDB provision,

     If Injury or Sickness        causes   You   to   totally   and
     irrevocably lose . . .

          d.    Use of both hands . . .

     We will presume You to be Totally Disabled as long as
     such loss continues and whether or not You are able to
     work or require Physician’s Care.

Hand asserts that simply losing the ability to perform orthopedic

     2
        Because the interpretation of “Your Occupation” is clear
and unambiguous, this court need not consider Hand’s argument
that extrinsic evidence, namely the claims manual, defined
Disability differently. See Facilities, 908 So. 2d at 111
(holding that only if the contract is unclear or ambiguous may a
court go beyond the text of the contract to determine the
parties’ true intent).

                                   8
surgery constitutes the loss of use of both hands under the PTDB

provision.   Alternatively, Hand claims the policy is ambiguous

and must be construed in his favor.

     Again, when interpreting an insurance policy, the court is

to “give operative effect to every provision . . . .”     J & W

Foods, 723 So. 2d at 552.   If loss of use in the PTDB provision

means loss of use only for purposes of the insured’s ability to

work, as suggested by Hand, then the phrase “whether or not You

are able to work” would be superfluous.    Thus, the trial court

was correct in its determination that loss of use for purposes of

the PTDB clause required more than loss of the ability to work.

Therefore, the trial court did not err in concluding that the

PTDB provision did not provide benefits to Hand.

C.   Trial Rulings

     Hand also takes issue with several rulings of the district

court during trial that he claims prejudiced his case.    First,

Hand asserts that the fact that the trial court waited until

after both sides had rested to decide that the policy was

unambiguous harmed the presentation of his case because he had

focused on ambiguity.   Hand, however, has not provided this court

with any citations to the record, evidence, or specific

descriptions of how the trial court’s actions in this case

prejudiced his trial presentation.    A district court has the

inherent power to manage and control its own docket in order to

achieve the orderly and expeditious disposition of cases.     See

                                 9
United States v. Colomb, 419 F.3d 292, 299 (5th Cir. 2005);

Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir. 1995).

Hand’s failure to identify specific prejudice gives this court no

reason to find the trial court’s actions improper.

     Hand next argues that the trial court erred in permitting

Defendants to present evidence that Hand had stated in several

job applications in 1998 and 1999 that he was able to perform

surgery.   Hand claims this information was not known to

Defendants at the time they denied his claim and that, under

Mississippi law, the fact finder may only consider the reasons

for denial given by the insurer at the time of the denial,

relying on Sobley v. Southern National Gas Company, 210 F.3d 561,

564 (5th Cir. 2000).

     We review a trial court’s evidentiary rulings for an abuse

of discretion.     Gomez v. St. Jude Med. Daig Div., Inc., 442 F.3d

919, 927 (5th Cir. 2006); Perez v. Tex. Dep’t of Criminal

Justice, 395 F.3d 206, 210 (5th Cir. 2004), cert. denied, 126 S.

Ct. 545 (2005).    An erroneous evidentiary ruling is reversible

error only if it affects a party’s substantial rights.     Perez,

395 F.3d at 210.    Under this standard, the trial court’s actions

do not constitute reversible error.    As stated in Sobley,

     Under Mississippi law, an insurer may rely on any
     exclusion in the policy to show that no coverage existed,
     whether or not that exclusion was the stated basis for
     denial. However, once coverage is established, a court
     should evaluate whether there was an arguable basis for
     denial of coverage based solely on the reasons for denial
     of coverage given to the insured by the insurance

                                  10
     company.

210 F.3d at 564.   Hand did not establish coverage in this case;

thus, the trial court did not need to undertake the second step

of the analysis and consider whether Defendants had an arguable

basis for denial, in which case Defendants’ evidence might have

been inadmissible.   Further, Hand claimed throughout the case

that he had been disabled as early as 1998.    Defendants were

entitled to present evidence in rebuttal that Hand was not

disabled from performing surgery.    Therefore, the trial court did

not commit reversible error by refusing to exclude Defendants’

evidence.

     Hand next asserts that his due process rights under the

United States Constitution were violated when he was not

permitted to discuss the Physician’s Care clause or Defendants’

internal procedures in his closing argument.    However, the

Physician’s Care clause and Defendants’ internal procedures were

irrelevant to the ultimate jury issues, which dealt with if and

when Hand became disabled from performing orthopedic surgery.

Thus, the trial court’s decision to exclude such arguments was

neither a due process violation nor reversible error.    There is

likewise no merit to Hand’s claim that he was harmed when the

court interrupted his closing argument after he referenced the

Physician’s Care clause.   Therefore, Hand has not shown that the

trial court’s limitations on closing arguments violated his due

process rights.

                                11
D.   Jury Instructions

     Hand complains that the jury instructions were

contradictory, incomplete, and unnecessary.    Challenges to jury

instructions are reviewed under an abuse of discretion standard.

Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 179 (5th

Cir. 2005).   A judgment should be reversed “only if the charge as

a whole creates a substantial doubt as to whether the jury has

been properly guided in its deliberations.”    C. P. Interests,

Inc. v. Cal. Pools, Inc., 238 F.3d 690, 700 (5th Cir. 2001); see

also Int’l Ins. Co v. RSR Corp., 426 F.3d 281, 291 (5th Cir.

2005) (stating that “[g]reat latitude” is shown to the trial

court with respect to jury instructions).

     Hand asserts the instructions were contradictory because the

trial court told the jury not to consider the policy in reaching

its decision, yet also told the jury to consider “all the

evidence,” which happened to include the policy.    The court has

reviewed the instructions in question and finds that they were

not so confusing as to cause “substantial doubt” that the jury

was properly guided in its deliberations.     See C. P. Interests,

238 F.3d at 700.   While in general, the jury was told to consider

all of the evidence, the trial court specifically emphasized that

the jury was not to consider the policy.    This court presumes

that the jury heard, understood, and followed the trial court’s

instructions.   See United States v. Bernard, 299 F.3d 467, 476

(5th Cir. 2002).   Therefore, the trial court did not abuse its

                                12
discretion in instructing the jury as it did with respect to

consideration of the policy.

     Hand also claims the instructions were incomplete because

they did not provide the jury with a definition of “totally

disabled” or the “important duties of an orthopedic surgeon.”     As

pointed out by Defendants, however, the trial court did instruct

the jury as follows:

     I have provided to you the definition of total disability
     which means that in order for one to be totally disabled
     within the meaning of the policy, it is not necessary
     that he be wholly incapacitated to perform any duty
     incident to his occupation, but if the insured is
     prevented by his injury or illness from doing any
     substantial acts required of him, or his physical
     condition is such that in order to perfect a cure or
     prolong life, he ceases his work, he is totally disabled
     within the meaning of the policy.

Hand has not demonstrated how such definition was insufficient or

an abuse of discretion.   Therefore, again, there is no cause for

reversal.

     Finally, Hand asserts that the first interrogatory--whether

Hand was totally disabled as an orthopedic surgeon--was

unnecessary because it was undisputed that he was totally

disabled.   The instruction, however, did not harm Hand, as the

jury answered the interrogatory “Yes.”   Any assertion by Hand

that the jury was confused by this appears to be speculation and

not grounds for reversal.   Thus, in sum, the trial court did not

abuse its discretion in formulating the jury instructions in this

case, and, therefore, there is no reversible error.


                                13
E.   Jury’s Findings

     Hand claims the jury’s finding that he was not totally

disabled until April 18, 2000, is against the great weight of the

evidence.    In evaluating the sufficiency of the evidence to

support a jury’s verdict, we view all evidence and draw all

inferences in the light most favorable to the verdict.    Bryant v.

Compass Group USA, Inc., 413 F.3d 471, 475 (5th Cir. 2005)

(noting that the jury’s verdict is afforded great deference),

cert. denied, 126 S. Ct. 1027 (2006).    The court must determine

whether the state of proof is such that reasonable and impartial

minds could reach the conclusion the jury expressed in its

verdict.    Am. Home Assurance Co. v. United Space Alliance,

L.L.C., 378 F.3d 482, 487 (5th Cir. 2004).    The verdict must

stand unless there is a lack of substantial evidence, viewed in

the light most favorable to the successful party, to support the

verdict.    Id.

     Hand testified that he was totally disabled beginning

January 1, 1999; however, Hand presented no medical evidence of

his disability until April 18, 2000, when he was diagnosed by Dr.

Lucas.   Dr. Lucas stated that Hand had been disabled since

January 1, 1999, but also stated that the date was based in large

part upon Hand’s medical history in which Hand claimed he had

been disabled since January 1, 1999.    Further, Defendants have

not conceded that Hand was disabled as early as January 1, 1999,



                                 14
as is contended by Hand.    Indeed, Defendants presented evidence

that Hand’s job applications in 1998 and 1999 contained no

mention of his disability.    Given the conflicting evidence and

the absence of any medical evidence of a disability in 1999, the

jury was entitled to find that Hand became totally disabled on

April 18, 2000.    Thus, the jury’s verdict is not against the

great weight of evidence, and there is no cause for reversal on

this count.

F.   The Remaining Issues

     Because of the above rulings, the court finds it unnecessary

to address Hand’s remaining arguments in great detail.

     Given the trial court’s finding that the policy did not

cover Hand’s arthritis, there was no harm in dismissing Hand’s

bad faith and punitive damages claims, as a finding of coverage

is required before an insured may obtain punitive damages for bad

faith practices.    Sobley, 210 F.3d at 564.   For the same reason,

there was also no reversible error in the trial court’s decision

to strike Hand’s expert, who was to be presented during the

punitive damages phase.

     Hand’s argument that the Physician’s Care clause is

unenforceable under Mississippi law is likewise mooted by the

jury’s findings.    Application of the Physician’s Care clause

would have resulted in a finding of total disability on April 18,

2000, which is the same date the jury found Hand became totally

disabled from performing the important duties of an orthopedic

                                 15
surgeon.   Therefore, the Physician’s Care clause has no impact on

the result of this case.

     Hand also asserts that the trial court’s decision effected a

forfeiture or invalid modification of his policy.   This argument

is unavailing, as the trial court simply interpreted the policy

as written.   Hand’s disagreement with that interpretation does

not mean that the court modified the policy or caused Hand to

forfeit the policy.   Thus, the court concludes there are no

grounds for reversing the trial court’s decision on the basis of

forfeiture or modification.

     Finally, to the extent Hand incorporates arguments made in

his trial court briefing but not in his briefing before this

court, we consider those arguments abandoned.   See Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (stating that

arguments must be briefed to be preserved).



                           IV. CONCLUSION

     For the reasons above, we AFFIRM the judgment of the

district court.

     AFFIRMED.




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