UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH ROSS, by his next friend and
Conservator, Geneva Ross,
Plaintiff-Appellant,

v.

UNUM LIFE INSURANCE COMPANY OF
AMERICA, a foreign corporation
doing business in the State of West
                                                               No. 98-2460
Virginia,
Defendant-Appellee,

and

CARSON INSURANCE AGENCY,
INCORPORATED, a West Virginia
corporation,
Defendant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Elizabeth V. Hallanan, Senior District Judge.
(CA-95-570-2)

Argued: January 25, 2000

Decided: March 30, 2000

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard Eric Shaw, LOPATIN, MILLER, FREEDMAN,
BLUESTONE, HERSKOVIC, HEILMANN & DOMOL, Southfield,
Michigan, for Appellant. John Campbell Palmer, IV, ROBINSON &
MCELWEE, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Joseph Ross appeals the district court's award of summary judg-
ment in favor of the defendant, Unum Life Insurance Company of
America (Unum), in Ross's action alleging breach of an insurance
contract (a disability income policy) and bad faith failure to pay or
settle an insurance claim. We affirm.

In November 1992 Ross filed a claim of total disability with Unum.
After making payments under reservation of right for about a year
(March through December 1993), Unum discontinued benefits. The
company notified Ross by letter dated January 13, 1994, that it
believed he had falsified income information on his insurance appli-
cation and that his policy was therefore invalid. The Unum letter also
stated that the company lacked sufficient information to conclude that
Ross was disabled. Unum informed Ross that he could provide addi-
tional information in support of his claim, but that failure to do so
within thirty days would result in the policy being rescinded. Ross did
not provide new information until November 1994, approximately
eleven months after Unum's letter. Unum resumed making payments
to Ross, effective December 1994, but it made no payments for the
period (about eleven months) when it lacked information. It is the
period of non-payment that is in question in this case.

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The district court concluded that Ross had failed to provide suffi-
cient proof of loss as required by the policy for the period when
Unum did not make payments. As the district court noted, compliance
with the terms of the policy is a condition precedent to any right of
action by the insured. See Thompson v. West Virginia Essential Prop-
erty Assurance Ass'n, 186 W.Va. 84, 87 (1991). Because Ross did not
satisfy a condition precedent (he did not establish proof of loss for the
period in dispute), the district court was correct in awarding summary
judgment to Unum. Accordingly, we affirm on the reasoning of the
district court. See Joseph Ross v. Unum Life Insurance Company of
America, Civ. Action No. 2:95-0570 (S.D. W.Va. Sept. 17, 1998).

AFFIRMED

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