     Case: 11-60458   Document: 00512283135    Page: 1   Date Filed: 06/21/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                   FILED
                                                                June 21, 2013

                                No. 11-60458                    Lyle W. Cayce
                                                                     Clerk

FAITH JAMES,

                                          Plaintiff - Appellant,
v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

                                          Defendant - Appellee.



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


Before STEWART, Chief Judge, and GARZA and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Defendant-Appellee State Farm Mutual Automobile Insurance Co. (“State
Farm”) tendered the policy limit on its uninsured motor vehicle coverage to
Plaintiff-Appellant Faith James nearly thirty months after James was injured
in a car accident. James brought a bad faith claim under Mississippi law, and
the district court granted State Farm’s motion for summary judgment. For the
following reasons, we AFFIRM in part, REVERSE in part, and REMAND.
                             I. BACKGROUND
A. Facts
      On February 3, 2006, James was involved in a car accident with Jarvis
Smith. The parties do not dispute that Smith’s negligence was the sole cause of
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the accident. James’s vehicle turned over at least once, and she was taken from
the scene in an ambulance to Wayne General Hospital.                   James received
numerous stitches for a head wound and testified in her deposition that she felt
significant pain in her chest, back, and head immediately after the accident.
      At the time of the accident, James and/or her husband owned four State
Farm insurance policies. The policy on the vehicle James was driving at the
time of the accident included $5,000 in medical payments coverage, collision
coverage, and $10,000 per person in uninsured/underinsured motor vehicle
(“UM”) coverage. Each of the other three policies also provided $10,000 per
person UM coverage for a stacked total of $40,000 in UM benefits. The parties
do not dispute that James’s policies were in effect at the time of the accident.
After James promptly notified State Farm of the accident, State Farm quickly
paid out under its medical payments and collision coverage.
      At issue is State Farm’s delay in paying James benefits under her UM
coverage. As the timeline of events contained in the record underpins our
analysis of James’s claims, we refrain from a lengthy factual recitation here and
instead present critical events in our below discussion. We now continue our
summary of this case’s background with an overview of its procedural history.
B. Procedural History
      On October 23, 2007, James and her husband1 filed a complaint against
State Farm in federal district court on diversity grounds. On February 13, 2008,
James filed an amended complaint, which alleged that State Farm was
intentionally engaging in delaying tactics to avoid paying on the policies.
Because of this delay, the complaint alleged that State Farm had, inter alia,
committed the tort of bad faith.2 The complaint requested a jury trial and

      1
          James’s husband later voluntarily dismissed his complaint.
      2
        James also asserted that State Farm’s actions were “a breach of Defendant’s duties
of good faith and fair dealings and duty to fairly and promptly adjust claims under the

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                                      No. 11-60458

sought $40,000 due under the policy, compensatory damages, and punitive
damages.
       Over the next several months, the magistrate judge granted two motions
to compel against State Farm. On July 29, 2008, State Farm paid its stacked
UM policy limit of $40,000 to James. State Farm then filed a motion for
summary judgment on October 29, 2008. On May 6, 2011, the district court
granted State Farm’s motion for summary judgment, entered final judgment in
favor of State Farm, and dismissed the complaint with prejudice. No. 4:07-CV-
137, 2011 WL 1743421 (S.D. Miss. May 6, 2011). This appeal followed.3
                                   II. DISCUSSION
       On appeal, James makes two arguments related to her bad faith claim: (1)
State Farm withheld payment under one policy in order to coerce a lower
settlement for claims under other policies, and (2) State Farm unreasonably
delayed payment on the claim without a legitimate or arguable basis for doing
so.
A. Standard of Review
       We review a district court’s grant of summary judgment de novo. Bradley
v. Allstate Ins. Co., 620 F.3d 509, 516 (5th Cir. 2010) (citation omitted).
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute about a material

Plaintiffs’ policy.” Even if the pleadings indicate James may have asserted these as claims
separate from her bad faith claim, James has pressed only her bad faith claim on appeal.
       3
         On appeal, James appears to assert a separate breach of contract claim. The district
court apparently interpreted this claim as a sub-issue within James’s bad faith claim. On
appeal, James combines this claim with her argument as to the independent tort of bad faith.
Assuming arguendo that James intended to assert a breach of contract claim separate from
her bad faith claim, we hold this claim to have been waived on appeal because James points
to no policy provisions supporting this claim. See Fed. R. App. P. 28. Accordingly, we affirm
the district court to the extent that it granted summary judgment to State Farm on a breach
of contract claim.

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fact exists when the evidence presented on summary judgment is such that a
reasonable jury could find in favor of the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). We view all facts and evidence in the light
most favorable to the non-movant, here James. Bradley, 620 F.3d at 516
(citation omitted).   When a defendant moves for summary judgment and
identifies a lack of evidence to support the plaintiff’s claim on an issue for which
the plaintiff would bear the burden of proof at trial, then the defendant is
entitled to summary judgment unless the plaintiff is able to produce “summary
judgment evidence sufficient to sustain a finding in plaintiff’s favor on that
issue.” Kovacic v. Villarreal, 628 F.3d 209, 212 (5th Cir. 2010) (citations
omitted) (quoting Thompson v. Upshur Cnty, Tex., 245 F.3d 447, 456 (5th Cir.
2001). “[T]he propriety of summary judgment [is] bound up in the burdens of
proof at trial . . . .” Steven Alan Childress & Martha S. Davis, 1 Federal
Standards of Review § 5.02, at 5-26 (4th ed. 2010) (citing Anderson, 447 U.S. at
247-48, 254).
      We review the district court’s interpretation of state law de novo, and we
“give no deference to its determinations of state law issues.” Bradley, 620 F.3d
at 516 (citation omitted).
B. Applicable Law
      Because James brought this case in federal court on diversity grounds,
Mississippi substantive law applies. See Erie R.R. Co. v. Tompkins, 304 U.S. 64
(1938). “To determine issues of state law, we look to final decisions of the state’s
highest court, and when there is no ruling by that court, then we have the duty
to determine as best we can what the state’s highest court would decide.”
Westlake Petrochems., L.L.C. v. United Polychem, Inc., 688 F.3d 232, 238 n.5 (5th
Cir. 2012) (citation omitted). “In making an [Erie] guess in the absence of a
ruling from the state’s highest court, this Court may look to the decisions of



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intermediate appellate state courts for guidance.”                Howe ex rel. Howe v.
Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000) (citation omitted).
       1. Claim against insurer for bad faith
       James asserts that State Farm committed the tort of bad faith when it
delayed payment on her UM claim.                 “[A] bad faith refusal claim is an
‘independent tort’ separable in both law and fact from the contract claim
asserted by an insured under the terms of the policy.” Spansel v. State Farm
Fire & Cas. Co., 683 F. Supp. 2d 444, 447 (S.D. Miss. 2010) (alteration in
original) (quoting Hartford Underwriters Ins. Co. v. Williams, 936 So. 2d 888,
895 (Miss. 2006)).
       The Mississippi Supreme Court has recognized that claimants can bring
bad faith claims against and recover punitive damages from insurers who refuse
to pay out on a valid claim. See Caldwell v. Alfa Ins. Co., 686 So. 2d 1092, 1098
(Miss. 1996) (holding that denial of a valid insurance claim is critical for the
submission of punitive damages to a jury). Additionally, although Mississippi
courts are skeptical of such claims, they have permitted claimants to recover
damages on bad faith claims when resolution of an insurance claim is merely
delayed rather than ultimately denied.4 See, e.g., Travelers Indem. Co. v.
Wetherbee, 368 So. 2d 829, 834-35 (Miss. 1979) (affirming jury award for punitive
damages where insurer withheld payment for eight months); AmFed Cos., LLC
v. Jordan, 34 So. 3d 1177, 1191 (Miss. Ct. App. 2009) (affirming trial judge’s
decision to submit punitive damages issue to the jury in a delay-of-payment
case); Pilate v. Am. Federated Ins. Co., 865 So. 2d 387, 400 (Miss. Ct. App. 2004)
(“[T]here may be cases where a delay [of payment for one month] could possibly
be sufficient grounds for a bad faith claim.”); see also Essinger v. Liberty Mut.


       4
         Thus, here, we treat caselaw that refers to a “denial of a claim” as interchangeable
with a “delay of payment on a claim” unless the context indicates that the law pertains
specifically to a denial.

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Fire Ins. Co., 529 F.3d 264, 271 n.1 (5th Cir. 2008) (citation omitted) (“Inordinate
delays in processing claims and a failure to make a meaningful investigation
have combined to create a jury question on bad faith.”); but see Tutor v. Ranger
Ins. Co., 804 F.2d 1395, 1399 (5th Cir. 1986) (per curiam) (reversing jury’s
punitive damage award where payment was delayed during an ongoing dispute
between insured and insurer); Caldwell, 686 So. 2d at 1098 (affirming grant of
summary judgment where insurance company delayed payment for three
months in complex wrongful death claim, including a six-week delay after it
completed its investigation).
      Our review of the case law illustrates that whether to submit a delay-of-
payment claim to a jury is a highly fact-sensitive analysis.
      2. Compensatory and punitive damages
      James seeks to recover compensatory and punitive damages for State
Farm’s payment delay. In Mississippi, compensatory5 and punitive damages are
related. To establish a claim for punitive damages in the context of a bad faith
claim, a party must first establish her entitlement to compensatory damages.
See Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 628 (5th Cir. 2008)
(“Mississippi law does not permit parties to recover punitive damages unless
they first prove that they are entitled to compensatory damages.” (citations
omitted)). To do so, the trial judge must decide, as a matter of law, that the
insurer lacked ‘a reasonably arguable basis’ for denying the claim.” See id. at
628 (citation omitted) (quoting Andrew Jackson Life Ins. Co. v. Williams, 566 So.
2d 1172, 1186 n.13 (Miss. 1990); U.S. Fid. & Guar. Co. v. Wigginton, 964 F.2d
487, 492 (5th Cir. 1992) (citation omitted); Fulton v. Miss. Farm Bureau Cas. Ins.
Co., 105 So. 3d 284, 288 (Miss. 2012) (“When an insurer denies a claim without
an arguable basis . . . extracontractual damages may provide [a] form of relief.”

      5
        For purposes of this appeal, we use compensatory damages interchangeably with
consequential and extra-contractual damages.

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(footnote omitted)). Then, the trier of fact determines whether compensatory
damages are to be awarded and in what amount. Miss. Code Ann. § 11-1-
65(1)(b) (West 2012). If and only if the trier of fact does award compensatory
damages, then “the court shall promptly commence an evidentiary hearing to
determine whether punitive damages may be considered by the same trier of
fact.” Id. § 11-1-65(c); see also Jordan, 34 So. 3d at 1189 (describing process
whereby after the jury awarded the claimant compensatory damages, the
claimant moved to submit the issue of punitive damages to the jury).
      Moreover, an insurer can be held liable for compensatory damages without
simultaneously being held liable for punitive damages. See Broussard, 523 F.3d
at 628 (“Insurers who are not liable for punitive damages may nonetheless be
liable for consequential or extra-contractual damages (e.g., reasonable attorney
fees, court costs, and other economic losses) where their decision to deny the
insured’s claim is without a reasonably arguable basis but does not otherwise
rise to the level of an independent tort.” (citations and internal quotation marks
omitted)).    Extra-contractual damages also include emotional distress,
inconvenience, and accounting fees. Spansel, 683 F. Supp. 2d at 448 (collecting
Mississippi Supreme Court citations).
      Because whether the insurer “lacked ‘a reasonably arguable basis’ for
denying the claim” is a threshold issue for a punitive damages claim, if a court
decides as a matter of law that the insurer does have an arguable or legitimate
basis for its denial, the plaintiff is entitled to neither compensatory nor punitive
damages. If, however, a court determines as a matter of law that the insurer
lacks such a basis, the trier of fact must determine whether to award
compensatory damages before the court can determine whether the trier of fact
may also consider punitive damages. Thus, if an appellate court determines that
an insurer lacks an arguable or legitimate basis, then the court must remand to



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the district court for trial on compensatory damages and cannot simultaneously
determine whether punitive damages are warranted.
       3. Arguable or legitimate basis
       As noted above, whether an insurer possessed an arguable or legitimate
reason is a question of law. Wigginton, 964 F.2d at 492 (citation omitted);
Jenkins v. Ohio Cas. Ins. Co., 794 So. 2d 228, 232-33 (Miss. 2001). “Arguable
reason is defined as nothing more than an expression indicating the act or acts
of the alleged tortfeasor do not rise to [the] heightened level of an independent
tort.” Caldwell, 686 So. 2d at 1096 (citation and internal quotation marks
omitted). The initial burden placed on the insurer is low: it “need only show that
it had reasonable justifications, either in fact or in law” for its actions.
Wigginton, 964 F.2d at 492 (citation omitted). Once an insurance company
articulates an arguable or legitimate reason for its payment delay, the insured
bears the burden of demonstrating that the insurer had no arguable reason.
Caldwell, 686 So. 2d at 1097. “The plaintiff’s burden in this respect likewise
exists at the summary judgment stage where the insurance company presents
an adequate prima facie showing of a reasonably arguable basis for denial so as
to preclude punitive damages.” Id. at 1097 n.1 (citation omitted).
       Whether a claimant has proven an insurer acted without a reasonable or
arguable basis is determined by a preponderance of the evidence. See, e.g., Miss.
Power & Light Co. v. Cook, 832 So. 2d 474, 484 (Miss. 2002) (approving of jury
instructions that used preponderance of the evidence standard); Mut. Life Ins.
Co. of N.Y. v. Estate of Wesson, 517 So. 2d 521, 530 (Miss. 1987), abrogated on
other grounds by Gen. Am. Life Ins. Co. v. McCraw, 963 So. 2d 1111, 1114 (Miss.
2007) (same).6


       6
         State Farm argues that James must establish the lack of an arguable or legitimate
basis by clear and convincing evidence. While it is clear that the second part of the punitive
damages test under State Farm Mut. Auto. Ins. Co. v. Grimes, 722 So. 2d 637, 641 (Miss.

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       4. Insurer duties under Mississippi law
       Mississippi places a duty on insurers to properly investigate the claims
asserted by their insured. Specifically, “[u]nder Mississippi law, insurers have
a duty ‘to perform a prompt and adequate investigation and make a reasonable,
good faith decision based on that investigation’ . . . .” Broussard, 523 F.3d at
627-28 (quoting Liberty Mut. Ins. Co. v. McKneely, 862 So. 2d 530, 535 (Miss.
2003)).    “A proper investigation means obtaining ‘all medical information
relevant to a policyholder’s claim.’” McLendon v. Wal-Mart Stores, Inc., 521 F.
Supp. 2d 561, 565 (S.D. Miss. 2007) (quoting Lewis v. Equity Nat’l Life Ins. Co.,
637 So. 2d 183, 187 (Miss. 1994)). To do so, an insurer must “make a reasonable
effort to secure all medical records relevant to the claim.” Stewart v. Gulf Guar.
Life Ins. Co., 846 So. 2d 192, 204 (Miss. 2002) (citation and internal quotation
marks omitted).
C. Analysis
       Having set up the legal background to James’s bad faith claim, we now
proceed to determine whether State Farm has an arguable or legitimate basis
for delaying payment on James’s claim.7 The parties have framed the analysis
of this issue as an all-or-nothing proposition. State Farm delayed payment from
February 2006, when James reported the accident to State Farm, until July 29,


1998), does require clear and convincing evidence, see Miss. Code Ann. § 11-1-65, State Farm
has identified no Mississippi court that has squarely addressed the question of whether
establishing the lack of an arguable basis requires a similarly heightened standard. Moreover,
the plain language of the Mississippi statute limits its heightened standard to proof of “actual
malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety
of others, or . . . actual fraud.” Miss. Code Ann. § 11-1-65(1)(a). This plainly addresses the
second part of the punitive damages test, not the threshold issue that we consider today.
Therefore, as State Farm has presented no contrary authority, we hold that the lack of an
arguable or legitimate basis requires only proof by a preponderance of the evidence.
       7
        James also argues that State Farm withheld payment under one policy in order to
coerce a lower settlement for claims under other policies. She concedes that she has no
evidence to support this contention, and so she has waived this argument on appeal. See Fed.
R. App. P. 28(a)(9)(A).

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2008, when State Farm tendered payment. James argues State Farm had no
arguable or legitimate basis for the entirety of this thirty month delay.
According to State Farm, it reasonably delayed payment during the entire
thirty-month period because it “was actively investigating the claim and
attempting to resolve the relevant issues,” namely, the cause of James’s injuries.
      We agree that conducting a prompt and adequate investigation provides
a legitimate basis for a payment delay. See Caldwell, 686 So. 2d at 1098.
Therefore, to properly determine whether State Farm reasonably delayed
payment, we need to analyze the record to understand when State Farm was
actively investigating James’s claim and thus had a legitimate basis for its
payment delay. The record shows the following: (1) State Farm was actively
investigating James’s claim for about seventeen months of the thirty-month
period and (2) State Farm had no arguable or legitimate basis for about thirteen
months of the delay.
      1. Legitimate Basis for Delay: February-May 30, 2006 (~4 months)
      State Farm argues it had a legitimate or arguable basis for delay from
February through May 30, 2006 because it was attempting to determine whether
Smith, the accident’s tortfeasor, was insured. We agree that State Farm was
conducting a prompt and adequate investigation during this time period.
      James promptly notified State Farm of the accident in early February, and
State Farm immediately began communicating with James about her collision
and medical payments coverage.          At the same time, State Farm was
investigating whether Smith or the owner of the vehicle he was driving at the
time of the accident had insurance coverage. If they had adequate insurance
coverage, James’s UM coverage would not apply. During this period of time,
State Farm’s claim representative attempted to reach Progressive, Smith’s
former insurance company, multiple times, and left numerous voicemail
messages for a Progressive contact who never returned State Farm’s calls. On

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May 30, 2006, State Farm confirmed that Progressive had denied coverage,
triggering State Farm’s UM coverage for accident-related injuries.
      The record thus shows that State Farm had a legitimate basis for failing
to tender payment from February through May 30, 2006 as it was actively
investigating whether James was covered by her policy’s UM benefits.
      2. Legitimate Basis for Delay: May 31, 2006-July 20, 2006 (~6 weeks)
      State Farm argues its active investigation of James’s claim provides a
legitimate or arguable basis for its delay. We agree with this contention for the
time period lasting from May 31 through July 20, 2006.
      The record shows that State Farm received James’s signed medical
authorization form, authorizing State Farm to obtain James’s medical records,
on February 20, 2006. Thereafter, James continued to experience significant
back pain for which she sought treatment. On May 8, 2006, she began seeing
Dr. Ken Staggs at the Pain Treatment Center.
      On June 5, 2006, State Farm requested James’s medical records and bills
from three medical facilities. James continued to apprise State Farm of her on-
going medical treatment for which State Farm continued to promptly request
medical records and bills. On June 21, 2006, State Farm received medical
records from the Pain Treatment Center. The records stated that James had
“compression fractures at T2, T3, T5 and T11 all ensuing from a motor vehicle
accident presumed February 03, 2006 as there is edema on the MRI indicating
that these are new.”      Soon after, Renee Powell, the State Farm claim
representative recently assigned to James’s file, noted that she had received the
Pain Treatment Center records and reported that they diagnosed James as
having “traumatic multi-thoracic compression fractures w/out retropulsion, T7-8
HNP w/o myelopathy or radiculopathy . . . .” Powell also observed the records
listed past medical and surgical treatment James had received, and she
specifically noted that the list did not include any spinal surgery. On July 18,

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2006, Powell repeated her earlier entry about James’s diagnosis and further
stated that “[i]f records do not show any more evidence of pre-existing issues, it
seems that the medical records are supporting that [James’s] problems are a
result of the [motor vehicle accident].”
      On July 20, 2006, Powell noted in James’s file, “Records from Wayne
General indicate some degenerative changes in thoracic vertebrae with
compression, but apparently the condition had not been causing any symptoms
prior to loss, but I will review material closely as rec’d [sic].”
      By requesting and reviewing James’s medical records related to the
accident, State Farm was engaged in an active investigation of James’s bodily
injury claim during this time period. As an active investigation into an insured’s
claim justifies a delay in payment, see Caldwell, 686 So. 2d at 1098, we agree
with State Farm that there was a legitimate basis for this six-week delay.
      3. No Legitimate Basis for Delay: July 20-October 4, 2006 (~11
weeks)
      State Farm argues its active investigation of James’s claim provides an
arguable or legitimate basis for its payment delay. Because State Farm was not
actively investigating James’s claim during this time period, we hold that James
has met her burden of demonstrating by a preponderance of the evidence that
State Farm did not have an arguable reason for this eleven-week period of delay.
      During this time period, James continued to receive medical treatment for
her injuries, about which she continued to apprise State Farm. On July 25,
2006, James reported to Powell that her doctors attributed her medical problems
to the motor vehicle accident. On July 30, 2006, State Farm received a bill from
Staggs, which indicated that James was being treated for a thoracic compression
fracture.
      Although Powell’s July 20 review of James’s medical records recognized
that James’s symptoms might be due to a pre-existing injury that would not be

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eligible for coverage under James’s UM motor vehicle coverage, State Farm did
not act on this concern until October 5, 2006. On that date, Powell sent James
a letter asking her to call to discuss the claim and, in the subsequent phone call,
she apprised James of her questions about whether the injuries were caused by
a pre-existing injury. The record does not show that Powell received any
additional information bolstering her concern about a potential pre-existing
injury during this time. Between July 20, 2006 and October 5, 2006, Powell
spoke to James at least twice, but Powell admitted in her deposition that she did
not discuss her pre-existing condition concerns “in detail.” Nor does the record
provide any evidence that Powell raised these concerns with James prior to
October 5, 2006.
      Because State Farm was not conducting any investigation during this time
period, we conclude that it was not acting in accordance with its duty under
Mississippi law “to perform a prompt and adequate investigation.” Broussard,
523 F.3d at 627 (citation omitted). State Farm has provided no explanation for
its failure to inquire further into its concerns during this nearly three-month
period. Critically, State Farm does not point to any evidence in the record that
Powell received any additional information during this time before she contacted
James on October 5, 2006 to obtain prior medical records. It thus follows that
Powell could have sought this information in July. State Farm’s inexplicable
delay in seeking these records did not comport with its duty to conduct a prompt
investigation.
      Accordingly, we hold that James has satisfied her burden of demonstrating
that State Farm had no arguable or legitimate reason for this eleven-week delay
between July 20 and October 4, 2006.




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      4. Legitimate Basis for Delay: October 5, 2006-January 16, 2007
(~14 weeks)
      State Farm argues its active investigation of James’s claim provides a
legitimate or arguable basis for its delay. We agree with this contention for the
time period lasting from October 5, 2006 through January 16, 2007.
      During this period of time, Powell acted on her concern that James’s injury
may have pre-dated the accident. On October 5, 2006, Powell sent James a
letter asking her to call to discuss the claim. The letter stated, “If I can obtain
some of your prior records, I may then be in a position to evaluate your
uninsured motorist claim.” On October 9, 2006, James disclosed to Powell that
she had fallen on concrete over twenty years ago and had been treated for lower
back pain at that time, but had not been recently treated for any back problems.
James also provided the names of all of her doctors to Powell.
      On October 10, 2006, Powell sent James an authorization for release of
prior medical records. On October 19, 2006, Powell wrote James a letter,
reminding her to return the medical authorization that would allow the release
of her prior medical records. On October 27, 2006, James left a message for
Powell, stating that she would not sign the medical authorization. The same
day, Powell sent James a letter acknowledging James’s refusal. The letter noted
in reference to some of the medical records State Farm had obtained, “As you can
see, this does not clearly relate your ongoing treatment to an injury sustained
in the accident and I am merely trying to determine if you had to treat for any
of these pre-existing conditions prior to the accident [or] if they became
symptomatic following the loss. I do not know if I will be able to properly
evaluate your claim without that information, but I am waiting on some
information from Dr. Staggs at this time.” On October 30, 2006, James called
Powell to let her know that she would sign the medical authorization. James



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then executed the prior records release on November 1, 2006, and State Farm
received it on November 6, 2006.
      On October 27, 2006, State Farm sent a letter to Staggs, requesting all of
James’s medical records. The letter elaborated, “I am trying to determine if [the
thoracic compression fracture for which Staggs was treating James] was caused
by the accident of February 3, 2006, since the intial radiology report indicated
that this injury was probably old. If your notes do not comment on what injuries
were caused in this accident or how the accident may have affected any pre-
existing injuries, please advise via letter.” State Farm sent Staggs a second
request for James’s medical records on November 17, 2006. On January 16,
2007, Total Pain Care responded to State Farm’s medical records request, but
advised that records prior to August 14, 2006 needed to be requested from a
different facility. Powell did not contact Staggs again.
      Seeking further clarification from the insured’s treating physician as to
the cause of the insured’s injury is a legitimate basis for a delay of payment.
Therefore, we conclude that State Farm’s actions in attempting to resolve its
questions via James’s treating physician met State Farm’s low burden to provide
a legitimate justification for its delay during this time period.
      5. No Legitimate Basis for Delay: January 17, 2007-July 11, 2007
(~25 weeks)
      State Farm asserts its active investigation of James’s claim provides a
legitimate or arguable basis for its delay. Because State Farm was not engaged
in an active investigation between January 17, 2007 and July 12, 2007, we reject
this argument.       State Farm also presses that James’s lawyer, Joe Clay
Hamilton, failed to provide medical records, the delay of which should not be
attributed to State Farm. Because the record contains no evidence that State
Farm informed James’s lawyer that it was concerned about the etiology of
James’s injuries, we decline to attribute the delay to James. State Farm also

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                                       No. 11-60458

argues that the delay is attributable to Staggs, whose medical records allegedly
caused further confusion as to the cause of James’s injuries. We similarly reject
this argument because Staggs sufficiently responded to State Farm’s inquiry,
and State Farm did not follow up with Staggs to seek further clarification.
       On December 11, 2006, Hamilton notified State Farm that he was
representing James and advised that he would forward James’s medical bills
and records when she had completed treatment.                     The same day, Powell
acknowledged Hamilton’s representation and added, “Please forward all related
medical and wage information you have concerning your client’s injuries.” Over
the next several months, Powell sent Hamilton several letters, requesting
“material” for James. Critically, it was not until July 12, 2007 that Powell
notified Hamilton that she required prior medical records to fully assess James’s
claim. State Farm argues on appeal that Staggs’ January 16, 2007 medical
records further confused its claim representatives, but the record does not
disclose that Powell ever mentioned that confusion to Hamilton or the need for
prior medical records until her July 12, 2007 letter.
       While it is true that Powell sent several letters to Hamilton during this
time period to which he did not respond, Powell’s letters do not indicate any
active investigation into State Farm’s concern about the etiology of James’s
injury. The record does not demonstrate that Powell ever communicated to
Hamilton during this time period that she was concerned about the possible pre-
existing nature of James’s injuries, nor does the record show that Powell
indicated to Hamilton that he should seek to gather prior medical records, not
just evidence of current treatment.8 Specifically, in her letter, Powell explained
that “the initial [radiologist] reports indicated the compression fractures that


       8
        Indeed, it was not until September 25, 2007 that Powell informed Hamilton that she
required one year of prior records from all of James’s physicians, whom she specifically named.
James had disclosed the names of her physicians to Powell in October 2006.

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Ms. James has are probably old. . . . We will likely need some of her prior
records to confirm her condition prior to loss as opposed to following the loss so
you may want to request those as well.” There is no evidence in the record that
Powell obtained these records after she became aware of Hamilton’s
representation. To the contrary, there is ample evidence that, prior to January
17, 2006, she had these records and had noted the possibility that James’s
injuries pre-dated the accident. Therefore, the record demonstrates no reason
why Powell waited until July 2007 to inform Hamilton of her concerns and her
need for prior medical records.
      Under Mississippi law, a delay is not attributable to an insurer where the
insured or his counsel refuses to cooperate or provide the necessary information.
See Pilate, 865 So. 2d at 397. If an insured’s lawyer advises the insurer to stop
its investigation pending his sending medical records, the resulting delay until
the lawyer sends the records is attributable to the insured. However, as the
burden is on the insurer to gather all necessary medical records, if the insurer
fails to inform the lawyer of critical information necessary to further its
investigation, the delay in obtaining that information is not attributable to the
lawyer but to the insurer. As State Farm did not inform Hamilton that it needed
James’s prior medical records to resolve questions about the causation of her
injuries, State Farm is responsible for the resulting delay in investigating
James’s claim.
      State Farm also argues that its delay should be attributed to Staggs
because he did not provide clarification as to whether James’s injuries were a
result of the motor vehicle accident. We disagree. We do not express an opinion
as to whether Staggs’s medical records actually were confusing. Instead, we
observe that after Powell received Staggs’s medical records in January 2007, she
never contacted Staggs to seek further clarification nor did she notify Hamilton
of her confusion. Moreover, the delay is not attributable to Staggs because, as

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                                          No. 11-60458

James argues, he reasonably could have believed that he had complied with
Powell’s request to provide further information. If Staggs believed his records
were clear, he needed to provide no further information. That they were unclear
to Powell, who did not seek further clarification, is not Staggs’s fault and thus
is not chargeable to James. See Stewart, 846 So. 2d at 204 (citation omitted).
       Accordingly, we conclude that James has met her burden of proving that
State Farm had no legitimate or arguable basis for delaying its payment during
this time period.
       6. Legitimate Basis for Delay: July 12, 2007-March 28, 2008 (~8
months)
       We agree that State Farm had a legitimate reason for the eight-month
period of delay between July 12, 2007 and March 28, 2008 because State Farm
was actively attempting to resolve causation issues related to James’s injuries.
       As discussed above, on July 12, 2007, Powell informed Hamilton that the
medical records presented conflicting information about the age of James’s
injuries and advised him that “[w]e will likely need some of [James’s] prior
records to confirm her condition prior to the loss as opposed to following the loss
so you may want to request those as well.” Powell also talked to Hamilton
multiple times in August, and he assured her that he would obtain clarification
from Staggs. Once Powell received the medical records from Hamilton, Powell
conducted a prompt review and then sought a second opinion from another State
Farm employee, who also pointed out the conflicting information about the
etiology of the injuries.9          On September 25, 2007, Powell requested that


       9
        James contends that this review was improper because the Injury Claim Trainer who
evaluated the records was not a medical doctor. However, James has provided no authority
to support her claim, so she has waived this argument. See Fed R. App. P. 28(a)(9)(A) (“The
appellant’s brief must contain . . . citations to the authorities . . . .”); see also Procter & Gamble
Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (collecting citations) (“Failure
adequately to brief an issue on appeal constitutes waiver of that argument.”).

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Hamilton provide one year of prior records from all of James’s doctors. On
March 28, 2008, State Farm received, from Hamilton, Staggs’s clarification
about his medical records.
      Therefore, based on the evidence in the record, we conclude that State
Farm was engaged in an active investigation of the cause of James’s medical
condition. As this justifies a payment delay, we conclude that State Farm had
a legitimate reason for its delay during this time period. See Caldwell, 686 So.
2d at 1098.
      7. No Legitimate Basis for Delay: March 29, 2008-July 29, 2008 (~4
months)
      State Farm argues that it paid James’s UM claims “in an attempt to
resolve and streamline issues of dispute in this case.” The record contains little
evidence of State Farm’s investigative actions during this time period because
State Farm’s claims file terminates on September 27, 2007.
      The evidence in the record shows that James filed suit against State Farm
on October 23, 2007.         On March 28, 2008, State Farm received Staggs’s
clarification about his medical records, although State Farm claims this
clarification only served to create further confusion. There is no evidence in the
record that State Farm received any additional information about James’s
medical claims between March 28, 2008 and July 29, 2008, when State Farm
paid James’s claims in full.10
      “[A]n insured’s filing of a suit on the claim does not suspend the insurer’s
obligation to promptly pay claims that are admittedly owed.” Jeffrey Jackson,
Mississippi Insurance Law & Practice § 10.2 (2012). There is no evidence in the
record that State Farm received any additional information from James after
March 28, 2008, yet State Farm waited an additional four months before it


      10
           For example, Staggs was not deposed until January 2009.

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tendered payment. State Farm has not advanced an explanation for this delay
nor presented any evidence of additional investigative actions it undertook
during this time period, even though it has had ample opportunity to do so over
the course of this lengthy litigation. Therefore, we hold that James has met her
burden of proving that State Farm had no legitimate or arguable basis for
delaying its payment during this time period.
D.     Conclusion
       In summary, this case falls far short of any standard of prompt handling
by either side. Compounding this delay is that State Farm’s summary judgment
motion lay dormant in the district court for over two years. It is inexplicable
that an accident that occurred in February 2006 has not moved past the
preliminary stages of litigation by the Spring of 2013. All parties will be best
served by the expeditious resolution of this case.
       After our careful review of the lengthy summary judgment record, we hold
as a matter of law that State Farm had no arguable or legitimate basis for about
fifty-three weeks of its delay, from July 20, 2006 through October 4, 2006, from
January 17, 2007 through July 11, 2007, and from March 29, 2008 through July
29, 2008. Because James established, as a matter of law, that State Farm had
no arguable or legitimate basis for these periods of the delay, she is entitled to
present her compensatory damages claim to a finder of fact upon remand.11 We
make no determination as to whether James is entitled to present the issue of
punitive damages to a jury.

       11
         The dissent asserts that the record shows “at most . . . mere negligence on the part
of State Farm” and that negligence alone is insufficient to support a trial on compensatory
damages. Post, at 6. Neither party asserted that State Farm’s delay was due to negligence.
Therefore, we have not considered this issue, nor do we express an opinion on it. Our opinion
holds that State Farm has no arguable or legitimate basis for some of its payment delay.
When James presents her claim to a fact finder, our opinion does not precludes State Farm
from arguing that its delay was attributable to mere negligence. It is for the fact finder to
determine whether James is entitled to compensatory damages—and if so, in what
amount—given State Farm’s delays.

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                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment as to any breach of contract claim. We hold as a matter of
law that State Farm had no arguable or legitimate basis for its delay between
July 20, 2006 through October 4, 2006, from January 17, 2007 through July 11,
2007, and from March 29, 2008 through July 29, 2008. Therefore, we REVERSE
the district court’s grant of summary judgment as to James’s bad faith claim and
REMAND for further proceedings consistent with this opinion. Given the length
of time that has elapsed since James filed suit, we ORDER the district court to
proceed expeditiously.




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                                  No. 11-60458

EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting in part:
      I agree with the majority that we should affirm the district court to the
extent that it granted summary judgment on James’ breach of contract claim.
I dissent in the reversal of the grant of summary judgment on James’ claim for
compensatory and punitive damages for the reasons specifically stated by the
district court in its opinion, attached hereto as an Appendix. I disagree with the
majority’s conclusion that State Farm had no arguable or legitimate basis for
delaying payment to James on her uninsured motorist claim from July 20, 2006
through October 4, 2006, from January 17, 2007 through July 11, 2007, and from
March 29, 2008 through July 29, 2008.
      The majority holds State Farm had no legitimate basis for delay from July
20, 2006 until October 4, 2006 because, despite State Farm’s determination that
James’ symptoms might be due to pre-existing injuries, State Farm did not “act
on this concern” until October 5, 2006, when Powell wrote to James asking her
to call to discuss her claim. Ante, at 13. Despite the fact that during this period
State Farm’s activity log indicates Powell made multiple attempts to reach
James, and Powell and James had at least three conversations, the majority
holds that State Farm was not actively investigating James’ claim because
Powell stated in her deposition that she did not discuss James’ pre-existing
condition concerns “in detail” during her conversations with James during this
period, Ante, at 13. On July 18, 2006, just two days prior to the start of this
period, Powell sent medical record requests to six different facilities. When
Powell noted on July 20, 2006, that the medical records from Wayne General
indicated degenerative changes, State Farm could not yet make a conclusive
determination with respect to James’ symptoms because medical record requests
made to five other facilities were still outstanding. During the following six
weeks Powell continued to follow up on requests for medical records and pay

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                                  No. 11-60458

invoices for records. Therefore, in light of the facts that the etiology of James’
injury was in doubt, State Farm had multiple outstanding medical record
requests, and Powell made multiple attempts to reach James and had at least
three conversations with James during the six-week period, I cannot agree that
State Farm did not have a legitimate basis for delaying payment on James’ claim
during this period.
      The majority holds that State Farm had no legitimate basis for delay from
January 17, 2007 through July 11, 2007 because even though State Farm did not
yet have the requisite medical records to evaluate James’ claim, during this
period State Farm did not specifically communicate “the need for prior medical
records” to James or her attorney, Hamilton. Ante, at 15–18.         The majority
holds, “[b]ecause the record contains no evidence that State Farm informed
James’ lawyer that it was concerned about the etiology of James’ injuries, we
decline to attribute the delay to James.” Ante, at 15. State Farm did, however,
request James’ medical records from (1) James on October 5, 2006 and October
27, 2006 (2) James’ doctor, Dr. Staggs, on October 27, 2006 and November 17,
2006 and (3) Hamilton on December 11, 2006, May 3, 2007, and June 13, 2007.
Letters from Powell to James and Dr. Staggs clearly state the need for prior
medical records in order to fully assess James’ claim and determine the etiology
of James’ injury. An October 5, 2006 letter to James stated: “If I can obtain some
of your prior records, I may then be in a position to evaluate your uninsured
motorist claim.” The follow-up letter on October 27, 2006 was even more
specific: “I am merely trying to determine if you had to treat for any of these pre-
existing conditions prior to the accident or if they became symptomatic following
the loss. I do not know if I will be able to properly evaluate your claim without
that information, but I am waiting on some information from Dr. Staggs at this
time.” A letter to Dr. Staggs, sent first on October 27, 2006 and again on

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November 17, 2006 explained: “I am trying to determine if this was caused by
the accident of February 3, 2006, since the initial radiology report indicated that
this injury was probably old. If your notes do not comment on what injuries
were caused in this accident or how the accident may have affected any pre-
existing injuries, please advise via letter.            In a letter from Hamilton on
December 7, 2006, Hamilton stated he would “forward to you [State Farm] copies
of all medical bills and medical records when my clients have completed
treatment.      Powell acknowledged receipt of Hamilton’s letter.                   And, in
accordance with the practices Powell and Hamilton had established over their
30 years of prior dealings, as well as Hamilton’s December 7, 2006 letter
indicating he would send the records, Powell waited for Hamilton to send a
medical records package. In State Farm’s activity log, Powell noted again on
January 22, 2007 that Hamilton would send all material when he has it. Powell
followed up with Hamilton on May 3, 2007 and June 13, 2007, reminding him to
forward James’ medical records when they became available, but Hamilton did
not respond. The conflict between, on the one hand, Dr. Staggs’ report indicating
the injuries were new, and on the other hand, notes from an office visit
indicating the fractures were old, radiology reports stating the injuries were
likely chronic, and James’ own report of a prior back injury, was not resolved, if
at all, until March 28, 2008 when Dr. Staggs clarified by fax that his opinion was
that James’ injuries were new.1 In Dr. Staggs’ deposition, he acknowledged the
lack of clarity, confusing nature, and misleading language in the reports
multiple times. In light of the conflicting reports and State Farm’s efforts to

       1
         Dr. Staggs’ clarifying fax consisted only of the words, “According to my 7/6/06 notes
those fractures were recent at that time.”

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obtain the required medical records from James, Dr. Staggs, and Hamilton, and
Powell’s reasonable belief that Hamilton would send the records when he had
them, I cannot agree that State Farm had no arguable basis for delaying
payment on James’ claim during this period.
       The majority holds State Farm lacked an arguable basis for delaying
payment on James’ claim from March 29, 2008, the day after State Farm
received the clarifying fax from Dr. Staggs, until July 29, 2008, when State Farm
tendered payment on James’ uninsured motorist claim. Ante, at 19–20. While
Dr. Staggs’ fax clarified his opinion on James’ injuries, the radiology reports
conflicted with Dr. Staggs’ fax and State Farm never received some of James’
prior medical information, initially requested in October 2006.2 In his deposition
Dr. Staggs stated (1) the radiology reports were inconsistent with his finding
that the injuries were new, (2) the CT showed evidence of a preexisting injury,
and (3) there were inconsistencies in James’ medical records as to the origin of
her injury. Even assuming Dr. Staggs’ fax provided sufficient information to
clarify the inconsistences, upon receiving Dr. Staggs’ fax, State Farm needed at
least some reasonable amount of time to review James’ claim in light of the new
information. The bad faith clock does not begin to tick “as soon as there is any
information available that could subsequently be considered as sufficient
evidence to support the payment of [the claim].” Pilate v. Am. Federated Ins.
Co., 865 So. 2d 387, 399 (Miss. Ct. App. 2004) (holding insurer did not act in bad
faith in delaying payment on claim even five months after receiving sufficient


       2
        Powell logged a package of medical records as received from Hamilton on August 31,
2007. Powell wrote to Hamilton on September 25, 2007, requesting prior medical records from
Dr. Byrd, Dr. Green, and Dr. Daggett, but Hamilton never responded to this request.

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                                 No. 11-60458

medical records to make determination regarding disability); Caldwell v. Alfa
Ins. Co., 686 So. 2d 1092, 1098 (Miss. 1996) (affirming grant of summary
judgment to insurer on bad faith claim even though insurer delayed payment for
six weeks after it completed investigation). Therefore, State Farm did not lack
an arguable basis for delaying payment on James’ claim from March 29, 2008
through July 29, 2008.
      Moreover, the majority cites no authority in support of its methodology of
dividing the investigation into different intervals and selecting intervals of
apparent inaction for which the plaintiff is entitled to present a claim for
compensatory damages to a jury. The parties have not cited, nor have we found,
any Mississippi Supreme Court case suggesting that in bad faith delayed
payment claims courts should parse out intervals of apparent inaction when the
record as a whole indicates repeated attempts to obtain the records necessary to
determine liability.
      The district court’s more holistic approach of evaluating whether State
Farm’s actions throughout the course of its investigation rose to the level of an
independent tort is more in line with precedent. To prove bad faith, whether in
a denial of payment or a delay of payment case, the plaintiff must show the
insurer had no arguable basis for denying or delaying payment on the claim. Id.
at 871. “[T]he plaintiff bears a heavy burden in demonstrating to the trial court
that there was no reasonably arguable basis for denying the claim.” Windmon
v. Marshall, 926 So. 2d 867, 872 (Miss. 2006). “An arguable reason has been
defined by this Court as nothing more than an expression indicating the act or
acts of the alleged tortfeasor do not rise to [the] heightened level of an



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                                      No. 11-60458

independent tort.”3 Id. (quoting Universal Life Ins. Co. v. Veasley, 610 So.2d 290,
293 (Miss. 1992)). Where the record at most demonstrates mere negligence, an
insurer’s actions do not rise to the level of an independent tort. Id. Assuming
for the sake of argument that the majority is correct that State Farm’s
investigation lacked diligence during certain intervals, the majority at most
demonstrates mere negligence on the part of State Farm. See Andrew Jackson
Life Ins. Co. v. Williams, 566 So. 2d 1172, 1187 (Miss. 1990) (“[A]s a matter of
law, ordinary torts, the product of forgetfulness, oversight, or the like, do not rise
to the heightened level of an independent tort . . . .”) (internal quotation marks
omitted). Concluding that during particular intervals State Farm’s investigation
was inactive, the majority holds James is entitled to present her compensatory
damages claim to a finder of fact upon remand. Ante, at 20. In Windmon v.
Marshall, however, the Mississippi Supreme Court held that where the insurer’s
conduct in delaying payment on a claim did not rise to the level of an
independent tort, a trial on compensatory damages was improper. 926 So. 2d at
875; see Fulton v. Mississippi Farm Bureau Cas. Ins. Co., 105 So. 3d 284, 288
(Miss. 2012) (“[T]his Court has noted that mere negligence, without bad faith,
‘is not such an independent tort that would support extracontractual damages.’”




       3
          The majority separates the inquiry of whether State Farm had an arguable or
legitimate basis for its payment delay from whether State Farm’s actions amounted to mere
negligence. Ante, at 20 n.11. Windmon squarely contradicts this approach, as the Mississippi
Supreme Court held the two inquiries are inseparable. Windmon, 926 So. 2d at 872. The
majority also states “that neither party asserted that State Farm’s delay was due to
negligence.” Ante, at 20 n.11. In State Farm’s brief, however, while not admitting to
negligence, State Farm alleges that in any event, the delay was not so unreasonable as to
constitute an independent tort. See Brief of Appellee at 29, 52, 54–55.

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(quoting Veasley, 610 So.2d at 295)).4 As James was in large part responsible for
the delay, the etiology of James’ injury was legitimately in doubt, and State
Farm made numerous unsuccessful attempts to obtain the required records from
James, her doctors, and her attorney, the facts in this case do not rise to the
level of an independent tort. Accordingly, I agree with the district court that
summary judgment was appropriate on James’ compensatory and punitive
damages claims.5
       Respectfully, I dissent.




       4
         The Mississippi Supreme Court’s holding in Fulton v. Mississippi Farm Bureau
Casualty Insurance Company, that by awarding the plaintiff compensatory damages, the jury
did not necessarily find the insurer liable for an “independent and intentional tort,” is not
inapposite. 105 So. 3d at 288. The court repeatedly stressed that the propriety of the jury’s
award of compensatory damages was not at issue. Id. at 289. Thus, the court did not hold
that a jury may award compensatory damages absent conduct rising to the level of an
independent tort, but rather held where a jury has awarded compensatory damages and the
propriety of those damages is not at issue on appeal, courts cannot infer that the jury
necessarily found an independent tort. Id. at 290 n.25 (“[W]ithout a finding, the court cannot
assume the jury found conduct rising to the level of an intentional tort, amounting to gross
negligence or recklessness, thus warranting extracontractual damages.” (citing Stewart v. Gulf
Guar. Life Ins. Co., 846 So.2d 192, 201 (Miss. 2002))).
       5
          Given my agreement with the district court that State Farm had an arguable basis
for delaying payment on James’ claim, I need not address the issue of punitive damages. Even
if, however, State Farm had no arguable basis for delay, punitive damages would be improper.
“In order to recover punitive damages from the insurer for bad faith, the insured must
demonstrate that the insurer’s breach of the insurance contract ‘results from an intentional
wrong, insult, or abuse as well as from such gross negligence as constitutes an intentional
tort.’” Essinger v. Liberty Mut. Fire Ins. Co., 529 F.3d 264, 271 (5th Cir. 2008) (quoting
Caldwell, 686 So. 2d at 1095). I agree with the district court that the facts here do not present
a genuine issue of material fact as to whether that standard was met.

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                           No. 11-60458

                          Appendix
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