                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                 December 1, 2004
                      _____________________
                                                         Charles R. Fulbruge III
                              No. 04-60336                       Clerk
                            Summary Calendar
                         _____________________

              WAYNE E. MONAGHAN; JULIA E. MONAGHAN,

                     Plaintiffs - Appellants,

                                versus

             TERRY ADKINS; AMERICAN GENERAL LIFE AND
                    ACCIDENT INSURANCE COMPANY,

                        Defendants - Appellees.

_________________________________________________________________

           Appeal from the United States District Court
             for the Northern District of Mississippi
              District Court Cause No. 02-CV-452-JAD
_________________________________________________________________

Before JONES, BARKSDALE and PRADO, Circuit Judges.1

PRADO, Circuit Judge.

     This appeal arises from a dispute between the appellants,

Wayne E. Monaghan (Monaghan) and Julia E. Monaghan, and the

appellee, American General Life and Accident Insurance Company

(American General), regarding the cancellation of a life

insurance policy issued to Monaghan by American General.2      After

     1
      Pursuant to 5TH CIRCUIT RULE 47.5, this 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that this opinion should not be published and is not precedent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.
     2
      For simplicity, this opinion uses “Monaghan” to refer to
the complaints of Wayne and Julia Monaghan. Wayne was the
policyholder under the policy at issue and Julia was the

                                  1
discovering that his policy had been canceled, Monaghan filed his

original complaint in Mississippi state court, alleging that

American General failed to notify him about the impending

cancellation of the insurance policy for want of payment.

American General removed the case to the United States District

Court for the Northern District of Mississippi on the basis of

diversity of citizenship jurisdiction.   With the consent of the

parties, the matter was referred to a United States Magistrate

Judge for disposition.

     Following discovery, American General moved for summary

judgment.   American General argued that Monaghan’s claims arising

from the alleged failure to provide notice should be dismissed

because Monaghan could not rebut the presumption of delivery

established under Mississippi state law.      The magistrate judge

granted the motion and dismissed Monaghan’s claims.      Monaghan

challenges that action in this appeal.

                         Standard of Review

     This court reviews the magistrate judge’s grant of summary

judgment de novo, applying the same standards as the magistrate

judge.3   Summary judgment is proper when there is no genuine issue

as to any material fact and the movant is entitled to judgment as




beneficiary.
     3
      See Harken Exploration Co. v. Sphere Drake Ins. PLC, 261
F.3d 466, 470-71 (5th Cir. 2001).

                                 2
a matter of law.4   In considering summary judgment, the court must

view the evidence and all reasonable inferences drawn therefrom

in the light most favorable to the non-movant.5    To survive a

motion for summary judgment, the nonmoving party must go beyond

the pleadings and designate specific facts showing a genuine

issue for trial by way of personal affidavits, or by the

“depositions, answers to interrogatories, and admissions on

file.”6

                    Whether Dismissal Was Proper

     The magistrate judge dismissed Monaghan’s claims, in part,

because Monaghan failed to raise a genuine issue of material fact

about whether American General sent him notice that his policy

was due to lapse.   The magistrate judge reasoned that although it

appeared that American General sent the notice to an address that

was no longer in use, Monaghan never informed American General

that his address had changed.

     On appeal, Monaghan maintains that the magistrate judge

improperly presumed that Monaghan received American General’s

notice.   Monaghan complains that issues of material fact exist

about whether he received the notice, about the likelihood of



     4
      See id. at 471.
     5
      See id.
     6
      Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting
FED. R. CIV. P. 56).

                                 3
actual delivery of a notice mailed to his previous address, and

about when his address actually changed.

     Under Mississippi law,7 an insurer is not required to prove

that its insured received a lapse notice to prevail in a lawsuit

about policy cancellation.8       Rather than requiring an insurer to

prove receipt of notice, Mississippi law establishes that where

notice is sent to the insured via mail, “[t]here is a presumption

that mail deposited, postage prepaid and properly addressed is

timely delivered to the person addressed.”9       Proof of mailing

operates to establish a rebuttable presumption that notice

reached its intended destination (that is, the insured’s last

known address).10      An insured who maintains he never received such

notice may rebut the presumption by presenting “countervailing

evidence of sufficient weight to rebut the presumption that it

was received.”11       “But mere denial of receipt is insufficient to

create a triable issue of fact.”12

     To prove that it notified Monaghan that his policy was due

     7
      The parties agree that Mississippi law applies to this
diversity action.
     8
      See Carter v. Allstate Indem. Co., 592 So. 2d 66, 70 (Miss.
1991).
     9
      Thames v. Smith Ins. Agency, Inc., 710 So. 2d 1213, 1216
(Miss. 1998).
     10
          See Carter, 592 So. 2d at 75.
     11
          Id. at 75.
     12
          Id.

                                      4
to lapse, American General presented an affidavit by employee

Karen Hite.   In the affidavit, Hite attested that American

General’s records indicate that a lapse notice was sent to

Monaghan by United States mail on January 17, 2001.   Although the

summary judgment evidence indicates that Monaghan’s address

changed at some point after the policy was issued, Hite’s

affidavit makes clear that American General acted diligently in

seeking to ascertain Monaghan’s address.   In her affidavit, Hite

explained that American General confirms the addresses of its

policyholders by participating in the National Change of Address

program sponsored by the United States Postal Service.   Hite

stated that, as part of that program, American General provides

the Postal Service with a file listing the last known mailing

addresses for American General’s policyholders, and that the

Postal Service then provides American General with address change

information for any policyholder whose address changed since the

last regularly scheduled file review.   Hite further attested that

the Postal Service notified American General that Monaghan’s

address changed on January 30, 2000 and that American General was

not notified of any further change of address.   This evidence

shows that American General attempted to ascertain Monaghan’s

proper mailing address and thus took “whatever steps are

reasonably necessary to ensure that a cancellation notice




                                 5
actually reaches the insured’s last known address.”13    As a

result, American General established its entitlement to the

presumption of delivery arising under Mississippi law.

     With the presumption of notice established—“that mail

deposited, postage prepaid and properly addressed is timely

delivered”14—the burden shifted to Monaghan to rebut the

presumption with “countervailing evidence of sufficient weight.”15

Monaghan, however, failed to present evidence to rebut the

presumption.     Instead of presenting evidence that the mailing

address American General used was incorrect, Monaghan relied upon

the affidavit of the Postmaster of Tupelo, Mississippi, which

indicates only that local address changes took place between 1995

and 2001.     This affidavit, however, does not constitute evidence

that American General did not properly mail the lapse notice to

Monaghan.     Ultimately, Monaghan did little more than deny receipt

of the notice—an assertion which is “insufficient to create a

triable issue of fact.”16    Despite his arguments about the

existence of fact questions, Monaghan did not present evidence to

rebut the presumption.




     13
          Id. at 75.
     14
          Thames, 710 So.2d at 1216.
     15
          Carter, 592 So.2d at 75.
     16
          Id. at 75.

                                     6
                            Conclusion

     Because Monaghan failed to introduce evidence sufficient to

rebut the presumption of delivery of notice arising under

Mississippi law, he failed to raise a genuine issue of material

fact about whether American General sent him notice that his

policy was due to lapse.   Accordingly, the magistrate judge did

not err by dismissing Monaghan’s claims.   Consequently, the court

AFFIRMS the judgment of the magistrate judge.   Having reached

this determination, the court need not reach Monaghan’s other

argument.

AFFIRMED.




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