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

                                                                            FILED
                                                                         January 26, 2009

                                     No. 08-60379                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


BETTY ANN CASEY

                                                  Plaintiff - Appellant
v.

LIBERTY MUTUAL INSURANCE COMPANY; JOHN DOES 1-3

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                 for the Southern District of Mississippi, Jackson
                              USDC No. 3:05-CV-98


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Betty Ann Casey appeals the district court’s grant of summary judgment
in favor of Liberty Mutual Insurance Company, dismissing her claim for the
alleged bad faith delay in paying her workers’ compensation death benefits.
Mrs. Casey’s husband, Samuel Casey, died in an auto accident that occurred
during the scope of his employment. Liberty Mutual paid no benefits to Mrs.
Casey while it waited for the results of Mr. Casey’s toxicology report and for an


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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order from the Mississippi Workers’ Compensation Commission permitting a
lump-sum payment of benefits; however, Liberty Mutual immediately paid
benefits to Mrs. Casey when it was informed of her financial hardship. Because
Liberty Mutual never, in fact, denied Mrs. Casey’s claim and because the delay
in payment was due to an investigation that Liberty Mutual had a duty to carry
out, we affirm the district court’s grant of summary judgment.
                     I. Factual And Procedural Background
       The facts in this case are undisputed. On June 7, 2004, Mr. Casey was
driving a company truck on a two-lane state highway when he swerved into
oncoming traffic and collided head-on with a semi-truck. He died as a result.1
The next day, his employer, Rapad Drilling and Well Service (“Rapad”), notified
its workers’ compensation carrier, Liberty Mutual Insurance Company (“Liberty
Mutual”), of Mr. Casey’s death. Liberty Mutual’s claims adjuster, Wesley
Jackson, initiated an investigation to determine whether Mrs. Casey’s resulting
workers’ compensation death benefits claim was compensable; he was joined by
field investigator Todd Lafferty. Lafferty informed Jackson that the toxicology
report, which would reveal Mr. Casey’s blood–alcohol level at the time of the
accident, would be unobtainable until the Mississippi Highway Patrol finished
its investigation.
       Liberty Mutual subsequently attempted to obtain the results of the
toxicology report. On June 23, 2004, Jackson called Officer Ronnie Rayburn of
the Mississippi Highway Patrol to inquire about the toxicology report, and
Officer Rayburn informed Jackson that the state crime lab would not have the



       1
       The parties do not dispute the fact that Mr. Casey was acting within the scope of his
employment while driving the truck.

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report ready for another month. On August 2, 2004, Jackson again called Officer
Rayburn and left a message for him. Receiving no response to his message,
Jackson called once more on August 9, 2004, only to leave a second message for
Officer Rayburn.
      Meanwhile, Mrs. Casey obtained the legal services of Len Melvin, who
contacted Jackson on August 25, 2004, and informed Jackson that Mrs. Casey
would be seeking a lump-sum payment of her benefits. Jackson informed Melvin
that Liberty Mutual was still waiting on the results of Mr. Casey’s toxicology
report.
      On September 16, 2004, Jackson noted that the highway patrol had yet to
call him back, so, on September 24, 2004, Lafferty traveled to the highway
patrol’s office and left his card for Officer Rayburn asking the officer to call
Lafferty back. Officer Rayburn called Lafferty on October 6 and confirmed that
Mr. Casey’s toxicology report was negative for any trace of alcohol.
      That same day, Melvin filed a petition to controvert the workers’
compensation claim on behalf of Mrs. Casey with the Mississippi Workers’
Compensation Commission (the “MWCC”). When Jackson called Melvin on
October 7, 2004, to inform him that Liberty Mutual obtained the toxicology
report and that Mrs. Casey’s claim was compensable, Melvin told Jackson that
he had filed the petition to controvert. Liberty Mutual received the petition on
October 13, 2004, and forwarded the document to its counsel. In answering the
petition to controvert, Liberty Mutual admitted compensability.
      On December 8, 2004, Liberty Mutual received a letter from Melvin
stating that Mrs. Casey would be seeking a lump-sum payment of her benefits.
Liberty Mutual informed Rapad a week later that it was waiting for the MWCC
to issue an order approving the lump-sum payment to Mrs. Casey.

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      Before that order, however, Mrs. Casey filed the present law suit on
January 14, 2005. On February 4, 2005, Melvin sent a letter to Liberty Mutual’s
counsel stating that Mrs. Casey was “experiencing extreme financial difficulties”
and requesting immediate compensation. Six days later, Liberty Mutual paid
$11,938.85 to Mrs. Casey, representing the bi-weekly benefits that had accrued
up to that date. Finally, on April 5, 2005, the MWCC issued its final order
authorizing the payment of lump-sum benefits to Mrs. Casey, and Liberty
Mutual paid those benefits to Mrs. Casey on April 12, 2005.
      After reviewing these facts, the district court concluded that Liberty
Mutual’s conduct did not rise to the level of gross negligence necessary to
support Mrs. Casey’s claim of bad faith. The court reasoned that “[t]he alleged
misconduct occurred while the claim was being investigated and litigated
pursuant to the Workers’ Compensation Act and the rules of the [MWCC]” and
also that “Liberty [Mutual] accepted Mrs. Casey’s claim as compensable and paid
the benefits due.” Thus, it granted Liberty Mutual’s motion for summary
judgment and dismissed Mrs. Casey’s claim. Mrs. Casey filed timely notice of
appeal. In it, she argues that Liberty Mutual delayed payment of her benefits
in bad faith by failing to begin bi-weekly payments within fourteen days of being
notified of Mr. Casey’s death and by conducting an unreasonably long
investigation into the compensability of her claim.
                          II. Standard Of Review
      We review a grant of summary judgment de novo, viewing all evidence in
the light most favorable to the nonmovant and drawing all reasonable inferences
in the nonmovant’s favor. See Essinger v. Liberty Mut. Fire Ins. Co., 529 F.3d
264, 269 (5th Cir. 2008). Summary judgment is proper when the evidence


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reflects “no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(c).
                                     III. Discussion
       Under Mississippi law, workers’ compensation is the exclusive remedy for
an injury occurring in the course of employment. MISS. CODE ANN. § 71-3-9. But
this provision does not bar the independent, intentional tort for bad faith refusal
to honor an insurance contract obligation. Rogers v. Hartford Accident & Indem.
Co., 133 F.3d 309, 312 (5th Cir. 1998). To prove this bad faith claim, a plaintiff
must show: “(1) a contract of workers’ compensation insurance existed between
the defendant and the plaintiff’s employer; (2) the carrier denied the plaintiff’s
compensable workers’ compensation claim without a legitimate or arguable
reason; and (3) the denial of benefits constitutes a willful and intentional or
malicious wrong.” Id.2 There is no question that a valid contract of workers’
compensation existed here; the issue turns on whether Liberty Mutual had a
legitimate or arguable reason for delaying payment of Mrs. Casey’s benefits and
whether such delay was a willful or malicious wrong.
       As Mrs. Casey argues, Mississippi workers’ compensation carriers are
required to pay the first installment of compensation within fourteen days of
receiving notice of the claim. See MISS. CODE ANN. § 71-3-37(2) (“The first
installment of compensation shall become due on the fourteenth day (14th) after
the employer has notice . . . of injury or death . . . .”). But carriers also have a
duty “to fully investigate all relevant facts” surrounding a claim, Caldwell v. Alfa
Ins. Co., 686 So. 2d 1092, 1099 (Miss. 1996), and some delay in payment is

       2
         The third requirement has similarly been described as showing that a carrier “acted
with willful, malicious, gross negligence, or reckless disregard for the rights of the claimant.”
Pilate v. Am. Federated Ins. Co., 865 So. 2d 387, 391 (Miss. Ct. App. 2004).

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permitted while the carrier satisfies this duty despite the fourteen-day
requirement, see, e.g., id. at 1098 (holding that a 103-day delay in payment did
not amount to bad faith because the carrier “gave a reasonable explanation for
the delay in payment: [it was] continuing [its] investigation”); Pilate, 865 So. 2d
at 400–01 (permitting a year-long delay in paying workers’ compensation
benefits and stating that “[the carrier]’s explanation of its investigation was
sufficient to determine that neither [its] nor [its adjuster]’s conduct rose to the
level of gross negligence or an independent tort”).         This investigation is
particularly important in a case such as this, as intoxication of the employee
may completely bar the payment of workers’ compensation. See MISS. CODE
ANN. § 71-3-7 (“No compensation shall be payable if the intoxication of the
employee was the proximate cause of the injury . . . .”). Finally, payment of
benefits in the form of a lump sum instead of bi-weekly payments must be
approved by order of the MWCC. See MISS. CODE ANN. § 71-3-37(10) (“Whenever
the commission determines that it is for the best interests of a person entitled
to compensation, the liability of the employer for compensation . . . may be
discharged by the payment of a lump sum equal to the present value of future
compensation payments . . . .” (emphasis added)).
      In Caldwell, the Mississippi Supreme Court emphasized that the required
showing that a carrier lack an arguable reason for delaying payment and that
the carrier do so willfully, maliciously, or with gross negligence is difficult to
meet when the carrier never, in fact, denies the claim and the delay occurs as a
result of the carrier’s investigation of the claim. There, the court stated:


      Having established that no denial of the . . . claim occurred; that the
      claim was eventually paid; and the duty imposed upon [the carrier]

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      by law to fully investigate all relevant facts, this Court cannot
      conclude that [the carrier]’s conduct, when viewed in the light most
      favorable to [the claimant], rose to the level of gross negligence or an
      independent tort. Considering when payment was made, the most
      that can be said regarding [the carrier]’s handling of the . . . claim
      is that [the carrier] was negligent, if that. We hold that the trial
      court correctly . . . grant[ed] summary judgment to [the carrier].
Caldwell, 686 So. 2d at 1099.
      Here, Liberty Mutual’s delay in paying Mrs. Casey’s benefits was a result
of its awaiting the results of Mr. Casey’s toxicology report pursuant to its claim
investigation and its awaiting the order from the MWCC approving the lump-
sum payment that Mrs. Casey sought. When it received the results of the report,
Liberty Mutual deemed Mrs. Casey’s claims fully compensable, but at that
moment Mrs. Casey had filed her petition to controvert and sought a lump-sum
payment of her benefits. Liberty Mutual then awaited the MWCC’s order
approving the lump-sum payment. When Mrs. Casey’s financial difficulties
became known to Liberty Mutual, it immediately paid to Mrs. Casey the bi-
weekly benefits that had accrued up to that time. At no point did Liberty
Mutual deny Mrs. Casey’s claims. Finally, Liberty Mutual paid the balance of
Mrs. Casey’s benefits when the MWCC issued its order approving the lump-sum
payment. As in Caldwell, these facts suggest that Liberty Mutual had an
arguable reason to delay payment and do not suggest that Liberty Mutual’s
doing so “rose to the level of gross negligence or an independent tort.” See id.
Mrs. Casey’s claim “is that [the carrier] was negligent, if that,” see id., and that
level of negligence, without more, cannot meet the standards required to present
a claim of bad faith refusal to honor an insurance obligation.




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      Mrs. Casey presses that this case is similar to that in Rogers, where we
reversed a district court’s grant of summary judgment because the facts did
present a genuine issue of material fact concerning whether the carrier delayed
payment of workers’ compensation benefits in bad faith. The comparison is
unavailing, however. In Rogers, a service-station employee was injured while
performing work for the neighboring gas station. 133 F.3d at 310. Both the
service station and the gas station had policies with the same workers’
compensation carrier.      Id.   Nonetheless, the carrier initially denied the
employee’s claim under the service station’s policy by arguing that the employee
was not acting in the scope of his employment, but it paid the claim, after a
year’s delay, under the gas station’s policy. Id. at 311. We held that the carrier
had no legitimate or arguable reason for the claim’s initial refusal and resulting
delay because the carrier was required to pay benefits under either of the
policies.   See id. at 314 (“For our purposes, the . . . employment issue is
irrelevant. The issue in this case is whether [the carrier], as the indisputably
responsible party to pay benefits, had a legitimate or arguable reason to deny
paying [the claimant] benefits . . . .”). Unlike Rogers, in this case Liberty Mutual
never denied Mrs. Casey’s claim. And Liberty Mutual had legitimate purposes
for its delays: first, had the toxicology report been positive, then workers’
compensation benefits may have been unavailable to Mrs. Casey under
Mississippi law. And second, Mississippi law requires that the MWCC approve
paying workers’ compensation benefits in the form of a lump sum.
      Liberty Mutual’s delay in paying Mrs. Casey resulted from its
investigation surrounding the facts of her claim and from its waiting for the
MWCC to approve the lump-sum benefits payment. Perhaps Liberty Mutual


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could have investigated the claim in a way that might have resulted in prompter
payment of Mrs. Casey’s benefits, but we do not review such a case through the
perfect lenses of hindsight. The standard, instead, is whether Liberty Mutual
lacked a legitimate or arguable reason for the delay and that such delay
amounted to a willful or malicious wrong. The facts here do not present a
genuine issue as to whether that standard was met, and the district court
correctly granted summary judgment in favor of Liberty Mutual.
                              IV. Conclusion
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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