     Case: 17-20181      Document: 00514178763         Page: 1    Date Filed: 10/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 17-20181                                    FILED
                                  Summary Calendar                            October 2, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
ABDUL SALAM BADMUS,

              Plaintiff - Appellant

v.

MUTUAL OF OMAHA INSURANCE COMPANY (MOOIC),

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-1149


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       In August 2010, Mutual of Omaha Insurance Company (MOOIC) issued
an Accidental Death Policy to Selem Babtunde Badmus (Selem), providing that
it would pay a benefit of $750,000 in the event of Selem’s death if it was “caused
by injury sustained while riding as a passenger in any public land, air or water
conveyance provided by a ‘Common Carrier.’” The policy initially listed no
beneficiary, but was changed to designate Selem’s brother, Abdul Salam


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 17-20181
Badmus (Badmus) as beneficiary in July 2013. In March 2014, Badmus filed
a claim with MOOIC seeking $750,000 under the policy, alleging that Selem
died in an automobile accident in Lagos, Nigeria, on January 24, 2014. MOOIC
sent Badmus forms to complete and requested documents in support of the
claim. Badmus responded to MOOIC with partially completed forms, but did
not provide the requested documents. Upon detecting numerous discrepancies
and omissions in the forms Badmus submitted, MOOIC hired Worldwide
Resources, Inc. (Worldwide) to investigate the claim. Worldwide ultimately
concluded that most of the information Badmus submitted was suspect, and
MOOIC denied the claim.
      In May 2015, Badmus filed suit against MOOIC in the United States
District Court for the Southern District of Texas, pro se, seeking payment
under the policy and alleging (1) breach of contract; (2) unfair settlement
practices and statutory bad faith; (3) misrepresentation of insurance policy; (4)
violations of the Prompt Payment Statute and other provisions of the Texas
Insurance Code; and (5) common law bad faith. Again choosing to undertake
an independent investigation, MOOIC uncovered a series of name-change
forms indicating that “Selem Babatunde Badmus,” residing at Badmus’s
address in Houston, Texas, applied for a name change to “Abdul Salam
Badmus” on May 21, 2016, over two years after Selem’s alleged death in
Nigeria. Shortly thereafter, Badmus was indicted for felony insurance fraud
based on the insurance claim he filed with MOOIC.
      Based on this information, the district court concluded that the insured
was alive and granted summary judgment for MOOIC. Badmus appeals,
challenging the district court’s grant of summary judgment for MOOIC as well
as some of its evidentiary rulings. Because we conclude that the district court
did not abuse its discretion in its evidentiary rulings and that MOOIC was
entitled to summary judgment, we AFFIRM the district court’s judgment.
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                                  No. 17-20181
                                         I
      We review the district court’s evidentiary rulings under an abuse of
discretion standard. Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 667 (5th
Cir. 1999). A “district court is given wide discretion regarding evidentiary
rulings,” and its decisions will not be disturbed unless they are manifestly
erroneous. Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1329 (5th Cir. 1996)
(citing United States v. Massey, 58 F.3d 133, 140 (5th Cir. 1995)).
      Badmus first argues that the district court erred in granting MOOIC’s
motion to strike several exhibits he submitted with his summary judgment
motion. These exhibits contain affidavits from two Nigerian witnesses that
claimed to have witnessed the automobile accident and alleged that Selem
died. The exhibits also contain a number of Internet and newspaper articles
and websites as well as one scholarly article. The district court concluded that
the exhibits must be excluded because they were inadmissible hearsay,
irrelevant, and not in compliance with the Federal Rules of Civil Procedure.
The only argument Badmus raises on appeal is that the newspapers and
periodicals contained in these exhibits are self-authenticating and relevant.
Because Badmus does not address the court’s finding that the excluded
exhibits were hearsay, that they were not timely produced, and that they did
not comply with the Federal Rules of Civil Procedure, he has forfeited these
arguments on appeal. We therefore perceive no abuse of discretion in the
district court’s exclusion of the evidence.
                                        II
      Badmus next argues that the district court erred in denying his motion
to strike exhibits submitted by MOOIC. The exhibits in question include the
indictment against Badmus for insurance fraud, Texas driver’s license records,
name-change forms, and other evidence suggesting that one of Badmus’s
witnesses knew the insured in 2005. The district court concluded that the
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                                  No. 17-20181
forms were relevant to the question of whether the insured was alive. Badmus
argues on appeal that the exhibits are not relevant. We disagree.
      The evidence at issue in Badmus’s motion to strike is highly relevant
because it addresses a fact of enormous consequence in the litigation: whether
the insured is alive or dead. Accordingly, we find that the district court’s denial
of Badmus’s motion to strike was not an abuse of discretion. FED. R. EV. 401.
(“Evidence is relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence” and the fact made more or less
probable “is of consequences in determining the action.”).
                                        III
      We review the district court’s grant of summary judgment de novo.
Wilcox v. Wild Well Control, Inc., 794 F.3d 531, 535 (5th Cir. 2015). Summary
judgment is required “if 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 of material fact means that ‘evidence
is such that a reasonable jury could return a verdict for the nonmoving party.’”
Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).            In
reviewing a grant of summary judgment, this court construes “all facts and
inferences in the light most favorable to the nonmoving party.” Canal Ins. Co.
v. Coleman, 625 F.3d 244, 247 (5th Cir. 2010) (quoting Murray v. Earle, 405
F.3d 278, 284 (5th Cir. 2005)). However, a nonmovant will not avoid summary
judgment     by    presenting    “speculation,    improbable      inferences,   or
unsubstantiated assertions.” Likens v. Hartford Life & Accident Ins. Co., 688
F.3d 197, 202 (5th Cir. 2012).
      Badmus argues that the district court erred in granting MOOIC’s motion
for summary judgment because it failed to consider any evidence he put forth
to support his claims.      Specifically, Badmus cites to several documents
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containing employment authorization cards from the United States
Department of Homeland Security, which he claims show that he and the
insured are not the same person. The evidence Badmus claims the district
court ignored may be relevant to the issue of whether he and the insured are
different individuals, but it is legally insufficient to overcome the lack of
evidence he has otherwise put forth to substantiate his claims. To prevail
under his claim for breach of contract under Texas law, Badmus must establish
four elements: (1) the existence of a valid contract; (2) proof of the plaintiff’s
performance; (3) evidence of the defendant’s breach; and (4) damages resulting
from the breach. Badmus has failed to provide sufficient evidence to establish
a genuine issue of material fact with respect to defendant’s breach of contract,
because he has not proven that the insured died “while riding as a passenger
in any public land, air or water conveyance provided by a ‘Common Carrier,’”
and thus, that MOOIC must make a payment under the policy.
      Nor has Badmus established that there are genuine issues of material
fact with regard to any of his other claims.       His claims of bad faith and
violations of the Prompt-Payment Statute and other provisions of the Texas
Insurance Code all depend on his ability to demonstrate a valid breach of
contract claim. Weiser-Brown Operating Co. v. St. Paul Surplus Lines Ins. Co.,
801 F.3d 512, 518 (5th Cir. 2015) (to prevail in a claim under the Texas Prompt-
Payment Statute, a plaintiff must first establish a valid claim under an
insurance policy); Higginbotham v. State Farm Mut. Auto Ins. Co., 103 F.3d
456, 459–60 (5th Cir. 1997) (under the common law duty of good faith and fair
dealing and the Texas Insurance Code, an insurer acts in bad faith if there is
“’no reasonable basis for denying or delaying payment of a claim.’”).          As
discussed above, Badmus has failed to prove that the insured has died under
the circumstances required by the policy and that he is entitled to payment by
MOOIC.
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      Finally, with regard to his claim of misrepresentation, Badmus fails to
assert anything more than conclusory allegations that MOOIC inserted fake
policy documents into its claims file in violation of Chapter 541 of the Texas
Insurance Code. He does not present any evidence to support these allegations.
Accordingly, he has not established a genuine issue of material fact as to any
of his claims and summary judgment was appropriate.
                                     ***
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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