                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-1017


THOMAS S. LINTON, JR.,

                Plaintiff – Appellant,

          v.

AXA EQUITABLE LIFE INSURANCE COMPANY, f/k/a Equitable Life
Assurance Society of the United States,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    William O. Bertelsman, Senior
District Judge for the Eastern District of Kentucky, sitting by
designation. (2:11-cv-03536-WOB)


Submitted:   June 19, 2013                 Decided:   July 16, 2013


Before WILKINSON, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert T. Lyles, Jr., LYLES & LYLES, LLC, Charleston, South
Carolina, for Appellant.  D. Larry Kristinik, William C. Wood,
Jr., NELSON MULLINS RILEY & SCARBOROUGH, LLP, Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Thomas Linton, Jr., appeals the district court’s order

granting AXA Equitable Life Insurance Company’s (“AXA”) motion

for summary judgment and dismissing his complaint. *         We affirm.

             Linton purchased a Disability Income Policy from AXA

in   1985.     In   2010,   Linton   was   injured   from   an   accidental

exposure to formaldehyde during a mold remediation effort in his

home; this injury led to the claim for benefits from AXA.            After

an investigation, AXA denied Linton benefits under the policy,

stating that because Linton was retired he was ineligible for

benefits.

             The relevant language in the Disability Income Policy

states:

      TOTAL DISABILITY INCOME. If    disability  (1)  starts
      while this policy is in force; and (2) continues
      beyond the Elimination Period: we will pay the Monthly
      Income for each month of the period of disability that
      extends beyond the Elimination period. . . .

(J.A. 77).




      *
       Linton’s notice of appeal purports to appeal both the
district court’s order dismissing his complaint and the order
denying his Fed. R. Civ. P. 59(e) motion.     However, because
Linton does not address the denial of the Rule 59(e) motion in
his opening brief, we consider this issued abandoned.    See A
Helping Hand, LLC v. Baltimore County, 515 F.3d 356, 369 (4th
Cir. 2008) (“It is a well settled rule that contentions not
raised in the argument section of the opening brief are
abandoned.”).



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              The policy contains the following definitions that are

used to determine who is eligible to receive benefits:

      DISABLED or DISABILITY means Total Disability.

      YOUR REGULAR OCCUPATION means the occupation (or
      occupations, if more than one) in which you are
      regularly engaged for gain or profit at the time you
      become disabled.

      TOTAL DISABILITY means your inability due to injury or
      sickness to engage in the substantial and material
      duties of your regular occupation.     It will not be
      considered to exist for any time you are not under the
      regular care and attendance of a doctor.

(J.A. 76).

              On appeal, Linton argues that (1) it was error for the

district   court      to    grant    summary   judgment     to   AXA   because    the

language of the Disability Income Policy creates a question of

fact with respect to whether it provides benefits to a retired

policyholder; and (2) the district court erred in denying Linton

the   opportunity      to    conduct    discovery    into    AXA’s     handling   of

other similar claims.

              We review de novo a district court’s order granting

summary judgment.           Providence Square Assocs., L.L.C. v. G.D.F.,

Inc.,   211    F.3d    846,    850     (4th Cir. 2000).          Summary   judgment

should be granted when “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).           “[T]here is no issue for trial

unless there is sufficient evidence favoring the nonmoving party


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for a jury to return a verdict for that party.                               If the evidence

is merely colorable, or is not significantly probative, summary

judgment” is proper.            Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249-50 (1986) (citations omitted).

               Under South Carolina law, “[a]n insurance contract is

subject to the general rules of contract construction.”                                Hansen

ex rel. Hansen v. United Servs. Auto. Ass’n, 565 S.E.2d 114, 116

(S.C. Ct. App. 2002)            (citation            omitted).          Moreover,       “[t]he

purpose       of    all     rules    of    construction          is     to    ascertain   the

intention      of     the    parties       to    the    contract.”            Id.    (citation

omitted).

               “If the contract’s language is clear and unambiguous,

the language alone determines the contract’s force and effect.”

Schulmeyer v. State Farm Fire & Cas. Co., 579 S.E.2d 132, 134

(S.C. 2003)        (citation        omitted).          “[W]hen    an     insurance      policy

. . . is susceptible to more than one reasonable interpretation,

one of which would provide coverage, [courts] must hold as a

matter of law in favor of coverage.”                     Gaskins v. Blue Cross-Blue

Shield    of       South     Carolina,         245    S.E.2d     598,    602       (S.C. 1978)

(citation omitted); see also Goldston v. State Farm Mut. Auto.

Ins.    Co.,       594     S.E.2d    511,       518    (S.C. Ct. App. 2004)           (“Where

language used in an insurance contract is ambiguous, or where it

is capable of two reasonable interpretations, that construction

which    is    most       favorable       to    the    insured        will    be    adopted.”)

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(internal quotation marks and citation omitted).                              In determining

the   meaning     of    contract        terms,      the       court    “must       give      policy

language    its    plain,      ordinary,          and    popular       meaning.”             B.L.G.

Enters., Inc. v. First Fin. Ins. Co., 514 S.E.2d 327, 330 (S.C.

1999).

            The    rule       of   strict     construction            against       an       insurer

does not, however, authorize a perversion of language or the

exercise    of    inventive        powers     for       the    purpose       of    creating      an

ambiguity where none exists, S.S. Newell & Co. v. American Mut.

Liab.    Ins.    Co.,    19    S.E.2d        463,    467      (S.C. 1945),          nor      should

courts    torture      the    meaning        of    policy       language      to        extend   or

defeat     coverage      that      was       never      intended        by        the    parties,

Torrington Co. v. Aetna Cas. & Sur. Co., 216 S.E.2d 547, 550

(S.C. 1975).        Rather, if the meaning of a particular word or

phrase cannot be determined from the language itself, a court

must read the policy as a whole and consider the context and

subject matter of the insurance contract in order to discern the

parties’ intention.            See Yarborough v. Phoenix Mut. Life Ins.

Co., 225 S.E.2d 344, 348-49 (S.C. 1976).

            Here, the district court analyzed the language of the

policy,    and    in    ruling     on    AXA’s       motion      for   summary          judgment,

expressly       concluded      that     it    was       not    ambiguous.               We   agree.

Linton advances a variety of dictionary definitions for terms

contained within the policy, specifically “gain,” “profit,” and

                                               5
“occupation,” in support of his contention that the terms of the

insurance     agreement    should      be       construed      in   his    favor.       It

strains credulity to accept that “[b]roadly construing the words

‘gain’ and ‘profit,’ given their plain and ordinary meaning,

results in the conclusion that Linton’s pre-disability duties

and activities [as a retired person] were for his ‘gain’ or

‘profit’     from    a   monetary,     social         and     personal     standpoint.”

(Appellant’s br. at 11).             The district court correctly rejected

Linton’s     contention    that      gain       or   profit    could      have   a   plain

meaning other than traditional monetary compensation, and noted

that   Linton’s      arguments    were      merely     “an     attempt     to    fit   his

square-shaped situation into the round hold provided by [the

policy] terms.”       (J.A. 157).

             Furthermore,      the    district        court    properly     found      that

even    if   it     accepted     Linton’s        definitions        of    “occupation,”

“gain,” and “profit,” Linton’s argument would still fail when

the words are read within the definition as a whole, as required

by South Carolina contract law.                 See McGill v. Moore, 672 S.E.2d

571, 574 (S.C. 2009); (J.A. 157).                    When it elaborated on this

finding, the district court noted

       if the policy definition of YOUR REGULAR OCCUPATION
       was meant to include those individuals who were
       retired, then there would be no need to include the
       phrase “for gain or profit” to further explain the
       term   “occupation.”     Even   Plaintiff’s  proffered
       definition of the term “profit” only lends itself to a
       monetary context.    Thus, reading the definition of

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        YOUR REGULAR OCCUPATION as a whole only allows for an
        interpretation that the policy holder is required to
        hold an occupation for which he receives compensation,
        rather than merely the “pursuit of pleasure.”

(J.A. 158).

As   the    district     court   properly      concluded,      the   terms    are   not

ambiguous,        and   Linton   is    ineligible      for    benefits     under    the

policy because he was not employed for gain or profit at the

time he became disabled.

               Linton also argues that the district court erred in

refusing      further      discovery    into    how    AXA     handled     comparable

claims.      This argument is without merit.                 As the district court

correctly noted, Linton’s request for discovery regarding the

handling of other claims was intended to support his allegations

of bad faith on the part of AXA.               However, before allegations of

bad faith can be pursued, the insured must demonstrate that he

was entitled to benefits under the policy.                     Because Linton was

not entitled to benefits under the policy, the district court

correctly concluded that further discovery was unnecessary.

              Accordingly, we affirm the judgment of the district

court.       We dispense with oral argument because the facts and

legal      contentions     are   adequately      presented      in   the     materials

before     this    court   and   argument      would   not     aid   the   decisional

process.

                                                                              AFFIRMED


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