                    REVISED MARCH 18, 2008
           IN THE UNITED STATES COURT OF APPEALS
                                           United States Court of Appeals
                    FOR THE FIFTH CIRCUIT           Fifth Circuit

                                                                             FILED
                                                                          February 19, 2008

                                     No. 07-10692                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DONALD R MITCHELL

                                                  Plaintiff - Appellant
v.

ACE AMERICAN INSURANCE COMPANY

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                    for the Northern District of Texas, Dallas
                                No. 3:06-CV-1013


Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Donald R. Mitchell brought suit against his insurance
provider, defendant-appellee Ace American Insurance Company, after it denied
Mitchell’s application for disability benefits. The district court granted summary
judgment in favor of Ace American Insurance Company. Mitchell appeals the
judgment with respect to his breach of contract cause of action. We AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-10692

           I. FACTUAL AND PROCEDURAL BACKGROUND
      On March 20, 2003, plaintiff-appellant Donald R. Mitchell, a professional
football player, signed to play for the Dallas Cowboys (the “Cowboys”), a member
of the National Football League (the “NFL”), as a defensive back. In April 2003,
he purchased a $1 million athlete’s individual disability income policy (the
“policy”) from defendant-appellee Ace American Insurance Company (“Ace”),
covering the period from April 21, 2003 to April 21, 2004. On August 28, 2003,
Mitchell injured his left ankle during a pre-season game. The Cowboys’ medical
staff diagnosed the injury as acute posterior tibial tendinitis, and Mitchell did
not play for the remainder of the 2003 football season due to the injury. On
February 9, 2004, Mitchell was released from the Cowboys’ rehabilitation
program. At that time, the Cowboys’ medical reports indicated that he was
“running and working . . . with no complaints or problems.”
      On June 4, 2004, the Cowboys’ team physician cleared Mitchell “for all
practice activities,” and Mitchell participated in full practices for the Cowboys’
“mini-camp” from June 5, 2004 through June 11, 2004. According to Mitchell,
he missed at least two days of mini-camp and was unable to fully participate in
all camp activities because he experienced pain and swelling in his left ankle.
On July 30, 2004, at the start of the Cowboys’ “training camp,” Mitchell signed
an Acknowledgment of Receipt of Medical Information in which he attested that
he was “not [at that time] suffering from any physical and/or mental disability”
that prevented him from playing professional football. Mitchell reports that
after approximately three days of training camp, he again started to feel pain in
his left ankle. Nevertheless, he continued to participate in the training camp
and even played in the Cowboys’ first three pre-season games.            Mitchell
maintains that the condition of his left ankle limited his movement, causing his
performance to suffer during those pre-season games. However, the Cowboys’



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episode recap report indicates that Mitchell participated in each of those games
with “no limitations.”
      On August 31, 2004, following the third pre-season game, the Cowboys cut
Mitchell from the roster. Upon his dismissal, Mitchell signed a medical waiver
acknowledging that “he [was] not [at that time] suffering from any disability,
physical or mental, incurred as a result of his service as a professional football
player for the Club[, the Cowboys].” The waiver further stated that, so far as
Mitchell could determine, “he [was] not physically unable to play professional
football for the Club as a result of any injury suffered during the period of
employment with the Club.” Mitchell claims, however, that after his release
from the Cowboys, he consulted a foot and ankle specialist and learned that he
could not continue as a professional football player because of the condition of
his ankle.
      On September 22, 2004, Mitchell filed an application for disability benefits
with Ace. Ace denied the claim by letter dated December 9, 2004. Mitchell then
filed suit against Ace in state court on February 14, 2006, and the case was
removed to federal district court on June 8, 2006. Ace filed a motion for partial
summary judgment on Mitchell’s causes of action for breach of contract and
violations of the Texas Insurance Code, which the district court granted on
January 26, 2007. Subsequently, Mitchell filed an unopposed motion to dismiss
the remainder of his claims. On May 21, 2007, the court issued a final judgment
dismissing all of Mitchell’s claims. Mitchell timely filed his notice of appeal on
June 18, 2007. Mitchell only appeals the district court’s judgment dismissing his
breach of contract claim with prejudice.
                               II. DISCUSSION
      We review a grant of summary judgment de novo, applying the same
standard as the district court. Stotter v. Univ. of Texas at San Antonio, 508 F.3d
812, 820 (5th Cir. 2007). “A party is entitled to summary judgment only if ‘the

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pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.’” Id. (quoting FED. R. CIV. P. 56(c)). We view the facts in the light most
favorable to the party opposing the summary judgment motion and draw all
reasonable inferences in that party’s favor. Id.
      In diversity cases, such as this one, we look to the substantive law of the
forum state. Texas Indus., Inc. v. Factory Mut. Ins. Co., 486 F.3d 844, 846 (5th
Cir. 2007). Under Texas law, insurance policies are governed by the same rules
of construction that apply to contracts generally. Balandran v. Safeco Ins. Co.
of Am., 972 S.W.2d 738, 740–41 (Tex. 1998). The primary goal is to give effect
to the written expression of the parties’ intent. Id. at 741. “The terms used in
an insurance policy are to be given their ordinary and generally accepted
meaning, unless the policy shows that the words were meant in a technical or
different sense.” Canutillo Indep. Sch. Dist. v. Nat’l Union Fire Ins. Co. of
Pittsburgh, Pa., 99 F.3d 695, 700 (5th Cir. 1996) (citing Sec. Mut. Cas. Co. v.
Johnson, 584 S.W.2d 703, 704 (Tex. 1979)). The policy should be considered as
a whole so as to give effect and meaning to each part. Id.; see Balandran, 972
S.W.2d at 741 (“We must read all parts of the contract together, . . . striving to
give meaning to every sentence, clause, and word to avoid rendering any portion
inoperative.”) (internal citation omitted).
      “Texas contract interpretation law indicates that ‘[i]f policy language is
worded so that it can be given a definite or certain legal meaning, it is not
ambiguous and we construe it as a matter of law.’” Texas Indus., Inc., 486 F.3d
at 846 (quoting Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.
2003)). Whether a contract is ambiguous is a question of law for the court to
decide. Id. “The fact that the parties offer different contract interpretations
does not create an ambiguity.” Id. An ambiguity exists only if the contract

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                                  No. 07-10692

language is susceptible to more than one reasonable interpretation. Id.; Nat’l
Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520
(Tex. 1995). The court must adopt the insured’s construction of an ambiguous
provision, “as long as that construction is not unreasonable, even if the
construction urged by the insurer appears to be more reasonable or a more
accurate reflection of the parties’ intent.” Nat’l Hudson Union Fire Ins. Co. of
Pittsburgh, Pa. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991); see
Balandran, 972 S.W.2d at 741.
      Pursuant to the policy, Mitchell must satisfy five conditions precedent for
coverage. Ace based its summary judgment motion on Mitchell’s purported
failure to meet the third condition—that he did not “satisf[y] the Elimination
Period as shown in the SCHEDULE.” The SCHEDULE defines the Elimination
Period as:
             Twelve (12) consecutive months.
             No covered claim shall exist and no benefit shall be due
             or payable under this Policy until the Insured has been
             Totally Disabled for this period and certified to be
             Permanently Totally Disabled at the end of the period.

The Definitions section of the policy further provides that the “Elimination
Period” means a “continuous period of time . . . during which the Insured must
be Totally Disabled and for which no benefits are due or payable.”
      Therefore, coverage depends on whether Mitchell was “Totally Disabled”
for a consecutive twelve month period. The policy defines “Total Disablement,
Totally Disabled or Total Disability” as “the Insured’s complete and total
physical inability as a result of the Accidental Bodily Injury or Sickness or
Disease to Participate, as defined in the Policy, in his or her Occupation as
stated in the SCHEDULE.” “Participate,” in turn, means:
             1)    in a team sport, that the Insured is:
                   a) on the active roster of:


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                                  No. 07-10692

                        (1) the professional sports team as stated
                        in the SCHEDULE for which the Insured is
                        contractually obligated to play; or
                        (2) the collegiate sports team as stated in
                        the SCHEDULE for which the Insured
                        plays;
                        and/or
                  b) dressed (in uniform) or available or physically
                  able to practice or play for a team in the League
                  as defined in the Policy.

R. 165 (emphasis added).
      Ace argues that it did not breach the policy when it declined to pay
Mitchell’s claim because Mitchell was not “Totally Disabled” for twelve
consecutive months after sustaining his ankle injury since he “participated” in
professional football during that time. As evidence of Mitchell’s “participation,”
Ace points to Mitchell’s involvement in the Cowboys’ mini and training camps
in the summer of 2004 and the three pre-season games that Mitchell played in
August 2004, prior to the start of the 2004 season. The district court agreed
with Ace and determined that Mitchell failed to satisfy the policy’s Elimination
Period because “Mitchell was necessarily in uniform and was not only available
and physically able to practice and play for an NFL team, but he actually did
practice and play for an NFL team within a year of injuring his left ankle.”
Since Mitchell had failed to meet an essential condition of coverage, the district
court concluded that “Ace did not breach the policy in denying Mitchell’s claim.”
      Mitchell first contends that the district court erred because Ace’s use of the
conjunctive-disjunctive phrase “and/or” in the definition of “participate” created
a patent ambiguity in the policy. Mitchell, however, did not present this
argument in his response to Ace’s motion for summary judgment, even though
Ace had clearly relied on the disjunctive, “or,” to maintain that Mitchell had
“participated” and thus had failed to satisfy one of the conditions precedent for
coverage under the policy. Instead, Mitchell claimed that ambiguity was caused

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                                         No. 07-10692

by the use of the undefined term “active roster” in the “participate” definition.
“Although on summary judgment the record is reviewed de novo, this court for
obvious reasons, will not consider evidence or arguments that were not presented
to the district court for its consideration in ruling on the motion.” Guar. Nat’l
Cos. v. Atchison, Topeka & Santa, 149 F.3d 1177, 1177 (5th Cir. 1998) (emphasis
added). Consequently, we will not consider this point of error raised for the first
time on appeal.1
       Mitchell’s second argument relies on the policy’s “rehabilitation clause,”
which states:
               REHABILITATION

               PROFESSIONAL FOOTBALL
               The Insured shall be deemed conclusively to have been
               fully-rehabilitated and no claim shall be payable
               hereunder:
               (a)    if the Insured signs a new professional contract
                      and passes a professional team physical, or
               (b)    in the event the Insured Participates in four (4)
                      or more Regular Season, play-off or championship
                      games, or any combination thereof, during the
                      period of twelve (12) months from the
                      commencement of a Total Disablement or before
                      the end of the immediately following Regular


       1
          Even if Mitchell had not waived this specific issue, he would not prevail on appeal.
According to Mitchell, the definition of “participate” should be read to mean that the insured
is “participating” only if he is on the active roster and is dressed, available, or physically able
to practice or play. But Mitchell’s interpretation ignores the term “or”—the same error of
which he accuses the district court and Ace with respect to the use of the word “and.” The
plain and unambiguous meaning that gives effect to the parties’ intent is that the insured
“participates” if the insured: (1) is on the active roster of the Cowboys and is dressed, available,
or physically able to practice or play; OR (2) is on the active roster of the Cowboys; OR (3) is
dressed in uniform, available, or physically able to practice or play for an NFL team. Because
Mitchell was dressed in uniform, available to play, and actually did play in three pre-season
games for the Cowboys, he “participated” and thus was not totally disabled for the duration
of the Elimination Period, a condition precedent to Ace’s liability under the policy.
Consequently, the district court’s dismissal of Mitchell’s breach of contract cause of action was
proper.

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                                  No. 07-10692

                  Season from the one in which the Insured became
                  Totally Disabled, whichever period is the longer.

      Mitchell argues that, considering the policy as a whole, the rehabilitation
clause modifies the Elimination Period and the “participate” definition so that
an insured is permitted a rehabilitation period to practice and play in pre-season
games before he is deemed ineligible for coverage. In effect, Mitchell’s argument
is that even though he did not meet the requirements of the Elimination Period,
he is still entitled to coverage because he did not satisfy the terms of the
rehabilitation provision, as he only played in three pre-season games rather than
four regular season games. Moreover, Mitchell contends that the definition of
“participate” must be informed by the rehabilitation clause to mean that an
insured “participates” in a team sport only if he plays in four or more regular
season games, otherwise the rehabilitation clause would be rendered
inoperative.
      We agree with the district court’s conclusion that the “plain terms of the
policy cannot bear Mitchell’s interpretation, which would vitiate the Elimination
Period and/or the meaning of ‘participate’ as defined in the policy.” Mitchell’s
interpretation disregards the purpose of the rehabilitation clause and amounts
to a complete re-writing of the policy’s “participate” definition, an unreasonable
construction that we cannot accept. The rehabilitation clause describes a set of
circumstances under which an insured will be conclusively presumed to have
been “fully-rehabilitated” such that no claim is payable. The purpose of the
rehabilitation clause is to restrict, not to enlarge, the scope of coverage by
providing more ways in which claims may be denied even if the insured remains
totally disabled for the duration of the Elimination Period. For example, in a
case where an insured satisfied the Elimination Period, he may still be denied
coverage under the rehabilitation clause if he: (1) signed a new professional
contract and passed a professional team physical; or (2) participated in four or


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more regular season games before the end of the season immediately following
the regular season in which he had become totally disabled.
      In short, considering the policy as a whole, the rehabilitation clause only
functions to limit coverage under the policy and cannot reasonably be read to
increase Ace’s exposure by doing away with the Elimination Period, a condition
precedent for coverage, or the policy’s meaning of the term “participate.”
Accordingly, Mitchell’s point of error fails.
                              III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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