                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                             FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                        OCT 17, 2008
                             No. 08-10070             THOMAS K. KAHN
                       ________________________           CLERK


                    D.C. Docket No. 00-03318-CV-VEH

JOSEPH R. PURSIFULL,


                                                                  Plaintiff,

JUDY D. PURSIFULL, duly appointed executor
of the estates of Joseph R. Pursifull,
deceased,

                                                       Plaintiff–Appellant,

                                 versus

UNUM LIFE INSURANCE COMPANY OF AMERICA,
CHEROKEE WIRELESS SERVICES, INC.,
NETWORK CONSTRUCTION SERVICES, INC.,


                                                  Defendants–Appellees,

GUARANTEE LIFE INSURANCE COMPANY, et al.,

                                                              Defendants.
                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________

                                    (October 17, 2008)

Before BARKETT and WILSON, Circuit Judges, and GOLDBERG,* Judge.

PER CURIAM:

       Judy D. Pursifull (“Pursifull”), widow and executor of the estate of Joseph

R. Pursifull, appeals from an adverse summary judgment in favor of Unum Life

Insurance Company of America (“Unum”) and Guarantee Life Insurance Company

(“Guarantee”), the two insurance companies that provided her husband’s disability

insurance policy at different points in time. The district court, finding no material

fact in dispute, determined that Unum’s policy was not in effect at the time benefits

were sought. The court also found that Pursifull’s claim against Guarantee for

breach of a fiduciary duty — specifically for failing to notify Joseph Pursifull that

his disability policy had been terminated — failed because notice would not have

afforded Pursifull any remedy. We review the district court’s grant of a summary

judgment motion de novo, construing all of the evidence in the light most favorable

to the nonmoving party. Ellis v. England, 432 F.3d 1321, 1325 (11th Cir. 2005)


       *
         Honorable Richard W. Goldberg, United States Court of International Trade Judge,
sitting by designation.

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(citation omitted).

      The relevant and undisputed facts are as follows. Joseph Pursifull was

employed by Cherokee Contracting in March of 1996. Cherokee Contracting

obtained group disability coverage for its employees from Guarantee in June of

1996 and was responsible for making the necessary premium payments. Under the

terms of the policy, individual employees were barred from converting from the

group policy to individual disability coverage, and they were also prohibited from

paying the premium individually.

      In October of 1996, Joseph Pursifull was diagnosed with cancer and

underwent surgery. He subsequently filed a claim for short-term disability benefits

which were paid by Guarantee. He returned to work but had to undergo treatment

again in March of 1997. Joseph Pursifull filed a second claim for short-term

disability benefits in order to undergo additional cancer treatment. This second

claim for benefits was also approved, and he again returned to work following his

treatment.

      Cherokee Contracting was subsequently acquired by Cherokee Wireless in

March of 1997, and Joseph Pursifull became an employee of the latter, working in

the same capacity as he had with Cherokee Contracting. Cherokee Wireless

inherited Guarantee’s group disability coverage and the responsibility for paying



                                          3
the premium. However, Cherokee Wireless failed to make the necessary premium

payments to Guarantee in both November and December of 1997, and Guarantee

terminated the group policy for nonpayment. Following the termination of its

policy with Guarantee, Cherokee Wireless obtained a group disability policy

through Unum, beginning in January of 1998.

      This policy contained two provisions relevant here. First, that Unum would

cover pre-existing conditions if “the claimant was in active employment and

insured under the Unum policy on its effective date; and the claimant was insured

by a prior policy at the time of the change in coverage to the Unum policy.”

Second, the Unum policy would cover a pre-existing condition if the claimant had

      - received medical treatment, consultation, care or services including
      diagnostic measures, or took prescribed drugs or medicines in the 3 months
      just prior to your effective date of coverage; and
      - the disability begins in the first 12 months after your effective date of
      coverage.

      Despite these provisions, Joseph Pursifull sought and obtained long-term

disability benefits from Unum to undergo additional medical treatment in June of

1998, at a rate of 50% of his monthly earnings, minus any offsets for other income

including Social Security benefits. Believing he was entitled to 60% of his

monthly earnings, Joseph Pursifull contacted both Cherokee Wireless and Unum to

request the additional payments. While researching Guarantee’s prior policy for



                                         4
clarification, Unum discovered that the Guarantee policy formerly held by

Cherokee Wireless had been terminated for nonpayment. Unum was unaware of

this fact until this point. Unum then informed Joseph Pursifull in January of 1999

that it would no longer provide him any benefits because his disability was caused

by a pre-existing condition that failed under Unum’s continuity of coverage

provision. Joseph Pursifull was informed that he had sixty days to appeal the

decision, a step he did not take.

       Sensitive to Joseph Pursifull’s condition, and accepting its own error,

Cherokee Wireless paid Joseph Pursifull disability benefit payments from January

of 1999 through October of 1999, when Cherokee Wireless filed for bankruptcy.

Following his death, Joseph Pursifull’s widow was substituted as the party plaintiff

in her position as the executor of Joseph Pursifull’s estate.

       We have carefully considered the record and the argument of counsel and

find no error. Unum’s policy provisions are clear and unambiguous and, pursuant

to those provisions, Unum had no responsibility toward Pursifull.1 We also must

reject Pursifull’s claim against Guarantee Life. Pursifull alleges that Guarantee

improperly neglected to notify him about his employer’s failure to make premium

payments and thus prevented him from paying the premium personally to avoid a


       1
        We also reject Pursifull’s waiver argument. Even if it were applicable, the record would
not support a waiver argument in this instance.

                                               5
lapse in coverage. However, as noted by the district court, “any notice to Pursifull

would have been futile because he could not have made individual premium

payments [pursuant to the terms of the policy] to prevent the Original Policy with

Guarantee Life from lapsing.” Finding no error, the decision of the district court is

      AFFIRMED.




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