                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                             F I L E D
                    UNITED STATES COURT OF APPEALS           August 26, 2005
                             FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 05-60133
                           Summary Calendar


                          CHARLES N. WHITE,

                                               Plaintiff-Appellant,

                                versus

                    UNITED AMERICAN INSURANCE CO.,

                                                Defendant-Appellee.


           Appeal from the United States District Court
              for the Northern District of Mississippi
                           (1:03-CV-182)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Charles White appeals the summary judgment awarded United

American Insurance Company (UAIC) against his claims for, inter

alia, bad faith and breach of contract in the cancellation of his

insurance policy.

     In June 1997, White was issued a Medigap Plan F. policy from

UAIC.    White elected to have UAIC withdraw his monthly premiums

directly from his bank; White had the sole authority to stop this

bank-draft billing.    He was diagnosed with cancer in 1999.

     *
       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this opinion should not be published and is not precedent except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.
     Around March 2000, however, UAIC converted White’s account

from direct withdrawal to paper billing, without notice or White’s

authorization.     White received the paper billing statements for

payment of his April premium, but did not pay them; after two

months his policy lapsed.

     White filed a claim concerning the policy lapse with the

Mississippi Department of Insurance (MDOI) in October 2000.             In

response to MDOI’s investigation, UAIC, inter alia, offered to

reinstate White’s policy.         MDOI officials twice forwarded this

communication to White, who did not respond. Nor did White attempt

to reinstate his policy on his own.

     White filed this action in state court against UAIC in April

2003, claiming, inter alia, negligence, breach of contract, and

insurance bad faith.     Following removal, the parties agreed to

proceed before a magistrate judge.       See 28 U.S.C. § 636(b)(2).

     On   the   completion   of   discovery,   UAIC   moved   for   summary

judgment on all claims, asserting that, even if it was at fault for

cancelling White’s direct withdrawal payment, White could not show

liability because he failed to respond to the mailed premium bills

and the reinstatement offer.       The court granted summary judgment

against all of White’s intentional tort and contract claims,

finding no evidence that UAIC acted willfully, intentionally,

fraudulently or outrageously in changing the billing system for

White’s policy.


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     The   court   discussed   White’s   negligence   claim   separately,

concluding that, even in the light of error by UAIC in changing

from direct withdrawal to paper billing, White could have avoided

his damages by exercising reasonable and ordinary care – paying

“simple attention to his mail”.

     A summary judgment is reviewed de novo, applying the same

legal standards as the district court.      Mayo v. Hartford Life Ins.

Co., 354 F.3d 400, 403 (5th Cir. 2004).       Such judgment is proper

when “there is no genuine issue as to any material fact and ...

[the movant] is entitled to a judgment as a matter of law”.          FED.

R. CIV. P. 56(c); e.g., Celotex Corp. v. Catrett, 477 U.S. 317

(1986).    All inferences must be drawn in favor of the nonmovant,

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 587-88 (1986); but, “there is no issue for trial unless there

is sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party.           If the evidence is merely

colorable, or is not significantly probative, summary judgment may

be granted”,   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50

(1986) (internal citations omitted).

     White contends there are genuine issues of material fact for

whether: UAIC’s investigation into White’s consumer claim with the

MDOI was negligent; UAIC failed to properly communicate an offer of

reinstatement to White; UAIC improperly “transferred the burden” to

White to act to reinstate his policy; UAIC failed to correct its


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bank-draft   error;   and   UAIC’s   actions   constituted   breaches   of

implied covenants of good faith and fair dealing.             White also

contends:    the district court improperly applied Mississippi’s

doctrine of avoidable consequences; and, in this regard, a genuine

issue of material fact exists for what damages were available to be

mitigated.

     UAIC responds that no genuine issues of material facts exist

because White failed to exercise reasonable efforts to avoid

damages resulting from the cessation of the bank-draft billing; and

no such fact issue exists concerning his bad-faith claims.

     White’s deposition testimony was: he realized the premium

payments were not withdrawn from his bank account in March 2000; he

asked the bank why this was so; he knew that, if premium payments

were not being withdrawn from his account, he needed to pay them in

order to continue coverage; he called his local insurance agent to

ask what was happening with his policy; the local agent did not

call him back, and White did not follow up; he received notices in

the mail billing him for his premiums; but, he did not mail his

payments because he did not know he had to send a check.        Although

White testified he did not recall receiving the two letters from

MDOI concerning UA’s offer to reinstate his coverage, both letters

are in the summary judgment record.        White verified the mailing

address was his, and the letters were not returned to sender.

     Viewing all of the facts in the light most favorable to White,

and for essentially the reasons stated by the district court,

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summary judgment is proper.              First, there is no genuine issue of

material fact to preclude summary judgment against White’s claims

for insurance bad faith, breaches of implied covenants of good

faith and fair dealing, or fraud.                No evidence was presented that

UAIC intentionally switched White’s billing plan to cause him to

let it lapse.

      Second, for White’s negligence and breach of contract claims,

the   district       court     concluded        correctly     that,   even     if    UAIC

erroneously ceased bank-draft billing, White failed to avoid the

consequences of UAIC’s error (mitigate damages) by responding

either   to    the     paper     bills     for     premium     payment   or     to   the

communication from MDOI of UAIC’s offer to reinstate his policy.

Such failure bars recovery.              See Munn v. Algee, 924 F.2d 568, 573

n.9   (5th    Cir.),    cert.     denied,        502   U.S.    900    (1991)   (“Under

Mississippi law, an injured plaintiff may not recover for damages

that he did not take reasonable efforts to avoid.”); Pelican

Trucking Co. v. Rossetti, 167 So.2d 924, 927 (1964), overruled in

part, sustained in part, 170 So.2d 573 (1965).

                                                                         AFFIRMED.




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