UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60286 Summary Calendar

USAA LIFE INSURANCE COMPANY,

Plaintiff-Counter Defendant-Appellee,

VERSUS

EDWARD P. KESZENHEIMER, JR.,

Defendant-Counter Claimant-Appellant.

Appeal from the United States District Court for the Southern District of Mississippi (3:97-CV-784) February 4, 2000 Before SMITH, BARKSDALE and PARKER, Circuit Judges.

PER CURIAM:*

Defendant-Counter Claimant-Appellant, Edward P. Keszenheimer,

Jr. appeals the jury verdict in favor of Plaintiff-Counter

Defendant-Appellee, USAA Life Insurance Company in this declaratory

judgment action. Keszenheimer also appeals the district court’s

summary judgment for USAA on Keszenheimer’s counterclaim which

alleged USAA handled his disability insurance claim in bad faith.

We affirm.

Keszenheimer purchased a disability income policy from USAA in

1986. In November 1994, he experienced an episode of acute

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 vertigo, for which he sought medical treatment. Keszenheimer, a 39

year old directional drilling supervisor, did not return to work

and submitted a claim for disability benefits based on an alleged

vestibular (inner ear) problem, which USAA paid for over three

years.

USAA then filed a declaratory judgment action alleging

Keszenheimer never had a disability. Keszenheimer filed a counter

claim for bad faith handling of his disability claim. The district

court dismissed the counter claim on summary judgment and the

remainder of the case went to trial before a jury. The jury found

that Keszenheimer was 70% disabled from December 5, 1995 through

December 31, 1998, and 20% disabled “at the present time” (on the

verdict form dated January 4, 1999). The district court ordered

that USAA is entitled to reimbursement of $39,960.00, 30% of the

benefits paid to Keszenheimer from 1995-1998, and that USAA may

reduce its monthly benefit payments to Keszenheimer to 20% of the

maximum monthly benefit beginning January 1, 1999.

On appeal, Keszenheimer complains that the district court

erred in submitting the special interrogatories to the jury.

Specifically, he contends that the following instruction, appearing

between interrogatories 3 and 4, was peremptory in favor of USAA

and prompted the jury to enter judgment which was not as favorable

as he would have liked.

If your answer to no. 3 is “no,” do not answer No. 4. If your answer to no. 3 is “yes,” then answer the following questions and the Court will grant a judgment in favor of USAA against Keszenheimer in an amount based on your answers to No. 4a. and 4b.

2 When read as a whole, the jury charge clearly and fairly presented

the contested issues to the jury. See Central Progressive Bank v.

Fireman’s Fund Ins. Co.,

(5th Cir. 1981). We

find no error in the jury charge or interrogatories.

Keszenheimer next contends that the jury’s answers were an

impermissible compromise verdict. See Yarbrough v. Sturm, Ruger &

Co.,

(5th Cir. 1992)(if the record establishes a

compromise verdict, a new trial is required). When a jury’s

answers to written interrogatories appear to conflict, the court

must attempt to reconcile the answers to validate the jury’s

verdict,” Rideau v. Parkem Indus. Services, Inc.,

(5th Cir. 1990), “view[ing] the evidence and all reasonable

inferences in the light most favorable to the jury’s

determination.” Rideau,

. We may not substitute

for the jury’s reasonable factual inferences other inferences that

we may regard as more reasonable. See

Keszenheimer argues that because there is no direct evidence

of a change in his condition between December 31, 1998 and January

1, 1999, the jury’s 70%/20% answers are necessarily a compromise

verdict. In order to reverse on this ground, we would have to

ignore rational explanations for the jury’s answers. For instance,

the jury may have unanimously decided that 70% accurately described

the range of disability Keszenheimer experienced over the three

year period covered by question number three, while 20% accurately

described his level of disability “at the present time” in response

to question number two. We find no basis in this record for

3 concluding that the jury reached an impermissible compromise

verdict.

Keszenheimer next urges us to reverse the district court’s

denial of his motion for new trial arguing that the verdict is

against the great weight of the evidence. We will affirm the

denial of a motion for new trial unless the movant in the district

court makes a clear showing of “an absolute absence of evidence to

support the jury’s verdict.” Whitehead v. Food Max of Mississippi,

Inc.,

(5th Cir. 1998).

Keszenheimer hangs his hat on the fact that three physicians

testified that he was disabled, while only one physician, a non-

treating physician who was paid by USAA, testified that he was

malingering. Although the jury was entitled to find the one

physician credible and discount as not credible the other medical

testimony, other evidence in this record amply supports the jury’s

verdict. For instance, uncontroverted evidence of Keszenheimer’s

extensive firefighting activities and his application for and

receipt of a commercial driver’s license during the relevant time

period belie his position that he was unable to work. The district

court’s denial of the motion for new trial was not error.

Likewise, Keszenheimer’s argument that the bare fact that he

did not receive income from December 1995 to the present entitles

him to benefits under the policy is without merit. Under the

language of the policy, “covered loss” includes income lost “solely

because of injury or sickness.” Income loss due to voluntary

unemployment or malingering is not covered.

4 Keszenheimer next challenges the district court’s

reimbursement order arguing that USAA waived any right to recovery

based on benefit payments it made after its internal decision that

Keszenheimer was not disabled. Contrariwise, he argues that USAA

should compensate him for its “bad faith” handling of his claim,

apparently complaining that it did not pay him the benefits claimed

without question. We find no error in either the dismissal of the

bad faith counter claim or the award of reimbursement. USAA began

payments on the claim in good faith. After discovering cause to

question the validity of the claim, USAA filed a declaratory

judgment action to settle the parties’ rights and continued

payments. We can discern no evidence of bad faith or waiver in

this record.

For the foregoing reasons, we affirm the judgment in favor of

USAA and the dismissal of Keszenheimer’s counter claim.

AFFIRMED.

5