UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60416 Summary Calendar

JANICE SHERMAN BRIEN,

Plaintiff-Appellant,

VERSUS

EQUITABLE ASSURANCE SOCIETY OF THE UNITED STATES; WILLIE L. McINTOSH; DON BROWN,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Mississippi 3:97-CV-735-BN March 17, 2000 Before SMITH, BARKSDALE and PARKER, Circuit Judges. PER CURIAM:*

Plaintiff-Appellant, Janice Sherman Brien appeals the summary

judgment for Defendants-Appellees, Equitable Assurance Society of

the United States, Willie L. McIntosh and Don Brown (collectively

“Equitable”) in her suit for damages allegedly occasioned by

Equitable’s bad faith in delaying payments on her disability

insurance claim. We affirm.

Brien submitted a claim in 1994, stating that she was totally

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 disabled2 from performing her work as a dentist because she was

experiencing double vision. Equitable paid Brien monthly

disability benefits of $3000 for approximately three years. In

June 1997, after a review of Brien’s medical records and an

independent medical examination (“IME”), Equitable determined that

Brien was not totally disabled under the terms of the policy, but

invited Brien and her physician to submit any additional

information that would support her claim. In September 1997, Brien

filed the instant suit. In January 1998, Equitable reinstated

Brien’s benefits and paid all benefits which had accrued in the six

months since its June 1997 decision to suspend payments. The

district court granted Equitable’s motion for summary judgment on

the only remaining issues in the suit: Brien’s claim for punitive

damages and extra-contractual damages for mental anguish, attorneys

fees and interest.

We review a district court’s grant of summary judgment de

novo, see Resolution Trust Corp. v. Ayo,

(5th Cir.

1994), and affirm summary judgment only if the movant demonstrated

that there are no genuine issues of material fact. See FED. R. CIV.

P. 56(c). This action, properly removed from a Mississippi state

court on the basis of diversity jurisdiction pursuant to

, requires the application of Mississippi substantive law.

Brien asserts on appeal that summary judgment proof

2 Brien’s policy paid benefits only in the event she suffered total disability. To the extent that the evidence supported a finding of partial disability, Brien was entitled to no payment under the policy.

2 established a genuine issue of fact on her claim for punitive

damages resulting from a bad faith denial of insurance benefits.

In order to recover punitive damages under Mississippi law, a

plaintiff must establish that (1) the insurer lacked an “arguable

or legitimate reason” for denying a benefit claim and (2) the

insurer committed a willful or malicious wrong or acted with gross

and reckless disregard for the insured’s rights. Dunn v. State

Farm Fire & Cas. Co.,

(5th Cir. 1991). In order

to recover punitive damages, the insured must prove both of these

elements. See Life & Cas. Ins. Co. of Tenn. v. Bristow,

(Miss. 1988).

There is no dispute in this record that Equitable had a

legitimate or arguable reason for denying Brien’s benefits. An

arguable reason has been defined as one in support of which there

is some credible evidence. See Guy v. Commonwealth Life Ins. Co.,

(5th Cir. 1990). The existence of evidence to

the contrary does not deprive an insurer of its “arguable reason.”

See

Equitable’s decision that Brien was not totally disabled

relied on the medical opinion of its in-house physician as well as

the report from Brien’s IME. Brien’s evidence, consisting of

medical records from other physicians and reliance on discrete

portions of the IME that contravened Equitable’s conclusions, does

not create a fact question concerning Equitable’s arguable basis

for its actions.

With regard to Brien’s actual damage claims for emotional

distress and attorneys’ fees, the district court held that, under

3 Mississippi law, extra-contractual compensatory damages are not

recoverable in the absence of facts justifying a punitive damage

award. Brien challenges this holding by citing Universal Life Ins.

Co. v. Veasley,

(Miss. 1992), which allowed mental

anguish damages for a plaintiff in the absence of punitive damages.

While we agree that the district court’s reliance on pre-Veasley

Mississippi law on this point was in error, we nevertheless affirm

summary judgment for Equitable on this point because the record

contains no evidence to support an award for mental anguish or

attorney fees.

Finally, Brien complains that the district court failed to

consider her claim for prejudgment interest. Because there was no

judgment entered for Brien, the district court did not abuse its

discretion in failing to award Brien interest on a zero judgment.

See Larr v. Minn. Mut. Life Ins. Co.,

(5th Cir.

1991)(holding that, under Mississippi law, the award of prejudgment

interest is within the discretion of the district court); see also

(a)(1994)(“Interest shall be allowed on any money

judgment in a civil case recovered in a district court.”).

For the foregoing reasons, we affirm the summary judgment for

Equitable.

AFFIRMED.

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