* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-60241

(Summary Calendar)

OLD REPUBLIC LIFE

INSURANCE COMPANY,

Plaintiff-Appellee,

versus

TRUSTMARK NATIONAL BANK,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Mississippi

(95-CV-88)

November 7, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Trustmark National Bank (Trustmark)

appeals the district court’s grant of summary judgment in favor of

Plaintiff-Appellee Old Republic Life Insurance Company (Old

Republic). The district court’s opinion adopted, i n toto

, Old

Republic’s a rgument that it is entitled to summary judgment for2

three independently sufficient reasons. Although we do not

necessarily a g ree that, independently, each of Old Republic’s

proffered arguments is sufficient to justify summary judgment, we

nevertheless reach the same result as did the district court and

affirm on the basis of Old Republic’s final argument.

I

FACTS AND PROCEEDINGS

The controversy that gives rise to this appeal centers on

three life insurance policies issued by Old Republic on the life of

Nolan Lamar Jackson. The three policies were identical in their

relevant terms and together provided death proceeds totaling

$800,000. Annual premiums on each policy were payable by August 3,

and each policy contained a thirty-one day grace period within

which premiums could be paid without negative effects. Each policy

also includ ed a waiver of premium rider (Rider), which dispensed

with the obligation to pay premiums in the event that the insured,

Jackson, became totally incapacitated.

In 19 91, Trustmark became the owner and beneficiary of the

policies when the original owner, Hale & Jones Sporting Goods of

Mississippi, Inc., defaulted on a loan. Trustmark paid the annual

premiums in 1991, 1992, and 1993, but in 1994 decided, for

budgeting reasons, not to continue paying premiums on the policies.

When Old Republic failed to receive payment by August 3, 1994, it

sent two sets of “friendly reminder” premium due notices to

Trustmark. One of Trustmark’s Vice-Presidents, Joe Wadsworth,3

threw awa y the first set of notices. Then, in early September,

Wadsworth returned the second set of notices to Old Republic with

the instruction “CANCEL” handwritten on them. After the thirty-one

day grace period ran its co urse —— on September 3, 1994 —— Old

Republic treated the policies as lapsed for nonpayment.

At that point, both Trustmark and Old Republic believed that

coverage had terminated. A few weeks later, however, on October

10, Jackson died of liver cancer. After learning of Jackson’s

death, Trustmark attempted to collect from Old Republic on the life

insurance policies. It relied on the Rider, arguing that Jackson

had been totally incapacitated by his illness, and that the

obligation to pay the August 3, 1994 premium was thus dispensed

with automatically.

Old Republic filed a c omplaint in federal district court,

based on diversity of citizenship, requesting declaratory relief.

Trustmark counterclaimed for the face amount of the policies plus

interest. Old Republic then filed a motion for summary judgment,

arguing that (1) Trustmark canceled the policies prior to Jackson’s

death, (2) the policies lapsed for nonpayment of pr emiums before

Jackson’s death, and (3) Trustmark never me t the terms and

conditions specified in the Rider. The district court credited

each of Old Republic’s arguments and, stating that each was

independently sufficient to support summary judgment, granted the

declaratory relief sought by Old Republic.

II1 W altman v. International Paper Co.

, 875 F.2d 468, 474 (5th

Cir. 1989).

2 See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett

, 477

U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

3 A nderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106

S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)

.

4 Anderson , 477 U.S. at 255, 106 S.Ct. at 2513.

5 R ittenhouse v. Mabry

, 832 F.2d 1380, 1382 (5th Cir. 1987);

DeMelo v. Toche Marine, Inc.

, 711 F.2d 1260, 1264 (5th Cir. 1983).

4 ANALYSIS

A. S TANDARD OF R EVIEW

We review summary judgments de novo, appl ying the same

standard as the district court. 1 Summary judgment is proper if the

pleadings and the summary judgment record show that there is no

genuine issue as to any material fact and that the moving party is

entitled to jud gment as a matter of law. 2 A dispute about a

material fact is “genuine” if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. 3

In making our determination, we must draw all justifiable

inference s in favor of the nonmoving party. 4 As our jurisdiction

to decide this case is based on diversity of citizenship, we must

apply the substantive law of Mississippi. 5

B. T HE W AIVER OF P REMIUM R IDER

The Rider required that, to effectuate a waiver of premium,

notice and proof of total disability must have been furnished to

the insurer during Jackson’s lifetime and not later than one year6 S ee Providen t Life & Accident Ins. Co. v. Cumbest , 325

So.2d 569 (Miss. 1976); Cox v. Lamar L ife Ins. Co. , 43 So.2d 884

(Miss. 1950); Metropolitan Life Ins. Co. v. Lindsey

, 185 So. 573

(Miss. 1939); New York Life Ins. Co. v. Quinn , 157 So. 902 (Miss.

1934) ; Mutual Life Ins. Co. v. Hebron , 146 So. 445 (Miss. 1933);

B erry v. Lamar Life Ins. Co.

, 142 So. 445 (Miss. 1932); Ne w York

Life Ins. Co. v. Alexander , 85 So. 93 (Miss. 1920).

5 after the due date of any premium in default. As Trustmark did not

comply with the first prong of that conju nctive requirement, Old

Republic would have us end our analysis at this point and hold that

Trustmark was not entitled to a waiver of the August 3, 1994

premium. Old Republic maintains that the Rider makes notice and

proof of disability an absolute condition precedent to Trustmark’s

right to a waiver of premiums, and therefore any action taken by

Trustmark after Jackson’s death was too late. For support, Old

Republic cites a litany of Mississippi cases dealing with waiver of

premium riders that included conditions precedent. 6 The policy at

issue in the instant appeal is fundamentally different from the

policies reviewed in each of the cases cited by Old Republic,

however, as it includes an express exception: Trustmark’s failure

to give proper notice and proof of disability within the stated

time limits would be excused “if notice is given as soon as it is

reasonably possible to do so.”

In Martin v. New York Life Ins. Co.

, a case that dealt with a

premium waiver rider substantively identical to the one at issue in

the instant case, we noted that there are two classes of disability

clauses:7 Martin v. New York Life Ins. Co. , 621 F.2d 159, 161 (5th

Cir. 1980).

6 One , those in which benefits are conditioned upon the

f urnishing of proof and are to commence from th e time

that proofs are furnished; and, two, those in which

benefits are conditioned upon the furnishing of proof,

but which provide that the benefits are to commence from

the date that the disability occurs. 7

Each of the cases cited by Old Republic dealt with policies that

fall within the first category. None of the policies contained an

exception at all; instead, notice and proof of disability were made

absolute conditions precedent to waiver of premiums. In contrast,

the Rider expressly states that failure to provide notice and proof

before Jackson’s death “will not reduce the benefit if [notice and

proof] is given as soon as it is reasonably possible to do so.”

Thus, we must determine whether this exception precludes summary

judgment in favor of Old Republic.

C. T HE E XCEPTION

None dispute that Trustmark failed to make the premium

payments, either by the time they were due or before expiration of

the grace peri od. Neither is it disputed that Old Republic was

given no notice or proof that Jackson was disabled until several

days after his death. Therefore, unless it was not “reasonably

possible” for Trustmark to comply with the Rider’s notice and proof

requirements, the policies lapsed for nonpayment as contended by

Old Republic.

Trustmark made no attempt whatsoever to contact Jackson or to7

c heck on his physical or medical condition before deciding

u nilaterally to stop paying premiums. Trustmark was therefore

unaware when making its decision that Jackson’s health had begun to

deteriorate. Jackson was dying of liver cancer, and, although he

was not diagnosed until early September, 1994 —after the expiration

of the grace peri od— Jackson’s failing health had become evident

early in 1994 and had worsened steadily until his death on October

10.

We affirm the district court’s grant of summary judgment

because, not only would it have been “reasonably possible” for

Trustmark to have determined whether Jackson was disabled, it would

have been quite simple and easy. But Trustmark consciously elected

to cease paying the premiums and allow the insurance to lapse

without bothering to make any inquiry about the status of Jackson’s

health.

The district court asked Trustmark to justify its failure to

so much as inquire, and Trustmark responded weakly that it might

have “felt some sensibilities about just calling the man up on the

phone and inquiring about his health.” That is not a reasonable

explana tion; it does not even rise to the level of lame excuse.

Indeed, Trustmark’s prolongation of this litigation, especially its

decision to press on with this appeal, approaches frivolousness if

in fact it has not already crossed that line. If nothing else,

Tru stmark should be embarrassed to shed crocodile tears by

disingenuously professing such tender sensibilities, while8

continuing to embroil Old Republic and the courts in this spurious

dispute based on nothing more than the mo st remote of chances to

luck into a pure windfall, thanks to Jackson’s tragic and untimely

death. The summary judgment granted by the district court is

AFFIRMED.