* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60379

Summary Calendar

BETTY ANN CASEY

Plaintiff - Appellant

v.

LIBERTY MUTUAL INSURANCE COMPANY; JOHN DOES 1-3

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Mississippi, Jackson

USDC No. 3:05-CV-98

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Betty Ann Casey appeals the district court’s grant of summary judgment

in favor of Liberty Mutual Insurance Company, dismissing her claim for the

alleged bad faith delay in paying her workers’ compensation death benefits.

Mrs. Casey’s husband, Samuel Casey, died in an auto accident that occurred

during the scope of his employment. Liberty Mutual paid no benefits to Mrs.

Casey while it waited for the results of Mr. Casey’s toxicology report and for an

United States Court of Appeals

Fifth Circuit

F I L E D

January 26, 2009

Charles R. Fulbruge III

Clerk
No. 08-60379

1 The parties do not dispute the fact that Mr. Casey was acting within the scope of his

employment while driving the truck.

2

order from the Mississippi Workers’ Compensation Commission permitting a

lump-sum payment of benefits; however, Liberty Mutual immediately paid

benefits to Mrs. Casey when it was informed of her financial hardship. Because

Liberty Mutual never, in fact, denied Mrs. Casey’s claim and because the delay

in payment was due to an investigation that Liberty Mutual had a duty to carry

out, we affirm the district court’s grant of summary judgment.

I. Factual And Procedural Background

The facts in this case are undisputed. On June 7, 2004, Mr. Casey was

driving a company truck on a two-lane state highway when he swerved into

oncoming traffic and collided head-on with a semi-truck. He died as a result.1

The next day, his employer, Rapad Drilling and Well Service (“Rapad”), notified

its workers’ compensation carrier,Liberty Mutual Insurance Company (“Liberty

Mutual”), of Mr. Casey’s death. Liberty Mutual’s claims adjuster, Wesley

Jackson, initiated an investigation to determine whether Mrs. Casey’s resulting

workers’ compensation death benefits claim was compensable; he was joined by

field investigator Todd Lafferty. Lafferty informed Jackson that the toxicology

report, which would reveal Mr. Casey’s blood–alcohol level at the time of the

accident, would be unobtainable until the Mississippi Highway Patrol finished

its investigation.

Liberty Mutual subsequently attempted to obtain the results of the

toxicology report. On June 23, 2004, Jackson called Officer Ronnie Rayburn of

the Mississippi Highway Patrol to inquire about the toxicology report, and

Officer Rayburn informed Jackson that the state crime lab would not have the
No. 08-60379

3

report ready for another month. On August 2, 2004, Jackson again called Officer

Rayburn and left a message for him. Receiving no response to his message,

Jackson called once more on August 9, 2004, only to leave a second message for

Officer Rayburn.

Meanwhile, Mrs. Casey obtained the legal services of Len Melvin, who

contacted Jackson on August 25, 2004, and informed Jackson that Mrs. Casey

would be seeking a lump-sum payment of her benefits. Jackson informed Melvin

that Liberty Mutual was still waiting on the results of Mr. Casey’s toxicology

report.

On September 16, 2004, Jackson noted that the highway patrol had yet to

call him back, so, on September 24, 2004, Lafferty traveled to the highway

patrol’s office and left his card for Officer Rayburn asking the officer to call

Lafferty back. Officer Rayburn called Lafferty on October 6 and confirmed that

Mr. Casey’s toxicology report was negative for any trace of alcohol.

That same day, Melvin filed a petition to controvert the workers’

compensation claim on behalf of Mrs. Casey with the Mississippi Workers’

Compensation Commission (the “MWCC”). When Jackson called Melvin on

October 7, 2004, to inform him that Liberty Mutual obtained the toxicology

report and that Mrs. Casey’s claim was compensable, Melvin told Jackson that

he had filed the petition to controvert. Liberty Mutual received the petition on

October 13, 2004, and forwarded the document to its counsel. In answering the

petition to controvert, Liberty Mutual admitted compensability.

On December 8, 2004, Liberty Mutual received a letter from Melvin

stating that Mrs. Casey would be seeking a lump-sum payment of her benefits.

Liberty Mutual informed Rapad a week later that it was waiting for the MWCC

to issue an order approving the lump-sum payment to Mrs. Casey.
No. 08-60379

4

Before that order, however, Mrs. Casey filed the present law suit on

January 14, 2005. On February 4, 2005, Melvin sent a letter to Liberty Mutual’s

counsel stating that Mrs. Casey was “experiencing extreme financial difficulties”

and requesting immediate compensation. Six days later, Liberty Mutual paid

$11,938.85 to Mrs. Casey, representing the bi-weekly benefits that had accrued

up to that date. Finally, on April 5, 2005, the MWCC issued its final order

authorizing the payment of lump-sum benefits to Mrs. Casey, and Liberty

Mutual paid those benefits to Mrs. Casey on April 12, 2005.

After reviewing these facts, the district court concluded that Liberty

Mutual’s conduct did not rise to the level of gross negligence necessary to

support Mrs. Casey’s claim of bad faith. The court reasoned that “[t]he alleged

misconduct occurred while the claim was being investigated and litigated

pursuant to the Workers’ Compensation Act and the rules of the [MWCC]” and

also that“Liberty [Mutual] accepted Mrs. Casey’s claim as compensable and paid

the benefits due.” Thus, it granted Liberty Mutual’s motion for summary

judgment and dismissed Mrs. Casey’s claim. Mrs. Casey filed timely notice of

appeal. In it, she argues that Liberty Mutual delayed payment of her benefits

in bad faith by failing to begin bi-weekly payments within fourteen days of being

notified of Mr. Casey’s death and by conducting an unreasonably long

investigation into the compensability of her claim.

II. Standard Of Review

We review a grant of summary judgment de novo, viewing all evidence in

the light mostfavorable to the nonmovant and drawing all reasonable inferences

in the nonmovant’s favor. See Essinger v. Liberty Mut. Fire Ins. Co., 529 F.3d

264, 269 (5th Cir. 2008). Summary judgment is proper when the evidence
No. 08-60379

2 The third requirement has similarly been described as showing that a carrier “acted

with willful, malicious, gross negligence, or reckless disregard for the rights of the claimant.”

Pilate v. Am. Federated Ins. Co., 865 So. 2d 387, 391 (Miss. Ct. App. 2004).

5

reflects “no genuine issue as to any material fact and that the movant is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(c).

III. Discussion

Under Mississippi law, workers’ compensation is the exclusive remedy for

an injury occurring in the course of employment. MISS. CODE ANN. § 71-3-9. But

this provision does not bar the independent, intentionaltortfor bad faith refusal

to honor an insurance contract obligation. Rogers v. Hartford Accident & Indem.

Co., 133 F.3d 309, 312 (5th Cir. 1998). To prove this bad faith claim, a plaintiff

must show: “(1) a contract of workers’ compensation insurance existed between

the defendant and the plaintiff’s employer; (2) the carrier denied the plaintiff’s

compensable workers’ compensation claim without a legitimate or arguable

reason; and (3) the denial of benefits constitutes a willful and intentional or

malicious wrong.” Id.2 There is no question that a valid contract of workers’

compensation existed here; the issue turns on whether Liberty Mutual had a

legitimate or arguable reason for delaying payment of Mrs. Casey’s benefits and

whether such delay was a willful or malicious wrong.

As Mrs. Casey argues, Mississippi workers’ compensation carriers are

required to pay the first installment of compensation within fourteen days of

receiving notice of the claim. See MISS. CODE ANN. § 71-3-37(2) (“The first

installment of compensation shall become due on the fourteenth day (14th) after

the employer has notice . . . of injury or death . . . .”). But carriers also have a

duty “to fully investigate all relevant facts” surrounding a claim, Caldwell v. Alfa

Ins. Co., 686 So. 2d 1092, 1099 (Miss. 1996), and some delay in payment is
No. 08-60379

6

permitted while the carrier satisfies this duty despite the fourteen-day

requirement, see, e.g., id. at 1098 (holding that a 103-day delay in payment did

not amount to bad faith because the carrier “gave a reasonable explanation for

the delay in payment: [it was] continuing [its] investigation”); Pilate, 865 So. 2d

at 400–01 (permitting a year-long delay in paying workers’ compensation

benefits and stating that “[the carrier]’s explanation of its investigation was

sufficient to determine that neither [its] nor [its adjuster]’s conduct rose to the

level of gross negligence or an independent tort”). This investigation is

particularly important in a case such as this, as intoxication of the employee

may completely bar the payment of workers’ compensation. See MISS. CODE

ANN. § 71-3-7 (“No compensation shall be payable if the intoxication of the

employee was the proximate cause of the injury . . . .”). Finally, payment of

benefits in the form of a lump sum instead of bi-weekly payments must be

approved by order ofthe MWCC. See MISS.CODE ANN. § 71-3-37(10) (“Whenever

the commission determines that it is for the best interests of a person entitled

to compensation, the liability of the employer for compensation . . . may be

discharged by the payment of a lump sum equal to the present value of future

compensation payments . . . .” (emphasis added)).

In Caldwell,the Mississippi Supreme Court emphasized thatthe required

showing that a carrier lack an arguable reason for delaying payment and that

the carrier do so willfully, maliciously, or with gross negligence is difficult to

meet when the carrier never, in fact, denies the claim and the delay occurs as a

result of the carrier’s investigation of the claim. There, the court stated:

Having established that no denial of the . . . claim occurred; that the

claim was eventually paid; and the duty imposed upon [the carrier]
No. 08-60379

7

by law to fully investigate all relevant facts, this Court cannot

conclude that [the carrier]’s conduct, when viewed in the light most

favorable to [the claimant], rose to the level of gross negligence or an

independent tort. Considering when payment was made, the most

that can be said regarding [the carrier]’s handling of the . . . claim

is that [the carrier] was negligent, if that. We hold that the trial

court correctly . . . grant[ed] summary judgment to [the carrier].

Caldwell, 686 So. 2d at 1099.

Here, Liberty Mutual’s delay in paying Mrs. Casey’s benefits was a result

of its awaiting the results of Mr. Casey’s toxicology report pursuant to its claim

investigation and its awaiting the order from the MWCC approving the lumpsum paymentthat Mrs. Casey sought. When it received the results of the report,

Liberty Mutual deemed Mrs. Casey’s claims fully compensable, but at that

moment Mrs. Casey had filed her petition to controvert and sought a lump-sum

payment of her benefits. Liberty Mutual then awaited the MWCC’s order

approving the lump-sum payment. When Mrs. Casey’s financial difficulties

became known to Liberty Mutual, it immediately paid to Mrs. Casey the biweekly benefits that had accrued up to that time. At no point did Liberty

Mutual deny Mrs. Casey’s claims. Finally, Liberty Mutual paid the balance of

Mrs. Casey’s benefits when the MWCC issued its order approving the lump-sum

payment. As in Caldwell, these facts suggest that Liberty Mutual had an

arguable reason to delay payment and do not suggest that Liberty Mutual’s

doing so “rose to the level of gross negligence or an independent tort.” See id.

Mrs. Casey’s claim “is that [the carrier] was negligent, if that,” see id., and that

level of negligence, without more, cannot meetthe standards required to present

a claim of bad faith refusal to honor an insurance obligation.
No. 08-60379

8

Mrs. Casey presses that this case is similar to that in Rogers, where we

reversed a district court’s grant of summary judgment because the facts did

present a genuine issue of material fact concerning whether the carrier delayed

payment of workers’ compensation benefits in bad faith. The comparison is

unavailing, however. In Rogers, a service-station employee was injured while

performing work for the neighboring gas station. 133 F.3d at 310. Both the

service station and the gas station had policies with the same workers’

compensation carrier. Id. Nonetheless, the carrier initially denied the

employee’s claim under the service station’s policy by arguing that the employee

was not acting in the scope of his employment, but it paid the claim, after a

year’s delay, under the gas station’s policy. Id. at 311. We held that the carrier

had no legitimate or arguable reason for the claim’s initial refusal and resulting

delay because the carrier was required to pay benefits under either of the

policies. See id. at 314 (“For our purposes, the . . . employment issue is

irrelevant. The issue in this case is whether [the carrier], as the indisputably

responsible party to pay benefits, had a legitimate or arguable reason to deny

paying [the claimant] benefits . . . .”). Unlike Rogers, in this case Liberty Mutual

never denied Mrs. Casey’s claim. And Liberty Mutual had legitimate purposes

for its delays: first, had the toxicology report been positive, then workers’

compensation benefits may have been unavailable to Mrs. Casey under

Mississippi law. And second, Mississippi law requires that the MWCC approve

paying workers’ compensation benefits in the form of a lump sum.

Liberty Mutual’s delay in paying Mrs. Casey resulted from its

investigation surrounding the facts of her claim and from its waiting for the

MWCC to approve the lump-sum benefits payment. Perhaps Liberty Mutual
No. 08-60379

9

could have investigated the claim in a way that might have resulted in prompter

payment of Mrs. Casey’s benefits, but we do not review such a case through the

perfect lenses of hindsight. The standard, instead, is whether Liberty Mutual

lacked a legitimate or arguable reason for the delay and that such delay

amounted to a willful or malicious wrong. The facts here do not present a

genuine issue as to whether that standard was met, and the district court

correctly granted summary judgment in favor of Liberty Mutual.

IV. Conclusion

For the foregoing reasons, the judgment of the district court is

AFFIRMED.