* 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. 08-60060

Summary Calendar

DANIEL H TARVER

Plaintiff - Appellant

v.

COLONIAL LIFE & ACCIDENT INSURANCE CO

Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:05-CV-82

Before KING, DAVIS, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT:*

Plaintiff-Appellant Daniel H.Tarver (“Tarver”) appeals the district court’s

grant of summary judgment in favor of Colonial Life & Accident Insurance

Company (“Colonial”). Tarver also challenges the district court’s denial of his

motion for change of venue. For the reasons set forth below, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2008

Charles R. Fulbruge III

Clerk
No. 08-60060

2

I. FACTS AND PROCEEDINGS

This appeal arises out of a dispute regarding disability insurance coverage.

In February of 1986, Tarver, a resident of Mississippi, purchased two insurance

policies from Colonial, a South Carolina corporation doing business in

Mississippi. The first policy provided accident insurance while the second

covered sickness and disability. On May 17, 2002, Tarver injured his leg and

back which resulted in his unemployment. Having been injured on the job,

Tarver became eligible for and received workers’ compensation benefits. He also

applied for and received one year of total disability benefits from Colonial under

his accident policy, the maximum benefit available under that policy for a single

period of total disability. Since this injury, Tarver has remained unemployed.

On February 5, 2003, Tarver injured his shoulder and was diagnosed with

chronic rotator cuff syndrome and acromioclavicular arthritis. He underwent

surgery on June 20, 2003. On August 24, 2003, Tarver submitted a new claim

for total disability benefits, this time filing under his sickness and disability

policy and citing the date of surgery as the disability onset date. 

The sickness and disability policy provides benefits for up to twelve

months when the claimant, if injured while unemployed, is confined “at home”

and “under the care of a doctor” due to the injury. Colonial sought to obtain

medical records from Tarver’s treating physicians to determine whether Tarver

qualified under the “at home” provision. Based on the medical records received,

as well as an assessment from its own medical consultant, Colonial paid seven

weeks of disability benefits, determining this to be the reasonable recovery

period for Tarver’s shoulder surgery. Colonial otherwise denied Tarver’s total

disability claim and concluded that he did not suffer from a condition which

required home confinement past seven weeks. 
No. 08-60060

3

On February 7, 2005, Tarver sued Colonial, claiming bad-faith breach of

contract, intentional tort, and intentional infliction of emotional distress. 

Tarver sought damages totaling $6 million as well as $5,000 in punitive

damages. Tarver later sought to transfer the case from the Southern District of

Mississippi, Jackson Division to the Western Division of the same district. The

district court denied Tarver’s request for a change of venue. Colonial moved for

summary judgment under Federal Rule of Civil Procedure 56(b). The district

court granted summary judgment in favor of Colonial on all claims and entered

judgment on February 21, 2007. Tarver appeals.

II. STANDARD OF REVIEW

This court reviews a district court’s grant of summary judgment de novo.

See Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005).

Summary judgmentis appropriate “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is 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). “We consider the evidence in a light most favorable

to [Tarver], the non-movant, but [he] must point to evidence showing that there

is a genuine fact issue for trial” to survive summary judgment. Richardson, 434

F.3d at 332. This court reviews a district court’s denial of a motion for change

of venue for abuse of discretion. Broussard v. State Farm Fire & Cas. Co., 523

F.3d 618, 631 (5th Cir. 2008). 

III. ANALYSIS

A. Bad-Faith Breach of Contract

As a threshold matter, this contract dispute is governed by Mississippi

law. See Krieser v. Hobbs, 166 F.3d 736, 739 (5th Cir. 1999) (holding that a
No. 08-60060

4

federal court sitting in diversity applies the substantive law ofthe state in which

it sits). Under Mississippi law, contract interpretation is a question of law, not

fact. Johnson v. Preferred Risk Auto. Ins. Co., 659 So.2d 866, 871 (Miss. 1995)

(en banc). Any insurance policy that is plain and unambiguous will be construed

as written. Pate v. Conseco Life Ins. Co., 971 So.2d 593, 595 (Miss. 2008). Any

ambiguity will be construed against the drafter and in favor of the insured.

Johnson, 659 So.2d at 871. When an insurance policy has two reasonable

meanings, it is construed as to give greater indemnity to the insured. Caldwell

v. Hartford Accident & Indem. Co., 160 So.2d 209, 213 (Miss. 1964). 

To prevail on a bad-faith breach of contract claim against an insurer, the

“plaintiff must show that the insurer lacked an arguable or legitimate basis for

denying the claim, or that the insurer committed a wilful or malicious wrong, or

acted with gross and reckless disregard for the insured’s rights.” Liberty Mut.

Life Ins. Co. v. McKneely, 862 So.2d 530, 533 (Miss. 2003) (en banc); see also

State Farm Mut. Auto. Ins. Co. v. Grimes, 722 So.2d 637, 641 (Miss. 1998) (en

banc). Bad faith is characterized as “conduct which violates standards of

decency, fairness or reasonableness.” Cenac v. Murry, 609 So.2d 1257, 1272

(Miss. 1992). Bad faith requires a showing of more than bad judgment or

negligence; indeed, bad faith “implies the conscious doing of a wrong because of

dishonest purpose or moral obliquity.” Bailey v. Bailey, 724 So.2d 335, 338

(Miss. 1998) (en banc).

Tarver argues thatthe district court erred in granting summary judgment

in favor of Colonial on his bad-faith breach of contract claim because: (1) the

policy’s “at home” provision was ambiguous, (2) Colonial substituted the treating

physician’s determination that Tarver was “totally disabled” for its own medical
No. 08-60060

5

consultant’s assessment of Tarver’s condition, and (3) Colonial failed to

investigate his claim and pay the benefits due. These arguments are without

merit.

(1) Is the policy ambiguous?

Tarver argues that the contract is ambiguous because the policy does not

specify a temporal component and does not list all of the activities from which

one must be restricted; however, we hold that the terms of the policy are clear.

Under the “Benefits for Sickness” heading, the policy defines “totally disabled or

disabled” as being “unable to work at your job for pay or benefits” and “under the

care of a doctor.” A policyholder who is unemployed will receive benefits if the

claimant is kept “at home” by the illness and “under the care of a doctor.” The

policy further defines “at home” as “in your house or yard.” However, a

policyholder may leave home if so directed by a physician. “Under the care of a

doctor” is defined as “being cared for on a regular basis by a doctor other than

yourself unless the doctor states that continued treatment in the future would

be of no benefit to you.” 

Coverage depends on a physician’s assessment of a claimant’s unique

condition and attendant restrictions. The insurance policy provides $1,000 of

total disability benefits per month up to a twelve-month period for those who

qualify under the “at home” provision. Thus, the period of the disability itself

is irrelevant as are the particular activities from which a claimant is restricted.

The “at home” contractlanguage does not evidence an attempt by Colonial

to disregard Tarver’s rights or deny his claim without a legitimate basis.

Because the contract language is not ambiguous, Tarver’s argument based on

the “at home” provision fails to support a finding of bad-faith breach of contract.

(2) Did Colonial act in bad faith in reaching its conclusion that
No. 08-60060

6

Tarver was not totally disabled under the terms of the policy?

The record shows that Colonial reviewed Tarver’s own claim statement,

the treating physician’s assessment of his condition, his physical therapist’s

analysis of his functional capabilities, and also sought the advice of its own

medical consultant. Although Tarver’s surgeon stated that, in his opinion,

Tarver was totally disabled, the surgeon never stated that Tarver was confined

“at home.” The surgeon’s opinion that Tarver was disabled, without an

attendantfinding that he metthe “at home” provision, is not sufficientto qualify

under the disability requirements of the policy. None of the professionals who

examined Tarver or his medical records found him to be totally disabled as

defined by the policy. Colonial based its decision on evidence from several

medical experts and did not act in bad faith in denying Tarver’s claim. 

(3) Did Colonial fail to investigate Tarver’s claim and pay the

benefits due? 

The record reveals that from August 24, 2003, when Tarver filed his claim

with Colonial, to February 7, 2005, when Tarver filed suit, Colonial repeatedly

attempted to ascertain whether Tarver was restricted to his home by his doctor,

the length of the restriction, and the conditions that led to this decision by his

doctor. Through its review of available evidence, Colonial determined that

Tarver’s shoulder surgery may have caused some period of disability, if only for

the period of recovery. Thus, Colonial paid Tarver seven weeks of disability

while continuing to seek medical records to substantiate a longer disability

period. Colonial sought waivers from Tarver to review his medical files and sent

follow-up questions to his surgeon. Colonial’s investigation of Tarver’s claim

cannot be characterized as conduct that violates standards of decency, fairness,
No. 08-60060

1 Tarver argues that the district court erred in refusing to send the claim for

punitive damages to the jury. Under Mississippi law, to recover punitive damages, a

claimant must “prove by clear and convincing evidence that the defendant against whom

punitive damages are sought acted with actual malice, gross negligence which evidences a

willful, wanton or reckless disregard for the safety of others, or committed actual fraud.” 

MISS. CODE ANN. § 11-1-65(1)(a). For a punitive damages claim to go to the jury, the judge

must find that: (1) the insurance company had no legitimate or arguable reason for denying

the claim and (2) the plaintiff has made a showing of “malice, gross negligence, or wanton

disregard of the rights of the insured.” Life & Cas. Ins. Co. of Tenn. v. Bristow, 529 So.2d

620, 624 (Miss. 1988) (en banc). Both prongs of this test have been addressed above. The

district court did not err in denying Tarver’s request for punitive damages. 

7

or reasonableness. See Cenac, 609 So.2d at1275.1

B. Intentional Tort

Tarver argues thatthe district court erred in granting summary judgment

in favor of Colonial on his intentional tort claim, restating the allegations set

forth in his breach of contract claim. The intentional tort claim is a repetition

of his breach of contract claim and fails for the same reasons. 

C. Intentional Infliction of Emotional Distress

Tarver also appeals the district court’s decision dismissing his claim for

intentional infliction of emotional distress. Tarver argues that, through the

allegations set forth in his prior two claims, he has provided sufficient evidence

to show that Colonial acted with vindictive intent to cause him harm.

Under Mississippi law, a plaintiff may show intentional infliction of

emotional distress in one of two ways: (1) by showing a physical harm or mental

assault requiring the treatment of a medical professional or (2) where no

physical harm results, by showing that defendant’s conduct evokes outrage or

revulsion. Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch., Inc., 759

So.2d 1203, 1211 (Miss. 2000) (en banc). If a claim is based on the defendant’s

conduct, the behavior must be “so outrageous in character, and so extreme in
No. 08-60060

2 Even if this court were to entertain Tarver’s contention that Colonial’s behavior

was beyond the bounds of decency and could be considered atrocious, Tarver’s claim for

intentional infliction of emotional distress cannot stand. Tarver does not claim and has not

shown that Colonial committed any intentional tort separate from the alleged breach of

contract. 

8

degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.” Pegues v. Emerson

Elec. Co., 913 F.Supp. 976, 982 (N.D. Miss. 1996) (quoting RESTATEMENT

(SECOND) OF TORTS §46 cmt. d. (1965)). Furthermore, “[i]n Mississippi damages

for mental anguish and emotional upset cannot be considered in absence of

finding an independent intentional tort separate from the breach of contract.”

Life & Cas. Ins. Co. of Tenn. v. Bristow, 529 So.2d 620, 624 (Miss. 1988) (en

banc) (internal quotations omitted).

Tarver does not claim any physical or psychological harm. Thus, to resist

a motion for summary judgment, he must show that Colonial’s conduct was of

the type that goes beyond the bounds of community decency. Tarver fails to

meet that high standard. As discussed above, Colonial did not attempt to avoid

its contract obligations through ambiguous drafting; it diligently investigated

Tarver’s claim and did not actin bad faith. As the district court found, Colonial’s

conduct cannot be characterized as outrageous or intolerable in a civilized

society.2

D. Change of Venue

Under 28 U.S.C. §1404(a), relevant factors for determining a motion for

change of venue include “whether the proposed transfer venue is a forum in

which the suit could originally have been brought, the convenience ofthe parties

and witnesses, and the interests of justice.” Broussard, 523 F.3d at 631. The

district court properly weighed these factors. Venue was proper in both the
No. 08-60060

9

Western Division and the Jackson Division of the Southern District of

Mississippi. With the exception of Tarver himself, all witnesses, as well as

counsel for both parties, are located in the Jackson area. A review of the record

shows that the parties filed numerous motions, held a case management

conference, and had already engaged in discovery by the time Tarver filed his

change of venue motion. Therefore, the district court did not abuse its discretion

in denying Tarver’s motion for change of venue.

IV. CONCLUSION

The judgment of the district court is AFFIRMED.