1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-60443

PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY,

Plaintiff-Counter Defendant-Appellee,

VERSUS

DINESH K. GOEL,

Defendant-Counter Claimant-Appellant.

Appeals from the United States District Court

for the Southern District of Mississippi

December 4, 2001

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

After suffering an injury to his hand that prevented him from

performing surgery, Dr. Dinesh K. Goel sought disability benefits

under a policy issued by Provident Life and Accident Insurance

C ompany (“Provident”). Although it paid on the claim, Provident

reserved its rights and ulti mately brought this declaratory

judgment action to rescind the policy, contending that Dr. Goel did

not satisfy a condition precedent to coverage by failing to cancel2

a disability policy he held with another insurer. The district

court granted summary judgment to Provident and denied Dr. Goel’s

subsequent motion for relief from judgment. Our consideration of

the record, the briefs, and the arguments presented by both parties

convinces us that summary judgment was appropriate. We further

find that the district court did not abuse its discretion in

denying Dr. Goel’s Rule 60(b) motion for relief from judgment.

Accordingly, we affirm.

I. FACTS AND PROCEDURAL HISTORY

This a ction concerns the validity of a disability insurance

policy issued by Provident to Dr. Dinesh K. Goel. The

circumstances surrounding the issuance of the policy date back to

1992. At that time, Dr. Goel practiced as a surgical specialist in

Jackson, Mississippi, where he continues to reside. Although Dr.

Goel maintained $11,000 a month in disability cove rage with The

Paul Revere Life Insurance Company, his financial obligations and

rapidly rising income caused him to seek additional coverage. To

that end, Dr. Goel contacted Anil Sharma, a personal friend and

Provident agent , to discuss increasing his coverage to

approximately $25,0 00 a month. Through Mr. Sharma, Dr. Goel

submitted three applications for disability coverage with

Provident.

On his first application, d ated November 11, 1992, Dr. Goel

stated that he did not have disability coverage. Provident later1 R. at 504.

2 See id.

3 issued a policy that provided the $15,000 monthly benefit requested

in the application. But after realizing that he did not disclose

his Paul Revere coverage on the Provident application, Dr. Goel

allowed this policy to lapse through non-p ayment of the first

premium.

On June 21, 1993, Dr. Goel submitted his second application to

Provident. In a letter dated September 27, 1993, a Provident Field

Underwriter informed Mr. Sharma that “[i]n order for Mr. Goel to

qualify for the $25,000 of benefit you requested, his income level

would need to be upwards of $1,000,000.00 annually, to be

considere d as an exception to the Maximum Issue Rule.” 1 Based on

his $400,000 income in 1992, Provident advised Dr. Goel that it

would issue him $15,000 a month in coverage if he agreed to cancel

his Paul Revere policy. 2 B ecause Dr. Goel was unwilling to cancel

his Paul Revere coverage, he allowed the second application to

expire.

In 1993, Dr. Goel’s income increased to over $719,000. This

significant increase brought about Dr. Goel’s third and final

application to Provident on February 28, 1994. On his application,

Dr. Goel disclosed his $11,000 policy with Paul Revere but answered

“N/A” to the following question:

4.(f) If any coverage is to be replaced by the coverage

applied for, the following coverage(s) will be3 Provident actually sent two copies of the Amendment along with

the policy and instructed the agent to have Dr. Goel sign both the

copy that would be returned to Provident’s Home Office and the copy

that would remain with the policy. Although the Home Office

received its original signed copy, Dr. Goel did not sign the copy

attached to his policy.

4 permanently cancelled within 30 days of the issue date or

effective date, whichever is later, of the insurance

coverage issued pursuant to this application.

Co. Name___________________ Amount $________________

In a “Personal History Interview” conducted in connection with his

application, Dr. Goel again disclosed h is Paul Revere policy and

further i ndicated that he would not terminate his existing

coverage. But Provident also maintained its position concerning

the Paul Revere coverage: it would provide $15,000 a month in

coverage only if Dr. Goel agreed to cancel his Paul Revere policy.

Provident therefore prepared an Amendment to Dr. Goel’s application

that changed his answer to Question 4(f) from “N/A” to “Paul

Revere.”

On June 28, 1994, Provident approved and printed, along with

the Amendment, a disability policy for Dr. Goel that provided a

monthly benefit of $15,000. Instructions accompanying the

Amendment and the policy directed the agent to obtain Dr. Goel’s

signature on the Amendment before releasing the policy to him. 3

The A mendment, relating to cancellation of the Paul Revere

coverage, stated:

In consideration of the issuance of the policy to which

this amendment is attached, it is understood and agreed

that my signed application dated February 28, 1 994 is4 Although Provident did not print the policy and the Amendment

until Jun e 28, 1994, the signed Amendment bears the date of June

26, 1994–-an impossibility. Dr. Goel argues that this discrepancy

creates a genuine issue of material fact concerning the validity of

the signed Amendment. But see infra Part II.B.(2).

5 Lester Duncan, Provident’s Rule 30(b)(6) underwriting witness,

testified in his deposition that if the signed Amendment had not

been re turned in a timely manner, the policy would have

automatically been cancelled as of July 8, 1994, its original

effective date.

Mr. Duncan also testified that during the period of time

relevant to this suit, Provident maintained its records on

microfilm. After a document was microfilmed, the original was

destroyed. As a result, the paper copy of the Amendment in the

underwriting file is a copy made from the microfilm.

5 amended as follows:

THE ANSWER TO QUESTION 4F IS CHANGED TO READ: “PAUL

REVERE”

Neither Dr. Goel nor the agent, Mr. Sharma, recalls the Amendment

or when it was signed. 4 But Provident did receive the signed

Amendment, and a copy remains in its underwriting file. 5 Moreover,

Dr. Goel retained the policy as issued and paid the monthly

premiums.

On October 26, 1996, Dr. Goel suffered a disabling injury to

his hand that prevented him from performing surgery. He later

s ought benefits under the Provident policy. During its

investigation of his claim, Provident discovered that Dr. Goel had

not cancelled his Paul Revere coverage. Provident therefore

elected to pay benefits under a reservation of rights.

On April 16, 1997, Provident filed a Complaint for Declaratory

Judgment and Other Relief seeking to rescind and cancel the6 Page 13 of the policy, under the heading “TIME LIMIT ON

CERTAIN DEFENSES,” provides tha t “[a]fter two years from the

Effective Date of this policy, no misstatements, except fraudulent

misstatements, made by you in the application for this policy will

be used to void the policy or to deny a claim for loss incurred or

disability that starts after the end of such two year period.”

6 disability policy and recover all benefits paid to Dr. Goel. In

its Complaint, Provident alleged that it issued the policy to Dr.

Goel “on the condition or promise of Goel that he would cancel his

Paul Revere coverage.” According to Provident, Dr. Goel’s failure

to cancel the Paul Revere policy rendered the Provident policy

“voidable.” Dr. Goel answered the Complaint and filed a

Counterclaim demanding damages from Provident for bad faith breach

of contract. Dr. Goel also invoked the incontestability provision

of the Provident policy 6 and raised affirmative defenses of waiver,

estoppel, and fraud. Provident denied Dr. Goel’s allegations in

its Answer to the Counterclaim.

On February 20, 1998, Dr. Goel filed a Motion for Partial

Summary Judgment on his contract claim; Provident responded three

days later with a Motion for Summary Judgment on its complaint. On

September 28, 1998, after hearing oral argum ent on the parties’

motions, the district court granted Provident’s motion and denied

Dr. Goel’s motion. In reaching its decision, the court relied on

the Amendment to Question 4(f) of Dr. Goel’s application and found

that Dr. Goel breached a condition precedent to coverage by failing

to cancel his Paul Revere policy. The district court reasoned that

the policy–-presented along with the Amendment to the application–-7 F ED

. R. C IV

. P. 60(b).

7

constituted a counter-offer by Provident that Dr. Goel accepted by

signing the Amendment, retaining the policy, and paying the

required premiums.

Following the entry of judgment, Provident filed a Motion to

Amend Final Judgement asking the district court to “spe cify the

amount of the Plaintiff’s recovery and the amount of interest it is

entitled to receive until the judgment is paid.” Dr. Goel later

filed a Rule 60(b) 7 Motion for Relief from Judgment, in which he

claimed to have “new evidence indicating that [he] never signed the

application amendment, but that his signature was forged. ” This

“new evidence” consisted of a report prepared by Mr. Frank Hicks,

a handwriting expert who concluded that Dr. Goel’s signature on the

Amendment was probably forged. On May 24, 1999, the court entered

an Amended Final Judgment ordering Dr . Goel to pay Provident

$274,413.38, plus post- judgment interest on this amount from

September 28, 1998, until paid, less an offset of $36,401.40 for

premiums paid. Dr. Goel filed a Notice of Appeal on June 22,

1999.

Although he had filed a Notice of Appeal from the Am ended

Final Judgment, Dr. Goel’s Rule 60(b) motion was still pending in

the distr ict court. In August 1999, the district court

“terminated” the motion, reasoning that Dr. Goel’s appeal rendered

the motion moot. Dr. Goel submitted a motion for reconsideration8 State Farm Fire & Cas. Ins. Co. v. Keegan , 209 F.3d 767, 768

(5th Cir. 2000) (citing Herrera v. Millsap

, 862 F.2d 1157, 1159

(5th Cir. 1989)).

9 Id. (quoting F ED

. R. C IV

. P. 56(c)).

10 F ED

. R. C IV

. P. 56(c).

8 of that ruling, contending that a Rule 60(b) motion should be

addressed on the merits rather than terminated as moot. The

district court agre ed with this contention. Therefore, on March

29, 2000, after full review and consideration of the motion, the

district court denied it on the merits. In addition to his appeal

from the Amended Final Judgment of June 22, 1999, Dr. Goel also

appeals from the denial of his Rule 60(b) motion.

II. SUMMARY JUDGMENT

A. Standard of Review

“ We review a district court’s award of summary judgment under

the same standards that the district court appl ied to determine

whether summary judgment was app ropriate.” 8 “ Summary judgment is

appropriate if the record discloses ‘that there is no genuine issue

as to any material fact and that the moving party is entitled to a

judgment as a matter of law.’” 9 In making such a determination,

t he district court must look to “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any.

. . .” 10 It therefore follows that “our

review is confined to an examination of materials before the11 Nissho-Iwai Am. Corp. v. Kline

, 845 F.2d 1300, 1307 (5th Cir.

1988) (citing Ingalls Iron Works Co. v. Fruehauf Corp.

, 518 F.2d

966, 967 (5th Cir. 1975)). See also Little v. Liquid Air Corp.

, 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc) (We are “limited

to the summary judgment record and the plaintiffs may not advance

on appeal new theories or raise new issues not properly before the

district court to obtain reversal of the summary judgment.”); 11

J AMES W M

. M OORE ET AL

., M OORE ’ S F EDERAL P RACTICE ¶ 56.41[3][c] (3d ed.

1997) (“As a general rule, arguments and evidence not presented in

the district court in connection with a summary judgment motion are

waived on appeal and the appellate court will be unable to consider

these materials in its review of the district court’s decision.”).

12 Fields v. City of S. Houston , 922 F.2d 1183, 1187 (5th Cir.

1991).

13 Cel otex Corp. v. Catrett , 477 U.S. 317, 324 (1986) (quoting

F ED

. R. C IV

. P. 56).

9 [district] court at the time the ruling was made; subsequent

materials are irrelevant.” 11

The party moving for summary judgment must establish that

there are no genuine issues of material fact. “Once the moving

party makes that showing, however, the burden shifts to the

nonmoving party to show that summary judgment is not appropriate.” 12

Thus, to defeat a motion for summary judgment, the nonmoving party

must “go beyond the pleadings and by her own affidavits, or by the

‘depositions, answers to interrogatories, and admissions on file,’

designate ‘specific facts showing that there is a genuine issue for

trial.’” 13 “ Credib ility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts

are jury functions, not those of a judge.

. . . The evidence of

the non-movant is to be believed, and all justifiable inferences14 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986).

15

4.(f) If any coverage is to be replaced by the

coverage applied for, the following coverage(s) will be

permanently cancelled within 30 days of the issue date or

effective date, whichever is later, of the insurance

coverage issued pursuant to this application.

Co. Name___________________ Amount $________________

10 are to be drawn in his favor.” 14

B. Analysis

On appeal, Dr. Goel raises four arguments as to why summary

judgment was inappropriate: (1) the Amendment is ambiguous and,

construed against Provident, does not support recission of the

policy; (2) a factual dispute exists as to whether Dr. Goel signed

the Amendment; (3) the district court’s analysis disregarded Dr.

Goel’s claims of waiver, estoppel, fraud, and bad faith; and (4)

the incontestab ility provision in the policy probibits Provident

from denying coverage.

(1) Ambiguity and Contract Construction

Dr. Goel contends that the language of Question 4(f) 15 on the

Provide nt application is ambiguous because it only asks for the

name of the policy to be cancelled “if” coverage is to be replaced;

it does not address the threshold issue of whether coverage will be

replaced. Thus, in his view, “[t]he particular wording of the

response [to Question 4(f )], even if amended, does not16 Appellant’s Opening Brief at 21-22.

17 See Burton v. Choctaw County , 730 So. 2d 1, 8 (Miss. 1997).

18 Home Ins. Co. v. Thunderbird, Inc.

, 338 So. 2d 391, 394 (Miss.

1976) (quoting 2 G EORGE J. C OUCH

, C OUCH ON I NSURANCE § 15 :93 (2d ed.

1959)).

19 Keith A. Rowley, Contract Construction and Interpretation:

From the “Four Corners” to Parol Evidence (A nd Everything in

Between)

, 69 M ISS

. L.J. 73, 181 (1999) (quoting Krebs v . Strange

, 419 So. 2d 178, 181 (Miss. 1982)).

20 501 So. 2d 416 (Miss. 1987).

11 unambiguously require cancellation of the Paul Revere policy.” 16

This ambiguity, according to Dr. Goel, required the district court

to construe the language in the insuran ce contract against

Provident and in favor of coverage.

Mississippi courts strictly construe any ambiguity in a n

insurance policy against the insure r. 1 7 A condition tending to

defeat a policy “must be expressed or so clearly implied that it

cannot be misconstrued.” 18 The fact remains, however, that

“insurance policies are contracts, and their construction and

interpretation ‘is according to the same rules which govern other

contracts.’” 19 In C herry v. Anthony, Gibbs, Sage

, 20 the Supreme

Court of Mississippi offered the following expl anation of those

rules:

The most basi c principle of contract law is that

contracts must be interpreted by objective, not

subjective standards. A court must effect a

determinat ion of the meaning of the language used, not

the ascertainment of some possible but unexpressed intent

of the parties. The mere fact that the parties disagree21 Id. at 419 (internal quotations and citations omitted). See

also Rowley, supra note 19, at 145-46 (“G enerally, Mississippi

courts will not consider evidenc e of surrounding circumstances

unless their ‘four corners’ analysis of the written agreement

suggests that the agreement is ambiguous, incomplete, or both.”).

22 Am. Guar. & Liab. Ins. Co. v. 1906 Co.

, 129 F.3d 802, 805 (5th

Cir. 1997) (citing Am. States In s. Co. v. Nethery , 79 F.3d 473,

475 (5th Cir. 1996) & Aero Int’l, Inc. v. United States Fire Ins.

Co. , 713 F.2d 1106, 1109 (5th Cir. 1983)).

23 Brown v. Hartford Ins. Co.

, 606 So. 2d 122, 126 (Miss. 1992).

24 Interstate Life & Accident Ins. Co. v. Flanagan

, 284 So. 2d

33, 36 (Miss. 1973).

25 Id

.

12 about the meaning of a provision of a contract does not

make the contract ambiguous as a matter of law. Parole

[sic] evidence as to surrounding circumstances and intent

may be brought in where the co ntract is ambiguous, but

where

. . . the contract

. . . [is] unambiguous it has no

place. The parties are bound by th e language of the

instrument. 21

Thus, “[u]nder Mississippi contract law, if an insurance policy is

unambiguous, its terms must b e given their plain meaning and

enforced as written.” 22 Furthermore, “[w]hen construing a contract,

. . . [the court must] read the contract as a whole, so as to give

effect to all of its clauses.” 23

Mississippi law also provides that an application for

insurance is simply an offer to contract. 24 The potential insurer

is free to accept the offer as written or it may issue a policy

different from the one requested in the application

. 25 In the

latter case, the policy itself is a counter-offer, and “the rule is

that after such a counter-offer, the

. . . [applicant] must accept26 Id.

27 R. at 622 (paragraph break omitted).

28 Rowley, supra note 19, at 184 (citing Flanagan

, 284 So. 2d at

35).

13 or reject the policy issued according to the terms of the

insurer.” 26

The district court applie d these principles to the facts of

this case in the following manner:

[T]his court is s atisfied that Goel’s application in

which he requested $15,000.00 a month in coverage in

addition to ( i.e. , without canceling) his existing Paul

Revere coverage was an offer. Provident declined to

accept his offer, as it had in the past. When Provident

issued Goel a policy with an amendment to the application

that required him to cancel his Paul Revere coverage, the

policy constituted a cou nter-offer. The evidence is

undisputed that Goel signed the amendment, retained the

policy and paid the premiums required by the policy, and,

by doing so, he accepted the policy as written by

Provident. Looking at the “four corners” of the

Provident policy, the court finds th at the policy

unambiguously required that Goel cancel his Paul Revere

coverage as an express condition and consideration for

receiving the Provident policy. 27

We agree with the district court. “[T]he application attached

to or giving rise to an insurance policy is a part of the insurance

contract, and the policy should be construed together with the

application.” 28 Here, the insurance contract includes the policy,

Dr. Goel’s application, and the Amendment to the application.

Reading the contract as a whole, we find that it is unambiguous;

its terms must therefore be given their plain meaning and enforced

as written. Turning, with this obligation in mind, to Question29 M ISS

. C ODE A NN . § 83-9-11(2) (1972).

30 Nissho-Iwai , 845 F.2d at 1307.

14 4(f), it becomes clear that the words “If any coverage is to be

replaced” mean that information is re quired only from those

applicants who are replacing existing coverage. Regardless, then,

of Dr. Goel’ s subjective intent, by responding “Paul Revere” to

Question 4(f), he agreed to permanently cancel his Paul Revere

coverage within 30 days of the effective date of the Provident

p olicy. Any other construction would render Question 4(f)

m eaningless. Thus, we reject Dr. Goel’s contention that the

language of and amended response to Question 4(f) is ambiguous, and

we decline to reverse the district court on this ground.

(2) Validity of Dr. Goel’s Signature on the Amendment

Mississippi law prohibits the alteration of a written

application for insurance without the “ written consent” of the

applicant. 29 Dr. Goel asserts that he did not sign the Amendment

to his application, and, as a consequence, the Amendment

constitutes an alteration without his written consent in violation

of Mississippi law. In determining whether a genuine issue of

material fact exists with respect to the validity of Dr. Goel’s

signature on the Amendment so as to preclude summary judgment, we

may only consider evidence in the record at the summary judgment

stage. 3031 Despite his lack of recall, in response to Provident’s motion

for summary judgment, Dr. Goel stated that in his “best judgment,”

the Amendment was “probably executed in the event Provident decided

to write the entire $25,000.00 coverage.” R. at 573.

32 R. at 619.

15 On summary judgment, Dr. Goel stated that while the signature

looked like his, he did not remember signing the Amendment. 31 The

district court noted that Dr. Goel “did not deny that he signed the

amendment in his response to plaintiff’s motion for summary

judgment. Defense counsel also admitted at oral argument that Goel

signed the copy of the amendment that was returned to Provident.” 32

In Dr. Goel’s deposition, when asked about the Amendment to the

application changing his answer to Question 4(f) to read “Paul

Revere,” he did not allege forgery or fraud:

Q. Okay. Had you ever seen [the Amendments] before?

A. I don’t remember seeing them before.

Q. All right. Is that your signature on there?

A. Yes. It’s a photocopy of my signature.

Q. It’s a what?

A. This is a photocopy of my signature.

Q. Well, this--the document is a photocopy?

A. Yes.

....

Q. Okay. Is that your handwriting [on the Amendment]

where it says “Signed at Jackson, Mississippi this33 R. at 718-20.

16 26th day of June”?

A. Yes, that’s my handwriting.

Q. Okay. Well, as we sit here today, do you have any

question in your mind whether or not you actually

got those documents and signed them at some point?

A. Well, when these documents came unsigned with my

policy, I d id not pay attention one way or the

other. I just had a policy. I briefly looked at

it. I put it in my file and forgot about it. I

thought I have [sic] coverage and went my way. 33

The only instance where Dr. Goel denied signing the Amendment

was in his Answer to Provident’s Complaint For Declaratory Judgment

and Other Relief. Paragraph 7 of Provident’s Complaint states, in

part: “On or about June 26, 1994, Goel agreed , by a signed

amendment to his application, that he would cancel his Paul Revere

coverage within 30 days of the issue date or effective date of his

Provident policy.” Correspondingly, Paragraph 7 of Dr. Goel’s

Answer states, in full, that “[t]he allegations in Paragraph 7 are

denied.” Not until he submitted his Rule 60(b) motion did Dr. Goel

resurrect this assertion. Indeed, the above general denial is the

only portion of the record cited by Dr. Goel in his appellate brief

to support his current claim that he alleged forgery throughout the

course of this litigation. After an exhaustive search of the34 Anderson , 477 U.S. at 256.

35 10A C HARLES A. W RIGHT ET AL

., F EDERAL P RACTICE AND P ROCEDURE § 2712, at

211 (3d ed. 1998).

36 Id.

17 record, we find that at no time prior to the entry of summary

judgment did Dr. Goel submit evidence demonstrating that he did not

sign the Amendment.

Even if Dr. Goel had alleged forgery and directed the district

court to his Answer in support of this contention, such a general

denial in an original pleading is insufficient to create an issue

of material fact. “ Rule 56(e) itself provides that a party

opposing a properly supported motion for summary judgment may not

rest upon mere allegation or denials of his pleading, but must set

forth specific facts showing that there is a genuine issue for

trial.” 34 “[T]he apparent existence of a factual dispute based on

a denial in the answer or an allegation in the complaint does not

automatically defeat a Rule 56 motion. If it did, the rule could

be rendered nugatory by clever pleading.” 3 5 In fact, the purpose

of the 1963 revision to Rule 56(e) was to pr event the nonmoving

party from merely relying on his pleadings when the moving party

supported his motion for summary judgment with affidavits and other

evidence. 36

In sum, to defeat Provident’s motion for summary judgment, Dr.

Goel was required to “present affirmative evidence” and “set forth37 Anderson , 477 U.S. at 256-57.

38 See Ratner v. Young , 465 F. Supp. 386, 389 n.5 (D.V.I. 1979)

(“A non-movant cannot rely upon his own unverified pleading to

contradict factual matters properly before the court in support of

the motion [for summary judgment].”).

39 Dr. Goel further attempts to create a factual issue regarding

the Amendment by contending that irregularities concerning the date

of the Amendment and Provident’s destruction of the original policy

preclude summary judgment. Because we find no genuine issue of

material fact as to the validity of Dr. Goel’s signature, we also

find th at the date discrepancy and Provident’s internal document

management procedures do not render summary judgment inappropriate.

Indeed, Provident concedes that the date on the Amendment, June 26,

1994, is incorrect because the Amendment was not printed until June

28, 19 94. But this issue is neither disputed nor material, and

therefore it does not preclude summary judgment. Furthermore, the

fact that Provident’s physical copy of the Amendment was

microfilmed and then destroyed does not constitute a genuine issue

of material fact. Although the facts and legitimate inferences

therefrom are to be viewed in a light most favorable to Dr. Goel,

nefarious intention on the part of Provident is not a legitimate

infere nce that can be drawn from its document management

procedures.

18 specific facts showing that there [wa]s a genuine issue for

trial.” 37 D r. Goel’s unsworn Answer to Provident’s complaint is

insufficient to satisfy this burden. 38 We therefore refuse to

disturb the district court’s ruling on this ground. 39

(3) “Four Corners,” Waiver, Estoppel, Fraud, and Bad

Faith

Dr. Goel next argues in his brief that the district court’s

“four corners” analysis disregarded substantial evidence of

knowledge, bad faith, and inequitable conduct by Provident

supporting Dr. Goel’s claims of waiver, estoppel, fr aud, and bad40 Rowley, supra note 19, at 86. S ee generally Pursue Energy

Corp. v. Perkins , 558 So. 2d 349 (Miss. 1989).

41 Gladney v. Paul Revere Life Ins. Co. , 895 F.2d 238, 241 (5th

Cir. 1990) (citing Flanagan , 284 So. 2d at 36).

19 faith. As a preliminary matter, we reject Dr. Goel’s contention

that the district court e rred in conducting a “four corners”

a nalysis of the insurance contract. The prevailing method of

contractual construction and interpretation under Mississippi law

requires courts to make a threshold finding that the “four corners”

of the instrument reveal some ambiguity before resorting to other

interpretational aids. 40 Employing this method, the district court

c orrectly found the insurance contract to be unambiguous and

enforced its terms as written. In view of our earlier

determination of the plain meaning of Dr. Goel’s contract with

Provident, his scattershot allegati ons of inequitable conduct by

Provident are unpersuasive.

Although Dr. Goel ident ifies fraud and bad faith as grounds

for his appeal, he does not discuss the elements required to

establish these claims. Moreover, his contention that “Mr.

Sharma’s actions in delivering a policy that differed materially

from the one requested by Goel” constitute substantial evidence of

bad faith that is imputed to Provident through agency principles

further ignores Mississippi law. “In Mississippi, an insurer is

under no duty to insure every applicant and is in fact free to

state the terms upon which insurance may be obtain ed.” 4 1 Thus,42 See supra Part II.B.(1).

43 See Nissho-Iwai , 845 F.2d at 1307.

44 Cherry , 501 So. 2d at 419.

45 Hicks v. Bridges , 580 So. 2d 743, 746 (Miss. 1991).

20 Provident was free to make a counter-offer to Dr. Goel upon receipt

of his application. 42 Finally, to the extent that Dr. Goel invites

us to ignore the summary judgment record and consider his new

suggestion that Provident forged his signature on the Amendment, we

decline the invitation. 43 Because Dr. Goel failed to present

affirmative evidence of fraud and bad faith to the district court,

these claims do not preclude summary judgment.

Dr. Goel’s wa iver and estoppel arguments also lack merit.

Knowledge of the contents of an insurance policy is imputed to an

insured as a matter of law. 44 Moreover, “[a] person cannot avoid

a signed, written contrac t on the grounds that he did not read

it.” 45 Despite the clarity of these bedrock principles, Dr. Goel

asserts that he never intended to cancel his Paul Revere coverage.

He further contends that Provident waived, or is estopped from

asserting, the condition precedent to coverage because Mr. Sharma

possessed knowledge, imputable to Provident, that Dr. Goel would

not cancel his Paul Revere policy.

“It is a long-settled rule of law in Mississippi that the

doctrines of waiver and estoppel may not operate to create coverage46 Pongetti v. First Continental Life & Accident Co.

, 688 F.

Supp. 245, 248 (N.D. Miss. 1988) (citing Mississippi Hosp. & Med.

Serv. v. Lumpkin , 229 So. 2d 573, 576 (Miss. 1969)).

47 Id. (citing Morris v. Am. Fid. Fire Ins. Co. , 173 So. 2d 618

(Miss. 1965)).

48 481 So. 2d 764 (Miss. 1985).

49 Id. at 767.

21 or expand existing coverage to risks expressly excluded.” 46 But Dr.

Goel relies o n a “counterpart to the rule just stated: that a

forfeiture provision may be waived.” 4 7 The Supreme Court of

Mississippi has construed conditions precedent as forfeiture

provisions. For example, in S outhern United Life Insurance Co. v.

Caves

, 48 the agent knew that a credit life insurance applicant had

a serious heart condition at the time he completed the application.

The policy provided, as a condition precedent to coverage, that the

insured had to be in insurable health at the time of issuance.

When Mr. Caves died of a heart attack, the insurer discovered that

he did not meet the condition precedent and therefore rejected his

widow’s claim. The court found that the agent “accepted payment of

the premium knowing of the serious pre-existing condition of the

insured which sh e failed to communicate to the company. As a

matter of law, this knowledge was imputed to the principal,

Southern United. The condition of insurability was effectively

waived and the acts are binding upon the company.” 49

A critical distinction exists between Caves and the present50 3 L EE R. R USS & T HOMAS F. S EGALL A , C OUCH ON I NSURANCE 3 D § 49:5, at

49-10 (1995).

51 See Gladney , 895 F.2d at 241.

22 matter. While the agent in Caves possessed knowledge of existing

facts on whi ch the insurer would have based a refusal to issue

coverage, the record in this case contains no indication of similar

misconduct on the part of Mr. Sharma. Put differently, Mr. Sharma

did not fail to inform Provident of an existing circumstance or

condition concerning Dr. Goel that the company woul d have taken

into accoun t in deciding whether to issue a policy. It follows,

then, that “an insurance company is not bound by the knowledge of

its soliciting agent as to the future intention of an insured in

regard to violation of any conditions of the policy. . . .” 5 0 A

contrary conclusion would disregard the c ardinal principles of

Mississippi contract law. Provident was free to condition coverage

on Dr. Goel’s permanent cancellation of his existing policy. 51 Dr.

Goel agreed to this condition in his amended response to Question

4(f) on the Provident appli cation. Even if he never intended to

cancel his Paul Revere coverage within 30 days of the effective

date of the Provident policy , and even if Mr. Sharma knew this,

“our concern is not nearly so much what the parties may have

intended as it is with what they said, for the words employed are

by far the best resource for ascertaining intent and assigning52 UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc. , 525 So.

2d 746, 754 (Miss. 1987).

53 Gladney , 895 F.2d at 242.

54 Mississippi law requires policies issued for delivery in the

state to contain this or a simi larly worded provision. S ee M ISS

. C ODE A NN . § 83-9-5(1)(b) (1972).

23 meaning with fairness and accuracy.” 52 Because Dr. Goel promised

to cancel his Paul Revere coverage after rec eiving the Provident

polic y, the equitable doctrines of waiver and estoppel do not

permit him to “benefit from his own dereliction.” 53

(4) The Incontestability Provision

Dr. Goel argues that the two-year incontestability provision

in the Provident policy prohibits the company from rescinding the

policy. The provision states that “[a]fter two years from the

Effective Date of this policy, no misstatements, except fraudulent

misstatements, made by you in the application for this policy will

be used to void the policy or to deny a claim for loss incurred or

disab ility that starts after the end of such two year period.” 5 4

The district court found this provision inapplicable:

This is not a case of a mere misstatement in the

application which the law deems waived if not asserted

within t wo years. Provident seeks rescission because

Goel’s failure to cancel his Paul Revere coverage

constitutes a failure of consideration and/or a breach of

an express con dition upon which the policy was issued.

It is a breach which goes to the heart of their

agreement. If Goel had not agreed to the amendment,

there would have been no meeting of the minds and,55 R. at 622-23.

56 Cockerham v. Kerr-McGe e Chem. Corp. , 23 F.3d 101, 104 (5th

Cir. 1994).

57 Bank of Shaw v. Posey , 573 So. 2d 1355, 1360 (Miss. 1990).

24 therefore, no agreement. 55

Dr. Goel contends that the district court erred in failing to

view the Amendment as a misstatement. We find, however, that his

reliance on the incontestability provision is misplaced. Under

Mississippi law, a misstatement or a misrepresentation concerns

past or present facts, not promises of future conduct. 56 Only when

a promise of future conduct is made with the present intent not to

perform can such a promise constitute a misrepresentation. 57 In his

amended response to Question 4(f) on his application, Dr. Goel

promised to cancel his Paul Revere policy after receiving his new

coverage. Because this is a promise of future conduct, it does not

qualify as a misstatement under Mississippi law unless it was made

with the present intent not to perform. But Dr. Goel asserts that

if he signed the Amendment, he di d indeed do so with the present

intent not to perform. We find this assertion incredible for two

reasons. First, it runs headlong into the fraudulent

misrepresentation exception to the incontestability provision.

Second, in his deposition, Dr. Goel testified that he does not

remember signing the Amendment. We therefore cannot take seriously

his self-serving characteriza tion of his own mental state at the58 New Hampshire Ins. Co. v. Martech USA, Inc.

, 993 F.2d 1195,

1200 (5th Cir. 1993) (citing Brown v. Petrolite Corp.

, 965 F.2d 38

(5th Cir. 1992)).

59 Although the district court did not provide a s tatement of

reasons as to why it denied relief, it did not blithely dismiss Dr.

Goel’s motion without consider ation. The district court’s order

denying the motion states that the court “reviewed and fully

considered the briefs of the parti es regarding the defendant’s

motion to be relieved from final judgment in this case” and

contains reasons as to why the court considered the motion at all,

as it had originally dismissed the motion as moot because Dr. Goel

had already filed a notice of appeal.

60 767 F.2d 125, 133 (5th Cir. 1985).

25 time he engaged in an act for which he has no recollection.

We conclude that Dr. Goel has failed to demonstrate that

summary judgment was inappropriate.

III. RULE 60(B)

A. Standard of Review

“The decision to grant or deny 60(b) relief lies in the sound

discretion of the district court and will be reversed only for an

abuse of that discretion.” 58

B. Analysis

The linchpin of Dr. Goel’s appeal from the denial of his Rule

60(b) motion is his argument that because the district court did

not give reasons for its order, 59 this court should remand the case

for further evaluation. Relying on this court’s decision in

Schwarz v. Folloder

, 60 Dr. Goel contends that the district court

must give reasons for its decision so that the appellate court can61 Id. at 129.

62 Id. at 130.

63 Id.

64 Id. at 131.

26 exercise “meaningful review.” The case on which he relies did not,

however, establish the per se rule that Dr. Goel currently

advocates. S chwarz in volved an appeal by a prevailing defendant

who sought costs and attorney’s fees. The district court denied

the defendant’s claims “without holding an evidentiary hearing,

issuing an opinion, or making any written findings of fact or

conclusions of law.” 61 R emand was appropriate because it was

unclear whether the district court recognized that its dismissal of

the plaintiff’s suit with prejudice meant that the defendant was a

prevailing party–-a prerequisite to recovering costs. 62 T his court

noted that “a dismissal with prejudice is tantamount to a judgment

on the merits” and concluded that the defendant, as the clearly

prevailing party, should ordinarily have been entitled to costs. 63

This court further noted that in view of the district court’s

silence, “it [wa]s not even possible to infer from the court’s

order whether the court erroneously believed that [the defendant]

was not a prevailing party, or whether it believed that [the

defendant], despite being a prevailing party, was not entitled to

costs for other reasons.” 64 F inding that the defendant also “made

a colorable claim for attorney’s fees [by] arguing that the65 Id. at 133.

66 958 F.2d 200 (7th Cir. 1992).

67 Id. at 202.

68 Id. at 203.

27 appellees knew or should have known of the falsity of essential

factual allegations in their complaint,” the court concluded that

“[w]here a district court fails to explain its decision to deny

attorney’s fees, we do not know whether the decision was within the

bounds of discretion or was based on an erroneous legal theory.” 65

Other cir cuit courts confronting the failure of a district

court to assign reasons for a ruling have refused to find an abuse

of discretion where the merits of the appellant’s claim can be

easily addressed. Thus, the appellant must establish a colorable

claim before remand is justified. For example, in B arnhill v.

Doiron

, 66 an appel lant argued that the district court’s denial of

his motion for appointment of counsel without assigni ng reasons

constituted a per se abuse of discretion. The Seventh Circuit

rejected the petitioner’s per se argument as having “no basis in

law” and then evaluated the substance of the petitioner’s motion. 67

B ecause the “legal issues raised by [the petitioner’s] complaint

[we]re straightforward and readily comprehensible” and “[t]he

assistance of counsel would have added little–-if indeed anything–-

to his understanding of the relevant issues,” the court found no

abuse of discretion. 6869 Schwarz , 767 F.2d at 133.

70 F ED

. R. C IV

. P. 60(b)(2).

71 Martech

, 993 F.2d at 1200-01 (quoting Brown

, 965 F.2d at 50).

72 12 M OORE ET AL

., supra note 11, ¶ 60.68[1].

28 Although we agree that district courts should provide

statements of reasons for their decisions, as “[a] s tatement of

reasons is one of the handmaidens of judging,” 69 because the legal

issues raised by Dr. Goel’s appeal of the denial of his Rule 60(b)

motion are straightforward and readily comprehensible, we decline

to hold that the district court’s dismissal of Dr. Goel’s motion

without the articulation of reasons is a per se abuse of discretion

demanding remand, and we undertake a review of the merits of his

motion to determine whether he raises a colorable claim.

“[T]he court may relieve a party . . . from a final judgment

. . . for

. . . newly discovered ev idence which by due diligence

could n ot have been discovered in time to move for a new trial

under Rule 59(b).” 70 “To succeed on a motion brought under 60(b)(2)

based on newly discovered evidence, the movant must demonstrate (1)

that it exe rcised due diligence in obtaining the information a nd

(2) ‘the evidence is mat erial and controlling and clearly would

have produced a different result if presented before the original

judgment.’” 71 “The only issues on an appeal of a Rule 60(b) motion

are: the propriety of the denial of relief

. . . an d whether the

court abused its discretion in denying relief.” 7273 R. at 743.

29

Dr. Goel contends that his Rule 60(b) motion presented

substantial new evidence questioning the validity of the signature

on the Amendment to his Provident application. In support of his

motion, Dr. Goel submitted an affidavit claiming that he could not

have signed the Amendment because he was at a conferenc e in San

Francisco from June 24, 1994 to June 30, 1994. Dr. Goel stated

that he did not raise this claim ear lier because he did not

remember the San Francisco trip until his daughter reminded him of

it in January of 1999. Dr. Goel also submitted the unsworn report

of a handwriting specialist that, based on a comparison of the

signature on the Amendment with the signatures on several business

checks given to him by Dr. Goel, concludes that the evidence,

although falling short of a “‘virtually certain’ degree of

confidence,” does “point[] rather strongly toward the questioned

and known writing s not having been written by the same

individual.” 73

Dr. Goel has not shown that the evidence in his affidavit and

in the handwriting report is newly discovered evidence that by due

diligence could not have been discovered in time to move for a new

trial. “Unexcused failure to produce the relevant evidence at the

original trial can be sufficient without more to warrant denial of74 Kentucky Fried Chicken Corp. v. Diversified Packaging Corp.

,

549 F.2d 368, 391 (5th Cir. 1977) (citing AG Pro, Inc. v. Sakraida

, 512 F.2d 141, 143-44 (5th Cir. 1975), rev’d on other grounds , 425

U.S. 273 (1976)). S ee also Longden v. Sun derman , 797 F.2d 1095,

1103 (5th Cir. 1992).

75 In re United States , 565 F.2d 173, 176 (1st C ir. 1977).

Although the court in In re United States concluded that the

defendant in a criminal case could not, after a verdict, obtain a

new trial under F ED

. R. C RIM

. P. 33 by introducing a document he had

signed four years earlier, we find the reasoning of the First

Circuit persuasive in this case, a civil challenge to the court’s

judgment under Rule 60(b). S ee also United States v. Douglas

, 874

F.2d 1145, 1163 n.32 (7th Cir. 1989) (noting that the defendant’s

attempt, after trial, to characterize subsequently released

government reports “detailing his role as a[] [police] informant as

‘newly discovered’ is somewhat dising enuous, [as] . . . [a]n

individual is expected to remember his own actions

. . .”),

overruled on other grounds

, United States v. Durrive

, 902 F.2d

1221, 1225 (7th Cir. 1990).

30 a rule 60(b) motion.” 74 Moreover, the failure to remember or

discover one’s own actions after having forgotten th em does not

reflect the exercise of due diligence. After all, “[w]ere the

belated recalling of facts that were once well known and since

forgotten to qualify as ‘newly discovered,’ the teeth of the rule

would be substantially blunted.” 75 The key to Dr. Goel’s motion is

his contention that his signature on the Amendment was forged. But

Dr. Goel had access to the copy of the signed Amendment long before

summary judgment was entered against him, and the importance of the

Amendment to the outcome of this case was evident from the

beginning. Thus, Dr. Goel’s failure both to inquire into his own

whereabouts during the last week of June 1994 and to consult with

a handwriting expert prior to summary judgment falls short of the76 12 M OORE ET AL

., supra note 11, ¶ 60.42[6].

77 11 M OORE ET AL

., supra note 11, ¶ 56.14[2][c]. C f. Nissho-Iwai

, 845 F.2d at 1306 (“It is a settled r ule in this circuit that an

unsworn affidavit is incompetent to raise a fact issue precluding

summary judgment.”). See also Duplantis v. Shell Offshore, Inc.

, 948 F.2d 187, 191 (5th Cir.1991) (expert letter not considered for

summary judgment purposes where it is unsworn and fails to indicate

expert's qualifications).

31 requirements of due diligence.

Additionally, commentators have described as “self-evident”

the requirements that newly discovered evidence be “both admissible

and credible,” as “[t]here is no reason to set aside a judgment on

the basis of evidence that could not be admitted at a new trial or,

if admitted, would be unconvincing.” 76 The handwriting report

submitted with Dr. Goel’s Rule 60(b) motion would not be properly

considered in evaluating the motion f or summary judgment, as the

report concerning the authenticity of Dr. Goel’s signature on the

Amendment is unsworn. “Unsworn expert reports . . . do not qualify

as affidavits or otherwise admissible evidence for [the] purpose of

Rule 56, and may be disregarded by the court when ruling on a

motion for summary judgmen t.” 7 7 A s for Dr. Goel’s affidavit, his

contention that he was out of town on June 26, 1994 is unavailing

as Provident does not dispute that the Amendment bears an incorrect

date. It is hornbook law that “[t]he fact that a written contract

is undated or even misdated does not necessarily affect its78 17 C.J.S. Contracts § 74 (1999). “So, as between the parties,

it is usually immaterial that the contract is not executed on the

day of its date.

. . .” I d. (citing Thornton Bros., Inc. v. Gore

, 172 So. 2d 425 (Miss. 1965)).

79 11 M OORE ET AL

., supra note 11, ¶ 56.14[1][c]. S ee also Jameson

v. Jameson

, 1 76 F.2d 58, 60 (D.C. Cir. 1949) (“Belief, no matter

how sincere, is not equivalent to knowledge.”) ; 10B W R IGHT ET AL

.,

supra note 35, § 2738, at 346-56 (“[U]ltimate or conclusory facts

and conclusions of law, as well as statements made on belief or ‘on

information and belief,’ cannot be utilized on a summary-judgment

motion.”).

80 Martech , 993 F.2d at 1201.

32 validity. ” 78 The following is the only statement in Dr. Goel’s

affidavit that could have possibly precluded summary judgment: “I

now firmly believe that I did not sign the amendment. I know that

I did not back-date the amendment as Provident accuses.” This

assertion, however, is also of questionable admissibility, as “[a]

statement that an affidavit is based on the affiant’s personal

belief does not automatically satis fy the requirement [of Rule

56(e)] that the affidavit be based on personal knowledge.” 7 9 But

given the failu re to establish due diligence in discovering this

evidence, further consideration of this question is not required.

Finally, even if we were to conclude that Dr. Goel’s evidence

satisfi es the due diligence and admissibility requirements, we

express doubt as to whether th e evidence is “material and

controlling and clearly would have produced a different result if

presented before the original judgment.” 80 Because Dr. Goel, unlike

the petitioners in Schwarz

, has made no “colorable claim” for33

relief under Rule 60(b), we decline to find that the district court

abused its discretion and we affirm the district court’s ruling on

this issue.

III. CONCLUSION

For the foregoing reasons, we AFFIR M the district court’s

grant of summary judgment to Provident and its denial of Dr. Goel’s

Rule 60(b) motion.

AFFIRMED.