Monaghan, et al v. Adkins, et al

1Pursuant to 5TH CIRCUIT RULE 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
2For simplicity, this opinion uses “Monaghan” to refer to
the complaints of Wayne and Julia Monaghan. Wayne was the
policyholder under the policy at issue and Julia was the
1
United States Court of Appeals
Fifth Circuit
F I L E D
December 1, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 04-60336
Summary Calendar
_____________________
WAYNE E. MONAGHAN; JULIA E. MONAGHAN,
Plaintiffs - Appellants,
versus
TERRY ADKINS; AMERICAN GENERAL LIFE AND
ACCIDENT INSURANCE COMPANY,
Defendants - Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
District Court Cause No. 02-CV-452-JAD
_________________________________________________________________
Before JONES, BARKSDALE and PRADO, Circuit Judges.1
PRADO, Circuit Judge.
This appeal arises from a dispute between the appellants,
Wayne E. Monaghan (Monaghan) and Julia E. Monaghan, and the
appellee, American General Life and Accident Insurance Company
(American General), regarding the cancellation of a life
insurance policy issued to Monaghan by American General.2 After

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beneficiary.
3See Harken Exploration Co. v. Sphere Drake Ins. PLC, 261
F.3d 466, 470-71 (5th Cir. 2001).
2
discovering that his policy had been canceled, Monaghan filed his
original complaint in Mississippi state court, alleging that
American General failed to notify him about the impending
cancellation of the insurance policy for want of payment.
American General removed the case to the United States District
Court for the Northern District of Mississippi on the basis of
diversity of citizenship jurisdiction. With the consent of the
parties, the matter was referred to a United States Magistrate
Judge for disposition.
Following discovery, American General moved for summary
judgment. American General argued that Monaghan’s claims arising
from the alleged failure to provide notice should be dismissed
because Monaghan could not rebut the presumption of delivery
established under Mississippi state law. The magistrate judge
granted the motion and dismissed Monaghan’s claims. Monaghan
challenges that action in this appeal.
Standard of Review
This court reviews the magistrate judge’s grant of summary
judgment de novo, applying the same standards as the magistrate
judge.3 Summary judgment is proper when there is no genuine issue
as to any material fact and the movant is entitled to judgment as

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4See id. at 471.
5See id.
6Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting
FED. R. CIV. P. 56).
3
a matter of law.4 In considering summary judgment, the court must
view the evidence and all reasonable inferences drawn therefrom
in the light most favorable to the non-movant.5 To survive a
motion for summary judgment, the nonmoving party must go beyond
the pleadings and designate specific facts showing a genuine
issue for trial by way of personal affidavits, or by the
“depositions, answers to interrogatories, and admissions on
file.”6
Whether Dismissal Was Proper
The magistrate judge dismissed Monaghan’s claims, in part,
because Monaghan failed to raise a genuine issue of material fact
about whether American General sent him notice that his policy
was due to lapse. The magistrate judge reasoned that although it
appeared that American General sent the notice to an address that
was no longer in use, Monaghan never informed American General
that his address had changed.
On appeal, Monaghan maintains that the magistrate judge
improperly presumed that Monaghan received American General’s
notice. Monaghan complains that issues of material fact exist
about whether he received the notice, about the likelihood of

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7The parties agree that Mississippi law applies to this
diversity action.
8See Carter v. Allstate Indem. Co., 592 So. 2d 66, 70 (Miss.
1991).
9Thames v. Smith Ins. Agency, Inc., 710 So. 2d 1213, 1216
(Miss. 1998).
10See Carter, 592 So. 2d at 75.
11Id. at 75.
12Id.
4
actual delivery of a notice mailed to his previous address, and
about when his address actually changed.
Under Mississippi law,7 an insurer is not required to prove
that its insured received a lapse notice to prevail in a lawsuit
about policy cancellation.8 Rather than requiring an insurer to
prove receipt of notice, Mississippi law establishes that where
notice is sent to the insured via mail, “[t]here is a presumption
that mail deposited, postage prepaid and properly addressed is
timely delivered to the person addressed.”9 Proof of mailing
operates to establish a rebuttable presumption that notice
reached its intended destination (that is, the insured’s last
known address).10 An insured who maintains he never received such
notice may rebut the presumption by presenting “countervailing
evidence of sufficient weight to rebut the presumption that it
was received.”11 “But mere denial of receipt is insufficient to
create a triable issue of fact.”12
To prove that it notified Monaghan that his policy was due

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5
to lapse, American General presented an affidavit by employee
Karen Hite. In the affidavit, Hite attested that American
General’s records indicate that a lapse notice was sent to
Monaghan by United States mail on January 17, 2001. Although the
summary judgment evidence indicates that Monaghan’s address
changed at some point after the policy was issued, Hite’s
affidavit makes clear that American General acted diligently in
seeking to ascertain Monaghan’s address. In her affidavit, Hite
explained that American General confirms the addresses of its
policyholders by participating in the National Change of Address
program sponsored by the United States Postal Service. Hite
stated that, as part of that program, American General provides
the Postal Service with a file listing the last known mailing
addresses for American General’s policyholders, and that the
Postal Service then provides American General with address change
information for any policyholder whose address changed since the
last regularly scheduled file review. Hite further attested that
the Postal Service notified American General that Monaghan’s
address changed on January 30, 2000 and that American General was
not notified of any further change of address. This evidence
shows that American General attempted to ascertain Monaghan’s
proper mailing address and thus took “whatever steps are
reasonably necessary to ensure that a cancellation notice

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13Id. at 75.
14Thames, 710 So.2d at 1216.
15Carter, 592 So.2d at 75.
16Id. at 75.
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actually reaches the insured’s last known address.”13 As a
result, American General established its entitlement to the
presumption of delivery arising under Mississippi law.
With the presumption of notice established—“that mail
deposited, postage prepaid and properly addressed is timely
delivered”14—the burden shifted to Monaghan to rebut the
presumption with “countervailing evidence of sufficient weight.”15
Monaghan, however, failed to present evidence to rebut the
presumption. Instead of presenting evidence that the mailing
address American General used was incorrect, Monaghan relied upon
the affidavit of the Postmaster of Tupelo, Mississippi, which
indicates only that local address changes took place between 1995
and 2001. This affidavit, however, does not constitute evidence
that American General did not properly mail the lapse notice to
Monaghan. Ultimately, Monaghan did little more than deny receipt
of the notice—an assertion which is “insufficient to create a
triable issue of fact.”16 Despite his arguments about the
existence of fact questions, Monaghan did not present evidence to
rebut the presumption.

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7
Conclusion
Because Monaghan failed to introduce evidence sufficient to
rebut the presumption of delivery of notice arising under
Mississippi law, he failed to raise a genuine issue of material
fact about whether American General sent him notice that his
policy was due to lapse. Accordingly, the magistrate judge did
not err by dismissing Monaghan’s claims. Consequently, the court
AFFIRMS the judgment of the magistrate judge. Having reached
this determination, the court need not reach Monaghan’s other
argument.
AFFIRMED.

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