Summary Calendar KAFAREN FAIRLEY v. Denise Crowell, Dale Harris and Continental Casual Company

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 9, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60884
Summary Calendar
KAFAREN FAIRLEY,
Plaintiff-Appellant,
v.
DENISE CROWELL, DALE HARRIS AND CONTINENTAL CASUAL COMPANY,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Mississippi
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Kafaren Fairley challenges the district court’s grant of
summary judgment in favor of Denise Crowell, Dale Harris, and
Continental Casualty Company (“Continental”). Fairley argues that
Crowell, Harris, and Continental acted in bad faith in handling her
workers compensation claim. We AFFIRM.
Fairley was working as an assembly line worker in Hattiesburg,

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Mississippi, when she suffered a compensable injury, ultimately
diagnosed as bilateral carpal tunnel syndrome. She reported her
condition to her employer, Manpower, Inc., (“Manpower”) which
subsequently reported the injury to Continental.
An adjuster for Continental contacted Fairley on December 2,
1999, and she began receiving temporary total disability (“TTD”)
benefits as of December 10, 1999, continuing until February 21,
2000, when she briefly returned to work at the American Red Cross.
She left Red Cross in May, 2000, and began receiving TTD again as
of June 5, 2000, for the period beginning May 26, 2000.
Continental sent Fairley to a doctor for an evaluation in May,
2000, and Fairley began seeing that doctor as her treating
physician. He performed two surgeries on Fairley in May and June
of 2000 to treat the carpal tunnel syndrome, and prepared a
document on August 28, 2000, indicating that she could return to
work. Manpower immediately found suitable employment for Fairley.
Crowell, the adjuster handling Fairley’s claim at that time,
discontinued Fairley’s TTD benefits as of September 5, 2000.
Shortly after Continental discontinued her TTD benefits,
Fairley contacted Crowell to express displeasure at that decision,
as well as the doctor’s release to return to work. At that time,
Fairley allegedly stated that if there was in fact a release from
the doctor, she would “shoot him.” Fairley subsequently expressed
dissatisfaction with the doctor, and allegedly told Continental
that he was never her choice of treating physician.

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On November 9, 2000, Fairley filed her Petition to Controvert
with the Mississippi Workers Compensation Committee and sought
approval for a new treating physician. In October, 2001, the
Administrative Judge (“AJ”) ordered Continental to pay for an
evaluation by a second doctor. The second doctor completed the
evaluation in February, 2002, and concluded that Fairley could not
work. He recommended further testing to determine the full extent
of the injuries.
In July, 2003, the AJ issued her order, awarding Fairley
permanent partial disability (“PPD”) benefits and payment of
reasonable and necessary future medical treatment. Following entry
of the order, Fairley’s attorney faxed his interpretation of the
order to Harris, who had replaced Crowell as the adjuster. After
crediting Continental for payments previously made, Harris
calculated the final amount due to Fairley to be $22,035.93 and
sent the check to Continental’s counsel, who forwarded the check on
to Fairley’s counsel on November 19, 2003.
Continental had no further contact with Fairley until her
counsel faxed a letter to Continental in January, 2004, complaining
about the calculations and the credits Continental had taken.
Fairley subsequently filed this suit for bad faith in Mississippi
state court against the defendants. The case was removed to
federal court. On July 21, 2004, the AJ issued an order clarifying
the previous order, stating that Continental had the right to take
credit for all prior payments, thus ratifying Harris’ calculation.

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Fairley did not appeal the AJ’s second order. The district court
granted Crowell’s, Harris’, and Continental’s motions for summary
judgment.
We review a grant of summary judgment de novo, using the same
criteria employed by the district court. Hanks v. Transcon. Gas
Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992). Summary
judgment is appropriate when “there is no genuine issue as to any
material fact and . . . the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c). A court’s role at the
summary judgment stage is not to weigh the evidence or determine
the truth of the matter, but rather to determine only whether a
genuine issue exists for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). Because Mississippi law controls the
disposition of the claims in this case, we apply the law in the
same manner as a Mississippi court. DiPascal v. New York Life Ins.
Co., 749 F.2d 255, 260 (5th Cir. 1985).
Fairley seeks punitive damages, arguing that the defendants
acted in bad faith. “Punitive damages are not recoverable for a
breach of contract unless such breach is attended by intentional
wrong, insult, abuse, or such gross negligence as to consist of an
independent tort.” Progressive Cas. Ins. Co. v. Keys, 317 So.2d
396, 398 (Miss. 1975). Additionally, punitive damages cannot be
recovered “if an insurance company has a legitimate or an arguable
reason for failing to pay a claim.” Standard Life Ins. Co. v.

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Veal, 354 So.2d 239, 248 (Miss. 1977). Both elements — an
intentional wrong, insult, abuse, or gross negligence and the
absence of a legitimate or arguable reason for denial — must be
satisfied. See Life & Cas. Ins. Co. of Tenn. v. Bristow, 529 So.2d
620 (Miss. 1988).
Continental paid Fairley benefits immediately upon
notification of her injury and continued to do so until she was
released to work by her treating doctor. It is true that
Continental continued to deny reinstatement of benefits, even after
the second doctor found Fairley could not work, until the AJ issued
her order. The fact that Continental ultimately proved to be wrong
in its assessment, however, does not create ground for punitive
damages. The plaintiff must offer proof of an intentional wrong,
insult, abuse, or gross negligence as to consist of an independent
tort, and has failed to do so. Instead, she has merely shown that
her disability status was contested.
In order for Crowell or Harris to be liable to Fairley, she
must show that they personally acted grossly negligent, with
malice, or with reckless disregard for her rights. Bass v.
California Life Ins. Co., 581 So.2d 1087, 1090 (Miss. 1991).
It is undisputed that Crowell was in constant contact with the
nurse care manager for Continental while handling Fairley’s claim
so that she knew her medical status. When she received the
doctor’s release for Fairley to work in September, 2000, Crowell

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continued benefits until she was advised that suitable employment
had been arranged and offered to Fairley by Manpower. When Fairley
refused the employment offer, her claim was disputed and there was
no further obligation for Crowell to continue payments. There is
no evidence that Crowell acted grossly negligent, and she is not
liable.
Harris’ involvement with Fairley’s case was even more limited
than Crowell. He properly calculated what was owed to Fairley
after the AJ’s order, and sent the checks to Continental’s counsel
to forward to Fairley. The AJ’s second order, in July, 2004,
showed his calculations to be correct. There is no evidence of
negligence, and there can be no liability on Harris’ part.
For the foregoing reasons, we AFFIRM the district court.

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