Jack HAMMONDS, Appellant, v. HARTFORD FIRE INSURANCE COMPANY, Appellee, 501 F.3d 991

BEAM, Circuit Judge. Jack Hammonds appeals the district court’s grant of

summary judgment to Hartford Fire Insurance Company (Hartford). Hammonds claims that Hartford acted in bad faith by delaying payments due to him under a settlement agreement and filing a petition to terminate current benefits. Because Hammonds cannot establish loss arising from the only basis for bad faith that he might be able to prove, we affirm. 1. BACKGROUND In October 1990, Hammonds fell from a roof while working for his employer, Megman Corporation. Having suffered serious injuries, Hammonds filed a worker’s compensation claim on a policy issued by Hartford.

Hammonds and Hartford entered into a settlement agreement in July 1993 (the 1993 Agreement) which was approved by the South Dakota Department of Labor later that month, as required by state statute. S.D. Codified Laws § 62-7-5. The 1993 Agreement contained two provisions relevant to this litigation. The first provision,

Section 2.B, titled “Attendant Care” and subtitled “Future Care” stated that: From and after the date of the execution of this Agreement and continuing for so long as Angela Hammonds continues to provide full-time attendant care to Jack Hammonds, Angela agrees to accept and Hartford agrees to pay Angela for twenty four (24) hours of care per day, at the rate of $6.00 per hour ($144.00 per day), and for seven (7) days per week. This totaled $4,180.92 per month.

Section 2.D, again titled “Attendant Care” and subtitled “Continuing Jurisdiction” stated: The parties acknowledge and agree that the [South Dakota] Department of Labor shall have continuing jurisdiction in the future with regard to attendant care and may, upon a change of circumstances and proper application, consider requests by either party to change the foregoing. The Agreement also included various payment and release clauses that have no bearing on the relevant legal inquiry in this case. After a few years, the Hammonds began experiencing difficulty in their marriage.

In August 1996, Angela and Jack separated and Angela moved out of the house. Jack found other individuals — normally employees from his roofing business — to provide the care that Angela was no longer providing. Shortly thereafter, Hammonds notified Hartford that his wife was no longer providing his attendant care as the 1993 Agreement anticipated and that he would prefer the checks be sent directly to him, so that he could select his own care givers.

As he affirmed under oath in his Statement of Material Facts, Hammonds was amenable at this time to “whatever the insurance company want[ed] him to do” for attendant care going forward. Hartford App. 131. Hartford reviewed the request and, in February 1997, agreed to write the checks directly to Hammonds. Hartford contends that this decision was conditioned upon Hammonds’ willingness to provide documentation of his attendant care.

While nothing in the record definitively confirms the existence of this condition, there appears to be no dispute that Ham-monds was advised that selecting his own attendant care givers would require a large amount of record keeping and other documentation. At some point in 1997 — perhaps as early as February — Hartford began requesting documentation from Hammonds to prove he was using the checks for attendant care.

Despite Hammonds’ earlier assurances that he would do “whatever the insurance company want[ed] him to do,” in a subsequent July 1999 phone conversation, he told Hartford he would not provide the documentation because he preferred to pay his attendants in cash. Hartford never received any documentation. In October 1998, Hartford began a program called the “large case initiative” or the “large loss initiative” which administered claims over $1 million.

This was an attempt to produce “an overall savings on loss costs.” Hammonds argues that this program (which he calls the “million dollar list”) was the impetus for Hartford’s alleged bad faith handling of his claim. Having received no documentation concerning Hammonds’ attendant care needs, Hartford initiated an investigation in early 1999. This included requesting Nurse Frances Nichols to outline Hammonds’ attendant care requirements.

In doing so, she contacted Hammonds’ attending physician and learned that attendant care was “not needed.” Nurse Nichols, however, felt that six hours of attendant care per day was appropriate, rather than the twenty-four hour care currently provided under the 1993 Agreement. Hartford also hired a private investigator to perform surveillance on Hammonds to determine how much care Hammonds actually used.

Having received no documentation for two years, and having been told in the July 1999 telephone conversation that Ham-monds did not intend to provide documentation, Hartford withheld Hammonds’ September 1999 attendant care check until November 1999. Hartford also withheld Hammonds’ October 1999 check until February 2000. The district court found that Hammonds had admitted these delays were caused by his refusal to provide documentation. Hammonds v. Hartford Fire Ins. Co., No. 04-5055, Order at 9 (D.S.D. Sept. 14, 2006).

On October 27, 2000, Hartford petitioned the South Dakota Department of Labor for review, citing both the provision that gave the Department of Labor jurisdiction in cases of changed circumstances and the provision that Angela Hammonds was to be paid for the attendant care. The petition alleged that neither Angela Ham-monds nor anyone else provided full-time attendant care and that full-time attendant care was not medically necessary.

Hartford requested an order “terminating [Hartford’s] obligation to pay the attendant care benefit currently paid to [Ham-monds].” Hartford later filed an amended petition that was similar to the original petition but instead sought a determination of the amount of attendant care required by Hammonds rather than an outright termination of Hartford’s obligation to pay the current benefits specified in the 1993 Agreement. Hammonds moved for

summary judgment, arguing that there was no genuine dispute of material fact over whether there had been a change of circumstances. The administrative law judge denied Hammonds’ motion for

summary judgment, finding, among other things, that the cessation of Angela’s services amounted to a significant change of circumstances. In January 2003, Hammonds and Hartford entered into a new settlement agreement (the 2003 Agreement) which included a new attendant care plan that provided Hammonds $3500 per month. This new agreement was also formally approved by the South Dakota Department of Labor. Eighteen months later, Hammonds instituted this federal diversity action against Hartford, alleging seven causes of action. The district court determined that all seven claims addressed only one central issue — Hartford’s bad faith. The district court granted Hartford’s motion for

summary judgment, finding that Hammonds failed to establish any denial of required benefits whatsoever or, in the alternative, failed to identify any action taken by Hartford without reasonable cause. This appeal followed. II. DISCUSSION We review de novo the district court’s grant of

summary judgment. Arp v. AON/Combined Ins. Co., 300 F.3d 913, 916 (8th Cir.2002). We will affirm if the facts viewed in the light most favorable to the nonmoving party — in this case, Ham-monds — -demonstrate that there is no genuine issue of material fact, and that the moving party — Hartford-—is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Arp, 300 F.3d at 916. Hammonds may not rely solely on his pleadings, but is “required to create an issue of material fact” concerning Hartford’s alleged bad faith. Arp, 300 F.3d at 917.

Both this circuit, Ulrich v. St. Paul Fire & Marine Insurance Co., 912 F.2d 961, 963 (8th Cir.1990), and the South Dakota Supreme Court, In re Champion v. United States Fidelity and Guaranty Co., 399 N.W.2d 320, 322-24 (S.D.1987), have recognized a cause of action in tort for bad faith failure to pay an insurance claim.

South Dakota first recognized the cause of action in Champion, holding that “‘for proof of bad faith, there must be an absence of a reasonable basis for denial of policy benefits and the knowledge or reckless disregard of [the lack of] a reasonable basis for denial.’ ” Id. at 324 (quoting Travelers Ins. Co. v. Savio, 706 P.2d 1258, 1275 (Colo.1985)).

Integral to the inquiry of whether there was (1) an absence of a reasonable basis for denial and (2) knowledge or a reckless disregard of the lack of a basis for denial, is “whether a claim was properly investigated and whether the results of the investigation were subjected to a reasonable evaluation and review.” Case v. Toshiba America Info. Sys., Inc. 7 F.3d 771, 773 (8th Cir.1993) (quotation omitted). Likewise, “the insurer is still authorized to challenge claims that are fairly debatable.” Id.

In his complaint, Hammonds based his bad faith claim on the fact “[t]hat Defendant denied benefits to Plaintiff despite the absence of a reasonable basis for such denial.” The 1993 Agreement — a state-approved contract between Hartford and Hammonds — specified the amount of attendant care benefits that Hammonds would receive. This Agreement was modified both orally and by practice between 1996 and 1997, after Angela Hammonds quit providing care and Hartford agreed to pay Jack Hammonds, despite the fact that Angela was no longer providing services as the 1993 Agreement contemplated.

Ham-monds is not heard to criticize this direct payment arrangement. The district court granted

summary judgment to Hartford because “[vjiewing the facts in a light most favorable to plaintiff, it cannot be said that Hartford denied or withheld benefits.” This finding cannot be seriously debated, given that Ham-monds twice admitted in his deposition that “[f]rom the day that the settlement was reached in 1993, [he had received] all of the attendant care payments that were set out in that agreement.” Hartford App. 33-34. The district court is undoubtedly correct that no benefits were ultimately denied.

While it is clear that there was no eventual denial of benefits in the sense that he was deprived of payments, both this court and the South Dakota Supreme Court have noted that a “ ‘[d]enial of benefits may be inferred from the insurer’s failure to process or pay a claim.’ ” McDowell v. Citicorp U.S.A., 734 N.W.2d 14, 19 (S.D.2007) (alteration in original) (quoting Kirchoff v. Am. Cas. Co., 997 F.2d 401, 405 (8th Cir.1993)).

A “failure to process or pay a claim” includes delays in payment, so that “if defendants unreasonably delayed payment of [benefits due under the 1993 Agreement] with an absence of a reasonable basis for the delay ... then such conduct might support a claim for bad faith.” Id. At the

summary judgment hearing in the district court, Hammonds’ attorney agreed that Hammonds’ “bad faith claim essentially goes to the issue of the methodology used in the settlement claim” and that the “bad faith claim goes to how the claim was handled.” Hartford App. 171. After seeking clarification at oral argument on appeal, we understand Ham-monds to allege that two specific actions present a genuine issue of material fact on a claim of bad faith:

(1) Hartford’s continuous requests for documentation beginning in 1997 and the resulting delays in payment and

(2) Hartford’s petition to terminate current benefits in 2000. We address each claim in turn in order to determine if a genuine issue of material fact exists, that is, whether there was a reasonable basis for the denial and, if not, whether Hartford knew of or recklessly disregarded the lack of a reasonable basis for its conduct. A. The Request for Documentation Hammonds asserts that Hartford’s requests for documentation and the resulting delays in payment were done in bad faith in order to leverage a superior bargaining position in the relationship.

Hammonds suggests that the requests for documentation, along with all other alleged bad faith actions, were part of an extensive, nefarious scheme revolving around the 1998 “large loss initiative.” Hammonds argues that, by requesting documentation and delaying payments when documentation was not received, Hartford acted in bad faith because “Hartford admitted it had no right to require documentation.” Hartford App. 131. However, the Champion tort inquiry does not concern itself with a dispute over what “rights” Hartford had under the parties’ contractual agreements. This question, which is a matter of contract

interpretation — determining the rights and obligations arising from the contract — presents a question of law, rather than a question of fact. Simeone v. First Bank Nat’l Ass’n, 971 F.2d 103, 106 (8th Cir.1992). On this question of law, we will assume that the parties agreed to what Hammonds said they agreed to, namely, that Hartford would continue to pay the amount agreed upon in the 1993 Agreement directly to Hammonds and that there was no requirement that Hammonds provide documentation that he was using the money for attendant care.

Thus, the focus of our investigation is whether Hartford acted in bad faith by delaying the transmittal of two payments in retaliation for Hammonds failure to provide documentation, despite the fact that he was not required to provide documentation. Even assuming that Hammonds could successfully prove this tort to a jury’s satisfaction, his claim still suffers a fatal defect. As with any other tort, in addition to proving that Hartford acted in bad faith, Hammonds also must prove that he “suffered a compensable loss as a result” of the behavior. McDowell, 734 N.W.2d at 19.

McDowell, like Hammonds, entered into a settlement agreement with an insurance company, which agreement required that the company pay for necessary medical bills. She sued the insurer for failure to pay three bills in a timely fashion. Id. The South Dakota Supreme Court noted that McDowell could not prove loss from the delays, as “she ma[de] no claim that during the time these three bills were unpaid her medical providers refused to continue treating her.” Id. at 21.

Like McDowell, Hammonds has failed to allege or show that he suffered any compensable loss of services or attendant care as a result of the delays in payment. Indeed, he admitted, in a sworn deposition, that at the time of the filing of this action, all monies owed to him under the 1993 Agreement and the later agreement to pay him directly had been paid. Hartford App. 33-34. The record only reflects that a certain number of days passed between the time Hammonds was to receive payment and the time he actually did receive the payment. There is no proof that Hammonds suffered any “loss” as a result of the delay.

Thus, the grant of

summary judgment on this issue was proper. McDowell, 734 N.W.2d at 21. B. Hartford’s 2000 Petition As an initial matter, Hammonds has been unclear as to the gravamen of his bad faith allegations based on Hartford’s petitions to the South Dakota Department of Labor for either termination or a new determination of Hammonds’ attendant care benefits. To some extent, the parties argue over whether Hartford’s initial filing was actually a petition to terminate all benefits, forever, or a petition to terminate “current” benefits with revised benefits to follow. This, however, cannot present a material issue of fact because the

interpretation of a pleading is a function that rests with a court as a determination of law, rather than with a jury. Lilly v. Grand Trunk W. R.R. Co., 317 U.S. 481, 489-90, 63 S.Ct. 347, 87 L.Ed. 411 (1943). Assuming, however, that Ham-monds means to allege that the filing of a petition — whatever its meaning — was

an act of bad faith, we must again look to Champion. We will also assume that the filing of a petition to terminate is close enough to a “failure to process or pay a claim” to be considered a denial of benefits, though we are doubtful that it can. We then ask whether there was a reasonable basis for the denial and whether Hartford knew of or recklessly disregarded the lack of a reasonable basis. The October 2000 petition sought “an Order terminating Insurer’s obligation to pay the attendant care benefit currently paid” to Hammonds.

This was based on the fact that Angela Hammonds no longer provided the care, that no one provided full-time care, and that full-time care was not medically necessary. Addressing only the strongest of reasonable bases upon which Hartford could have relied, we note first that the 1993 Agreement specifically allowed Hartford to take this action when there was a change in circumstances.

The 1993 Agreement also specifically conditioned the continuation of payments “for so long as Angela Ham-monds continues to provide full-time attendant care to Jack Hammonds.” Angela’s cessation of attendant care was clearly a change of circumstances that gave Hartford a reasonable basis for filing the petition. In addition to Angela’s departure, Hartford also conducted an investigation of Hammonds’ situation to support its belief of a change in circumstances.

As mentioned, Nurse Frances Nichols outlined her view of the attendant care needs of Hammonds, which included an admission by Hammonds’ doctor that he needed no attendant care at all. An additional investigation confirmed that Hammonds might not have been using full-time attendant care. In conclusion, Hartford had multiple reasonable bases for moving to terminate the current benefits paid to Hammonds. We need not find that Hartford’s conclusion about Hammonds’ situation was correct. We need only to find that the issue was fairly debatable. Case, 7 F.3d at 773 (citing Savio, 706 P.2d at 1275).

In light of all of the undisputed facts, we conclude that Hartford did not act in bad faith under South Dakota law. III. CONCLUSION We affirm the judgment of the district court. . The Honorable Richard H. Battey, United States District Judge for the District of South Dakota. . Such compromise agreements, once accepted by the Department of Labor, have the same force and effect as if the award was actually adjudicated. Sopko v. C & R Transfer Co., Inc., 575 N.W.2d 225, 229 (S.D.1998). . Hammonds cites various dates of separation ranging from 1995 in his divorce decree to 1997 in his briefs.

Because the August 1996 date comes from Hammonds' deposition taken under oath, we rely on it, though the date is not dispositive of any issue. . Hammonds addresses the need for and amount of attendant care as it supports his argument that Hartford had no reasonable basis to "terminate” his benefits altogether. However, as we discuss in

Section II.B, under the circumstances of this case, this argument presents a question of law and not a genuinely disputed material fact preventing the entry of

summary judgment. . The

interpretation of a pleading is, of course, a question of law for the trial judge. Lilly v. Grand Trunk W. R.R. Co., 317 U.S. 481, 489-90, 63 S.Ct. 347, 87 L.Ed. 411 (1943). . We apply South Dakota substantive law because this diversity action was brought in the District of South Dakota, and the district court sitting in diversity applies the substantive law of the state in which it is located. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). .

Despite Hammonds’ best attempts to redefine what "bad faith” means in South Dakota, the South Dakota Supreme Court, exercising its undeniable province to say what the law in South Dakota is, has already defined the tort of bad faith denial of insurance claims. Champion could not be more clear: you need a denial, explicit-or as Kirchoff held-implied; a lack of a reasonable basis for the denial; and knowledge of (or reckless disregard of) the lack of a reasonable basis. Champion, 399 N.W.2d at 324. That inquiry and that inquiry alone informs the case before this court. .

The only other purported bad faith denial of benefits due under the 1993 Agreement involves the denial of payment for a Viagra prescription. When repeatedly pressed at oral argument to identify the actions constituting bad faith, Hammonds' counsel did not mention Viagra. Regardless, the question of whether Viagra was covered under the 1993 Agreement as “future care” involves the

interpretation of the contract and is thus a question of law, not a genuinely disputed question of material fact. . Hammonds has papered the record with documents illustrating bad faith type acts throughout the entire relationship of the parties, arguing that this general ambience of unfairness on the part of Hartford violated an implied duty of good faith and fair dealing. There is no doubt that every contract, including the 1993 Agreement, carries with it an implied duty of good faith. Garrett v. BankWest, Inc., 459 N.W.2d 833, 841 (S.D.1990).

There is also no doubt that the implied duty “is not a repository of limitless duties and obligations” akin to “an amorphous companion contract with latent provisions to stand at odds with or in modification of the express language of the parties' agreement.” Nygaard v. Sioux Valley Hosp. & Health Sys., 731 N.W.2d 184, 194 (S.D.2007) (quotations omitted). Where the express language of the contract addresses the matter at issue, there is no need to turn to the implied covenant. Id.

Here, the payment or denial of benefits was expressly provided for in the 1993 Agreement, and any purported breach of contract is actionable through contract

interpretation by a tribunal with jurisdiction or through the bad faith tort recognized in Champion, making any reference to a freestanding implied duty of good faith irrelevant. . Hammonds admitted in his deposition that he was not using the full amount of the monthly payments for attendant care. Hartford App. 102.