260 Ga. 274 (1990)
393 S.E.2d 229
SMITH
v.
THE STATE.
S90A0033.
Supreme Court of Georgia.
Decided July 3, 1990.
L. David Wolfe & Assoc., L. David Wolfe, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, Michael J. Bowers, Attorney General, Richard C. Litwin, for appellee.
BELL, Justice.
Appellant Charlie Woodrow Smith was convicted of malice murder, aggravated assault, and possession of a firearm by a convicted felon.[1] He appeals, and we affirm in part and remand in part.
1. Appellant's first enumeration of error is that the trial court erred by denying his motion for new trial on the general grounds.
We disagree. Construed most favorably to the verdict, the evidence showed that on June 26, 1988, appellant and his wife, Marian Gail Smith, were involved in a fracas that arose from his wife's use of the family vehicle to buy drugs from streetside sellers. A witness testified that appellant had talked with him the day of the shooting during a search by appellant for his wife, and that appellant had told him that he hoped "she ain't doing what I think she's doing `cause if she is *275 there's gonna be some trouble." During the fracas, the wife attempted to escape appellant by driving off in the vehicle, and appellant twice fired a pistol into the vehicle. The first shot was fired from the driver's side of the vehicle, through the driver's window. The shot passed appellant's wife, who was the driver, striking and fatally wounding the front-seat passenger, Tony Bernard Ashley. The second shot, which was fired from the rear of the vehicle through the rear window, did not strike anyone. A rear-seat passenger testified that appellant fired the fatal shot from a standing position after aiming his pistol at the car, and fired the second shot as his wife was driving away. After the fracas, the wife left the scene in the vehicle. She subsequently told a police investigator that she thought appellant shot at her because he was upset with her. Appellant fled the scene of the shooting, and remained a fugitive until his arrest in February 1989. At the date of the shooting, appellant was a convicted felon.
We conclude that this evidence was sufficient to sustain the convictions for the malice murder of Tony Bernard Ashley, the aggravated assault of Marian Gail Smith, and possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Sapp v. State, 260 Ga. 86 (390 SE2d 38) (1990).
2. In his second enumeration of error, appellant contends that the trial court erred in not instructing the jury on self-defense. We find no error.
During a conference on jury instructions, appellant's counsel requested the court to charge on both accident and self-defense. After a discussion among counsel and the court, the court gave instructions to the jury that included a charge on accident, but no charge on self-defense. On appeal, appellant contends (through new counsel) that the court erred in failing to charge on self-defense.
Appellant's argument (as we understand it[2]) begins with an assertion that the record is unclear concerning whether his trial counsel voluntarily withdrew their request to charge self-defense. He goes on to contend that the failure to charge that defense violated his federal constitutional due-process rights even if the request was voluntarily withdrawn. His argument in this regard is that the trial court had a duty to charge self-defense because (according to appellant) the sole defense established by his testimony was self-defense. Appellant further contends that, should this Court conclude that since trial counsel voluntarily elected to withdraw their request he therefore was not entitled to a charge on self-defense, then the issue whether trial counsel were ineffective for making the election must be considered.
*276 3. We find no merit in appellant's contention that the record is unclear concerning whether his trial counsel voluntarily withdrew their request to charge.
The charge conference was not taken down by the court reporter, but after trial appellant requested the court to supplement the record. Pursuant to the motion, the prosecutor and defense counsel submitted affidavits to the court, stating their recollections of the colloquy concerning the requests to charge accident and self-defense. According to the affidavit of the prosecutor, during the conference the court "suggested" that the requests were inconsistent, and defense counsel then withdrew the self-defense request and "instructed the Court that they would request the charge on accident or misfortune." The prosecutor also swore that defense counsel "acceded to the suggestion of the trial court and at no time objected to the procedure followed by the Court." After holding a hearing on the motion to supplement, the court found that the prosecutor's affidavit "accurately cures the omission in the record," and ordered that it be made a part of the record.
In his argument to this Court, appellant contends that the circumstances of the charge conference are unclear because the prosecutor's affidavit conflicts with the affidavits of appellant's trial counsel.
However, the trial court's adoption of the prosecutor's affidavit was dispositive, and is not subject to our review. OCGA § 5-6-41 (f), (g); Patterson v. State, 233 Ga. 724, 730-731 (7) (213 SE2d 612) (1975). Therefore, we conclude that the facts of the conference are as stated by the prosecutor: The court suggested to defense counsel that their requested charges were inconsistent, and defense counsel acceded to the court's suggestion and withdrew their self-defense request without any objection.[3]
4. Appellant argues that, notwithstanding the voluntary withdrawal of his request to instruct on self-defense, the trial court violated his federal due-process rights by failing to spontaneously charge on self-defense because, he asserts, self-defense was the sole defense that his testimony established. We will first consider this argument with respect to appellant's conviction for the malice murder of Tony Bernard Ashley, and then with respect to his conviction for the aggravated assault of Marian Gail Smith.
5. We find no error regarding the lack of a charge on self-defense as a defense to malice murder. Appellant testified that when he fired the first shot (the shot that struck and killed Ashley) he felt that his life was in jeopardy; that he shot as a "warning" to "scare" his wife *277 into stopping the car; and that he was not angry and did not intend to hit or hurt anybody.
We conclude that this testimony was evidence in support of the defense of accident, since
[a]ppellant did not state that the gun was fired accidentally, but rather that the bullet which was deliberately fired struck the victi[m] by misfortune or accident.... Where a bullet is deliberately fired and strikes a target which it was not intended to hit, the defendant may be found not guilty of murder on the basis that the death was due to an accident or misfortune. The evidence in this case would have permitted such a finding, since appellant specifically stated that he did not deliberately aim at or intend to shoot the victi[m], but rather intended to miss them. [DeBerry v. State, 241 Ga. 204, 206 (2) (243 SE2d 864) (1978).]
Moreover, we find no support in appellant's testimony for the defense of self-defense, as he nowhere testified that he intended to hit Ashley (or anyone else in the vehicle). Accordingly, as there was no evidence of self-defense,[4] the trial court did not err by failing to instruct spontaneously on that principle. Gladson v. State, 253 Ga. 489, 491 (2) (322 SE2d 45) (1984).
6. We next consider the failure to charge self-defense as a defense to the aggravated assault of appellant's wife, Marian Gail Smith.
We find that a charge on self-defense was authorized by appellant's testimony. Under the wording of the indictment, the jury could have found appellant guilty of aggravated assault of his wife by virtue of either of the two shots he fired. Regarding the first shot, the testimony that we have summarized in the preceding division of this opinion established some evidence of self-defense. Appellant's testimony concerning the second shot was likewise sufficient to authorize a self-defense charge, as appellant said that he fired the shot as a "warning" to make his wife stop the vehicle, because (according to him) his wife was backing the vehicle toward him and he thought she was trying to run him over.
7. As we have found that a self-defense instruction regarding aggravated assault was authorized by evidence presented at trial, did the court err by failing to give the charge spontaneously?
We find no error. Appellant's trial counsel acquiesced to the court's suggestion, chose the accident request, and withdrew the self-defense *278 request, all without objection. Appellant therefore is barred from complaining of the court's failure to charge on self-defense as a defense to aggravated assault. Edwards v. State, 235 Ga. 603 (3) (221 SE2d 28) (1975).
8. Appellant contends that his trial counsel were ineffective for agreeing to withdraw the request to charge on justification. Because this issue was not addressed by the trial court, we remand this case to the trial court to consider the claim.[5]
Judgment affirmed in part and remanded in part. All the Justices concur, except Weltner and Hunt, JJ., who concur in the judgment only.
NOTES
[1]  The aggravated assault and possession of a firearm occurred on June 26, 1988. The murder victim was shot on June 26, and died on June 27. Appellant was indicted on December 9, 1988. The indictment charged him with the malice murder and felony murder of Tony Bernard Ashley; aggravated assault on Marian Gail Smith; and possession of a firearm by a convicted felon. On April 5, 1989, a jury returned a verdict of guilty concerning all four charges. On the same day, the court sentenced appellant for the malice murder, aggravated assault, and possession convictions. The court subsequently entered an order that the court would not sentence him for felony murder because appellant had been convicted and sentenced for malice murder.

Appellant filed a motion for new trial on May 4, 1989. On June 9 the court reporter certified the trial transcript. The trial court denied the motion for new trial on July 20. Appellant filed a notice of appeal on August 18, and the clerk of the trial court certified the record on September 29. On October 10 the appeal was docketed in this Court, and on January 8, 1990, the appeal was orally argued.
[2]  We assume that appellant is arguing that he should have had the benefit of a charge on self-defense as a defense to both malice murder and aggravated assault, although his brief is vague on this point.
[3]  We do not address whether the trial court was correct to suggest that the defense were inconsistent.
[4]  We note that appellant does not contend that, outside of his own testimony, there is any evidence of self-defense concerning the murder, and our review of the record has uncovered none.
[5]  We draw to the trial court's attention the possibility that this issue was procedurally defaulted by appellate counsel (who began representing appellant before he filed his notice of appeal) or by previous counsel (who represented appellant after his trial counsel withdrew from representation). Because the record is not complete enough for this Court to determine whether there was a procedural default, we leave the development of the record in this regard to the trial court, and do not address it in this appeal.


     Case: 12-31064       Document: 00512558652         Page: 1     Date Filed: 03/12/2014

           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                            FILED
                                       No. 12-31064                       March 12, 2014

                                                                          Lyle W. Cayce
                                                                               Clerk
DANNY KELLY,

                                                  Plaintiff–Appellant
v.

STATE FARM FIRE & CASUALTY COMPANY,

                                                  Defendant–Appellee

                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:09-CV-619

Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Danny Kelly (“Kelly”) sued State Farm Fire &
Casualty Company (“State Farm” or “insurer”) on behalf of Henry Thomas
(“Thomas”), one of State Farm’s insured customers. Kelly asserted two bad-faith
claims arising out of a car accident that occurred on November 21, 2005. Kelly
alleged that State Farm failed to notify Thomas of a settlement offer and failed
to settle Kelly’s claim against Thomas. The district court granted summary

       *
         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.
    Case: 12-31064       Document: 00512558652     Page: 2    Date Filed: 03/12/2014

                                    No. 12-31064

judgment in State Farm’s favor on both counts. For the reasons that follow, we
affirm in part, reverse in part, and remand for further proceedings.
                                          I
         On November 21, 2005, a car accident occurred involving Thomas and
Kelly.       Thomas and Kelly were driving opposite directions when Thomas
initiated a left turn. Thomas hit Kelly while making the left turn. Kelly and a
witness at the scene told police that Thomas failed to yield to oncoming traffic.
Thomas maintained that he was not negligent. Kelly was taken to a hospital by
ambulance and was treated for a fractured femur. His hospital stay lasted
approximately six days and cost $26,803.17.
         On January 6, 2006, Kelly’s attorney mailed a letter to Thomas’s insurer,
State Farm, regarding Kelly’s claim. The letter included copies of Kelly’s
hospital records and stated:
               Please find enclosed a copy of Danny Kelly’s Medical
         Summary with attached medical records/reports and bills
         concerning his hospital treatment for the above referenced incident
         involving your insured. I will recommend release of State Farm
         Insurance Company and your insured, Henry Thomas, Jr., for
         payment of your policy limits.

              Please give me a call in the next ten (10) days to discuss this
         matter.
The parties dispute, however, when this letter was received. According to Kelly’s
certified-mail receipt, the letter was accepted by “G. Johnson” on January 9,
2006. State Farm maintains that the letter was not received until February 14,
2006. A State Farm activity log indicates that State Farm received a demand
for “policy limits $25,000.00” on February 11, 2006.1 It does not appear that
State Farm ever responded to the letter.

         1
        The activity log technically shows “DEMAND REC’D: 2/11/05.” However, since the
accident did not occur until November 2005, this is likely a typo.

                                          2
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                                  No. 12-31064

      Kelly’s attorney spoke with State Farm representatives on March 8 and
March 22. During the March 22, 2006 conversation, the representative offered
to settle the case for $25,000, the policy limit. The offer was memorialized in a
letter dated March 23, 2006. Kelly’s attorney rejected the offer and proceeded
to file suit. On the day that Kelly rejected State Farm’s settlement offer, State
Farm mailed a letter to Thomas informing him of the possibility of personal
liability and suggesting that he consider retaining independent counsel. State
Farm’s letter to Thomas did not discuss the letter from Kelly’s attorney, State
Farm’s offer to Kelly, or the extent of Kelly’s medical bills.
      At trial, Thomas was found liable for the accident and judgment was
rendered against him for $176,464.07, plus interest. State Farm promptly paid
Kelly the policy limit. Under the terms of his policy, Thomas was liable for the
remainder of the judgment. However, Thomas entered into a compromise
agreement with Kelly. Thomas assigned Kelly his right to pursue a bad faith
action against State Farm in exchange for Kelly’s promise not to enforce the
judgment against Thomas’s personal assets.
      Kelly filed suit against State Farm soon thereafter, alleging two counts of
bad faith under Louisiana law. Kelly alleged that State Farm acted in bad faith
when it (1) failed to notify Thomas of Kelly’s January 2006 letter; and (2) failed
to accept Kelly’s January 2006 settlement offer. State Farm removed the case
to federal court and filed a motion for summary judgment. On November 8,
2011, the district court partially granted State Farm’s motion. The district court
granted summary judgment in State Farm’s favor on Kelly’s first argument,
holding that the January 2006 letter did not constitute a settlement offer and
that State Farm did not have a duty to notify Thomas when the letter was
received. The district court denied summary judgment on the second point,
however, stating that Kelly might be able to prove that State Farm’s failure to
settle the claim constituted bad faith.

                                          3
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                                   No. 12-31064

      State Farm moved for reconsideration on November 23, 2011, arguing that
State Farm could be liable for bad faith failure to settle only if it failed to accept
an actual offer and acted in bad faith. According to State Farm’s contention, the
district court’s finding that the January 2006 letter did not constitute an offer
necessarily precluded liability on Kelly’s second claim. The district court agreed
and revised its opinion to grant full summary judgment in State Farm’s favor.
Judgment was entered accordingly, and Kelly appealed.
                                         II
      We review the district court’s grant of summary judgment de novo. McFaul
v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).            Summary judgment is
appropriate when there is no genuine issue of material fact and the moving
party has shown it is entitled to judgment as a matter of law. Id. A dispute is
“genuine” if the evidence is sufficient for a reasonable jury to return a verdict for
the nonmoving party. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th
Cir. 2000). A fact issue is “material” if its resolution could affect the outcome of
the action. Id. We construe all facts and all reasonable inferences in the light
most favorable to the non-moving party. McFaul, 684 F.3d at 571.
      When evaluating issues of state law, federal courts “look to the final
decisions of that state’s highest court.” Chaney v. Dreyfus Serv. Corp., 595 F.3d
219, 229 (5th Cir. 2010). “In the absence of such a decision, ‘[federal courts]
must make an Erie guess and determine, in [their] best judgment, how [the
supreme court of that state] would resolve the issue if presented with the same
case.’” Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 954
(5th Cir. 2009) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 206
(5th Cir. 2007)). “In making an Erie guess, [federal courts] defer to intermediate
state appellate court decisions, unless convinced by other persuasive data that
the highest court of the state would decide otherwise.”            Mem’l Hermann

                                          4
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                                       No. 12-31064

Healthcare Sys. Inc. v. Eurocopter Deutschland GMBH, 524 F.3d 676, 678 (5th
Cir. 2008) (internal quotation marks omitted).
                                              III
        The parties’ briefs and the district court’s orders at times seem to conflate
the various causes of action and concomitant legal standards relevant to this
lawsuit. This conflation stems in large part from confusion over Kelly’s position
as a party in this case. Kelly’s lawsuit is premised on the assignment of rights
he received in his settlement agreement with Thomas. In the settlement
agreement, Thomas assigned to Kelly his right to pursue bad faith claims
against State Farm in exchange for Kelly’s promise not to pursue Thomas’s
personal assets in satisfaction of the judgment. When rights are assigned by
contract, the assignee—here, Kelly—stands in the shoes of the assignor—here,
Thomas.2 See N.S.Q. Assocs. v. Beychok, 94-2760, p. 9 (La. 9/5/95), 659 So.2d
729, 734 (noting “the general concept that an assignee usually stands in the
shoes of his or her assignor”). Thus, whereas Kelly was a third-party claimant
vis-à-vis State Farm in the parties’ earlier lawsuit—as well as during all pre-suit
interactions—he stands in Thomas’s shoes as the insured in his capacity as
plaintiff here. Therefore, any cause of action Kelly claims here must be available
to the insured. Kelly is not asserting a third-party claimant’s claims. In fact, he
specifically disclaims any third-party claims in his brief. With this in mind,
there appear to be two possible bases for Kelly’s bad-faith claims against State
Farm: Louisiana Revised Statutes § 22:1892 and § 22:1973. We review each in
turn.

        2
         The Louisiana Supreme Court has affirmed that individuals may assign their contract
rights in the insurance context. See In re Katrina Canal Breaches Litig., 2010-1823, p. 11 (La.
5/10/11), 63 So. 3d 955, 962 (stating that, in the insurance context, “the Louisiana legislature
has clearly indicated an intent to allow parties freedom to assign contractual rights”).

                                               5
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                                       No. 12-31064

                                             A
      Section 22:1892 establishes rules governing the relationship between
insurers, their insured, and third-party claimants in a variety of circumstances.
La. Rev. Stat. § 22:1892. For purposes of this suit, two provisions are potentially
relevant: §§ 22:1892(A)(1) and (2). Subsection (A)(1) states that all insurers
“shall pay the amount of any claim due any insured within thirty days after
receipt of satisfactory proofs of loss from the insured or any party in interest.”
Id. § 22:1892(A)(1) (emphasis added). Section (A)(2) states that insurers “shall
pay . . . any reasonable medical expenses claim due any bona fide third party
claimant within thirty days after written agreement of settlement of the claim
from any third party claimant.” Id. § 22:1892(A)(2) (emphasis added).3 As
explained below, Kelly does not have a claim under either provision of § 22:1892
because the facts of this case do not fall within the statutory language.
      Subsection (A)(1) contemplates a cause of action only when the insurer
fails to pay a claim based on a satisfactory proof of loss received from the
insured. Id. § 22:1892(A)(1). While Kelly stands in Thomas’s shoes as the
insured for purposes of this suit, Kelly’s allegations focus on State Farm’s failure
to pay a claim based on a proof of loss submitted by Kelly as a third-party
claimant. Specifically, Kelly argues State Farm failed to settle his third-party
claim after he submitted a purported settlement letter and medical receipts in
January 2006. These documents do not fall within the statute’s language. The
assignment between Kelly and Thomas provided Kelly with the ability to make
Thomas’s bad-faith claims on his behalf; the assignment does not allow Kelly to
shoehorn his third-party claims into § 22:1892(A)(1). Kelly has not alleged that
Thomas submitted a proof of loss to State Farm or that State Farm failed to pay
Thomas based on a proof of loss. Because Kelly’s purported settlement letter

      3
          The parties do not dispute that the thirty-day period was not met here.

                                              6
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                                         No. 12-31064

and medical receipts did not constitute “a satisfactory proof of loss from the
insured,” Kelly cannot maintain a claim under § 22:1892(A)(1) as a matter of
law. Id. Therefore, summary judgment is appropriate. Fed. R. Civ. P. 56(a).
       Kelly cannot maintain a claim under subjection (A)(2) either, for two
reasons. First, Kelly has expressly disavowed any third-party claims in this suit,
and subsection (A)(2) only pertains to such claims.                       See La. Rev. Stat.
§ 22:1892(A)(2).        Second, subsection (A)(2) only mandates payment by an
insurer when the insurer and third-party claimant have produced a written
settlement agreement. Id. Since neither party suggests that a settlement was
reached between State Farm and Kelly, Kelly cannot maintain a cause of action
under subsection (A)(2). State Farm is thus entitled to judgment as a matter of
law. Therefore, summary judgment is appropriate. Fed. R. Civ. P. 56(a).
                                                B
       Section 22:1973 contains two relevant subsections: subsection (A) describes
broad duties that insurers owe to their insured and subsection (B) lists acts
which constitute a breach of insurers’ duties when knowingly committed.
Subsection (A) states that insurers owe their insured “a duty of good faith and
fair dealing” and an “affirmative duty . . . to make a reasonable effort to settle
claims.” La. Rev. Stat. § 22:1973(A).4 Two parts of subsection (B) are relevant

       4
         The parties debate how the Fifth Circuit’s opinions in Commercial Union Insurance
Co. v. Mission Insurance Co., 835 F.2d 587 (5th Cir. 1988), and Brown v. Liberty Mutual Fire
Insurance Co., 168 F. App’x 558 (5th Cir. 2006), impact this case. In Commercial Union, the
court held that “Louisiana law only imposes liability for an excess judgment against a primary
insurer if that insurer failed to accept an actual offer to settle within its policy limits and such
failure was negligent, arbitrary and/or in bad faith.” 835 F.3d at 588. The court reached this
conclusion while acknowledging that “Louisiana courts have not explicitly articulated the
requirement . . . that a firm settlement offer be on the table before an insurer can be held
liable for its arbitrary refusal to settle.” Id. at 588 n.2. In Brown, an unpublished decision,
the court rejected the bad-faith claim at issue in part because a letter sent by the plaintiff did
not constitute an actual offer. 168 F. App’x at 563.
        While the precise scope of a bad-faith failure-to-settle claim probably deserves attention
from the Louisiana Supreme Court, we are nevertheless bound by prior precedent holding that
an actual offer is required in order to maintain such a claim. See French v. Allstate Indem.

                                                 7
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                                        No. 12-31064

here: (B)(1), which forbids “misrepresenting pertinent facts . . . relating to any
coverages at issue[;]” and (B)(5), which states that an insurer violates its duty
if it “[f]ail[s] to pay the amount of any claim due any person insured by the
contract within sixty days after receipt of satisfactory proof of loss from the
claimant when such failure is arbitrary, capricious, or without probable cause.”
Id. §§ 22:1973(B)(1), (B)(5).
       While subsection (A) states the duties of insurers in broad, precatory
terms, the Louisiana Supreme Court has held that the list of conduct in
subsection (B) constitutes the exclusive list of conduct that provides a cause of
action under § 22:1973. Theriot v. Midland Risk Ins. Co., 95-2895, p. 15–16 (La.
5/20/97), 694 So. 2d 184, 193. The Louisiana Supreme Court considered the
scope of § 22:1973 in the context of third-party claims, but intermediate
Louisiana courts have nevertheless interpreted Theriot as holding that
subsection (B) provides an exhaustive list of possible causes of action for the
insured under § 22:1973. See, e.g., Arvie v. Safeway Ins. Co. of La., 2006-1266,
p. 2 (La. App. 3 Cir. 2/7/07), 951 So. 2d 1284, 1285; McGee v. Omni Ins. Co.,
2002-1012, p. 7–8, 10–11 (La. App. 3 Cir. 3/5/03), 840 So. 2d 1248, 1254, 1256.
                                               1
       A violation of (B)(1) “can occur when an insurer either makes untrue
statements to an insured concerning pertinent facts or fails to divulge pertinent

Co., 637 F.3d 571, 589 (5th Cir. 2011) (affirming binding effect of prior Fifth Circuit precedent
on a state-law issue absent a clear change in law). Since the January 2006 letter from Kelly’s
attorney only stated that Kelly’s attorney would “recommend” a release in exchange for
payment of the policy’s limit, the letter did not constitute an offer. See McPherson v. Cingular
Wireless, LLC, 2007-0462, p. 5–7 (La. App. 3 Cir. 10/3/07), 967 So. 2d 573, 577–78 (holding that
“noncommittal” language in an employee handbook did not modify the parties’ contract of
employment); Restatement (Second) of Contracts § 26 (1981) (“A manifestation of willingness
to enter into a bargain is not an offer if the person to whom it is addressed knows or has
reason to know that the person making it does not intend to conclude a bargain until he has
made a further manifestation of assent.”). Therefore, Kelly cannot maintain a cause of action
as a matter of law, and State Farm was entitled to summary judgment on Kelly’s bad-faith
failure-to-settle claim.

                                               8
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                                  No. 12-31064
facts to the insured.” McGee, 840 So. 2d at 1256. Some intermediate appellate
courts have held that (B)(1) is only violated when an insurer misrepresents facts
about coverage, not facts concerning liability. See, e.g., Talton v. USAA Cas. Ins.
Co., 2006-1513, 2007-1414, p. 20 (La. App. 4 Cir. 3/19/08), 981 So. 2d 696, 710;
Strong v. Farm Bureau Ins. Co., 32,414, p. 5 (La. App. 2 Cir. 10/29/99), 743 So.
2d 949, 953. “A misrepresentation relating to a coverage issue would involve
facts about the policy itself, such as the amount of coverage, lapse or expiration
of the policy, or exclusions from coverage.” Strong, 743 So. 2d at 953. An insurer
also has “an independent duty to keep its insured informed of the status of
settlement negotiations[.]”    Teague v. St. Paul Fire & Marine Ins. Co.,
2006-1266, p. 62 (La. App. 1 Cir. 4/7/09), 10 So. 3d 806, 845. This includes a duty
to inform the insured about offers to settle that are made and received, offering
input on the settlement decision, and generally keeping the insured apprised of
those facts necessary for the insured to make a decision that is in their own
personal interest. Arvie, 951 So. 2d at 1285; McGee, 840 So. 2d at 1254, 1256;
Lafauci v. Jenkins, 2001-2960 (La. App. 1 Cir. 1/15/03), 844 So. 2d 19, 27-29. As
explained below, it is not clear that State Farm is entitled to judgment as a
matter of law on Kelly’s (B)(1) claim. As such, we reverse the district court’s
grant of summary judgment.
      In McGee, an insurer was found to have violated (B)(1) when it
“consistently failed to communicate the status of the claim to [the insured] on a
regular basis” and, when it did communicate with the insured, it “failed to
communicate the pertinent facts necessary for [the insured] to consider in
determining what was in her personal interest.” McGee, 840 So. 2d at 1256. The
insurer in Arvie committed similar bad faith conduct and also “failed to offer [its
insured] input into the settlement decision.” Arvie, 951 So. 2d at 1286. The only
communication between State Farm and Thomas alleged here consisted of a
single letter in which State Farm told Thomas that he might face personal

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                                  No. 12-31064
liability and that he should consider seeking independent counsel. At no point
did State Farm inform Thomas the extent to which Kelly’s medical bills exceeded
his policy limits, nor did State Farm tell Thomas that it had made a settlement
offer that was rejected by Kelly. In short, State Farm sent a single, cursory
communication to Thomas, and it cannot be said as a matter of law that this
letter communicated the pertinent facts necessary for Thomas to determine what
was in his best interest. Therefore, State Farm was not entitled to judgment as
a matter of law on Kelly’s claim under § 22:1973(B)(1). Fed. R. Civ. P. 56(a).
                                        2
      Under § 22:1973(B)(5), it is the plaintiff’s burden to show that the insured
submitted a satisfactory proof of loss, which is one that is sufficient to fully
apprise the insurer of the insured’s claim. Reed v. State Farm Mut. Auto. Ins.
Co., 2003-0107, p. 13 (La. 10/21/03), 857 So. 2d 1012, 1020 (stating that the “one
who claims entitlement” has the “burden of proving” receipt of a satisfactory
proof of loss); see also McDill v. Utica Mut. Ins. Co., 475 So. 2d 1085, 1089 (La.
1985) (defining “satisfactory proof of loss”). Moreover, § 22:1973(B)(5) does not
provide a cause of action based on third-party proofs of loss. Langsford v.
Flattman, 2003-0189, pp. 3–4 (La. 1/21/04), 864 So. 2d 149, 151.
      Kelly’s claim under § 22:1973 fails for the same reason that his claim
under § 22:1892(A)(1) failed, see supra Part III.A: Kelly has not alleged that
Thomas submitted a proof of loss to State Farm that went unpaid. Rather, the
premise of Kelly’s case is his allegation that State Farm failed to act when his
attorney sent State Farm a third-party demand letter. As discussed earlier,
assuming arguendo that Kelly’s letter constituted a satisfactory proof of loss at
all, the letter was a proof of loss from a third-party claimant. The assignment
between Kelly and Thomas does not allow Kelly to shoehorn otherwise ineligible
claims into Louisiana’s insurance statutes. Section 22:1973 does not provide a

                                       10
    Case: 12-31064    Document: 00512558652      Page: 11    Date Filed: 03/12/2014

                                  No. 12-31064
cause of action when an insurer fails to pay a third party’s claim based on a proof
of loss. Therefore, summary judgment is appropriate. Fed. R. Civ. P. 56(a).
                                        IV
      For the foregoing reasons, we AFFIRM IN PART and REVERSE IN PART
the district court’s grant of summary judgment. We REMAND to the district
court for further proceedings consistent with this opinion.

                                        11


418 S.E.2d 232 (1992)
332 N.C. 141
Russell S. CORRELL and Kelly L. Correll, Petitioners-Appellees,
v.
DIVISION OF SOCIAL SERVICES and Division of Medical Assistance, North Carolina Department of Human Resources, Respondents-Appellants.
No. 406PA91.
Supreme Court of North Carolina.
July 17, 1992.
*233 Turner, Enochs, and Lloyd, P.A. by Wendell H. Ott, Thomas E. Cone, and Laurie S. Truesdell, Greensboro, for petitioners-appellants.
Lacy H. Thornburg, Atty. Gen. by Robert J. Blum, Sp. Deputy Atty. Gen., and Jane T. Friedensen, Asst. Atty. Gen., Raleigh, for Dept. of Human Resources.
MITCHELL, Justice.
This is an action involving interpretation of the North Carolina statutory scheme governing eligibility for benefits from the Medicaid program. The primary issue before this Court is whether N.C.G.S. § 108A-55 requires that Medicaid applicants own their primary place of residence in order to exclude property they own contiguous to their residence from their assets for purposes of determining their eligibility for Medicaid benefits. We conclude that no such ownership requirement exists. Accordingly, we reverse the decision of the Court of Appeals.
The facts of this case are not in dispute. The petitioners Russell and Kelly Correll rent the home in which they live. They have lived in this home for fourteen years, and it is their primary place of residence. The petitioners purchased a small tract of land directly across a street from their residence in 1988. All parties to this action agree that the petitioners' land is "contiguous" to their residence and has a tax value of $3,640.00.
The petitioners applied for Medicaid benefits on 28 November 1988. Their Medicaid application was denied by the Gaston County Department of Social Services on 6 January 1989 on the ground that the petitioners owned the small tract of land contiguous to their residence. Its value of $3,640.00 caused the value of the petitioners' assets to exceed the $2,350.00 maximum reserve limit, beyond which the members of a three-person household are not medically needy under 10 North Carolina Administrative Code 50B.0311(2)(b) and, thus, not entitled to Medicaid benefits. The North Carolina Department of Human Resources, Division of Social Services, ultimately issued a final agency decision on 21 June 1989 upholding denial of Medicaid benefits for the petitioners. On 19 July 1989 the Corrells petitioned the Superior Court, Gaston County, for judicial review of the final agency decision. On 15 December 1989 the Superior Court entered its judgment. The Superior Court concluded that, pursuant to N.C.G.S. § 108A-55, the petitioners' property contiguous to their principal residence must be excluded from their resources for purposes of determining their eligibility for Medicaid benefitswithout regard to whether they owned their *234 principal residenceand that the final agency decision to the contrary amounted to an error of law. For this reason, the Superior Court reversed the final agency decision and ordered that the petitioners' Medicaid application be remanded to the Gaston County Department of Social Services for a proper determination of Medicaid eligibility. The respondents appealed to the Court of Appeals.
The Court of Appeals construed N.C.G.S. § 108A-55 as requiring that applicants for Medicaid benefits own their principal place of residence in order to take advantage of the exclusion of the value of their contiguous property for purposes of determining their entitlement to Medicaid benefits. Correll v. Division of Social Services, 103 N.C.App. 562, 406 S.E.2d 633 (1991). As a result, the Court of Appeals reversed the judgment of the Superior Court. We now conclude that the judgment of the Superior Court was correct. Accordingly, we must reverse the decision of the Court of Appeals and remand this case for reinstatement of the judgment of the Superior Court.
The Medicaid program was established by Congress in 1965 to provide federal assistance to states which chose to pay for some of the medical costs for the needy. Schweiker v. Gray Panthers, 453 U.S. 34, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1980); Morris v. Morrow, 783 F.2d 454, 456 (4th Cir.1986). Whether a state participates in the program is entirely optional. "However, once an election is made to participate, the state must comply with the requirements of federal law." Lackey v. N.C. Dept. of Human Resources, 306 N.C. 231, 235, 293 S.E.2d 171, 175 (1982). To qualify for federal Medicaid grant funds, the state must develop a coherent plan for medical assistance as prescribed by federal guidelines. Id.; 42 U.S.C. § 1396a (1984). North Carolina has elected to participate in the Medicaid program and outlined its plan for medical assistance by the enactment of Chapter 108 of the General Statutes of North Carolina, now recodified as Chapter 108A.
Upon a state's election to participate in the Medicaid program, the state must provide medical assistance to a group termed the "categorically needy." Morrow, 783 F.2d at 456. This group includes people who are entitled to general welfare assistance under four programs: Old Age Assistance; Aid to Families With Dependent Children; Aid to the Blind; and Aid to the Permanently and Totally Disabled. Id. Additionally, the state has the option to provide Medicaid benefits to people deemed "medically needy." These people can become eligible for benefits only if their income and assets are insufficient to provide them with basic remedial health care and services. Id. North Carolina has opted to provide Medicaid benefits to such "medically needy" people who meet the income and resources limitations established by the General Assembly. N.C.G.S. §§ 108A-54, 108A-55 (1988).
The statute governing the question present before this Court provides in relevant part that:
When determining whether a person has sufficient resources to provide necessary medical care, there shall be excluded from consideration the person's primary place of residence and the land on which it is situated, and in addition there shall be excluded real property contiguous with the person's primary place of residence in which the property tax value is less than twelve thousand dollars ($12,000).
N.C.G.S. § 108A-55 (emphasis added). The Court of Appeals held that the petitioners were not entitled to the benefit of the "contiguous property" exclusion provided by the statute because they did not own their primary place of residence. Correll, 103 N.C.App. at 568, 406 S.E.2d at 637. The Court of Appeals reasoned that this statute merely was designed to protect homesite property so as not to force homeowners to give up their homes in order to qualify for Medicaid benefits. Id. at 569, 406 S.E.2d at 637. Based on such reasoning, the Court of Appeals concluded that "[o]nly if the exclusion of contiguous property is dependent on the exclusion of an owned homesite would the policy of protecting applicants' *235 ownership of their homes be furthered." Id. We disagree with the Court of Appeals' interpretation of N.C.G.S. § 108A-55 and conclude that Medicaid applicants are not required to own their primary places of residence before being entitled to the benefit of the contiguous property exclusion.
Statutory interpretation properly begins with an examination of the plain words of the statute. Electric Supply Co. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991). The legislative purpose of a statute is first ascertained by examining the statute's plain language. Id. "When the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning." Lemons v. Boy Scouts of America, Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 688, reh'g denied, 322 N.C. 610, 370 S.E.2d 247 (1988). Here, the plain statutory language is clear; the only requirements the legislature prescribed for an applicant to receive the benefit of the "contiguous property" exclusion provided by N.C.G.S. § 108A-55 were that the property be "contiguous" to the applicant's primary place of residence and that the tax value of the property excluded be below twelve thousand dollars ($12,000).
It is undisputed that the house the petitioners rent and occupy is their primary place of residence. The property in question is "contiguous" to the petitioners' primary place of residence and has a tax value of only $3,640.00. No requirement that the applicant own his or her primary place of residence appears at any point in the plain language of the statute. If our General Assembly had intended to require that applicants own their primary places of residence before receiving the advantage of the contiguous property exclusion contained in N.C.G.S. § 108A-55, we must assume that it would have included plain language to that effect in the other plain language of the statute. See Lemons, 322 N.C. at 277, 367 S.E.2d at 658.
Our interpretation of the statute is also consistent with one of the basic purposes of the Medicaid program, which is to provide medical assistance to needy families whose income and resources are insufficient to meet these costs. 42 U.S.C. § 1396 (1984). Our interpretation avoids giving N.C.G.S. § 108A-55 a statutory construction that defeats the statute's purpose or results in unjust consequences. Sutton v. Aetna Casualty & Surety Co., 325 N.C. 259, 265, 382 S.E.2d 759, 763 (1989). In the present case, such unjust consequences clearly would result from adopting the respondents' interpretation of the statute. For example, following the respondents' reasoning, had the petitioners here owned more assetstheir residence plus the contiguous propertyall of their property would have been excluded under N.C.G.S. § 108A-55, and they would have been entitled to Medicaid benefits. However, under the respondents' interpretation, since the petitioners have fewer assetsonly owning the contiguous property, while renting their primary place of residencenone of their property is excluded, and they are not eligible for Medicaid benefits. Thus, in addition to judicially adding a requirement to the plain meaning of the statute, the respondents' interpretation would tend to defeat a central purpose of the Medicaid program.
The wording of N.C.G.S. § 108A-55 is clear, and it does not include a requirement that a Medicaid applicant "own" his or her primary place of residence before receiving the advantage of the statute's "contiguous property" exclusion. Accordingly, the decision of the Court of Appeals is reversed and this case is remanded to the Court of Appeals for reinstatement of the judgment of the Superior Court, Gaston County.
REVERSED AND REMANDED.


450 So.2d 332 (1984)
Mack HOBBLEY and Dorothy H. Hobbley, Appellants,
v.
SEARS, ROEBUCK AND COMPANY, Appellee.
No. AU-67.
District Court of Appeal of Florida, First District.
May 23, 1984.
J. Dixon Bridgers, III of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola, for appellants.
*333 Thomas E. Wheeler, Jr. of Fisher, Bell, Hahn & Schuster, Pensacola, for appellee.
JOANOS, Judge.
Mack Hobbley and Dorothy Hobbley appeal from the trial court's final judgment striking Count II of their complaint  a claim for damages for physical discomfort and embarrassment. The issue before us is whether the damages sought by the Hobbleys were in contemplation of the respective parties at the time of entering into the agreement. We reverse in part.
The evidence presented included the following. On December 3, 1980, the Hobbleys, long-time customers of Sears, had a Sears serviceman perform a routine service inspection of their furnace. The serviceman recommended that the furnace be replaced as it was unsafe for use. The Hobbleys then purchased a new furnace from a Sears salesman, who checked their premises before advising them concerning the model to purchase. The purchase price included the cost of installation, and the Sears salesman arranged for installation by a Sears installer. In the opinion of the Sears salesman, who had thirty years of experience in the sales and installation of units similar to the one he sold the Hobbleys, it was possible by removing the exterior cover of the furnace, to place the new furnace in the area occupied by the old one. The installer disagreed, maintaining that the new furnace could not be placed in the Hobbleys' attic without making structural changes in the roof trusses. As it turned out, the installer refused to perform the work at the price quoted by Sears, yet Sears failed to explain this to the Hobbleys.
The availability of the Hobbleys in order to have the installation performed is in dispute. According to Sears, the Hobbleys were difficult to reach. On the other hand, the Hobbleys testified that they were both employed by the county school system and were available at home after 3:00 p.m., and that they had tried repeatedly, without success, to reach an agreement with Sears' service personnel. Although Sears never installed the furnace, the Hobbleys were billed by Sears and they paid in full for the furnace, for insulation, and for installation.
During the winter of 1980-1981 (December, January and February), the Hobbleys relied on three space heaters for warmth. In addition to the fact that the space heaters were inadequate for the purpose, due to the wiring in the Hobbleys house they could not all be used at the same time. The Hobbleys testified to their embarrassment when guests in their home implied they had not paid their electric bills. Mr. Hobbley testified too that the cold house aggravated his arthritic condition.
Finally, around March 1, 1982, the Hobbleys bought a furnace from another company and had it installed. In May 1981 the Hobbleys sued Sears for the purchase price of the furnace, plus interest, and in Count II  they sued for expense incurred for space heaters and for their physical discomfort and embarrassment. The Hobbleys prevailed on the Count seeking return of the purchase price, but the trial court struck the Count II claim for damages for physical discomfort and embarrassment.
Damages are awarded in a breach of contract action as an attempt to place the injured party in the position he or she would have occupied had the contract been performed. Hodges v. Fries, 34 Fla. 63, 15 So. 682, 684 (1894). To be recoverable, such damages must arise naturally from the breach, or have been in contemplation of both parties at the time they made the contract, as the probable result of a breach. Hadley v. Baxendale, 9 Exch. 341, 156 Eng.Rep. 145 (1854). See also: Brock v. Gale, 14 Fla. 523 (1874).
We agree with the trial court that a jury may not consider "intangible"[1] damages such as embarrassment as an element of compensation damages in a contract action. Nevertheless, we do find that the Hobbleys' claim for physical discomfort, although inartfully framed, clearly has merit. (While this claim should have been framed *334 as a claim for "loss of use,"[2] under notice pleading the claim was adequately presented.) We find that it was readily foreseeable that the Hobbleys would need heat in the winter. They acted to replace their old furnace on the advice of Sears' service personnel, and they negotiated the purchase of a new furnace on the advice of Sears' sales personnel. We find that the physical discomfort suffered by the Hobbleys because of Sears' failure to install their new furnace was clearly in the contemplation of the parties at the time they entered into the agreement. The value of a warm home during the winter months, is not so uncertain or speculative as to be impossible to fix in a monetary award. Therefore, we reverse that portion of the Count II dismissal which claimed damages for physical discomfort and remand to the trial court for proceedings consistent with this opinion.
BOOTH and SHIVERS, JJ., concur.
NOTES
[1]  Northamerican Van Lines, Inc. v. Roper, 429 So.2d 750, 752 (Fla. 1st DCA 1983).
[2]  See Hampton-Chrysler-Plymouth-Dodge, Inc. v. White, 448 So.2d 87, 88 (Fla. 1st DCA 1984).


21 F.Supp.2d 1097 (1998)
FIOR D'ITALIA, INC., Plaintiff,
v.
UNITED STATES of America, Defendant.
No. C-97-4613-CAL.
United States District Court, N.D. California.
September 18, 1998.
Tracy J. Power, Power & Coleman, Richard L. Davis, Arlington, VA, Menlo Park, for Plaintiff.
*1098 Thomas Moore, Assistant U.S. Attorney, Office of U.S. Attorney, San Francisco, CA, for Defendant.

OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
LEGGE, District Judge.
The plaintiff taxpayer challenges the Internal Revenue Service's use of a so-called "aggregate" method to determine, assess and collect an employer's share of FICA taxes on the tips received by its restaurant employees. Plaintiff has moved for summary judgment on this issue, and the government has filed a cross-motion for summary judgment on its counterclaim for the payment of the IRS's assessment. The motions were argued and submitted for decision. The court has reviewed the moving and opposing papers, the record and the applicable authorities.

I.
Plaintiff Fior D'Italia operates a restaurant in which its employees receive tips. It computes and pays its share of Federal Insurance Contribution Act ("FICA") taxes for each employee, based on each employee's salary and tip reports. Each year it files a Form 8027, Employer's Annual Information Return of Tip Income and Allocated Tips.
In 1994 the Internal Revenue Service ("IRS") sent plaintiff a Notice and Demand to pay its share of FICA taxes allegedly due on tips not reported by its employees for the years 1991 and 1992. The IRS computed the alleged amount of plaintiff's share by using the information on plaintiff's Forms 8027. Specifically, the IRS determined the percentage of tips on the food and services that were charged on credit cards, by dividing the total amount of tips charged by the total charges. It then estimated the total tips received by all employees, by multiplying that percentage by plaintiff's total receipts. The tips that had been actually reported to the IRS were then subtracted from that amount, to determine the estimate of un reported tips. That figure was then subjected to the employers' FICA tax rate of 7.65% to determine plaintiff's alleged FICA tax liability.
The IRS did not attempt to identify the amount of unreported tips of each employee. It instead used the above formula as to all of plaintiff's employees in the aggregate.
The IRS thus calculated that plaintiff owed additional FICA taxes on the aggregate unreported tips of all employees, in the amounts of $11,976 in 1991 and $11,286 in 1992. Plaintiff paid a small portion of those taxes under protest, and then brought this suit for a refund. For purposes of this litigation, plaintiff does not dispute the facts or determinations used by the IRS to assess the aggregate unreported tip income. However, plaintiff challenges the use of the above aggregate method to determine its share of FICA taxes. It argues that the statutes governing FICA taxes, particularly 26 U.S.C. § 3121(q), require the IRS to determine FICA taxes for each employee individually in order to assess the employer's share. The government argues that the statute allows the IRS to use its aggregate method to determine the employer's share.

II.
These cross-motions for summary judgment do not dispute any facts. The parties agree that the motions turn solely on questions of statutory interpretation. The motions are therefore appropriate for resolution under Fed.R.Civ.P. 56.
A plaintiff in a tax refund action bears the ultimate burden of proving an overpayment of its taxes and the amount that it is entitled to recover. United States v. Janis, 428 U.S. 433, 440, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). The IRS's determination of a tax deficiency is presumed to be correct, and the taxpayer bears the burden of overcoming that presumption. United States v. Barretto, 708 F.Supp. 577, 579 (S.D.N.Y. 1989).
Here, the plaintiff taxpayer objects to the government's interpretation of Section 3121(q). As will be discussed below, the language of the statute does not directly answer the issue. And the IRS has not promulgated a regulation on the issue. It has enforced its interpretation only by making assessments against certain restaurant employers.
*1099 This court's analysis of the issue is governed by the following requirements:
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress had directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The deference given to an administrative agency's interpretation of a statute applies even if no formal regulation exists. Alexander v. Glickman, 139 F.3d 733, 736 (9th Cir.1998).
Principles of statutory construction require courts to interpret a statute as a whole. Beecham v. United States, 511 U.S. 368, 372, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994). "In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 100 L.Ed. 309 (1956) (quoting United States v. Boisdore's Heirs, 8 How. 113, 122, 12 L.Ed. 1009). And a court may also examine the legislative history if the meaning of the statute is not plain on its face.

III.
FICA tax payments come from two sources: (1) the employee's share, which is usually paid by deductions from an employee's wages, and (2) the employer's contribution, usually equal to the employee's share. Subchapter A of the Federal Insurance Contributions Act governs the tax on employees. 26 U.S.C. § 3101 ("there is hereby imposed on the income of every individual a tax equal to the following percentages of the wages (as defined in section 3121(a)) received by him with respect to employment (as defined in section 3121(b)) ..."). The tax on employers is governed by Subchapter B. 26 U.S.C. § 3111 ("there is hereby imposed on every employer an excise tax, with respect to having individuals in his employ, equal to the following percentages of the wages (as defined in section 3121(a)) paid by him with respect to employment (as defined in section 3121(b))...").
The dispute here concerns the interpretation of Section 3121(q), which states:
(q) Tips included for both employee and employer taxes.  For purposes of this chapter, tips received by an employee in the course of his employment shall be considered remuneration for such employment (and deemed to have been paid by the employer for purposes of subsections (a) and (b) of section 3111). Such remuneration shall be deemed to be paid at the time a written statement including such tips is furnished to the employer pursuant to section 6053(a) or (if no statement including such tips is so furnished) at the time received; except that, in determining the employer's liability in connection with the taxes imposed by section 3111 with respect to such tips in any case where no statement including such tips was so furnished (or to the extent that the statement so furnished was inaccurate or incomplete), such remuneration shall be deemed for purposes of subtitle F to be paid on the date on which notice and demand for such taxes is made to the employer by the Secretary.
Plaintiff contends that this section, when read in conjunction with the rest of the code dealing with FICA taxes, does not permit an aggregate assessment of unreported tips to determine the employer's share, but requires an individual determination of the unreported tips for each employee. The government contends that nothing in the statute prohibits the use of an aggregate method, and that the IRS's method is a reasonable interpretation of the section.
*1100 Only two cases have ever addressed this question. In Morrison Restaurants, Inc. v. United States, 918 F.Supp. 1506 (S.D.Ala. 1996), the district court adopted the interpretation advanced by plaintiff. That decision was vacated and remanded by the Eleventh Circuit in Morrison Restaurants, Inc. v. United States, 118 F.3d 1526 (11th Cir.1997), which court decided that an aggregate assessment is permitted by the statute. However, in The Bubble Room, Inc. v. United States, 36 Fed.Cl. 659 (1996), the Court of Federal Claims held that the IRS may not assess an employer's share of the FICA tax by using the aggregate method.
There is no case authority in this circuit.

IV.
This court starts, as it must, with the language of the section. If the meaning of the statute is clear and unambiguous on its face, the court need go no further. Here, plaintiff argues that the meaning of Section 3121(q), as well as related Section 3111, is plain.
Plaintiff points out that § 3111, which imposes the FICA tax on employers, provides that it is imposed on an employer with respect to having individuals in his employ, equal to the percentages of wages defined in Section 3121(a) paid "with respect to employment (as defined in section 3121(b)) ..." (emphasis added by plaintiff). Plaintiff contends that the use of the term "individuals" is significant.
Plaintiff also highlights the definition of "employment" in Section 3121(b): "any service, of whatever nature, performed ... by an employee for the person employing him." (emphasis added by plaintiff).
And plaintiff points to the language in Section 3121(q) which states that "tips received by an employee in the course of his employment shall be considered remuneration for such employment." (emphasis added by plaintiff).
Plaintiff argues from the frequent use of the singular term and from the word "individuals" that Congress intended that the IRS assess an employer's share of FICA taxes as to each of its employees. While certainly relevant, this argument is not conclusive, particularly in light of the rules of construction stated at the beginning of the United States Code. "In determining the meaning of any Act of Congress, unless the context indicates otherwise  words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular...." 1 U.S.C. § 1 (1994). Thus, the meaning of Section 3121(q) is not made unambiguous simply because the section uses singular nouns and articles.
The government argues that the language of the section not only allows for an aggregate assessment method, but clearly contemplates it. It notes that Section 3121(q) provides that tips are "deemed to have been paid" by the employer, and that the IRS may issue a notice and demand for the employer's share of FICA taxes even if employees fail to report their tips accurately. Specifically, the section states:
[I]n determining the employer's liability in connection with the taxes imposed by section 3111 with respect to such tips in any case where no statement including such tips was so furnished (or to the extent that the statement so furnished was inaccurate or incomplete), such remuneration shall be deemed for purposes of subtitle F to be paid on the date on which notice and demand for such taxes is made to the employer by the secretary.
The Circuit Court in Morrison found that argument significant:
This provision clearly states that an employer can be assessed for its share of FICA taxes on employee tips even if the employee fails to report all tips. It also suggests that the employer can be assessed its share of FICA taxes even when the individual employee's share is not determined.
118 F.3d at 1529. In further support, the Morrison court emphasized that Congress placed the provisions imposing the employer's and employee's share of FICA taxes in separate subsections. Id. The court reasoned that this placement indicated "that Congress contemplated that employees' and employer's shares could be imposed separately." Id.
However, that does not directly answer the question here. Even though Section 3121(q) *1101 allows the IRS to serve a demand on employers for the FICA taxes on unreported tip amounts, without also serving a demand on the employees, it does not say that the IRS may determine the employer's share through aggregation. That is, it does not impose the employer's obligation based on the estimated tips of all of the employees as a group.
The government also argues that the section provides a different statute of limitations for employers and employees. It provides that the "remuneration shall be deemed for purposes of subtitle F to be paid on the date on which notice and demand for such taxes is made to the employer by the Secretary." Subtitle F contains procedural and administrative provisions, including: the statute of limitations on assessments, I.R.C. § 6501; the timing of assessments, I.R.C. § 6201; and at what point interest begins to accrue, I.R.C. § 6601. The government contends that for employees, the tips are deemed paid when they submit a tip report to their employer or, if no report is furnished, when the tips are received, and the statute of limitations begins to run at one of those times. For employers, the tips are deemed paid when the employee submits a tip report or, if no report is furnished or if the report is inadequate, when a notice and demand is served on the employer. The government says that this extends the statute of limitations for the employer, potentially beyond the point at which the IRS could still assess unpaid taxes against the employee. The government argues that the clause therefore anticipates that the IRS might assess unpaid FICA taxes against an employer without making a corresponding assessment against the employee.
That may well be true. But it again does not answer the question here; that is, whether the IRS can assess the FICA tax on an employer in the aggregate  for the estimated tips of all employees as a group.
It seems unlikely that Congress intended that the above clause of the section was for the purpose of authorizing such aggregate computation of a tax. It does not directly say so. A more likely interpretation is that the clause does only what it says it does  define the timing of assessments and when interest begins to accrue. Congress probably wanted to start the accrual of interest earlier for employees, because the employees know about their tips from the time of receipt, whereas employers should not be subject to interest accrual until they have knowledge of the unreported tips, such as when a notice and demand is made.
The court concludes that the statute, Section 3121(q) and its related I.R.C. sections, simply does not address the subject of an aggregate method of assessment that is at issue here.

V.
The court therefore turns to the legislative history of FICA taxes, the purposes of FICA, and the interaction of Section 3121(q) with other sections involving FICA taxes ___ particularly what they say about the FICA taxation of tips.
The United States has always subjected tips to income tax liability, but it did not always consider tips in determining an employee's wage earning history for the purposes of Social Security. Bubble Room, 36 Fed.Cl. at 672. Congress amended the statutes in 1965 to provide that an employee's Social Security wage earning history would include tip income. Id. (citing Social Security Amendments of 1965, Pub.L. No. 89-97, Title III, § 313, 79 Stat. 286, 380-85 (1965) (now codified as amended in various sections of Title 26 of the U.S.C.)). The tip income would be credited to the employee's Social Security account. As a result of those amendments, tips were considered remuneration for employment and were deemed paid when a written statement of the tips was furnished to the employer; or when the tips were received by the employee, if the employee failed to provide the statement. Bubble Room, 36 Fed.Cl. at 672-73 (citing Social Security Amendments of 1965, Pub.L. No. 89-97, Title III, § 313(c)(4), 79 Stat. 286, 383 (1965))(codified at I.R.C. § 3121(q)(1982)). Employers could then deduct and withhold from an employee's wages the employee's share of FICA taxes attributable to the tips. But the same tips were not then considered for purposes of the employer's share of FICA taxes. Bubble Room, 36 Fed.Cl. at 673.
*1102 In the Social Security Amendments of 1977 employers were then required to pay FICA taxes on a portion of tips received. Pub.L. No. 95-216, § 315(a), 91 Stat. 1509, 1536 (1977), repealed by Pub.L. No. 100-203, Title IX, § 9006(b)(2), 101 Stat. 1330-289 (1987). At that time, Sections 3111 and 3121 were amended to provide that employers must pay FICA taxes on tips up to the federal minimum wage amount. H.R.Rep. No. 95-702, 95th Cong., 1st Sess. 11 (1977), reprinted in 1977 U.S.C.C.A.N. 4155, 4168. As a result, employees were required to pay FICA taxes on all tips, but employers were required to pay FICA taxes on the employees' tip income only up to the federal minimum wage. Bubble Room, 36 Fed.Cl. at 673.
Section 3121 was later amended by the Omnibus Budget Reconciliation Act of 1987, this time requiring employers to pay the same amount of FICA taxes as paid by the employees. Id. at 673 (citing Pub.L. No. 100-203, Title IX, § 9006, 101 Stat. XXXX-XXX-XXX (1987)). The relevant portion of the Senate Committee on Finance Print regarding that amendment to Section 3121(q) indicates that the main purpose of the amendment was to equalize the payments made by employers and employees. S. Print No. 63, 100th Cong., 1st Sess. 202-03 (1987); 133 Cong. Rec. S34,826 (1987). Congress also intended to equalize the FICA contributions of employers whose employees' receive tips with the FICA contributions of employers whose employees do not. Nothing in the legislative history indicates a Congressional intention to make employers more responsible than the employees for FICA taxes on tips. And nothing indicates an intention to place a tax on employers that is not credited to the employees' Social Security accounts, as the government's aggregate assessment method here would do.
Plaintiff argues that the general purpose of FICA taxes, and the manner in which the Social Security system operates, indicate that FICA taxes must be assessed on an individual basis. The system is a form of "social insurance" in which contributions are collected from current employees and employers in order to provide insurance for those who no longer support themselves through employment. Flemming v. Nestor, 363 U.S. 603, 609, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).
As the government points out, however, the eligibility for Social Security benefits does not depend entirely on the amount of an employee's own contributions to the system.
Plainly the expectation is that many members of the present productive work force will in turn become beneficiaries rather than supporters of the program. But each worker's benefits, though flowing from the contributions he made to the national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation.
Id. at 609-10.
Nevertheless, employees' entitlements to Social Security benefits and the amount to which they are entitled are determined by their wage earning history. Id. at 608. The method of assessing the employers' share of the FICA tax here, based on an aggregate of unreported tips, without attributing those amounts to the earnings records of individual employees, would not enhance the employees' later entitlement to Social Security benefits. It amounts to a tax on the employers without a commensurate benefit to the employees. The government responds that such a result is caused by the employees' own failure to make full disclosures of their tip income. While this is true, a tax on employers based on aggregate assessment without individual employee credit, operates as a general revenue tax for the government beyond the purpose of the FICA taxes.
Some evidence of the intent of Congress in Section 3121(q) can also be found in another subsection, Section 3121(a), and in another section of the Internal Revenue Code, Section 45B.
Section 3121(a) states that the term "wages" includes all remuneration for employment, but lists exceptions. Among those exceptions are "cash tips received by an employee in any calendar month ... unless the amount of such cash tips is $20 or more." I.R.C. § 3121(a)(12)(B). Thus, tips are not "wages" for FICA tax purposes unless they are more than $20 per employee per month. *1103 When the IRS uses its aggregation method for determining unreported tips, it does not ascertain whether each employee's tips exceeded $20 and are therefore subject to the FICA tax. It cannot determine whether that exception applies unless it determines each employee's tip amounts.
Further, Section 45B provides a tax credit to employers equal to:
any tax paid by an employer under section 3111 with respect to tips received by an employee during any month to the extent such tips  ... are deemed to have been paid by the employer to the employee pursuant to section 3121(q) (without regard to whether such tips are reported under section 6053) ...
to the extent that it exceeds the employer's tax due on the federal minimum wage rate applicable to the employee. 26 U.S.C. § 45B(b).
Essentially, employers may take a tax credit for FICA taxes paid on tips in excess of the tax due on federal minimum wage. An employer cannot take advantage of this tax credit if the IRS assesses his FICA taxes on unreported employee tips in the aggregate. The unreported tips for each employee must be determined in order to ascertain whether the employer has paid FICA taxes on that employee's wages in excess of the minimum wage. That provision expressly applies to situations in which the employee has failed to report or has underreported tips ("without regard to whether such tips are reported under section 6053"), and therefore anticipates that each employee's taxable wages will have been determined before the employer is required to pay FICA taxes as to that employee.
Sections 3121(a) and 45B therefore indicate that Congress intended that individual wage assessments would be made before the employer's share of FICA taxes could be assessed. Those provisions could not be applied otherwise. If the IRS were permitted to make assessments of taxes due on an aggregation of unreported tips, those credits and exemptions would become a nullity for many employers. It is a basic rule of statutory construction "that one provision should not be interpreted in a way ... that renders other provisions of the same statute inconsistent or meaningless." Shields v. United States, 698 F.2d 987, 989 (9th Cir.1983).

VI.
The government argues that disallowing the IRS's aggregate assessment method would provide an incentive to employers to encourage their employees to underreport tips. The Morrison court agreed. "We are concerned ... that basing the employer's share of FICA taxes exclusively on employees' reported tips would provide incentive to the employer to discourage accurate reporting or ignore blatantly inaccurate reporting by the employees so that the employer could pay less FICA tax." 118 F.3d at 1530.
While that result could follow, nothing in the legislative history indicates that Congress had this objective in mind when it amended Section 3121(q). See S. Print No. 63, 100th Cong., 1st Sess. 202-03 (1987); 133 Cong. Rec. S34,826 (1987). Rather, Congress was concerned with equalizing the taxes paid on tips by employers with those paid by employees. And as stated, nothing in Section 3121(q) expressly authorizes or compels the use of an aggregation method. Congress never suggested that its legislation was for the purpose of preventing employers from encouraging employees to underreport tips.
In fact, Congress appears to have rejected that concern in its amendments to Section 45B, the section which provides a tax credit to employers for FICA taxes paid on tips in excess of the federal minimum wage. Prior to 1996, that section did not include any mention of unreported or underreported tips, and the IRS interpreted the statute to allow an employer to take the credit only for FICA taxes paid by the employer on reported tips. 58 F.R. 68033, *68033. The IRS's perception of Congress's intent was explained in a letter from the Department of Treasury to the Senate:
The temporary regulation clarifies that the credit applies only to FICA taxes paid on tips reported to the employer by its employees. This provision is clearly supported by the Conference Committee Report to the Omnibus Budget Reconciliation Act of 1993, which states that the credit is *1104 applicable to the employer's FICA tax obligation "attributable to reported tips" (emphasis added).
Consistent with this Congressional intent, the temporary regulation will prevent an employer from claiming the credit for FICA taxes paid pursuant to a section 3212(q) notice and demand following a tips examination by the IRS. We believe that this provides the only fair and logical result and provides employers with a strong incentive for encouraging employees to report their tips.
Letter from Leslie B. Samuels, Assistant Secretary, Department of the Treasury, to Senator Trent Lott, United States Senate (March 30, 1994).
Congress expressly disclaimed this intent when it amended Section 45B in 1996, providing that the tax credit was available "without regard to whether such tips are reported under section 6053." I.R.C. § 45B(b); see also 61 F.R. 67212, *67213. Thus, the Morrison court's fear that disallowing aggregate assessment would provide an incentive to employers to encourage their employees to underreport tips was apparently not shared by Congress in 1996.
Another reason argued by the IRS for allowing its aggregation method is administrative convenience. That reason has some merit. However, administrative convenience does not guide a court's interpretation of a statute unless Congress has indicated that it shares that interest.
Bo concerns of the IRS may be good reasons to persuade Congress to amend the statute. But they do not provide support for the government's interpretation of the current statute.

VII.
In summary, Section 3121(q) on its face does not clearly allow or prohibit the IRS method of assessing employer FICA taxes by aggregating unidentified employees' unreported tips. However, when Section 3121(q) is read in conjunction with other sections of the FICA statutes, as well as other sections of the Internal Revenue Code, this court believes that Congress intended that an employer's share of FICA taxes be based on individual assessments of each employee's wages. The basic structure of the FICA tax system is to provide ultimate benefits for individual employees. The legislative history further supports this interpretation. The legislation appears generally directed at equalizing the tax burdens of employees and employers. Section 3121(q) is not just for revenue enhancement. Although this court owes deference to the IRS's interpretation of the statute, its interpretation conflicts with other statutory provisions regarding employer FICA taxes on tips. It is therefore not a permissible construction of Section 3121(q).
This court therefore grants plaintiff's motion for summary judgment and denies the United States' motion for summary judgment on its counterclaim. However, further procedures are necessary to establish the amount of the tax refund that is due to plaintiff. There will be a status conference on October 30, 1998 at 11:00 a.m. to schedule those procedures.
IT IS SO ORDERED.


11 N.Y.3d 922 (2009)
PEOPLE
v.
BEDELL.
Court of Appeals of the State of New York.
January 20, 2009.
Application in criminal cases for leave to appeal denied. (Read, J.).