Nationwide Property & Casualty Insurance Co. v. Faircloth , 845 F.3d 378 ( 2016 )


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  •                 United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 15-3378
    ___________________________
    Nationwide Property and Casualty Insurance Company
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Donald R. Faircloth, Jr.
    lllllllllllllllllllll Defendant - Appellant
    Robert Jones; Carolyn Jones; Randall Cohea
    lllllllllllllllllllll Defendants
    ____________
    Appeal from United States District Court
    for the Eastern District of Arkansas - Jonesboro
    ____________
    Submitted: September 22, 2016
    Filed: December 28, 2016
    ____________
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
    ____________
    SMITH, Circuit Judge.
    Donald Faircloth purchased an automobile insurance policy online from
    Nationwide Property and Casualty Insurance Company (“Nationwide”). Faircloth
    wrecked his car, and Nationwide rescinded the policy. Before the district court,1
    Nationwide sought declaratory judgment that it had no duty to indemnify or defend
    Faircloth under the policy’s coverage because Faircloth made material
    misrepresentations in his online insurance application. The district court granted
    summary judgment to Nationwide, concluding that Nationwide was entitled to rescind
    the policy because Faircloth misrepresented the “primary use” of his vehicle. We
    affirm.
    I. Background
    In May 2013, Donald Faircloth applied online for an automobile insurance
    policy from Nationwide. The application asked Faircloth to identify the “primary use”
    of the vehicle from a multiple choice list. According to Nationwide’s reproduction
    of the online application, Faircloth had three choices: “Work/School (commute
    to/from, errands)”; “Pleasure (recreational driving)”; and “Business (deliveries, sales
    calls, taxi).” Faircloth answered “Work.”2 Nationwide approved Faircloth’s
    application and issued a policy.
    On June 30, 2013, Faircloth hydroplaned, lost control of his vehicle, and
    crashed. On July 18, 2013, Nationwide decided to rescind Faircloth’s policy because
    Faircloth’s online application represented that Faircloth would maintain continuous
    insurance coverage until the Nationwide policy took effect, but Faircloth’s former
    insurance policy allegedly lapsed before the Nationwide policy took effect.
    1
    The Honorable D.P. Marshall Jr., United States District Judge for the Eastern
    District of Arkansas.
    2
    It is somewhat disputed whether Faircloth answered “work/school” or “work.”
    Faircloth contends that he answered “work,” and Nationwide contends that he
    answered “work/school.” Although the district court used “work/school,” the
    distinction is immaterial for the purposes of our analysis.
    -2-
    On November 4, 2013, Nationwide filed an action seeking declaratory
    judgment that it had no duty to indemnify or defend Faircloth under the policy’s
    coverage because Faircloth made material misrepresentations in his application.
    Nationwide subsequently notified Faircloth that it was rescinding his policy and
    tendered his premiums to him; Faircloth did not accept or deposit the tender. On
    September 8, 2014, Nationwide deposed Faircloth and discovered that Faircloth used
    the vehicle to make business-related deliveries, putting over 1,200 miles a week on
    the vehicle for such deliveries. Nationwide contends that these facts establish that
    Faircloth also misrepresented his “primary use” of the vehicle as “work” instead of
    “business.” Faircloth and Nationwide filed competing motions for summary
    judgment.
    The district court granted Nationwide’s motion for summary judgment and
    denied Faircloth’s motion as moot. Although Faircloth “kind-of dispute[d] whether
    the online application he filled out included the parentheticals” that explain the three
    primary-use choices, the court determined that Faircloth failed to raise a material
    question of fact about how the primary-use choices appeared. Thus, “[a] reasonable
    fact finder could come to only one conclusion: the parentheticals were there.”
    Therefore, the court held that Faircloth misrepresented his primary use of the vehicle
    because “[a] reasonable person in Faircloth’s position—a person putting 1,200 miles
    a week on his car delivering things—would have chosen business as the primary use.”
    II. Discussion
    Faircloth argues that the district court erred in granting Nationwide’s motion
    for summary judgment. First, he argues that the district court failed to address the
    “materiality” of the purported misrepresentation. Second, Faircloth argues that even
    if the misrepresentation was material, the application was ambiguous and Nationwide
    “cannot rescind the policy based on misrepresentations that it caused or induced.”
    Additionally, Faircloth argues that Nationwide failed to properly effectuate rescission
    -3-
    under Arkansas law, Nationwide is estopped from rescinding the policy, and his third-
    party-liability coverage claim is not moot.
    “We review de novo the district court’s grant of summary judgment and may
    affirm the judgment on any basis supported by the record.” Hohn v. BNSF Ry. Co.,
    
    707 F.3d 995
    , 1000 (8th Cir. 2013). Considering the facts in the light most favorable
    to the nonmovant, “[w]e will affirm the district court’s grant of summary judgment
    if ‘there is no genuine dispute as to any material fact and the movant is entitled to
    judgment as a matter of law.’” Chew v. Am. Greetings Corp., 
    754 F.3d 632
    , 635 (8th
    Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). “Although the burden of demonstrating the
    absence of any genuine issue of material fact rests on the movant, a nonmovant may
    not rest upon mere denials or allegations, but must instead set forth specific facts
    sufficient to raise a genuine issue for trial.” Rohr v. Reliance Bank, 
    826 F.3d 1046
    ,
    1052 (8th Cir. 2016) (quoting Wingate v. Gage Cty. Sch. Dist., No. 34, 
    528 F.3d 1074
    , 1078–79 (8th Cir. 2008)).
    “The burden of proof is particularly relevant when the party with the burden
    of proof moves for summary judgment and the opposing party presents evidence
    contesting the veracity of the movant’s evidence.” United States v. 3234 Washington
    Ave. N., 
    480 F.3d 841
    , 845 (8th Cir. 2007). “In this situation, if the testimony of a
    witness . . . is necessary to carry the movant’s burden of proof, we look carefully at
    whether the witness is unbiased and competent, and whether his testimony is positive,
    internally consistent, unequivocal, and in full accord with the documentary exhibits.”
    U.S. Commodity Futures Trading Comm’n v. Kratville, 
    796 F.3d 873
    , 890 (8th Cir.
    2015) (quoting 3234 Washington Ave. 
    N., 480 F.3d at 845
    ). “If the movant makes this
    showing, then the opposing party cannot force a trial merely to cross-examine the
    witness or in the hope ‘that something might turn up at the trial.’” 3234 Washington
    Ave. 
    N., 480 F.3d at 845
    (quoting Lundeen v. Cordner, 
    354 F.2d 401
    , 408 (8th Cir.
    1966)). However, summary judgment is improper when “‘specific facts are alleged
    -4-
    that if proven would call the credibility of the moving party’s witness into
    doubt,’ . . . especially when the challenged testimony ‘is an essential element of the
    plaintiff’s case.’” 
    Id. (quoting Lodge
    Hall Music, Inc. v. Waco Wrangler Club, Inc.,
    
    831 F.2d 77
    , 81 (8th Cir. 1987)). “Indeed, if the credibility of a critical interested
    witness is even partially undermined in a material way by the non-moving party’s
    evidence, summary judgment in favor of the party with the burden of proof should be
    denied.” 
    Id. As a
    federal court sitting in diversity, we apply the substantive law of the forum
    state—Arkansas. See 
    Chew, 754 F.3d at 635
    . Under Arkansas law, an insurer may
    rescind an insurance policy for any misrepresentation that is “material,” even if such
    misrepresentation is not related to the loss sustained. See S. Farm Bureau Life Ins.
    Co. v. Cowger, 
    748 S.W.2d 332
    , 336 (Ark. 1988). The insurer bears the burden of
    showing that had it known of the misrepresented facts, “the circumstances were such
    that it would not have issued the present coverage.” Brooks v. Town & Country Mut.
    Ins. Co., 
    741 S.W.2d 264
    , 265 (Ark. 1987). Notably, “[t]he materiality to the risk of
    a fact misrepresented, omitted or concealed is a question of fact so long as the matter
    is debatable. It is a question of law only when so obvious that a contrary inference is
    not permissible.” Old Republic Ins. Co. v. Alexander, 
    436 S.W.2d 829
    , 833 (Ark.
    1969).
    Although the district court did not expressly address whether Faircloth’s
    misrepresentation was material, we “may affirm the judgment on any basis supported
    by the record.” 
    Hohn, 707 F.3d at 1000
    . Here, the record shows that Nationwide met
    its burden of establishing that it would not have issued the same coverage had
    Faircloth chosen “business” as his primary use. Nationwide presented the affidavit
    of Richard A. Yuill, an underwriter for Nationwide, which stated:
    Had Nationwide known of Mr. Faircloth’s use of his vehicle as a
    delivery service in connection with his employment, including his full-
    -5-
    time use [of] the vehicle as a delivery driver, he would not have been
    issued this policy over the online application. The policy purchased
    would not have been available, and he would have[,] [i]nstead, been
    referred to the Nationwide Call Center in order to purchase a business
    automobile insurance policy for the vehicle.
    Because “[t]he policy purchased would not have been available” and Faircloth
    would have been referred to the call center “to purchase a business automobile
    insurance policy,” we conclude that had Nationwide known Faircloth’s primary use
    was “business,” it would not have issued the same policy. Faircloth argues that the
    district court overlooked “the admission by Yuill that ‘work’ and ‘business’ have the
    same colloquial meaning”; “the testimony by Yuill that there is no real criteria by
    which Nationwide determines the ‘primary use’ of a multi-use vehicle or the
    ‘materiality’ of a purported misrepresentation”; and “Yuill’s testimony that he . . . did
    not know how any of the bases for rescission affected either the price or risk of the
    Policy.” However, none of these assertions, if proved, “would call the credibility of
    the moving party’s witness into doubt” as to “an essential element of the
    [Nationwide’s] case,” 3234 Washington Ave. 
    N., 480 F.3d at 845
    , because none of
    these assertions contradict Yuill’s statement that Faircloth would have been referred
    to the Nationwide Call Center had he chosen “business” as his primary use. Thus,
    even assuming Yuill qualifies as an “interested witness,” his credibility was not
    “partially undermined in a material way by [Faircloth’s] evidence.” See 
    id. Except for
    a general assertion that “materiality” is a fact question, Faircloth failed to present any
    contrary evidence indicating that Nationwide would have issued the same policy had
    he selected “business” as his primary use. Therefore, Faircloth failed to raise a
    genuine question of material fact as to the materiality of the misrepresentation. And
    even viewing the facts in the light most favorable to Faircloth, “a contrary inference
    is not permissible” as to the materiality of the primary-use selection. See 
    Alexander, 436 S.W.2d at 833
    .
    -6-
    Alternatively, Faircloth argues that any misrepresentation (material or not) as
    to primary use was caused by ambiguities in the application and, therefore,
    Nationwide “cannot rescind the policy based on misrepresentations that it caused or
    induced.” We disagree. The district court correctly determined that Faircloth failed
    to raise a fact issue about how the application screen appeared. Therefore, the court
    presumes that the online application contained the parentheticals, which are not
    ambiguous as a matter of law. See Smith v. Prudential Prop. & Cas. Ins. Co., 
    10 S.W.3d 846
    , 850 (Ark. 2000) (noting that the existence of an ambiguity is a question
    of law).
    III. Conclusion
    Accordingly, we affirm the judgment of the district court.3
    ______________________________
    3
    Because we “may affirm the judgment on any basis supported by the record,”
    
    Hohn, 707 F.3d at 1000
    , we decline to address either party’s alternative arguments.
    To the extent those arguments could provide independent grounds for reversal, we
    have considered those arguments and find them to be without merit.
    -7-