                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wrecked his car, and Nationwide rescinded the policy.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-
