68 F.3d 478
NOTICE:  Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.Gayford GANN, Appellee,v.ALLSTATE INSURANCE COMPANY, Appellant.
No. 94-3349WAM.
United States Court of Appeals, Eighth Circuit.
Submitted:  October 6, 1995.Filed:  October 11, 1995.

Before FAGG, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
PER CURIAM.


1
Gayford Gann sued Allstate Insurance Company (Allstate) after an explosion and fire destroyed his home.  Allstate claimed Gann's policy was unenforceable and the loss was caused by Gann's intentional acts.  The jury found in favor of Gann but awarded zero damages for the contents of his home.  Gann did receive the policy limit for the value of the house.  On appeal, Allstate contends it was entitled to judgment as a matter of law based on Gann's material misrepresentations, the verdict was inconsistent, and Allstate was entitled to relief from the judgment based on newly discovered evidence.  Having considered the record and the parties' briefs, we conclude the issues do not warrant a comprehensive opinion.


2
Because the jury could reasonably have found Gann's statements were not material misrepresentations under the terms of Allstate's policy, the district court correctly denied Allstate's motion for judgment as a matter of law.  Assuming Allstate adequately objected to the asserted inconsistency in the jury's verdict before entry of judgment, we conclude the jury could consistently have found Allstate did not carry its burden of proving Gann made material misrepresentations about the contents of his house, and Gann did not prove the value of the contents.  Finally, aside from the district court's finding that Allstate could have discovered the proposed new evidence earlier through due diligence, we cannot say that Allstate's new evidence probably would have produced a different result at a new trial.


3
We thus affirm the judgment of the district court.  See 8th Cir.  R.47B.


4
A true copy.

Attest:

5
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

