               Case: 13-15873       Date Filed: 02/25/2015      Page: 1 of 10


                                                                     [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-15873
                              ________________________

                         D.C. Docket No. 3:13-cv-00018-TCB



BROOKS FIVEASH,
BOBBIE FIVEASH,

                                                                 Plaintiffs-Appellants,

versus

ALLSTATE INSURANCE COMPANY,

                                                                 Defendant-Appellee.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                    (February 25, 2015)

Before WILLIAM PRYOR and JORDAN, Circuit Judges, and HAIKALA, *
District Judge.


*
 Honorable Madeline Hughes Haiklala, United States District Judge for the Northern District of
Alabama, sitting by designation.
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PER CURIAM:

      Brooks and Bobbie Fiveash appeal the district court’s order granting

judgment as a matter of law in favor of Allstate on their breach of contract claim.

With the benefit of oral argument, and for the reasons that follow, we reverse and

remand.

                                       I

      In May of 2009, the Fiveash home in Tallapoosa, Georgia, sustained fire

damage. The Fiveashes filed an insurance claim under their policy with Allstate.

Fire investigators concluded that the fire had been set intentionally, as the doors to

the home were locked at the time of the fire and there was no sign of forced entry.

Allstate conducted its own investigation, during which its investigators interviewed

Brooks and Bobbie Fiveash. Both stated during their examinations under oath that

only they and their son had keys to the house. Allstate later learned that the

Fiveashes’ daughter, Brooks Ann, also had a key, and Brooks Ann’s husband had

been seen near the home shortly before the fire. Thus, Allstate determined that the

Fiveashes had made a material misrepresentation when they failed to inform the

investigators that their daughter had a key to the home and denied the Fiveashes’

claim under the policy fraud provision: “We do not cover any loss or occurrence in

which any insured person has concealed or misrepresented any material fact or

circumstance.”

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       The Fiveashes filed a complaint against Allstate alleging breach of contract

and bad faith in connection with the denial of payment under the policy. At trial,

both Brooks and Bobbie testified that Brooks Ann had a key to the house and that

they had failed to tell Allstate investigators about the key. They both further

admitted that they had not corrected this misstatement when they received the

errata sheets from their examinations under oath. They explained that their intent

was not to deceive Allstate, but rather that they had forgotten their daughter had a

key.

       After the district court denied Allstate’s motion for judgment as a matter of

law, the jury found in favor of the Fiveashes. The court then granted Allstate’s

renewed motion, finding that the testimony regarding the number of keys was

material, and that the Fiveashes’ intent to deceive Allstate could be inferred from

the circumstances.        The Fiveashes appeal the district court’s order granting

judgment as a matter of law to Allstate on their breach of contract claim. 1

                                              II

       We have diversity jurisdiction over this matter. See 28 U.S.C. § 1332.

Because the claim arose in Georgia, we apply Georgia substantive law. See

McMahan v. Toto, 256 F.3d 1120, 1131 (11th Cir. 2001). Moreover, the parties do

not dispute that Georgia substantive law governs.

1
  The district court granted Allstate’s motion for judgment as a matter of law with respect to the
bad faith claim. The Fiveashes do not appeal from this decision.
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      In a diversity case, we apply a federal standard in addressing the propriety of

a judgment as a matter of law. See Jones v. Miles Laboratories, Inc., 887 F.2d

1576, 1578 (11th Cir. 1989). “We review de novo a district court’s grant of

judgment as a matter of law, applying the same standard as the district court.”

Collins v. Marriott Int’l., Inc., 749 F.3d 951, 956-57 (11th Cir. 2014) (internal

quotation marks and citation omitted).

      “A district court should grant judgment as a matter of law when the plaintiff

presents no legally sufficient evidentiary basis for a reasonable jury to find for him

on a material element of his cause of action.” Id. at 957 (internal quotation marks

and citation omitted). When determining whether judgment as a matter of law is

proper “the court should review all of the evidence in the record, but in doing so,

the court must draw all reasonable inferences in favor of the nonmoving party, and

it may not make credibility determinations or weigh the evidence.” Id. (citing

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097,

2110 (2000) (internal quotation marks and alteration omitted). See also Davila v.

Menendez, 717 F.3d 1179, 1184 (11th Cir. 2013) (explaining that the court, when

deciding whether to issue a judgment as a matter of law, “must refrain from

deciding the credibility of witnesses or weighing the evidence”) (internal quotation

marks, citation, and alterations omitted). In other words, judgment as a matter of

law “can be [entered] only when the evidence favoring the [movant] is so one-


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sided as to be of overwhelming effect.”          EEOC v. Massey Yardley Chrysler

Plymouth, Inc., 117 F.3d 1244, 1250 (11th Cir. 1997).

                                         III

      Under a concealment or fraud provision in an insurance contract, coverage is

void if there has been a willful and intentional misrepresentation of material facts

made for the purpose of defrauding the insurer. See Perry v. State Farm Fire &

Cas. Co., 734 F.2d 1441, 1443 (11th Cir. 1984) (applying Georgia law).

Significantly, the Georgia Supreme Court “has repeatedly held that the burden [is]

upon the insurer to prove an affirmative defense, such as fraud on the part of the

insured in obtaining the policy, or that a loss apparently covered by the policy

came within an exclusionary clause contained in the policy.” Reserve Life Ins. Co.

v. Ayers, 121 S.E.2d 649, 654 (Ga. 1961). See also State Farm Mut. Auto. Ins. Co.

v. Wendler, 172 S.E.2d 360, 363 (Ga. Ct. App. 1969) (concluding that the “burden

was upon [the insurer] in asserting an affirmative defense[, in this case fraud,] to

establish all the material elements thereof”).

      When considering questions of material misrepresentations in insurance

contracts, “Georgia courts employ a reasonableness test, an objective standard of

conduct against which to measure the effect of the insured’s false declarations.”

Woods v. Indep. Fire Ins. Co., 749 F.2d 1493, 1497 (11th Cir. 1985).

      It must appear that these false statements were made willfully and
      intentionally for the purpose of defrauding the insurer. Such a clause
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      in the policy would not cover misstatements or exaggerated claims of
      loss or perjury in connection therewith committed by the insured
      during the trial. Neither would the misstatement by the insured in his
      sworn statement to the company made shortly after the fire as to the
      value of some of the property destroyed be covered by such a
      condition unless it was shown that these misstatements were willfully
      and intentionally made for the purpose of defrauding the insurer.

Am. Alliance Ins. Co. v. Pyle, 8 S.E.2d 154, 160 (Ga. Ct. App. 1940). See also

Superior Fire Ins. Co. v. Peters, 10 S.E.2d 94, 98 (Ga. Ct. App. 1940) (affirming

the denial of a motion for a new trial where “[t]he evidence show[ed] that the

plaintiff did not intentionally falsely swear in the proof furnished so as to work a

forfeiture of the policy”).    An intent to defraud can be inferred when the

misrepresentation is made willfully and intentionally. See generally Claflin v.

Commonwealth Ins. Co., 110 U.S. 81, 95, 3 S.Ct. 507, 515 (1884).

      Here, the parties do not dispute that the number of keys and who had access

to them was material to Allstate’s investigation of the fire. In fact, both Brooks

and Bobbie testified that they misstated the number of keys in their earlier

examinations under oath. And Bobbie acknowledged at trial that such information

was material. Thus, the only question is whether the Fiveashes’ failure to inform

Allstate that their daughter had a key was willful and intentional, and meant to

defraud Allstate.

      Generally, the question of whether the insured acted with intent to deceive is

a question for the jury. See Ga. Farm Bureau Mut. Ins. Co. v. Richardson, 457


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S.E.2d 181, 184 (Ga. Ct. App. 1995) (explaining that if there is any evidence to

support a jury’s finding of intent, the court should not grant judgment as a matter

of law). “There must be a willful intent to defraud rather than an innocent

mistake.” Watertown Fire Ins. Co. v. Grehan, 74 Ga. 642, 656-57 (1885). See

also Am. Ins. Co. v. Jass, 22 F.2d 793, 794 (5th Cir. 1927) (concluding that it was

for the jury to decide whether the insured was simply mistaken or made the false

statement willfully); Camden Fire Ins. Ass’n v. Penick, 2 F.2d 964, 965 (5th Cir.

1924) (explaining that it is for the jury to decide whether the insured’s

misstatement was an innocent error).

       In this case, both Bobbie and Brooks Fiveash told Allstate investigators, fire

department investigators, and their own investigator that only they and their son

had keys to the house. At no time did either of them correct this information. 2 At

trial, Bobbie testified that while she “did the best [she] could” answering questions

during the examination, she admittedly “end[ed] up guessing a lot.” Brooks

testified that he was not trying to mislead Allstate when he failed to mention his

daughter had a key. The jury also heard deposition testimony of the Fiveashes’ son

that he was unaware that his sister had a key to the house. Brooks further testified




2
   In a subsequent deposition, the Fiveashes’ daughter, Brooks Ann, stated she had a key for at
least three years leading up to the fire. But this deposition was not introduced at trial, and
Brooks Ann did not testify as a witness.

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that he had added rooms on to the home to create space for family members over

the years and that he and Bobbie had lost many sentimental items in the fire.

      Allstate presented testimony to show that the Fiveashes had tried to sell the

house some years before the fire, after Bobbie’s mother died, but had not been able

to do so. After their retirement, the Fiveashes wanted to travel more and were not

at the house for extended periods. Brooks had also made a previous insurance

claim for a lost ring. But after the ring was recovered, he never returned the

money to Allstate. And the Fiveashes’ good furniture had been moved out of the

house prior to the fire and replaced with inexpensive furniture at the time of the

blaze. Finally, Brooks testified that he handled all the finances and Bobbie never

wrote checks, but there was evidence in the record of checks Bobbie had signed.

      In finding for the Fiveashes, the jury rejected Allstate’s argument that

Brooks and Bobbie acted willfully and with the intent to defraud. The question we

must ask is whether the evidence at trial was so one-sided that it required a finding

that the Fiveashes made the misrepresentations willfully and with the intent to

deceive.

      We cannot say that it was. Rather, we conclude that where, as here, there

are “obvious conflict[s] in the evidence,” a judgment as a matter of law is

improper. See Allstate Ins. Co. v. Baugh, 327 S.E.2d 576, 578 (Ga. Ct. App. 1985)




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(explaining that where there is conflicting evidence as to insured’s misstatement to

insurance company, the court should deny a motion for a directed verdict).

       Allstate relies on Meyers v. State Farm Fire and Casualty Company, 801 F.

Supp. 709 (N.D. Ga. 1992), as support for the district court’s order. The district

court in Meyers found that the insureds’ claims of innocent mistake were

“disingenuous at best” because the insureds had been uncooperative in the

investigation by failing to turn over financial records at State Farm’s request. Id.

at 715-16. Allstate argues that the Fiveashes were similarly uncooperative. We

disagree. The only thing the Fiveashes allegedly failed to submit were their cell

phone records. Allstate has not shown, much less argued, that these records were

relevant to its investigation, and the testimony at trial established that the Fiveashes

eventually submitted their cell phone records.3

       We simply cannot, as the district court did, necessarily infer the Fiveashes’

intent to defraud the insurance company. The jury had the opportunity to assess

the credibility of the witnesses, and, having done so, believed the Fiveashes’

explanation that the misrepresentation was an innocent mistake. The jury further

heard evidence of motive and possible suspects, including Brooks Ann’s husband,

but chose to credit the Fiveashes’ version of events. Given the conflict in the


3
    The Fiveashes gave Allstate their cell phone numbers and an authorization to obtain the
records directly from the cell phone company. Allstate was unable to obtain the records, and the
Fiveashes eventually obtained the records for them as requested.
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evidence and these credibility determinations, we cannot say that the only rational

conclusion was that Allstate met its burden in proving by a preponderance of the

evidence that the Fiveashes made their misrepresentation willfully and with intent

to defraud. Therefore, the district court erred by granting Allstate’s renewed

motion for judgment as a matter of law.

                                          IV

      We thus reverse the district court’s order and remand with instructions to

reinstate the jury’s verdict for the Fiveashes.



      REVERSED and REMANDED.




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