                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAR 4 2003
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    JOHN LATTA,

                Plaintiff - Appellant,

          and

    TRACY LATTA; SADIE LATTA,                          No. 02-5109
    by and through her Mother and next           (D.C. No. 01-CV-776-K)
    friend, TRACY LATTA,                            (N.D. Oklahoma)

                Plaintiff,

    v.

    GREAT AMERICAN LIFE
    INSURANCE COMPANY,

                Defendant - Appellee.


                             ORDER AND JUDGMENT         *




Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff-appellant John Latta appeals from the district court’s order

granting summary judgment in favor of defendant Great American Life Insurance

Company (Great American) on Mr. Latta’s claim for breach of fiduciary duty.

We affirm.

       This case arises out of Mr. Latta’s application for a life insurance policy

with Great American. Both Mr. Latta and his wife, Tracy Latta, applied for life

insurance on April 16, 2000. At the time of their applications, each signed a

Notice and Consent for Testing form, in which they agreed to blood testing,

including HIV testing, in connection with their applications for insurance. This

form contained the following provision:

              If your HIV test results are normal, no routine notification will
       be sent to you. If the HIV test results are other than normal, the
       Insurer or your designated physician will contact you. The Insurer
       may also contact you if there are other abnormal test results which, in
       the Insurer’s opinion, are significant. The Insurer may ask you for
       the name of a physician to whom you may authorize disclosure and
       with whom you may wish to discuss the results.

R., doc. 20, ex. B, “Notice and Consent Form,” at 1 (emphasis added).




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       On April 19, 2000, the Lattas were administered blood and urine tests by an

agent of Portamedic, Inc. Portamedic contracts with Great American to conduct

insurance physicals. Portamedic’s agent ran the blood samples through a

centrifuge to separate out the serum, then mailed them to a laboratory.

       The results from the April 19 blood draw were inconclusive. Mrs. Latta’s

blood serum tested positive (or “reactive”) for Hepatitis C, while her plasma

result was negative (or “non-reactive”). The laboratory that conducted the testing

concluded that Portamedic’s agent had improperly labeled the samples, and

requested a redraw.

       Portamedic’s agent conducted a second blood draw on May 1, 2000. This

time, the blood test results were consistent. They showed that Mr. Latta had

Hepatitis C and that Mrs. Latta did not. Great American was notified of the blood

test results on May 17, 2000.

       The next day, Great American wrote to Mr. Latta, informing him his

application had been denied. Great American’s letter to Mr. Latta informed him

that “during the course of our routine underwriting process we acquired

information that led us to decline your application.”   Id. , ex. L. It further notified

him that “[y]ou may request disclosure of this underwriting information by

writing us. Please include your physician’s name and address as well as your own

name and address on your request.”      Id.


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        On June 9, 2000, Mr. Latta requested that the lab results be faxed to his

doctor. 1 Great American ordered Mr. Latta’s file from its file room, and faxed the

results, showing that he was infected with Hepatitis C, to his doctor on June 26,

2000.

        Mr. Latta, Mrs. Latta, and their daughter thereafter filed this action against

Great American and Hooper Holmes, Inc. d/b/a Portamedic, Inc. Their amended

complaint included claims for negligence, intentional/negligent infliction of

severe emotional distress, and breach of fiduciary duty. The Lattas invoked two

basic theories of recovery: (1) the defendants infected Mr. Latta with Hepatitis C

during the first blood draw, and (2) they failed to notify Mr. Latta in a timely

manner of his positive test results for Hepatitis C.

        The Lattas subsequently dismissed all their claims against Hooper Holmes,

and their claims against Great American based upon a theory that the defendants

infected Mr. Latta with Hepatitis C. The only remaining claim concerned the

Lattas’ allegation that Great American breached a fiduciary duty by failing to

notify them of the positive test result for Hepatitis C. The district court granted

summary judgment on this claim, concluding that the Lattas failed to show the


1
       In his affidavit in opposition to summary judgment, Mr. Latta states that
he “was only informed that I had a serious health care condition, hepatitis C, after
a representative of Great American called my home on a follow up sales call.”
R., doc. 25, ex. C. He does not deny that he received Great American’s May 18,
2000 letter, however.

                                          -4-
existence of a fiduciary duty that would support such a cause of action, and that

there was no breach of a fiduciary duty in any event. R., doc. 27.

             We review the district court’s grant of summary judgment
      de novo. Summary judgment is appropriate if the pleadings,
      depositions, answers to interrogatories, and admissions on file,
      together with the affidavits, if any, show that there is no genuine
      issue as to any material fact and that the moving party is entitled to a
      judgment as a matter of law. When applying this standard, we view
      the evidence and draw reasonable inferences in the light most
      favorable to the non-moving party.

Tax & Acct’g Software Corp. v. United States    , 301 F.3d 1254, 1257 (10th Cir.

2002) (citations and quotations omitted).

      Having carefully reviewed the record, the briefs, and the applicable law in

light of the above standards, we conclude that the district court correctly granted

summary judgment in favor of Great American on the Lattas’ remaining claim for

fiduciary duty. We therefore AFFIRM the order of summary judgment, for the

same reasons stated in the district court’s order of June 19, 2002. Mr. Latta’s

motion to file in forma pauperis is GRANTED.

                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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