                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   July 14, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    DAVID WEBB; BEN FREEMAN;
    MICHAEL FREEMAN,

                Plaintiffs-Appellants,
                                                         No. 08-3267
    v.                                         (D.C. No. 6:07-CV-01125-WEB)
                                                          (D. Kan.)
    WEST COAST LIFE INSURANCE
    COMPANY,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.



         This diversity action involves a decision by West Coast Life Insurance

Company (West Coast) to deny payment to plaintiffs of the proceeds of a life

insurance policy insuring the life of Diane Kelley. Ms. Kelley applied for the

policy on or about March 18, 2002. West Coast issued the policy soon thereafter.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Less than seven months later, on October 9, 2002, Ms. Kelley died of metastatic

cancer. Following her death, plaintiffs submitted claims for the policy benefits,

which West Coast denied. West Coast denied the claims because it found that

Ms. Kelley had failed to disclose certain information in response to questions

contained in the policy application. The omitted information concerned numerous

visits she had with various physicians and specialists in the months preceding her

application. She consulted these physicians for pains relating to suspected

multiple myeloma, a form of cancer. West Coast determined that, had its

insurance underwriters known of these medical visits and the findings made by

her doctors, it would not have issued the insurance policy.

      After West Coast denied their claims, plaintiffs filed this action in district

court, alleging that West Coast breached the insurance contract by failing to pay

life insurance policy benefits to them. West Coast counterclaimed for rescission

of the policy on the basis of fraud. The district court granted West Coast’s

motion for summary judgment on plaintiffs’ breach of contract claim and

rescinded the policy. It found that the evidence demonstrated, for summary

judgment purposes, that Ms. Kelley had misrepresented material facts in her

application that resulted in West Coast issuing a life insurance policy; that the

material misrepresentations were extensive; that Ms. Kelley entered into the life

insurance contract fraudulently; that West Coast justifiably relied on her




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misrepresentations; and that the information she failed to disclose was directly

related to the cause of her death.

      We review the district court’s grant of summary judgment de novo,

applying the same standard as the district court. Pinkerton v. Colo. Dep’t of

Transp., 563 F.3d 1052, 1058 (10th Cir. 2009). Summary judgment is appropriate

if “there is no genuine issue as to any material fact and . . . the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In making this

determination, we “examine the record and all reasonable inferences that might be

drawn from it in the light most favorable to the non-moving party.” Pinkerton,

563 F.3d at 1058 (quotation omitted). “At this stage, credibility determinations,

the weighing of the evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge. . . . The evidence of the non-movant

is to be believed, and all justifiable inferences are to be drawn in his favor.”

Id. (quotation omitted). But “[w]here the record taken as a whole could not lead

a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue

for trial.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)).

      On appeal, plaintiffs argue that the district court erred in granting

West Coast the benefit of the reasonable inferences to be drawn from the

evidence. They also argue that summary judgment is inappropriate because




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factual issues remain concerning Ms. Kelley’s intent in providing her answers on

the insurance application.

      Having reviewed and considered the parties’ briefs, the record, and the

applicable law, we AFFIRM the district court’s grant of summary judgment and

rescission of the policy, for substantially the same reasons the district court

articulated in its well-reasoned decision of August 29, 2008.


                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




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