UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALLSTATE INSURANCE COMPANY,
Plaintiff-Appellant,

v.                                                                    No. 98-2222

JASON LEE SLOAN,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
Glen M. Williams, Senior District Judge.
(CA-97-205-B, CA-97-220-B)

Submitted: April 30, 1999

Decided: May 19, 1999

Before WIDENER, MURNAGHAN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James N.L. Humphreys, Robert M. Hadden, HUNTER, SMITH &
DAVIS, L.L.P., Kingsport, Tennessee, for Appellant. Donald E.
Earls, J. Brent Fleming, EARLS & FLEMING, Norton, Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Allstate Insurance Company (Allstate) appeals from judgment
entered in favor of Jason Lee Sloan in its action seeking declaratory
judgment. We affirm.

Allstate filed a complaint for declaratory judgment against Sloan,
alleging that Sloan failed to cooperate in the processing of his claim
and that he misrepresented a material fact, i.e. , that he misrepresented
his primary residence in both his application for an insurance policy
and in his presentation of a claim under that policy. Sloan counter-
claimed, alleging breach of contract and defamation. At the close of
Plaintiff's case, Allstate moved for judgment as a matter of law. The
district court denied this motion and, at the close of Defendant's case,
allowed the case to go to the jury. The jury returned a verdict in favor
of Sloan. On appeal, Allstate contends that the district court erred in
denying its motion for judgment as a matter of law as to the issues
of Sloan's alleged misrepresentations and his failure to cooperate as
required by the policy.

On appeal, an order regarding a directed verdict is reviewed de
novo. See Parker v. Prudential Ins. Co. of Am. , 900 F.2d 772, 776
(4th Cir. 1996). The district court must direct a verdict if, without
weighing the evidence or considering the credibility of the witnesses,
it finds that a reasonable jury could reach but one conclusion or that
a verdict in favor of the non-moving party would necessarily be based
upon speculation and conjecture. See Gairola v. Virginia Dep't of
Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985). If, however the evi-
dence as a whole is susceptible of more than one reasonable infer-
ence, a jury issue is created and a motion for a directed verdict should
be denied. In making this determination, the evidence and all reason-
able inferences therefrom are reviewed in the light most favorable to
the non-moving party. See Hofherr v. Dart Indus., Inc., 853 F.2d 259,
261-62 (4th Cir. 1988).

Reviewing the evidence under this standard, we conclude that the
district court properly denied Allstate's motion. We therefore affirm.
We dispense with oral argument because the facts and legal conten-

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tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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