                             ___________

                             No. 95-1978
                             ___________

Michael J. Derickson, Sr.,      *
                                *
          Appellant,            *    Appeal from the United States
                                *    District Court for the
     v.                         *    Eastern District of Missouri.
                                *
Fidelity Life Association,      *
                                *
          Appellee.             *
                           ___________

                  Submitted:   December 12, 1995

                      Filed: February 27, 1996
                           ___________

Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.
                           ___________


WOLLMAN, Circuit Judge.


     Michael J. Derickson, Sr. appeals the district court's grant
of summary judgment for defendant Fidelity Life Association
(Fidelity) in this diversity action for payment of proceeds on a
life insurance policy. We reverse and remand for trial.

I.   BACKGROUND


     Fidelity issued a $50,000 insurance policy on the life of
Christopher Derickson in December 1992.          The policy named
Christopher's father, Michael J. Derickson, Sr. (Derickson), as the
beneficiary. At 7:20 p.m., April 13, 1993, Christopher was killed
in a one-car accident in which his car crossed the center line and
collided with a metal railing and two parked cars as he was driving
from the hospital after the birth of his first child. He had been
awake for approximately thirty-six hours and was on his way to his
parents' house to sleep. The only witness to the accident stated
in his deposition that Christopher did not apply his brakes and
that he must have fallen asleep at the wheel. The witness stated
that Christopher was not speeding or driving recklessly at the time
of the accident.


     Because   the    accident  occurred    within   the   two-year
contestibility period of the policy, Fidelity investigated
Derickson's claim for benefits. The investigation uncovered that
Christopher's     application    for    insurance     included    a
misrepresentation regarding his driving record. In response to the
question: "Have you had your driver's license suspended or revoked
in the past three years," the "No" box was checked and
Christopher's driver's license number was written in the space
provided. Christopher's driving record showed that his driver's
license had been suspended nine times and revoked four times in the
three years prior to the application date, the most recent
revocation occurring on June 30, 1992.       Christopher's driving
offenses included running stoplights or stop signs, following too
close, speeding, failing to yield the right of way, and driving
with a suspended license.       Christopher's license was under
revocation at the time of the accident.


     Fidelity denied coverage and returned the paid premiums to
Derickson, stating that it would not have issued the policy had it
known of Christopher's poor driving record. Derickson then brought
this action to recover the policy amount, plus interest, costs, and
attorney's fees.

II.   DISCUSSION


     We review the district court's grant of summary judgment de
novo, and we will affirm if the evidence, viewed in the light most
favorable to the non-moving party, shows that no dispute of
material fact exists and that the moving party is entitled to
judgment as a matter of law. Michalski v. Bank of America Ariz.,
66 F.3d 993, 995 (8th Cir. 1995). If the evidence would allow a

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reasonable jury to return a verdict for the non-moving party,
summary judgment is not appropriate. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Because this is a diversity case,
we also review de novo the district court's interpretation of state
law. Michalski, 66 F.3d at 995 (citing Salve Regina College v.
Russell, 499 U.S. 225, 231 (1991)).


     Missouri law requires that the matter misrepresented in an
application for life insurance must have "actually contributed" to
the insured's cause of death to be deemed material and to thus
render the policy void.    See Mo. Rev. Stat. § 376.580 (1986);
Bellamy v. Pacific Mut. Life Ins. Co., 651 S.W.2d 490, 493 n.2 (Mo.
1983) (en banc). This causation issue is a question for the trier
of fact. United States v. Home Life Ins. Co., 508 F. Supp. 559,
563 (E.D. Mo. 1980). The court must determine, however, whether
the evidence authorizes submission of the case to the jury. Winger
v. General American Life Ins. Co., 345 S.W.2d 170, 182 (Mo. 1961).


     Although Derickson asserted that Christopher's application was
filled out by the insurance agent using one of Christopher's
previous policies, Derickson does not dispute that Christopher
signed the application and is thus responsible for making the false
representation. The dispute between the parties, then, is whether
the matter falsely represented contributed to Christopher's death.
Fidelity argues that Christopher misrepresented the fact that he
was a reckless and negligent driver and that his negligent driving
was the cause of his death.          Thus, his misrepresentation
contributed to his death as a matter of law. Derickson, on the
other hand, argues that Christopher was not driving recklessly, as
in his past offenses, and that whether he was negligent in this
instance in falling asleep at the wheel is a factual question that
should be left to the trier of fact.


     We conclude that the causation issue in this case should have
been left to the jury. We believe that a jury could reasonably

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find that Christopher was not negligent or reckless in driving home
after being up all night in attendance at the birth of his first
child.    Thus, a jury could find that the matter Christopher
misrepresented--his reckless or negligent driving record--did not
contribute to the accident, no more than did the fact that
Christopher's license was under revocation at the time of the
accident cause his death.


     Fidelity's reliance on Home Life, 508 F. Supp. at 559, is
misplaced. In that case, the judge was the trier of fact, and he
determined as a factual matter and not as a matter of law that the
issue the insured misrepresented in his insurance application--his
failure to reveal his emotional instability--contributed to his
suicide.   The same factual analysis is required in the present
case.


     The judgment is reversed, and the case is remanded to the
district court for trial.


     A true copy.


          Attest:


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




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