* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

JAN 15 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

IVANIA D. LAWRENCE,

Plaintiff-Appellant,

v.

STATE FARM FIRE AND

CASUALTY COMPANY,

Defendant-Appellee.

No. 97-5127

(D.C. No. 95-CV-639-E)

(N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.

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. 
1 This court has jurisdiction to consider this appeal. The appeal ripened after

the district court entered a certification order under Fed. R. Civ. P. 54(b). See

Lewis v. B.F. Goodrich Co. , 850 F.2d 641, 645 (10th Cir. 1988). 

-2-

Plaintiff brought suit seeking to recover for fire losses allegedly covered by

a homeowner’s policy issued by defendant and for bad faith breach of contract by

defendant. Plaintiff also sought punitive damages. Defendant moved for

summary judgment contending (1) that plaintiff’s daughter made irreconcilable

sworn statements and that these statements constituted material

misrepresentations which voided the policy and (2) that the existence of a

legitimate dispute barred plaintiff from recovering damages for bad faith and

punitive damages. Plaintiff responded by arguing that the policy’s provision

regarding misrepresentation is broader than permitted by Okla. Stat. tit. 36,

§ 4803 and therefore is void. Also, she alleged that even if the provision is valid,

defendant had an obligation to deal fairly and in good faith with her and that

enforcement of the provision would cause defendant to obtain an

“unconscientious advantage” over her, an innocent insured, see Okla. Stat. tit. 25,

§ 9. The district court granted defendant’s motion for summary judgment,

concluding (1) that the policy, which had been approved by the state insurance

commissioner, did not violate § 4803 and (2) that defendant did not gain any

“unconscientious advantage.” Plaintiff appealed. 1
-3-

We review the grant of summary judgment de novo, applying the same legal

standard used by the district court. See Byers v. City of Albuquerque , 150 F.3d

1271, 1274 (10th Cir. 1998). 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.” 

Fed. R. Civ. P. 56(c). 

On appeal, plaintiff continues to argue that the provision voiding the policy

for material misrepresentation impermissibly deviates from the language

mandated by Okla. Stat. tit. 36, § 4803 and therefore is unenforceable. We

conclude that the district court accurately construed § 4803 and the pertinent

portions of the insurance policy and correctly concluded that the policy does not

violate Oklahoma law. As the district court found, plaintiff misinterprets § 4803. 

Accordingly, we affirm for substantially the reasons stated in the attached district

court’s order filed June 10, 1997. 

Plaintiff also argues that even if the policy is not void under § 4803,

defendant’s obligation to deal fairly and in good faith precluded it from voiding

the policy because the false sworn statements were made by her nineteen-year-old

daughter, an additional insured under the policy’s definitions. Plaintiff believes

defendant may not deny coverage to her because she is an innocent party and
2 Defendant does not concede that plaintiff is innocent. For purposes of this

appeal only, we assume, without deciding, that she is. 

-4-

because her daughter made the false statements after she had moved out of

plaintiff’s household. As the district court determined, plaintiff’s purported

innocence 2 does not result in defendant obtaining an “unconscientious advantage.” 

Cf. United Servs. Auto. Ass’n v. McCants , 944 P.2d 298, 300 (Okla. 1997)

(holding innocent insured was barred from recovering from insurer). 

Plaintiff’s argument that her daughter was not an insured at the time she

made the false statements is raised for the first time on appeal. This court need

not consider the argument. See Walker v. Mather (In re Walker) , 959 F.2d 894,

896 (10th Cir. 1992). In any event, the daughter was an insured at the time of the

fire. Plaintiff fails to present any authority, nor did we find any, indicating that

the daughter must have had insured status at the time she made the false

statements. 

Accordingly, we conclude, under the facts of this case, that defendant did

not breach any obligation to deal fairly and in good faith. See Timberlake Constr.

Co. v. U.S. Fidelity & Guar. Co. , 71 F.3d 335, 343-44 (10th Cir. 1995) (citing

Oklahoma law for proposition that if there is legitimate dispute regarding

coverage, as matter of law, insurer does not breach good faith duty merely by

refusing to pay claim). 
-5-

Finally, plaintiff argues that defendant is not insulated from punitive

damages despite the existence of a legitimate dispute between the parties. 

Because defendant acted fairly and in good faith, it would not be subject to

punitive damages. See Manis v. Hartford Fire Ins. Co. , 681 P.2d 760, 762 (Okla.

1984). 

The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED. Plaintiff’s motion to dismiss the appeal as

premature is DENIED as moot. Plaintiff’s motion to certify issues to the

Oklahoma Supreme Court is DENIED. See Allstate Ins. Co. v. Brown , 920 F.2d

664, 667 (10th Cir. 1990) (noting certification is appropriate where legal question

is novel and applicable state law is unsettled). 

Entered for the Court

Wade Brorby 

Circuit Judge
Attachment not available electronically.