* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously to grant the parties’ request for a dec ision 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 ba d 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 permitt ed by Okla. Stat. tit. 36, § 4803 and therefore is void. Also, she alleged th at even if the provision is valid, defendant had an obligation to deal fairly and in g ood 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 motionfor summary judgment, concluding (1) that the policy, which had been appr oved by the state insurance commissioner, did not violate § 4803 and (2) that d efendant did not gain any “unconscientious advantage.” Plaintiff appealed. 1-3-

We review the grant of summary judgment de novo, ap plying 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 admiss ions on file, together with the affidavits, if any, show that there is no genuine i ssue 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 pr ovision voiding the policy for material misrepresentation impermissibly deviat es from the language mandated by Okla. Stat. tit. 36, § 4803 and therefo re is unenforceable. We conclude that the district court accurately constru ed § 4803 and the pertinent portions of the insurance policy and correctly conc luded that the policy does not violate Oklahoma law. As the district court found, plaintiff misinterprets § 4803. Accordingly, we affirm for substantially the reason s stated in the attached district court’s order filed June 10, 1997. Plaintiff also argues that even if the policy is no t void under § 4803, defendant’s obligation to deal fairly and in good f aith 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 and2 Defendant does not concede that plaintiff is innoce nt. For purposes of this

appeal only, we assume, without deciding, that she is. -4- because her daughter made the false statements afte r she had moved out of plaintiff’s household. As the district court determined, plaintiff’s purported innocence 2does not result in defendant obtaining an “unconsc ientious advantage.” Cf. United Servs. Auto. Ass’n v. McCants , 944 P.2d 298, 300 (Okla. 1997) (holding innocent insured was barred from recoverin g from insurer). Plaintiff’s argument that her daughter was not an i nsured at the time she made the false statements is raised for the first t ime 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 w as an insured at the time of the fire. Plaintiff fails to present any authority, no r did we find any, indicating that the daughter must have had insured status at the ti me she made the false
statements. Accordingly, we conclude, under the facts of this c ase, 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 legit imate dispute regarding coverage, as matter of law, insurer does not breachgood faith duty merely by refusing to pay claim).-5-

Finally, plaintiff argues that defendant is not ins ulated from punitive damages despite the existence of a legitimate dispute between the parties. Because defendant acted fairly and in good faith, i t 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 fo r the Northern District of Oklahoma is AFFIRMED. Plaintiff’s motion to dis miss 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 JudgeAttachment not available electronically.