UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

PERLA OLAVE; JAMIE DARCI 

OLAVE-HERNANDEZ, 

 Plaintiffs - Appellants,

v.

AMERICAN FAMILY MUTUAL 

INSURANCE COMPANY, S.I., 

 Defendant - Appellee.

No. 23-1337

(D.C. No. 1:21-CV-02908-CMA-MDB)

(D. Colo.)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before BACHARACH, EID, and FEDERICO, Circuit Judges.

_________________________________

Perla Olave owned a house in Thornton, Colorado, that was insured by 

American Family Mutual Insurance Company, S.I. Starting in late 2017, Ms. Olave 

began spending a majority of her time in Missouri, and starting in March 2018, she 

allowed the family of her brother, Jamie Darci Olave-Hernandez, to live in the 

Thornton house. In September 2020, the house was damaged by fire. Ms. Olave had 

* After examining the briefs and appellate record, this panel has determined 

unanimously to honor 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 

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 This order and judgment is not binding precedent, 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.

FILED

United States Court of Appeals

Tenth Circuit

August 15, 2024

Christopher M. Wolpert

Clerk of Court

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 1
2 

last stayed there in December 2019, and she had not spent a day in Colorado in 2020. 

American Family denied Ms. Olave’s and Mr. Olave-Hernandez’s claims under the 

insurance policy on the ground that Ms. Olave did not reside in the Thornton house at 

the time of the fire and had not complied with the policy’s requirement to notify 

American Family of her change in residence. 

Ms. Olave and Mr. Olave-Hernandez (collectively, the Appellants) challenged 

American Family’s decision in court, and the district court granted summary 

judgment to American Family. The Appellants appeal. Exercising jurisdiction under 

28 U.S.C. § 1291, we affirm. 

BACKGROUND

The Policy. In December 2016, Ms. Olave applied for insurance coverage 

from American Family for the Thornton house (the Property). She represented in her 

application that she and her child would be the only residents of the Property, it

would be her primary residence, and it would be owner-occupied. American Family 

issued a homeowners’ policy that was up for renewal in December each year. As 

relevant here, American Family renewed the policy in December 2019 (the Policy). 

Applicable Policy Provisions. The Policy’s Declarations identified Ms. Olave 

as the named insured and the Property as a “Primary Residence,” Aplt. App. Vol. 1 

at 76. As the named insured, Ms. Olave was the “you” and “your” referred to in the 

Policy. See id. at 94 (“You and your mean a named insured shown in the 

Declarations . . . .”). The Policy defined “insured” as “(1) you; or (2) a household

member who is . . . a relative,” with “household” being “the persons who are 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 2
3

residents of your housing unit,” which “is where you reside on the residence 

premises.” Id. at 95. It defined the “insured location” as “the residence premises,” 

id., and the “residence premises” as “the . . . one family dwelling you own and you

reside in . . . that is shown as the residence premises in the Declarations,” id. at 96. 

The Policy required that Ms. Olave notify American Family “in writing within 

30 days from the date any change in ownership, occupancy, or risk first begins.” Id.

at 107. “This includes but is not limited to the residence premises being: a. used for 

any other purpose than your residence; b. leased or rented to others; c. the subject of 

any foreclosure process; or d. uninhabited.” Id. The Policy defined “uninhabited” 

as “you do not reside at, have moved from, or vacated your dwelling on the 

residence premises. This definition does not change regardless of the presence of 

any personal property that may be on the residence premises.” Id. at 96. But 

“[u]ninhabited does not mean those instances in which . . . you are temporarily 

residing away from your dwelling on the residence premises due to: (1) work related 

travel; (2) a vacation; or (3) use of a seasonal home.” Id. at 96-97. 

The Summary of Coverage notified Ms. Olave that American Family could 

cancel or non-renew the Policy in certain circumstances, including “[a] substantial 

change in the use or occupancy of the premises” or “[k]nowingly making a false 

statement or material misrepresentation regarding a claim.” Id. at 85, 91. Moreover, 

the Policy contained a “Concealment Or Fraud” provision stating coverage would 

not be “provided for any insured if, before or after a loss, any insured has: 

(1) concealed or misrepresented any material fact or circumstance; (2) presented any 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 3
4 

altered or falsified document or receipt; (3) engaged in fraudulent conduct; or

(4) made false statements; relating to this insurance or any claim under this policy.” 

Id. at 117. 

Change in Occupancy. At the end of 2017, Ms. Olave began spending time in 

Missouri, where her boyfriend lived. In January 2018, she enrolled her child in 

school in Missouri and obtained a business license there. At that point, the Property

was vacant. In March 2018, Mr. Olave-Hernandez moved in, and a few months later 

he was joined by his wife and children. Ms. Olave traveled to Colorado from 

Missouri for unspecified periods in 2018 and 2019. 

Ms. Olave’s Representations Upon Renewal in 2019. When the Policy was up 

for renewal in December 2019, Ms. Olave told her insurance agent that her mailing 

address had changed to Missouri, but that she was still living at the Property and was 

going back and forth to Missouri for work. She also stated that her brother was 

living with her at the Property, so it was not vacant when she was gone. The agent 

discussed a businessowners’ policy and e-mailed one to Ms. Olave, but ultimately the 

agent renewed the Policy. 

The Claim and Investigation. The Property was damaged in an electrical fire

on September 15, 2020. Ms. Olave was in Missouri. The Appellants made a claim 

under the Policy, and American Family began an investigation. An adjuster visited 

the Property, photographing a FOR RENT sign in the garage and family photos that 

did not include Ms. Olave. An Internet search of Ms. Olave revealed her Missouri 

business.

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 4
5 

On October 5, 2020, American Family sent Ms. Olave a reservation of rights 

letter, advising coverage under the Policy was in question. Pointing out the 

definitions of “residence premises” and the provisions regarding fraudulent conduct, 

it advised it would proceed with its investigation. 

Ms. Olave authorized a public adjuster, Peter Ridulfo, to act as her agent with 

regard to her claim. Mr. Ridulfo represented to American Family that at the time of 

the fire, there were four adults and four children living at the Property. He later 

informed American Family that Ms. Olave owned everything at the Property, aside 

from some clothes belonging to Mr. Olave-Hernandez.

As part of the investigation, American Family took Ms. Olave’s recorded 

statement on November 4, 2020. Ms. Olave said she went back and forth between 

Missouri and Colorado for work. Describing her Missouri business as a one-woman, 

year-round operation, she stated she also taught classes in Colorado (one-on-one, in 

clients’ homes) on request. She estimated in 2018 and 2019, she spent a majority of 

her time in Missouri—approximately 57% of her time in 2018 and 65-70% in 2019. 

The last time she had stayed at the Property was some weeks in December 2019; the 

time before that was in August 2019. But due to the COVID-19 pandemic, she had 

not spent a single day in Colorado in 2020. She also stated she had a Missouri 

driver’s license, and her Colorado driver’s license had expired in 2018. 

American Family Denied Coverage. In January 2021, American Family 

denied coverage under the Policy, stating it had determined Ms. Olave did not reside 

at the Property. Therefore, the Property did not meet the Policy’s definition of 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 5
6 

“insured location” or “residence premises” and the occupants of the Property did not 

qualify as “insureds.” After a protest by Ms. Olave’s counsel that she was only 

temporarily living away from the Property, American Family reiterated its denial of 

coverage in February 2021. It highlighted several pieces of evidence that Ms. Olave 

resided in Missouri, stating: 

• Ms. Olave’s Colorado vehicle registration for a 2018 Jeep Grand 

Cherokee expired in 2018; 

• Social media posts by Ms. Olave since 2018 are from Missouri; 

• Ms. Olave is the owner of Frida Microblading Studio located in [the city 

of] Town and Country Missouri and Ms. Olave maintains her tattoo 

license with the State of Missouri; 

• A blog focused on Ms. Olave’s business states that Ms. Olave “move[d] 

to the St. Louis area . . . to ensure that her daughter grew up around 

extended family;” 

• And, most notable, Ms. Olave registered to vote in Missouri beginning 

on 2/01/2018 and continuing through the date of loss. 

Aplt. App. Vol. 1 at 277. 

The Appellants Filed Suit. The Appellants brought suit in Colorado state 

court, each alleging three claims: (1) breach of insurance contract, (2) common law 

bad faith breach of insurance contract, and (3) unreasonable delay and denial of 

insurance benefits under Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116. Relying on 

diversity jurisdiction, American Family removed the suit to federal court. 

American Family Uncovered Additional Information During Discovery. 

Ms. Olave testified in her deposition that in November 2017, she moved in with her 

boyfriend in Missouri. Between November 2017 and March 2018, the Property was 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 6
7 

vacant, although she traveled back to Colorado to check on it. She also testified that 

she last worked in Colorado in 2017, and that she did not travel back and forth 

between Colorado and Missouri for work in either 2018 or 2019. In answers to 

interrogatories, she stated that she did not travel to Colorado between December 2019 

and May 2021. In response to requests for admissions, she admitted that she had 

registered her car, opened her business, and enrolled her child in school in Missouri, 

all before the fire. 

Mr. Olave-Hernandez testified in his deposition that he owned several items of 

personal property at the Property, including office furniture, exercise equipment, a 

television, and a dresser.

Motion for Summary Judgment. American Family moved for summary 

judgment, arguing that the Appellants’ concealment or misrepresentation of material 

facts voided coverage under the Policy. The district court disposed of American 

Family’s motion in two orders. 

First Summary Judgment Order. In its first summary judgment order, the 

court began by addressing the issue of Ms. Olave’s residency at the Property. 

Finding that Colorado courts have not considered the definition of “reside” in the 

context of a homeowners’ insurance policy, it looked to guidance from Colorado 

cases considering residency in the context of automobile insurance policies. It 

identified four relevant factors: “‘[1] the subjective or declared intent of the 

individual, [2] the formality or informality of the relationship between the individual 

and members of the household, [3] the existence of another place of lodging, and 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 7
8

[4] the relative permanence or transient nature of the individual’s residence in the 

household.’” Aplt. App. Vol. 2 at 34 (quoting Grippin v. State Farm Mut. Auto. Ins. 

Co., 409 P.3d 529, 532 (Colo. App. 2016)) (bracketed numerals in original). These 

factors are called the “Boatwright factors” because they initially were set forth in 

Iowa National Mutual Insurance Co. v. Boatwright, 516 P.2d 439, 440 (Colo. App.

1973). 

The district court held that the first Boatwright factor was at most neutral and 

the other Boatwright factors weighed against Ms. Olave, with the third factor 

weighing heavily against her. It thus determined that no reasonable juror could find 

that Ms. Olave resided at the Property at the time of the fire. As a result, the court 

held that Ms. Olave breached her obligation under the Policy to notify American 

Family of her change of residence within 30 days. 

Next, the district court considered whether Ms. Olave’s breach voided the 

Policy in its entirety. It held that, to demonstrate the Policy was void, American 

Family had to establish three elements: “‘(1) the insured misrepresented or omitted a 

fact; (2) the misrepresentations or omissions were material; and (3) the insured 

intended to deceive the insurer.’” Aplt. App. Vol. 2 at 38 (quoting Wheatridge 

Office, LLC v. Auto-Owners Ins. Co., 578 F. Supp. 3d 1187, 1202 (D. Colo. 2022)). 

It concluded that there were no disputed material facts regarding the elements of 

misrepresentation and materiality, but that neither party had sufficiently briefed

Ms. Olave’s intent. It therefore directed the parties to file supplemental briefs and 

reserved ruling on the contract claims. 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 8
9 

The district court then moved on to the bad faith and statutory delay/denial

claims. Although it did not identify any Colorado cases involving an insured’s 

failure to notify, it found persuasive similar case law (involving lack of cooperation) 

in which the court held that because the insured’s failure to fulfill their duties vitiated 

coverage under the policy, the insured’s bad faith claim failed as a matter of law. 

See Polland v. State Farm Mut. Auto. Ins. Co., No. 19-cv-01416-KLM, 2019 WL 

10258801, at *7 (D. Colo. Oct. 25, 2019) (unpublished). Finding “there is no 

genuine dispute of material fact that Ms. Olave breached her obligations under the 

Policy to notify American Family that she no longer resided at the Property,” the 

district court held, “Because Ms. Olave’s breach impaired her rights to recover under 

the Policy, American Family’s conduct was reasonable.” Aplt. App. Vol. 2 at 41. It 

therefore granted summary judgment to American Family on the bad faith and 

statutory delay/denial claims.

Second Summary Judgment Order. After the parties submitted their 

supplemental briefing regarding the intent element, the district court returned to the 

contract claims. It concluded that “Ms. Olave knowingly and deliberately made 

material misrepresentations regarding her residence at the Property and her work in 

Colorado,” and “[b]ased on these knowing and deliberate misrepresentations 

regarding her work and residence, Ms. Olave’s intent to deceive American Family is 

implied.” Id. at 73. It therefore held that coverage under the Policy was void. The 

district court rejected the argument that American Family waived its right to void the 

policy by continuing to insure the Property even after learning about Ms. Olave’s 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 9
10

Missouri change-of-address during the 2019 renewal process. It granted summary 

judgment to American Family on the contract claims and entered final judgment in 

favor of American Family.

Fed. R. Civ. P. 59(e) Motion. The Appellants timely filed a Fed. R. Civ. 

P. 59(e) motion to alter or amend the judgment. They objected both to the court’s 

decision to use the Boatwright factors to determine whether Ms. Olave resided at the 

Property and to how it evaluated the factors. They also asserted that whether 

Ms. Olave’s statements and actions constituted misrepresentations was a question of 

fact for a jury and argued any misrepresentations were not material. The district

court denied the motion.

The Appellants now appeal.

DISCUSSION

For the grant of summary judgment, “we engage in de novo review, applying 

the same standard for summary judgment that applied in district court. This standard 

requires us to vie the evidence and all reasonable inferences favorably to [the 

Appellants].” Sandoval v. Unum Life Ins. Co. of Am., 952 F.3d 1233, 1236 (10th Cir. 

2020) (citation omitted). “Summary judgment is warranted only in the absence of a 

‘genuine dispute as to any material fact’ and the defendant[’s] entitlement to 

‘judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “We review 

rulings on Rule 59(e) motions for an abuse of discretion.” Nelson v. City of 

Albuquerque, 921 F.3d 925, 929 (10th Cir. 2019). 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 10
11

In a diversity case, we “apply the law of the forum state,” here Colorado. 

Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 906 F.3d 926, 930 (10th Cir. 2018)

(internal quotation marks omitted). We thus “must ascertain and apply [Colorado] 

law with the objective that the result obtained in the federal court should be the result 

that would be reached in [a Colorado] court.” Id. (internal quotation marks omitted). 

“Where the highest court of the forum state has not yet ruled on an issue, we 

determine what decision the state court would make if faced with the same facts and 

issue by considering lower state court decisions, decisions of other states, federal 

decisions, and the general weight and trend of authority.” Id. at 930-31 (brackets and 

internal quotation marks omitted). 

I. The court did not err in concluding “reside” is not ambiguous. 

The Appellants argue that the term “reside” was ambiguous. Asserting that 

“Plaintiff Perla has never wavered from the contention that the Property is her home 

and permanent residence,” Aplt. Opening Br. at 17, they point out that under

Colorado law, an ambiguous term in an insurance policy must be construed in favor 

of the policyholder. See, e.g., Cotter Corp. v. Am. Empire Surplus Lines Ins. Co., 

90 P.3d 814, 820 (Colo. 2004) (“Where terms in an insurance policy are ambiguous, 

we construe the terms against the drafter and in favor of providing coverage to the 

insured.”). 

But “[t]he prerequisite to application of this rule is a determination that the 

policy is ambiguous.” Pompa v. Am. Fam. Mut. Ins. Co., 520 F.3d 1139, 1142-43 

(10th Cir. 2008) (citation omitted). “‘Terms used in a contract are ambiguous when 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 11
12

they are susceptible to more than one reasonable interpretation.’” Id. (quoting Hecla 

Mining Co. v. N.H. Ins. Co., 811 P.2d 1083, 1091 (Colo. 1991)). “To decide whether 

a contract is ambiguous, a court may consider extrinsic evidence regarding the 

meaning of the written terms, including evidence of local usage and of the 

circumstances surrounding the making of the contract.” Pub. Serv. Co. of Colo. v. 

Meadow Island Ditch Co. No. 2, 132 P.3d 333, 339 (Colo. 2006). But “[t]he court 

may not . . . consider the parties’ extrinsic expressions of intent.” Id.

The district court noted that under Colorado law, “‘[r]esidence . . . denotes a 

place where a person dwells. It simply requires bodily presence as an inhabitant in a 

given place.’” Aplt. App. Vol. 2 at 34 (quoting Potter v. State Farm Mut. Auto. Ins. 

Co., 996 P.2d 781, 783 (Colo. App. 2000)) (further quotation marks omitted). It held 

the Appellants failed to establish the term “reside” is ambiguous because they failed 

to provide the court with more than one reasonable interpretation of the term. The 

court held the Appellants’ position—that Ms. Olave’s residence was whatever 

location she, in her opinion, considered to be her residence—was not reasonable.

We agree with the district court. Ms. Olave’s focus on her intent, without 

regard to her physical presence, is not a reasonable interpretation of “reside” under 

Colorado law. As the district court recognized, in Colorado, residency carries a 

connotation of some amount of physical presence. And the Colorado Supreme Court 

long ago held that a lack of bodily presence trumps intent when it comes to 

establishing residency in the state. In Lyons v. Egan, 132 P.2d 794 (Colo. 1942), it 

considered a claim for a statutory allowance that required a decedent’s children to be 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 12
13

“residing” in Colorado at the time of their father’s death. Id. at 796. The children’s 

parents were divorced, and they had lived with their mother in Florida for more than 

a decade before their father died in Colorado. See id. at 796-97. The mother testified 

that “it was not her intention nor that of her former husband, Lyons, that their 

children remain away from Colorado permanently, but it was her intention and the 

expressed intention of Lyons that said children would return to Colorado and there 

continue their permanent residence.” Id. at 796. In addition, the children testified 

“that their intention was to consider their home and residence as being in Colorado.” 

Id. But the Colorado Supreme Court held “the minors did not reside in Colorado at 

the time of the death of their father,” stating:

The statement of intention by the mother and the inadmissible statements of 

the minors that they would, as soon as financial conditions made it possible 

for them to do so, return or be returned to Colorado, are insufficient to 

establish Colorado as either their residence or domicile. . . . Where . . . the 

declarations of a party as to his intent are inconsistent with his acts, his 

conduct is of greater evidential value than his declarations. . . . Intention 

alone is insufficient to change one’s residence or domicile. A naked 

declaration of intention . . . would not of itself be conclusive.

Id. at 798.

Ms. Olave claims residency at the Property at the time of the fire based on her

intent to return at some point after the COVID-19 pandemic. Under Lyons, however, 

a party cannot establish Colorado residency based only on intention. Thus, the 

district court did not err in concluding Ms. Olave’s interpretation of “reside” is 

unreasonable under Colorado law. It follows that the district court was not required 

to conclude “reside” was ambiguous. See Pub. Serv. Co. of Colo. v. Wallis & Cos., 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 13
14

986 P.2d 924, 939 (Colo. 1999) (“[W]e are unable to pursue either of these avenues 

of interpretation because we find the construction of the policies urged by [the 

petitioner] to be unreasonable.”).

The Appellants highlight the Policy’s failure to define “reside” and suggest 

“that the parties were operating with substantially different interpretations of that 

term.” Aplt. Opening Br. at 18. But “a term is not ambiguous merely because it is 

undefined within the policy if its meaning can be ascertained by looking at the 

definitions generally accepted by the courts, the industry, and authoritative secondary 

sources.” Travelers Indem. Co. v. Howard Elec. Co., 879 P.2d 431, 434 (Colo. App. 

1994). As discussed, the meaning of “reside” can be ascertained from Colorado law. 

Further, “[t]he mere fact that the parties may have different opinions regarding the 

interpretation of the contract does not itself create an ambiguity in the contract.” Ad 

Two, Inc. v. City & Cnty. of Denver ex rel. Manager of Aviation, 9 P.3d 373, 377 

(Colo. 2000).

The Appellants also note that the Policy contemplates the possibility of more 

than one residence. This is consistent with Colorado law, see Grippin, 409 P.3d at 

533 (“Colorado law contemplates that a person can ‘reside’ in more than one 

place.”), as the district court explicitly recognized. The possibility of multiple 

residences, however, does not eliminate the requirement of some physical presence to 

establish residency in Colorado.

The Appellants further suggest the district court erred in applying the 

Boatwright factors in this context. We disagree. Much of the Appellants’ argument 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 14
15

on this point relies on their contention that “reside” is ambiguous, which we already 

have rejected. And the district court’s task was to predict how the Colorado Supreme 

Court would rule if faced with this case. Because the Boatwright factors are an 

authoritative means of ascertaining whether a person “resides” at a location for 

purposes of insurance coverage under Colorado law, we see no error in consulting 

them for guidance. 

Finally, the Appellants contend that “[w]hile the Court here noted all factors 

should be considered, it neglected to take into account whether all parties intended to 

extend coverage to the Property.” Aplt. Opening Br. at 19. American Family asserts 

that this argument is new on appeal, and the Appellants’ reply brief does not identify

where they made the argument in the district court. We do not search the record even 

for a pro se party, much less for a represented party. See Kincaid v. Unified Sch. 

Dist. No. 500, 94 F.4th 936, 947 (10th Cir. 2024). Because the Appellants do not 

show that they preserved the argument in the district court and do not argue for plain 

error, we decline to address this argument. See Richison v. Ernest Grp., Inc., 

634 F.3d 1123, 1130 (10th Cir. 2011).

II. The court did not err in holding the misrepresentations were material.

The Appellants argue that, even if the term “reside” is not ambiguous, the 

district court still erred in determining the misrepresentations were material as a 

matter of law. First, citing Wagnon v. State Farm Fire & Casualty Co., 146 F.3d 

764, 768 (10th Cir. 1998), the Appellants assert materiality should be determined by 

the trier of fact. Second, again relying on Wagnon, the Appellants argue that the 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 15
16

facts identified by the district court were not sufficiently material to void coverage 

under the Policy. 

Notably, Wagnon arose out of Oklahoma, not Colorado. Yet the district court 

relied on it in this case involving Colorado law, and on appeal, the Appellants do not 

challenge that reliance. To the contrary, the Appellants cite it in support of their 

arguments. They therefore have waived any objection to applying Wagnon in this 

case. See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues not 

raised in the opening brief are deemed abandoned or waived.” (internal quotation 

marks omitted)).

Regarding the Appellants’ first point, Wagnon holds “[t]he materiality of a 

misrepresentation is a mixed question of law and fact that under most circumstances 

should be determined by the trier of fact.” 146 F.3d at 768. But it also recognizes 

that “materiality can be decided as a matter of law if reasonable minds could not 

differ on the question.” Id. (internal quotation marks omitted). Here, we cannot 

conclude that reasonable minds could differ. The district court was not required to 

submit the question of materiality to the jury.

Moving on to the second point, the Appellants argue that the district court 

placed unwarranted emphasis on two misrepresentations: (1) Mr. Ridulfo’s assertion 

that Ms. Olave owned everything on the Property but her brother’s clothes, and 

(2) Ms. Olave’s assertion that the purpose of her trips was for business. They assert 

that neither the district court nor American Family “elaborate on why or how either 

of these misrepresentations would affect the insurer’s course of conduct as is required 

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 16
17

for misstatements to be material,” Aplt. Opening Br. at 24, and that these 

misrepresentations constitute “merely an oversight of a handful of furniture and 

personal possessions and a discrepancy as to the reason for travel,” id. at 25.

In the context of an investigation, “a misrepresentation will be considered 

material if a reasonable insurance company, in determining its course of action, 

would attach importance to the fact misrepresented.” Wagnon, 146 F.3d at 768

(internal quotation marks omitted). “[T]he subject of the misrepresentation need not 

ultimately prove to be significant to the disposition of the claim, so long as it was 

reasonably relevant to the insurer’s investigation at the time.” Id. 

The Appellants’ attempts to minimize the misrepresentations do not establish 

the district court erred in concluding a reasonable insurance company would attach 

importance to Ms. Olave’s statements in investigating whether coverage applied. No 

reasonable juror could conclude that an insurance company would not attach 

importance to the alleged reason for Ms. Olave’s travel where the Policy specifies a 

“work related travel” exception to the requirement to report the Property as 

“uninhabited.” Aplt. App. Vol. 1 at 96-97. Likewise, no reasonable juror could 

conclude that an insurance company would not attach importance to a statement of 

ownership of items at the Property in determining whether Ms. Olave truly resided at 

the Property, as she claimed.

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 17
18

CONCLUSION

We affirm the district court’s judgment.

Entered for the Court

Per Curiam

Appellate Case: 23-1337 Document: 010111095112 Date Filed: 08/15/2024 Page: 18