* This order and judgment is not binding precedent, e xcept under the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

### JUL 3 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

WILLIE J. PEE, Personal Representative of the Estate of Lanita Renay Pee, Plaintiff, and YOLANDA WALKER, individually,

Plaintiff-Appellant,

v. AMERICAN FAMILY LIFE INSURANCE COMPANY, a Wisconsin corporation,

Defendant-Appellee. No. 00-1323 (D.C. No. 99-WM-381) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , PORFILIO , and KELLY , Circuit Judges.1 Willie J. Pee, the personal representative of the e state of his late wife,

Lanita Renay Pee, dismissed his claims against defe ndant. -2- After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Yolanda Walker 1 appeals from an order of the district court granting defendant’s motion for summary judgment. We affirm. Ms. Walker commenced this action in state court see king payment of $250,000.00 in accordance with the terms of a life insurance policy her sister, Ms. Pee, had taken out twenty-three days prior to h er death. Defendant, American Family Life Insurance Co., removed the case to fede ral district court pursuant to 28 U.S.C. § 1332(a)(1). American Family maintained that it was not required to pay on the policy due to Ms. Pee’s fraud in obtaini ng the policy. In Colorado, to rescind a policy based on misrepres entations, the insurer must prove that (1) the applicant made a false statement of fact or concealed a fact in his application for insurance; (2) the applicant knowingly made the false statement or kno wingly concealed the fact; (3) the false statement of factor the concealed fact materially affected either the acceptance of t he risk or the hazard assumed by the insurer; (4) the insurer was ignorant of the false statement of fact or concealment of fact and is notchargeable with knowledge of the fact; (5) the insurer relied, to i ts detriment, on the false statement of fact or concealment of fact in i ssuing the policy.-3-

Hollinger v. Mut. Benefit Life Ins. Co. , 560 P.2d 824, 827 (Colo. 1977) (footnote omitted). Ms. Walker did not contest the fact that defendant had met the first three elements. See Appendix, Vol. 1, tab 3 at 5-6. Thus, the court a ddressed only elements four and five. The magistrate judge concl uded that defendant had met these elements. Ms. Walker filed objections to thi s conclusion. The district court reviewed the record and Ms. Walker’s objections. T he court determined that the magistrate judge’s recommendation was proper and th at Ms. Walker had waived several of her arguments as she raised them for the first time in her objections. On appeal Ms. Walker argues she would have shown th at American Family had not met elements four and five if the trial cou rt had not disregarded issues of material fact she set forth both in her response to American Family’s motion for summary judgment and in her objections to the magis trate judge’s recommendation. She also contends the district cou rt should not have found that she had waived any of her arguments. “We review the district court’s grant of summary ju dgment de novo, applying the same legal standard used by the distri ct court” under Fed. R. Civ. P. 56(c). Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). Summary judg ment is proper if the moving-4-

party shows “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). Upon consideration of the parties’ briefs on appeal , the appendix, and the applicable law, the judgment of the United States D istrict Court for the District of Colorado is AFFIRMED for substantially the reasons stated in the court’s order of July 26, 2000, adopting the magistrate judge’s reco mmendation of June 20, 2000.

Entered for the Court

David M. Ebel Circuit Judge