[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 15873

________________________ D.C. Docket No. 3:13

- cv - 00018

- TCB

BROOKS FIVEASH, BOBBIE FIV E ASH, Plaintiffs

- Appellants,

versus ALLSTATE INSURANCE COMPANY, Defendant

- Appellee.

________________________ Appeal from the United States District Court for the Northern District of Georgia

________________________ (February 25, 2015) Before WILL IAM PRYOR and JORDAN, Circuit Judges, and HAIKALA, * Dis trict Judge

.

* Honorable Madeline Hughes Haiklala, United States District Judge for the Northern District of Alabama, sitting by designation.

Case: 13-15873 Date Filed: 02/25/2015 Page: 1 of 102 PER CURIAM: Brooks and Bobbie Fiveash appeal the district court’s order granting judgment as a matter of law in favor of Allstate on their breach of contract claim

. With the benefit of oral argument, and for the reasons that follow, we rev erse and remand.
I In May of 2009, the Fiveash home in Tallapoosa, Georgia, sustained fire damage. The Fiveashes filed a n insurance claim under their policy with Allstate. Fire investigators concluded that the fire had been set intentionally, as the doors to the home were locked at the time of the fire and there was no sign of forced entry. Allstate conducted its own investigation, during which its investigators interviewed Brooks and Bobbie Fiveash . Both stated during their e xaminations under o ath that only they and their son had keys to the house. Allstate later learned that the Fiveash e s ’ daughter , Brooks Ann , also had a key, and Brooks Ann’s husband had been seen near the home shortly before the fire. Thus, Allstate determined that the Fiveashes had made a material misrepresentation when they failed to inform the investigators that their daughter had a key to the h ome and denied the Fiveash e s ’ claim under the policy fraud provision: “We do not cover any loss or occurrence in which any insured person has concealed or misrepresented any material fact or
circumstance

. ”

Case: 13-15873 Date Filed: 02/25/2015 Page: 2 of 103 The Fiveashes filed a complaint against Allstate alleging breach of contract and bad faith in connection with the denial of payment under the policy. At trial, both Brooks and Bobbie testified that Brooks Ann had a key to the house and that they had failed to tell Allstate investigators about the key. The y both further admitted that they had not correct ed this misstatement when they received the
errata sheets from their e xaminations under o ath

. They explained that their intent was not to deceive Allstate, but rather that they had forgot ten their daughter had a key. After the district court denied Allstate’s motion for judgment as a matter of law, the jury found in favor of the Fiveashes. The court then granted Allstate ’s renewed motion, finding that the testimony regarding the number of k eys was material, and that the Fiveash es’ intent to deceive Allstate cou ld be inferred from the circumstances. Th e Fiveash e s appeal the district court’s order granting judgment as a matter of law to Allstate on the ir breach of contract claim

. 1
II We have diversity jurisdiction over this matter. See 28 U.S.C. § 1332. Because the claim arose in Georgia, we apply Georgia substantive law. See McMahan v. Toto , 256 F.3d 1120, 1131 (11th C ir. 2001). Moreover, the parties do not dispute that Georgia substantive law governs

.

1 The district court granted Allstate’s motion for judgment as a matter of law with r espect to the bad faith claim. T he Fiveashes do not appeal from this decision.

Case: 13-15873 Date Filed: 02/25/2015 Page: 3 of 104 In a diversity case, we apply a federal standard in addressing the propriety of a judgment as a matter of law. See Jones v. Miles Laboratories, Inc. , 887 F.2d 1576, 1578 (11th Cir. 1989). “We review de novo a district court ’ s grant of judgment as a matter of law, applying the same standard as the district court.” Collins v. Marriott Int’l., Inc. , 749 F.3d 951, 956

- 57 (11th Cir. 2014) ( internal quotation marks and cit ation omitted). “A district court should grant judgment as a matter of law when the plaintiff presents no legally sufficient evidentiary basis for a reasonable jury to find for him on a material element of his cause of action.” Id. at 957 ( internal quota tion marks
and citation omitted). When determining whether judgment as a matter of law is
proper “ t he court should review all of the evidence in the record, but in doing so, the court must draw all reasonable inferences in favor of the nonmoving party, an d it may not make credibility determinations or weigh the evidence.” Id. (citing Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 , 120 S.Ct. 2097,
2110 (2000) (internal quotation marks and alteration omitted )

. S ee also Davila v. Menendez , 717 F.3d 1179, 1184 ( 11th Cir. 2013) (explaining that the court , when deciding whether to issue a judgment as a matter of law , “must refrain from deciding the credibility of witnesses or weighing the evidence”) (internal quotation marks, citation, and alterat ions omitted)

. In other words, judgment as a matter of law “can be [entered] only when the evidence favoring the [movant] is so one

Case: 13-15873 Date Filed: 02/25/2015 Page: 4 of 105 sided as to be of overwhelming effect. ” EEOC v. Massey Yardley Chrysler Plymouth, Inc. , 117 F.3d 1244, 1250 ( 11th Cir. 1997).
III Under a concealment or fraud provision in an insurance contract , coverage is void if there has been a willful and intentional misrepresentation of material facts made for the purpose of defrauding the insurer

. See Perry v. State Farm Fire &
Cas. Co. , 734 F.2d 1441, 1443 (11th Cir. 1984) (applying Georgia law)

. Significantly, t he Georgia Supreme Court “has repeatedly held that the burden [is] upon the insurer to prove an affirmative defense, such as fraud on the part of the insured in obtaining the policy, or that a loss apparently covered by the policy came within an exclusiona ry clause contained in the policy.” Reserve Life Ins. Co. v. Ayers , 121 S.E.2d 649, 654 (Ga. 1961). See also State Farm Mut. Auto. Ins. Co. v. Wendler , 172 S.E.2d 360 , 363 (Ga. Ct. App. 1969) ( concluding that the “burden was upon [the insurer] in asserting an affirmative defense[, in this case fraud,] to establish all the material elements thereof”). When considering questions of material misrepresentations in insurance contracts, “Georgia courts employ a reasonableness test, an objective standard of condu ct against which to me asure the effect of the insured’ s false declarations.” Woods v. Indep. Fire Ins. Co. , 749 F.2d 1493, 1497 (11th Cir. 1985). It must appear that these false statements were made willfully and intentionally for the purpose of defrauding the insurer. Such a clause Case: 13-15873 Date Filed: 02/25/2015 Page: 5 of 106 in the policy would not cover misstatements or exaggerated claims of loss or perjury in connection therewith committed by the insured during the trial. Neither would the misstatement by the insured in his sworn statement to the company made shortly after the fire as to the value of some of the property destroyed be covered by such a condition unless it was shown that thes e misstatements were willfully and intentionally made for the purpose of defrau ding the insurer.
Am

. Alliance Ins. Co. v. Pyle , 8 S.E.2d 154 , 160 ( Ga. Ct. App. 1940)

. See also Superior Fire Ins. Co. v. Peters , 10 S.E.2d 94, 98 ( Ga. Ct. App. 1940) ( affirm ing the denial of a motion for a new trial where “ [t] he evidence show [ed] that the plaintiff did not intentionally falsely swear in the proof furnished so as to work a forfeiture of the policy”). An intent to defraud can be inferred when the misrepresenta tion is made willfully and intentionally. See generally Claflin v. Commonwealth Ins. Co. , 110 U.S. 81, 95 , 3 S.Ct. 507, 515 (1884). Here, the parties do not dispute that the number of k eys and who had access to them wa s material to Allstat e’s investigation of the fire. In fact, both Brooks and Bobbie testified that they misstated the number of keys in their earlier

e xaminations under o ath . And Bobbie acknowledged at trial that such information was material . Thus, the only questio n is whe ther the Fiveashes’ failure to inform Allstate that their daughter had a key was wil lfu l and intentional , and meant to defraud Allstate. Generally, the question of whether the insured acted with intent to deceive is a question for the jury

. S ee Ga. Farm Bureau Mut. Ins. Co. v. Richardson , 457

Case: 13-15873 Date Filed: 02/25/2015 Page: 6 of 107 S.E.2d 181, 184 (Ga. Ct. App. 1995) (explaining that if there is any evidence to support a jury’s finding of intent, the court should not grant judgment as a matter of law)

. “ There must be a willful inten t to defraud rather than an innocent mistake.” Watertown Fire Ins. Co. v. Grehan , 74 Ga. 642, 656

- 57 (1885)

. See also Am. Ins. Co. v. Jass , 22 F.2d 793 , 794 (5th Cir. 1927) (concluding that it was for the jury to decide whether the insured was simply mistaken or made the false statement willfully); Camden Fire Ins. Ass’n v. Penick , 2 F.2d 964 , 965 ( 5th Cir. 1924) (explaining that it is for the jury to decide whether the insured’s misstatement was an innocent error)

. In this case, b oth Bobbie and Brooks Fiveash told Allstate investigators, fire department investigators, and their own investigator that only they and thei r so n had keys to the house

. A t no time did either of them correct this info rmation

. 2 At trial, Bobbie testified that while she “did the best [she] could” answering questions during the examination, she admittedly “end[ed] up guessing a lot.” Brooks testified that he was not trying to mislead Allstate when he failed to mention his daughter had a key. The jury also he ard deposition testimony of the Fiveash e s ’ son that he was unaware that his sister had a key to the house. Brooks further testified

2 In a subsequent deposition , the Fiveash e s ’ daughter , Brooks Ann , stated she had a key for at least three years leading up to the fire . But this deposition was not introduced at trial , and Brooks Ann did not testify as a witness

.

Case: 13-15873 Date Filed: 02/25/2015 Page: 7 of 108 that he had added rooms on to the home to create space for family members over the years and that h e and Bobbie had lost many sentimental items in the fire. Allstate presented testimony to show that t he Fiveashes had tried to sell the house some years before the fire, after Bobbie’s mother died, but had not been able to do so. After their retirement, the Fiveashes wanted to travel more and were not at the house for extended periods. Brooks had also made a previous insurance claim for a lost ring . But after the ring was recovered, he never returned the money to Allstate. And the Fiveash e s ’ good f urniture had been moved out of the house prior to the fire and replaced with inexpensive furniture at the time of the
blaze

. Finally, Brooks testified that he handled all the finances and Bobbie never wrote checks, but there was evidence in the record of checks Bobbie had signed

. In finding for the Fiveashes, the jury rejected Allstate’s argument that Brooks and Bobbie acted willfully and with the intent to defraud. The ques tion we must ask is whether the evidence at trial was so one

- sided that it requi red a finding that the Fiveashes made the misrepresentations wi l lfully and with the intent to deceive.
We cannot say that it was . Rather, we conclude that where , as here, there are “obvious conflict[s] in the evidence, ” a judgment as a matter of law is improper. See Allstate Ins. Co. v. Baugh , 327 S.E.2d 576, 578 (Ga. Ct. App. 1985)

Case: 13-15873 Date Filed: 02/25/2015 Page: 8 of 109 (explaining that where there is conflicting evidence as to insured’s misstatement to insurance company, the court should deny a motion for a directed verdict).
Allstate relies on Meyers v. State Farm Fire and Casualty Company , 801 F. Supp. 709 (N.D. Ga. 1992), as support for the district court’s order. The district court in Meyers found that the insureds’ claims of innocent mistake were “disingenuous at best” because the insureds had been uncooperative in the investigation by failing to turn over financial records at State Farm’s request. Id.
at 715

- 16. Allstate argues that the Fiveashes were similarly uncooperative. We disagree. The only thing the Fiveashes allegedly failed to submit were their cell phone records. Allstate has not shown, much less argued, that these records were relevant to its investigation , and the testimony at trial established that the Fiveashes eventually submitted their cell phone recor ds

. 3 We simply cannot, as the district court did , necessarily infer the Fiveash e s ’ intent to defraud the insurance company. The jury had the opportunity to assess the credibility of the witnesses , and, having done so, believed the Fiveashes’ explanatio n that the misrepresentation was an innocent mistake. The jur y further heard evidence of motive and possible suspects , including Brooks Ann’s husband, but chose to credit the Fiveash es ’ version of events

. Given the conflict in the

3 The Fiveashes gave Allstate their cell phone numbers and an authorization to obtain the records directly from the cell phone company. Allstate was unable to obtain the records, and the Fiveashes eventually obtained the records for them as requested.

Case: 13-15873 Date Filed: 02/25/2015 Page: 9 of 1010 evidence and these credibility determinations, we cannot say th at the only rational conclusion was that Allstate met its burden in proving by a preponderance of the evidence that the Fiveashes made their misrepresentation willfull y and with intent to defraud

. Therefore, the district court erred by granting Allstate’s renewed motion for judgment as a matter of law.
I V We thus reverse the district court’s order and remand with instructions to reinstate the jury’s verdict for the Fiveashes.

REVERSED and REMANDED. Case: 13-15873 Date Filed: 02/25/2015 Page: 10 of 10