Smythe

MEMORANDUM **

BACKGROUND

Appellee Safeco Insurance Company of America (“Safeco”) rescinded its homeowners’ policy insuring appellants Loralei and Peyton Smythe (“the Smythes”) on the ground that Peyton Smythe (“Smythe”) made material misrepresentations about his insurance history at the time he applied for the Safeco policy. The Smythes subsequently filed a state law breach of contract/bad faith action. After the case was removed to federal court, the district court granted summary judgment in favor of Safeco on the ground there is no genuine issue as to whether Smythe made material misrepresentations, and, in any event, even if Smythe did not, he had an affirmative duty to disclose such information. The Smythes appeal the summary judgment order.

DISCUSSION

A, The Breach of Contract Claim

Summary judgment bn the breach of contract claim must be reversed because there is a genuine dispute as to whether Smythe made material misrepresentations when he applied for the Safeco policy.

1. Smythe’s declaration

The district court erred in disregarding Smythe’s declaration. The general rule is that “a party cannot create an issue of fact by an affidavit contradicting his prior…