F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 27 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    MARILYN CRANER,

                Plaintiff-Appellant,

    v.                                                   No. 98-4145
                                                   (D.C. No. 96-CV-1063-G)
    THE NORTHWESTERN MUTUAL                               (D. Utah)
    LIFE INSURANCE COMPANY, dba
    Northwest Mutual Life,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before PORFILIO , BARRETT , and HENRY , Circuit Judges.




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

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Marilyn Craner appeals the district court’s grant of summary

judgment in favor of defendant The Northwestern Mutual Life Insurance Co.

(Northwestern). As plaintiff has not raised a genuine issue as to any material fact

and Northwestern is entitled to judgment as a matter of law, we affirm.

      On February 23, 1996, plaintiff’s late husband, Stephen Craner, contacted a

Northwestern agent to obtain life insurance. The agent informed Mr. Craner that

he needed to undergo a medical examination as a prerequisite for coverage. On

February 27, 1996, Mr. Craner underwent a medical examination, which included

completing a medical questionnaire. In the questionnaire, Mr. Craner denied

having been diagnosed with or treated for any psychological condition, including

anxiety, depression, or stress, and denied consulting with any health care

provider, including a psychologist, other than the health care providers already

identified. Both of these answers were false, as Mr. Craner had been consulting

with a psychologist on a weekly basis, and had been diagnosed with dysthymia,

which is a form of depression.

      The next day, Mr. Craner filled out an application for $500,000 in life

insurance and paid the first month’s premium. In return, he was given a “Receipt

for Payment and Conditional Life Insurance Agreement,” which contained the

following provisions:

      I. Unacceptable Risks–No Insurance in Force.         No insurance or
      additional benefits will be in force at any time under the terms of this

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       Agreement if the proposed insured is not a risk acceptable to
       Northwestern Mutual Life on the Underwriting Date according to its
       rules and standards.

       II. Acceptable Risks–Insurance in Force.       The policy applied for
       will be in force as of the Underwriting Date if the proposed insured
       is a risk acceptable to Northwestern Mutual Life on the Underwriting
       Date for the policy applied for.
                                        ....

       III. Underwriting Date–When Insurance Begins.       For acceptable
       risks insurance begins on the Underwriting Date, which is the later
       of:
       A. The date of application ...; or,
       B. the date of the nonmedical, paramedical or medical examination.

Appellant’s App. at 38-39.

       In addition, the front page of the Agreement stated in bold language that it

was “ Not a ‘Binder’–No Insurance if Section I Applies     ,” and the second page

stated in bold lettering that the Agreement was “   NOT A ‘BINDER’–NO AGENT

MAY MODIFY THE TERMS OF THIS AGREEMENT–NO INSURANCE IF

SECTION I APPLIES .” 

8, 1996, Mr. Craner participated in a telephone interview with a

Northwestern representative. During this interview, Mr. Craner disclosed, for the

first time, his psychological treatment. Also during this interview, he responded

negatively when asked whether he had ever been convicted of violating a criminal

law other than a traffic violation. Northwestern then attempted to contact the

psychologist to obtain his treatment records. Although numerous attempts were


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made to obtain the records, Northwestern did not receive the complete treatment

information until May 6, 1996. The psychologist’s records disclosed that

Mr. Craner had been diagnosed with depression, and that he was being treated for,

inter alia, several incidents of sexual activities with children. A follow-up

investigation revealed that Mr. Craner had been convicted of lewdness with a

child in November 1991, and that in 1996 he was facing three felony counts of

sexual assault on a child.

      On April 5, 1996, while Northwestern’s investigation was still underway,

Mr. Craner was killed in a one-car accident. On May 14, 1996, Northwestern

determined that Mr. Craner was not an insurable risk as of the underwriting date,

based on his recurrent psychological problems, his criminal conviction, and the

pending criminal charges. Contemporaneously with its decision, Northwestern

returned the first month’s premium paid by Mr. Craner.

       On November 18, 1996, plaintiff filed an action in state court against

Northwestern and its agent, alleging breach of contract, breach of the implied

covenant of good faith and fair dealing, fraudulent inducement, infliction of

emotional distress, and negligent delay. The case was removed to federal court

on diversity grounds. On March 6, 1997, the district court dismissed the

complaint against Northwestern’s agent, and on July 15, 1998, the court granted

Northwestern’s motion for summary judgment. The district court concluded that


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(1) the conditional life insurance agreement was not ambiguous; (2) it contained a

condition precedent requiring that Mr. Craner be determined an acceptable risk

before the coverage would be effective; (3) Northwestern’s determination that

Mr. Craner was not an acceptable insurance risk was not arbitrary or capricious;

and (4) plaintiff’s remaining claims failed as a matter of law. Plaintiff appeals

only the court’s decision regarding her breach of contract claim.

       We review a grant of summary judgment de novo, applying the same

standard as the district court.   See Siemon v. AT & T Corp. , 

, 1175

(10th Cir. 1997). Summary judgment is appropriate if “there is no genuine issue

as to any material fact and . . . the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). We examine the factual record and the

inferences reasonably drawn therefrom in the light most favorable to the party

opposing summary judgment.        See Siemon , 117 F.3d at 1175.

       Plaintiff argues that the conditional life insurance agreement was a

temporary contract of insurance that covered Mr. Craner unless it was terminated

by Northwestern before his death. Alternatively, plaintiff argues the agreement

was ambiguous and should be construed in favor of coverage. We disagree with

both these arguments.

       Because this is a diversity case, we examine Utah law to determine the

meaning and effect of the agreement.     See Novell, Inc. v. Federal Ins. Co.   , 141


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F.3d 983, 985 (10th Cir. 1998) (holding in diversity case that insurance contract

would be interpreted pursuant to Utah law). When an applicant completes a life

insurance application and tenders the first premium, Utah law recognizes two

different relationships that may be created between the applicant and the insurer.

If the insurer issues a “binder” or a “binding receipt,” and manifests an intention

to provide immediate coverage subject to certain conditions, a temporary

insurance contract is created.    See Long v. United Benefit Life Ins. Co., Inc.   , 

, 376-77 (Utah 1973) (holding temporary insurance in effect when agent

advised applicant he was insured from time he signed application; receipt for first

premium did not say it was “conditional”; there was no evidence applicant was

not insurable; and receipt stated insurance was effective on date of application

subject to certain conditions);   Phoenix Indem. Ins. Co. v. Bell   , 

, 35-36

(Utah Ct. App. 1995) (noting “‘binder’ is a term of art in the insurance industry

for a temporary contract for insurance”). Such temporary insurance may be

terminated only when the application is rejected and the applicant is given notice

of the rejection.   See Long , 507 P.2d at 379; Stevenson v. First Colony Life Ins.

Co. , 

, 978 (Utah Ct. App. 1992).

       If, however, the insurer issues a conditional receipt stating clearly that no

insurance will take effect unless certain conditions are met, in particular the

condition of insurability, Utah courts will not find coverage if the condition


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precedent is not satisfied.   See Wade v. Utah Farm Bureau Ins. Co.      , 

, 1095-96 (Utah 1985) (holding that condition precedent to coverage was not

fulfilled when applicant’s death before the medical exam “made it impossible to

learn whether she was an insurable risk”);     Williams v. First Colony Life Ins. Co.   ,

, 537 (Utah 1979) (holding coverage not effective under plainly-

worded conditional receipt when applicant died before conditions met, stating

“the insurer should be accorded the protection of the plainly stated provisions of

its contract as to the conditions prerequisite to its providing insurance coverage”);

Winger v. Gem State Mut. of Utah     , 

, 982-83 (Utah 1969) (holding no

insurance coverage when insurer acted with reasonable dispatch in determining

applicant was not insurable, and “conditional receipt” clearly conditioned

coverage on determination that applicant was insurable according to insurer’s

rules and practices); see also Machinery Center, Inc. v. Anchor Nat’l Life Ins.

Co. , 

, 5-6 (10th Cir. 1970) (construing Utah law to enforce plainly

written condition precedent in conditional receipt, and distinguishing between

binders and conditional receipts).

       In Prince v. Western Empire Life Ins. Co.    , 

(Utah 1967), the

Utah Supreme Court described the effect of a receipt conditioning coverage on

insurability as follows:

       Where a binding receipt is issued to the applicant with a provision
       that the insurance be binding from the date of the application or the

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      medical examination if the insurance company is satisfied that the
      applicant was an insurable risk at that time, the general rule is that a
      contract of preliminary insurance is created with the reserved right in
      the insurer to determine in good faith the applicant's insurability.
      Hence if, at the time of the application or medical examination, the
      insured was an insurable risk, the temporary contract of insurance is
      in force[.] If, however, the applicant at the time of the application or
      the medical examination was not an insurable risk, the company will
      not be liable under the ‘binding receipt.’ The rationale behind this
      holding is simply that the language of the receipt clearly expresses
      the intention of the parties.

The court in Prince found coverage because the receipt was labeled

“binding receipt,” there was proof that the applicant was an insurable risk, and

both parties intended that the insurance would take effect before the applicant’s

other insurance lapsed.   See 

      Moreover, the distinction between these two types of receipts and their

effects appears to be codified by statute in Utah. Section 31A-21-102(1) of the

Utah Insurance Code provides:

      “Binder” means a writing which describes the subject and amount of
      insurance and temporarily binds insurance coverage pending the
      issuance of an insurance policy. “Binder” does not include
      conditional receipts by life insurance companies under which
      issuance of the policy or coverage under the policy is contingent
      upon the acceptability of the risk to the insurer.

Utah Code. Ann. § 31A-21-102(1) (1999 Repl.).

      In the case before us, the conditional receipt very clearly stated that

insurance coverage was conditioned on Mr. Craner’s insurability as of the date of

underwriting. There is nothing ambiguous about Northwestern’s language, which

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emphasized, and later reemphasized, that coverage would not become effective if

the applicant was not an insurable risk when he completed the application or the

medical examination, whichever occurred later. Based on the Utah statute and

case law, we hold that the district court correctly interpreted the receipt to

preclude coverage ab initio when Northwestern determined Mr. Craner was not an

acceptable risk. As no temporary insurance was created, plaintiff is not entitled

to benefits under the policy.   1



       Plaintiff attempts to recast Northwestern’s rejection of the risk as the

insurer’s termination of Mr. Craner’s temporary insurance based on his

misrepresentations. She then argues that such a termination was based on his

failure to satisfy a condition subsequent, and that, therefore, the temporary

coverage was still in effect when he died. The record does not support this



1
       In an attempt to place herself within the factual situation of     Long v. United
Benefit Life Ins. Co. , plaintiff misrepresents the insurance agent’s testimony,
stating “Lambert [the insurance agent] advised Craner at the time of delivery of
the Conditional Receipt that coverage existed from that time forward unless later
terminated.” Appellant’s Br. at 7. The referenced testimony actually states that
the agent “explained to him that     if Mr. Craner was an acceptable risk to
Northwestern Mutual on the underwriting date         , as explained here, that his
coverage would take effect on the later of the signing of the application or the
dating of the medical exam; and that [the signed application, completed medical
exam, and premium payment] created a conditional life insurance amount that
would be payable if he were an acceptable risk to Northwestern Mutual.”
Appellant’s App. at 93, Depo. p. 43:8-17 (emphasis added). No coverage was
created, therefore, by the agent’s statements to the applicant about the effective
date of coverage.

                                           -9-
reading, however. Because Northwestern did not rely on Mr. Craner’s

misrepresentations to decline coverage, the district court did not address the

propriety of terminating coverage on this basis, and neither will we.

      The judgment of the United States District Court for the District of Utah is

AFFIRMED.



                                                    Entered for the Court



                                                    James E. Barrett
                                                    Senior Circuit Judge




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