dissenting:
The facts presented to the jury in this case do not permit a jury reasonably to conclude that Prime Insurance Syndicate, Inc. breached its contract of insurance with Jimmy Myrick when it denied coverage for the loss by fire of Myriek’s 1989 Barko 775 fellerbuncher (Serial No. 17109). The policy of insurance, that issued to “Jimmy Myrick dba Palmetto Logging” on September 2,1998, insured a 1985 Hydro Ax 311C fellerbuncher (Serial No. 311C2377), not the 1989 Barko 775 that was destroyed on September 17, 1998. As the record demonstrates, the 1985 Hydro Ax fellerbuncher insured by Prime Insur-*497anee was in fact the fellerbuncher that had been purchased by Donald Brandt for use in an earlier joint venture between Brandt and Myrick, and indeed Brandt was named as a loss payee in Prime Insurance’s policy. When the joint venture of Myrick and Brandt failed to get off the ground, Myrick decided in July 1998 to enter the logging business by himself, purchasing the 1989 Barko 775 fellerbuncher.
The record shows that when Brandt and Myrick planned to pursue the logging business together, they intended to use the 1985 Hydro Ax fellerbuncher that had belonged to Brandt. Accordingly, on behalf of the joint venture, Myrick obtained insurance to protect the business for loss of that fellerbuncher. Indeed, a fax dated June 25, 1998, from Myrick to Gregg Matthews, Myrick’s insurance agent, describes the three pieces of equipment that the joint venture of Brandt and Myrick was insuring, including the 1985 Hydro Ax fel-lerbuncher.
When Myrick and Brandt decided not to pursue business together, Myrick purchased another fellerbuncher — a used 1989 Barko 775 — which he reconditioned. When Myrick sought insurance from Matthews for his new business, either Matthews or Myrick’s office modified the June 25 fax, by deleting a Franklin 170 skidder and substituting for it a 1986 Timberjaek skidder and by adding at the top of the fax, “Jimmy Myrick, dba/Palmetto Logging,” to indicate who was to be the named insured. But the fax as modified left on the list the 1985 Hydro Ax 311C feller-buncher that had been insured earlier for the business with Brandt. Moreover, neither Matthews nor Myrick’s office added to the list the recently purchased 1989 Barko 775 fellerbuncher. Thus, when the marked-up June 25 fax was used by Matthews to obtain insurance for Myrick, it did not include a request for insurance on the 1989 Barko 775.
Matthews in fact obtained insurance for Myrick’s new business in the form stated in the marked-up June 25 fax. Because Matthews did not underwrite the type of insurance that Myrick needed, he contacted Johnson Insurance Associates, Inc., the agency for Prime Insurance, to obtain a binder, effective September 2, 1998. On the same day that Johnson Insurance received the information from Matthews, Johnson Insurance contacted Prime Insurance to have it issue the binder that day. Prime Insurance indeed did so and issued an insurance policy to “Jimmy Myrick dba Palmetto Logging,” effective September 2, 1998, insuring Myrick’s business and equipment, including the 1985 Hydro Ax SllC fellerbuncher. It also named Donald Brandt as a loss payee, indicating that he had an interest in the equipment as mortgagee. Accordingly, the policy issued by Prime Insurance covered precisely the equipment that was sought to be covered by the modified June 25 fax, including the 1985 Hydro Ax fellerbuncher, but not the 1989 Barko 775. The description of the equipment covered by Prime Insurance was in no way a “misdescription,” but rather an accurate description of the feller-buncher that had been involved in the business between Brandt and Myrick. There is no evidence that Myrick made any request or provided any information to Johnson Insurance Associates or to Prime Insurance to insure the 1989 Barko 775 fellerbuncher.
The evidence shows that, by whatever mistake that Myrick or Matthews made, they insured the 1985 Hydro Ax feller-buncher previously insured by Myrick for his joint venture, and not Myrick’s 1989 Barko 775 fellerbuncher. While the facts might show that Myrick insured the wrong fellerbuncher from his point of view, the fellerbuncher insured was not “misdes-cribed.”
*498Obviously, when Myrick later sought payment from Prime Insurance for loss of the. 1989 Barko 775 fellerbuncher, Prime Insurance denied coverage, and properly so.
The district court let the jury in this case rewrite the insurance policy, denying Prime Insurance’s motion for summary judgment, its motion for judgment during trial, and its motion- for judgment as a matter of law following trial. And the majority now affirms this rewriting of the policy, despite the fact that there is not one scintilla of evidence to support the notion that a misdescription was involved. The 1985 Hydro Ax, including its serial number, was correctly described; it was simply not the fellerbuncher that Myrick purchased in July 1998 and that fire destroyed in September 1998.
The majority assumes that there was only one fellerbuncher in question and that therefore the description of a fellerbuncher in the policy had to be a “misdescription”:
We characterize what occurred in this case as a misdescription because the record reveals that Myrick owned only one fellerbuncher. This fact makes the schedule description in this case no different than a situation in which the wrong model year was listed because there can be no confusion as to which piece of equipment is referred to in the schedule — ie., Myrick’s only piece of equipment.
Ante at 491 n. 10. This, of course, overlooks the fact that there were two different fellerbunchers and that the fellerbuncher that Myrick actually insured, albeit by mistake, was the fellerbuncher that he had previously insured as part of his business with Brandt. His mistake is further confirmed by . the fact that Myrick had Prime Insurance list Brandt as an additional loss payee.
Thus, at bottom, Myrick insured the torong property through a mistake that occurred somewhere between Myrick’s office and Gregg Matthews’ office. But the mistake of insuring the wrong fellerbuncher is not the same as a “misdescription” of a single fellerbuncher.
The majority also assumes that the “misdescription” was not material to Prime Insurance’s underwriting risks. Yet, the only evidence on materiality is to the contrary. First, not only were the two feller-bunchers different models and different brands, but they were also of different ages. In addition, the 1989 Barko 775 fellerbuncher that Myrick purchased in July 1998 was not working and had to be reconditioned at a cost of $8000 — 9000. The only witness to testify directly about the relative risks, Roger Day, an officer of Prime Insurance, stated that the underwriting risks for the two machines were different. When questioned by Myrick’s counsel to suggest that both fellerbunchers had a similar value and therefore would have been insured for the same premium, Day rejected the suggestion, stating that one could not draw such a conclusion. Obviously different machines of different ages and conditions pose different risks. Because this was the only evidence with respect to materiality, Myrick failed to carry his burden of proving that there was no material difference in underwriting risk for insuring the two fellerbunchers.
I believe it is fundamentally unjust to allow a judgment to be entered against Prime Insurance for loss of the 1989 Barko 775 when it issued a policy — in the form exactly as requested — insuring only the 1985 Hydro Ax fellerbuncher that had been part of the business between Myrick and Brandt and which was correctly, described. Accordingly, I respectfully dissent.