concurring in part and dissenting in part:
I must respectfully dissent from the view of the majority that the insurance company is entitled to rescission of the insurance contract. The Court of Appeals properly upheld the jury verdict of $77,063.04 on the contract claim, so I would deny certiorari as improvidently granted. I agree with both the majority opinion and the Court of Appeals that the bad-faith claim was improperly placed before the jury and that the award of punitive damages was error.
Washington National’s agent represented to Claborn that its policy was comparable to Clabom’s then existing policy with State Farm. However, the agent never examined the State Farm policy even though Claborn was explicitly seeking replacement coverage. In fact, the two policies were not comparable. Had the agent read the State Farm policy, he would have discovered that it contained an “exclusion endorsement” whereby State Farm would not cover Claborn for any convulsive or seizure disorders. The existence of such a clause would lead the prudent insurer to exercise reasonable diligence in investigating the insured’s medical history rather than merely relying on the insured’s *1052oral responses to a questionnaire. Had Washington National exercised such reasonable diligence, it would have discovered that Claborn’s seizure disorder was related to his alcoholism for which he had been treated within the previous five years. Further, had Washington National known of the past treatment for alcoholism, it would not have insured Clabom who, in turn, would not have allowed his existing State Farm policy to lapse, and the litigation which gave rise to the appeal before us would never have taken place.
Washington National bases its defense of rescission on Claborn’s alleged misrepresentations regarding his treatment for alcoholism. However, where an “insurer has information which would have put a prudent person on notice of possible falsity and would have caused an inquiry which, if carried out with reasonable diligence, would have revealed the truth, the insurer cannot rely on the misrepresentation.” Hardy v. Prudential Ins. Co. of Am., 763 P.2d 761, 770 (Utah 1988). Moreover, “[a]n action for fraud may not be predicated on false statements when the allegedly defrauded party could have ascertained the truth with reasonable diligence.” Silver v. Slusher, 770 P.2d 878, 881 n. 8 (Okla.1988), cert. denied, 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37 (1989).
In its reply brief, Washington National admits that had it known of the rider for seizure disorder, it would have investigated Claborn’s medical history rather than relying exclusively on the truthfulness of his representations. Information concerning the rider was within Washington National’s control. As a result, because Washington National failed to avail itself of information which was within its control and which would have led a prudent and reasonably diligent insurer to discover Claborn’s past treatment for alcoholism, the trial jury in the instant ease could have concluded that Washington National’s reliance on Claborn’s alleged misrepresentations was not reasonable. “A jury verdict and judgment will not be reversed for error, if there is substantial evidence to support the verdict on any theory of law.” Eversole v. Oklahoma Hosp. Founders Ass’n, 818 P.2d 456, 459 (Okla.1991). Moreover, “where there is any competent evidence reasonably tending to support the verdict of the jury, this Court will not disturb the verdict and judgment based thereon.” Id. Because there is conflicting evidence on the issue as to whether Washington National’s reliance on the alleged misrepresentations was reasonable, I must dissent from the majority opinion’s holding on the contract claim.