dissenting in part:
I respectfully dissent from that portion of Section I of the disposition affirming the district court’s partial grant of summary judgment in favor of Northwestern Mutual. The district court’s conclusion, on summary judgment, that there was no genuine issue of material fact as to Koch’s intent to deceive is in tension with its later ruling on Northwestern Mutual’s motion for judgment as a matter of law that there was sufficient evidence to support a jury finding in Koch’s favor on that element. Koch already had insurance at the time he obtained the 1992 policies, creating a question of fact (and credibility) whether he had a motive to deceive Northwestern Mutual. The jury should have been allowed to decide whether Koch acted with deceptive intent in obtaining the 1992 policies, just as it was regarding the 1994 policy. See Kay v. Occidental Life Ins. Co., 28 Wash.2d 300, 183 P.2d 181, 182 (1947).
Accordingly, I would also remand for reconsideration Koch’s entitlement to attorney’s fees (Section IV), in light of the incorrect summary judgment on the claim for rescission of the 1992 policy.