May 10, 2021Share
A Misrepresentation, Even If Unintentional Or Unknowingly, May Void The Policy
By Katherine Huynh.
Generally, carriers may deny coverage and rescind an insurance policy based on a material misrepresentation made by the insured on the insurance application. Whether the carrier is required to prove that the misrepresentation was intentional differs among states. For example, Louisiana requires that the carrier prove the insured had the intent to deceive.
Florida, however, does not require the additional element of intent. Florida Statutes section 627.409 provides in relevant part:
- Any statement or description made by or on behalf of an insured or annuitant in an application for an insurance policy or annuity contract, or in negotiations for a policy or contract, is a representation and not a warranty. Except as provided in subsection (3), a misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:
- The misrepresentation, omission, concealment, or statement is fraudulent or is material to the acceptance of the risk or to the hazard assumed by the insurer.
- If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.
“[A]ny misrepresentation, innocent or intentional, will void an insurance contract if the misrepresentation is material.” A material misrepresentation exists when the carrier would have not issued the policy, issued a different policy, or issued the same policy at a different premium.
The parties to an insurance contract may “contract-out” of state law requirements so long as doing so does not violate public policy or statutory law. If the policy does not impose a stricter standard than Section 627.409, the carrier may rescind the policy based on an innocent or unintentional misrepresentation.
Many concealment or fraud exclusions found in insurance policies, however, do not require proving intent. In Universal Property & Casualty Insurance Co. v. Johnson, the First District Court of Appeals analyzed the following clause:
- Concealment or Fraud. The entire policy will be void if, whether before or after a loss, an “insured” has:
- Intentionally concealed or misrepresented any material fact or circumstance;
- Engaged in fraudulent conduct; or
- Made false statements; relating to this insurance.
The Court held that subsection 2c did not require that the carrier prove the insured’s intent to deceive. The Court reasoned that because subsection 2a and 2b did require intent, subsection 2c, “made false statements”, would be superfluous if it only applied to intentional false statements.
Both carriers and insureds should be aware of potential misrepresentations. Florida insurance carrier’s may deny coverage and rescind the policy based on a material misrepresentation, whether innocent or intentional.
Katherine Huynh is an Attorney at Kelley Kronenberg where she assists in handling matters related to First Party Insurance Defense Litigation.
Contact KAtherine Huynh at:
Phone: (800) 646-3784
DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg, nor its individual attorneys or staff, are responsible for errors, omissions and/or typographical errors – always seek competent legal counsel.