Insurance Policy Rescission: Navigating the Differing Legal Standards Underlying a Misrepresentation Claim or Defense

Rescission is a powerful weapon for insurers alleging misstatements or concealment of fact in policy applications or renewals. An alternative to rescission is the prior knowledge exclusion that may serve to avoid coverage for a particular claim based on a misstatement or omission but otherwise keeps the policy in force.

Two recent 2016 cases, Heinz v. Starr and Fireman’s Fund Insurance v. Great American Insurance, amply demonstrate the importance of choice of law and the fact that legal standards underlying a misrepresentation claim vary among jurisdictions. In Heinz, “intentional and unintentional misrepresentations” were both actionable under New York law. In other states, rescission is appropriate only when the policyholder makes false representation “knowingly or in bad faith.”

Insurer counsel must be keenly aware of the circumstances that give rise to a credible claim that the policyholder failed to disclose pertinent facts relating to the insured risks. Policyholder counsel must anticipate potential bases for policy rescission and exclusion of coverage and be prepared to take appropriate measures to minimize the risks.

Listen as our authoritative panel of attorneys discusses varying legal standards underlying a misrepresentation claim seeking policy rescission and recent case law on rescission and related exclusions. The panel will look at arguments for insurers asserting misrepresentation and measures policyholders can take to avoid or defend such claims.

1. Insurance policy rescission
   1. Misrepresentation and concealment
   2. Intent
   3. Materiality
   4. Reliance
   5. Burden of proof
   6. Waiver and estoppel
2. Prior knowledge exclusions
   1. Objective v. subjective knowledge
   2. Severability provisions
3. Pursuing or Protecting Against Policy Rescission
   1. Insured’s application and renewals
   2. Underwriting process
   3. Duty of insurer to investigate representations

The panel will review these and other key issues:

• What are the legal standards for policy rescission—and what can policyholders do to minimize this risk?
• How are prior knowledge exclusions applied?
• Does the insurer have a duty to investigate policyholder representations during the underwriting process?