South Florida Insurance Dispute and Litigation Attorney:

The general rule in Florida is that a misstatement in, or omission from, an application for insurance need not be intentional before recovery may be denied pursuant to 627.409. Florida Statute 627.409 provides that :

(1) 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 is not a warranty. A misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:

(a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.

(b) 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.

(2) A breach or violation by the insured of any warranty, condition, or provision of any wet marine or transportation insurance policy, contract of insurance, endorsement, or application therefor does not void the policy or contract, or constitute a defense to a loss thereon, unless such breach or violation increased the hazard by any means within the control of the insured.

The courts, in Florida, have explained that section 627.409(1) allows for the voiding of a policy for misrepresentation or omission without regard to whether the same was intentional. This case law relating to insurance policies is consistent with the general principle in contract law that, to obtain rescission of a contract, based upon misrepresentation, it is not necessary that the party making the misrepresentation should have known that it was false. Innocent misrepresentations are sufficient, for though the misrepresentations may have been made innocently, it would be unjust and inequitable to permit a person who has made false representations, even innocently, to retain the fruits of a bargain induced by such misrepresentation. Although the law has also determined that parties are free to ‘contract-out’ or ‘contract around’ state or federal law with regard to an insurance contract, so long as there is nothing void as to public policy or statutory law about such a contract.

If, as the insured, you are dealing with an issue concerning a claim misrepresentation by the insurance carrier, you should contact a qualified attorney to discuss you specific factual circumstances verses the contract provisions to see if the fact in contention does in fact void the coverage contained in the policy.

Please keep in mind that this information is being provided for educational purposes only. It is not designed to be complete in all material respects. Thus, it should not be relied upon as legal or investment advice. If the reader has any questions or comments concerning this post, you should contact a qualified professional.

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