A Follow Up to the Question of When Post-Loss Misrepresentations are Material

There are a few issues here that need to be clarified for our insureds out there who may be dealing with an insurance company making accusations of misrepresentations.  First, the rules are different depending on whether the alleged misrepresentation occurred before the loss or after the loss.  The one I see more often is the misrepresentation that occurs during the application process. That topic is certainly worthy of several posts on its own, but suffice it to say here that a material misrepresentation on an insurance application that increases the risk of loss can completely void the policy, meaning that the insurance company will refund the premiums as if the policy never existed at all.  As for misrepresentations that occur after the loss during the claim process, the law is much more generous to the insured.  In those cases, to avoid its obligations under the policy, the insurance company has the burden to show that the misrepresentation was intentional and designed to deceive. A simple mistake isn't enough. For example, if an insured fills out his proof of loss and makes a mistake in adding his personal property inventory and thus fills in the wrong number on the proof of loss, that would not be an intentional misrepresentation.  


Another requirement is that the alleged post-loss misrepresentation be material in nature.  So what is material?  In Nix v. Sentry Ins., 668 S.W.2d 462 (Tenn. Ct. App. 1983), the Court of Appeals dealt with precisely that question.  In that case, the issues at trial centered around whether the plaintiff had committed arson and whether the plaintiff had made material misrepresentations regarding what property was actually destroyed by the fire and its value.  The trial court found that there was no arson, but that there had been misrepresentations concerning the value of the property destroyed in the fire. The judge therefore found that the insurance company had no liability for the loss.  On appeal, the Tennessee Court of Appeals reversed, holding:


When the false swearing is in the application it forms the basis upon which the contract rests, and if fraud enters into it the policy would be voided even though the policy does not so provide.  But after the loss occurs then voiding the policy is in the nature of a penalty or forfeiture; in other words, in such cases the holding is virtually that, although the insured has had a loss, and may be entitled to recover from it, yet, as he has been guilty of fraud in the proofs, he must have his policy vacated and set aside as a punishment for such fraud, or attempted fraud.  In the latter case, as in all cases of forfeiture, a strict construction should be adopted, and the forfeiture not enforced except on the plainest grounds, if at all.


Nix, 666 S.W.2d at 463-64.  Most importantly to the issue of materiality, the court also noted "that if rights are to be forfeited under the terms of this insurance policy, the concealment or misrepresentation made must be relative to the loss claimed."  In that case, the insurance company pointed to alleged misrepresentations concerning the insured's financial condition which might have provided a motive for arson, but did not point to any specific misrepresentations in the proof of loss.  Because the court found there was no arson, any misrepresentations concerning the insured's financial condition were not material to the issue of his valuation of certain personal property, and the policy could not be voided.  


Nix is a very important case, and can be incredibly useful in insurance disputes.  It obviously isn't a license to misrepresent material facts, but it does substantially limit an insurance company's ability to void a policy altogether when the alleged misrepresentations just don't have anything to do with the issues at hand. 

The "Goose and Gander" Rule - The Policyholder's Bad Faith


Tennessee Code Annotated § 56-7-106 brings the old adage of “what’s good for the goose is good for the gander” to first party insurance litigation in Tennessee. It provides a penalty against the policyholder of an amount not exceeding twenty-five percent (25%) of the amount claimed when:


  • The policyholder does not recover under the policy; and
  • Where the policyholder did not bring the action in good faith.

There is much less case law on this statute. As I have urged elsewhere on this blog, with respect to “bad faith” allegations against the insurance carrier, it would seem rare that this penalty would be awarded against an insured. In twenty years of practice however, I have actually seen this penalty awarded more often than the penalty under TCA § 56-7-106. I have obtained a verdict on this claim in several cases. All of them involved situations where:


  • The insured was responsible for the loss (either arson or staged theft);
  • The insured made material misrepresentations in the post-loss context (either in the examination under oath or in the sworn statement in proof of loss); and
  • Despite denial of the claim, the insured chose to pursue litigation against the carrier.

As with any war story, each of these cases had its unique twist, from being able to produce some of the allegedly stolen property that the policyholder had sold at a yard sale to showing through neighbors that the policyholder had misrepresented his presence at the home immediately prior to the fire (when the policyholder, the jury believed, was moving truckloads of personal property out of the house). 


Thus, if you represent the insured, be aware of this possibility. While the cases in which the penalty has been awarded have unique facts, the fact is that there is some level of proof that does exist where a jury will find that the policyholder has actually acted in bad faith against the insurer.