On April 30, 2009, the Tennessee Court of Appeals issued yet another opinion on the topic of misrepresentations on insurance applications.  The case is Tennessee Farmers Mut. Ins. Co. v. Farrar (view slip opinion here). 

First, it should be noted that T.C.A. 56-7-103 provides that a misrepresentation on an application voids the policy if (1) the misrepresentation was made with actual intent to deceive, or (2) the misrepresentation increases the insurance company’s risk of loss. Over the years, Tennessee courts have applied this statute on numerous occasions, and have held that a misrepresentation increases the insurance company’s risk of loss when it is of such importance that it "naturally and reasonably influences the judgment of the insurer in making the contract." 

In Farrar, the insured indicated on his application for insurance that he was the only person with an ownership interest in the property.  It turns out that another individual (who happened to be a disabled person with a history of alcoholism and mental illness) had a life estate in the insured property and lived with the insured.  Relying on prior case law holding that misrepresentations as to the title of the property are sufficient to void a policy and the fact that the insurer "never had an opportunity to ask [the insured] questions so it might evaluate the risk associated with the dual ownership interests," the court held that the misrepresentation increased the insurer’s risk of loss and affirmed the trial court’s ruling that the policy was void. 

The result in Farrar was really no surprise. However, what would have happened if there were no misrepresentations on the application and the life estate had been granted after the application was submitted?  We will find out soon – I presently have a case on appeal in which the insured lived at his Chester County home for 20 years, but conveyed it to his son before a fire.  Despite the conveyance to his son, he continued to live at the house, maintained it, and treated it as his own in all respects.  There was no provision in the policy that required the insured to notify the insurance company if title to the property changed.  My client (the insured) won at the trial court level, and the case is presently on appeal.  The issue there will be one of insurable interest, which is another topic altogether.  Look for an opinion toward the first of next year.

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Photo of Brandon McWherter Brandon McWherter

J. Brandon McWherter is a Nashville-based lawyer and member of McWherter Scott & Bobbitt PLC, which has offices across the State of Tennessee and elsewhere across the Southeast.  Licensed in Tennessee, Arkansas, Mississippi, and numerous federal courts, he has dedicated his practice…

J. Brandon McWherter is a Nashville-based lawyer and member of McWherter Scott & Bobbitt PLC, which has offices across the State of Tennessee and elsewhere across the Southeast.  Licensed in Tennessee, Arkansas, Mississippi, and numerous federal courts, he has dedicated his practice to assisting insurance policyholders with their claims against insurance companies, including claims for bad faith.

For well over a decade, McWherter’s practice has been focused almost exclusively on the prosecution of first party property insurance claims for policyholders.  His interest in this area of the law first started around 2003 when a tornado struck Jackson, Tennessee, where he lived and worked at the time.  Since then, McWherter has represented hundreds or thousands of policyholders whose claims have been underpaid or denied.  He advises and advocates for owners of commercial properties, industrial facilities, residential properties, churches, business owners, and other insurance policyholders.

Since he started counting in 2013, McWherter has assisted his clients in obtaining well in excess of Two Hundred Fifty Million Dollars ($250,000,000) in settlements, awards, and jury verdicts against insurance companies.

In 2018, McWherter was inducted as a fellow in the American College of Coverage Counsel, which is an invitation-only organization designed to facilitate and encourage the association of lawyers who are distinguished for their skill, experience, and high standards of professional and ethical conduct in the practice or teaching of insurance coverage and extra-contractual law and who are dedicated to excellence in this area of practice.

McWherter has been featured as a “Super Lawyer” or “Rising Star” by SuperLawyers every year since 2010.  Since 2013, he has been selected each year  for inclusion in U.S News and World Reports’ The Best Lawyers in America in the field of Insurance Law.  He also enjoys an AV Preeminent ranking by Martindale-Hubbell for legal ability and ethical standards.

Mr. McWherter is a lifelong Tennesseean and received his law degree from the University of Memphis. While in law school, he was a member of the University of Memphis Law Review, and served on the Editorial Board as Notes Editor.

In advocating for clients, McWherter has trudged through fire scenes and crawled storm-damaged roofs, quizzed consulting construction experts and experts for hours on end, and deposed and cross-examined hundreds of adjusters, experts, consultants, and other professionals within the insurance industry.  He reads insurance policies nearly every day and has a working knowledge of the customs and practices of insurance companies in investigation, estimating, and payment of claims.  McWherter counsels clients on presentation of claims, assists in compiling the evidence necessary to validate the amounts owed, and then enforces his clients’ rights, if necessary, via the judicial system and other alternative dispute resolution options, such as appraisal.

Several of McWherter’s cases have developed the law governing insurance disputes in the State of Tennessee, most recently including the Tennessee Supreme Court’s 2019 decision in Lammert et al. v. Auto-Owners Ins. Co., which held that insurers may not depreciate the costs of labor in determining their actual cash value payment obligations when the policy does not clearly allow it.

When not working, you will usually find Mr. McWherter with his wife, Angela, and his two daughters. He is an avid golfer and a lifelong bass fisherman, neither of which he does as often as he would like.

Practice Areas

  • Representation of policyholders in claims and litigation against insurance companies
  • Bad faith insurance litigation
  • Insurance-based consumer class actions

Professional Associations

  • Tennessee Bar Association
  • Arkansas Bar Association
  • Mississippi Bar Association
  • Tennessee Trial Lawyers Association
  • American Trial Lawyers Association (past member)
  • American Bar Association (past member)

Education

  • B.S.B.A. – Union University (1998)
  • J.D. – University of Memphis (2001)

Bar Admissions

  • Tennessee
  • Mississippi
  • Arkansas
  • Fifth Circuit Court of Appeals
  • Sixth Circuit Court of Appeals
  • Eleventh Circuit Court of Appeals
  • United States District Court for the Western District of Tennessee
  • United States District Court for the Middle District of Tennessee
  • United States District Court for the Eastern District of Tennessee
  • United States District Court for the Northern District of Mississippi
  • United States District Court for the Southern District of Mississippi
  • United States District Court for the Eastern District of Arkansas
  • United States District Court for the Western District of Arkansas
  • United States District Court for the Northern District of Illinois
  • United States District Court for the Central District of Illinois
  • United States District Court for the Southern District of Illinois
  • United States District Court for the Western District of Texas
  • United States District Court for the Eastern District of Michigan
  • United States District Court for the Western District of Wisconsin