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Ins Law 3105 in the realm of no-fault? No way



Want to cancel a policy that insures against proper damage?  Material misrepresentation will do it.   A policy that of insurance that insures against death or personal injury?  3105 will not apply and all cancellations will be prospective at best.

Against this reality came the lack of reality that is SS Med. Care, PC v USAA Gen. Indem. Co., 2015 NY Slip Op 51094(U)(Civ. Ct. Kings. Co. 2015)

In this case, the Civil Court found that the law that has developed under 3105 applied to a policy of insurance insuring against personal injury or death.  This was a mistake.  Second, the Court failed to apply a fraudulent procurement theory to the facts of this case; rather, the Court applied a faulty 3105 paradigm.

“It is well settled that to establish the right to rescind an insurance policy an insurer must show that the insured made a material misrepresentation when he or she secured the policy (Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2d Dept 2011], citing see Novick v Middlesex Mut. Assur. Co., 84 AD3d 1330 [2011]; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855, 856 [2009]; Schirmer v Penkert, 41 AD3d 688, 690 [2007]; Zilkha v Mutual Life Ins. Co. of NY, 287 AD2d 713, 714 [2001]). A misrepresentation is considered to be material only if the insurer would not have issued the policy had it known the facts misrepresented (Interboro, 89 AD2d at 994, citing see Insurance Law § 3105 [b] [1]; Novick, 84 AD3d at 1330; Varshavskaya, 68 AD3d [*3]at 856). “To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show it would not have issued the same policy if the correct information had been disclosed in the application” (Interboro, 89 AD3d at 994, quoting Schirmer v Penkert, 41 AD3d at 690-691).”

This is all nonsense.