MATERIAL MISREPRESENTATION RESCINDS POLICY
Barry Zalma

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Never Lie on an Application for Insurance

Plaintiff Security National Insurance Company’s moved for Summary Judgment on its suit for declaratory relief that the insured Salient Landscaping, Inc. misrepresented material facts sufficient to allow the insurer to rescind the policy. In Security National Insurance Company v. Salient Landscaping, Inc., et al., No. 22-10555, United States District Court, E.D. Michigan, Southern Division (October 26, 2022) the USDC resolved the dispute.

BACKGROUND

On March 21,2018, Salient, by its owner Chris Fox, applied for general liability insurance coverage from AmTrust North America, an affiliate of Security. The “Underwriting Information” section of the insurance application (the “Application”) described Salient’s operations as “Basic landscape/lawn care service, maintenance and gardening – mowing, mulching, planting and/or installation” and identified its work as “Landscaping Gardening.” Salient responded “No” when asked whether it had performed, supervised, or subcontracted snow removal work in the past 10 years.

The Application included a letter entitled “Loss Warranty,” which provided that Fox, among others: "warranted and represented that he inquired into Salient, and that, when the Application was executed, he did not know any undisclosed claim, fact, proceeding, circumstance, act, error or omission, which had been or might be expected to give rise to a claim; and understood and accepted that the Policy may be cancelled or rescinded should it be determined that Salient violated its representations and warranties."

The Application also contained a “WARNING” that “[a]ny person who, with the intent to defraud or knowing that he is facilitating a fraud against an insurer, submits an application or files a claim containing a false or deceptive statement is guilty of insurance fraud.” Fox signed the Application, acknowledging that he had read and understood all the questions asked in the Application and had provided all information required.

On March 22, 2018, Security issued the Commercial Lines Policy (the “Policy”) to Salient for the period from March 22, 2018 to March 22, 2019. The Policy required Security to cover and/or defend certain liabilities to bodily injuries or property damages arising out of the conduct of Salient’s business. The Policy also provided, under “Commercial General Liability Conditions” section:

6. Representations

By accepting this policy, you agree

1. The statement in the Declarations are accurate and complete;

2.Those statements are based upon representations you made to us; and

3. We have issued this policy in reliance upon your representations.

On or about February 7, 2022, Security was notified of Hutchinson’s lawsuit against Wellesley and Salient in Michigan state court arising out of a November 2018 slip-and-fall on ice incident. This was the first time Security learned of Salient’s involvement in snow removal work.

DISCUSSION

The court was asked only to address whether the Policy should be rescinded because of Salient’s misrepresentation in the Application, an issue independent of claims made in the Hutchinson’s lawsuit.

This federal declaratory action would settle only the legal relations between Security and Defendants, which will not impair or confuse the state court’s analysis because: "Security is not a party to these proceedings and the state court has dismissed all claims against Salient (thereby halting any further involvement by Security in that case)."

Additionally, there was no evidence that the declaratory remedy was being used merely for the purpose of “procedural fencing” or “to provide an arena for a race for res judicata,” and the court needs not assume otherwise.

The court found that the declaratory action would not increase the friction between federal and state courts and improperly encroach upon state jurisdiction, as there are different parties and there is no overlapping factual or legal issue. Finally, there has been no suggestion of a better or more effective alternative remedy.

Motion for Summary Judgment

Where the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial, entry of summary judgment is appropriate. A fact is “material” for purposes of summary judgment when proof of that fact would have the effect of establishing or refuting an essential element of the claim or a defense advanced by either party.

Under Michigan law, where an insured makes a material misrepresentation in the application for insurance the insurer is entitled to rescind the policy and declare it void ab initio. A false representation in an application for insurance which materially affects the acceptance of the risk entitles the insurer to cancellation as a matter of law.

Rescission is justified without regard to the intentional nature of the misrepresentation, as long as it is relied upon by the insurer. This proposition holds even in cases of “innocent misrepresentation,” so long as a party relies upon the misstatement.

There was no dispute that Salient made a misrepresentation in the March 21, 2018 Application when it denied having performed, supervised, or subcontracted snow removal work in the previous 10 years.

Five months earlier, Fox, the signatory in the Application, signed the “SNOW CONTRACT 2017-2022,” which allowed Salient to perform snow removal and de-icing services for Wellesley. Security has offered unrebutted evidence that the Policy as written would not have been issued but for the misrepresentation of no snow removal operation. Also unrefuted is the fact that Security “does not provide liability coverage to its insureds for snow removal operations and no premium was charged for this liability exposure.” This demonstrated the heightened risk that Security wants to avoid from its insureds’ snow removal operation. Accordingly, the USDC concluded that there was no genuine issue of material facts, and Security had the right to rescind the Policy based on the material misrepresentation made by Salient in the March 22, 2018 Application.

With the Policy rescinded, the parties must be returned to their respective pre-contract positions. Security must return all premiums paid by Salient to restore it to the pre-contract status quo. On the other hand, Security can recover the reasonable defense costs expended to defend Salient in the Hutchinson’s lawsuits before the court affirmed the rescission.

ZALMA OPINION

Since Salient had signed a contract to remove snow more than five months before signing the application for insurance it knew that the answer on the application was clearly and intentionally false. Even if the application’s signer had forgotten about the contract the innocent misrepresentation is still sufficient to support the rescission because the insurer was deceived and had it known the truth it would not have issued the policy. Therefore, the court returned the parties to the position they were in before the inception date of the policy.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business.

He is available at http://www.zalma.com and [email protected].

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