31A-21-105 - Representations, warranties, and conditions.
31A-21-105. Representations, warranties, and conditions.
(1) (a) No statement, representation, or warranty made by any person representing theinsurer in the negotiation for an individual or franchise insurance contract affects the insurer'sobligations under the policy unless it is stated in the policy or in a written application signed bythe applicant. No person, except the applicant or another by his written consent, may alter theapplication, except for administrative purposes in a way which is clearly not ascribable to theapplicant.
(b) No statement, representation, or warranty made by or on behalf of a particularcertificate holder under a group policy affects the insurer's obligations under the certificate unlessit is stated in the certificate or in a written document signed by the certificate holder, and a copyof it is supplied to the certificate holder.
(c) The policyholder, his assignee, the loss payee or mortgagee or lienholder underproperty insurance, and any person whose life or health is insured under a policy may request, inwriting, from the company a copy of the application, if he did not receive the policy or a copy ofit, or if the policy has been reinstated or renewed without the attachment of a copy of the originalapplication. If the insurer does not deliver or mail a copy as requested within 30 days afterreceipt of the request by the insurer or its agent, or in the case of a group policy certificate holder,does not inform that person within the same period how he may inspect the policy or a copy of itand application or enrollment card or a copy of it during normal business hours at a placereasonably convenient to the certificate holder, nothing in the application or enrollment cardaffects the insurer's obligations under the policy to the person making the request. Each personwhose life or health is insured under a group policy has the same right to request a copy of anydocument under Subsection (1)(b).
(2) Except as provided in Subsection (5), no misrepresentation or breach of anaffirmative warranty affects the insurer's obligations under the policy unless:
(a) the insurer relies on it and it is either material or is made with intent to deceive; or
(b) the fact misrepresented or falsely warranted contributes to the loss.
(3) No failure of a condition prior to the loss and no breach of a promissory warrantyaffects the insurer's obligations under the policy unless it exists at the time of the loss and eitherincreases the risk at the time of the loss or contributes to the loss. This Subsection (3) does notapply to failure to tender payment of premium.
(4) Nondisclosure of information not requested by the insurer is not a defense to anaction against the insurer. Failure to correct within a reasonable time any representation thatbecomes incorrect because of changes in circumstances is misrepresentation, not nondisclosure.
(5) If after issuance of a policy the insurer acquires knowledge of sufficient facts toconstitute a general defense to all claims under the policy, the defense is only available if theinsurer notifies the insured within 60 days after acquiring the knowledge of its intention todefend against a claim if one should arise, or within 120 days if the insurer considers it necessaryto secure additional medical information and is actively seeking the information at the end of the60 days. The insurer and insured may mutually agree to a policy rider in order to continue thepolicy in force with exceptions or modifications. For purposes of this Subsection (5), an insurerhas acquired knowledge only if the information alleged to give rise to the knowledge wasdisclosed to the insurer or its agent in connection with communications or investigationsassociated with the insurance policy under which the subject claim arises.
(6) (a) An insurer that offers coverage to a small employer group as required by Pub. L.
No. 104-191, 110 Stat. 1979, Sec. 2711(a), may not rescind a policy or individual certificateholder based on application misrepresentation unless the insurer would not have been required toissue the coverage in the absence of the misrepresentation.
(b) Subsection (6)(a) does not prevent an insurer from correcting rates if:
(i) in the absence of misrepresentation a different rate would have been required; and
(ii) the corrected rates are in compliance with Section 31A-30-106.
(7) No trivial or transitory breach of or noncompliance with any provision of this chapteris a basis for avoiding an insurance contract.
Amended by Chapter 131, 2003 General Session