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John H. Shaffery: Avoid getting your life insurance policy rescinded

It's The Law

Posted: October 29, 2009 4:31 p.m.
Updated: October 30, 2009 4:55 a.m.
 
A business executive was answering questions on an application for a $3 million life insurance policy that named as the beneficiary a company he had started with others.

He answered in the negative when asked the common question as to whether he “Engaged in auto, motorcycle or boat racing, parachuting, skin or scuba diving, skydiving or hang gliding or other hazardous avocation(s) or hobb(ies).”

In fact, on about 20 occasions, the executive had gone heli-skiing, which involves skiing down remote mountain trails after being dropped off by a helicopter.

Only three months after the policy was issued, the executive was killed in an avalanche while heli-skiing.

The tragedy for his survivors and former business partners was compounded in the courtroom when a federal appeals court upheld the life insurer’s rescission of the life insurance policy on the ground of a misrepresentation on the application.

A reasonable person in the position of the life insurance policy applicant would have known that his heli-skiing avocation constituted a hazardous activity, as that term was used in the application.

The applicant clearly was aware of the heightened avalanche risks associated with heli-skiing, as compared to resort skiing.

He had routinely signed waivers to that effect whenever he engaged a company that made arrangements for such excursions.

It was hardly necessary for the insurer to point out in making this argument, that heli-skiing commonly involves rescue and survival training and the use of specialized lights and breathing devices meant to increase one’s chances of surviving an avalanche.

About three weeks after the executive had completed the insurance application by telephone, an underwriter making calls for the insurer called him with some follow-up questions, including the same inquiry about “any hazardous activities.”

This time, the executive mentioned in the conversation that he enjoyed skiing and golf, among other things, but still there was no mention of heli-skiing.

Nor did the executive show any concerns or confusion over what the term “hazardous activities” meant.

The beneficiary under the rescinded policy unsuccessfully sought to use this exchange to argue that the life insurer was chargeable with knowledge of the insured’s concealment of his heli-skiing avocation, and thus was precluded from seeking rescission.

The court ruled that the insured’s “skiing” statement, when combined with the negative responses to the general question of whether he engaged in hazardous activities, would not have put a prudent underwriter on notice of the need to investigate further.

Otherwise, any report by an applicant of a generally low-hazard recreational activity, such as wrestling, juggling or fishing would unreasonably require the insurer to investigate the myriad possible “extreme” variants of such activities.

Instead, to make an insurer legally chargeable with knowledge of an undisclosed fact, generally it must be shown that it had knowledge of evidence indicating that the applicant was not truthful in answering a particular application question.

In this case, there was no such “red flag” that might have allowed the policy beneficiary to avoid the consequences of the executive’s untruthfulness.

John H. Shaffery is a partner with Poole & Shaffery, LLP. He can be reached at (661) 290-2991 or by e-mail at info.pooleshaffery.com. Shaffery’s column represents his own views, and not necessarily those of the Signal. “It’s The Law” appears Fridays and rotates between members of the Santa Clarita Valley Bar Association.  Nothing contained herein shall be or is intended to be construed as providing legal advice.

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