"Misrepresentation, according to the law of insurance, is the statement of something, as fact, which is untrue, and which the [in]sured states knowing it to be untrue, and with the intent to deceive . . . such fact being . . . material to the risk." Clark v. Union Mut. Fire Ins. Co., 40 N.H. 333, 338 (1860); see also Am. Credit-Indemnity Co. of N.Y. v. E.R. Apt Shoe Co., 74 F.2d 345, 347-48 (1st Cir. 1934) (applying New Hampshire law);Amoskeag Trust Co. v. Prudential Ins. Co. of Am., 88 N.H. 154, 160-61 (1936); Domocaris v. Metro. Life Ins. Co., 81 N.H. 177, 181 (1923), overruled on other grounds, Boucouvalas v. John Hancock Mut. Life Ins. Co., 90 N.H. 175 (1939). In moving for summary judgment, the defendants argue that there is no factual dispute that Griffiths's statement that he had not been indicted for fraud was (A) material, (B) untrue, and (C) made with the intent to deceive.
Like our statute, they must be given a reasonable interpretation. Amoskeag Trust Co. v. Insurance Co., 88 N.H. 154, 157. Applying this standard we hold that under paragraph (a) misstatements, other than fraudulent, made by the applicant in the application for a policy cannot be used by the company after two years from the date of its issue to void the policy or to deny payment for a loss incurred or a disability which commenced after that two-year period.
She appealed. There are two defences, (1) that the provision in the policy making it "incontestable after it has been in force during the lifetime of the Insured for a period of two years from its date of issue" ( Mutual Life Ins. Co. v. Hurni Packing Co. 263 U.S. 167; State Mutual Life Assurance Co. v. Stapp, 72 Fed. [2d] 142; Amoskeag Trust Co. v. Prudential Ins. Co. 88 N.H. 154; Prudential Ins. Co. v. Prescott, 115 Fla. 365), with immaterial exceptions, bars relief against the beneficiary, who was not made a party until after that period had ended, and (2) that the right to maintain the suit did not survive the death of the insured. 1. The provision for incontestability in the policy conforms to G.L. (Ter.
A misrepresentation is “the statement of something, as fact, which is untrue, and which the assured states knowing it to be untrue, and with the intent to deceive” or which the assured “states positively as true, not knowing it to be true, and which has a tendency to mislead.” Clark, 40 N.H. at 338. When the insured has expressly “stipulated and warranted that a certain fact is true, that warranty makes the fact a material one . . . .” Amoskeag Trust Co. v Prudential Ins. Co. of America, 88 N.H. 154, 185 A. 2, 6 (1936)(quotation omitted). A misrepresentation concerning the applicant's medical history is also deemed to be material to the issuance of a life insurance policy.
Manelas v. Nat'l Acc. & Health Ins. Co., 89 N.H. 559, 560 (1938). See also Amoskeag Trust Co. v. Prudential Ins. Co. of Am., 88 N.H. 154, 163 (1936) ("a false statement as to medical history is by the better view material as a matter of law."). Moreover, HCC Life has submitted uncontroverted evidence that had Wallis answered "yes" to question 3 on the application and revealed his diagnosis of, and treatment for, atrial fibrillation, HCC Life would not have issued the Policy.
However, New Hampshire law has adopted the principle that express warranties in insurance contracts and contracts for the sale of goods can give rise to actions for damages when the warranty is an essential element of a contract. If a contracting party "in express terms, stipulate[s] and warrant[s] that a certain fact is true, that warranty makes the fact a material one; and . . . an indispensable condition in the compact."Amoskeag Trust Co. v. Prudential Insurance Co. Of America, 88 N.H. 154, 185 A. 2, 6 (1936). With respect to the sale of goods, the Uniform Commercial Code, adopted by New Hampshire law, provides that "`express warranties can be created by promises or affirmations of fact which relate to the goods and become part of the contractual bargain.'"
The chief contention of the defendant is that the plaintiff testified under oath to intentional misstatements of material facts, that her testimony under oath as to the details of her prior medical history, the accident and her medical history since the accident is unworthy of belief as a matter of law and that the Court should consequently have granted a directed verdict for the defendant. Hebert v. Railroad, 90 N.H. 324; Laporte v. Houle, 90 N.H. 50; Moreau v. Insurance Co., 84 N.H. 422; Amoskeag Trust Co. v. Insurance Co., 88 N.H. 154. The plaintiff's medical history prior to the accident in question has been long and varied.
In the present case, however, it does not appear that the application was endorsed upon or attached to the policy and made a part thereof as required by RSA 408:9. See Amoskeag Trust Co. v. Prudential Life Insurance Company of America, 88 N.H. 154, 158; Gleason v. Insurance Co., 73 N.H. 583. The statute expresses the public policy of the state that insurance applications should see the light of day and that the policyholder should have an opportunity to read them. Anno. 93 A.L.R. 374. The failure of the insurer to attach to the policy a copy of the application prevents its reliance on misstatements in the application. Lampke v. Metropolitan Life Ins. Co., 279 N.Y. 157; 1 Couch, Cyc. Insurance, s. 138. Accordingly the misstatements in the application itself cannot be relied upon by the defendant as a defense.
Moreau v. Insurance Co., 84 N.H. 422. The circumstances under which a false statement was made may be such as to preclude a finding that it was made in good faith. Amoskeag c. Company v. Insurance Co., 88 N.H. 154. In other words, certain evidence which is superficially relevant, may not be the basis for a finding by the jury and is not fit to be submitted to them.
Ward v. Casualty Co., supra, 267, 268. Compare also Amoskeag Trust Co. v. Insurance Co., 88 N.H. 154, 159, 162. The contract is construed to mean that the party to be burdened with the preparation, defence and payment of any judgment must have information upon which to base future action "as soon as is reasonably possible" after the accident.