Petition denied. For former opinion, see 91 F.2d 735. Morgan V. Spicer, William S. Graham, W.W. Sanderson, and J.W. McCaughey, all of San Francisco, Cal., Robert W. Jennings, of Sacramento, Cal., and W.H. Metson, of San Francisco, Cal., for appellant.
Claiming a loss for things that were not damaged by the covered event, or deliberately overstating the value or replacement cost of insured property, constitute material misrepresentations. See Perovich v. Glens Falls Ins. Co., 401 F.2d 145, 147 (9th Cir.1968); Hyland v. Millers Nat. Ins. Co., 91 F.2d 735, 741–43 (9th Cir.1937); Nationwide Mut. Ins. Co. v. Ryan, 2014 WL 4793890, *6, 2014 U.S. Dist. LEXIS 135829, *17 (N.D.Cal. Sept. 25, 2014); Safeco Ins. Co. of Am. v. Bass, 1994 WL 238300, *3, 1994 U.S. Dist. LEXIS 7199, *8 (N.D.Cal. May 17, 1994); Newman v. Firemen's Ins. Co., 67 Cal.App.2d 386, 399, 154 P.2d 451 (1944).
A material misrepresentation serves to invalidate an insurance policy. See Perovich v. Glens Falls Ins. Co., 401 F.2d 145, 147 (9th Cir. 1968); see also Hyland v. Millers Nat. Ins. Co., 91 F.2d 735, 741-43 (9th Cir. 1937) (a misrepresentation as to the amount of property damaged voided coverage); Cummings, 202 Cal. App. 3d at 1415-17 (holding that insurer did not breach policy by denying coverage when claimant materially misrepresented identity of vandal). Though materiality is a mixed question of law and fact, it may be decided on summary judgment when "reasonable minds could not disagree on the materiality of the misrepresentations."
Cummings v. Fire Ins. Exch., 202 Cal.App.3d 1407, 1418-1419 (2d Dist., 1988); Singleton v. Hartford Fire Ins. Co., 127 Cal.App. 635, 645 (3d Dist., 1932). 5. Where an insured intentionally makes a false claim of loss, the intent to deceive may be implied. Cummings v. Fire Ins. Exch., supra, 202 Cal.App.3d at 1417-1419; Baldwin v. Bankers Shippers Ins. Co. of New York, 222 F.2d 953, 954 (9th Cir., 1955); Hyland v. Millers Nat. Ins. Co., 91 F.2d 735, 743 (9th Cir., 1937),cert. denied, 303 U.S. 645. 6. The materiality of a misrepresentation with regard to a claim of loss by an insured may be determined as a matter of law.
See Home Insurance Co. v. Cohen (Ky.) 357 S.W.2d 674. Appellant cites Hyland v. Millers Nat. Ins. Co. (District Court, N.D., California) 58 F.2d 1003, affirmed, 91 F.2d 735. A reading of the trial judge's opinion shows that he relied upon the false swearing to proofs of loss in denying recovery.
Nasiri claims the second appraisal is void because Western Appraisers was working as a consultant for Allstate at the time. To support his argument, Nasiri cites California Insurance Code § 2071, Gebers v. State Farm, 38 Cal.App.4th 1648, 45 Cal.Rptr.2d 725 (1995), and Hyland v. Millers National Insurance Co., 91 F.2d 735 (9th Cir.1937). However, the cases and statute deal with fire insurance policies,
For the doctrine that the fraud and false swearing clause has no application to testimony given at the trial, American cited: Republic Fire Insurance Co. v. Weides, 1872, 14 Wall. 375, 20 L.Ed. 894; Goldberg v. Provident Washington Insurance Co., 1916, 144 Ga. 783, 87 S.E. 1077; Deitz v. Providence Washington Insurance Co., 1890, 33 W. Va. 526, 11 S.E. 50; Royal Insurance Co. v. Story, 34 Ala. App. 363, 40 So.2d 719, certiorari denied, 1949, 252 Ala. 275, 40 So.2d 724; American Alliance Insurance Co. v. Pyle, 1940, 62 Ga. App. 156, 8 S.E.2d 154; Third National Bank v. Yorkshire Insurance Co., 1924, 218 Mo.App. 660, 267 S.W. 445. In support of the contrary rule the insurer relied upon: Hyland v. Millers National Insurance Co., D.C.N.D.Cal. 1932, 58 F.2d 1003, affirmed, 9 Cir., 1937, 91 F.2d 735, certiorari denied, 1938, 303 U.S. 645, 58 S.Ct. 644, 82 L.Ed. 1107; Cuetara Hermanos v. Royal Exchange Assurance Co., 1 Cir., 1927, 23 F.2d 270, certiorari denied, 1928, 277 U.S. 590, 48 S.Ct. 437, 72 L.Ed. 1002; Atlas Assurance Co. v. Hurst, 8 Cir., 1926, 11 F.2d 250; Columbian Insurance Co. of Indiana v. Modern Laundry, Inc., 8 Cir., 1921, 277 F. 355, 20 A.L.R. 1159; Moreau v. Palatine Insurance Co., 1930, 84 N.H. 422, 151 A. 817; Follett v. Standard Fire Insurance Co., 1915, 77 N.H. 457, 92 A. 956. "It is true the policies stipulated that fraud or false swearing on the part of the assured should work a forfeiture of all claim under them.
Deliberately overstating the value of the lost property is a material misrepresentation. Hyland v. Millers Nat. Ins. Co., 91 F.2d 735, 743 (9th Cir. 1937). Courts may infer that the insured made a material misrepresentation of the value of the insurance claim if the insured placed a value on the same property in a bankruptcy filing contemporaneously filed that leads to no other reasonable explanation.
The elements in the present case are intentionally false material misrepresentation or concealment of facts with the intent to defraud and in order to obtain insurance coverage; a mere mistake or negligence is not sufficient. Leasure v. MSI Insurance Co., 65 Cal.App.4th 244, 247-48 (1998); Hyland v. Millers Nat. Ins. Co. 91 F.2d 735, 743 (9th Cir. 1937), rehg. denied, 92 F.2d 462, cert. denied, 303 U.S. 645. "Preponderance of the evidence" means that the trier of fact is only required to believe that the existence of a fact is more probable or reasonable than its nonexistence, Kennedy v. Southern California Edison Co., 268 F.3d 763, 770 (9th Cir. 2001) (applying California law), and that in terms of the probability of truth of evidence, when weighed with that opposed to it, the evidence has more convincing force and greater probability of truth, Leslie G. v. Perry Associates, 43 Cal.App.4th 472, 482-83 (1996). As is later discussed, the parties' contract provided that it would be void if there were fraud or intentional concealment or misrepresentation; thus, a higher standard (i.e., requiring intentional misrepresentation or concealment as to a material matter) than that otherwise provided for by statute is operative in the instant case.
Such a misrepresentation may invalidate coverage under an insurance policy. See Perovich v. Glens Falls Ins. Co., 401 F.2d 145, 147 (9th Cir. 1968) (claim invalid where claimant misrepresented the value of stolen property); Hyland v. Millers Nat. Ins. Co., 91 F.2d 735, 741-43 (9th Cir. 1937) (an insured's misrepresentation of the amount of property damaged voided coverage);Cummings, 202 Cal.App.3d at 1415-17 (holding that insurer did not breach policy by denying coverage when claimant materially misrepresented identity of vandal); Safeco Ins. Co. of America v. Bass, 1994 WL 238300 *3 (N.D. Cal. (May 19, 1994)) (misrepresentations regarding improvements to attic that was destroyed by fire voided policy). Though materiality is a mixed question of law and fact, it may be decided on summary judgment "if reasonable minds could not disagree on the materiality of the misrepresentations."