A statement required by an insured in applying for insurance may either be a warranty, or it may establish a condition precedent. See Kobico, Inc. v. Pipe, 44 Mass.App.Ct. 103, 688 N.E.2d 1004, 1006 (1997). To void a policy based on the insured making a false warranty, Massachusetts requires proof of an actual intent to deceive by the insured or of an increased risk of loss to the insurer.

Thus, a critical issue is "whether the language of the policy rendered the accuracy of the plaintiff's answers on the proposal a condition precedent, or whether those answers were merely warranties[.]" Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 105, 688 N.E.2d 1004, 1006 (1997). The question whether policy language creates a condition precedent or a warranty is a question of law for the trial judge to decide.

We recognize the general proposition, cited by the Duffys, that an insurer may lose its right to rescind the coverage of an insurance contract if it knows of the facts that may warrant rescission and fails to disclaim within a reasonable time, or if it acts in any way inconsistent with an intention to disclaim. See e.g., Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103 (1997). Pursuant to Massachusetts law, "[a]n insurance company is obliged to provide coverage to an insured who has violated a provision of the policy if the company has waived its right to assert the policy breach as a ground for denying liability."

Mass. Mut. Life Ins. Co. v. Fraidowitz, 443 F.3d 128, 131 (1st Cir. 2006); accord Krause v. Equitable Life Ins. Co. of Iowa, 333 Mass. 200, 203 (Mass. 1955) (stating that if "conditions . . . were not satisfied[,] no contractual duty under the policy ever arose"). Whether a provision in an insurance policy application qualifies as a condition precedent is a question of law. Mass. Mut. Life. Ins. Co., 443 F.3d at 131 (citing Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 105 (Mass. App. Ct. 1997)). A statement may become a condition of the policy if "(1) the statement made by the insured relates essentially to the insurer's intelligent decision to issue the policy; and (2) the statement is made a condition precedent to recovery under the policy, either by using the precise words 'condition precedent' or their equivalent."

” Our review of the record confirms that adequate justification existed for the order, and that it was not an abuse of discretion. Nevertheless, we think it worth reiterating that trial judges should provide a sufficient statement of the reasons for certification. See, e.g., J.B.L. Constr. Co. v. Lincoln Homes Corp., 9 Mass.App.Ct. 250, 253, 400 N.E.2d 871 (1980) ; Kobico, Inc. v. Pipe, 44 Mass.App.Ct. 103, 104–105 n. 2, 688 N.E.2d 1004 (1997) ; Long v. Wickett, 50 Mass.App.Ct. at 403, 737 N.E.2d 885 (findings lacked the requisite balancing of competing purposes underlying the rule or an evaluation of the relationship between the claims dismissed and those left pending). “It is essential ... that a reviewing court have some basis for distinguishing between well-reasoned conclusions arrived at after a comprehensive consideration of all relevant factors, and mere boiler-plate approval phrased in appropriate language but unsupported by evaluation of the facts or analysis of the law.”

y hardship or injustice will result if the plaintiff is required to try its case . . . before securing appellate review," whether intermediate review of the judgment certified will or "will not simplify, shorten or expedite the trial of any of the other claims still pending in the [trial] [c]ourt," and whether the questions sought to be raised by the appeal might "become moot if the [trier of fact ultimately found] . . . for the [appellee]"); United States Trust Co. v. Herriott, 10 Mass. App. Ct. at 322 (noting as another important factor whether "the remaining claims and counterclaims were factually and legally distinct from the claim" certified). See alsoHigh-Tech Sales, Inc. v. Olektron Corp., 31 Mass. App. Ct. 912, 913 (1991) (reiterating the J.B.L. Constr. factors and adding that trial judge must also demonstrate the exercise of "special care" when certifying issues in a complaint where there is also a counterclaim, in order to determine the factual relationship between the two); Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 105 n. 2 (1997) (reiterating the factors mentioned in J.B.L. Constr. and adding thereto whether the appealed and the remaining issues "are overlapping [and] . . . raise virtually identical issues" and the interest of "judicial economy at the appellate level"). i. Consistency with public policy.

349 Mass. at 726.Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 106 (1997). The express policy language incorporating by reference the application as well as the Full Prior Acts Coverage is fatal to the Claimant's claims without resort to analysis under c. 175, § 186.

'" Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991), quoting Commonwealth v. Booker, 386 Mass. 466, 469 (1982). It is similarly "within the judge's discretion to decide whether the probative value of the evidence outweighs the possibility that it would mislead or prejudice the jury." Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 109 (1997), citing Tosti v. Ayik, 394 Mass. 482, 489-490 (1985), S.C., 400 Mass. 224, cert. denied sub nom. United Auto Workers, Local 422 v. Tosti, 484 U.S. 964 (1987); and McEvoy Travel Bur., Inc. v. Norton Co., 408 Mass. 704, 714-715 (1990). We will not reverse such decisions unless there is palpable error.

The evidence of Jeffrey's admission to alcohol consumption prior to the accident and Officer Cole's observations was strong evidence to establish negligent operation. Given that it was "within the judge's discretion to decide whether the probative value of the evidence outweighs the possibility that it would mislead or prejudice the jury," Kobico, Inc. v.Pipe, 44 Mass.App.Ct. 103, 109 (1997), there was no abuse of discretion in allowing evidence that Jeffrey had been drinking prior to the accident. Accordingly, the trial judge acted within his discretion in concluding that Jeffrey's alcohol consumption was relevant and the probative value of this evidence was not outweighed by the risk of unfair prejudice to the defendants.

” Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 109 (1997). It is also within the judge's discretion to decide whether the probative value of evidence is “substantially outweighed” by the danger of “unfair prejudice.”