California Civil Jury Instructions (CACI)

2309. Termination of Insurance Policy for Fraudulent Claim

[Name of insurer] claims that [name of insured] [is not entitled to recover under/is not entitled to benefits under] the insurance policy because [he/she] made a false claim. To establish this claim, [name of insurer] must prove all of the following:

1. That [name of insured] made a claim for insurance benefits under a policy with [name of insurer];

2. That [name of insured] represented to [name of insurer] that [insert allegedly false representation];

3. That [name of insured]’s representation was not true;

4. That [name of insured] knew that the representation was not true;

5. That [name of insured] intended that [name of insurer] rely on this representation in [investigating/paying] [name of insured]’s claim for insurance benefits; and

6. That the representation that [insert allegedly false representation], if true, would affect a reasonable insurance company’s [investigation of/decision to pay] a claim for insurance benefits.

New September 2003

Directions for Use

If the insured’s misrepresentation or concealment in the insurance application is raised as an affirmative defense by the insurer, this instruction may be modified for use. The elements of the defense would be the same as stated above.

Sources and Authority

  • Civil Code section 1689(b)(1) provides that a party may rescind a contract “[i]f the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party.”
  • Insurance Code section 338 provides: “An intentional and fraudulent omission, on the part of one insured, to communicate information of matters proving or tending to prove the falsity of a warranty, entitles the insurer to rescind.”
  • Insurance Code section 359 provides: “If a representation is false in a material point . . . the injured party is entitled to rescind the contract from the time the representation becomes false.”
  • “The materiality of a representation made in an application for a contract of insurance is determined by a subjective standard (i.e., its effect on the particular insurer to whom it was made) and rescission will be allowed even though the misrepresentation was the result of negligence or the product of innocence. On the other hand, in order to void a policy based upon the insured’s violation of the standard fraud and concealment clause . . ., the false statement must have been knowingly and wilfully made with the intent (express or implied) of deceiving the insurer. The materiality of the statement will be determined by the objective standard of its effect upon a reasonable insurer.” (Cummings v. Fire Insurance Exchange (1988) 202 Cal.App.3d 1407, 1415, fn.7 [249 Cal.Rptr. 568], original italics, internal citation omitted.)
  • “The consequence of rescission is not only the termination of further liability, but also the restoration of the parties to their former positions by requiring each to return whatever consideration has been received… [T]his would require the refund by [the insurer] of any premiums and the repayment by the [insureds] of any proceed advance which they may have received.” (Imperial Casualty & Indemnity Co. v. Sogomonian (1988) 198 Cal.App.3d 169, 184 [243 Cal.Rptr. 639], internal citation omitted.)

Secondary Sources

Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group) ΒΆΒΆ 5:143—5:146, 5:153—5:159.1, 5:160, 5:249—5:260.5, 15:241—15:256

2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) Rescission and Reformation, §§ 21.2—21.4, 21.35—21.37

2 California Insurance Law & Practice, Ch. 8, The Insurance Contract, § 8.10[1] (Matthew Bender)

26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)

12 California Points and Authorities, Ch. 120, Insurance, §§ 120.250—120.251 (Matthew Bender)