New York Retail Compendium of Law

Fire Insurance Claim General Instruction
(With Defenses Based Upon False Application, Arson, And False Claim Form)

In this case the Plaintiff seeks to recover from the Defendant under a fire insurance policy issued by the Defendant insuring the Plaintiff's and contents.

There is no dispute that the fire occurred and that the Plaintiff's property was as a result of that fire.

The principal issues for you to decide, therefore, arise out of the defenses asserted by the Defendant. The Defendant claims:

(1) that the Plaintiff made a fraudulent or a material misstatement (or concealment) of fact in the original application for the policy;

(2) that the Plaintiff intentionally burned or procured the burning of the insured property;

(3) that the Plaintiff intentionally and fraudulently misrepresented a material fact relating to the claim after the loss had occurred.

With respect to the first defense, that the Plaintiff made a fraudulent or a material misstatement [or concealment] in the application for the insurance policy, the Defendant contends

To sustain this defense the Defendant must prove by a preponderance of the evidence either:

First: That the Plaintiff made a fraudulent statement [or concealment] in the application (without regard to the materiality of the subject matter);

or

Second: That the Plaintiff made a misrepresentation or [concealment] in the application (without regard to fraudulent intent) concerning a subject matter that was material to the risk.

Accordingly, the first series of questions you will be asked on your verdict form are:

1. Do you find from a preponderance of the evidence that the Plaintiff, in the application for the subject insurance, made a fraudulent statement [or concealment] (without regard to the materiality of the subject matter)? Yes No

2. Do you find from a preponderance of the evidence that the Plaintiff, in the application for the subject insurance, made a misrepresentation [or concealment] (without regard to fraudulent intent) concerning a subject matter that was material to the risk? Yes No

With respect to the second defense, that the Plaintiff intentionally caused or procured the Plaintiff's own loss, the Defendant must prove by a preponderance of the evidence both of the following facts:

First: That the fire was incendiary in origin; that is, that the fire did not occur through accident or negligence, but was deliberately and intentionally set by someone for the purpose of causing destruction of the property; and

Second: That the Plaintiff is the person who intentionally and willfully set the fire, or solicited, procured, aided or counseled some other person to do so for the Plaintiff.

Accordingly, the next series of questions you will be asked on your verdict form are:

3. Do you find from a preponderance of the evidence that the fire in question was incendiary in origin; that is, that the fire did not occur through accident or negligence, but was deliberately and intentionally set by some person with the intent to cause destruction of the insured property? Yes No

4. If you answered Yes to the preceding Question, do you find from a preponderance of the evidence that the Plaintiff intentionally and willfully set fire to the insured property or that the Plaintiff solicited, procured, aided or counseled some other person to do so? Yes No

With respect to the third defense, that the Plaintiff fraudulently, willfully and intentionally misrepresented or concealed material facts after the loss had occurred, the insurance policy involved in this case provides that the policy shall be void if the insured willfully misrepresents or conceals any material fact in the claim form or otherwise during the investigation of the loss.

This is a valid provision, and by its terms, if, after the loss, any false answer is intentionally and willfully made by the insured concerning a fact material to the inquiry, such answer would be fraudulent and the policy would be rendered void. It is not necessary, however, that the insurance company actually be deceived by the falsehood or rely upon such misrepresentation to its detriment.

In this case the false statement that the Defendant alleges the Plaintiff made was

To establish this defense, therefore, it must be proved by a preponderance of the evidence that the insured in making such a statement knew that the statement was false, and that the statement was material to the claim involved, that is to say, that the statement affected the liability of the company to pay.

Thus, if such statement, even though erroneous, was made with the honest belief that it was true, then the insured would not be guilty of fraud, which is a necessary part of the Defendant's defense.

Accordingly, the next question you will be asked on your verdict form is:

5. Do you find from a preponderance of the evidence that the Plaintiff fraudulently, willfully and intentionally misrepresented or concealed material facts or circumstances on the claim form or during the inquiry made by the Defendant after the fire loss had occurred? Yes No

The word "intentionally," wherever that word has been used in these instructions, means to say or do something deliberately, consciously and voluntarily.

The word "willfully," wherever that word has been used in these instructions, means to say or do something purposely and in bad faith, with the specific intent to accomplish a wrongful result.

The words "fraud" or "fraudulent," wherever those words have been used in these instructions, mean the making of any untrue statement of fact that is then known to be untrue by the person making the statement, or making a statement with reckless indifference as to its truth or falsity, and making such statement with the intent to deceive. A "fraudulent" statement or representation may also be made by statements of misleading half truths, or a deliberate concealment of material facts, when done with the intent to deceive. However, incorrect answers on an insurance application are not fraudulent statements or material misrepresentations and do not invalidate the policy when the particular applicant in good faith makes an erroneous expression of opinion or judgment, or the applicant misunderstands an inquiry that is couched in language or refers to subjects in special fields beyond his or her understanding.

The word "material" wherever that word has been used in these instructions, means that the subject matter of the statement [or concealment] related to a fact or circumstance that would be important to the decision to be made as distinguished from an insignificant, trivial or unimportant detail; that is, to be material, an assertion [or concealment] must relate to a fact or circumstance that would affect the liability of the insurer (if made during an investigation of the loss), or would affect the decision to issue the policy, or the amount of coverage to be afforded or the premium to be charged (if made in the application for the policy).

If you find for the Plaintiff and against the Defendant on its defenses, you will then consider the issue of the Plaintiff's damages.

In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less.

Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable.

You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others:

(a) Damages to the Building

(b) Damages to the Contents

Accordingly, the next question you will be asked on your verdict form is:

6. What sum of money do you find from a preponderance of the evidence to be the amount of the Plaintiff's damages resulting from the fire? Answer in Dollars and Cents.

SPECIAL INTERROGATORIES TO THE JURY

Do you find from a preponderance of the evidence:

1. That the Plaintiff, in the application for the subject insurance, made a fraudulent statement [or concealment] (without regard to the materiality of the subject matter)? Yes No

2. That the Plaintiff, in the application for the subject insurance, made a misrepresentation [or concealment] (without regard to fraudulent intent) concerning a subject matter that was material to the risk? Yes No

3. That the fire in question was incendiary in origin; that is, that the fire did not occur through accident or negligence, but was deliberately and intentionally set by some person with the intent to cause destruction of the insured property? Yes No

4. If you answered Yes to the preceding Question, that the Plaintiff intentionally and willfully set fire to the insured property or that the Plaintiff solicited, procured, aided or counseled some other person to do so? Yes No

5. That the Plaintiff fraudulently, willfully and intentionally misrepresented or concealed material facts or circumstances on the claim form or during the inquiry made by the Defendant after the fire loss had occurred? Yes No

6. What sum of money do you find from a preponderance of the evidence to be the amount of the Plaintiff’s damages resulting from the fire? Answer in Dollars and Cents.

SO SAY WE ALL.

ANNOTATIONS AND COMMENTS

The statutes of each of the three states in the Eleventh Circuit provide that an insurance policy is void able if the application is fraudulent or contains misrepresentations that are material to the risk. See Alabama Code § 27-14-7; Fla. Stat. § 627.409; Georgia Code § 33-24-7.