New York Underwriters Insurance Co., Inc., Plaintiff-appellee, v. Arthur E. Friedland, Defendant-appellant, 439 F.2d 350 (9th Cir. 1971)

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US Court of Appeals for the Ninth Circuit - 439 F.2d 350 (9th Cir. 1971) March 8, 1971

Wiener, Goldwater & Galatz, Las Vegas, Nev., for appellant.

Singleton, Beckley, Delanoy, Jemison & Reid, Las Vegas, Nev., Augustus Castro, John D. Hoffman, San Francisco, Cal., for appellee.

Before HAMLEY, DUNIWAY and KILKENNY, Circuit Judges.

PER CURIAM:


Friedland appeals from a declaratory judgment that Underwriters is not obligated to pay Friedland's claim under an insurance policy issued by Underwriters. This is a diversity case and Nevada law applies. Friedland argues that proof of a misrepresentation made before issuance of the formal policy but after issuance of a binder contract should have been excluded under the parol evidence rule. The proof did not alter or vary the terms of the insurance policy; it demonstrated the existence of a condition precedent that Friedland purported to fulfill by means of his misrepresentation. Child v. George Miller, Inc., 1958, 74 Nev. 223, 227, 327 P.2d 342, 343, 344; Western Nat. Ins. Co. v. Trent, 1952, 69 Nev. 239, 243, 247 P.2d 208, 210.

Friedland's misrepresentation induced Underwriters to issue the policy. As such, it was a material misrepresentation. See Violin v. Fireman's Fund Ins. Co., 1965, 81 Nev. 456, 458, 406 P.2d 287, 288.

Affirmed.