2020 Georgia Code
Title 33 - Insurance
Chapter 24 - Insurance Generally
Article 1 - General Provisions
§ 33-24-7. Statements and Descriptions in Applications or in Negotiations Deemed Representations and Not Warranties; Effect of Misrepresentations Upon Recovery Under Policies

1. All statements and descriptions in any application for an insurance policy or annuity contract or in negotiations for such, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties.
2. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless:
   1. Fraudulent;
   2. Material either to the acceptance of the risk or to the hazard assumed by the insurer; or
   3. The insurer in good faith would either not have issued the policy or contract or would not have issued a policy or contract in as large an amount or at the premium rate as applied for or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been known to the insurer as required either by the application for the policy or contract or otherwise.

(Code 1933, § 56-2409, enacted by Ga. L. 1960, p. 289, § 1; Ga. L. 1982, p. 3, § 33.)

- For survey article on insurance, see 34 Mercer L. Rev. 177 (1982). For survey article on insurance law for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 277 (2003). For annual survey of insurance law, see 56 Mercer L. Rev. 253 (2004). For survey article on construction law, see 60 Mercer L. Rev. 59 (2008). For survey article on insurance law, see 60 Mercer L. Rev. 191 (2008). For annual survey of law on insurance, see 62 Mercer L. Rev. 139 (2010). For annual survey on insurance law, see 66 Mercer L. Rev. 93 (2014). For article, "The Peculiarities of Georgia Insurance Law," see 24 Ga. St. B.J. 18 (April 2019). For note, "Misrepresentations and Nondisclosures in the Insurance Application," see 13 Ga. L. Rev. 876 (1979). For comment on Jefferson Std. Life Ins. Co. v. Henderson, 37 Ga. App. 704, 141 S.E. 498 (1928), see 1 Ga. L. Rev. 53 (1929). For comment on Stillson v. Prudential Ins. Co., 202 Ga. 79, 42 S.E.2d 121 (1947), see 10 Ga. B.J. 225 (1947). For comment on National Life & Accident Ins. Co. v. Camp, 77 Ga. App. 667, 49 S.E.2d 670 (1948), see 11 Ga. B.J. 349 (1949). For comment criticizing State Farm Mut. Auto. Ins. Co. v. Reese, 116 Ga. App. 59, 156 S.E.2d 529 (1967), see 19 Mercer L. Rev. 277 (1968).

ANALYSIS

• General Consideration
• What is Material
• Procedure

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1867, §§ 2670 to 2672; former Civil Code 1895, §§ 2097 to 2099; former Ga. L. 1906, p. 107; former Civil Code 1910, §§ 2471, 2479, 2480, 2481; former Ga. L. 1912, p. 119, § 21; and former Code 1933, §§ 56-820 to 56-822, 56-904, repealed by Ga. L. 1960, p. 289, enacting this title, are included in the annotations for this Code section.

- In enacting this section, the General Assembly had in mind the probability of an insured, due to forgetfulness because of its lack of importance, stating in the application that the insured had not consulted a physician, when in fact the insured had consulted a physician and received treatment for a cold that had long since disappeared entirely. By this section it was intended to make sure that the family of such an insured should not be denied the insurance money solely because of such innocent and harmless oversight. National Life & Accident Ins. Co. v. Preston, 68 Ga. App. 614, 23 S.E.2d 526 (1942), aff'd, 196 Ga. 217, 26 S.E.2d 439 (1943) (decided under former Code 1933, § 56-822).

- Provision, that no statements, covenants, or representations contained in applications for insurance shall ever be held or construed to be warranties, but shall be held to be representations only was merely declaratory of the former law as repeatedly construed by the Supreme Court as was the provision declaring in effect that in order for any statement or representation to be material, it must change the character and nature of the risk as contemplated in the policy; nor was the former law changed in any way with respect to fraud and good faith. Preston v. National Life & Accident Ins. Co., 196 Ga. 217, 26 S.E.2d 439 (1943) (decided under former Code 1933, § 56-822).

O.C.G.A. § 33-24-7 does not apply to insurance policies covered by O.C.G.A. § 33-24-45. Sentry Indem. Co. v. Sharif, 248 Ga. 395, 282 S.E.2d 907 (1981); Georgia Farm Bureau Mut. Ins. Co. v. Phillips, 251 Ga. 244, 304 S.E.2d 725 (1983).

No-fault automobile insurance policy issued under Georgia law could not be voided retrospectively as provided by O.C.G.A. § 33-24-7 even in situations when the insured had made material misrepresentations in securing the policy. Sentry Indem. Co. v. Sharif, 248 Ga. 395, 282 S.E.2d 907 (1981).

- Insurance law was not applicable in a case involving liability under a suretyship contract; thus, O.C.G.A. § 33-24-7 did not apply to excuse a surety from liability based on fraud of the principal. American Mfg. Mut. Ins. Co. v. Tison Hog Mkt., Inc., 182 F.3d 1284 (11th Cir. 1999), cert. denied, 531 U.S. 819, 121 S. Ct. 59, 148 L. Ed. 2d 26 (2000).

Automobile liability policy cannot be voided retrospectively under O.C.G.A. § 33-24-7. - Automobile insurance policy providing basic third-party liability insurance and basic personal injury protection benefits (no-fault) issued pursuant to Georgia law cannot be voided retrospectively under this section. Pearce v. Southern Guar. Ins. Co., 246 Ga. 33, 268 S.E.2d 623 (1980).

Because an insurer could not rely upon O.C.G.A. § 33-24-7 and cases construing the statute, the insurer could not retrospectively void the liability portion of the applicant's policy even if the applicant failed to fully disclose all information or made material misrepresentations when applying for the policy. Liberty Ins. Corp. v. Ferguson, 263 Ga. App. 714, 589 S.E.2d 290 (2003).

- When the application is attached to and made a part of the policy, the beneficiary suing on the policy cannot separately impeach the application as thus integrated therein; the application must stand or fall as a part of the policy, and if the application falls so does the policy, for the insured is committed to the representations set forth in the application. Mutual Benefit Health & Accident Ass'n v. Marsh, 60 Ga. App. 431, 4 S.E.2d 84 (1939) (decided under former Code 1933, § 56-820).

In order to prevail on the insurer's claim that the insurer rightfully rescinded insurance pursuant to O.C.G.A. § 33-24-7, the insurer must show first that the application contained misrepresentations, omissions, concealment of facts, or incorrect statements; and second, the insurer must prove: (1) that such omissions were fraudulent; (2) that the omissions were material either to the acceptance of the risk or to the hazard assumed by the insured; or (3) that the insurer in good faith would not have issued the policy, or would not have issued a policy in as large an amount or at the premium rate applied for, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been known. Ochoa v. Principal Mut. Ins. Co., 144 F.R.D. 418 (N.D. Ga. 1992).

- In a case involving O.C.G.A. § 33-24-7(b), a life insurance company did not waive the company's right to rescind the policy by waiting to refund the premium paid under the policy until eighteen months after the company had received permission from the district court to interplead the premium. Immediate tender of a premium is not required by the law of Georgia in order to rescind a policy. Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555 F.3d 1331 (11th Cir. 2009).

- Trial court's denial of a directed verdict in favor of the insurer was reversed on the issue of whether the policy was void based upon misrepresentations in the application because the undisputed evidence showed that the use of a certified public accountant audit and a requirement that checks be countersigned were material to the insurer's decision to issue crime coverage to the insured and that the insurer would not have issued the policy if the insurer had known the true facts. Ga. Cas. & Sur. Co. v. Valley Wood, Inc., 336 Ga. App. 795, 783 S.E.2d 441 (2016).

- When a material statement in an application for insurance is fraudulent and is made to induce the acceptance of the risk, the policy or contract of insurance is void ab initio. Metropolitan Life Ins. Co. v. Shaw, 30 Ga. App. 97, 117 S.E. 106 (1923) (decided under former Civil Code 1910, § 2480).

Fraud in the procurement would void the entire policy. Wooten v. Life Ins. Co., 93 Ga. App. 665, 92 S.E.2d 567 (1956) (decided under former Code 1933, § 56-824).

- When an applicant for life insurance willfully conceals from the insurer the fact of a previous illness, such concealment will void the policy if the disease was of such a character as to enhance the risk. The fact that the insured may have died a short while after the policy was insured, from a disease with which the insured was not affected when the policy was issued, does not conclusively show that the fact of the previous illness was not material, within the meaning of the rule above mentioned. Aetna Life Ins. Co. v. Conway, 11 Ga. App. 557, 75 S.E. 915 (1912) (decided under former Civil Code 1910, §§ 2479, 2480, 2481).

While failure to state a material fact will not void a policy unless such failure is fraudulent, a willful concealment of such a fact, which would enhance the risk, will void the policy. Mutual Life Ins. Co. v. Bolton, 22 Ga. App. 566, 96 S.E. 442 (1918) (decided under former Civil Code 1910, §§ 2479, 2480, and 2481); Pilgrims Health & Life Ins. Co. v. Smith, 41 Ga. App. 287, 152 S.E. 592 (1930); Phillips v. New York Life Ins. Co., 173 Ga. 135, 159 S.E. 696 (1931) (decided under former Civil Code 1910, §§ 2479, 2480, and 2481);(decided under former Civil Code 1910, § 2479).

When the insured has made false and fraudulent statements as to matters that are material to the risk, or fraudulently concealed such matters from the insurer, for the purpose of obtaining the insurance, and has thereby induced the insurer to issue the policy, the policy is void, not as a matter of contract, but because it has been procured by fraud. National Life & Accident Ins. Co. v. Dorsey, 69 Ga. App. 734, 26 S.E.2d 654 (1943) (decided under former Code 1933, § 56-820).

When the evidence shows a misstatement willfully made or a material fraudulent concealment in answers to questions made in an application for insurance not attached to the policy, a verdict in favor of the insurer will be demanded. Gulf Life Ins. Co. v. Moore, 90 Ga. App. 791, 84 S.E.2d 696 (1954) (decided under former Code 1933, § 56-820).

- When a man insured his life for the benefit of a woman represented as his wife and the truth of the case was that the marriage was void by reason of the reputed wife having a former lawful husband living at the time of the second marriage, it was held that the policy is not void by reason of the illegality of the last marriage, unless it further appears that the husband and wife knew of the illegality of the marriage at the time of issuance of the policy and failed to inform the company of the fact. Equitable Life Assurance Soc'y v. Paterson, 41 Ga. 338, 5 Am. R. 535 (1870) (decided under former Code 1867, §§ 2670 to 2672).

While good faith is no defense when there is an untrue answer or misrepresentation of a material fact, good faith is a defense when there is simply a failure to state a material fact in an insurance application which is attached to and made a part of the policy, or a concealment of such fact as would enhance the risk. In such instance, it is necessary that there be a fraudulent failure to state a material fact or willful concealment thereof by the applicant. Gilham v. National Life & Accident Ins. Co., 104 Ga. App. 459, 122 S.E.2d 164 (1961).

With respect to an insurance applicant's failure to state material facts or the concealment of such facts in the application for insurance, the rule is thus: the mere failure to state a material fact or the concealment of such fact, when not done willfully and fraudulently, will not void a policy of insurance. Gilham v. National Life & Accident Ins. Co., 104 Ga. App. 459, 122 S.E.2d 164 (1961).

When there is a mere failure to state a material fact, or the concealment of a material fact, the good faith of the applicant is relevant in that the failure or concealment must be fraudulent or willful. Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883, 176 S.E.2d 103 (1970); Hairston v. John Hancock Mut. Life Ins. Co., 320 F. Supp. 643 (N.D. Ga. 1970).

Key language of paragraph (b)(3) of O.C.G.A. § 33-24-7 is that the insurer must demonstrate the insurer's good faith before the insurer can rescind the policy. Nappier v. Allstate Ins. Co., 766 F. Supp. 1166 (N.D. Ga. 1991), aff'd, 961 F.2d 168 (11th Cir. 1992).

- Court could not uphold a policy holder's argument that there was no evidence that it made a material misrepresentation to the insurer during the underwriting process - only that it suppressed the fact that an executive was sued after the insurer's issuance of a conditional binder. O.C.G.A. § 33-24-7 applies to incorrect statements, and suppression of a material fact which a party is under an obligation to communicate constitutes fraud. Langdale Co. v. Nat'l Union Fire Ins. Co., 110 F. Supp. 3d 1285 (N.D. Ga. 2014).

- While it is true that the representations as made in an unattached application cannot be treated as "a part of the policy or contract" and are not to be taken as covenants or warranties, still, if such statements furnished the actual basis on which the policy was issued, and the statements were knowingly and willfully false with the intent by the applicant to defraud the insurer, the insurer may ordinarily set up such facts as a means for avoiding the policy, not under and by virtue of the terms of the contract, but because the insurance is thus shown to have been fraudulently procured. Metropolitan Life Ins. Co. v. Bugg, 48 Ga. App. 363, 172 S.E. 829 (1934) (decided under former Civil Code 1910, § 2471); National Life & Accident Ins. Co. v. McKenney, 52 Ga. App. 466, 183 S.E. 659 (1936);(decided under former Code 1933).

Willful misrepresentation of a material fact if done with a view to securing insurance is a legal fraud even if not done for the purpose of prejudicing the rights of the insurance company, provided the company had no knowledge of the fact and was not estopped to assert the falsity. National Life & Accident Ins. Co. v. Fischel, 62 Ga. App. 645, 9 S.E.2d 192 (1940) (decided under former Code 1933, § 56-820).

Any representation by the insured to induce acceptance of the risk must be true or the policy is void. Manley v. Pacific Mut. Life Ins. Co., 35 F.2d 337 (5th Cir. 1929) (decided under former Civil Code 1910, §§ 2479, 2480).

- Any material representations of facts by the assured, to induce the acceptance of the risk, will void the policy if untrue. Mutual Life Ins. Co. v. Bolton, 22 Ga. App. 566, 96 S.E. 442 (1918); Phillips v. New York Life Ins. Co., 173 Ga. 135, 159 S.E. 696 (1931) (decided under former Civil Code 1910, §§ 2479 to 2481).

When there is a material misrepresentation, the policy may be voided. State Farm Mut. Auto. Ins. Co. v. Anderson, 107 Ga. App. 348, 130 S.E.2d 144, cert. dismissed, 219 Ga. 211, 132 S.E.2d 556 (1963).

In a breach of contract action filed by an insured against an insurer, the trial court did not err in granting the insurer summary judgment as to the issue of coverage as questions answered untruthfully in the application for insurance by the insured amounted to misrepresentations warranting a cancellation of the policy at issue, pursuant to O.C.G.A. § 33-24-7. T. J. Blake Trucking, Inc. v. Alea London, Ltd., 284 Ga. App. 384, 643 S.E.2d 762 (2007), cert. denied, No. S07C1101, 2007 Ga. LEXIS 505 (Ga. 2007).

- In order for an insurance company, defending on the ground of false statements in the application, to have a verdict directed, it must establish that the representations were material to the risk and were untrue. Watertown Fire Ins. Co. v. Grehan, 74 Ga. 642 (1885); Aetna Life Ins. Co. v. Moore, 231 U.S. 543, 34 S. Ct. 186, 58 L. Ed. 356 (1913) (decided under former Civil Code 1910, §§ 2479 to 2482).

Questions presented for determination in a case as to whether representations of facts by the assured to induce the acceptance of the risk, if material, must be true or the policy is void are: (1) Was the representation false? and (2) Was it made in reference to a matter material to the risk? Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130, 105 S.E. 629, cert. denied, 26 Ga. App. 801 (1921) (decided under former Civil Code 1910, §§ 2479 to 2481).

- Representations made in an application for insurance which is attached to and made a part of the policy are considered as covenanted to be true by the applicant, and the policy will be voided by any variation which changes the nature, extent, or character of the risk. Mutual Life Ins. Co. v. Bolton, 22 Ga. App. 566, 96 S.E. 442 (1918); Phillips v. New York Life Ins. Co., 173 Ga. 135, 159 S.E. 696 (1931) (decided under former Civil Code 1910, §§ 2479 to 2481).

- When an application for insurance is actually attached to the policy of insurance, and by the terms of the contract is made a part thereof, any misrepresentation of material facts made by the agent of the insurer in the application will be imputed to the insured, and the insured will not be allowed to claim under the contract, without being held to have had knowledge of the false statements made in the application actually attached to and forming an integral part of the contract as delivered, accepted, and sued on. Southern Sur. Co. v. Fortson, 46 Ga. App. 265, 167 S.E. 335 (1933) (decided under former Civil Code 1910, §§ 2479 to 2481).

When a policy of life insurance has been issued, misrepresentations of facts made by the insured in the application for the insurance will not void the policy unless the misrepresentations are material and change the character, extent, or nature of the risk. New York Life Ins. Co. v. Watson, 48 Ga. App. 211, 172 S.E. 602 (1934) (decided under former Civil Code 1910, §§ 2479 to 2481).

When an application for life insurance is attached to and made a part of a policy, any misrepresentation in the application which changes the nature and character of the risk as contemplated in the policy may defeat a recovery, regardless of good faith on the part of the insured. Preston v. National Life & Accident Ins. Co., 196 Ga. 217, 26 S.E.2d 439 (1943) (decided under former Code 1933, §§ 56-820 to 56-822).

When the application is attached to and made a part of the policy, and false statements or representations are contained in such application, as a result of which the risk is increased, a recovery on the policy may be defeated on such grounds whether the statements and representations were made in good faith or fraudulently. Metropolitan Life Ins. Co. v. Joye, 77 Ga. App. 357, 48 S.E.2d 751 (1948) (decided under former Code 1933, §§ 56-820, 56-821).

In cases when the application for insurance is attached to and becomes a part of the policy, in order to avoid the policy for a misrepresentation of the applicant made in the application, the insurer need only show that the representation was false and that it was material in that it changed the nature, extent, or character of the risk and this is true although the applicant may have made the representation in good faith, not knowing that the representation was untrue. Gilham v. National Life & Accident Ins. Co., 104 Ga. App. 459, 122 S.E.2d 164 (1961).

Material misstatements or omissions justify avoidance of a policy and denial of plaintiff beneficiary's recovery of contract proceeds as a matter of law. Nichols v. Southern Life Ins. Co., 584 F.2d 106 (5th Cir. 1978).

In order to prevail under paragraph (b)(2) of O.C.G.A. § 33-24-7, an insurer need only prove that: (1) an insured's representation was false; and (2) the representation was material in that the representation changed the nature, extent, or character of the risk. Nappier v. Allstate Ins. Co., 766 F. Supp. 1166 (N.D. Ga. 1991), aff'd, 961 F.2d 168 (11th Cir. 1992).

Insured who sought an increase in life insurance coverage and completed medical history on February 28, was hospitalized on March 28, was approved for increased coverage on March 29, and diagnosed with a brain tumor on April 1, could not receive the increased coverage. The insured's change in health rendered untrue a number of responses on the medical questionnaire and the insurance company should have been made aware of these material fact changes. The insurance company would not have increased coverage if the insured had disclosed the change in health; therefore, the company is authorized to rescind the additional life insurance coverage. Cosby v. Transamerica Occidental Life Ins. Co., 860 F. Supp. 830 (N.D. Ga. 1993), aff'd, 16 F.3d 1232 (11th Cir. 1994).

- Statements in an application for an insurance policy will not prevent recovery under the policy unless the statements are: (1) fraudulent or (2) material to the risk or (3) unless in good faith the insurer would not have issued the policy, or would not have issued the policy for that large an amount or for that premium or covered that particular risk, had the true facts been known. Hartford Accident & Indem. Co. v. Hartley, 275 F. Supp. 610 (M.D. Ga. 1967), aff'd, 389 F.2d 91 (5th Cir. 1968).

Although this section provides that statements in the application are deemed to be representations and not warranties, misstatements or misrepresentations are treated as warranties for the purpose of preventing a recovery under the policy, when the statements come under any one of the three criteria in subsection (b) of this section, and actual knowledge of their falsity is not required to prevent a recovery. United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 248 S.E.2d 635 (1978); Davis v. John Hancock Mut. Life Ins. Co., 202 Ga. App. 3, 413 S.E.2d 224 (1991).

- Representations when made, if material, are warranties, but the representations differ from the ordinary warranty in that the representations' falsity does not avoid the policy unless the representations are material and the variation from truth in such as to change the nature, extent, or character of the risk. Mobile Fire Dep't Ins. Co. v. Miller, 58 Ga. 420 (1877); Rosser v. Georgia Home Ins. Co., 101 Ga. 716, 29 S.E. 286 (1897); Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328, 47 S.E. 940 (1904); Mutual Benefit Health & Accident Ass'n v. Bell, 49 Ga. App. 640, 176 S.E. 124 (1934); Sovereign Camp W.O.W. v. Reid, 53 Ga. App. 618, 186 S.E. 759 (1936); United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 248 S.E.2d 635 (1978).

Wherever an applicant for life insurance makes material representations in an application or examination, and covenants that those representations are true, and these representations are made the basis of the contract of insurance, such contract is void if the representations vary from the truth in such manner as to change the nature, extent, or character of the risk. This is true although the applicant may have made the representations in good faith, not knowing that the representations are untrue. Morris v. Imperial Ins. Co., 106 Ga. 461, 32 S.E. 595 (1899); Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328, 47 S.E. 940 (1904) (decided under former Civil Code 1895, §§ 2097, 2098).

- It is therefore immaterial whether the warrantor acted in good faith in making the representations. Mutual Benefit Health & Accident Ass'n v. Bell, 49 Ga. App. 640, 176 S.E. 124 (1934) (decided under former Civil Code 1910, § 2481); Sovereign Camp W.O.W. v. Reid, 53 Ga. App. 618, 186 S.E. 759 (1936); United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 248 S.E.2d 635 (1978) (decided under former Code 1933, §§ 56-820, 56-821);.

Any material misrepresentation whereby the nature, extent, or character of the risk is changed will void the certificate, whether the statement is made in good faith or willfully and fraudulently, when the application is attached to and is made a part of the policy or when a benefit certificate in a fraternal benefit association is involved. Sovereign Camp, W.O.W. v. Batchelor, 52 Ga. App. 262, 183 S.E. 131 (1935) (decided under former Code 1933, §§ 56-820 to 56-822).

When an applicant for life insurance covenants in the application that the statements made to the medical examiner are true, and these statements are made a part of the contract of insurance and form the basis of such contract, any variation in any of them which is material, whereby the nature or extent or character of the risk is changed, will avoid the policy, whether the statement was made in good faith or willfully or fraudulently. Sovereign Camp W.O.W. v. Reid, 53 Ga. App. 618, 186 S.E. 759 (1936) (decided under former Code 1933, §§ 56-820 to 56-822).

When insured, in applying for reinstatement of life policies, furnishes false evidence which is relied on by the insurance company, the insured is guilty of fraud in law which avoids the policy whether the insured acts in good or bad faith and whether the insured intends to deceive or not. Life & Cas. Ins. Co. v. Davis, 62 Ga. App. 832, 10 S.E.2d 129 (1940) (decided under former Code 1933, §§ 56-820 to 56-822).

Misrepresentation that is material to the risk will void the policy whether made in good faith or not. Kennesaw Life & Accident Ins. Co. v. Hubbard, 106 Ga. App. 556, 127 S.E.2d 845 (1962).

Affirmative representation in an application which is made a part of the policy, which, if shown to be false and material, in that it presented a false picture of the nature, extent, or character of the risk, cannot be overcome by a showing that the applicant answered in good faith, not knowing that it was untrue. Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883, 176 S.E.2d 103 (1970); Hairston v. John Hancock Mut. Life Ins. Co., 320 F. Supp. 643 (N.D. Ga. 1970).

In order to avoid an insurance policy for a misrepresentation of the applicant made in the application, the insurer need only show that the representation was false and that the representation was material in that the representation changed the nature, extent, or character of the risk. This is true although the applicant may have acted in good faith, not knowing that a representation is untrue. Bourne v. Balboa Ins. Co., 144 Ga. App. 55, 240 S.E.2d 261 (1977).

Policy cannot be avoided upon the ground of the falsity of a representation, though warranted under the contract, unless that representation is material and the variation from the truth is such as to change the nature, extent, or character of the risk, even though an applicant may make the representation in good faith, not knowing that the representation is untrue. United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 248 S.E.2d 635 (1978).

- Whether an applicant's previous homeowners' policy was canceled for cause is material to an insurance company's decision to provide coverage. It is irrelevant whether an applicant acted in good faith or even had knowledge of the falsity when misrepresenting material facts in procuring insurance coverage. Nappier v. Allstate Ins. Co., 961 F.2d 168 (11th Cir. 1992).

When insureds sued an insurer for breach of contract following the rescission of the insureds' insurance policy, it was proper to instruct that even a misrepresentation given in good faith would void the policy; under O.C.G.A. § 33-24-7(b)(2) and (3), an insurer did not have to show that a representation was fraudulent, only that it was material and false, and the "to the best of my knowledge and belief" language on the application meant only that the insureds were relying upon the insureds' own knowledge, not upon that of others such as an agent. White v. Am. Family Life Assur. Co., 284 Ga. App. 58, 643 S.E.2d 298 (2007).

- Actual falsity of representations materially affecting the nature and character of risk void a policy of life insurance, independently of intentional deceit. Good faith is not a reply to actual falsity, unless the representation is made on information from others, and the insurer is so informed at the time the assured proposes to contract on a basis of fact presented by the insured to the insurer. If that basis is incorrect in a material respect, there is no binding contract. Pacific Mut. Life Ins. Co. v. Manley, 27 F.2d 915 (N.D. Ga. 1928), aff'd, 35 F.2d 337 (5th Cir. 1929) (decided under former Civil Code 1910, §§ 2479, 2480).

Any verbal or written representations of facts by the assured to induce the acceptance of the risk, if material, must be true, or the policy is void; if however, the party has no knowledge, but states on the representation of others, bona fide, and so informs the insurer, the falsity of the information does not void the policy. Farmers Protective Fire Ins. Co. v. Weaver, 44 Ga. App. 752, 162 S.E. 839 (1932) (decided under former Civil Code 1910, § 2480).

- When the insurer would not have issued a policy if the insurer had known the truth concerning misrepresentations by the applicant, an innocent coinsured of the applicant was also barred from recovery. Graphic Arts Mut. Ins. Co. v. Pritchett, 220 Ga. App. 430, 469 S.E.2d 199 (1995).

Insurance company is not required to prove that the insured had actual knowledge of the falsity of a misrepresentation in order to prevent a recovery. Bailey v. Interstate Life & Accident Ins. Co., 155 Ga. App. 65, 270 S.E.2d 287 (1980).

- When it is shown that a material statement in an application is false which was known to the insured at the time the insured made the application and the statement was made with a view toward obtaining the insurance, with the company having no knowledge of the statement's falsity, when the company acted upon the statement to the company's injury, the law will conclusively presume an intent to deceive, and a case of actual fraud will be made out. Atha v. Mid-South Ins. Co., 173 Ga. App. 489, 326 S.E.2d 853 (1985).

Question posed in an insurance application must be evaluated in the light of the meaning conveyed to the insured, regardless of the true or technical meaning. Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883, 176 S.E.2d 103 (1970).

- Question in written application for life insurance, attached to and made a part of the policy, "To what extent do you now, or have you in the past, used intoxicants, morphine, cocaine, or other habit-forming drugs?" referred to the "habitual" or "customary" use of such drugs or drinks did not refer to an "occasional" or "exceptional" use of such drugs or drinks. National Life & Accident Ins. Co. v. Barnes, 61 Ga. App. 730, 7 S.E.2d 299 (1940) (decided under former Code 1933, §§ 56-820 to 56-822).

- In order to work a waiver for the falsity of material representations in an application for life insurance, actual notice to the company, or some authorized agent, of the falsity of such representations is necessary, and constructive notice is insufficient to effect such waiver. Lee v. Metropolitan Life Ins. Co., 158 Ga. 517, 123 S.E. 737 (1924) (decided under former Ga. L. 1912, p. 119).

- In a case in which an insured appealed from a trial court's order granting summary judgment to an insurer on the insured's lawsuit to recover damages in connection with the loss of the insured's home and the home's contents due to a fire, the appellate court directed the trial court on remand to determine whether the insured presented reasonable explanations for the insured's contradictory testimony. Sikes v. Great Lakes Reinsurance (UK) PLC, 321 Ga. App. 136, 741 S.E.2d 263 (2013).

- If the agent had actual knowledge of the fact which by a stipulation in the contract would render the contract void, the insurer could not set up such facts as a defense. But before the knowledge of the agent could work a waiver on the part of the principal, the knowledge must have been actual. Constructive knowledge would not be sufficient for that purpose. Interstate Life & Accident Co. v. Bess, 35 Ga. App. 723, 134 S.E. 804 (1926) (decided under former Civil Code 1910, §§ 2479 to 2481).

Neither the obtaining of an examination of an applicant nor the failure to obtain one will work either a waiver or an estoppel in the absence of a showing that the true facts were known to the insurance company when the company accepted the application and delivered the policy. Kennesaw Life & Accident Ins. Co. v. Hubbard, 106 Ga. App. 556, 127 S.E.2d 845 (1962) (decided under former Code 1933, § 56-908).

- When the agent who filled out the application and delivered the policy to the insured had actual knowledge of such incorrect statements in the application, the insurer will be held to have had notice thereof and to be estopped from asserting the invalidity of the policy because of such incorrect statements in the application. Southern Sur. Co. v. Fortson, 46 Ga. App. 265, 167 S.E. 335 (1933) (decided under former Civil Code 1910, §§ 2479 to 2481).

Knowledge of material facts on the part of an agent of an insurance company is notice to the company, and, if with this notice the company issues a policy, it is estopped in equity from deriving benefit from any stipulation in the policy which might have availed it if it had been ignorant of the facts. National Life & Accident Ins. Co. v. Pollard, 66 Ga. App. 895, 19 S.E.2d 557 (1942) (decided under former Code 1933, §§ 56-820 to 56-822).

When an insured makes a false statement on an application for insurance of which the agent of the insurance company has actual knowledge, this knowledge is imputed to the insurer, who is thereafter estopped from urging this defense. Allstate Ins. Co. v. Anderson, 121 Ga. App. 582, 174 S.E.2d 591 (1970).

- To avoid an insurance company's reliance on misrepresentation as a defense when the insured represented on the application that the insured was in good health but when the agent knew that the insured was sick, the agent's knowledge of the medical problem must be specific rather than general, as the insurer may be willing to assume the risk of insuring someone who is generally unhealthy but not someone who suffers from a specific disease. Thus, an insurance agent's knowledge that the insured was "very sick" did not constitute knowledge that the insured previously suffered both a heart attack and a stroke and was currently being treated for lung cancer. Burkholder v. Ford Life Ins. Co., 207 Ga. App. 908, 429 S.E.2d 344 (1993).

- When soliciting and forwarding applications for policies of insurance were within the scope of the duties of an agent of an insurance company and such agent undertook to prepare for another an application for insurance, and willfully inserted therein a false answer to a material question, the agent will be regarded in so doing as the agent of the company and not of the applicant, and the agent's knowledge of the falsity of the answer will be imputed to the company. Ocean Accident & Guarantee Corp. v. Howell, 46 Ga. App. 69, 166 S.E. 678 (1932); Jarriel v. Preferred Risk Mut. Ins. Co., 155 Ga. App. 136, 270 S.E.2d 238 (1980).

- When fraud or collusion is not shown, and when an application for insurance, although attached to and made a part of the policy, contains no restrictions on the authority of the soliciting agent, the insurer is estopped to deny knowledge of facts recited by the applicant to the insurer's agent and therefore imputable to the insurer as to the falsity of representations contained in the application, and is presumed to have waived the misrepresentations actually inserted therein by such agent. Reserve Life Ins. Co. v. Bearden, 96 Ga. App. 549, 101 S.E.2d 120 (1957), aff'd, 213 Ga. 904, 102 S.E.2d 494 (1958) (decided under former Code 1933, § 56-820).

Although a limitation on the authority of the agent to waive the provisions of the insurance contract when it appears on the face of the application for insurance makes any effort of the agent to waive provisions ineffective, when such limitation does not appear on the application, a similar limitation of the agent's authority occurring in the policy itself refers only to acts of the agent subsequent to the issuance of the policy. Reserve Life Ins. Co. v. Bearden, 96 Ga. App. 549, 101 S.E.2d 120 (1957), aff'd, 213 Ga. 904, 102 S.E.2d 494 (1958) (decided under former Code 1933, § 56-820).

Even though there is a material misrepresentation in an application which is attached to the policy such as would be sufficient to avoid the policy under this section, and even though there is a limitation on the authority of the agent in the policy to waive any provisions of either, unless there is a limitation on the authority of the agent in the application itself sufficient to put the proposed insured on notice of the limitation on the authority of the agent, the general rule applies that the knowledge of the agent is the knowledge of the principal. Allstate Ins. Co. v. Anderson, 121 Ga. App. 582, 174 S.E.2d 591 (1970).

- Although the application was, by the application's terms, a part of the contract of insurance, and was signed by the person to whom the policy was subsequently issued, if the latter was fraudulently misled and deceived by the agent as to the contents of the application in the respect indicated, and was in fact ignorant that it contained the false answer in question, the company will not be allowed to avoid the policy on the ground of a false warranty in relation to that answer. Ocean Accident & Guarantee Corp. v. Howell, 46 Ga. App. 69, 166 S.E. 678 (1932) (decided under former Civil Code 1910, §§ 2479 to 2482).

When a soliciting agent of an insurance company undertook to prepare for another an application for insurance and willfully and fraudulently, without the knowledge of the applicant, inserted in the application false answers to material questions, which were contrary to truthful answers given by the applicant, and the agent, after inserting such false answers, willfully read the application to the applicant in such a manner as to indicate that the answers were written as given by the applicant, and the applicant then signed the application, the insurance company will not be permitted to avoid the policy on the ground that the application, which was attached to the policy, contained a clause limiting the agent's authority. Stillson v. Prudential Ins. Co., 202 Ga. 79, 42 S.E.2d 121 (1947), commented on in, see 10 Ga. B.J. 225 (1947);(decided under former Code 1933, §§ 56-820 to 56-822).

If one in fact makes truthful answers to an agent who nevertheless mistakenly or fraudulently records the answers otherwise on the application, and the applicant is for some reason prevented from ascertaining the discrepancy and signs the application, the company will be estopped from avoiding liability for misrepresentation. Jessup v. Franklin Life Ins. Co., 117 Ga. App. 389, 160 S.E.2d 612 (1968).

- An application for insurance which contains false answers that are material to the risk, inserted by the agent of the company issuing the policy but under such circumstances as do not prevent the signer from being bound thereby, which application is attached to and made a part of the policy issued, does not, when the application itself expressly limits the authority of the agent taking the application, constitute such notice to the company issuing the policy as amounts to notice and estoppel on the company's part. The applicant, by the receipt of and reliance on the policy, is estopped from pleading or proving the fraud of the agent in taking the application and making the false answers, the application containing the provision "that the company is not bound by any knowledge of or statements by or to any agent unless written thereon." National Accident & Health Ins. Co. v. Davis, 50 Ga. App. 391, 178 S.E. 320 (1935) (decided under former Code 1933, §§ 56-820 to 56-822).

When an applicant signs the application in a completed state, the applicant is bound by the answers to the questions appearing on the application, even though the insurer's agent filled out the application. Jefferson Std. Life Ins. Co. v. Bridges, 147 Ga. App. 5, 248 S.E.2d 5 (1978).

- When an application for insurance is actually attached to the policy of insurance and by the terms of the contract is made a part thereof, any misrepresentation of material facts made by the agent of the insurer in the application will be imputed to the insured, and the insured will not be allowed to claim under the contract, without being held to have had knowledge of the false statements made in the application actually attached to and forming an integral part of the contract as delivered, accepted and sued on. Southern Sur. Co. v. Fortson, 44 Ga. App. 329, 161 S.E. 679 (1931) (decided under former Civil Code 1910, §§ 2479 to 2482).

- When an application is signed in blank and authority given by the applicant to the agent of the company to fill out the application from information given the agent, any false answers inserted in the application which is attached to and made a part of the policy issued, unless inserted by a misleading device or artifice perpetrated by such agent, will be binding on the applicant; those who can read must read, and are bound by writings signed by themselves, unless such signature was procured through fraud. National Accident & Health Ins. Co. v. Davis, 50 Ga. App. 391, 178 S.E. 320 (1935) (decided under former Code 1933, §§ 56-820 to 56-822).

An applicant is prima facie charged with knowledge of the contents of an application signed by the applicant, but this may be rebutted. Jessup v. Franklin Life Ins. Co., 117 Ga. App. 389, 160 S.E.2d 612 (1968).

- When the insured had notice of the limitations on the agent's authority and signed an application without reading the application, the insured placed it in the power of the agent to commit a fraud by inserting false answers in the application which was made a part of the policy of insurance issued and delivered to the insured and on which the insured relied. In such a case the insured is estopped from pleading or proving the fraud of the agent in the assertion of false answers. National Accident & Health Ins. Co. v. Davis, 50 Ga. App. 391, 178 S.E. 320 (1935) (decided under former Code 1933, §§ 56-820 to 56-822).

- If the insured and beneficiary are not bound originally by the contract between the parties limiting the authority of the agent when false answers are inserted by the agent and the reading of the application is thus excused, there is no duty on the insured or beneficiary to examine the application after the policy is issued. The insurance company would have to show actual knowledge of the false answers after delivery of the policy in order to show such fraud as would avoid the contract. Barber v. All Am. Assurance Co., 89 Ga. App. 270, 79 S.E.2d 48 (1953) (decided under former Code 1933, § 56-908).

It would be unreasonable to say that the insured or beneficiary is excused in the first instance from reading the application, and then to charge the insured or beneficiary with the duty of reading the application after the policy was delivered. Barber v. All Am. Assurance Co., 89 Ga. App. 270, 79 S.E.2d 48 (1953) (decided under former Code 1933, § 56-908).

- In an action on an insurance policy, the defense that the contract of insurance is void because the contract was obtained by fraud practiced on the insurer by the insured may be pled without repaying or offering to repay the premiums or any part thereof received by the insurer on the policy. Columbian Nat'l Life Ins. Co. v. Mulkey, 146 Ga. 267, 91 S.E. 106 (1916); Stansall v. Columbian Nat'l Life Ins. Co., 27 Ga. App. 537, 109 S.E. 297, cert. denied, 27 Ga. App. 836 (1921), later appeal, 32 Ga. App. 87, 122 S.E. 733 (1924) (decided under former Civil Code 1910, §§ 2479 to 2481).

- Spouse's incorrect responses to questions on a major medical insurance policy application about the insured's prior hospitalizations constituted misstatements sufficient to preclude recovery under the policy even if made in good faith. Oakes v. Blue Cross Blue Shield of Columbus, Inc., 170 Ga. App. 335, 317 S.E.2d 315 (1984).

- Insurer is estopped from asserting misrepresentations as a defense when the insurer's agent, having been given true information, writes down false answers. Liberty Nat'l Life Ins. Co. v. Houk, 157 Ga. App. 540, 278 S.E.2d 120 (1981), aff'd, 248 Ga. 111, 281 S.E.2d 583 (1983).

When an insured with muscular dystrophy had a keen mind and full knowledge of the condition when a life insurance application was filled out, the argument that the insured believed that the insured was in good health and free from physical defects is without merit. Wood v. National Benefit Life Ins. Co., 631 F. Supp. 6 (N.D. Ga. 1984).

- When an insurer alleged misrepresentation on the part of an auto store for failing to disclose that the store sold freon, there was no misrepresentation for failure to disclose and the insurer had no basis for the insurer's suggestion that the risk involved in insuring freon was somehow greater than the risk involved in insuring such other, unspecified auto parts, because: (1) the application and policy referred generically to "auto parts"; (2) the application and policy contained no express reference to any particular auto part; (3) at oral argument, the insurer conceded that freon may be considered an "auto part"; (4) the insurer offered no evidence that suggested that the store informed the insurer of their dealings in certain auto parts but not in freon; and, (5) the insurer presented no evidence of the types of auto parts that the insurer purported to insure. JLM Enters. v. Houston Gen. Ins. Co., 196 F. Supp. 2d 1299 (S.D. Ga. 2002).

- Because an insurer carried the insurer's burden of showing that the representation of an insured's business was false, and that the representation was material in that the representation changed the nature, extent, or character of the insurance coverage risk, the trial court did not err in granting the insurer summary judgment. Marchant v. Travelers Indem. Co., 286 Ga. App. 370, 650 S.E.2d 316 (2007).

- In a dispute involving a fire insurance policy and the insurer's claim that the insured made a material misrepresentation that the home was the insured's primary residence and occupied by the insured, when in fact the insured stayed there only periodically but allowed a friend and the friend's family to live there, the insurer's affidavit that the insurer would not have issued the policy had the insurer known the true facts was insufficient to support a grant of summary judgment. Lee v. Mercury Ins. Co., 343 Ga. App. 729, 808 S.E.2d 116 (2017), cert. denied, No. S18C0518, 2018 Ga. LEXIS 491 (Ga. 2018).

Cited in Hubbard v. Kennesaw Life & Accident Ins. Co., 110 Ga. App. 870, 140 S.E.2d 237 (1965); State Farm Mut. Auto. Ins. Co. v. Reese, 116 Ga. App. 59, 156 S.E.2d 529 (1967); Reserve Ins. Co. v. Associates Dist. Corp., 116 Ga. App. 792, 159 S.E.2d 97 (1967); Globe Life & Accident Ins. Co. v. Still, 376 F.2d 611 (5th Cir. 1967); Pitts v. Life Ins. Co., 137 Ga. App. 658, 224 S.E.2d 776 (1976); Morris v. State Farm Mut. Auto. Ins. Co., 143 Ga. App. 617, 239 S.E.2d 187 (1977); McGhee v. Independent Life & Accident Ins. Co., 146 Ga. App. 310, 246 S.E.2d 349 (1978); Taylor v. Time Ins. Co., 583 F.2d 743 (5th Cir. 1978); Southern Guar. Ins. Co. v. Pearce, 607 F.2d 146 (5th Cir. 1979); Hicks v. American Interstate Ins. Co., 158 Ga. App. 220, 279 S.E.2d 517 (1981); Sentry Indem. Co. v. Sharif, 156 Ga. App. 828, 280 S.E.2d 354 (1981); Empire Fire & Marine Ins. Co. v. Jackson, 159 Ga. App. 585, 284 S.E.2d 99 (1981); Casey Enters., Inc. v. American Hdwe. Mut. Ins. Co., 655 F.2d 598 (5th Cir. 1981); Jones v. Delta Life Ins. Co., 161 Ga. App. 532, 288 S.E.2d 885 (1982); Pennsylvania Life Ins. Co. v. Tanner, 163 Ga. App. 330, 293 S.E.2d 520 (1982); Sawyer v. Citizens & S. Nat'l Bank, 164 Ga. App. 177, 296 S.E.2d 134 (1982); Cummings v. Prudential Ins. Co. of Am., 542 F. Supp. 838 (S.D. Ga. 1982); Bailey v. Interstate Life & Accident Ins. Co., 165 Ga. App. 611, 302 S.E.2d 374 (1983); James v. Pennsylvania Gen. Ins. Co., 167 Ga. App. 427, 306 S.E.2d 422 (1983); Jones v. United Ins. Co. of Am., 177 Ga. App. 102, 338 S.E.2d 532 (1985); Celtic Life Ins. Co. v. Monroe, 220 Ga. App. 38, 467 S.E.2d 360 (1996); Progressive Preferred Ins. Co. v. Aguilera, 243 Ga. App. 442, 533 S.E.2d 448 (2000); C. Ingram Co. v. Phila. Indem. Ins. Co., 303 Ga. App. 548, 694 S.E.2d 181 (2010).

What is Material

Objective standard applied.

- O.C.G.A. § 33-24-7 represented the legislature's decision to extend a measure of protection to those who apply for insurance, the judicial response to that legislative policy being the adoption of an objective standard - a type of standard traditionally applied by a jury to facts found by it - to define the prudent insurer and materiality. There was no similar legislative or judicial recognition on behalf of an insured who filed a sworn proof of loss stating the insured's interest in the property was 100 percent, when in fact the insured had conveyed the property to a parent to prevent the insured's spouse from claiming it in divorce proceedings. Such was a material misrepresentation as a matter of law, voiding the coverage. Woods v. Independent Fire Ins. Co., 749 F.2d 1493 (11th Cir. 1985).

In a case involving O.C.G.A. § 33-24-7(b), the life insurance policy beneficiaries unsuccessfully argued that determining the materiality of the deceased's misrepresentations required that the district court consider the actual conduct of the insurance company when the company approved the deceased's life insurance policy. The test for materiality under O.C.G.A. § 33-24-7(b)(2) was the objective standard of conduct of a prudent insurer, not a subjective standard about the actual conduct of a particular insurance company. Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555 F.3d 1331 (11th Cir. 2009).

- Insurance policies are of the nature of personal contracts. The insurer is selective of those risks which revolve around the character, integrity, and personal characteristics of those whom the insurer will insure. Republic Ins. Co. v. Chapman, 146 Ga. App. 719, 247 S.E.2d 156 (1978).

- Mere immaterial matters do not void the policy even though the policy declares the matters to be warranties and the parties themselves cannot contract to make immaterial matters material. Aetna Life Ins. Co. v. Moore, 231 U.S. 543, 34 S. Ct. 186, 58 L. Ed. 356 (1913) (decided under former Civil Code 1910, §§ 2479 to 2482).

- Insurance company cannot assert that a factor is material to the risk about which it has neither made inquiry or apprised its prospective insured. Georgia Farm Bureau Mut. Ins. Co. v. First Fed. Sav. & Loan Ass'n, 152 Ga. App. 16, 262 S.E.2d 147 (1979).

- Requiring an attorney to disclose every adverse ruling on the attorney's application would be unreasonable; however, when an attorney chose to voluntarily dismiss a client's action, refiled the action in another court, and, as a result, lost the case because the action was barred by the statute of limitations, the attorney's answering "no" to questions on an application as to the attorney's knowledge of any acts that could result in a professional liability claim was an objectively false statement and the statement was material. Home Indem. Co. v. Toombs, 910 F. Supp. 1569 (N.D. Ga. 1995).

- Based on evidence from an insurance underwriter that the underwriter would have rejected an application for crime coverage if the application had accurately stated that the insured did not audit with a certified public accountant and did not require countersignatures on checks, these misrepresentations were material under O.C.G.A. § 33-24-7(b) and entitled the insurer to void coverage, although an independent agent, not the insured, submitted the application. Georgia Casualty & Surety Company v. Valley Wood, Inc., 336 Ga. App. 290, 785 S.E.2d 1 (2016).

Material representation is one that would influence a prudent insurer in determining whether or not to accept the risk or in fixing the amount of the premium in the event of such acceptance. Empire Life Ins. Co. v. Jones, 14 Ga. App. 647, 82 S.E. 62 (1914) (decided under former Civil Code 1910, §§ 2479 to 2482); Lee v. Metropolitan Life Ins. Co., 158 Ga. 517, 123 S.E. 737 (1924); Phillips v. New York Life Ins. Co., 173 Ga. 135, 159 S.E. 696 (1931) (decided under former Civil Code 1910, §§ 2479 to 2482); Ocean Accident & Guarantee Corp. v. Howell, 46 Ga. App. 69, 166 S.E. 678 (1932); New York Life Ins. Co. v. Watson, 48 Ga. App. 211, 172 S.E. 602 (1934) (decided under former Civil Code 1910, §§ 2479 to 2482); Bankers Health & Life Ins. Co. v. Brown, 49 Ga. App. 294, 175 S.E. 387 (1934); Mutual Benefit Health & Accident Ass'n v. Bell, 49 Ga. App. 640, 176 S.E. 124 (1934) (decided under former Civil Code 1910, §§ 2479 to 2482); Firemen's Ins. Co. v. Parmer, 51 Ga. App. 916, 181 S.E. 880 (1935); Bankers Health & Life Ins. Co. v. Hamilton, 56 Ga. App. 569, 193 S.E. 477 (1937) (decided under former Code 1933, §§ 56-820 to 56-822); Bankers Health & Life Ins. Co. v. Glisson, 61 Ga. App. 583, 7 S.E.2d 32 (1940); Metropolitan Life Ins. Co. v. Marshall, 65 Ga. App. 696, 16 S.E.2d 33 (1941) (decided under former Code 1933, §§ 56-820 to 56-822); Bourne v. Balboa Ins. Co., 144 Ga. App. 55, 240 S.E.2d 261 (1977); Sentry Indem. Co. v. Brady, 153 Ga. App. 168, 264 S.E.2d 702 (1980) (decided under former Code 1933, §§ 56-820 to 56-822);(decided under former Civil Code 1910, §§ 2479 to 2482);(decided under former Civil Code 1910, §§ 2479 to 2482);(decided under former Civil Code 1910, §§ 2479 to 2482);(decided under former Code 1933, §§ 56-820 to 56-822);(decided under former Code 1933, §§ 56-820 to 56-822);(decided under former Code 1933, §§ 56-820 to 56-822).

Materiality of a concealment or representation of fact depends, not on the ultimate influence of the fact upon the risk or its relation to the cause of loss, but on the immediate influence upon the party to whom the communication is made, or is due, in forming that party's judgment at the time of effecting the contract. Mutual Benefit Health & Accident Ass'n v. Bell, 49 Ga. App. 640, 176 S.E. 124 (1934) (decided under former Civil Code 1910, §§ 2479 to 2482); Firemen's Ins. Co. v. Parmer, 51 Ga. App. 916, 181 S.E. 880 (1935); Mutual Benefit Health & Accident Ass'n v. Marsh, 60 Ga. App. 431, 4 S.E.2d 84 (1939) (decided under former Civil Code 1910, §§ 2479 to 2482); Bankers Health & Life Ins. Co. v. Glisson, 61 Ga. App. 583, 7 S.E.2d 32 (1940); Commercial Cas. Ins. Co. v. Jeffers, 69 Ga. App. 52, 24 S.E.2d 815 (1943) (decided under former Code 1933, §§ 56-820 to 56-922);(decided under former Code 1933, §§ 56-820 to 56-922);(decided under former Code 1933, § 56-908).

Test, in determining whether questions contained in an application for insurance are material, is whether knowledge or ignorance of the facts sought to be elicited thereby would materially influence the action of the insurer. Mutual Benefit Health & Accident Ass'n v. Bell, 49 Ga. App. 640, 176 S.E. 124 (1934) (decided under former Civil Code 1910, §§ 2479 to 2482); Mutual Benefit Health & Accident Ass'n v. Marsh, 60 Ga. App. 431, 4 S.E.2d 84 (1939); Commercial Cas. Ins. Co. v. Jeffers, 69 Ga. App. 52, 24 S.E.2d 815 (1943) (decided under former Code 1933, §§ 56-820 to 56-822);(decided under former Code 1933, § 56-908).

Misrepresentations referred to in this section are those which constitute actual fraud, or any other misrepresentations which are material to the risk; and the phrase "material misrepresentations" as here used means misrepresentations of such character that the knowledge or ignorance of the fact sought to be elicited would thereby influence the action of a prudent insurer in forming the insurer's judgment as to whether to accept the risk and what premium to charge, and such that the character and nature of the risk contemplated in the policy were changed from what they would have been if the representations had been true. Commercial Cas. Ins. Co. v. Jeffers, 69 Ga. App. 52, 24 S.E.2d 815 (1943) (decided under former Code 1933, § 56-908).

Material misrepresentation is one which would be consideration in an insurer's decision to issue a policy. Continental Cas. Co. v. Synalloy Corp., 667 F. Supp. 1523 (S.D. Ga. 1983), aff'd, 826 F.2d 1024 (11th Cir. 1987).

Insurer prevailed on a beneficiary's breach of contract and bad faith claims because the insured made a material misrepresentation under O.C.G.A. § 33-24-7 by the failure to disclose a driving under the influence conviction within five years of the issuance of the life insurance policy and the insured would not have received the rating and premium offered by the insurer if the conviction had been disclosed. Dracz v. Am. Gen. Life Ins. Co., 427 F. Supp. 2d 1165 (M.D. Ga. 2006).

Materiality of a representation is not measured by the ultimate cause of loss, but is determined by the influence such knowledge has on assuming the risk at the outset. Jessup v. Franklin Life Ins. Co., 117 Ga. App. 389, 160 S.E.2d 612 (1968).

- Though the loss should arise from causes totally unconnected with the material fact concealed or misrepresented, the policy is void, because a true disclosure of the fact might have led the company to decline the insurance altogether, or to accept it only at a higher premium. Mutual Benefit Health & Accident Ass'n v. Marsh, 60 Ga. App. 431, 4 S.E.2d 84 (1939) (decided under former Code 1933, §§ 56-820 to 56-822).

As the evidence showed that an insurer would not have reinstated a homeowner's policy if the insurer knew the insureds planned to reinstall a diving board, the insureds, by providing a photo showing the board had been removed, made a material misrepresentation to the insurer. Under O.C.G.A. § 33-24-7(b), the fact that the insureds' subsequent loss was unrelated to the use of the diving board was irrelevant in determining that the insureds' misrepresentation as to board's permanent removal voided coverage. Pope v. Mercury Indem. Co., 297 Ga. App. 535, 677 S.E.2d 693 (2009).

- Test as to whether a misrepresentation will defeat a recovery is not whether the matter represented shall have actually contributed to the contingency or event on which the policy is to become payable, but whether it changed the nature and character of the risk and increased it as against the insurer under the particular policy, and by increase in risk is meant an increase that is at least substantial. Preston v. National Life & Accident Ins. Co., 196 Ga. 217, 26 S.E.2d 439 (1943) (decided under former Code 1933, § 56-908); National Life & Accident Ins. Co. v. Atha, 69 Ga. App. 825, 26 S.E.2d 675 (1943); Metropolitan Life Ins. Co. v. Joye, 77 Ga. App. 357, 48 S.E.2d 751 (1948) (decided under former Code 1933, § 56-908);(decided under former Code 1933, § 56-908).

- Misstatement in an application for insurance must in some way change the nature, extent, or character of the risk in order to void the policy; the court after citing this section, said any variation by which the nature, extent, or character of the risk is changed, will constitute a breach of that covenant, and will void the policy, but it is not any and every variation from the representations contained in the application, that will constitute a breach of the covenant of warranty and void the policy. The variation must be such as to change the nature or extent, or character of the risk, in order to void the policy. If the insured should state in the insured's application for a fire policy, in answer to the question as to what was the insured's age, that the insured was 30 years old, when in fact the insured was 31, it would be a variation, but not such a variation as would change the nature, or extent, or character of the risk of the insurance company. Mobile Fire Ins. Co. v. Miller, 58 Ga. 420 (1877) (decided under former Civil Code 1873, § 2802); Rosser v. Georgia Home Ins. Co., 101 Ga. 716, 29 S.E. 286 (1897);(decided under former Civil Code 1895, § 2097).

Policy cannot be avoided upon the ground of the falsity of a representation, though warrantied, unless that representation is material, and the variation from truth is such as to change the nature, extent, or character of the risk. Mutual Benefit Health & Accident Ass'n v. Bell, 49 Ga. App. 640, 176 S.E. 124 (1934) (decided under former Civil Code 1910, §§ 2479 to 2482).

Variation from the truth, to be material, must be such as to change the nature, extent, or character of the risk. Mutual Benefit Health & Accident Ass'n v. Marsh, 60 Ga. App. 431, 4 S.E.2d 84 (1939) (decided under former Code 1933, §§ 56-820 to 56-822).

Material misrepresentation as to a known fact will avoid a policy if such misrepresentation changes the character, extent, or nature of the risk. Mutual Benefit Health & Accident Ass'n v. McCranie, 178 F.2d 745 (5th Cir. 1949) (decided under former Code 1933, § 56-908).

In the case of fire and life insurance applications, a misrepresentation is material if the misrepresentation changes the character, nature, or extent of the risk. State Farm Mut. Auto. Ins. Co. v. Anderson, 107 Ga. App. 348, 130 S.E.2d 144, cert. dismissed, 219 Ga. 211, 132 S.E.2d 556 (1963).

In order to void a policy of insurance for a misrepresentation in the application, the insurer must show that the representation was false and that the representation was material in that the representation changed the nature, extent, or character of the risk. Sentry Indem. Co. v. Brady, 153 Ga. App. 168, 264 S.E.2d 702 (1980).

Representations as to previous health of the insured are in general material when not only life, but future health, are to be insured. Even though a misrepresentation relates to a time several years prior to the application, it is material, unless it is very clear that the ill health was due to a transient cause, and left no bad effects. Mental derangement, because of its obscurity, especially might well be traced back indefinitely. Pacific Mut. Life Ins. Co. v. Manley, 27 F.2d 915 (N.D. Ga. 1928), aff'd, 35 F.2d 337 (5th Cir. 1929) (decided under former Civil Code 1910, §§ 2479, 2480).

- When in an application made for the insurance policy, which was issued by an insurance company and subsequently taken up by another company, it was stated that the insured was 53 years of age and was sound physically and not suffering from any disease, but the evidence showed that at the time of the application the insured was over 60 years of age and was suffering from cancer, which in a few months caused the insured's death, it was held that these representations were material to the risk, and the representations' falsity was unknown to the original company at the time the policy sued on was substituted for the policy in the original company. Maddox v. Southern Mut. Life Ins. Ass'n, 6 Ga. App. 681, 65 S.E. 789 (1909); Southern Life Ins. Co. v. Hill, 8 Ga. App. 857, 70 S.E. 186 (1911) (decided under former Ga. L. 1906, p. 107).

Provisions of this section are applicable in a suit on a policy of life insurance when the insurer pleads fraud in the procurement of the policy and alleges in defense of such suit that the applicant for insurance made in the application which was attached to and formed a part of the policy, untrue and incorrect statements relative to previous illnesses and relative to whether or not the applicant had been previously treated by a physician. Metropolitan Life Ins. Co. v. Marshall, 65 Ga. App. 696, 16 S.E.2d 33 (1941) (decided under former Code 1933, §§ 56-821, 56-822).

Misrepresentation of true state of the insured's health and medical history by the insured entitled the insurer to refuse the administrator's claim for proceeds of a mortgage life insurance policy. Davis v. Integon Life Ins. Corp., 645 F.2d 494 (5th Cir. 1981).

- Failure to disclose the fact that the insured had undergone a neuropsychiatric evaluation constituted a material misrepresentation since, if the resulting diagnosis had been known, the insurer would have been required to either charge a higher premium or decline to issue the policy; further, it was immaterial whether the insured acted in good faith in completing the application, and likewise immaterial that the insured died from an unrelated cause. Hopkins v. Life Ins. Co., 218 Ga. App. 591, 462 S.E.2d 467 (1995).

- Whether a misrepresentation relates to health or to some other fact or condition, the final test is whether there was an increase in risk. Preston v. National Life & Accident Ins. Co., 196 Ga. 217, 26 S.E.2d 439 (1943) (decided under former Code 1933, §§ 56-820 to 56-822).

- When the insured had been diagnosed with carcinoma of the esophagus, the insured's failure to disclose the fact of "attendance by a physician for a condition diagnosed as cancer" (through periodic checkups to see if previously diagnosed cancer had recurred) upon the insurance application amounted to a material misrepresentation, even though the cancer was in remission at the time the application was completed. Lee v. Chrysler Life Ins. Co., 204 Ga. App. 550, 419 S.E.2d 727, cert. denied, 204 Ga. App. 922, 419 S.E.2d 727 (1992).

- To the extent defendant life insurance company claimed an insured's failure to disclose health problems was a material misrepresentation absolving the company of liability under O.C.G.A. § 33-24-7(b), the jury was to decide fault, and issues as to whether the insured learned the insured had cancer until after the insured was told the policy was approved precluded summary judgment against the plaintiff, the trustee of a family trust, who sought proceeds of the life insurance policy that insured the life of the trustee's mother, the insured. Nixon v. Lincoln Nat'l Ins. Co., F.3d (11th Cir. May 5, 2005)(Unpublished).

Failure to disclose that an insured suffered from muscular dystrophy was material to the risk assumed by any company providing life insurance. Wood v. National Benefit Life Ins. Co., 631 F. Supp. 6 (N.D. Ga. 1984).

A history of progressively disabling muscular dystrophy is material to the risk assumed by the insurance company providing life insurance. Northwestern Nat'l Life Ins. Co. v. Wood, 631 F. Supp. 22 (N.D. Ga. 1984).

- Trial court did not err in granting summary judgment to an insurer because the uncontroverted evidence established conclusively that the insurer would not have issued the subject policy had the insurer been aware of the insured's omitted and mistated medical history of heart disease material to a legitimate acceptance of risk on behalf of the insurer. Taylor v. Georgia Int'l Life Ins. Co., 207 Ga. App. 341, 427 S.E.2d 833 (1993).

- When the record showed that an applicant for insurance had been hospitalized just four months prior to signing the application for treatment of chronic obstructive pulmonary disease, and that during the three years prior to the date of the application the applicant had been treated on numerous occasions by a physician for respiratory problems including asthma and bronchitis, the evidence showed that the insurer would not have issued the policy if the insurer had been aware of the applicant's extensive history of medical problems; because the evidence demanded a finding that misrepresentations were made on the application of insurance which were material as a matter of law, recovery under the policy was precluded. Smith v. Integon Life Ins. Corp., 195 Ga. App. 481, 393 S.E.2d 741 (1990).

Since the misrepresentation as to the insured's medical history about the insured's medical condition was clearly material to the risk, the trial court did not err in granting summary judgment to the insurer. Jennings v. Life Ins. Co., 212 Ga. App. 140, 441 S.E.2d 479 (1994).

Applicant's taking of medicine prescribed for a circulatory system disease constituted treatment of a circulatory disease within the meaning of an insurance application and the applicant's failure to report the treatment was a material misrepresentation. Brown v. JMIC Life Ins. Co., 222 Ga. App. 670, 474 S.E.2d 645 (1996).

- When the evidence shows that the insurer would not have issued the policy if the insurer had been aware of the true facts, the evidence demands a finding that the omissions or misrepresentations were material to the acceptance of the risk. Ga. Cas. & Sur. Co. v. Valley Wood, Inc., 336 Ga. App. 795, 783 S.E.2d 441 (2016).

- This section says nothing about stating a fact or condition which either contributes to death or hastens death's coming, but the test prescribed is increase in the risk. It is expectancy and not ultimate fact that controls; risk, not loss. Preston v. National Life & Accident Ins. Co., 196 Ga. 217, 26 S.E.2d 439 (1943) (decided under former Code 1933, § 56-908).

When although the defendant did not know that the disease or trouble with the defendant's palate was cancer, so that the defendant's answer that the defendant had never suffered with a disease denominated cancer insofar as the defendant knew, was truthful, nevertheless the evidence demanded a finding that the defendant's representation that the defendant had had no other illness except childhood illnesses was untrue, that the defendant knew that the representation was untrue, and that the misrepresentation was material. National Life & Accident Ins. Co. v. Atha, 69 Ga. App. 825, 26 S.E.2d 675 (1943) (decided under former Code 1933, § 56-904).

Misstatements may be material to risk although an insured did not die of the disease with reference to which it is contended false answers were made. Mutual Benefit Health & Accident Ass'n v. McCranie, 178 F.2d 745 (5th Cir. 1949) (decided under former Code 1933, §§ 56-820, 56-821).

- Statement in an application for reinstatement of a policy of insurance, rendered necessary by the insurance's lapse, that the insured is in "good health," is not to be construed as a warranty that the insured's health is absolutely perfect, but only that the insured's health is practically the same as it was when the policy was issued. Massachusetts Benefit Life Ass'n v. Robinson, 104 Ga. 256, 30 S.E. 918, 42 L.R.A. 261 (1898) (decided under former Civil Code 1895, § 2097).

When life insurance applicant concealed information about treatment for drug and alcohol use and the evidence is uncontroverted that this nondisclosure was material to the risk, the insurer was entitled to void the policy under the provisions of subsection (b) of O.C.G.A. § 33-24-7. Life Ins. Co. v. Helmuth, 182 Ga. App. 750, 357 S.E.2d 107, cert. denied, 182 Ga. App. 910, 357 S.E.2d 107 (1987).

Representations in the application and in the medical blank or form occupy the same status and have the same effect. Kennesaw Life & Accident Ins. Co. v. Hubbard, 106 Ga. App. 556, 127 S.E.2d 845 (1962) (decided under former Code 1933, § 56-908).

- When an applicant for life-insurance covenants in the application that the statements made to the medical examiner are true, and these statements are made a part of the contract of insurance and form the basis of the contract, any variation in any of them which is material, whereby the nature or extent or character of the risk is changed, will void the policy whether the statements are made in good faith or fraudulently. Southern States Life Ins. Co. v. Morris, 24 Ga. App. 746, 102 S.E. 179 (1920); Mutual Benefit Health & Accident Ass'n v. Bell, 49 Ga. App. 640, 176 S.E. 124 (1934) (decided under former Civil Code 1910, §§ 2479 to 2482).

Statements as to consultations with and treatment by physicians are always considered material because the means are thereby furnished for the company to check the information and good faith of the applicant as to the nature and extent of the applicant's ailments. So it is ground for cancelling a life insurance policy that insured in the application stated that the insured had not been treated by physicians for an ailment, when it appeared that six years before the insured had a condition of acute mania, had been confined in hospitals, and been treated for recurrent severe headaches. Pacific Mut. Life Ins. Co. v. Manley, 27 F.2d 915 (N.D. Ga. 1928), aff'd, 35 F.2d 337 (5th Cir. 1929) (decided under former Civil Code 1910, §§ 2479, 2480).

- While a false statement as to consultation or treatment for a slight or trivial ailment may not without more be considered as a material misrepresentation, so as to avoid the policy, yet the illness need not be shown to have been serious, the true criterion being as in case of misrepresentations as to other matters, substantial increase in risk. Preston v. National Life & Accident Ins. Co., 196 Ga. 217, 26 S.E.2d 439 (1943); Metropolitan Life Ins. Co. v. Joye, 77 Ga. App. 357, 48 S.E.2d 751 (1948) (decided under former Code 1933, §§ 56-820 to 56-822).

When the insured made a false representation as to consultation of a physician and treatment with radium for a lesion or sore on the insured's lip, known as a "keratosis" and regarded generally in the medical profession as precancerous (in that it may or may not develop into a cancer), the matter so misrepresented substantially increased the risk as contemplated in the policy, notwithstanding some of the evidence may have tended to show that the particular condition had apparently healed at the time the representation was made and had no connection with the cause of the insured's death of cancer of the mouth. Preston v. National Life & Accident Ins. Co., 196 Ga. 217, 26 S.E.2d 439 (1943) (decided under former Code 1933, §§ 56-820 to 56-822).

Failure of an application for life insurance to disclose the fact that the applicant had been treated for an ailment within the period of time mentioned in the application, to be a defense to the insurance company in an action on the policy, must be such as to substantially enhance the risk as contemplated in that particular policy; however, it need not be shown that the misrepresented facts actually or probably contributed to maturing the benefits of the policy, in whole or in part, earlier than would have been the case if the representations had been true. Metropolitan Life Ins. Co. v. Milton, 74 Ga. App. 160, 38 S.E.2d 885 (1946) (decided under former Code 1933, §§ 56-820, 56-821).

- When an insured was not an excessive drinker, and the insured's death was not caused by the insured's use of intoxicants, the insured's misstatement of the kind or quantity of liquors consumed daily, or the insured's failure to state certain facts with reference thereto not material to the risk, was no defense to the policy, nor ground for voiding the policy. Royal Union Mut. Life Ins. Co. v. Wynn, 177 F. 289 (C.C.N.D. Ga. 1910), aff'd, 185 F. 1007 (5th Cir. 1911) (decided under former Civil Code 1895, §§ 2097 to 2099).

Representation that applicant has never been rejected by any company, association, or agents is material to the risk and is not true if the applicant has withdrawn an application at the suggestion of the medical adviser and with the knowledge that the company to whom the application was made was about to reject the application. Aetna Life Ins. Co. v. Moore, 231 U.S. 543, 34 S. Ct. 186, 58 L. Ed. 356 (1913) (decided under former Civil Code 1910, § 2479).

Reply in the negative, in a signed application for life insurance, to a question whether the applicant had ever been previously rejected for life insurance or whether the applicant had ever failed to receive a contract of life insurance for the full amount and kind applied for, is a representation materially affecting the nature, extent, and character of the risk of the insurer, and will avoid the policy and contract, when the evidence is undisputed that, prior to such application, another company or association had in fact refused to issue a life insurance policy, for which the applicant for the latter policy had then applied, and that the company or association to which the applicant last applied relied upon such representation in its application. Sovereign Camp W.O.W. v. Reid, 53 Ga. App. 618, 186 S.E. 759 (1936) (decided under former Code 1933, §§ 56-820, 56-821).

- Questions in an application for insurance pertaining to prior losses and cancellation or refusal of any prior insurance are material to the risk, and false answers to such questions prevent a recovery under the policy. Brannon v. Allstate Ins. Co., 120 Ga. App. 467, 171 S.E.2d 319 (1969).

Insurance company is entitled to rescind a certificate of insurance when the application failed to disclose when asked, that a previous application for insurance had been declined. Northwestern Nat'l Life Ins. Co. v. Wood, 631 F. Supp. 22 (N.D. Ga. 1984).

- Policy of accident and health insurance will be avoided when the applicant has made in the application false statements as to matters material to the risk such as the applicant's monthly income, or the existence vel non of other insurance. Southern Sur. Co. v. Fortson, 46 Ga. App. 265, 167 S.E. 335 (1932) (decided under former Civil Code 1910, §§ 2479 to 2481).

When an insurance policy is issued, based on statements made in the written application which is attached to and made a part of the policy, and limitation is placed therein on the authority of the agent to change, waive, or modify the terms of the policy, and the insured makes an answer that no other application has been taken out or that no other policy has been issued, on the insured's life, or for injury, or for illness, when as a matter of fact another policy in another company has been issued, or another application has been taken out, the policy is void. Mutual Benefit Health & Accident Ass'n v. Marsh, 60 Ga. App. 431, 4 S.E.2d 84 (1939) (decided under former Code 1933, §§ 56-820, 56-821).

When an application contained a statement that "No application will be approved when the building or contents to be insured are already insured," the applicant's misrepresentation as to the existence of other insurance on property in question involved a material fact, thus negating the insurer's liability for loss. Washington v. Interstate Fire Ins. Co., 163 Ga. App. 15, 293 S.E.2d 485 (1982).

- In an action for recovery under a fire insurance policy, the affidavit of an insurer that the insurer would not have issued the policy if the insurer had known the truth about three previous cancellations entitled the insurer to summary judgment even though the insurer had actual knowledge of one of the cancellations as a matter of law. Graphic Arts Mut. Ins. Co. v. Pritchett, 220 Ga. App. 430, 469 S.E.2d 199 (1995).

- Supreme Court's answer to a question certified by the Court of Appeals to the effect that under a contract of fire insurance insuring several articles of personal property, and providing that "This entire policy shall be void if the interest of the insured be other than unconditional and sole ownership," if the insured did not hold title to a part of the property insured, the insured could not recover for the destruction of the property to which the insured held title on the theory that the contract was divisible, does not preclude the Court of Appeals from determining the "materiality" of the fact that the plaintiff did not hold title to some of the property, either as that term may be used to refer to representations in the contract of insurance, or to the doctrine de minimis non curat lex, if either of these principles is otherwise applicable to the facts of the case. Liverpool & London & Globe Ins. Co. v. Stuart, 193 Ga. 437, 18 S.E.2d 681 (1942) (decided under former Code 1933, § 56-821).

- Insurer improperly rescinded a directors and officers insurance policy with an insured because the insurer failed to prove that the insured made any material misrepresentation, incorrect statement, or omission, either in the application or at the sole meeting between the insured and the insurer, sufficient to satisfy O.C.G.A. § 33-24-7 or Georgia common law governing fraudulent procurement. Exec. Risk Indem. v. AFC Enters., 510 F. Supp. 2d 1308 (N.D. Ga. 2007), aff'd, 279 Fed. Appx. 793 (11th Cir. 2008).

- Misrepresentation that the property insured is not encumbered is material and falls within the provisions of this section. Globe & Rutgers Fire Ins. Co. v. Smyly, 155 Ga. 547, 117 S.E. 819, former judgment vacated, 30 Ga. App. 620, 118 S.E. 766 (1923) (decided under former Civil Code 1910, §§ 2479 to 2481).

Under a proper construction of the exclusion clause regarding the existence of prior liens, it must refer to such an encumbrance of the property as was, if not placed on the property by the applicant, at least known to the applicant, or it will not void the applicant's interest in the policy. Canal Ins. Co. v. P & J Truck Lines, 145 Ga. App. 545, 244 S.E.2d 81, overruled on other grounds, United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 248 S.E.2d 635 (1978).

- Misrepresentations by the assured, whether fraudulent or otherwise, as to the value of the property insured, but which do not in any manner affect the risk, will not, except in case of "valued" policies, avoid a policy of insurance. Rosser v. Georgia Home Ins. Co., 101 Ga. 716, 29 S.E. 286 (1897) (decided under former Civil Code 1895, §§ 2097 to 2099); Firemen's Ins. Co. v. Parmer, 51 Ga. App. 916, 181 S.E. 880 (1935);(decided under former Civil Code 1910, § 2480).

Misrepresentation by an assured as to the actual cost price of an automobile in a fire insurance policy issued thereon, when the policy provides for payment of damages to be ascertained by the actual value of the property at the time of the loss is not such a material misrepresentation as will avoid the policy. Firemen's Ins. Co. v. Parmer, 51 Ga. App. 916, 181 S.E. 880 (1935) (decided under former Civil Code 1910, § 2480).

- If an insured's application drastically misrepresented the insured's net worth and income, and plaintiff insurer's expert testified no insurer would have issued the $7 million life insurance policy for estate planning purposes had the insurer known the insured's net worth was $160,000 and income was $7,200, rescission was proper under O.C.G.A. § 33-24-7(b)(2) and the insurer was granted summary judgment against the defendants, the participants in the "estate planning" insurance program covering the deceased elderly insured. Am. Gen. Life Ins. Co. v. Schoenthal Family, L.L.C., 248 F.R.D. 298 (N.D. Ga. 2008), aff'd, 555 F.3d 1331 (11th Cir. 2009).

In a case involving O.C.G.A. § 33-24-7(b), the beneficiaries argued unsuccessfully that the life insurance company denied the claim in bad faith. The deceased's objectively material misrepresentations in the deceased's application as to the deceased's income and net worth constituted a reasonable ground for the insurance company to contest the claim, and bad faith claims failed as a matter of law if the insurer had any reasonable ground to contest the claim. Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555 F.3d 1331 (11th Cir. 2009).

- Defendant attorney's numerous and substantial payments to a credit card from the real estate closing trust account of the other defendant, the attorney's law firm, allowed plaintiff insurer to rescind its professional liability policy under O.C.G.A. § 33-24-7(b)(2) because the attorney had stated in the insurance application that the attorney knew of no circumstance that could reasonably give rise to a professional liability claim. Medmarc Cas. Ins. Co. v. Reagan Law Group, P.C., 525 F. Supp. 2d 1334 (N.D. Ga. 2007).

- When it was clear that had the insurer known that the employee leasing agreement was intended to cover the subcontractor's employees, it would not have issued the policy, such coverage was material to the risk assumed by the insurer and demanded a finding that no coverage existed, such that the insurer was not estopped to deny protection for the subcontractor's employees. American Resources Ins. Co. v. Conner, 209 Ga. App. 885, 434 S.E.2d 737 (1993).

- Misrepresentation as to the applicant's two traffic citations was material since it was the insurer's practice to decline to insure "sporty or performance" cars, such as the applicant's Porsche, when the driver was a new policy holder who had even one accident or traffic citation in the preceding five years. Haugseth v. Cotton States Mut. Ins. Co., 192 Ga. App. 853, 386 S.E.2d 725 (1989).

- In an action on a health insurance policy brought by a parent for benefits for injuries to a child, the court refused to accept, as trier of fact, an expert's opinion concerning the materiality of the representation made by the plaintiff that the plaintiff's child maintained no other health insurance. Hall v. Time Ins. Co., 663 F. Supp. 599 (M.D. Ga. 1987), rev'd on other grounds, 854 F.2d 440 (11th Cir. 1988).

Based upon an insured's material misrepresentation in the insurance application, an insurer may retrospectively void a commercial insurance policy that includes motor vehicle liability coverage as long as the cancellation of the policy does not leave an injured third party without available liability insurance in an amount equal to the minimum statutory requirements. FCCI Ins. Group v. Rodgers Metal Craft, Inc., F. Supp. 2d (M.D. Ga. July 28, 2008).

- In a case involving O.C.G.A. § 33-24-7(b), the life insurance policy beneficiaries unsuccessfully argued that the insurance company's expert's testimony was unreliable because experience alone could never form the basis for expert testimony. The district court did not abuse the court's discretion when the court determined that the expert's education and experience qualified the expert to testify as an expert about insurance industry standards since the expert had ample knowledge and experience about the subject; inter alia, the expert had obtained masters and doctoral degrees in risk management and insurance, the expert had taught classes in risk management and insurance, including underwriting in general and financial underwriting in particular at the college level, and the expert had coauthored a leading college-level textbook on life insurance that included chapters on financial underwriting. Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555 F.3d 1331 (11th Cir. 2009).

Procedure

Affirmative defense.

- Omissions in the insured's policy application was an affirmative defense that was required to be pled and, by waiting until trial to assert the defense, plaintiff waived the defense. Hamilton v. Mecca, Inc., 930 F. Supp. 1540 (S. D. Ga. 1996).

- In an insurer's declaratory judgment seeking a determination that a policy was void due to the insured's misrepresentations in the application, O.C.G.A. § 33-24-7(b), the trial court erred by, rather than simply declaring the policy void, requiring the insurer to elect whether to affirm or rescind the policy and repay the premiums if rescinding. Georgia Casualty & Surety Company v. Valley Wood, Inc., 345 Ga. App. 30, 812 S.E.2d 94 (2018).

- When the agent of an insurance company omitted to insert in a policy on a stock of general merchandise permission to the assured to keep kerosene oil and powder in the same building with such stock, parol evidence was admissible to show knowledge of such keeping by the agent. Mobile Fire Dept. Ins. Co. v. Miller, 58 Ga. 420 (1877) (decided under former Code 1867, §§ 2670 to 2672).

Evidence of notice to the company's agent that the plaintiff had a hernia was admissible, not to establish a waiver of the terms of the policy, but to meet the defense of fraudulent concealment and thereby prevent the avoidance of the whole contract. Travelers Ins. Co. v. Thornton, 119 Ga. 455, 46 S.E. 678 (1904) (decided under former Civil Code 1895, § 2099).

- Before a failure to state a material fact in an application for insurance, which is attached to and forms a part of the policy, will void the policy, the omission must have been fraudulent, and, before the concealment of such a fact as would enhance the risk will void the policy, the omission must have been willfully made by the applicant, and in a suit on a policy of insurance, when the insurer depends upon the ground of the failure of the applicant to state a material fact in the application or of the applicant's concealment of a fact which would enhance the risk, evidence is admissible which tends to show that the applicant, in failing to state such material fact, did not fail to do so fraudulently, or in concealing a fact which enhances the risk assumed by the insurer, did not do so willfully. Life & Cas. Ins. Co. v. Blackburn, 59 Ga. App. 479, 1 S.E.2d 450 (1939) (decided under former Code 1933, § 56-822).

- When an effort is made to impeach a contract of insurance upon the ground that the contract was issued in consequence of the perpetration of a fraud by the assured upon the insurer, evidence of the good character of the assured is admissible to support the assured's bona fides in the transactions. Metropolitan Life Ins. Co. v. Marshall, 65 Ga. App. 696, 16 S.E.2d 33 (1941) (decided under former Code 1933, §§ 56-821, 56-822).

- When the sole issue was whether the policy was procured by false and fraudulent statements of the applicant as to the applicant's health and previous illness and the deceased had given the company information which enabled the company to ascertain the deceased's medical history, this information could be considered by the jury on the issue of whether the deceased intended to defraud the company in taking out the policy. National Life & Accident Ins. Co. v. Bonner, 58 Ga. App. 876, 200 S.E. 319 (1938) (decided under former Code 1933, §§ 56-820 to 56-822).

- Document physically attached to the policy must also be shown to have been intended as a part of the policy, or a part of the application which is also attached to and expressly recited to be a part of the policy, before the document may be considered. Georgia Int'l Life Ins. Co. v. King, 120 Ga. App. 682, 172 S.E.2d 167 (1969); Capital City Ins. Co. v. Rick Taylor Timber Co., 918 F. Supp. 1558 (S.D. Ga. 1995), aff'd, 106 F.3d 417 (11th Cir. 1997).

- When delivery of a life insurance policy was by the company conditioned on the signing of a statement of insurability by the insured, but the statement did not purport to amend the application, and neither the application nor the contract proper made reference thereto, any question of whether the application contained a misstatement material to the risk is relevant to the question of fraud in the inception, but is not a ground for cancellation under this section. Georgia Int'l Life Ins. Co. v. King, 120 Ga. App. 682, 172 S.E.2d 167 (1969); Capital City Ins. Co. v. Rick Taylor Timber Co., 918 F. Supp. 1558 (S.D. Ga. 1995), aff'd, 106 F.3d 417 (11th Cir. 1997).

- When the application is not attached to the policy, the company may not treat the application as a part of the contract or introduce the application in evidence as such, or to show that certain statements were contracted or warranted to be true; but the company could plead and prove that the insured had made false and fraudulent statements as to the insured's health, and that the company was thus fraudulently induced to issue the policy and that the policy was therefore void, not as a matter of contract, but because of fraudulent procurement. National Life & Accident Ins. Co. v. Pollard, 66 Ga. App. 895, 19 S.E.2d 557 (1942) (decided under former Code 1933, §§ 56-820 to 56-822).

Although an unattached application cannot be admitted for the purpose of showing a breach of the contract, since the application forms no part of the contract, still, when the defense is that the policy was fraudulently procured by reason of false and fraudulent representations material to the risk, the application is admissible, not as a part of the contract, and not for the purpose of showing that the policy was void under the contract, but to show that the policy was fraudulently procured. National Life & Accident Ins. Co. v. Atha, 69 Ga. App. 825, 26 S.E.2d 675 (1943) (decided under former Code 1933, § 56-904).

- When an action was brought on a policy of life insurance containing the following provision: "If the age of the insured is incorrectly stated, the amount payable under this policy shall be the insurance which the actual premiums would have purchased at the true age of the insured," the age stated in the policy was 55 years, and the defendant pleaded fraud in the procurement of the policy, alleging that in fact the insured was more than 70 years of age, and uninsurable, it was held that the rate book of the company was admissible for the purpose of showing that there was no rate on a person 70 years of age, and that the misrepresentation was material. Johnson v. American Nat'l Life Ins. Co., 134 Ga. 800, 68 S.E. 731 (1910) (decided under former Civil Code 1895, § 2095 and former Ga. L. 1906, p. 107).

- In an action upon an insurance policy, the burden of showing that the representations made by the insured in the application were material and untrue is on the defendant, and such questions are generally issues of fact for determination by the jury. New York Life Ins. Co. v. Watson, 48 Ga. App. 211, 172 S.E. 602 (1934) (decided under former Civil Code 1910, § 2479).

Burden of showing the misrepresentations made in the application were untrue and material is upon the insurance company, when the action is defended upon the ground that the insured made misrepresentations of facts material to the risk in the application for insurance. Metropolitan Life Ins. Co. v. Milton, 74 Ga. App. 160, 38 S.E.2d 885 (1946) (decided under former Code 1933, §§ 56-820, 56-821); National Life & Accident Ins. Co. v. Camp, 77 Ga. App. 667, 49 S.E.2d 670 (1948);commented on in, see 11 Ga. B.J. 349 (1949).

- Trial court erred by dismissing husband and wife's lawsuit claiming breach of an insurance contract for failure to pay the insureds' claim because, although the husband's application for insurance contained false information, there was a question about whether the insurance company relied on that information in making the company's decision to issue an insurance policy and whether the insurance company had waived the company's right to rescind the contract. Lively v. S. Heritage Ins. Co., 256 Ga. App. 195, 568 S.E.2d 98 (2002).

- Jury was authorized to find that the insured's answer in an application for an accident insurance with reference to a previous disability from accident was true in that the evidence did not demand the finding that the disability occurred within the time mentioned in the question and that the answer was not such a material misrepresentation as would avoid the policy. National Accident & Health Ins. Co. v. Childs, 62 Ga. App. 633, 9 S.E.2d 108 (1940) (decided under former Code 1933, §§ 56-820 to 56-822).

Jury was authorized to find that the insured's untrue answer in the insured's application for accident insurance as to infirmity or deformity was not a material misrepresentation such as would avoid the policy. National Accident & Health Ins. Co. v. Childs, 62 Ga. App. 633, 9 S.E.2d 108 (1940) (decided under former Code 1933, §§ 56-820 to 56-822).

- Jury question was presented as to whether or not the conduct of the insured in making application for insurance was fraudulent, the evidence being consistent with the insured's good faith, and authorizing the finding that the insured did not knowingly and fraudulently conceal or misrepresent the insured condition in making application for insurance. Bankers Health & Life Ins. Co. v. Hamilton, 56 Ga. App. 569, 193 S.E. 477 (1937) (decided under former Ga. L. 1906, p. 107 and former Code 1933, §§ 56-821, 56-822).

When the evidence was sufficient to show that the answers given by the parent of an insured in applying for life insurance on the life of a child were made in good faith, that if the insured was afflicted with epilepsy as the insurance company contended, the parent did not know it, and that the agent who took the application was acquainted with the insured, and being in a position to get first-hand knowledge of the insured's health, gave it as the agent's opinion, both in an endorsement on the application and in the agent's testimony on the trial, that the applicant was in good health, and was a good risk, the jury was authorized to find that there was no willful concealment or fraudulent intent by the plaintiff parent. National Life & Accident Ins. Co. v. Dorsey, 69 Ga. App. 734, 26 S.E.2d 654 (1943) (decided under former Code 1933, §§ 56-820 to 56-822, 56-904).

Failure of the insured to supply information as to health problems when no inquiry is made by the insurer or the insurer's agents and neither the certificate or master policy of insurance inform the insured that certain illnesses are not covered will not raise a defense of fraud or material misrepresentation in a suit on a credit life insurance policy. Block v. Voyager Life Ins. Co., 251 Ga. 162, 303 S.E.2d 742 (1983).

- When company issued policy of industrial life insurance upon an application which contained information that the insured was 21 years of age, was six feet one inch in height, but weighed only 146 pounds, that the insured had "bronchitis", and that a certain named doctor attended the insured (the insured having told the agent of the company the insured had had "bronchiectasis" while the agent put "bronchitis" in the application, and medical testimony disclosing that the terms are usually confused and used interchangeably by laymen), and the company sought to avoid liability upon the ground of fraud in the procurement, in that the insured misrepresented the condition of the insured's health, the jury was authorized to find that the company had knowledge of the insured's physical condition, or at least had sufficient knowledge to put the company upon inquiry as to the soundness of the insured's health, and having issued the policy and received the weekly premiums, the company was estopped from deriving any benefit from a stipulation in the policy which might have availed the company if the company had been ignorant of the facts. National Life & Accident Ins. Co. v. Pollard, 66 Ga. App. 895, 19 S.E.2d 557 (1942) (decided under former Code 1933, §§ 56-820 to 56-822).

- When it is shown that a material statement made in an application for insurance was false, that the statement's falsity was known to the insured at the time the statement was made, that the statement was made with a view to procuring insurance, that the company had no notice of the statement's falsity, and that the company acted upon the statement to the company's injury, the law will conclusively presume an intent to deceive, and a case of actual fraud will be made out, although the insured may not have really intended to prejudice the rights of the company. National Life & Accident Ins. Co. v. Atha, 69 Ga. App. 825, 26 S.E.2d 675 (1943) (decided under former Code 1933, § 56-904); State Farm Mut. Auto. Ins. Co. v. Anderson, 107 Ga. App. 348, 130 S.E.2d 144; 219 Ga. 211, 132 S.E.2d 556 (1963), cert. dismissed, Hartford Accident & Indem. Co. v. Hartley, 275 F. Supp. 610 (M.D. Ga. 1967); 389 F.2d 91 (5th Cir. 1968), aff'd,.

- When the deceased drank at separate, infrequent intervals and on such occasions to excess, but was not a habitual drinker, and there was no evidence that the deceased ever drank between these "sprees," the evidence did not demand a finding that the answer "an occasional drink" to a question in the application as to what extent the deceased used intoxicants was untrue. National Life & Accident Ins. Co. v. Barnes, 61 Ga. App. 730, 7 S.E.2d 299 (1940) (decided under former Code 1933, §§ 56-820 to 56-822).

- When uncontroverted facts show misstatements or materially fraudulent concealment in answer to questions in an application for life insurance, a verdict in favor of the insurer must be rendered. Mutual Benefit Health & Accident Ass'n v. McCranie, 178 F.2d 745 (5th Cir. 1949) (decided under former Code 1933, §§ 56-820, 56-821).

- Trial court properly granted summary judgment to the insured on the insurer's counterclaim for rescission because the insurer offered no explanation for why the insurer failed to announce the insurer's intent to rescind the policies until December 2013, in response to the insured's suit filed against the insurer and Georgia law is clear that if a party to a contract seeks to avoid the contract on the ground of fraud or mistake, the party must, upon discovery of the facts, at once announce their purpose and adhere to the purpose. American Safety Indemnity Co. v. Sto Corp., 342 Ga. App. 263, 802 S.E.2d 448 (2017).

- Although an application for workers' compensation insurance incorrectly stated that the employees did not travel out of state or perform any work above 15 feet, and the insurer claimed the insurer would not have issued the policy if the application had been correct, the insurer waived the insurer's void policy defense under O.C.G.A. § 33-24-7 when, upon discovering the inaccuracies, the insurer told the employer that coverage would continue for 90 days, and a claim occurred during that period. Grange Mutual Casualty Company v. Bennett, 350 Ga. App. 608, 829 S.E.2d 834 (2019), cert. denied, No. S19C1418, 2020 Ga. LEXIS 32 (Ga. 2020).

- When an insured was in apparent good health at the time of applying for insurance, but died of tuberculosis some six and one-half months thereafter, it was a question for the jury whether the insured was in sound health at the time of the issuance of the policy. National Life & Accident Ins. Co. v. McKenney, 52 Ga. App. 466, 183 S.E. 659 (1936) (decided under former Code 1933, §§ 56-820 to 56-822).

Statements made in an application for life insurance will not, if false, void the policy issued thereon, unless the statements were material and operated to change the nature or character of the risk. This materiality, when not indisputably established by the evidence, is a matter for determination by a jury. Metropolitan Life Ins. Co. v. Marshall, 65 Ga. App. 696, 16 S.E.2d 33 (1941) (decided under former Code 1933, §§ 56-820 to 56-822); Metropolitan Life Ins. Co. v. Milton, 74 Ga. App. 160, 38 S.E.2d 885 (1946);(decided under former Code 1933, §§ 56-820 to 56-822).

When the deceased, who was illiterate in 1932 stayed in the hospital two days, and was dismissed with a diagnosis of hypertension, arteriosclerosis, and mild diabetes which could be controlled by treatment, but was hard working and active, and enjoyed good health during the time between the two-day stay at the hospital in 1932 and the spring of 1940, under the circumstances the question whether the deceased willfully and fraudulently procured an insurance policy in May 1939 by a representation which was known by the deceased to be false, was a question for the jury. National Life & Accident Ins. Co. v. Boyd, 66 Ga. App. 722, 19 S.E.2d 210 (1942) (decided under former Code 1933, §§ 56-820 to 56-822).

Issue as to material misrepresentation is ordinarily a matter for jury determination. Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883, 176 S.E.2d 103 (1970).

With respect to the issue of the materiality of the misrepresentation of no illness or diseases on an insurance application, it is proper to submit such a question to a jury when there is a conflict of evidence as to whether a child's illness or disease had been in existence at the time the application was filled out. United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 248 S.E.2d 635 (1978).

When it is not clear from the evidence whether a child had been taken to a physician or physicians for nonroutine medical attention, i.e., treatment for illness or disease, the issues of the falsity and materiality of a representation that one had not, on an insurance application, are properly submitted to the jury. United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 248 S.E.2d 635 (1978).

As a rule, the question of materiality of the misrepresentation is one for the jury. Only when the evidence excludes every reasonable inference except that the misrepresentations were material should the court determine materiality on the court's own. Nappier v. Allstate Ins. Co., 766 F. Supp. 1166 (N.D. Ga. 1991), aff'd, 961 F.2d 168 (11th Cir. 1992).

- Truth and materiality of representations are generally questions of fact for determination by the jury; but when all the testimony relating to a question of fact excludes every reasonable inference but one, the issue becomes an issue of law for determination by the court. Phenix Ins. Co. v. Fulton, 80 Ga. 224, 4 S.E. 866 (1887) (decided under former Code 1867, §§ 2670 to 2672); Empire Life Ins. Co. v. Jones, 14 Ga. App. 647, 82 S.E. 62 (1914); Connecticut Mut. Life Ins. Co. v. Mulkey, 142 Ga. 358, 82 S.E. 1054 (1914) (decided under former Civil Code 1910, §§ 2479 to 2481); Mutual Life Ins. Co. v. Bolton, 22 Ga. App. 566, 96 S.E. 442 (1918); Stansall v. Columbian Nat'l Life Ins. Co., 27 Ga. App. 537, 109 S.E. 297 (decided under former Civil Code 1910, §§ 2479 to 2481); 27 Ga. App. 836 (1921); 32 Ga. App. 87, 122 S.E. 733 (1924) (decided under former Civil Code 1910, §§ 2479 to 2481); Jefferson Std. Life Ins. Co. v. Henderson, 37 Ga. App. 704, 141 S.E. 498 (1928); Phillips v. New York Life Ins. Co., 173 Ga. 135, 159 S.E. 696 (1931), cert. denied, Mutual Benefit Health & Accident Ass'n v. Marsh, 60 Ga. App. 431, 4 S.E.2d 84 (1939), later appeal,(decided under former Civil Code 1910, §§ 2479 to 2481);for comment, see 1 Ga. L. Rev. No. 3, p. 53 (1929);(decided under former Civil Code 1910, §§ 2479 to 2481);(decided under former Code 1933, §§ 56-820, 56-821).

Whether misrepresentations are material is ordinarily a question for the jury, but when the evidence excludes every reasonable inference except that they were material, no issue is presented upon that point for determination by the jury. Bankers Health & Life Ins. Co. v. Glisson, 61 Ga. App. 583, 7 S.E.2d 32 (1940) (decided under former Code 1933, §§ 56-820 to 56-822); Jefferson Std. Life Ins. Co. v. Bridges, 147 Ga. App. 5, 248 S.E.2d 5 (1978); United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 248 S.E.2d 635 (1978); Bailey v. Interstate Life & Accident Ins. Co., 155 Ga. App. 65, 270 S.E.2d 287 (1980);.

Issue as to material misrepresentation should ordinarily be submitted to the jury; yet, when the evidence as a whole excludes every reasonable inference but one, the court may so rule as a matter of law. Preston v. National Life & Accident Ins. Co., 196 Ga. 217, 26 S.E.2d 439 (1943) (decided under former Code 1933, §§ 56-820 to 56-822).

Issue as to material misrepresentations in an insurance application, like questions as to negligence, proximate cause, and similar matters, should ordinarily be submitted to the jury. Only when the evidence as a whole excludes every reasonable inference but one may the court so rule as a matter of law. Gilham v. National Life & Accident Ins. Co., 104 Ga. App. 459, 122 S.E.2d 164 (1961).

- Insured's representation that the insured was of good health, when an incorrect statement, is ground for granting an insurer's motion for summary judgment. Bridges v. World Serv. Life Ins. Co., 134 Ga. App. 923, 216 S.E.2d 714 (1975) (but see United Family Life Ins. Co. v. Shirley, 144 Ga. App. 722, 242 S.E.2d 274 (1978)).

- Whether an agent's actions in indicating to the insured that the insured only had to sign and not fill in an insurance application were sufficiently misleading to allow an insured to escape the consequences of the agent's insertion of untruthful answers on an application was a question of fact not susceptible to summary judgment. O'Kelly v. Southland Life Ins. Co., 167 Ga. App. 455, 305 S.E.2d 873 (1983).

- It would not be harmful to the insurer to give in charge a part or all of this section when the sole defense is actual fraud. Interstate Life & Accident Co. v. Bess, 35 Ga. App. 723, 134 S.E. 804 (1926) (decided under former Civil Code 1910, §§ 2479 to 2481).

- To sustain a charge of fraud as to answers made in an application for insurance which is not attached to the policy the proof must be clear, cogent, convincing and certain, and it was not error for the trial court to charge the jury accordingly. Gulf Life Ins. Co. v. Moore, 90 Ga. App. 791, 84 S.E.2d 696 (1954) (decided under former Code 1933, §§ 56-820 to 56-822).

- It was not error for the court to charge the jury that if the agent of the company had actual knowledge that the insured was pregnant at the time of her application the plaintiff could recover despite the fact that she misrepresented the fact of her pregnancy, when evidence, if credible, authorized the finding that the insured's condition and appearance showed that she was pregnant. National Life & Accident Ins. Co. v. Fischel, 62 Ga. App. 645, 9 S.E.2d 192 (1940) (decided under former Code 1933, §§ 56-820 to 56-822).

- In the absence of facts constituting waiver or estoppel, an insurance policy is voided by a willful misrepresentation of a material fact in an application for insurance made with a view to obtaining a policy of insurance, which is acted upon by an insurance company in issuing a policy, even though the applicant for the insurance did not make the misrepresentation for the purpose of prejudicing the rights of the insurance company; hence, a charge making intention to defraud prerequisite to the voiding of the policy was error. National Life & Accident Ins. Co. v. Fischel, 62 Ga. App. 645, 9 S.E.2d 192 (1940) (decided under former Code 1933, §§ 56-820 to 56-822).

Insurer was not entitled to summary judgment under paragraph (b)(3) of O.C.G.A. § 33-24-7 because the insurer failed to present any evidence showing that the insurer would not have issued a policy if the insurer had known of a misrepresentation by the insured regarding a prior cancellation. Nappier v. Allstate Ins. Co., 766 F. Supp. 1166 (N.D. Ga. 1991), aff'd, 961 F.2d 168 (11th Cir. 1992).

Rescission under paragraph (b)(3) of O.C.G.A. § 33-24-7(b)(3) was inappropriate in an action against the defendants, the participants in an "estate planning" insurance program covering the deceased elderly insured, because one of the plaintiff insurer's experts used contradictory underwriting standards regarding testimony that the policy would not have been issued if the truth regarding the insured's financial condition had been known. Am. Gen. Life Ins. Co. v. Schoenthal Family, L.L.C., 248 F.R.D. 298 (N.D. Ga. 2008), aff'd, 555 F.3d 1331 (11th Cir. 2009).

RESEARCH REFERENCES

Am. Jur. 2d.

- 44 Am. Jur. 2d, Insurance, § 1007 et seq.

- Insurance: incorrect statement of age, 1 A.L.R. 459; 160 A.L.R. 295.

Insurance: effect of violation of warranty or condition of sole and unconditional ownership as regards one or more of several items of property covered by policy, 5 A.L.R. 808.

Statements by applicant for life insurance as to use of intoxicating liquor, 26 A.L.R. 1279.

Effect on insurance of mere failure to disclose encumbrance on property, 28 A.L.R. 801.

Applicability of statute limiting effect of representations and warranties in contract of insurance, to provision that policy shall not take effect unless delivered to assure while in good health, 29 A.L.R. 656.

Effect of erroneous designation of beneficiary of insurance as "wife,", 32 A.L.R. 1481.

Construction and effect of statute specifically directed against securing life insurance by fraud or upon life of person not in insurable condition, 40 A.L.R. 624.

Criterion of health for purposes of warranty or condition in insurance contract, 40 A.L.R. 662; 100 A.L.R. 362.

Right of insurer to insist upon representations not in fact made by insured nor incorporated in the application when signed by him, 43 A.L.R. 527.

Materiality, in application for accident insurance, of statements as to other insurance or indemnity thereunder, 55 A.L.R. 742.

Insurance: warranties and conditions precedent distinguished, 59 A.L.R. 611.

Avoidance of renewed fire policy for breach of warranty or representation first made in original application or policy, 62 A.L.R. 823.

Insurance: misrepresentation or nondisclosure not clearly otherwise material to the risk, but which influenced or might have influenced insurer in accepting risk as within statutory or policy provision exonerating insured from effect of misrepresentations other than those material to or increasing the risk, 73 A.L.R. 304.

Admissibility as against the beneficiary of life or accident insurance of statements or declarations by the insured outside his application, 86 A.L.R. 146.

Provisions of insurance policy as to watchman, and warranties and representations in that regard, 87 A.L.R. 1074.

Binding effect of application not signed by insured, 91 A.L.R. 1127.

Disability feature of insurance contract as subject of rescission apart from life insurance feature, 91 A.L.R. 1470.

Noncompliance with statutory requirement that insurance policy contain entire contract, or that application be attached incorporated in, endorsed upon, or delivered with, the policy as affecting right of insurer to show initial fraud or misrepresentation by insured, 93 A.L.R. 374.

Representations and warranties in credit insurance, 97 A.L.R. 1468.

Continued acceptance of insurance premiums or dues as basis of waiver of, or estoppel to assert, misrepresentation or breach affected by alternative obligation which survived misrepresentation or breach, 101 A.L.R. 1138.

Materiality of false representation, in application for policy of insurance, as to whether applicant has consulted physicians, 131 A.L.R. 617.

Opinion or expert testimony as to materiality of misrepresentation in application for insurance or as to increased risk or as to practice or usage of insurance companies regarding acceptance or rejection of certain class of risk, 135 A.L.R. 411.

Age adjustment clause of policy as affected by incontestable clause or statute against avoidance of policy because of misrepresentation, 135 A.L.R. 445.

Impairment of insured's health or physical condition not contributing to his death or disability as affecting insurer's liability, 148 A.L.R. 912.

Misstatement in description of automobile as affecting automobile policy, 149 A.L.R. 531.

Insurance: misstatement as to income of insured, 150 A.L.R. 1364.

Construction and application of provision of statute designed to prevent avoidance of automobile liability policy by reason of violation of its exclusions or conditions, or other terms, 1 A.L.R.2d 822.

Waiver of, or estoppel to assert, provision of policy respecting location of personal property covered thereby, 4 A.L.R.2d 868.

Judgment avoiding indemnity or liability policy for fraud as barring recovery from insurer by or on behalf of third person, 18 A.L.R.2d 891.

Misrepresentation by applicant for automobile liability insurance as to ownership of vehicle as material to risk, 33 A.L.R.2d 948.

Materiality of false statements by applicant for automobile insurance as to license revocations or suspensions or traffic violations, 89 A.L.R.2d 1027.

Obligee's concealment or misrepresentation concerning previous defalcation as affecting liability on fidelity bond or contract, 4 A.L.R.3d 1197.

Misrepresentation or misstatement as to insured's marital status, or as to his relationship to beneficiary, as ground for avoiding liability under life insurance policy, 14 A.L.R.3d 931.

Fraud, false swearing, or other misconduct of insured as affecting right of innocent mortgagee or loss payee to recover on property insurance, 24 A.L.R.3d 435.

Reformation of property insurance policy to correctly identify the person or interest insured, 25 A.L.R.3d 580.

Reformation of property insurance policy to correctly identify property insured, 25 A.L.R.3d 1232.

Insured's responsibility for false answers inserted by insurer's agent in application following correct answers by insured, or incorrect answers suggested by agent, 26 A.L.R.3d 6.

Insured's statement, in application for life or health insurance or its reinstatement, that he is in good health, as absolute representation of, or more statement of his good-faith belief in, his good health, 26 A.L.R.3d 1061.

Insured's misrepresentation or misstatement as to his name or marital status as ground for avoiding liability insurance, 27 A.L.R.3d 849.

What constitutes "serious illness," "serious disease," or equivalent language used in insurance application, 28 A.L.R.3d 1255.

Representations as to age or identity of persons who will drive vehicle, or as to extent of their relative use, as avoiding coverage under automobile insurance policy, 29 A.L.R.3d 1139.

Modern status of rules regarding materiality and effect of false statement by insurance applicant as to previous insurance cancellations or rejections, 66 A.L.R.3d 749.

Automobile insurance: concealment or nondisclosure of physical defects or conditions as avoiding coverage, 72 A.L.R.3d 804.

Misrepresentation or concealment by insured or agent avoiding liability by title insurer, 17 A.L.R.4th 1077.

Rescission or cancellation of insurance policy for insured's misrepresentation or concealment of information concerning human immunodeficiency virus (HIV), acquired immunodeficiency syndrome (AIDS), or related health problems, 15 A.L.R.5th 92.

Negligent misrepresentation as "accident" or "occurrence" warranting insurance coverage, 58 A.L.R.5th 483.

Rescission of directors' and officers' liability insurance policy, 29 A.L.R.6th 189.