2019 New Mexico Statutes
Chapter 59A - Insurance Code
Article 18 - The Insurance Contract
Section 59A-18-11 - Representation in application.
A. The insured shall not be bound by any statement made in an application for a policy unless a copy of such application is attached to or endorsed on the policy when issued as a part thereof. If any such policy delivered or issued for delivery to any person in this state shall be reinstated or renewed and the insured or the beneficiary or assignee of such policy shall make written request to the insurance company for a copy of the application, if any, for such reinstatement or renewal, the insurance company shall within fifteen days after the receipts of such request at its home office or any branch office of the insurance company, deliver or mail to the person making such request, a copy of such application. If such copy shall not be so delivered or mailed, the insurance company shall be precluded from introducing such application as evidence in any action or proceeding based upon or involving such policy or its reinstatement or renewal.
B. No alteration of any written application for any such policy shall be made by any person other than the applicant without his written consent, except that insertions may be made by the insurance company, for administrative purposes only, in such manner as to indicate clearly that such insertions are not to be ascribed to the applicant.
C. The falsity of any statement in the application for any policy covered by this Code may not bar the right to recovery thereunder unless such false statement materially affected either the acceptance of the risk or hazard assumed by the insurance company.
History: Laws 1984, ch. 127, § 341.
ANNOTATIONSMaterial misrepresentation renders policy voidable. — The general rule, and the rule consistent with principles of contract and the duty of fair dealing, which is the duty imposed upon both the insurer and the insured, is that if misrepresentations be made, or information withheld, and such be material to the contract, then regardless of whether the party acted fraudulently, negligently or innocently, the insurer is entitled to void the policy, in the absence of waiver or estoppel. Modisette v. Foundation Reserve Ins. Co., 1967-NMSC-094, 77 N.M. 661, 427 P.2d 21.
Regardless of intent. — Action for death benefit under certificate of fraternal benefit insurance was defeated by fact that insured, being then pregnant and afterward dying as result thereof, falsely, though innocently, warranted in application for insurance that she was not pregnant. Vigil v. American Ins. Union, 1932-NMSC-065, 37 N.M. 44, 17 P.2d 936.
Representation or concealment of fact is material if it operates as an inducement to the insurer to enter into the contract, where, except for such inducement, it would not have done so, or would have charged a higher premium. Modisette v. Foundation Reserve Ins. Co., 1967-NMSC-094, 77 N.M. 661, 427 P.2d 21.
When it is determined that the insurer's conduct would not have been altered in either accepting the risk, or in the premium that would have been charged, the conclusion follows that the policy should not be cancelled for fraud. Tsosie v. Foundation Reserve Ins. Co., 1967-NMSC-095, 77 N.M. 671, 427 P.2d 29.
Effect of insurer's agent's misstatement. — Insurer is not relieved from liability by reason of misstatements as to health of insured in application made out by insurer's agent and signed by insured without reading, though copy of application, as required by statute, is attached to policy when delivered, and was not read by insured. Griego v. New York Life Ins. Co., 1940-NMSC-029, 44 N.M. 330, 102 P.2d 31.
Effect of agent's disregard of information. — Aside from any question which may be present as to the effect of the failure of insurer's agent to make further inquiry to avoid being misled, the agent's disregard of the information that was given may properly be considered by the court in determining the issue of materiality and reliance. Tsosie v. Foundation Reserve Ins. Co., 1967-NMSC-095, 77 N.M. 671, 427 P.2d 29.
Materiality is factual question. — The question of materiality or reliance by the defendant ordinarily is for the trier of facts, and the burden of proof is on the insurance company. Tsosie v. Foundation Reserve Ins. Co., 1967-NMSC-095, 77 N.M. 671, 427 P.2d 29.
Knowledge prerequisite to waiver or estoppel. — An insurer may waive its right to assert a forfeiture, or be estopped from asserting this right. Before an insurer can be held to have waived, or be estopped from asserting a right of forfeiture, it must have had knowledge of the facts. Modisette v. Foundation Reserve Ins. Co., 1967-NMSC-094, 77 N.M. 661, 427 P.2d 21.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Insured's statement, in application for life or health insurance or its reinstatement, that he is in good health, as absolute representation of, or mere statement of, his good faith belief in his good health, 26 A.L.R.3d 1061.
