§431:10-209 Warranties, misrepresentations in applications. All statements or descriptions in any application for an insurance policy or in negotiations therefor, by or on behalf of the insured, shall be deemed to be representations and not warranties. A misrepresentation shall not prevent a recovery on the policy unless made with actual intent to deceive or unless it materially affects either the acceptance of the risk or the hazard assumed by the insurer. [L 1987, c 347, pt of §2]

Case Notes

A misrepresentation need only relate to the insurer's decision to insure the risk. 26 F.3d 957 (1994).

Insured's failure to disclose prior prescription drug abuse, prior psychiatric treatments and previous claim for disability benefits were material for purposes of insurer's policy rescission action. 26 F.3d 957 (1994).

Where plaintiffs contended that their breach of marine insurance policy's captain warranty qualified as a "misrepresentation" within the meaning of this section, this provision applied only to statements or descriptions in an application for an insurance policy or in negotiations therefor. 281 F.3d 803 (2002).

Insured's misrepresentation of smoking history on life insurance policy application was material within meaning of this section such that recovery on policy was barred. 795 F. Supp. 1036 (1992).

Insurer entitled to rescind disability policy under this section where insured's application contained misrepresentations material to risk assumed by insurer in its decision to issue the policy. 820 F. Supp. 1241 (1993).

No summary judgment where insurer failed to show there was no genuine issue of material fact as to whether insured would have been denied insurance if insured's application made insurer aware of insured's previous losses. 80 H. 491 (App.), 911 P.2d 126 (1996).