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Liar, Liar, Pants on Fire – Fraud Do not pay



The verdict's verdict is usually honored by court of law. Juries usually make a correct decision based on evidence presented to the referee. However, jury may be fooled to reach a verdict against an insured insurer who claims that they are disadvantaged or need mercy. For this reason, the trial judge is entitled under the law to conclude them, regardless of the judge's judgment in order to avoid fair crime.

Julius and Eva Sesztak against Great Northern Insurance Co., Inc., and Walter B. Howe Agency, Inc., Doc. A-2846-15T4, Supreme Court of the New Jersey Appellate Division (November 14, 2018), the referee jury found the wrong and issued a verdict despite the jury in favor of the insurer and the broker.

FACTS

The plaintiff is married. In 1

972, they bought a home in Montgomery Township. In 2004, the couple bought the adjacent property where they built a large, single-family house. The home was completed in August 2008.

In 2008, the applicants received a loan from Hudson City Savings Bank (HCSB). In the loan application, the plaintiff lied to the mortgage for the dwelling where they lived and other properties owned.

The applicants had state-owned land insurance company (state farm) homeowners policy in place on two properties.

Main owners policy only covers the property owners' main residence. When State Farm discovered that it insured both homes, the company forced the prosecutors to declare which house was their main residence. Eva explained one as the couple's main residence. As a result, the state farm interrupted the household policy for the second effective June 10, 2010.

According to the testimony, the risk of property damage greatly increases when a home is not an owner, as vacant housing has a higher experience of property loss and damage from fire, pipe break and vandalism . In addition, tenants do not take as much interest in protecting their homes as homeowners, which increases the risk of loss when renting a home. As a result, the premiums for occupied or rented housing are higher than those charged by an owner's main residence.

Eve visited Howe, an insurance broker with whom the plaintiffs had a professional relationship and met Howe's vice president, Bradley Keith. She testified that she told Keith that she and her husband did not live in the house, but were planning to move there in September 2010 or later in the fall. Keith's notes from the meeting, however, indicate several times that the property was the complainant's main place.

On September 17, 2010, Keith contacted as a complainant's agent a GNIC representative to request the disclosure of a homeowner's policy. Based on Eve's representations, Keith told the GNIC representative that the home was the complainant's main place and not rented or vacant.

On November 8, 2010, a GNIC assessor inspected the property. Eve was present during the inspection and said that the house was the complainant's main place. The inspector did not see any personal effects in the house. She testified that the home was unheated and seemed to be for sale, as the limited furniture looked in place for buyers. She concluded that the plaintiff did not live there.

In addition, the inspector found that the house was under insured, as the $ 1.5 million in coverage was well below the house value of approximately $ 3.225 million. The inspector confirmed that Eva told her that she did not want to raise the coverage because she only needed to cover home mortgage.

The inspector reported her finding to GNIC, which took immediate action to cancel the policy. On November 19, 2010, GNIC issued a notice of termination on December 24, 2010 at 12:01

On December 17, 2010, seven days prior to the GNIC policy expiration date, a fire was destroyed for an indefinite reason the house. In a sworn statement as proof of loss, Eve stated that the property was "owner" at the time of the fire. In addition, Eva responded during the investigation that, in October 2010, he answered flawlessly that ninety percent of the plaintiff's clothes and shoes were at the fireplace along with eighty percent of his toiletries, towels and other personal items.

On February 15, 2012, GNIC denied the complainant's claim and abolished and abolished the policy ab initio after the investigation had determined that the plaintiffs received the policy through fraudulent distortion and made incorrect data on material facts during the investigation. GNIC returned the contributions paid by the plaintiff to the policy. Although the policy was lifted, GNIC was obliged to give HCSB, the innocent mortgage, $ 1 400 033.36 to pay the debt on the plaintiff's mortgage. GNIC took up an assignment of the mortgage loan from HCSB.

Applicants voted for GNIC. GNIC claims counterclaim against the plaintiff to terminate the policy based on fair fraud, legal and common legal fraud. improper enrichment and repayment for GNIC's payment of the plaintiff's mortgage to HCSB; and violation of the New Jersey Insurance Fraud Prevention Act. Howe claimed compensation against GNIC for grants, compensation and contractual compensation based on an agency agreement.

The case was tried before a jury. The jury found against GNIC on its counter-claims for fair fraud, unfair enrichment and violation of NJIFPA. In view of Howe, the jury found that the plaintiffs proved that they were negligent and awarded them $ 1,000,000 in damages.

The trial granted the respondents' motions and took them in favor of the defendants on all claims against them, despite the verdict. The Court of First Instance changed the judgment, upon application by GNIC, to add a judgment in favor of GNIC for repayment due to its unauthorized enrollment claim of USD 1 400 033.36, the amount paid by GNIC to HCSB plus interest and to confirm the GNIC: s right to keep the loan and mortgage loan received from HCSB.

ANALYSIS

A party who opposes a claim for suspension of a contract based on fair fraud is not entitled to a jury attempt. In order to terminate an insurance agreement on the basis of fair fraud, a party must:

  • substantively distort a current or past fact
  • the intention of the manufacturer for the other party to invoke the distorted perception; and
  • harmful addiction to the other party.

Unlike legal fraud, to cancel an insurance policy under fair fraud, an insurer does not need to prove that the insured knew the fake and intended to fool. Even an innocent distortion can constitute a fair fraud that justifies recall.

The termination elements must be established with clear and convincing evidence.

The evidence in the trial record clearly shows that Eve's false and misleading statements to GNIC through her agent Howe meet the elements of fair fraud. The evidence shows overwhelming Eve's representation that her residence is fake.

In the morning of the fire, Eva spoke to Keith by telephone. According to Keith's notes, she acknowledged that the plaintiff did not own the property that they had a bed and some furniture in the house. Eve's distortions were essential. It is undisputed that GNIC would not have issued a homeowner policy to the plaintiff if it had been informed that the house was vacant and listed for sale or rent.

In view of GNIC's right to terminate the policy, the Court of First Instance found that the jury's verdict in favor of the plaintiffs for their infringement of contractual claims against GNIC and negligence against Howe could not stand.

As Eve's misrepresentations were void the owners' policy, reasonable minds could not differ as to whether GNIC broke the contract. Any contractual obligations GNIC may have had to bring an action against the fair right of cancellation.

Eve's version of the events, when retrieving household policy, was a major distortion that the plaintiff would soon make the property of his primary residence. This false statement, which aims to obtain insurance coverage at a premium that is lower than would be applicable to a vacant home, gave GNIC the opportunity to issue the policy. As a result, the applicant received coverage for a risk that exceeds the risk that their premiums were expected to cover. There is no reasonable way to interpret the evidence to conclude that the plaintiffs were entitled to this coverage even though they violated the policy's concealment and fraud.

GNIC was guilty according to "homeowner's policy to pay HCSB, an innocent mortgage, $ 1 400 033.36. This obligation arose because of the applicant's material misrepresentations to GNIC when retrieving homeowners' policies.

Eva filed the application about the insurance and the production of a claim. The jury, perhaps feeling sad for her and her husband, went into a verdict that simply did not match the evidence presented during the trial. The court was required to terminate the verdict and allow the insurer to take over the mortgage and recover the money they had to pay the lender. If the mortgage is not paid, the insurer can shield the property. In the case it is determined that a lie to an insurer on essential facts – even if a jury does not care and makes a verdict against the insurer – will not stand .


© 2018 – Barry Zalma

This article and all blog entries on this page, melt and summarize cases published by the courts of the various states and the United States. The court decisions have been modified from the court's real language, condensed to facilitate reading and convey the views of the author in each case.

Barry Zalma, Esq., CFE, now limits its practice to service as an insurance consultant specializing in insurance coverage, insurance management, the declaration of bad faith and insurance fraud almost the same for insurers and policyholders. He also serves as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance and law firm and more than 50 years in the insurance industry. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual magazine Magazine / ACE Legend Award.

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