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66 - Insurance Planning and Risk Management (2) Actual cash value This arrangement ensures enforcement of the principle of indemnity because the insured is generally not reimbursed by being provided with new property as a replacement for old property (3) Subrogation The common law doctrine of subrogation gives the insurer whatever rights the insured possessed against the responsible third parties This means that if you are injured by someone else and your health insurance pays the bills, your insurer has the right to sue the person who injured you to be paid back before you can collect anything from that party 2 Insurable interest Insurance is issued only if the applicant has an insurable interest in the subject matter being insured For example, a homeowner has an insurable interest in his or her home because he or she would suffer a nancial loss if the home were damaged or destroyed 3 Contract requirements For a valid contract to exist, ve elements must exist: offer and acceptance, genuine assent, adequate consideration, capacity, and legality (See Topic 18 for a complete discussion on contracts) 4 Contract characteristics A Characteristics of insurance contracts (1) An insurance contract is a personal contract This means that the policy is personal to the insured With the exception of life insurance, it may not be assigned to anyone else without the approval of the insurer (2) Insurance contracts are unilateral Under the terms of a unilateral contract, only one party can be forced to comply with the contract Under the terms of a bilateral contract, both parties make promises that are legally enforceable Insurance contracts are unilateral (3) An insurance contract is a contract of adhesion The insured can accept or reject the contract only as written Thus, the policy is not drawn up through negotiations (4) Insurance contracts are aleatory contracts An aleatory contract is one in which one party may receive bene ts greatly in excess of the bene ts to be received by the other party An insurance contract is aleatory because the insured may receive bene ts far in excess of the premium paid (5) Insurance contracts are also contracts of utmost good faith If the information provided by the applicant is false or incomplete, the insurer may be able to void the contract on grounds of breach of warranty, misrepresentation, or concealment B Other characteristics within the legal framework of insurance contracts (1) Misrepresentation is a false statement If a misrepresentation is intentional and material, it is usually basis for voiding the contract For life insurance policies, the misrepresentation must be discovered within the one- or two-year contestable period (2) Warranty is a statement made by one party to a contract, which, if untrue, renders the policy voidable by the other party Representation is information given that is true to the best of the individual s knowledge Courts generally hold that insurance contracts may not be voided because of a breach of warranty or misrepresentation unless the violation was material and/or increased the risk that contributed to the loss Such decisions are obviously more favorable for the insured (3) Concealment is the failure to disclose known material information Information is material if it would have led the insurer to make a different nderwriting decision had the withheld information been known Intentional concealment (intent to defraud the insurer) is grounds for voiding the contract.



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Topic 23: Legal Aspects of Insurance - 67 (4) Estoppel prevents one from denying a fact if the fact was admitted to be true by previous actions If one party to a contract waives its right to enforce a part of the contract, and the other party relies on that waiver, the rst party is prevented (estopped) from enforcing it later (5) Rescission An insurance policy may be rescinded if one party can prove that the other party misrepresented material nformation in the preparation or negotiation of the insurance contract (6) Reformation is the changing of an existing contract, not the creation of a new one It is done when both parties agree to change the new contract from what was originally intended (7) Conditional The insurance company is obligated to pay a claim on the condition that a covered loss is sustained C Categories for analyzing insurance contracts (1) Declarations are factual statements identifying the speci c person, property, or activity being insured and the parties to the insurance transaction (2) The de nitions section of the policy is an explanation of the key policy terms (3) The insuring agreement is the heart of the insurance policy This agreement(s) spells out the basic premise of the insurance company An example is an agreement to pay the face amount of the policy in the event of the insured s death (4) Exclusions are items that the insurer does not intend to cover A practical result of exclusions is to hold down the premium cost of coverage for policy owners (5) Conditions The insuring agreement is a quali ed promise that is enforceable only if the policy owner ful lls the conditions that are spelled out in the policy An example of these conditions is timely payment of premiums (6) Policy continuation One of the most important miscellaneous provisions of a policy relates to the right of the owner to continue coverage These policy renewal provisions fall into ve categories: (a) Noncancelable This gives the policy owner the right to renew the coverage at each policy anniversary date, and future rates in the coverage are guaranteed in the contract itself (b) Guaranteed renewable Like a noncancelable policy, a guaranteed renewable policy gives the policy owner the right to renew the coverage at each policy anniversary date, but the insurer does not guarantee future rates for the coverage (c) Nonrenewable for stated reasons only These policies often qualify as guaranteed renewable, but allow the insurer to refuse to renew the policy for conditions speci cally listed in the policy (d) Optional renewable This gives the insurer the unilateral right to refuse to renew a policy at the end of any period for which premiums have been paid (e) Cancelable A few property and liability policies are cancelable during the period for which premiums have been paid (7) Valuation of losses Another type of miscellaneous provision concerns a required sharing in the amount of the loss by the insured For example, deductibles are common in homeowners insurance, auto insurance, and medical expense insurance (8) Endorsements and riders An endorsement or, in life insurance, a rider is a provision added to the policy, generally for an extra premium charge As a general legal principle, whenever the wording in an endorsement or rider con icts with the terms of the policy to which it is attached, the endorsement or rider takes precedence.

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