“A representation or concealment of a 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.”
How later courts described this case
- “A representation or concealment of a 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.”
- “The obligation to deal fairly and honestly rests equally upon the insurer and the insured.”
Written by the judges who cited it.
The opinion
MOISE, Justice (dissenting).
In my view, it is impossible to find a material distinction between the facts in this case and those in Tsosie v. Foundation Reserve Insurance Company, 77 N.M. 671 , 427 P.2d 29 , decided this date, and accordingly I am unable to justify a result here directly contrary to that reached.in Tsosie. Neither do I see. any basis for overruling findings that the misrepresentations relied on were not material. This was a question of fact to be resolved by the trier of the facts, Mayflower Ins. Exch. v. Gilmont, 280 F.2d 13 , 89 A.L.R.2d 1019 (1960), and not to be reversed by us unless unsupported by substantial evidence. Gilmer v. Gilmer, 77 N.M. 137 , 419 P.2d 976 (1966) ; Pack v. Read, 77 N.M. 76 , 419 P.2d 453 (1966).
The majority having concluded otherwise, I respectfully dissent.
CHAVEZ, C. J., concurs.