Further Thoughts About Insurance Misrepresentation Cases
By Don Judges · October 9, 2010 · 2010 Ark. L. Notes
In categories: Insurance Law
The task of undertaking to draft jury instructions for a statutory cause of action or defense, and thus the need to articulate elements and consider their application, can highlight questions latent in the statutory text and interpretive case law. This point certainly applies to Arkansas Code Annotated Section 23-79-107, concerning misrepresentations, omissions, concealment of facts, and incorrect statements (which for the sake of convenience I shall refer to collectively and somewhat imprecisely as “misrepresentations”) in statements made in applications or negotiations for life, accident, or health insurance policies or annuity contracts. There currently are no Arkansas Model Jury Instructions regarding insurance misrepresentation, even though such cases have long been tried to juries and instructions have been the focus of litigation. At least two questions arise. The first is whether and when such cases properly may be tried to juries at all. The second involves the application of subsection 107(c), the causation element. I take a somewhat different approach to the causation issue than does Professor Sampson’s article in this volume.