Fundamental Legal Principles Chapter 9 Fundamental Legal Principles

Agenda Principle of Indemnity Principle of Insurable Interest Principle of Subrogation Principle of Utmost Good Faith Requirements of an Insurance Contract Distinct Legal Characteristics of Insurance Contracts Law and the Insurance Agent

Principle of Indemnity The insurer agrees to pay no more than the actual amount of the loss Purpose: To prevent the insured from profiting from a loss To reduce moral hazard

Principle of Indemnity (Continued) In property insurance, indemnification is based on the actual cash value (ACV) of the property at the time of loss There are three main methods to determine actual cash value: Replacement cost less depreciation Fair market value is the price a willing buyer would pay a willing seller in a free market Broad evidence rule means that the determination of ACV should include all relevant factors an expert would use to determine the value of the property

Principle of Indemnity (Continued) There are some exceptions to the principle of indemnity: A valued policy pays the face amount of insurance if a total loss occurs Some states have a valued policy law that requires payment of the face amount of insurance to the insured if a total loss to real property occurs from a peril specified in the law Replacement cost insurance means there is no deduction for depreciation in determining the amount paid for a loss A life insurance contract is a valued policy that pays a stated sum to the beneficiary upon the insured’s death

Principle of Insurable Interest Transparency Master 1.2 Principle of Insurable Interest The insured must be in a position to lose financially if a covered loss occurs Purposes: To prevent gambling To reduce moral hazard To measure the amount of the insured’s loss An insurable interest can be supported by: Ownership of property Potential legal liability Serving as a secured creditor Contractual rights

Principle of Insurable Interest (Continued) When must insurable interest exist? Property insurance: at the time of the loss Life insurance: only at inception of the policy The question of insurable interest does not arise when you purchase life insurance on your own life Insurable interest in another person’s life can be shown by close family ties, marriage, or a pecuniary (financial) interest

Principle of Subrogation Substitution of the insurer in place of the insured for the purpose of claiming indemnity from a third party for a loss covered by insurance. Purpose: To prevent the insured from collecting twice for the same loss To hold the negligent person responsible for the loss To hold down insurance rates

Principle of Subrogation (Continued) The insurer is entitled only to the amount it has paid under the policy The insured cannot impair the insurer’s subrogation rights Subrogation does not apply to life insurance contracts The insurer cannot subrogate against its own insureds

Principle of Utmost Good Faith A higher degree of honesty is imposed on both parties to an insurance contract than is imposed on parties to other contracts Supported by three legal doctrines: Representations Concealment Warranty

Principle of Utmost Good Faith (Continued) Representations are statements made by the applicant for insurance A contract is voidable if the representation is material, false, and relied on by the insurer Material means that if the insurer knew the true facts, the policy would not have been issued, or would have been issued on different terms Reliance means that the insurer relies on the misrepresentation in issuing the policy at a specified premium An innocent misrepresentation of a material fact, if relied on by the insurer, makes the contract voidable

Principle of Utmost Good Faith (Continued) A concealment is intentional failure of the applicant for insurance to reveal a material fact to the insurer To deny a claim based on concealment, a nonmarine insurer must prove: The concealed fact was known by the insured to be material The insured intended to defraud the insurer

Principle of Utmost Good Faith (Continued) A warranty is a statement that becomes part of the insurance contract and is guaranteed by the maker to be true in all respects Statements made by applicants are considered representations, not warranties Most courts interpret a breach of warranty liberally State statutes allow the insured to recover for a loss unless the breach of warranty actually contributed to the loss

Requirements of an Insurance Contract To be legally enforceable, an insurance contract must meet four requirements: Offer and acceptance of the terms of the contract Exchange of Consideration – the value that each party gives to the other Competent parties, with legal capacity to enter into a binding contract The contract must exist for a legal purpose

Distinct Legal Characteristics of Insurance Contracts Transparency Master 1.2 Distinct Legal Characteristics of Insurance Contracts An insurance contract is: Aleatory: values exchanged are not equal Unilateral: only the insurer makes a legally enforceable promise Conditional: policyowner must comply with all policy provisions to collect for a covered loss Personal: property insurance policy cannot be validly assigned to another party without the insurer's consent A contract of adhesion: the insured must accept the entire contract with all of its terms and conditions

Distinct Legal Characteristics of Insurance Contracts (Continued) Courts have ruled that any ambiguities or uncertainties in the contract are construed against the insurer. The principle of reasonable expectations states that an insured is entitled to coverage under a policy that he or she reasonably expects it to provide, regardless of policy provisions.

Law and the Insurance Agent An agent is someone who has the authority to act on behalf of a principal (the insurer) Several laws govern the actions of agents and their relationship to insureds There is no presumption of an agency relationship An agent must be authorized to represent the principal A principal is responsible for the acts of agents acting within the scope of their authority Limitations can be placed on the powers of agents

Law and the Insurance Agent (Continued) An agent’s authority comes from three sources: Express authority Implied authority Apparent authority Knowledge of the agent is presumed to be knowledge of the principal with respect to matters within the scope of the agency relationship Insurers can place limitations on the power of agents by adding a nonwaiver clause to the application or policy

Law and the Insurance Agent (Continued) The doctrines of waiver and estoppel may require an insurer to pay a claim that it ordinarily would not have to pay Waiver is defined as the voluntary relinquishment of a known legal right Estoppel is the loss of a legal defense because of previous actions that are now inconsistent with that defense