Jay M. Feinman (Rutgers Law School) has posted Policyholder Misrepresentation in Insurance Claims (Connecticut Insurance Law Journal, Vol. 29, No. 1, 2022) on SSRN. Here is the abstract:
Intentional misrepresentation by a policyholder in a proof of claim or a related claim document can provide an insurer with a defense against coverage under the policy—the “false swearing” rule. This article summarizes the rule and situates it within the broader landscape of both the claims process and the range of responses to insurance fraud. It then suggests the proper contours of the rule and the applicable standard of proof: the false swearing rule should require reliance by the insurer and proof by clear and convincing evidence. This article also addresses the broader problem of agency and opportunism in insurance claims by both the insured and insurer, arguing that the insurer’s conduct in asserting fraud should be evaluated by a reasonableness standard.
