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Explaining The Equitable Remedy and Insurance 

https://zalma.com/blog

Rescission is an equitable remedy as ancient as the common law of  Britain.  When the United States was conceived in 1776 the founders were concerned  with protecting their rights under British common law. They adopted it  as the law of the new United States of America modified only by the  limitations placed on the central government by the U.S. Constitution  approved in 1789.  The viability and ability to enforce contracts was recognized as  essential to commerce. Courts of law were charged with enforcing  legitimate contracts. Courts of equity were charged with protecting  contracting parties from mistake, fraud, misrepresentation and  concealment since enforcing a contract based on mistake, fraud,  misrepresentation or concealment would not be fair.  The common law developed rules that courts could follow to refuse to  enforce the terms of a contract that was entered into because of mutual  mistake of material fact, a unilateral mistake of material fact, the  breach of warranty (a presumptively material promise to do or not do  something), a material concealment, or a material misrepresentation. The  remedy \\u2013 called rescission \\u2013 created a method to apply fairness to the  insurance contract and allow an insurer to void a contract and allowed  courts to refuse to enforce such a contract entered into by  misrepresentation or concealment of material facts.  Before making a decision to rescind, the claims investigator and the  insurer should seek the advice of competent insurance coverage counsel  for an opinion based upon the investigation and the law of the  jurisdiction where the policy was made or where it was made to be  performed, and, if counsel believes it necessary, the examination under  oath of the insured.   \\xa9 2021 \\u2013 Barry Zalma  Barry Zalma, Esq., CFE, now limits his practice to service as an  insurance consultant specializing in insurance coverage, insurance  claims handling, insurance bad faith and insurance fraud almost equally  for insurers and policyholders. He also serves as an arbitrator or  mediator for insurance related disputes. He practiced law in California  for more than 44 years as an insurance coverage and claims handling  lawyer and more than 52 years in the insurance business. He is available  at http://www.zalma.com and zalma@zalma.com.  Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE  Legend Award.  Over the last 53 years Barry Zalma has dedicated his life to insurance,  insurance claims and the need to defeat insurance fraud. He has created  the following library of books and other materials to make it possible  for insurers and their claims staff to become insurance claims  professionals.  Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma;  Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library \\u2013 https://zalma.com/blog/insurance-claims-library/ Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts; and the last two issues of ZIFL at https://zalma.com/zalmas-insurance-fraud-letter-2/  podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4