Question 1. This question is for LUCY, Esq. Please lock after discussing. When you are ready to discuss this NEW question, please let me know. I have my question prepared.
State/Country relating to question: California
Reading the FRAP-ping rules.
Hi,Sorry for the delay, I was out this afternoon. I'm ready when you are.
This question is for LUCY, Esq.
I need help understanding a Motion to Certify A Question. In my appeal, I would like to file this type of motion so as to have the Appellate Court guided by California law. Here is the question I would propose: Does an insurer waive the want or imperfection of an incomplete application and render any omission to answer more fully immaterial when an applicant distinctly implies information but the insurer neglects to make inquiries and issues a policy?
As I understand it, Cal. Ins.Code § 336 distinctly implies insurers are charged with knowledge of general information that might affect the material perils contemplated in providing coverage to insureds.
What constitutes “knowledge of general information that might affect the material perils contemplated in providing coverage to insureds?” For instance, do multiple “YES” responses to questions inquiring about an applicant’s belief there may be potential claims pending constitute “general knowledge?”
Cal. Ins. Code, Section 336 says "The right to information of material facts may be waived, either (a) by the terms of insurance or (b) by neglect to make inquiries as to such facts, where they are distinctly implied in other facts of which information is communicated." That's saying that, if someone fails to ask questions when they should have, they can't complain later that they didn't have the facts. Section 335 says "Each party to a contract of insurance is bound to know: (a) All the general causes which are open to his inquiry equally with that of the other, and which may affect either the political or material perils contemplated. (b) All the general usages of trade." So, they're saying that a person is considered to know things that he had the ability to know. There may be an argument there that, where an applicant to an insurance policy answers "yes" to multiple questions on the application, and the insurer doesn't inquire at all, the insurer cannot complain about the lack of knowledge, and may have that knowledge imputed to him, based on the fact that he could have inquired and didn't. I think that's what you're asking, but if I've misunderstood, please let me know.
No, you’re ‘dead on.’
In my case, the trier of fact seems to rely exclusively upon Section 335 - a person is considered to know things that he had the ability to know. But this is an objective/subjective assessment (I’m unclear which is which) and the trial court did not allow me further discovery or interrogatories of the applicant to reveal their state of mind regarding what they may, or may not have known, about two events the trier of fact used “20/20 hindsight” to casually connect to my eventual claim against the policy.
Objective is just the facts. Subjective has some room for interpretation. It still sounds like the judge made a mistake in not allowing the discovery, unless he felt that there was no information the other side could possibly provide to give you a case.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).