Friday, March 28, 2008

Split Widened: Is a Clear Statement Required to Avoid the Application of the Doctrine of Uberrimae Fidei?

Per PHL Variable Ins. Co. v. Fulbright McNeill, Inc., 2008 WL 795063 (8th Cir. Mar. 27, 2008).

Seriously? The Circuits have issued ten decisions total using the term ‘uberrimae fidei’ in the last five years, including three in the last month. Perhaps the doctrine truly is “on everyone’s lips,” as Judge Kozinski suggested a week ago. In this decision, a divided Eighth Circuit panel applies to the doctrine to life insurance contracts, finding that the claimant violated a continuing duty to disclose while his application for coverage was pending. The contract itself made no mention of such a continuing duty and only provided limited bases for recission. Nonetheless, the panel, over a dissent, revokes the contract and holds that the policy language is not clear enough to avoid the application of the doctrine of uberrimae fidei, or of the most abundant good faith. In so holding, it widens the split between the CA 9 and CA 11 previously discussed here.

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