The following excerpt is from Hyland v. Millers Nat. Ins. Co., 91 F.2d 735 (9th Cir. 1937):
I believe this contention is correct. In Insurance Companies v. Weides, 81 U.S.(14 Wall.) 375, 377, 20 L.Ed. 894, the policies required the insured to submit to an examination under oath by any person appointed by the companies, and provided that: "All fraud, or attempt at fraud, or false swearing on the part of the assured, shall cause a forfeiture of all claim under this policy." The court said (14 Wall. 375, at page 382, 20 L. Ed. 894): "It is true the policies stipulated that fraud or false swearing on the part of the assured should work a forfeiture of all claim under them. The false swearing referred to is such as may be in the submission of preliminary proofs of loss, or in the examination to which the assured agreed to submit. But it does not inevitably follow from the fact that there was a material discrepancy between the statements made by the plaintiffs under oath in their proofs of loss, and their statements when testifying at the trial that the former were false, so as to justify the court in assuming it, and directing verdicts for the defendants. It may have been the testimony last given that was not true, or the statements made in the proofs of loss may have been honestly made, though subsequently discovered to be mistaken. It is only fraudulent false swearing in furnishing the preliminary proofs, or in the examinations which the insurers have a right to require, that avoids the policies, and it was for the jury to determine whether that swearing was false and fraudulent." (Italics ours.) There is no substantial difference between the false swearing provision in that case, and the ones here in question, and therefore the latter, in so far as here material, apply only to the proofs of loss.
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