§431:10A-105  Required provisions.  Exceptas provided in section 431:10A-107, each policy of accident and health orsickness insurance delivered or issued for delivery to any person in this Stateshall contain the provisions set forth below.  These provisions shall be in thewords in which they appear below; provided that the insurer may substitutecorresponding provisions of different wording approved by the commissioner thatare in each instance not less favorable in any respect to the insured or the beneficiary. The provisions shall be preceded individually by the specified caption, or bysuch appropriate individual or group captions or subcaptions as thecommissioner may approve.  The provisions are as follows:

(1)  "Entire Contract; Changes:  This policy,including the endorsements and the attached papers, if any, constitutes theentire contract of insurance.  No change in this policy shall be valid untilapproved by an executive officer of the insurer and unless the approval isendorsed on or attached to this policy.  No agent has authority to change thispolicy or to waive any of its provisions."

(2)  (A)  "Time Limit on Certain Defenses:

(i)  After three years from the date of issue ofthis policy no misstatements, except fraudulent misstatements, made by theapplicant in the application for this policy shall be used to void this policyor to deny a claim for loss incurred or disability (as defined in the policy)commencing after the expiration of the three-year period.

(ii)  No claim for loss incurred or disability(as defined in the policy) commencing after three years from the date of issueof this policy shall be reduced or denied on the ground that a disease orphysical condition not excluded from coverage by name or specific descriptioneffective on the date of loss had existed prior to the effective date ofcoverage of this policy."

(B)  The policy provision set forth insubparagraph (A)(i) shall not be construed to affect any legal requirement foravoidance of a policy or denial of a claim during the initial three-yearperiod, nor to limit the application of section 431:10A-106(1) through (4) inthe event of misstatement with respect to age or occupation or other insurance.

(C)  A policy that the insured has the right tocontinue in force subject to its terms by the timely payment of premium untilat least age fifty or, in the case of a policy issued after age forty-four, forat least five years from its date of issue, may contain in lieu of subparagraph(A)(i) the following provision (from which the clause in parentheses may beomitted at the insurer's option):  "Incontestable:  After this policy hasbeen in force for a period of three years during the lifetime of the insured(excluding any period during which the insured is disabled), it shall becomeincontestable as to the statements contained in the application."

(3)  (A)  "Grace period:  A grace period of(insert a number not less than seven for weekly premium policies, ten formonthly premium policies, and thirty-one for all other policies) days will begranted for the payment of each premium falling due after the first premium,during which grace period the policy shall continue in force."

(B)  A policy that contains a cancellationprovision may add at the end of the above provision:  "subject to theright of the insurer to cancel in accordance with the cancellationprovision."

(C)  A policy in which the insurer reserves theright to refuse any renewal shall have at the beginning of the aboveprovision:  "Unless not less than thirty days prior to the premium duedate the insurer has delivered to the insured or has mailed to the insured'slast address as shown by the records of the insurer written notice of itsintention not to renew this policy beyond the period for which the premium has beenaccepted."

(4)  (A)  "Reinstatement:  If any renewalpremium is not paid within the time granted the insured for payment, asubsequent acceptance of premium by the insurer or by any agent duly authorizedby the insurer to accept the premium, without requiring in connection therewithan application for reinstatement, shall reinstate the policy; provided that ifthe insurer or agent requires an application for reinstatement and issues aconditional receipt for the premium tendered, the policy shall be reinstatedupon approval of the application by the insurer or, lacking approval, upon theforty-fifth day following the date of conditional receipt unless the insurerhas previously notified the insured in writing of its disapproval of theapplication.  The reinstated policy shall cover only loss resulting fromaccidental injury as may be sustained after the date of reinstatement and lossdue to sickness as may begin more than ten days after that date.  In all otherrespects the insured and insurer shall have the same rights as they had underthe policy immediately before the due date of the defaulted premium, subject toany provisions endorsed hereon or attached hereto in connection with thereinstatement.  Any premium accepted in connection with the reinstatement shallbe applied to a period for which premium has not been previously paid, but notto any period more than sixty days prior to the date of reinstatement."

(B)  The last sentence in subparagraph (A) maybe omitted from any policy that the insured has the right to continue in forcesubject to its terms by the timely payment of premiums until at least age fiftyor, in the case of a policy issued after age forty-four, for at least fiveyears from its date of issue.

(5)  (A)  "Notice of Claim:  Written notice ofclaim must be given to the insurer within twenty days after the occurrence orcommencement of any loss covered by the policy, or as soon thereafter as isreasonably possible.  Notice given by or on behalf of the insured or thebeneficiary to the insurer at (insert the location of the office as the insurermay designate for the purpose) or to any authorized agent of the insurer, withinformation sufficient to identify the insured, shall be deemed notice to theinsurer."

(B)  In a policy providing a loss of timebenefit that may be payable for at least two years, an insurer may at itsoption insert the following between the first and second sentences insubparagraph (A):  "Subject to the qualification set forth below, if theinsured suffers loss of time on account of disability for which indemnity maybe payable for at least two years, the insured shall, at least once in everysix months after having given notice of claim, give to the insurer notice ofcontinuance of the disability, except in the event of legal incapacity.  Theperiod of six months following any filing of proof by the insured or anypayment by the insurer on account of the claim or any denial of liability inwhole or in part by the insurer shall be excluded in applying this provision.  Delayin giving notice shall not impair the insured's right to any indemnity whichwould otherwise have accrued during the period of six months preceding the dateon which notice is actually given."

(6)  "Claim Forms:  The insurer, upon receipt ofa notice of claim, will furnish to the claimant the forms, that are usuallyfurnished by it for filing proofs of loss.  If the forms are not furnishedwithin fifteen days after the giving of notice the claimant shall be deemed tohave complied with the requirements of this policy as to proof of loss uponsubmitting, within the time fixed in the policy for filing proofs of loss,written proof covering the occurrence, the character, and the extent of theloss for which claim is made."

(7)  "Proofs of Loss:  In case of claim for lossfor which this policy provides any periodic payment contingent upon continuingloss, written proof of loss must be furnished to the insurer at its officewithin ninety days after the termination of the period for which the insurer isliable, and in case of claim for any other loss within ninety days after thedate of loss.  Failure to furnish proof of loss within the time required shallnot invalidate nor reduce any claim if it was not reasonably possible to giveproof within the time required, provided proof is furnished as soon asreasonably possible and in no event, except in the absence of legal capacity,later than fifteen months from the time proof is otherwise required."

(8)  "Time of Payment of Claims:  Indemnitiespayable under this policy for any loss other than loss for which this policyprovides any periodic payment will be paid immediately upon receipt of duewritten proof of loss.  Subject to due written proof of loss, all accruedindemnities for loss for which this policy provides periodic payment will bepaid (insert period for payment which must not be less frequently than monthly)and any balance remaining unpaid upon the termination of liability will be paidimmediately upon receipt of due written proof."

(9)  (A)  "Payment of Claims:  Indemnity forloss of life will be payable in accordance with the beneficiary designation andthe provisions respecting payment which may be prescribed herein and effectiveat the time of payment.  If no designation or provision is then effective, theindemnity shall be payable to the estate of the insured.  Any other accruedindemnities unpaid at the insured's death may, at the option of the insurer, bepaid either to the designated beneficiary or to the estate of the insured.  Allother indemnities will be payable to the insured."

(B)  The following provisions, or either ofthem, may be included with the provision set forth in subparagraph (A) at theoption of the insurer:

(i)  "If any indemnity of this policy shallbe payable to the estate of the insured, or to an insured or beneficiary who isa minor or otherwise not competent to give a valid release, the insurer may paythe indemnity, up to an amount not exceeding $2,000 to any relative by blood orconnection by marriage of the insured or beneficiary who is deemed by theinsurer to be equitably entitled thereto.  Any payment made by the insurer ingood faith pursuant to this provision shall fully discharge the insurer to theextent of the payment."

(ii)  "Subject to any written direction ofthe insured in the application or otherwise all or a portion of any indemnitiesprovided by this policy on account of hospital, nursing, medical, or surgicalservices may, at the insurer's option and unless the insured requests otherwisein writing not later than the time of filing proofs of loss, be paid directlyto the hospital or person rendering the services; but it is not required thatthe service be rendered by a particular hospital or person."

(10)  "Physical Examinations and Autopsy:  Theinsurer at its own expense shall have the right and opportunity to examine theperson of the insured when and as often as it may reasonably require during thependency of a claim hereunder and to make an autopsy in case of death where itis not forbidden by law."

(11)  "Legal Actions:  No action at law or inequity shall be brought to recover on this policy prior to the expiration ofsixty days after written proof of loss has been furnished in accordance withthe requirements of this policy.  No action at law or in equity shall bebrought after the expiration of three years after the time written proof ofloss is required to be furnished."

(12)  (A)  "Change of Beneficiary:  Unless theinsured makes an irrevocable designation of beneficiary, the right to change ofbeneficiary is reserved to the insured and the consent of the beneficiary orbeneficiaries shall not be requisite to surrender or assignment of this policyor to any change of beneficiary or beneficiaries, or to any other changes inthis policy."

(B)  The first clause of subparagraph (A),relating to the irrevocable designation of beneficiary, may be omitted at theinsurer's option. [L 1987, c 347, pt of §2; am L 1993, c 205, §22; am L 2002, c155, §52; am L 2004, c 122, §31]

 

Case Notes

 

  Paragraphs (2)(A) and (C) liberally construed to preventdisability insurer from excluding coverage of insured's total disability due toHIV infection based on contractual provisions. 86 H. 262, 948 P.2d 1103.

  Under this article and paragraph (2)(A)(ii), standard"incontestability clause" of contract precluded insurer from denyinginsured "total disability benefit" contracted for, notwithstandingthat HIV infection that caused the disability arguably "manifested"itself prior to policy's effective date of coverage.  86 H. 262, 948 P.2d 1103.