§431:10A-105  Required provisions.  Except
as provided in section 431:10A-107, each policy of accident and health or
sickness insurance delivered or issued for delivery to any person in this State
shall contain the provisions set forth below.  These provisions shall be in the
words in which they appear below; provided that the insurer may substitute
corresponding provisions of different wording approved by the commissioner that
are 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 by
such appropriate individual or group captions or subcaptions as the
commissioner may approve.  The provisions are as follows:



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



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



(i)  After three years from the date of issue of
this policy no misstatements, except fraudulent misstatements, made by the
applicant in the application for this policy shall be used to void this policy
or 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 issue
of this policy shall be reduced or denied on the ground that a disease or
physical condition not excluded from coverage by name or specific description
effective on the date of loss had existed prior to the effective date of
coverage of this policy."



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



(C)  A policy that the insured has the right to
continue in force subject to its terms by the timely payment of premium until
at least age fifty or, in the case of a policy issued after age forty-four, for
at 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 be
omitted at the insurer's option):  "Incontestable:  After this policy has
been 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 become
incontestable 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 for
monthly premium policies, and thirty-one for all other policies) days will be
granted 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 cancellation
provision may add at the end of the above provision:  "subject to the
right of the insurer to cancel in accordance with the cancellation
provision."



(C)  A policy in which the insurer reserves the
right to refuse any renewal shall have at the beginning of the above
provision:  "Unless not less than thirty days prior to the premium due
date the insurer has delivered to the insured or has mailed to the insured's
last address as shown by the records of the insurer written notice of its
intention not to renew this policy beyond the period for which the premium has been
accepted."



(4)  (A)  "Reinstatement:  If any renewal
premium is not paid within the time granted the insured for payment, a
subsequent acceptance of premium by the insurer or by any agent duly authorized
by the insurer to accept the premium, without requiring in connection therewith
an application for reinstatement, shall reinstate the policy; provided that if
the insurer or agent requires an application for reinstatement and issues a
conditional receipt for the premium tendered, the policy shall be reinstated
upon approval of the application by the insurer or, lacking approval, upon the
forty-fifth day following the date of conditional receipt unless the insurer
has previously notified the insured in writing of its disapproval of the
application.  The reinstated policy shall cover only loss resulting from
accidental injury as may be sustained after the date of reinstatement and loss
due to sickness as may begin more than ten days after that date.  In all other
respects the insured and insurer shall have the same rights as they had under
the policy immediately before the due date of the defaulted premium, subject to
any provisions endorsed hereon or attached hereto in connection with the
reinstatement.  Any premium accepted in connection with the reinstatement shall
be applied to a period for which premium has not been previously paid, but not
to any period more than sixty days prior to the date of reinstatement."



(B)  The last sentence in subparagraph (A) may
be omitted from any policy that the insured has the right to continue in force
subject to its terms by the timely payment of premiums until at least age fifty
or, in the case of a policy issued after age forty-four, for at least five
years from its date of issue.



(5)  (A)  "Notice of Claim:  Written notice of
claim must be given to the insurer within twenty days after the occurrence or
commencement of any loss covered by the policy, or as soon thereafter as is
reasonably possible.  Notice given by or on behalf of the insured or the
beneficiary to the insurer at (insert the location of the office as the insurer
may designate for the purpose) or to any authorized agent of the insurer, with
information sufficient to identify the insured, shall be deemed notice to the
insurer."



(B)  In a policy providing a loss of time
benefit that may be payable for at least two years, an insurer may at its
option insert the following between the first and second sentences in
subparagraph (A):  "Subject to the qualification set forth below, if the
insured suffers loss of time on account of disability for which indemnity may
be payable for at least two years, the insured shall, at least once in every
six months after having given notice of claim, give to the insurer notice of
continuance of the disability, except in the event of legal incapacity.  The
period of six months following any filing of proof by the insured or any
payment by the insurer on account of the claim or any denial of liability in
whole or in part by the insurer shall be excluded in applying this provision.  Delay
in giving notice shall not impair the insured's right to any indemnity which
would otherwise have accrued during the period of six months preceding the date
on which notice is actually given."



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



(7)  "Proofs of Loss:  In case of claim for loss
for which this policy provides any periodic payment contingent upon continuing
loss, written proof of loss must be furnished to the insurer at its office
within ninety days after the termination of the period for which the insurer is
liable, and in case of claim for any other loss within ninety days after the
date of loss.  Failure to furnish proof of loss within the time required shall
not invalidate nor reduce any claim if it was not reasonably possible to give
proof within the time required, provided proof is furnished as soon as
reasonably 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:  Indemnities
payable under this policy for any loss other than loss for which this policy
provides any periodic payment will be paid immediately upon receipt of due
written proof of loss.  Subject to due written proof of loss, all accrued
indemnities for loss for which this policy provides periodic payment will be
paid (insert period for payment which must not be less frequently than monthly)
and any balance remaining unpaid upon the termination of liability will be paid
immediately upon receipt of due written proof."



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



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



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



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



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



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



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



(B)  The first clause of subparagraph (A),
relating to the irrevocable designation of beneficiary, may be omitted at the
insurer's option. [L 1987, c 347, pt of §2; am L 1993, c 205, §22; am L 2002, c
155, §52; am L 2004, c 122, §31]



 



Case Notes



 



  Paragraphs (2)(A) and (C) liberally construed to prevent
disability insurer from excluding coverage of insured's total disability due to
HIV 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 denying
insured "total disability benefit" contracted for, notwithstanding
that HIV infection that caused the disability arguably "manifested"
itself prior to policy's effective date of coverage.  86 H. 262, 948 P.2d 1103.