24 May 2019 09:30
Even if it has not yet received a diagnosis or treatment, in an individual who takes out an insurance policy should not omit anything of his health condition to his insurance company, just to remind the Court of Québec, small claims division.
The decision gives reason to SSQ Insurance, which had refused to compensate one of its customers because it had not just revealed on its respiratory condition at the time where it had adhered to a policy of group disability insurance.
The man had submitted a proposal for insurance on November 19, 2011. To the question : “Have you ever been treated for, exhibited symptoms, or been diagnosed for a problem in the respiratory system, including sleep apnea ? “, he had replied “no”. He had also answered in the negative if he had been aware of any symptoms for which he had not yet consulted a doctor, received treatment or been advised to undergo tests. On the basis of the information provided, the insurer had agreed to insure.
He had consulted in the past
However, two weeks before its request to SSQ, he had consulted his family physician because he had started to snore. This doctor had noted on the file that the sleep apnea was resolved after a consultation with an ENT specialist. On 14 December, after he had submitted his proposal for insurance, it was recommended to review the ENT specialist and have a polysomnography test.
It is only after you have passed the test that he learned in January 2012 that he was suffering from severe sleep apnea.
At a date which is not mentioned in the judgment, the man had claimed disability benefits from his insurer. SSQ has refused, citing the fact that he had made false declarations at the time of joining the police. The client was then sued in small claims Court.
The decision of the Court
In its decision, rendered in march last, the judge Virgile Buffoni has recognized that, at the time of the insurance proposal, the applicant had been neither “treated” nor “diagnosed” sleep apnea. However, added the tribunal, the claimant had presented symptoms of the disease.
According to the Court, the question 6 (b) of the insurance proposal does not present any ambiguity. It was the responsibility of the applicant to respond adequately and accurately to the question, without regard to his perception of her true state of health. In addition, adds the magistrate, the applicant could not be unaware of the November 19, 2011 when its membership application was that his doctor had prescribed him two weeks instead of spending a polysomnography test because of its symptoms. In addition, the January 23, 2012, during the signing of the Amendment to the proposal and declaration of solvency, the applicant has not claimed to have spent the psg on 19 December 2011.
“The applicant could not therefore sign the declaration of insurability, since there had been a change in its state of health, insists the judge Buffoni. This change would have affected the insurability of the risk significantly, since, according to the evidence, the defendant would have refused to accept the risk. “
A representative of SSQ testified that, under the Guide of the defendant to the risk selection that was in force in 2011, she reportedly refused to provide a sleep apnea as “severe” as in suffered this man, but would have accepted to sleep apnea, “light”, or sleep apnea, “moderate” for an additional premium.
Reasons for rejection
To reject the action of the insured, the magistrate relied on article 2408 of the civil Code of Québec, which requires the adherent of a policy of insurance to the following requirement : “The taker, the insured if the insurer so requests, shall be required to declare any circumstances known to him which are of a nature to significantly influence an insurer in setting the premium, the appraisal of the risk or the decision to accept it, but it is not required to report the circumstances that the insurer knows or is presumed to know by reason of their fame, except in response to the questions asked.”
Under another article of the civil Code, 2410, false statements, and the reluctance of the policyholder or the insured to prove the circumstances lead to the nullity of the contract, even in respect of those claims not associated with the risk so misrepresented, recalls the judge. Even if the diagnosis had not yet been made, the fact that the information provided by the applicant were inadequate and inaccurate justified according to the decision of SSQ to cancel retroactively the coverage of disability and refund the premiums received.