Reassessing Accountability and Sophistication of Insured in Insurance Misrepresentation: Lessons and Implications for Taiwan

Abstract This paper argues that the “necessity of protection” should be seriously considered when evaluating the effect of misrepresentation, but a substantial criterion or a formal standard with rebuttable and substantial exception is recommended. The weakness of insured is a key characteristic in insurance law. This feature leads to the typical idea that the insured should deserve more protection in insurance contract. However, the necessity of protection may vary in different types of insurance and occasions. Thus, many jurisdictions use consumer or business insurance, sophisticated or unsophisticated insured and similar standard to differentiate the levels of protection for insured. For misrepresentation, one of the most important issue in insurance law, many jurisdictions also use this criterion in designing misrepresentation’s elements and consequences. This paper aims to find justification for this standard theoretically and empirically for Taiwan. The paper starts with the general discussion for distinguishing consumer insurance and business insurance. Then, the focus will be moved on to misrepresentation, especially about the distinction between consumer insurance and business insurance, and its effect on misrepresentation’s elements and consequences. Afterwards, this paper argues the inefficiency of the bright-rule for evaluating the necessity of protection and the distinction between business insurance and consumer insurance. Empirical evidence is also provided to assess the effects of elements in Taiwan. Finally, the study proposes that a substantial criterion or a bright-line rule which can be rebutted by substantial evidence may be a more proper and efficient model.