§ 3105. Representations by the insured. (a) A representation is a
statement as to past or present fact, made to the insurer by, or by the
authority of, the applicant for insurance or the prospective insured, at
or before the making of the insurance contract as an inducement to the
making thereof. A misrepresentation is a false representation, and the
facts misrepresented are those facts which make the representation
false.

(b)(1) No misrepresentation shall avoid any contract of insurance or
defeat recovery thereunder unless such misrepresentation was material.
No misrepresentation shall be deemed material unless knowledge by the
insurer of the facts misrepresented would have led to a refusal by the
insurer to make such contract.

(2) With respect to a policy of hospital, medical, surgical, or
prescription drug expense insurance subject to articles thirty-two or
forty-three of this chapter, no misrepresentation shall avoid any
contract of insurance or defeat recovery thereunder unless the
misrepresentation was also intentional.

(c) In determining the question of materiality, evidence of the
practice of the insurer which made such contract with respect to the
acceptance or rejection of similar risks shall be admissible.

(d) A misrepresentation that an applicant for life or accident and
health insurance has not had previous medical treatment, consultation or
observation, or has not had previous treatment or care in a hospital or
other like institution, shall be deemed, for the purpose of determining
its materiality, a misrepresentation that the applicant has not had the
disease, ailment or other medical impairment for which such treatment or
care was given or which was discovered by any licensed medical
practitioner as a result of such consultation or observation. If in any
action to rescind any such contract or to recover thereon, any such
misrepresentation is proved by the insurer, and the insured or any other
person having or claiming a right under such contract shall prevent full
disclosure and proof of the nature of such medical impairment, such
misrepresentation shall be presumed to have been material.