dissenting.
I dissent from the Majority Opinion since its result is based upon the contract of insurance which is clearly not subject to an interpretation on appeal. Contractually, the clause relied upon by the Majority is one commonly used in reference to information given for the application of insurance. It has absolutely nothing to do with claims of losses. The clause is as follows:
Concealment or Fraud. This entire policy shall be void if any insured has intentionally concealed or misrepresented any material fact or cireumstance relating to this insurance.
Policy, p. 12, Record p. 23. The use of the past tense further emphasizes the clear and unambiguous intent of the clause. Words like "loss" or "claim'" are noticeably absent. Too, there is no change in the tense from past to future.
In the cases relied upon by the Majority, there is a noticeable difference. Upon an examination of the contract of insurance in Chaachou v. Amer'n Central Ins. Co. (5th *680Cir.1957), 241 F.2d 889, the clause actually reads:
This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance,.... (Emphasis added.)
Chaachou, supra, at 890, n. 1.1
In Claflin v. Commonwealth Ins. Co. (1884), 110 U.S. 81, 3 S.Ct. 507, 28 L.Ed. 76, the insurance policies contained clauses that addressed future action which would occur after the application for insurance had been completed:
all fraud or attempt at fraud, by false swearing or otherwise, shall forfeit all claim on this company, and be a perpetual bar to any recovery under this policy.
Claflin, supra, at 88, 3 S.Ct. at 507. The absence of any reference to future "false swearing" or mention of "claims" or "perpetual bar to any recovery under this policy" is apparent in the insurance policy before us:
Concealment or Fraud. This entire policy shall be void if any insured has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance.
Policy, p. 12, Record p. 23. Indiana law is in agreement with these cases. In American Economy Ins. Co. v. Liggett (1981), Ind.App., 426 N.E.2d 136, this Court dealt with the definition of fraud where the insurance policy had a clause that contained a "before or after a loss" provision. American Economy, supra, at 188.
Therefore, the trial court was correct in amending the instruction to include the element of reliance.
False representations, concerning a material fact, which mislead, will avoid an insurance contract, just as any other contract, regardless whether the misrepresentation was innocently made or made with a fraudulent intent. (Emphasis added.)
Bush v. Washington Nat. Ins. Co. (1989), Ind.App., 534 N.E.2d 1139, 1142.
I would affirm the trial court.
. The identical provision is at question in: Mutual of Enumclaw Ins. Co. v. Cox (1988), 110 Wash.2d 643, 757 P.2d 499, 501, rek. denied; Fine v. Bellefonte Underwriters Ins. Co. (2nd Cir.1984), 725 F.2d 179, 181, n. 4, aff'd, (2nd Cir.1985), 758 F.2d 50, cert. denied, (1985), 474 U.S. 826, 106 S.Ct. 86, 88 L.Ed.2d 70.