No-fault insurance; Rescission; Howard v LM Ins Co; Material misrepresentation; Commercial vehicle use; Sherman v Progressive MI Ins Co; Late affidavit; Prussing v General Motors Corp; Equitable remedy; Balancing the equities

The court held that there was no genuine issue of material fact that plaintiff made a material misrepresentation in his no-fault application, but remand was required because the trial court failed to determine whether rescission was the proper equitable remedy. Plaintiff sought PIP benefits after a motor-vehicle crash, but defendant-CURE voided the policy from inception based on alleged misrepresentations in the application. On appeal, the court held that plaintiff falsely represented that the insured vehicle was not used for commercial purposes. The application denied use for food delivery, while plaintiff admitted at deposition that he had used the vehicle for Grubhub “for a few months” before the accident and before the application. He also did not remember informing CURE. Although plaintiff later claimed he began working for Grubhub sometime after procurement, the court found that assertion unsupported and concluded his deposition testimony was “unrefuted.” The court next held that materiality and reliance were established by the underwriting affidavit, which averred that CURE would not have “issued the specific” policy if plaintiff had disclosed commercial use. The court rejected plaintiff’s challenge to the affidavit as late-filed because the initial motion disclosed the substance of the affidavit, plaintiff had notice, and the trial court had discretion to consider it. However, the court declined to affirm rescission outright because Sherman requires a court sitting in equity to decide whether rescission is the proper remedy after finding a material, relied-upon misrepresentation. Affirmed but remanded for balancing of the equities.