<img alt="Brand" src="/images/eLaws/logo-elaws.png" class="img-responsive pull-left logo-head" />

(1989).
3.      “Under W.Va. Code, 33-6-7(b) and (c) (1957), in order for a
misrepresentation in an insurance application to be material, it must relate to either the
acceptance of the risk insured or to the hazard assumed by the insurer. Materiality is
determined by whether the insurer in good faith would either not have issued the policy, or
would not have issued a policy in as large an amount, or would not have provided coverage
with respect to the hazard resulting in the loss, if the true facts had been made known to
the insurer as required either by the application for the policy or otherwise.” Syl. pt. 5,
Powell v. Time Ins. Co.,

181 W. Va. 289

 (1989).
i
4.     “W.Va. Code, 33-6-7 (1957), adopts the test of whether a reasonably
prudent insurer would consider a misrepresentation material to the contract.” Syl. pt. 6,
Powell v. Time Ins. Co.,

181 W. Va. 289

 (1989).
5.     “[N]either West Virginia Code § 33-6-7(b) nor (c) [1957] requires that
an insurer prove the subjective element that an insured specifically intended to place
misrepresentations, omissions, concealments of fact, or incorrect statements on an
application in order for the insurer to avoid the policy.” Syl. pt. 6, in part, Massachusetts
Mut. Life Ins. Co. v.

Thompson, 194

 W. Va. 473,

460 S.E.2d 719

 (1995).
6.     “Where an insurer seeks to avoid a policy based on a material
misrepresentation, this assertion is in the nature of an affirmative defense which the insurer
must prove by a preponderance of the evidence.” Syl. pt. 7, Powell v. Time Ins. Co.,

181 W.Va. 289

 (1989).
7.     Under West Virginia Code § 33-6-7 (1957), the materiality of a
misrepresentation on an application for an insurance policy is ordinarily a jury question.
However, if the evidence excludes every reasonable inference except that the
misrepresentation was material, then the question of materiality becomes one of law for
the court.
ii
HUTCHISON, Chief Justice:
West Virginia Code § 33-6-7(b) and (c) (1957) permit an insurer to rescind
a policy if the insurer establishes that the application for the policy contains answers that
are false and were material to the insurer’s decision to issue the policy.
In this appeal from the Circuit Court of Fayette County, homeowner Damon
McDowell (“McDowell”) purchased an insurance policy from Allstate Vehicle and
Property Insurance Company (“Allstate”) for a derelict house McDowell intended to
remodel. After a fire, Allstate sought to rescind the policy, claiming that McDowell
digitally signed an application whereon he falsely answered a question regarding whether
he would occupy the house within thirty days. McDowell contends that he never saw the
application; never signed it; and that his answer was not false because he entered the
property within thirty days to store personal property and begin renovations. McDowell
also asserts that Allstate never demonstrated that the thirty-day-occupancy question on the
application was material to its decision to issue the policy, in part because the question
conflicts with the terms of the policy.
The circuit court granted summary judgment in favor of Allstate’s decision
to rescind the policy. McDowell now appeals the summary judgment order. We reverse
the order and conclude that questions of material fact exist regarding whether McDowell’s
answer to Allstate’s thirty-day-occupancy question was false, and whether the question
1
was material to Allstate’s issuance of the policy. We also remand the case for further
proceedings.
I. Factual and Procedural Background
In May of 2019, plaintiffs McDowell and Deeanna Lawson purchased a
1
house located at 219 Highland Avenue in Oak Hill, West Virginia. They paid $37,000 for
the house. McDowell contends that he and his wife, plaintiff Mary McDowell, stored
personal property in the house. This case involves insurance coverage on the house, and
the facts revolve almost exclusively around McDowell.
Defendant Patrick O. Hambrick, Jr., is an insurance agent who sells policies
for defendant Allstate. McDowell asserts that he had known agent Hambrick for several
decades prior to 2019, and agent Hambrick knew McDowell was “fixing up houses.” In
mid-May, McDowell contends he had a discussion in a grocery store with agent Hambrick,
and they talked about McDowell’s purchase of and intent to remodel the Highland Avenue
house.   Agent Hambrick said he was selling homeowner’s insurance, and he gave
McDowell a business card and said he would like to earn McDowell’s business.
McDowell contacted agent Hambrick who asked McDowell questions that
are not apparent from the record. Based on that conversation, agent Hambrick prepared a
“personalized insurance proposal” for a homeowner’s insurance policy from Allstate for
The parties do not explain the relationship between McDowell and Lawson,
1
other than that they are co-owners of the house at issue.
2
McDowell. It appears that, based upon the proposal, McDowell agreed to purchase an
Allstate policy. However, it is unclear from the record how the policy was obtained.
A. The Application
The focus of this appeal is an application for coverage, a six-page document
with typewritten answers that was apparently electronically prepared on May 17, 2019,
sometime after agent Hambrick prepared the proposal. Allstate and McDowell have
proffered two different versions of the application. The version of the application proffered
by Allstate has a blank on page four titled “Applicant’s Initials” followed by “D. M.” There
is also a blank on page six titled “Applicant’s Signature” below the statement “I have read
this entire application before signing.” The signature blank on page six of Allstate’s
version of the application contains the following printed text:
Signed by: DAMON MCDOWELL
Date: 2019.05.17 14:01:16 CDT
McDowell argues that he never initialed or signed the application and never
saw it until some months later, after Allstate told him he had made misrepresentations on
the application. McDowell alleges that Allstate sent him a version of the application. That
printout of the application, proffered by McDowell, does not contain McDowell’s initials,
and it does not contain his printed signature.
Moreover, McDowell and Allstate offer two wholly different versions of the
circumstances surrounding the completion of the application. As we understand the record,
McDowell contends that, on May 17, after he had spoken with agent Hambrick and
3
received the proposal for an Allstate policy, and while he was in the middle of reroofing a
church, he received a telephone call from Lilly Hoover, an employee in agent Hambrick’s
office. McDowell recalls that Hoover asked him questions about the house. Furthermore,
McDowell says Hoover “did some kind of Skype thing from a satellite” and told him the
square footage of the house and told him the house’s replacement value. McDowell gave
Hoover a credit card number, Allstate charged a premium to the credit card, and a few days
later he received documents showing he had insurance on the Highland Avenue house from
Allstate.
Allstate counters that the purpose of the phone call was so that Hoover could
complete the application using the answers given by McDowell. For instance, “dwelling
information” on the application indicates that McDowell said the purchase price for the
house was $37,000, but that he estimated its “current market value” was $300,000.
However, the application also contains blanks filled with detailed information supplied
solely by Allstate. In a section titled “Estimator” that used “Residential Component
Technology (tm),” Allstate (not McDowell) identified the insured property as a two-story,
single-family house built in 1921, identified the materials used to construct and decorate
the house, and declared the house had 1,578 square feet of living area. On the application,
Allstate placed the replacement cost of the house at $379,618.          Significantly, the
application contains the typed signature of agent Hambrick below this statement: “I have
not inspected the premises.”     Allstate contends McDowell electronically signed the
completed application after being given an opportunity review the document; Allstate does
4
not, however, identify how he was able to review the application or how the signature was
obtained.
2
In his deposition, McDowell argued that he would never have signed the
version of the application proffered by Allstate, if he had seen it, because it contains errors.
For instance, the application identifies the co-owner of the house (Lawson) as an
“Occupant Non-Relative,” despite her never intending to reside in the house. Conversely,
the application omits McDowell’s daughter who he asserts was going to reside in the house.
The application also incorrectly states McDowell’s wife’s birthday, and McDowell insists
he would never have signed an application where his wife was listed as being eighteen
years younger than she really was.
Allstate’s contentions center on one question in the May 17 application, and
what it asserts is a misleading response by McDowell. Specifically, the application
contains the following question and printed answer:
Will the residence be occupied within the next 30 days?: YES
While Allstate contends McDowell electronically signed the application,
2
McDowell points out that Hoover claimed in her deposition that she has seen McDowell’s
application “with his handwritten notes to it or handwritten signature on it[.]” McDowell
complains that Allstate has never produced this handwritten version of the application, and
instead produced only a version with typed answers, initials, and signatures.
Furthermore, for reasons we cannot discern, the circuit court made a finding
of fact that McDowell “applied for a home insurance policy with Allstate . . . through the
internet on a cellular telephone.” App. R. at 4, ¶ 3. This finding is nowhere supported by
the record on appeal and is not mentioned in either party’s brief.
5
B. The Parties’ Dispute
Allstate sent McDowell a declarations page stating that it was providing
homeowner’s insurance coverage for the house, effective on May 18. The declarations
page reflects that Allstate was providing coverage for “dwelling protection” with a limit of
$379,618. The declarations page lists McDowell and his wife as the “Named Insured(s).”
3
The other owner of the house (Lawson) was omitted from the dwelling coverage.
The record suggests that, while none of the plaintiffs (Mr. or Mrs. McDowell
or Ms. Lawson) began residing in, or sleeping at, the house over the next month, they did
have articles of personal property in the house. Also, McDowell indicated that he did
cleaning or repair work at the house (although the record is unclear as to its extent).
Further, some utilities were turned on for the property, such as water service, sewer service,
and garbage collection. McDowell asserts, however, that he did not have electrical service
in the house, for two reasons. First, he says he intended to conduct repairs on the electrical
wiring in the house. Second, McDowell contends that he hoped to dissuade certain
intruders from staying in the house. McDowell states that relatives, friends, or associates
The declarations page also reflects that Allstate provided $227,771 in
3
“personal property protection.” While the plaintiffs assert that they have personal property
losses Allstate refuses to cover, the parties’ arguments center on whether McDowell
misrepresented that the house was “occupied” within thirty days. Consequently, we leave
questions about the personal property to the circuit court for resolution on remand.
6
of the house’s prior owner continued to break into the house, despite McDowell’s efforts
and appeals to law enforcement. These intruders even had their mail delivered to the house.
Twenty-five days after Allstate initiated insurance coverage on the house, on
June 12, an Allstate contractor conducted an underwriting inspection of the exterior of the
house.   The resulting underwriting inspection report said the house calculated the
replacement cost of the house at $295,552, but noted missing and broken windows, moss
on the roof, and ivy growing on the siding and eaves. The underwriting inspector took
photos and wrote that he could not complete his inspection, in part, because of appliances
and debris in the yard.4
Days later, around two o’clock in the morning of June 20, a fire occurred,
and the house and some of the contents were damaged. 5 Police officers assessed that the
In her deposition, Hoover (the employee of agent Hambrick) asserts that
4
she learned the results of the underwriting inspection on June 12. Hoover claims that, the
next day, she spoke with McDowell and told him the house would not be covered by
Allstate’s insurance because it did not meet the company’s underwriting standards. In the
days thereafter (and before June 20), Hoover quit her job and moved to Mississippi.
Allstate did not advise McDowell in writing of the results of the underwriting inspection
until about three weeks later, during the first week of July.
The record indicates that, after the fire, McDowell filed an inventory of
5
millions of dollars’ worth of personal property he claims he lost in the fire that included
antique furniture, valuable coins, vintage Barbie Dolls, and irreplaceable baseball and
football cards. While Allstate now asserts there was no evidence these items were ever
present in the house, the plaintiffs suggest that Allstate refused to cover these items because
they were excluded from coverage by the terms of the Allstate policy.
7
fire was started deliberately in three locations using rags soaked in a petroleum distillate.
6
The City of Oak Hill later sent a notice that the “structure cannot be reasonably repaired
and should be ordered demolished.”
McDowell promptly made a claim with Allstate. On June 20, the same day
as the fire, Allstate wrote to McDowell with a claim number to let him “know that we
received your claim and started working on it.” The next day, Allstate emailed McDowell
a missive that begins “Good news! Your claim payment is on its way,” and advised
McDowell it was depositing $1,000 onto his credit card for the “Fire Loss.”          Allstate
appears to have later provided McDowell with living expense payments.
On June 26, a fire inspector visited the house on behalf of Allstate and
confirmed that the fire had been intentionally set. The fire inspector took photographs
which McDowell argues show his efforts to improve the condition of the house, namely
that the appliances, debris, and some of the vegetation in the yard during the June 12
underwriting inspection had been removed.
Just over a week after the fire inspector’s visit, and at least twenty-two days
after the underwriting inspection, Allstate sent McDowell two conflicting letters. In the
A next-door-neighbor told police she heard somebody coughing outside
6
shortly before the fire was discovered. Police also found a clean, seemingly freshly
dropped South Carolina driver’s license on the sidewalk in front of the house during the
fire. McDowell contends he gave police the names of intruders into the house. It is unclear
what, if anything, the police accomplished with this information.
8
first letter (which is undated except for a notation that it used “Information as of July 04,
2019”), Allstate declared that the homeowner’s insurance policy would be cancelled on
“August 14, 2019 at 12:01 AM.” The reasons given for the cancellation included that the
“yard or porch has appliances, debris,” and that there was moss, plant, and vegetation
growth on the roof and exterior of the house. The first letter concludes that “your policy
will remain in effect until the cancellation date and time shown above.”
The second letter from Allstate (also undated except for a notation that it used
“Information as of July 5, 2019”) declared Allstate was confirming McDowell’s “policy
change.” The second letter contained an amended declarations page that, confusingly,
declares that Allstate was providing coverage “Beginning May 18, 2019 through May 18,
2020 at 12:01 a.m. standard time.” Otherwise, the amended declarations page appears
identical to the earlier declarations page and even maintains the same $379,618 in dwelling
coverage.
This appeal arises from a third letter from Allstate to Mr. and Mrs. McDowell
dated July 18, 2019. Allstate announced in the letter that, because of misrepresentations
on the application regarding whether the house would be occupied within thirty days,
Allstate was effectively rescinding the homeowner’s insurance policy. Allstate’s July 18
letter gave the following reasoning:
It has been determined that material misrepresentations were
made on the application as it relates to occupany [sic] of the
home. You answered that you would be moving into the home
in May 2019, and in fact it would be occupied within 30 days
of the signed application, and neither occurred. The occupany
9
[sic] is directly correlated to the condition of the home at the
time of the application. The home was not habitable at the time
of the application, nor was it at the time of the loss. . . . Allstate
would not have written the business had it known . . . that it
would not be occupied within 30 days.
7
Because it was rescinding the contract, Allstate declared that it was returning all premiums
paid under the policy.
The plaintiffs (Mr. and Mrs. McDowell, and Ms. Lawson) sued Allstate and
agent Hambrick for breach of contract and unfair trade practices.               After conducting
8
7
Allstate’s July 18 letter also notes that its “underwriting inspection of the
home deemed the home was not a desireable [sic] risk” and that Allstate would not have
issued the policy “had it known the pre loss condition of the home and property[.]”
However, Allstate does not point to any question in the application where McDowell
misrepresented the condition of the home. As noted earlier, after Allstate conducted its
underwriting inspection it did seek to prospectively cancel the policy, effective August 14,
2019.
Along with their complaint in September 2019, the plaintiffs note that they
8
filed requests for production of documents and therein requested a copy of “the
‘Application’ upon which Defendant, Allstate, is relying[.]” Allstate produced what it
contends is the “signed” application five months later, in February 2020. Before both the
circuit court and this Court, the plaintiffs have argued that Allstate’s version of the
application is inadmissible because it was not produced within thirty days. As authority,
plaintiffs cite to West Virginia Code § 33-6-6(c) (1957), which provides that
no application for insurance signed by or on behalf of the
insured shall be admissible in evidence in any action between
the insured and the insurer arising out of the policy so applied
for, if the insurer has failed, at expiration of thirty days after
receipt by the insurer of written demand therefor by or on
behalf of the insured, to furnish to the insured a copy of such
application reproduced by any legible means.
The circuit court does not appear to have ruled on the plaintiffs’ request to exclude the
application. We leave it to the circuit court on remand to consider the plaintiffs’ request.
10
discovery, the plaintiffs and Allstate filed competing motions for summary judgment. The
plaintiffs asked for a ruling that Allstate was obligated to pay them under the policy;
Allstate countered that the policy was void ab initio because of misrepresentations in the
application. In an order dated July 6, 2021, the circuit court determined that there was no
factual dispute that McDowell had made false and material statements on his application
for insurance. The circuit court denied the plaintiffs’ motion and granted Allstate’s motion
to rescind the policy.
The plaintiffs now appeal the circuit court’s July 6, 2021, summary judgment
order.
II. Standard of Review
We review a circuit court’s entry of summary judgment de novo. Syl. pt. 1,
Painter v. Peavy,

192 W. Va. 189

451 S.E.2d 755

 (1994). We therefore apply the same
standard as the circuit court, which is that “[a] motion for summary judgment should be
granted only when it is clear that there is no genuine issue of fact to be tried and inquiry
concerning the facts is not desirable to clarify the application of the law.” Syl. pt. 3, Aetna
Cas. & Sur. Co. v. Federal Ins. Co. of N.Y.,

148 W. Va. 160

133 S.E.2d 770

(1963).
11
III. Discussion
The plaintiffs raise seventeen assignments of error on appeal. However, we
9
distill these varied assignments down into one fundamental contention. The plaintiffs
Interlaced in the plaintiffs’ muddled assignments are numerous assertions
9
of clear errors in the circuit court’s factual findings. The most egregious among these are
findings that the plaintiffs themselves started the June 20 fire. The circuit court’s order
states that Allstate’s policy excludes coverage for “intentional or criminal acts of or at the
direction of any insured person[.]” The order then finds that, “Specifically, Allstate has
asserted that Plaintiffs intentionally caused the fire and/or conspired with others to do so[.]”
The order also finds that, in the July 18 rescission letter, Allstate said it “was denying
Plaintiffs’ claim . . . because the subject fire resulted from the intentional or criminal acts
of, or at the direction of, the Plaintiffs, with the intent to cause the loss.” These statements
in the circuit court’s order are nowhere supported by the record. Nowhere in the record
does Allstate assert the plaintiffs caused the fire or conspired with others to do so.
Allstate’s July 18 letter contains no such language that the plaintiffs engaged in intentional
or criminal acts. The police officers who investigated the fire did not charge the plaintiffs.
The plaintiffs also assert the circuit court’s order erroneously finds that all
utilities to the house “had been cut off prior to the fire[.]” This finding is contradicted by
documents in the record showing various utilities were connected. Additionally, the order
finds that McDowell verified the “condition of the dwelling” on the application, but
plaintiffs point out the application contains no questions regarding the dwelling’s
condition. Moreover, McDowell’s statement that he paid $37,000 for a house that he
valued at $300,000, and that Allstate valued at $379,618, might have warranted further
investigation by Allstate. See, e.g., Restatement of the Law of Liability Insurance § 9, cmt.
d (2019) (“[I]f there is something suspicious in an application that would cause an
objectively reasonable insurer to undertake further investigation, the reasonable-reliance
requirement would impose such a duty on the insurer.”); 16 Williston on Contracts § 49:51
(4th ed. 2022) (“While an insurance company has the right to expect that applicants will
tell the truth . . . if the representation is such that it would put a reasonable insurer on notice
or create a duty of inquiry, and the insurer fails to further investigate, the representation is
not considered to be untrue or material.”).
We caution litigants that, when drafting a proposed order for a circuit court
granting summary judgment, the order must set out factual findings that are “relevant,
determinative of the issues and undisputed.” Syl. pt. 3, Fayette Cnty. Nat. Bank v. Lilly,

199 W. Va. 349

484 S.E.2d 232

 (1997) (emphasis added).
12
argue that the circuit court erred in finding that there were no questions of material fact
surrounding whether McDowell’s answer to the thirty-day-occupancy question was both
false and material to Allstate’s decision to issue the policy. McDowell argues that the
circuit court erroneously found that Allstate had, as a matter of law, established its right to
rescind the policy. We agree.
An insurer’s right to rescind an insurance policy due to a misrepresentation
in the insured’s application for insurance is governed by West Virginia Code § 33-6-7
(1957), which provides, in part, that:
Misrepresentations, omissions, concealments of facts, and
incorrect statements shall not prevent a recovery under the
policy unless:
(a) Fraudulent; or
(b) Material either to the acceptance of the risk, or to the hazard
assumed by the insurer; or
(c) The insurer in good faith would either not have issued the
policy, or would not have issued a policy in as large an amount,
or would not have provided coverage with respect to the hazard
resulting in the loss, if the true facts had been made known to
the insurer as required either by the application for the policy
or otherwise.
This statute was “intended to codify the circumstances in which an insurance policy could
be revoked for misrepresentations made in the application.” Powell v. Time Ins. Co.,

181 W. Va. 289

, 295,

, 348 (1989). “This language indicates that not all
misrepresentations will avoid an insurance policy, but only those specifically identified in
subsections (a), (b), and (c) of the statute.” Id. at 291,

, Syl. Pt. 3, in part.
13
In the instant case, Allstate relies on subsections (b) and (c) of West Virginia Code § 33-
6-7.
10
In a typical, non-insurance contract action involving a misrepresentation, the
party seeking to avoid the contract must usually prove two separate facts: that the
representation “was material and false,” and that the party “relied upon it[.]” Syl. pt. 1,
Lengyel v. Lint,

167 W. Va. 272

280 S.E.2d 66

 (1981). See, e.g., Syl. pt. 2, in part, McBee
v. Deusenberry,

99 W. Va. 176

128 S.E. 378

 (1925) (“The false representation of a
material fact . . . on which the purchaser had the right to rely, and upon which he did rely,
is always ground for a rescission of the contract[.]”).
In the context of insurance, subsections (b) and (c) of West Virginia Code §
33-6-7 create a somewhat different approach to misrepresentations. A representation must,
of course, be “material and false” in order to rescind a policy. However, subsections (b)
and (c) blur the concepts of materiality and reliance: while an insurer may rescind a policy
if there is a material misrepresentation, materiality is established by proof the insurer relied
to its detriment on the misrepresentation. Hence, we gave this description of materiality in
Syllabus Point 5 of Powell:
If the insurer asserts the insured’s misrepresentation, omission, or
10
concealment of facts was fraudulent under West Virginia Code § 33-6-7(a), “then the
insured’s intent to deceive the insurer is clearly an element which the insurer must prove.”
Massachusetts Mut. Life Ins. Co. v.

Thompson, 194

 W. Va. 473, 478,

460 S.E.2d 719

, 724
(1995); see also Syl. pt. 4, Powell,

. In the instant
case, Allstate does not assert fraudulent intent, so we need not weigh subsection (a) of the
statute.
14
Under W.Va. Code, 33-6-7(b) and (c) (1957), in order for a
misrepresentation in an insurance application to be material, it
must relate to either the acceptance of the risk insured or to the
hazard assumed by the insurer. Materiality is determined by
whether the insurer in good faith would either not have issued
the policy, or would not have issued a policy in as large an
amount, or would not have provided coverage with respect to
the hazard resulting in the loss, if the true facts had been made
known to the insurer as required either by the application for
the policy or otherwise.

. Stated differently, “A misrepresentation by an
insured during the application for . . . an insurance policy is material only if, but for the
misrepresentation, a reasonable insurer in this insurer’s position would not have issued the
policy or would have issued the policy only under substantially different terms.”
Restatement of the Law of Liability Insurance § 8 (2019). In subsections (b) and (c), the
materiality analysis focuses on “the impact the misrepresentation would have on the
insurer’s business judgment utilized in issuing the policy.” Massachusetts Mut. Life Ins.
Co. v.

Thompson, 194

 W. Va. 473, 478,

460 S.E.2d 719

, 724 (1995).
Many commentators have said that the “[m]ateriality of a misrepresentation
is perhaps the most difficult of all the elements to prove in an action for rescission.” Robert
J. Brennan, Misrepresentation in the Application As the Basis for Rescission of a Property
Insurance Policy,

21 Tort & Ins. L.J. 451

, 454 (1986). As one lawyer wryly noted, “[t]he
matter of misrepresentation and concealment in obtaining insurance is at once the simplest
and most maddeningly difficult of subjects,” in part because of “the proverbial ‘Serbonian
bog’ of rules and counterrules[.]”
15
The whole subject is made infinitely more difficult by the great
differences in methods by which various branches of the
insurance industry underwrite risks. Life insurers, for instance,
commonly subject applicants to exhaustive questioning and
examinations, signed and certified, while property insurers
usually ask only the most rudimentary questions, often leaving
it to clerical help, with no reliable method of proving who said
what. Any property insurance lawyer who has had to try to
prevail in a swearing contest between an insured, whose
smoking ruins have now sharpened his memory, and a
secretary who left the agency eight months before, knows this
predicament.
Clayton H. Farnham, Application Misrepresentation and Concealment in Property
Insurance-the Elusive Elements of the Defense, 20 Forum 299 (1985) (emphasis added).
Additionally, West Virginia applies an objective standard for materiality. In
weighing the question of whether a misrepresentation was material, “W. Va. Code, 33-6-7
(1957), adopts the test of whether a reasonably prudent insurer would consider a
misrepresentation material to the contract.” Syl. pt. 6, Powell,

.
Even innocent misrepresentations, if material, are sufficient to allow an
insurer to rescind an insurance policy. “[N]either West Virginia Code § 33-6-7(b) nor (c)
requires that an insurer prove the subjective element that an insured specifically intended
to place misrepresentations, omissions, concealments of fact, or incorrect statements on an
application in order for the insurer to avoid the policy.” Syl. pt. 6, in part,

Thompson, 194

W. Va. at 474,

460 S.E.2d at 720

.
16
Furthermore, the burden is on the insurer to prove, by a preponderance of the
evidence, that the insurance applicant made a representation that was untrue, and that the
representation was material. Syl. pt. 7, Powell,