Virginia Code

Va. Code Ann. § 38.2-309 (2026)

When answers or statements of applicant do not bar recovery on policy

✓ current as of May 2026

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All statements, declarations and descriptions in any application for an insurance policy or for the reinstatement of an insurance policy shall be deemed representations and not warranties. No statement in an application or in any affidavit made before or after loss under the policy shall bar a recovery upon a policy of insurance unless it is clearly proved that such answer or statement was material to the risk when assumed and was untrue.

Code 1950, § 38-7; 1952, c. 317, § 38.1-336; 1986, c. 562.

Notes of Decisions

Cited in 28 cases (1 in the last 5 years), 1987–2026 · leading case: Com. Underwriters Ins. v. Hunt & Calderone, P.C., 540 S.E.2d 491 (Va. 2001).

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Com. Underwriters Ins. v. Hunt & Calderone, P.C., 540 S.E.2d 491 (Va. 2001). · cites it 8× “*42 We have construed Code § 38.2-309 1 and its predecessors to require an insurance company contesting a claim on the basis of an insured’s alleged misrepresentation to show, by clear proof, two facts: (1) that the statement on the application was untrue; and (2) that the…”

Montgomery Mut. Ins. v. Riddle, 587 S.E.2d 513 (Va. 2003). · cites it 8× “In this appeal, we consider whether Code § 38.2-309 requires proof of actual reliance by an insurance company on material misrepresentations made in an application for insurance before a policy of insurance can be declared void.”

Carpitcher v. Com., 641 S.E.2d 486 (Va. 2007). · cites it 2× “2d 513 , 515 (2003) (matter is "material" to insurance policy under Code § 38.2-309 if matter is "of such a nature that knowledge of the item would affect a person's decision-making process"); Holz v.”

Minnesota Lawyers Mut. Ins. v. Hancock, 600 F. Supp. 2d 702 (E.D. Va. 2009). · cites it 5× “§ 38.2-309. However, when an applicant qualifies its statements by certifying that representations contained in an insurance application are only “correct to the best of [its] knowledge,” the insurer must further demonstrate by clear proof that the insured’s statements were…”

Rush v. Hartford Mut. Ins., 652 F. Supp. 1432 (W.D. Va. 1987). · cites it 9× “This construction of warranty/representation in a policy is not to be confused with warranty/representation in an application for insurance. Virginia has enacted a statutory provision which provides that “[a]ll statements, declarations and descriptions in any application for an…”

Time Ins. v. Bishop, 425 S.E.2d 489 (Va. 1993). · cites it 4× “” Code § 38.2-309 provides, as pertinent, that no statement in an application for insurance “made before .”

Banner Life Ins. v. Noel, 861 F. Supp. 2d 701 (E.D. Va. 2012). · cites it 5× “Va.Code § 38.2-309 (“No statement in an application or in any affidavit made before or after loss under the policy shall bar a recovery upon a policy of insurance unless it is clearly proved that such answer or statement was material to the risk when assumed and was untrue.”

Lott v. Scottsdale Ins., 827 F. Supp. 2d 626 (E.D. Va. 2011). · cites it 3× “February 11, 2008) (citing Va. Code § 38.2-309). Even if the named insured on the application was incorrect, that statement was not material to Scottsdale’s decision to issue insurance.”

Kitbar Enters., LLC v. Liberty Ins. Underwriters, Inc., 291 F. Supp. 3d 758 (E.D. Va. 2018). · cites it 2× “Virginia Code § 38.2-309 provides that "no statement in an application or in any affidavit made before or after loss under [a policy of insurance] shall bar recovery upon a policy of insurance unless it is clearly proved that such answer or statement was material to the risk…”

Parkerson v. Fed. Home Life Ins., 797 F. Supp. 1308 (E.D. Va. 1992). · cites it 2× “Under Virginia law: [N]o statement in an application or in any affidavit made before or after loss under the policy shall bar a recovery upon a policy of insurance unless it is clearly proved that such answer or statement was material to the risk when assumed and was untrue.”

Atl. Permanent Fed. Sav. & Loan Ass'n v. Am. Cas. Co. of Reading, Pennsylvania, 839 F.2d 212 (4th Cir. 1988). “Va. Code Ann. § 38.2-309 (1986). The Virginia Supreme Court has, however, specifically upheld provisions in insurance policies that limit the insurer’s right to void the policy for misrepresentation.”

St. Paul Fire & Marine Ins. Co. v. Jacobson, 826 F. Supp. 155 (E.D. Va. 1993). “Code § 38.2-309 provides in pertinent part: No statement in an application or in any affidavit made before or after loss under the policy shall bar a recovery upon a policy of insurance unless it is clearly proven that such an answer or statement was material to the risk when…”

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