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AMERICAN PEPPER SUPPLY CO. v. FEDERAL INS. CO.

No. 1 CA-CV 00-0549.

72 P.3d 1284 (2003)

205 Ariz. 465

AMERICAN PEPPER SUPPLY COMPANY, Plaintiff-Appellant, Cross-Appellee, v. FEDERAL INSURANCE COMPANY, Defendant-Appellee, Cross-Appellant.

Court of Appeals of Arizona, Division 1, Department D.

July 24, 2003.

Attorney(s) appearing for the Case

Herman, Goldstein & Forsyth, P.C., By Keith B. Forsyth, and Paul G. Ulrich, P.C., By Paul G. Ulrich, Phoenix, Attorneys for Plaintiff-Appellant/Cross-Appellee.

Sanders & Parks, By Robert J. Bruno, and Mark R. Gilling, Phoenix, Attorneys for Defendant-Appellee/Cross-Appellant.

OPINION

TIMMER, Judge.

¶ 1 In this opinion, we resolve an issue of first impression in Arizona: Must an insurer defending a breach of contract claim, asserted for the insurer's refusal to pay a claim, prove the policy defense of concealment or misrepresentation by clear and convincing evidence or by a preponderance of evidence? For the reasons that follow, we hold that an insurer must prove this defense by clear and convincing evidence.

BACKGROUND...

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