Is rescission the sole remedy of the insurer where misrepresentation or concealment is involved?

This contention is based on an erroneous syllogism. Insurance Code section 449 provides: 'A breach of warranty without fraud merely exonerates an insurer from the time that it occurs, or where the warranty is broken in its inception, prevents the policy from attaching to the risk.' (See De Campos v. State Com. Ins. Fund, supra, 122 Cal.App.2d 519, 530, 265 P.2d 617.) Plaintiff therefore assumes that if there is no breach of warranty, the policy does attach to the risk, and rescission is the sole remedy of the insurer where misrepresentation or concealment, rather than breach of warranty, is involved. It has gone to great pains to demonstrate that there was no breach of warranty in this case. The insurer properly points out that regardless of whether there was a breach of warranty, rescission is not the sole remedy for the concealment and misrepresentation in this case. In fact the court, in the case relied upon by plaintiff, expressly noted, 'This specification in the Insurance Code of circumstances under which a party to an insurance contract may rescind does not mean that rescission in any such case is the exclusive remedy. These provisions of the Insurance Code are in the nature of special provisions pertaining to insurance contracts, which are superimposed upon those provisions of law which govern contracts generally. . . . ( ) It seems clear, therefore, that the rights of rescission which the Insurance Code recognizes and limits are not in derogation of other remedial rights which are recognized and implemented by other provisions of law, . . .' (De Campos v. State Comp. Ins. Fund, supra, 122 Cal.App.2d 519, 529, 265 P.2d 617, 622.)