Citation Numbers: 174 Misc. 350
Judges: Harris
Filed Date: 3/16/1940
Status: Precedential
Modified Date: 1/12/2023
In this action the plaintiff seeks judgment declaring null and void provisions for double indemnity in case of death by
The defendants oppose the prayer for judgment of the plaintiff on the ground that the provisions for double indemnity and waiver of premium were issued by the plaintiff and delivered to the defendant Emanuel M. Kaplan on an application that is not attached to the policy.
The facts concerning the issuance of the policy and the additional features, briefly stated, are as follows:
The defendant Emanuel M. Kaplan applied to a general agent of the plaintiff for life insurance to contain disability income. Such application was oral. The agent wrote to the plaintiff as follows:
“ The application goes off without features, but Dr. Kaplan would like to have them if they can be granted to him. * * *
“ I did my very best to sell the insurance without the disability income, but I must confess that I was unsuccessful.”
Following such letter of the general agent to the plaintiff, the plaintiff forwarded to the general agent the policy in suit to which had been annexed the application, in which application there was no reference, at the time it was signed by the defendant Emanuel M. Kaplan, to the additional features. In making up the policy, before it was forwarded to the defendant Emanuel M. Kaplan, the plaintiff stamped on a portion of the application which portion, as shown by the application, was to be filled out not by the defendant-insured, but only by the plaintiff (company), the following words: “ Disability Waiver and Double Indemnity Only.” The policy was then forwarded by the plaintiff to the general agent, together with a separate form, with instructions on the part of the plaintiff to such general agent to have the applicant execute the same, wdiich separate form read as follows: “ I hereby accept and ratify the
For many years the courts have been confronted with the question of representations made by applicants for insurance and the effect of misrepresentations on the validity of the policies. A most serious question involved in these decisions was whether or not all misrepresentations could be made the bases of avoidance of policy obligations. As a result of this litigation and the application of previous statutes, at the time of the issuance of the policy in question, and the additional features thereon, there was in effect in section 58 of the Insurance Law of the State, a provision which, so far as it applies to the policy in question, reads as follows: “ Every policy of insurance issued or delivered within the State * * * by any life insurance corporation doing business within the State shall contain the entire contract between the parties and nothing shall be incorporated therein by reference to any constitution, by-laws, rules, application or other writings unless the same are indorsed upon or attached to the policy when issued; * * *. Any waiver of the provisions of this section shall be void.” With the provisions of this statute and the policy and additional features before me, I am of the opinion that the additional features (double indemnity and waiver of premium) were separate contracts which were
There was litigated in this action the question of the truth or falsity of the representations made on the original application as to the health of the insured and as to whether he had previously waived the introduction by the plaintiff of testimony of physicians who had treated him, which testimony apparently gave the lie to his representations as to his health. In view of my conclusion that the failure to attach the separate form to the policy resulted in the plaintiff not being able to rely on the representations in the original application to void the additional features, it is not necessary for me to pass on the question of the truth of the representations or on the question of waiver of privilege.
The original defendants may have judgment dismissing the complaint.