Conn. Gen. Life Ins. Co. v. Levin, 332.

• Docket Nº: No. 332.
• Citation: 55 A.2d 127
• Case Date: October 07, 1947
• Court: United States State Supreme Court of Vermont

55 A.2d 127

CONNECTICUT GENERAL LIFE INS. CO.
v.
LEVIN et al.

No. 332.

Supreme Court of Vermont.

Oct. 7, 1947.

Exceptions from Court of Chancery, Chittenden County; Adams, Chancellor.

Suit by Connecticut General Life Insurance Company against Harold M. Levin and others for cancellation of double indemnity and disability provisions of life policy and to enjoin defendants from further prosecution of action at law or any other action seeking to recover disability or double indemnity benefits under the policy. Decree overruling demurrer and defendant brings exceptions.

Decree affirmed.

Austin & Edmunds, of Burlington, for plaintiff.

McNamara & Larrow, of Burlington, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

BUTTLES, Justice.

The plaintiff in 1929 issued a policy of insurance on the life of the defendant Levin which contained a provision for the payment of double indemnity in case of the death of the insured by accident and a provision for waiver of premiums and payment of benefits in the event of the insured's becoming permanently and totally disabled, extra stated premiums being required to cover these benefits. The policy lapsed for failure to pay the premium due September 16, 1942, and the extended insurance provision of the policy became operative. Thereafter the policy was reinstated upon written application of the insured dated November 4, 1942. This application contained certain statements and answers to questions which the plaintiff alleges were false and fraudulent although it believed them to be true and acted upon them in reinstating the policy.

As of January 28, 1944, the insured made application for disability benefits under the policy, claiming total disability from October 30, 1943. An investigation followed

55 A.2d 128

which disclosed, the plaintiff alleges, that the statements and answers made by the insured in his application were false and fraudulent. It therefore elected to rescind the reinstatement and tendered to the insured all premiums that had been paid in connection therewith with accrued interest, which tender was refused. On February 7, 1946, the defendant Levin brought an action at law in Chittenden County Court for claimed disability benefits. The plaintiff in the present chancery suit begun thereafter prays the cancellation of both the double indemnity and disability provisions of the policy, and that the defendants be enjoined from further prosecution of the action at law or any other action seeking to recover such disability or double indemnity benefits.

The defendant demurred to the complaint on the grounds that the plaintiff has an adequate remedy by way of defense to the defendant's action at law, and that the cancellation of the double indemnity clause of the policy is not here a matter in controversy between the parties or any of them. The case comes here on defendant's exception to the decree of the chancellor overruling the demurrer. The demurrer of course admits, for purposes of its consideration, the plaintiff's allegations that the statements of the insured were fraudulent and material and were relied upon by the insurer in reinstating the policy. Bowen v. Grand Trunk Ry. Co., 86 Vt. 483, 86 A. 306. The jurisdiction of equity to give relief in a proper case of this kind by injunction, cancellation or otherwise is not questioned.

The facts in the case of New York Life Ins. Co. v. McLaughlin, 112 Vt. 402, 26 A.2d 108, 112, were very similar to those in the present case. Two policies issued by the plaintiff in 1925 on the life of the insured...