Gaidon v. Guardian Life Ins. Co. of America

• Decision Date: 05 November 1998
• Citation: 679 N.Y.S.2d 611,255 A.D.2d 101
• Parties: 1998 N.Y. Slip Op. 9413 Frank J. GAIDON, etc., et al., Plaintiffs-Appellants, v. The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 611

679 N.Y.S.2d 611

1998 N.Y. Slip Op. 9413

Frank J. GAIDON, etc., et al., Plaintiffs-Appellants, v. The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Nov. 5, 1998.

Melvyn I. Weiss, for Plaintiffs-Appellants.

Thomas J. Dougherty, for Defendant-Respondent.

Before LERNER, P.J., and WALLACH, RUBIN and SAXE, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Charles Ramos, J.), entered June 12, 1997, dismissing the complaint, and bringing up for review an order which, in an action arising out of defendant insurer's sale to plaintiffs insureds of life insurance policies utilizing the "vanishing premium" concept, granted defendant's preanswer motion to dismiss the complaint, unanimously affirmed, without costs.

Construing the subject policies in a manner that "focuses on the reasonable expectations of the average insured upon reading the policy ... and employing common speech" (Matter of Mostow v. State Farm Ins. Cos., 88 N.Y.2d 321, 326-327, 645 N.Y.S.2d 421, 668 N.E.2d 392), we find that the policies are unambiguous in setting forth the duration of premium payments, that the entire contract consists only of the policy and the insured's application, and that agents lack authority to change the policy or application or make promises or statements binding on defendant. Accordingly, the computer generated vanishing premium illustrations and alleged oral misrepresentations on which plaintiffs base their causes of action for breach of contract and fraud are inadmissible parol, rendering such causes of action insufficient. Moreover, in light of the express terms of the policies clearly indicating the duration of the required premium payments, plaintiffs' claimed reliance on the alleged misrepresentations and illustrations was unreasonable. Nor are there sufficient allegations of a fiduciary or confidential relationship to support the causes of action for breach of fiduciary duty, negligent misrepresentations fraudulent concealment and imposition of a constructive trust (see, Kimmell v. Schaefer, 89 N.Y.2d 257, 263-264, 652 N.Y.S.2d 715, 675 N.E.2d 450). The alleged reliance and trust necessary for a finding of such relationship are stated in conclusory fashion (see, Societe Nationale D'Exploitation v. Salomon Bros. Intl., --- A.D.2d ----, 674 N.Y.S.2d 648), and defendant's superior knowledge of the actuarial assumptions and the variables affecting when and...