McCann v. John Hancock Mut. Life Ins. Co.

• Decision Date: 16 September 1964
• Citation: 48 Misc.2d 325,264 N.Y.S.2d 728
• Parties: William C. McCANN v. JOHN HANCOCK MUTUAL LIFE INS. CO.
• Court: New York Supreme Court

Page 728

264 N.Y.S.2d 728

48 Misc.2d 325

William C. McCANN v. JOHN HANCOCK MUTUAL LIFE INS. CO.

Supreme Court, Special Term, Kings County, Part I.

Sept. 16, 1964.

Joseph Terranova, New York City, for plaintiff.

Townley, Updike, Carter & Rodgers, New York City, for defendant.

HARRY GITTLESON, Justice.

In an action to recover damages for the alleged breach of a disability income insurance policy, plaintiff moves to strike defendant's affirmative defense that the complaint fails to state a cause of action and defendant cross-moves to dismiss plaintiff's second cause of action on the ground that it fails to state a cause of action. In view of the cross-motion, it appears that defendant's affirmative defense is directed merely to the second cause of action and thus we concern ourselves solely as to its sufficiency. In substance, it alleges the issuance by defendant to plaintiff of a policy of insurance whereby defendant agreed to pay plaintiff $200 per month during plaintiff's total disablement arising out of bodily injuries sustained as a direct result of an accident; that on March 17, 1962, plaintiff sustained as a direct result of an accident bodily injuries whereby he became totally incapacitated and that such disablement is upon information and belief of a permanent nature; that plaintiff furnished to defendant proof of such accident and of the total disability and at the request of the defendant, submitted himself to examination by physicians representing the defendant; that no part of the amount due under the policy has been paid to plaintiff except $1,340 and that based upon the lief expectancy of the plaintiff there became due to him the sum of $100,000. It is evident that plaintiff's second of action is based upon the doctrine of anticipatory breach which gives one the right to sue immediately for damages upon the renunciation of a continuous executory contract by the other party before the day of performance. Such doctrine has usually been applied to contracts of a special character and 'has no application to contracts for the payment of money only, in installments or otherwise' (Indian River Islands Corp'n v. Manufacturers Trust Co., 253 App.Div. 549, 551, 2 N.Y.S.2d 860, 862; Sinkwich v. E. P. Drew & Co., Inc., 9 A.D.2d 42, 189 N.Y.S.2d 630). In Kelly v. Security Mutual Life Insurance Co., 186 N.Y. 16, 78 N.E. 584, the court said at page 19, 78 N.E. page 585; 'In this state it seems to be limited to contracts to marry (Burtis v. Thompson, 42 N.Y. 246); for personal services (Howard v. Daly, 61 N.Y. 362) and for manufacture or sale of goods (Windmuller v. Pope, 107 N.Y. 674, 14 N.E. 436; Nichols v. Scranton Steel Co., 137 N.Y. 471, 33 N.E. 561)'. Thus the doctrine has been held not to apply to insurance contracts (Kelly v. Security Mutual Life Insurance Co., 186 N.Y. 16, 78 N.E. 584, supra; Gilbert v. New York Life Insurance Co., 238 App.Div. 544, 264 N.Y.S. 610; Marciano v. Metropolitan Life Insurance Co., 179 Misc. 758, 41 N.Y.S.2d 773; New York Life Insurance Co. v. Viglas, 297 U.S. 672, 56 S.Ct. 615, 80 L.Ed. 971) inclusive of disability policies (Donlen v. Fidelity & Casualty Co., 117 Misc. 414, 192 N.Y.S. 513; Kuhn v. Pacific Mutual Life Insurance Co., D.C., 37 F.Supp. 102; Kithcart v. Metropolitan Life Insurance Co., D.C., 1 F.Supp. 719; Erreca v. Western States Life Insurance Co., 19 Cal.2d 388, 121 P.2d 689; Howard v. Benefit Association of Railroad Employees, 239 Ky. 465, 39 S.W.2d 657; Rishmiller v. Prudential Insurance Co., 192 Minn. 348, 256 N.W. 187).

In New York State two cases are found to have reached a contrary conclusion with respect to policies of insurance involving disability benefits. In Robbins v. Travelers Insurance Co., 151 Misc. 151, 269 N.Y.S. 841, the court sustained a complaint for a breach of contract seeking damages for accrued disability benefits and also for the present value of the contract computed in accordance with the allegations concerning plaintiff's expectancy of life. Upon appeal, the Appellate Division (241 App.Div. 350, 272 N.Y.S. 551) affirmed special term stating that since the complaint at least stated a cause of action for the accrued disability benefits, it would not consider whether or not plaintiff had a right to recover the total value of the policy on the theory of anticipatory breach. Thereafter special term (155 Misc. 384, 278 N.Y.S. 144) vacated plaintiff's warrant of attachment to the extent that it covered damages claimed by reason of the anticipatory breach. The latter determination was affirmed by the Appellate Division (242 App.Div. 816, 275 N.Y.S. 645). It would thus appear that...