Union Mut. Life Ins. Co. v. Friedman

• Decision Date: 26 March 1943
• Citation: 50 F. Supp. 278
• Parties: UNION MUT. LIFE INS. CO. v. FRIEDMAN.
• Court: U.S. District Court — Southern District of New York

50 F. Supp. 278

UNION MUT. LIFE INS. CO. v. FRIEDMAN.

District Court, S. D. New York.

March 26, 1943.

Albert Hirst, of New York City, for plaintiff.

Goldstein & Jacobs, of New York City (Maxwell H. Goldstein, of New York City, of counsel), for defendant.

COXE, District Judge.

This is a motion by the defendant for judgment on the pleadings, or for summary judgment, dismissing the complaint. The action is in equity, and the ground of the motion is that the plaintiff has an adequate remedy at law. There is also a companion motion by the plaintiff for an order staying the defendant from further prosecution of an action brought by the defendant against the plaintiff in the Municipal Court of the City of New York.

The action in this court is by the plaintiff, an insurance company of the State of Maine, for the rescission of an accident and health insurance policy issued to the defendant and alleged to have been procured by misrepresentation and fraud. It also seeks to recover the sum of $27,800 heretofore paid to the defendant as monthly disability benefits under the policy. The action was commenced on January 28, 1943, and is now at issue.

The Municipal Court action is by the defendant to recover the sum of $125 representing a monthly disability payment alleged to have become due and payable under the policy on January 12, 1943. This action was commenced on the same day as the equity action, and is also at issue.

The policy which is the subject of both actions was issued by the plaintiff's predecessor on November 5, 1931, and provides for stated monthly benefit payments to the defendant in the event of his total disability from accidental injury or disease. The defendant is the sole beneficiary named in the policy, and the policy contains no incontestability clause. In April, 1932, the defendant made a claim against the Insurance Company for monthly benefit payments on the ground that he was totally disabled from disease. This claim appears to have been allowed, and the monthly benefit payments commenced shortly thereafter. These payments continued until December 16, 1942, and have amounted in the aggregate to $27,800.

The complaint in the action in this court alleges that after all of the above mentioned payments to the defendant had been made the plaintiff discovered that in the application for the policy the defendant made various misrepresentations in answer to questions asked, which were knowingly and intentionally false, and were relied on by the Insurance Company. These alleged misrepresentations are set forth in detail in the pleading, and are denied by the defendant in his answer. In the answer of the Insurance Company (the present plaintiff) in the Municipal Cour...