Thе plaintiff claims benefits under a contract providing group life and health insurance to certain employees of the Power Engineering Company, Inc. (employer) . The insurer defends оn the ground that the plain *328 tiff’s deceased husband (the decedent) did not qualify as an “employee” of the employer. On the insurer’s motion for summary judgment, a judge of the Superior Court ordered рartial summary judgment for the plaintiff, and final judgment was entered after an assessment of damages. We hold that the defense that the decedent was not an employee is barred by the incontestability clause of the policy, required by G. L. c. 175, § 134, and we affirm the judgment for the plaintiff.
The following facts appear without dispute from the admissions of the parties, the deposition of thе employer’s accountant, and the affidavit of the plaintiff in opposition to the insurer’s motion for summary judgment. The decedent was an attorney who represented the employer, and was paid $300 a month, less insurance deductions. His name did not appear on the employer’s payroll record, and there was no withholding of Federal income taxes, social security taxes, or State income taxes.
The insurer issued in Massachusetts a group insurance policy effective December 1, 1968, and reissued the policy effective September 1, 1969. Premiums to insure the decedent under the policy were paid from December 1, 1968, to April 8, 1971, the date of his death. He was listed as one of eleven insured employees in a letter from thе insurer to the employer dated August 28, 1969. The policy defined “Employee” as “limited to a person on the payroll of the Employer and regularly employed by the Employer on a full-time bаsis of not less than Thirty hours per week.” It provided, as to policies issued in the Commonwealth of Massachusetts: “This policy shall be incontestable after Two years from its date of issue, exсept for non-payment of premium.” As of December 2, 1970, no action or contest had been brought by the insurer with regard to the policy or the insurability of the decedent under it.
Benefits under the health portion of the policy were paid on behalf of the decedent in January, February and March, 1971, in the amount of $2,058.50. The death certificate, submitted with the plaintiffs claim of death bеnefit, *329 showed his occupation as “Lawyer” and his business as “Self Employed.” The insurer therefore denied the claim in June, 1971, on the ground that the decedent was not an employee, and offеred to refund all life premiums paid for him since he went under the plan in 1964. The refund was made in October, 1971, and at the employer’s request the health portion of the policy was terminated аs of December 1, 1971.
On these facts a special master recommended that partial summary judgment be entered for the plaintiff on the issue of the insurer’s liability. The judge accepted that recommendation. After an assessment of damages, judgment was entered for the plaintiff for $5,000 on the death claim and $5,217.10 in health insurance benefits. The insurer appealed, and we allowed its application for direct appellate review.
1.
Incontestability and eligibility.
The principal question is whether the incontestability clause bars the defense that the decedent was not an employee eligible for coverage under the group insurance policy. That question has been discussed at length. See R. Keeton, Insurance Law 393-401 (1971); Young, “Incontestable” — As to What?, 1964 U. 111. L.F. 323, 336-340; Rail and Sfikаs, Group Insurance — Is the Incontestable Clause a Bootstrap Which Enlarges Coverage?, 5 Forum 51 (1969); Annot.,
Discussion commonly begins with the opinion of Chief Judge Cardozo in
Metropolitan Life Ins. Co.
v.
Conway,
That principle was extended in a number of cases in other States to the issue of eligibility for coverage under a group insurance policy. The extension involves a significant shift in the meaning of the word “coverage,” and substantially impairs the protection of the insured’s expectations under a group policy. Many courts have therefore characterized the eligibility issue as one of “validity” rather than “coverage.” In
Simpson
v.
Phoenix Mut. Life Ins. Co.,
The issue is one of first impression in Massachusetts, although the incontestability clause has been required for many years. See
New York Life Ins. Co.
v.
Hardison,
The incontestability clause in the рolicy in suit does not conform to the provision required by G. L. c. 175, § 134 (l),
1
for all policies of group life insurance. But the provision in the policy must read as “in every way as advantageous to thе insured and as desirable as the prescribed provision.”
New York Life Ins. Co. v. Hardison,
We hold that insurance on a decedent is incontestable after the insurer has treated him as an insured under a group policy for a period of two years during his lifеtime, *332 and that the defense that he was never an “employee” is then barred. We consider no question as to the effect of the termination of employment, nonpayment of prеmiums, or discontinuance of the group policy; those matters are the subject of elaborate provisions in the group policy. As to initial employment eligibility, we do not think the danger оf adverse selection of risks or the cost of investigating employment records is so significant as to require a departure from our traditional view of the incontestability clause as it appears in individual policies. See Metropolitan Life Ins. Co. v. DeNicola, 317 Mass, at 418.
2. Other issues. The insurer contends that the incontestability period ran only from the reissue of the policy on September 1, 1969, and that the clause appliеs only to the life insurance portion of the policy. Neither contention requires extended discussion. The reissue of the policy, though it might change various provisions, could not change the incontestability clause required by statute. Nothing in the record indicates that any facts relevant to the eligibility issue changed, and the insurer in these circumstances could not extend the incontestability period in this way.
The incontestability clause is required by statute only as to life insurance, and it appears in the portion of the policy under the heading “Group Life Insurance.” But by its terms it applies to the entire policy, and the standard of eligibility is the same for the health insurance portion as for the life insurance portion. The clause makes sense if aрplied to the entire policy, and any ambiguity in the policy is of course to be resolved against the insurer.
Under Mass. R. Civ. P. 56 (c),
Judgment affirmed.
Notes
As amended through St. 1968, c. 164, § 2: “1. That the policy shall be incontestable after two years from its date of issue except for non-payment of premiums; and that the insurance on any person insured under the рolicy shall be incontestable after it has been in force for a period of two years during such person’s lifetime except for violation of the conditions of the policy relating to military or naval service in time of war.”