Klein v. Equitable Life Assurance Society of the United States

162 Misc. 115 | N.Y. Sup. Ct. | 1935

Leary, J.

On April 1, 1921, the defendant issued to the plaintiff an insurance policy for a term of twelve months, with the right to renew by payment of a fixed premium in advance from term to term of twelve months each. The policy contained the following provision:

“ Weekly Indemnity.

“ If such injuries or disease shall wholly and continuously disable the Insured and prevent him from performing.any and every duty pertaining to his occupation, the weekly indemnity hereinafter specified will be paid for the period of such continuous disability, but not exceeding fifty-two weeks, either continuously or in the aggregate during the currency of this policy; provided, however, that if the Insured as a result of such injuries or disease is permanently unable to engage in any occupation or perform any work for compensation of financial value and such disability has then existed for a period of sixty days, the said weekly indemnity will be paid thereafter so long as the Insured shall live and suffer such disability regardless of the aggregate limit above specified.”

Plaintiff was wholly and continuously disabled within the meaning of the policy between March 28, 1932, and November 30, 1933, but on the latter date recovered from the disability. The weekly indemnity is $100. The defendant has paid plaintiff $2,571.36 weekly indemnity for the period from March 29,1932, to September 27,1932, and between July 25,1921, and March 21,1932, in addition to the latter mentioned sum, paid the plaintiff $2,528.56, representing weekly installments of indemnity for disability which occurred on various occasions prior to March 28, 1932, making a total payment to plaintiff for disabilities of $5,099.92, or installments representing a period of fifty-one weeks.

One must bear in mind that plaintiff is seeking to recover under the policy while wholly and continuously disabled, as distinguished from the permanent provision. The defendant contends that it is obligated to pay the plaintiff for a total period of fifty-two weeks, and, having paid fifty-one weeks, tenders the sum of $100. The plaintiff takes the position that defendant is liable for the full sum of $5,200 if the disability is total and continuous for a period not exceeding, either continuously or in the aggregate, fifty-two weeks during the currency of the policy.

Each renewal is a contract in itself. The liability which accrued on March 28, 1932, was fixed as of that date and continued in accordance with its terms for a period of fifty-two weeks thereafter. The plaintiff has received indemnities amounting to $2,685.64, leaving a balance due of $2,514.36.

Verdict is directed for the plaintiff in the sum of $2,514.36, with interest from March 28, 1933. -