Opinion
July 17, 1961
In an action upon a family policy of life insurance, brought by the widow and children of the principal insured to recover the amount presently payable and to obtain a judicial declaration of their future rights under the policy, in which the defendant alleged as a defense that decedent, the principal insured, falsely represented certain facts as to his health and medical history in the application for the policy and that it would not have issued the policy if it had known the truth as to any of the facts so misrepresented, the defendant appeals from an order of the Supreme Court, Kings County, dated July 25, 1960, which denied its motion to terminate its pending examination before trial by the plaintiffs, and which granted the plaintiffs' cross motion to the extent of directing the defendant: "(a) * * * to produce for examination before trial a witness or witnesses familiar with the facts of this case including but not limited to, knowledge of the facts with respect to changes in the application for the policy and knowledge of the facts upon which the claim of misrepresentation is made, such examination to be with respect to the relevant and material allegation of fact put in issue by the pleadings provided [that] plaintiffs may not examine into the manner or means by which defendant investigated and procured its facts; (b) * * * to produce at said examination all records of the defendant pertaining to the insurance policy, the subject matter of this action, provided that defendant need not produce confidential records or documents reflecting defendant's investigations after the issuance of the policy or the death of the insured; [and] (c) * * * to produce for the examination of plaintiffs' counsel all underwriting guides and manuals issued by defendant to its agents, brokers, medical examiners and underwriters pertaining to `genitourinary disturbances'". Order modified by striking out subparagraphs (a), (b) and (c) of the second decretal paragraph, and by substituting therefor the following: (1) Defendant is directed to produce for examination before trial a witness familiar with the practice of the defendant with respect to the acceptance or rejection of similar risks; and (2) Defendant is directed to produce all underwriting guides and manuals issued by defendant to its agents, brokers, medical examiners and underwriters pertaining to "genito-urinary disturbances" for use upon the examination pursuant to section 296 of the Civil Practice Act. As so modified, order affirmed, without costs. The examination shall proceed on 20 days' written notice or on any date mutually fixed by the parties by written stipulation. The plaintiffs are entitled to an examination of the defendant before trial to establish the practice of the insurer with respect to the acceptance or rejections of similar risks ( Kaplan v. Manhattan Life Ins. Co., 268 App. Div. 920; Rules Civ. Prac., rule 121-a; see, e.g., Lindenbaum v. Equitable Life Assur. Soc. of U.S., 5 A.D.2d 651). The defendant's home office is in Boston. It produced a doctor for examination who was one of its assistant medical directors and medical underwriters, who resided in Boston and who was employed in its home office. It is clear that no unauthorized changes in the decedent's application as amended by him were made and that the notations thereon which were made by defendant in the box labeled "Corrections and Amendments (For Home Office use only)," were made by the defendant for administrative purposes as authorized by subdivision 4 of section 142 Ins. of the Insurance Law. Therefore it was an improvident exercise of discretion to require the defendant to produce a witness with knowledge of the facts with respect to changes in the application. It is true that a bill of particulars is often not an adequate substitute for an examination before trial to which a party is entitled ( Sasson v. Lichtman, 277 App. Div. 1060). But here, when the minutes of the portion of the defendant's pretrial examination held heretofore are considered together with the bill of particulars which was furnished by the defendant after said examination, it was an improvident exercise of discretion to direct the defendant to produce a witness who had knowledge of the facts upon which the claims of misrepresentation were made. Nolan, P.J., Beldock, Ughetta, Christ and Brennan, JJ., concur.