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Austrian v. Equitable Life

Court of Appeals of the State of New York
May 6, 1976
348 N.E.2d 893 (N.Y. 1976)


Argued April 1, 1976

Decided May 6, 1976

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, SAMUEL R. ROSENBERG, J.

Michael W. Brody and Werner Weinstock for appellant.

William Klein, II, Jeffrey Stephen Ramer and Patton R. Corrigan for respondents.

MEMORANDUM. The order of the Appellate Division should be affirmed.

In this action to recover double indemnity benefits under two life insurance policies issued by defendant, the sole issue is whether, upon conversion of the policies to paid-up insurance, the double indemnity provisions continued in existence.

Following an exchange of letters with the insured, it was mutually agreed that the policies were to be converted to paid-up insurance and defendant issued an endorsement to each policy which provided that "in accordance with the election made by the owner", the face value would be reduced to a certain sum "payable at the same time and under the same conditions as this policy but without further payment of premiums".

Defendant asserts that the election referred to in the endorsement pertains to the insured's right under a surrender or lapse clause in the policy which, if applicable, would eliminate double indemnity coverage from the policies. This contention must be rejected. At best, the endorsement is ambiguous as to whether "the election made by the owner" was under the surrender or lapse clause, or was an election which, by the exchange of letters, preserved the terms of the original policies. Lending credence to the latter and preferred position is the fact that the insurer does not claim there was any default in the payment of premiums. Additionally, even if the intention of the parties with respect to the election contained in the endorsement was found to be ambiguous, such ambiguity, under established rules of construction, must be resolved in favor of the insured (Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 N.Y.2d 356, 361; Walters v Great Amer. Ind. Co., 12 N.Y.2d 967, 968-969; Sincoff v Liberty Mut. Fire Ins. Co., 11 N.Y.2d 386, 390-391; see 29 N.Y. Jur, Insurance, §§ 617, 619, pp 607, 609).


Order affirmed, with costs, in a memorandum.

Summaries of

Austrian v. Equitable Life

Court of Appeals of the State of New York
May 6, 1976
348 N.E.2d 893 (N.Y. 1976)
Case details for

Austrian v. Equitable Life

Case Details

Full title:CARL J. AUSTRIAN, JR., et al., as Executors of CARL J. AUSTRIAN, Deceased…

Court:Court of Appeals of the State of New York

Date published: May 6, 1976


348 N.E.2d 893 (N.Y. 1976)
348 N.E.2d 893
384 N.Y.S.2d 418

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