On June 25, 1946, the insurance company notified plaintiff, in writing, as follows:
'Dear Mr. Lauro:
'Under the terms of the disability provision of your policy the company is permitted to continue benefits only so long as you continue to be totally and permanently disabled so as to be completely unable to perform any and all kinds of work or to engage in business. Upon the termination of such a state of disability, benefits cease and premiums become payable thereafter as they fall due.
'Medical and other proof recently received at this office shows that you are not totally disabled. In fact, it appears that you have not been completely incapacitated as required by the disability coverage for a considerable period in the past during which time you have accepted payments to which you have not been entitled.
'In the circumstances, we have no alternative but to remove the insurance from the Disability Account and restore the policy to a premium paying basis. The due date of the next premium payable is February 7, 1947.
'Yours truly '(s) F. G. Dress * * * '
Plaintiff asserts that the foregoing notice, coupled with the conduct of the defendant, constitutes a breach of the entire contract of insurance, and amounted to an anticipatory breach. Upon this premise he sues for $ 19,800 damages, basing the amount on the mortality tables.
Defendant's counsel argues that the foregoing notice does not constitute a breach of the entire contract: That on the contrary it gives notice pursuant to the provisions of the policy; that it attacks only its liability to continue the total disability payments and continues the policy in full force and effect upon a premium paying basis. I agree with counsel's argument, on this point, in view of the law as laid down in the following case: New York Life Insurance Co. v. Viglas, 297 U.S. 672, 56 S. Ct. 615, 80 .Ed. 971; Mobley v. New York Life Insurance Co., 295 U.S. 632, 55 S. Ct. 876, 79 L. Ed. 1621, 99 A.L.R. 1166; Marciano v. Metropolitan Life Insurance Co., 179 Misc. 758, 41 N.Y.S.2d 773; O'Neill v. Supreme Counsel, American Legion of Honor, 70 N.J.L. 410, 57 A. 463, 1 Ann.Cas. 422.
There is yet to consider whether there is any allegation in the complaint, bearing upon defendant's conduct, which can be construed as in the nature of an anticipatory breach. The language of the complaint insofar as pertinent is as follows:
'The defendant's wilful and material breaches repeatedly committed in bad faith, as alleged, over a period of 15 years constitute an intentional abandonment, repudiation and revocation of the disability clause of the contract of insurance, anticipatorily breached, which entitles the plaintiff to consider the contract aforesaid at an end and to recover the loss of the disability benefits which accrued and are to accrue in the future, anticipating his disability to continue for his entire expectation of life, which according to the American Experience Mortality Tables will be for the next 16.05 years, thereby avoiding a multiplicity of vexatious suits.'
The foregoing states no pertinent facts and is wholly argumentative. Further the complaint alleges that proof of disability was submitted to the insurance company, and commencing December 1, 1941 disability payments were made until June 1, 1946, except for an ad interim default of five months, ending with a $ 500. lump sum payment on May 17, 1943. Also, that at the request of the defendant, the plaintiff was obliged to submit to medical examinations by physicians designated by the insurance company on April 5, 1945, and again by two company physicians, in Newark, during April, 1946. These examinations were made while the insurance company was making disability payments. The policy provides for such examinations 'not oftener than once a year.' It therefore appears that the company was functioning within the terms of its policy in conducting the examinations, they cannot, therefore, be construed as in breach of the policy.
The total amount involved, for failure to make monthly disability payments, falls below the jurisdiction of this Court.
The motion to dismiss the complaint is granted.
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