Clapp, Davidson and Sullivan. The opinion of the court was delivered by Davidson, J.s.c. (temporarily assigned).
This is an appeal from an order granting summary judgment in favor of defendant insurance company.
Plaintiff instituted the action as beneficiary under a group non-occupational accidental death policy issued by defendant on September 1, 1946 to Sherwin-Williams Paint Company and subsidiary and affiliated companies. A group life insurance policy was issued at the same time. In May 1953, upon entering the employ of a subsidiary, a certificate of insurance was issued by defendant company on the life of the insured pursuant to the terms of both policies.
The insured died on September 7, 1953, and plaintiff made a claim under both policies. Defendant paid the amount due under the terms of the group life policy, but refused to pay any benefits claimed under the group non-occupational accidental death policy. This action was instituted in April 1956, and defendant's motion for summary judgment was granted by reason of a provision in the group non-occupational accidental death policy that
"No action at law or in equity shall be brought to recover prior to the expiration of sixty days after proof of claim has been filed in accordance with these requirements, nor shall such action be brought at all unless brought within two years from the expiration of the time within which proof of claim is required by this policy." (Emphasis added.)
Admittedly the action was not instituted within the time period set forth in the contract, but plaintiff contends that the non-occupational accidental death policy is a mere supplemental contract to the group life insurance policy containing equal additional benefits, and so controlled by the limitation period set forth in N.J.S.A. 17:34-16(b), which precludes the inclusion in an individual life insurance contract of a provision limiting the time within which such an action may be instituted to less than five years after the cause of action accrues. Relying upon N.J.S.A. 17:34-19, she contends that while certain sections of chapter 34 applying to individual life insurance policies are said not to be applicable to group life insurance policies, the other sections, including N.J.S.A. 17:34-16(b), do apply to group life insurance contracts. N.J.S.A. 17:34-20 permits a life insurance company to provide:
"* * * in its policies of insurance, or in separate policies supplemental thereto, for the payment of a larger amount of insurance if death is caused by accident * * *." (Emphasis added.)
Plaintiff argues that defendant insurance company merely issued accidental death insurance supplemental to group life insurance and points to the fact that both policies were
issued to the group at the same time; none of the employees in the group received one policy without the other; the face amount of the policies was identical; only one certificate of insurance was issued to the employees, which contained the essential provisions of both policies. To support her argument plaintiff cites N.J.S.A. 17:38-12, which provides that nothing in that "chapter" (chapter 38 of Title 17 deals with accident insurance) shall:
"* * * apply to life insurance * * * nor to any such contract or contracts supplemental thereto containing or providing for additional benefits of any kind in the event of death by accidental means * * *." (Emphasis added.)
Plaintiff's contention is that the policy in question is supplemental to a group life contract and controlled by the five-year provision set forth in N.J.S.A. 17:34-16(b), and thus the two-year limitation provided in the policy is invalid, ...