On appeal from Superior Court, Chancery Division, Passaic County.
Furman, Shebell and Stern. The opinion of the court was delivered by Shebell, J.A.D.
Appellant, Massachusetts Mutual Insurance Company, appeals a Law Division ruling that the application of decedent, Albert Manzo, Jr., for life insurance is inadmissible as evidence in a declaratory judgment action in which the insurer seeks to rescind a Conditional Receipt and policy of insurance because of alleged material misrepresentations in the health history contained in the application.
Respondents objected to introduction of the application even though it was attached to the policy of insurance, on the assertion that N.J.S.A. 17B:24-3 precludes admission of an application for a life insurance policy unless attached to the policy and delivered to the insured while alive. The trial judge ruled that the application was not admissible in evidence because of the bar of the statute. We granted leave to appeal and reverse.
On June 8, 1983 Albert Manzo, Jr. signed Part 1 of an application for a $500,000 policy of insurance with Massachusetts Mutual. On June 28, 1983 he was examined by a physician at the insurer's request and as part of that examination, which was a condition of the issuance of the policy, the doctor completed Part 2 of the application inserting the medical history as related by Mr. Manzo, as well as the examination results. Manzo signed beneath the following provision:
I agree that: (1) this application consists of Parts 1 and 2 and any amendments and supplements which shall be attached to the policy issued, and (2) no knowledge on the part of any agent, medical examiner or any other person as to any facts pertaining to me shall be considered as having been made to or brought to the knowledge of the Company unless stated in either Part 1 or 2 of this application or any amendments or supplements. [(emphasis ours)].
On July 24, 1983 Manzo gave the agent who had solicited the application $200 in exchange for a "Conditional Receipt." Manzo signed beneath a provision which reads:
I have read this receipt and have received a signed copy of it. I understand that it states when the insurance (or reinstatement) applied for will become effective if all required conditions are met, but that it does not provide any temporary or interim insurance. I agree to the terms, conditions and limits of this receipt.
On August 22, 1983 Manzo's body was found in the trunk of an automobile. It was determined that he had died on or about August 18, 1983 of multiple gunshot wounds. On August 31, 1983 the insurer "issued" the policy of insurance, although it indicated on its face that it was issued on June 13, 1983, with coverage effective as of June 13, 1983. However, the original policy was retained in the insurer's files. The policy was issued at standard rates based upon information contained in the application and that supplied by Manzo's physician. In February 1984 Massachusetts Mutual brought an action to avoid coverage on the grounds of misrepresentations in the policy application and the insured's failure to meet conditions set forth in the Conditional Receipt and the policy. Following the commencement of trial and the barring of the application into evidence, the trial judge recognized that the contents of the application and therefore its admissibility were central to the insurer's case and stayed the proceedings pending appeal.
N.J.S.A. 17B:24-3a provides:
No application for any life or health insurance policy or annuity contract shall be admissible in evidence in any action relative to such policy or contract, unless a copy of the application was attached to or endorsed upon the policy or contract when issued. [(emphasis added)].
The trial judge did not deny admission of the application because of a failure to attach the application to the policy or because the policy was not issued or delivered until after Manzo's death; rather, the application was excluded because the court interpreted the statutory language "when issued" to mean "when delivered to the insured." ...