On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Pressler, O'Brien and Scalera. The opinion of the court was delivered by O'Brien, J.A.D.
In this suit for recovery of the proceeds of a life insurance policy with a counterclaim for rescission of the policy, plaintiff appeals from a summary judgment in favor of defendant. We reverse and remand for trial.
Plaintiff is the widow and beneficiary under a life insurance policy in the amount of $300,000 issued by defendant Northwestern Mutual Life Insurance Co. (NML) on the life of her husband Allen Golden (the insured) who died on July 8, 1985 at age 46 of "cardiac arrest due to or as a consequence of metastatic renal cell carcinoma."
The insured had applied for the policy through Howard Tepper (Tepper), an agent for defendant, on May 16, 1984. On May 17, 1984, at his home, the insured underwent a perfunctory medical examination by Dr. David M. Glass, sent by NML, who filled out the appropriate section of the application form. The insured had disclosed in the application that he had been rated on a previous policy by Equitable Life Insurance Company because of an erroneous diagnosis of pulmonary embolism contained in the records of a hospital where he had been admitted for a bronchial infection. The section of the application filled out by Dr. Glass revealed that the insured had a family history of heart disease and that his father died at age 44, and his mother at age 61, of a "m.i.," presumably myocardial infarction. The insured identified his personal physician as Dr. Jacob Lewis, whom he had last seen two years previously for a cold.
On this appeal, we are concerned with the insured's answers to certain questions as recorded by Dr. Glass in the application form. The following answers were given to the pertinent subdivisions of question # 33.
33. Have you ever been treated for or ever had any indication of:
F. Sugar, albumin, blood in urine; venereal disease, stone or other disorder of kidney, bladder, prostate, or reproduction organs?
G. Diabetes; thyroid or other endocrine disorders?
J. Disorder of skin, lymph glands, cyst, tumor or cancer?
The insured gave the following answers to the pertinent subdivisions under question # 34:
34. Other than above, have you within the past five years:
A. Had any physician or practitioner examine, advise or treat you?
For common cold two years ago.
C. Had EKG, X-ray, other test.
D. Been advised to have any test, hospitalization, or surgery which was not completed.
Under a remarks section Dr. Glass gave the following information by way of explanation to the "yes" answers:
F. Congenital kidney malformation, one kidney is larger than the other pt. claims that smaller kidney doesn't function. No hx of recurrent kidney infections.
Pilonidal cyst excised 32 years ago. No recurrence.*fn1
The examination revealed that the insured was six feet tall and weighed 227 pounds. Three blood pressure readings were submitted, 124/82; 122/84; 122/82, apparently in accordance with the request for three readings where "there is a history of elevated blood pressure." A urinalysis ...