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SEIDENBERG v. MUTUAL LIFE INS. CO.

November 26, 1996

MIRIAM SEIDENBERG, Plaintiff,
v.
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Defendant.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This is a breach of contract action brought by plaintiff, Miriam Seidenberg ("Miriam Seidenberg"), against defendant, the Mutual Life Insurance Company of New York ("MONY"). Jurisdiction is alleged pursuant to 28 U.S.C. § 1332(a)(1) and appears to be proper.

 On 19 October 1995, Miriam Seidenberg filed a two count complaint (the "Complaint"), in the Superior Court of New Jersey, Law Division, Middlesex County, alleging breach of the terms of an insurance policy and breach of the covenant of good faith and fair dealing and an unfair trade practice in violation of N.J.S.A. 17B:30-13.1. On 21 November 1995, MONY removed the matter to this court.

 Miriam Seidenberg and MONY submitted cross motions for summary judgment (the "Seidenberg Motion for Summary Judgment Motion" and the "MONY Motion for Summary Judgment"). *fn1" The parties also submitted a joint stipulation of facts, with Exhibits A through O attached (the "Joint Stipulation of Facts"). For the reasons set forth below, the Seidenberg Motion for Summary Judgment is denied; the MONY Motion for Summary Judgment is granted.

 Facts

 A. The Parties

 1. Miriam Seidenberg

 Miriam Seidenberg, a resident of New Jersey, is the mother of Phyllis Seidenberg, the deceased. Joint Stipulation of Facts, P 1. Miriam Seidenberg is the primary beneficiary of a life insurance policy issued by MONY to Phyllis Seidenberg on 5 December 1983. Id.

 2. MONY

 MONY, is a mutual life insurance corporation organized under the laws of New York, with its principal place of business in New York, New York. Id., P 2. MONY engages in selling life insurance policies in the State of New Jersey. Id., P 6.

 B. Background

 Phyllis Seidenberg was a chiropractor with her practice located in Metuchen, New Jersey. Joint Stipulation of Facts, P 7. On 10 December 1982, MONY issued an Overhead Expense Policy, number 82X1-30-84 (the "Overhead Expense Policy") to Phyllis Seidenberg. Id., P 14. Phyllis Seidenberg paid the annual premiums for the Overhead Expense Policy in the amount of $ 288.00 up through and including the premium due on 10 December 1993. See Payment History for Overhead Expense Policy, attached as Exhibit C to Joint Stipulation of Facts.

 On 5 December 1983, Phyllis Seidenberg purchased a whole life insurance policy, number 1148-70-06 (the "Insurance Policy"), issued by MONY. Joint Stipulation of Facts, P 1. The Insurance Policy lists a face value of $ 250,000, payable upon proof of death of the insured. Insurance Policy at 5, attached as Exhibit A to the Joint Stipulation of Facts. The Insurance Policy required Phyllis Seidenberg to make annual premium payments of $ 5,130.00 on 5 December of each year. Insurance Policy at 5. Phyllis Seidenberg paid all premiums in the amount of $ 5,130.00 due under the Insurance Policy from 5 December 1983 until, but not including, 5 December 1993. Joint Stipulation of Facts, PP 10-11.

 Phyllis Seidenberg also purchased an optional Waiver of Premium (the "Waiver of Premium") as an additional benefit rider to the Insurance Policy. Joint Stipulation of Facts, P 8. The Waiver of Premium operates to waive payment of the insurance premium if the purchaser incurs a total disability that "continues with no interruption during the insured's lifetime for [six] months." Insurance Policy at 15.

 B. Medical History

 On 1 June 1993, Phyllis Seidenberg sought treatment from a medical doctor for persistent pain in her pelvic area. Complaint, P 9. A pelvic scan performed on that date revealed Phyllis Seidenberg suffered from ovarian cysts, which were diagnosed as benign. Id.,

 On 7 October 1993, Phyllis Seidenberg again sought medical treatment for pain in the pelvic region. Id., P 10. Tests performed between 20 October 1993 and 22 October 1993 revealed the ovarian cysts were malignant. Id. She was admitted to Lenox Hill Hospital for further testing on 29 October 1993, where the presence of a large malignant ovarian tumor was confirmed. Id.

 On 1 November 1993, Phyllis Seidenberg closed her chiropractic offices and ceased to practice her profession in order to devote herself to treatment of her pelvic carcinoma. Joint Stipulation of Facts, P 13.

 On 15 November 1993, Phyllis Seidenberg filed a claim of disability on her Overhead Expense Policy (the "Overhead Expense Claim"). Joint Stipulation of Facts, P 15. The Overhead Expense Claim was acknowledged in a letter, dated 1 December 1993, from MONY's Senior Disability Specialist, Ray Hahn (the "1 December 1993 Letter"). 1 December 1993 Letter, attached as Exhibit E to the Joint Stipulation of Facts. As instructed by the 1 December 1993 Letter, Phyllis Seidenberg completed and submitted an "Insured's Disability/Incapacity Statement" to MONY in support of her Overhead Expense Claim. Joint Stipulation of Facts, P 18; Insured's Disability/Incapacity Statement, attached as Exhibit F to the Joint Stipulation of Facts.

 On 3 November 1993, Phyllis Seidenberg traveled to Mexico to seek medical treatment. Complaint, P 11. On or about 10 November 1993, she returned to the United States and sought further medical treatment. Id., P 12. Exploratory surgery was performed. Id. Phyllis Seidenberg's condition was diagnosed as inoperable. Id.

 On 16 January 1994, after a brief stay at her brother's home, Phyllis Seidenberg was admitted to Robert Wood Johnson University Hospital in New Brunswick, New Jersey. Joint Stipulation of Facts, P ...


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