New York Court of Appeals, 1976

Austrian v. Equitable Life Assurance Society

New York Court of Appeals · Decided May 6, 1976 · Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke Concur

39 N.Y.2d 477; 348 N.E.2d 893; 384 N.Y.S.2d 418; 1976 N.Y. LEXIS 2672

Cases that cite this one

6 later published cases cite this decision.

Coppotelli v. Insurance Co. of North America (District Court, E.D. New York 1980)
Jenkins v. Empire/Allcity Insurance (Appellate Division of the Supreme Court of New York 2001)
Liquidation of Galaxy Ins. v. Acceleration National Ins. (Appellate Division of the Supreme Court of New York 2000)
Zwerin v. Group Health, Inc. (Civil Court of the City of New York 1989)
United States Fidelity & Guaranty Co. v. Annunziata (N.Y. 1986)
Michigan Millers Mutual Insurance v. Christopher (Appellate Division of the Supreme Court of New York 1979)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

Memorandum. The order of the Appellate Division should be affirmed.

In this action to recover double indemnity benefits under two life insurance policies issued by defendant, the sole issue *479 is whether, upon conversion of the policies to paid-up insurance, the double indemnity provisions continued in existence.

Following an exchange of letters with the insured, it was mutually agreed that the policies were to be converted to paid-up insurance and defendant issued an endorsement to each policy which provided that "in accordance with the election made by the owner”, the face value would be reduced to a certain sum "payable at the same time and under the same conditions as this policy but without further payment of premiums”.

Defendant asserts that the election referred to in the endorsement pertains to the insured’s right under a surrender or lapse clause in the policy which, if applicable, would eliminate double indemnity coverage from the policies. This contention must be rejected. At best, the endorsement is ambiguous as to whether "the election made by the owner” was under the surrender or lapse clause, or was an election which, by the exchange of letters, preserved the terms of the original policies. Lending credence to the latter and preferred position is the fact that the insurer does not claim there was any default in the payment of premiums. Additionally, even if the intention of the parties with respect to the election contained in the endorsement was found to be ambiguous, such ambiguity, under established rules of construction, must be resolved in favor of the insured (Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361; Walters v Great Amer. Ind. Co., 12 NY2d 967, 968-969; Sincoff v Liberty Mut. Fire Ins. Co., 11 NY2d 386, 390-391; see 29 NY Jur, Insurance, §§ 617, 619, pp 607, 609).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.