Phyllis W. Loss, Plaintiff-appellant, v. the Mutual Life Insurance Company of New York, Defendant-appellee, 334 F.2d 242 (2d Cir. 1964)

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US Court of Appeals for the Second Circuit - 334 F.2d 242 (2d Cir. 1964)

Argued April 7, 1964
Decided July 14, 1964

Appeal from a judgment dismissing the complaint after a non-jury trial in the United States District Court for the Southern District of New York, Edward C. McLean, Judge.

Leon Wasserman, New York City (Kleiger & Kleiger, New York City, of counsel), for plaintiff-appellant.

Richard I. Fricke, New York City (Carl F. Hollander, Trial Counsel; Michael L. B. Kaplan, New York City, of counsel), for defendant-appellee.

Before LUMBARD, Chief Judge, and MOORE and SMITH, Circuit Judges.


In this diversity action, appellant-beneficiary seeks to recover the face amount, less an outstanding loan, of a life insurance policy which appellee-insurer claims had lapsed prior to the death of the insured. To avoid this consequence, the result of the insured's admitted failure to pay premiums, appellant advances numerous theories, namely, that appellee incorrectly advised the insured that a cash payment was required to satisfy a premium payment; that appellee failed to give the required notice that outstanding loans and interest would equal or exceed the policy's loan value; that appellee failed to properly notify the insured of the payments necessary to avoid the lapse; and that appellee should have applied equity in other policies owned by the insured to the payment of the premium in question.

The thorough opinion of the district court, 230 F. Supp. 329 (S.D.N.Y. 1963) analyzes the facts in considerable detail and applies the proper legal principles in rejecting each of appellant's theories. We affirm the judgment dismissing the complaint on the basis of that opinion.

Judgment affirmed.