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GROSS v. PENN MUT. LIFE INS. CO.

March 29, 1973

Murray D. GROSS, Plaintiff,
v.
The PENN MUTUAL LIFE INSURANCE COMPANY, Defendant


Ditter, District Judge.


The opinion of the court was delivered by: DITTER

DITTER, District Judge.

 This case comes before the court on defendant's motion for summary judgment. The matter involves the interpretation of a provision for dividends in an annuity policy sold by a mutual insurance company.

  On August 2, 1933, the defendant, Penn Mutual Life Insurance Company, issued its Policy No. 1,770,900 *fn1" to the plaintiff, Murray D. Gross, in return for a premium of $2,500. In December, 1934, and July, 1935, Gross made further premium payments of $25,000. and $22,500. respectively.

 Included in the policy are these relevant provisions:

 
"DIVIDENDS
 
Dividends of Surplus under this Policy shall be awarded and may be used as provided in Section 1."
 
"Section 1. PARTICIPATION -- DIVIDENDS OF SURPLUS
 
Annual dividends. This Policy will participate in surplus prior to the commencement of the life income payments. Dividends will be determined and accounted for by the Company and will be available at the end of each policy-year. . . ."
 
. . .
 
"Section 7. OTHER PROVISIONS
 
Policy and application entire contract. This policy and the application therefor, a copy of which is attached hereto, constitute the entire contract between the parties . . ."

 Each year since 1936, the plaintiff has been notified that he would not receive dividends *fn2" and, in fact, none were paid. In 1971 he filed this action for an accounting and to require the payment of dividends alleging that under any fair, equitable, intelligent method he should have received $3000. a year for the years between 1936 and the commencement of suit.

 The defendant has moved for summary judgment claiming that under its procedures for policy classification and methods of calculation, no dividends were due and that in any event, the claim is barred by laches. In the alternative, Penn Mutual moves for summary judgment covering the period prior to 1965 because the ...


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