Insurer's Agent Failure to Obey the Regulation
In Tannenbaum v. Provident Mut. Life Ins. Co. of Philadelphia, 41 N.Y.2d 1087, 396 N.Y.S.2d 351, 364 N.E.2d 1122 (1977) the insured made misstatements in his application for life insurance, which would normally have given rise to a defense to a claim for benefits.
However, the insurer's agent had failed to comply with the then-extant Regulation, 11 NYCRR 48.5, relating to disclosure of comparative benefits and the disadvantages of the new policy as compared with the one it was replacing.
The insurer's failure to obey the Regulation was caused by its negligence, not its deliberate conduct, in that the insurer should have, but did not, ascertain that the policy was a replacement for an existing policy.
The Court held that the insurer's failure to speak as required by the Regulation precluded it from disclaiming liability.
The opinion is silent as to any affirmative showing of reliance by the insured, thus illustrating that the holding is not based on principles of mere estoppel, but rather, on the premise that a Regulation which imposes a duty to speak, even where not giving rise to a private right of action, imposes obligations enforceable by private parties, see also, Trainor v. John Hancock Mut. Life Ins. Co., 54 N.Y.2d 213, 445 N.Y.S.2d 81, 429 N.E.2d 759; Farley v. Metropolitan Life Ins. Co., 127 A.D.2d 99, 513 N.Y.S.2d 712 (2d Dept 1987).
These principles are further demonstrated in Westbury Small Business Corp. v. Ballarine, 128 Misc. 2d 469, 489 N.Y.S.2d 815 (Sup Ct, Nassau County 1985), affd 125 A.D.2d 462, 509 N.Y.S.2d 569 (2d Dept 1986). the Court held that violation of GBL 199-b, which requires certain disclosures to be made to prospective franchise dealers but which provides for no remedy, amounted to affirmative fraud and provided a defense to an action on a promissory note. the Court held, at 476:
the failure to provide defendant with the mandated information resulted in an active concealment.
And concluded, at 478:
there was silence by Power Test in the face of its statutory duty to speak, and the defendant relied upon this silence and was thereby induced into entering into this arrangement and executing the subject promissory note.