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ROSNER v. ZURICH INSURANCE COMPANY. (01/16/62)

January 16, 1962

ROSNER, APPELLANT,
v.
ZURICH INSURANCE COMPANY.



Appeal, No. 339, Oct. T., 1961, from order of County Court of Philadelphia, Sept. T., 1960, No. 8772-B, in case of Sidney Rosner v. Zurich Insurance Company. Order affirmed.

COUNSEL

Alan Kahn, with him Winokur & Kahn, for appellant.

Albert L. Bricklin, with him Bennett and Bricklin, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Montgomery

[ 197 Pa. Super. Page 91]

OPINION BY MONTGOMERY, J.

This is an appeal from an order sustaining the preliminary objection of the appellee insurance company and entering judgment in its favor. Since preliminary objections by way of demurrer accept as true all the facts pleaded by the party against whom the objection is made, we assume the following to be the actual circumstances which gave rise to the present issue.

Appellant is a partner in the firm of A. Servetnick & Sons of Philadelphia, Pennsylvania. In August of 1958 the firm consulted the appellee company with reference to purchasing a group disability policy which would provide certain desired coverage for the employes and members of the firm. In response to the inquiry the appellee sent an employe, Alvin Brockow, whom it represented to be the insurance company's expert and specialist upon the subject of group disability insurance policies, to consult with members of the partnership firm, including the appellant. Brockow represented to them that the appellee company's policy

[ 197 Pa. Super. Page 92]

    would completely cover both partners and their employes in the event of any injury, sickness, or disease which any of them might suffer. Brockow stated that the "occupational exclusion" contained in part VII of the policy was designed to exclude only such injuries and sicknesses as were compensable under the Workmen's Compensation Act of Pennsylvania.

Consequently, Brockow advised them, since all of the partners and employes would be fully covered either under this group policy or their workmen's compensation insurance, it would no longer be necessary for the firm to retain certain agreements of insurance which it then had in effect with the Associated Hospital Service of Philadelphia and the Medical Association of Philadelphia, commonly known as Blue Cross and Blue Shield. Solely in reliance on these representations by Brockow, the firm, with the knowledge and consent of the appellant, cancelled its Blue Cross and Blue Shield coverage. The new contract of insurance with the appellee company was delivered on September 1, 1958.

On March 23, 1960 the appellant sustained certain injuries which disabled him from engaging in his occupation for a period of over four months and caused him to suffer a financial loss of approximately $3,000. Appellant filed a claim under the Zurich Insurance Company policy, but the company refused to pay benefits on the ground that the injury arose out of the appellant's occupation and was therefore non-compensable under part VII of the policy. Appellant, as a partner, is not covered by workmen's compensation insurance.

Appellant contends that on the basis of these facts an estoppel has occurred which prevents the company from pleading this "occupational exclusion" under part VII, and, that the lower court erred in its application of the parol evidence rule since the appellant is not attempting to alter ...


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