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DEROSA v. ST. PAUL INSURANCE COMPANY (09/26/72)

decided: September 26, 1972.

DEROSA
v.
ST. PAUL INSURANCE COMPANY, APPELLANT



Appeal from order and judgment of Court of Common Pleas, Civil Division, of Allegheny County, No. 1600 of 1969, in case of Michael F. DeRosa, t/d/b/a Michael F. DeRosa Mortuary v. St. Paul Insurance Company.

COUNSEL

Kenneth S. Robb, with him Meyer, Darragh, Buckler, Bebenek & Eck, for appellant.

W. Tarteri and August C. Damian, with them Damian & Damian, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Packel, J. Hoffman and Spaulding, JJ., join in this dissent.

Author: Per Curiam

[ 222 Pa. Super. Page 425]

Order and judgment affirmed.

Disposition

Order and judgment affirmed.

Dissenting Opinion by Packel, J.:

A property insurance policy excluded loss due to water damage caused by defective piping but, after such a loss took place, an adjuster for the insurance company said there was coverage and told the insured where repairs could be made, and subsequently the insurance company mailed drafts for $2,658.97 for the repairs. The insurance company, however, stopped payment on the drafts on the ground of noncoverage for such water damage. The insured brought suit for the $2,658.97 and was successful in compulsory arbitration and later in a trial without a jury.

The basic question is whether the conduct of the adjuster and the insurance company should preclude its claim of noncoverage. Its conduct was based upon a mistake as to coverage. The insured bases his claim upon representations, waiver and estoppel.

Although the decision of Judge Spaulding in Wasilko v. Home Mut. Cas. Co., 210 Pa. Superior Ct. 322, 328, 232 A.2d 60, 63 (1967), has some differences, its basic principle is controlling here: "The rule is well established that conditions going to the coverage or scope of a policy of insurance, as distinguished from those furnishing a ground of forfeiture, may not be waived by implication from the conduct or action of the insurer. The doctrine of implied waiver is not available to bring within the coverage of an insurance policy, risks that are expressly excluded therefrom." That rule is the accepted view of most jurisdictions. See Annot., 1 A.L.R. 3d 1139 (1965). The decision ...


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