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MYRTLE UNDERWOOD v. PRUDENTIAL INSURANCE COMPANY AMERICA (06/28/76)

decided: June 28, 1976.

MYRTLE UNDERWOOD, ADMINISTRATRIX OF THE ESTATE OF LEE E. UNDERWOOD, DECEASED, APPELLANT,
v.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA



COUNSEL

Samuel J. Goldstein, Pittsburgh, for appellant.

John H. Scott, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.

Author: Price

[ 241 Pa. Super. Page 29]

This suit was brought by Lee E. Underwood to recover proceeds of a life insurance policy on the life of Frank L. Underwood. Lee E. Underwood died during the course of the proceedings and Myrtle Underwood, the administratrix of Lee E. Underwood's estate, was substituted as plaintiff. In the lower court, both parties moved for summary judgment and both motions were denied. The case proceeded to trial, non-jury, and resulted in a verdict in favor of the defendant-appellee. We affirm.

On November 20, 1967, Frank L. Underwood, at that time aged 59, executed the first part of a two-part application for life insurance from the appellee. The application was for a $10,000.00 ten year decreasing term policy with monthly premium of $14.30. The second part of the application was not executed until December 9, 1967. From November 22, 1967 to December 7, 1967, Mr. Underwood had been a patient at South Side Hospital, Pittsburgh, Pennsylvania, under the supervision of Dr. Loren Rosenbach. After a series of diagnostic tests,

[ 241 Pa. Super. Page 30]

Dr. Rosenbach diagnosed Mr. Underwood's condition as arteriosclerotic heart disease with congenital heart failure, pulmonary edema, and pleural effusions. After discharge from the hospital, Mr. Underwood was required to take medicines used in the treatment of heart disease and to follow a low sodium diet.

After receiving the second part of Mr. Underwood's application, appellee refused to issue the policy at the $14.30 premium but offered to issue the policy at a monthly premium of $25.40. Mr. Underwood agreed to pay the higher premium and the policy was issued on December 14, 1967. On January 6, 1969, Mr. Underwood filed an application to exercise the conversion privilege contained in the policy. On January 14, 1969, appellee issued a limited payment life insurance policy, in the face amount of $3,500.00, with monthly premium of $26.88. On December 9, 1969, Mr. Underwood died.

Appellee has failed to pay the proceeds of the policy to the beneficiary, arguing that its obligation was eliminated by false statements made by the insured in the second part of the application. The second part of the application was required to be completed by a medical doctor, and consisted of detailed inquiries into the applicant's medical history. Some of the questions asked and answered in the negative are as follows:

"5. Have you ever been treated by any physician or other practitioner for or had any known indication of:

     a. heart trouble or murmur, chest pain, high blood pressure, or abnormal pulse?

"6. Have you even been treated by any physician or other practitioner for or had any known indication of any disease or disorder of any of the following ...


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