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WEINER v. METROPOLITAN LIFE INS. CO.

June 30, 1976

IDA WEINER
v.
METROPOLITAN LIFE INSURANCE COMPANY



The opinion of the court was delivered by: GORBEY

 GORBEY, District Judge.

 This suit was originally brought in the state court and thereafter removed to this court by the defendant because of diversity of citizenship and a claim for an amount in excess of ten thousand ($10,000) dollars exclusive of interest and costs. This court has original jurisdiction under 28 U.S.C. § 1332.

 The complaint is in four counts, each involving a separate insurance policy. The Count I policy, Policy No. 666-330-014-PR is a life insurance policy with an accidental death benefit rider. This policy provided life insurance in the amount of $60,000.00 and the accidental death benefit rider provides death benefits in the amount of $120,000.00. The amount due under the life policy, $60,000.00, has already been paid. The Count I policy provides, *fn1" with respect to the accidental death benefits, the following:

 
The Company will pay to the Beneficiary [the benefits set forth] . . . [if] the death of the Insured occurred . . . as the result, directly and independently of all other causes, of bodily injury caused solely by external, violent, and accidental means.
 
Risks Not Covered -- [these benefits] will not be payable if the Insured's death: . . .
 
(b) is caused or contributed to, directly or indirectly, by disease or bodily or mental infirmity, or medical or surgical treatment therefor . . .
 
If, while this policy is in force, the insured shall sustain bodily injuries caused directly and independently of all other causes by external, violent, and accidental means, and if such bodily injuries shall cause, directly and independently of all other causes, [death] . . . the Company shall pay [benefits set forth] . . .
 
RISKS EXCLUDED
 
This policy shall not cover, and no payment of any kind shall be made hereunder for [death] . . . which [is] . . . caused directly or indirectly, wholly or partly, by . . .
 
(b) disease, or bodily or mental infirmity, or medical or surgical treatment therefor or diagnosis thereof . . .

 The Count III policy -- Policy No. 3 135 456 AH is a personal accident policy payable to the plaintiff as beneficiary with accidental death benefits in the amount of $12,500.00. This policy provides, inter alia, as follows:

 
If, while this policy is in force, the insured sustains accidental bodily injuries which, directly and independently of all other causes, result in [death] . . . the Company will pay [the benefits set forth] . . .
 
EXCLUSIONS
 
1. This policy does not cover, and no payment will be made for, [death] . .. caused or contributed to by . . .
 
(f) Disease, or bodily or mental infirmity or medical or surgical treatment or diagnostic procedure for such disease or infirmity . . .

 The Court IV policy -- Policy No. 1 973 584 AH is a personal accident medical expense policy having an accidental death benefit of $7,500.00 payable to plaintiff as beneficiary.

 The pertinent part of this policy is as follows:

 
If, while this policy is in force, the insured shall sustain bodily injuries caused directly and independently of all other causes by external, violent and accidental means and if such bodily injuries shall cause, directly and independently of all other causes [death] . . . the Company shall pay [the benefits set forth] . . .
 
RISKS EXCLUDED
 
This policy shall not cover, and no payment of any kind shall be made hereunder for [death] . . . which [is] . . . caused or contributed to by . . .
 
(f) Disease, or bodily or mental infirmity or medical or surgical treatment therefor or diagnosis thereof . . .

 With respect to policies 2, 3 and 4, the defendant has raised the additional defense that no affirmative proofs of loss were furnished to the defendant insurance company within the ninety days after the date of the insured's death, as required by the policies. The principal defense of defendant insurance company is that the insured did not die an accidental death under the terms of the policies. It is conceded by both parties that the law applicable is the law of Pennsylvania.

 As pointed out in Johnson v. Kentucky Central Life & Accident Ins. Co., 144 Pa. Super. 116, 18 A.2d 507 (1941) there are two classes of cases which must be sharply distinguished, i.e. (i) where the terms of the policy provide for the payment of the accidental death benefit in the event of the death of the insured, resulting directly and independently of all other causes through external, violent and accidental means; (ii) where the policy contains an additional restrictive clause avoiding payment of the indemnity if "death of the insured results directly or indirectly from disease or from bodily or mental infirmity". Id. at 511.

 The first class of cases is represented by Kelley v. Pittsburgh Casualty Co., 256 Pa. 1, 100 A. 494 (1917). In that case, the court wrote, inter alia :

 With respect to the Kelley case, the Supreme Court of Pennsylvania in Real Estate Trust Co. v. Metropolitan Life Ins. Co., 340 Pa. 533, 17 A.2d 416 (1941) stated:

 
". . . it would appear that the 'proximate cause' rule adopted in the Kelley case has no application in construing policies which contained the additional 'disease and infirmity' clause which was before us in the Ewing and Arnstein cases." 340 Pa. at p. 541, 17 A.2d at p. 420.

 In the Arnstein case, 329 Pa. 158, 196 A. 491 (1938), the court adopted an interpretation of the term "bodily infirmity" in accord with that of Chief Judge Cardozo in Silverstein v. Metropolitan Life Ins. ...


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