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AGNES M. KLISCHER v. NATIONWIDE LIFE INSURANCE COMPANY (10/17/80)

filed: October 17, 1980.

AGNES M. KLISCHER
v.
NATIONWIDE LIFE INSURANCE COMPANY, APPELLANT



No. 1526 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Columbia County, Civil Action-Law, at No. 187 of 1977.

COUNSEL

Carl Rice, Sunbury, for appellant.

Gailey C. Keller, Bloomsburg, for appellee.

Price, Watkins and Hoffman, JJ. Watkins, J., dissents.

Author: Hoffman

[ 281 Pa. Super. Page 294]

Appellant, Nationwide Insurance Company, contends that the lower court erred in: (1) concluding that appellant had the burden of establishing the insured's awareness and understanding of an exclusionary clause in an insurance policy, and (2) admitting, over timely objection, testimony as to the insured's understanding of the scope of coverage under the policy. We disagree with both contentions and, accordingly, affirm the order of the lower court.

Appellee, Agnes M. Klischer, was named as beneficiary in an insurance policy issued by appellant to her son Guy B. Klischer, the insured. It provided basic life insurance coverage in the amount of ten thousand dollars. The insured also purchased a separate accidental death benefit rider which

[ 281 Pa. Super. Page 295]

    provided that an additional ten thousand dollars would be paid if the insured's death resulted "directly . . . from external, violent, and accidental bodily injury." The rider excluded from coverage, however, certain risks which were deemed to be "Risks Not Assumed." One such risk was death resulting from "travel or flight in any species of aircraft if an Insured has any duties relating to such aircraft or flight . . . ."

Because the facts surrounding Klischer's purchase of the accidental death benefit rider are critical to the resolution of the issues presented to us, we must recite them in some detail.

Appellant's agent had serviced the life and business insurance needs of Klischer and his family for several years before the application for the instant policy and was aware of Klischer's interest in recreational aviation. The agent assisted Klischer in the preparation of the necessary forms. Because Klischer indicated that he was an amateur pilot, he was required to complete a supplemental aviation questionnaire. The agent assisted in the preparation of that form as well. The final question was as follows:

11. Should the Company determine that the above described aviation activities are too hazardous for standard rates, either a rating or an Aviation Exclusion Provision will be required. If ...


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