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BARBARA ANN D'ALLESSANDRO v. DURHAM LIFE INSURANCE COMPANY (10/30/81)

filed: October 30, 1981.

BARBARA ANN D'ALLESSANDRO,
v.
DURHAM LIFE INSURANCE COMPANY, APPELLANT



No. 100 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Bucks County at No. 76-6353-05-1

COUNSEL

Hugh M. Emory, Paoli, for appellant.

William E. Benner, Doylestown, for appellee.

Hester, Cavanaugh and Van der Voort, JJ. Hester, J., files dissenting opinion.

Author: Cavanaugh

[ 291 Pa. Super. Page 614]

On or about March 21, 1975, Charles D'Allessandro applied for group life insurance with the Durham Life Insurance Company and signed an application in which he stated that in the prior five years he had not consulted a physician. He also stated that he never had heart trouble, high blood

[ 291 Pa. Super. Page 615]

    pressure or chest pains.*fn1 At that time he had a history of coronary and other heart problems, including coronary pain consistent with coronary disease and angina pectoris. During the period in question Mr. D'Allessandro had been hospitalized at St. Agnes Hospital in Philadelphia for recurrent coronary insufficiency pain and at Roxborough Memorial Hospital for kidney problems. He had also been treated by a Dr. Segal for renal cholic. On July 1, 1975, the appellant, Durham Life Insurance Company, issued a group life insurance policy in the amount of $50,000.00 to Mr. D'Allessandro and his wife, Barbara D'Allessandro, the appellee herein, was named the beneficiary. Mr. D'Allessandro died on October 14, 1975, as a result of coronary artery disease. Prior to his death he paid premiums in the amount of $400.65. A copy of the application containing the insured's statements was furnished to the insured during his lifetime. Appellee claimed the proceeds of $50,000.00 under the insurance policy which the appellant refused to pay. Appellee then commenced an action in assumpsit. The matter was decided by Judge Garb on the basis of stipulated facts. Appellee's motion for summary judgment was granted and appellant's motion for summary judgment was denied. A verdict was entered for appellee and against appellant in the amount of $50,000.00 and Durham Insurance Company has appealed to this Court.

The sole issue for our determination is whether the application for insurance which was completed and signed by Mr. D'Allessandro may be used by the appellant to contest the claim of appellee, the named beneficiary under the policy. The court below determined that the application contained obviously false representations but that it could not be used

[ 291 Pa. Super. Page 616]

    to contest the appellee's claim. Appellee agrees that the misstatements of Mr. D'Allessandro in his application for insurance were of such a nature that she would be barred from claiming under the policy if the application could be used to contest the claim. The policy itself deals with contestability and states:

" INCONTESTABILITY -- STATEMENTS BY INSURED PERSONS

The insurance of any person shall be incontestable after it has been in force for two years. All statements made by any of the persons insured hereunder shall be deemed representations and not warranties and no such statement shall be used in defense of a claim hereunder unless it is contained in a written instrument signed by him and unless a copy of the instrument containing the statement has been furnished to the person making the claim."

The insured died within two years after the issuance of the policy so that it does not become incontestable because of the first sentence. Incontestability, if it exists, would be based on the second sentence. The court below found that the appellee was not furnished with a copy of the application signed by Mr. D'Allessandro until after his death and under the court's interpretation ...


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