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THELMA O'MALLEY v. CONTINENTAL INSURANCE COMPANY (10/08/82)

filed: October 8, 1982.

THELMA O'MALLEY, ADMINISTRATRIX OF THE ESTATE OF WILLIAM F. GAVULIC, DECEASED; THELMA O'MALLEY, ADMINISTRATRIX OF THE ESTATE OF SHIRLEY ANN GAVULIC, DECEASED; THELMA O'MALLEY, ADMINISTRATRIX OF THE ESTATE OF KEVIN GAVULIC, DECEASED; THELMA O'MALLEY, ADMINISTRATRIX OF THE ESTATE OF BRIAN GAVULIC, DECEASED, AND WILLIAM GAVULIC, A MINOR, BY THELMA O'MALLEY, HIS MATERNAL GRANDMOTHER AND NATURAL GUARDIAN, AND MICHAEL GAVULIC, A MINOR BY THELMA O'MALLEY, HIS MATERNAL GRANDMOTHER AND NATURAL GUARDIAN, APPELLANTS,
v.
THE CONTINENTAL INSURANCE COMPANY, A CORPORATION



No. 351 Pittsburgh, 1981, Appeal from Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD77-13182.

COUNSEL

Peter J. Mansmann, Pittsburgh, for appellants.

John D. Rhodes, Pittsburgh, for appellee.

Wieand, Johnson and Montemuro, JJ.

Author: Wieand

[ 305 Pa. Super. Page 304]

This is an appeal from a judgment entered on the verdict of a jury which found that Continental Insurance Company, appellee, had not provided coverage for and was not required to defend the causes of action asserted against its assured by Thelma O'Malley, appellant herein.*fn1 We affirm.

William and Shirley Gavulic, together with sons Kevin and Brian, died in a fire at their residence which also made orphans of William, Kimberly and Michael. An action in trespass was instituted against C.J. Lazar & Sons Construction, which had installed a water heater in the Gavulic home a short time before the fire. Appellee was Lazar's liability insurance carrier. Lazar, however, had not purchased "completed operations" coverage. Indeed, this risk was specifically excluded by the terms of the written policy.*fn2 Contending

[ 305 Pa. Super. Page 305]

    that the fire had occurred after Lazar completed installation of the water heater, appellee refused to defend the several actions brought against Lazar by Mrs. O'Malley. In an ensuing trial, verdicts totaling $225,000.00 were returned against Lazar. Lazar subsequently assigned his rights under the policy to Mrs. O'Malley, who commenced the instant action against Continental. She sought recovery not only for the policy limits of $20,000.00 but also, based on alleged bad faith on the part of the insurer, the total amounts of the verdicts recovered as well as Lazar's counsel fees. This second action resulted in a jury verdict for appellee.

Appellant contends that she is entitled to a new trial because of trial error occurring when the court refused to charge as requested in the following submitted point:

Even where a policy is written in unambiguous terms, the burden of establishing the applicability of an exclusion or limitation involves proof that the insured was aware of the exclusion or limitation and that the effect thereof was explained to him.

In Hionis v. Northern Mutual Insurance Co., 230 Pa. Super. 511, 327 A.2d 363 (1974), this Court ...


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