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LINDA ROQUE v. NATIONWIDE MUTUAL INSURANCE COMPANY (12/01/83)

decided: December 1, 1983.

LINDA ROQUE
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT



No. 9 Appeal Docket, E.D. 1982, Appeal from Judgment of the Superior Court of Pennsylvania entered November 6, 1981, at No. 2500 Philadelphia Term, 1980, Affirming the Summary Judgment of the Court of Common Pleas of Lackawanna County, dated October 23, 1980, at No. 322 March Term, 1976.

COUNSEL

Michael J. Donohue, Scranton, for appellant.

Joseph D. Paparelli, Scranton, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.

Author: Roberts

[ 502 Pa. Page 616]

OPINION OF THE COURT

At issue on this appeal is whether an insured died by "accidental means" for purposes of a double-indemnity clause of a policy of life insurance when the insured was shot and killed by a police officer as the insured pointed a gun at the officer during the commission of a burglary. Because the record demonstrates that the insured's death was not accidental, we reverse the order of the Superior Court, 292 Pa. Super. 117, 436 A.2d 1033, and remand the record to the Court of Common Pleas of Lackawanna County

[ 502 Pa. Page 617]

    with the direction that summary judgment be entered in favor of the insurer.

The insured, Thomas Roque, purchased a life insurance policy from appellant Nationwide Mutual Insurance Company on October 25, 1971. The policy had a face value of $5,000 and an "accidental death benefit rider," which provided that an additional $5,000 would be paid to the insured's beneficiary if the death of the insured "resulted directly and independently of all other causes from bodily injury caused solely by external, violent and accidental means." The insured paid premiums on the policy until the time of his death. The insured's wife, appellee Linda Roque, was named the beneficiary under the policy.

The insured was shot and killed on October 21, 1975, while in the act of burglarizing a house. Police officers learned of the burglary when the insured inadvertently activated a "silent" alarm system within the house. While two of the investigating officers were ascending an interior stairway of the house, the insured called out, "I have a gun. Get out of here, man." One of the officers identified himself and asked the insured to surrender. The insured responded, "I'm telling you man, I've got a gun. I'll kill you. Get out now." The police then heard the sound of glass breaking. One of the officers immediately went to advise other officers stationed outside the house that someone might be trying to escape. The insured then appeared at a bedroom doorway on the second floor, pointed a gun at the police officers in the house, and shouted, "I've got a gun. I'm going to come out. I'm going to kill you." The insured cocked the gun, which was still pointed at the police. Before he could fire, he was shot and killed by one of the officers.

Appellant paid appellee the face amount of the policy but denied liability under the accidental death rider. Appellee then brought the present action in assumpsit. After the parties entered into a stipulation of facts, appellant filed a motion for summary judgment. The trial ...


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