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LAZOVICK v. SUN LIFE INS. CO. OF AMERICA

June 20, 1984

DAVID LAZOVICK
v.
SUN LIFE INSURANCE COMPANY OF AMERICA



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 The plaintiff, David Lazovick, instituted this diversity action for the payment of proceeds of a whole life insurance policy on the life of his deceased son, Bruce Lazovick. The defendant insurer, Sun Life Insurance Company of America (Sun Life), has refused to pay the proceeds of the policy to the plaintiff, the named beneficiary, on the ground that the insured committed suicide within two years of the date of the insurance policy in effect at the time of death, and that pursuant to the terms of that policy's suicide clause the defendant is only liable for a return of premiums. The plaintiff seeks payment of the policy proceeds and damages for intentional infliction of emotional distress resulting from the defendant's alleged bad faith refusal to pay the policy proceeds. The defendant has moved for summary judgment. For the reasons which follow, the motion for summary judgment will be granted and judgment entered in favor of the defendant and against the plaintiff.

 A trial court may enter summary judgment if, viewing the evidentiary material of record in the light most favorable to the party opposing the motion, there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Hollinger v. Wagner Mining & Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). Fed.R.Civ.P. 56(e) states that in order to oppose a summary judgment motion which is properly supported by affidavits based on the affiants' personal knowledge or by interrogatories, admissions and other evidentiary material of record, as is the defendant's motion in this case, an adverse party

 
may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

 Faced with evidentiary material which indicates that there is no genuine issue of material fact, an adverse party has the responsibility to produce significant probative evidence demonstrating that a genuine issue exists in order to avoid entry of judgment against him. Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982); DeLong Corp. v. Raymond International Inc., 622 F.2d 1135, 1139-40 (3d Cir. 1980).

 In support of its motion for summary judgment, the defendant has provided affidavits from Messrs. James Sidlowski and John Chell, Jr., excerpts from the plaintiff's deposition and the deposition of Sun Life agent Hertzel Freifelder, and facsimile copies of the two life insurance policies purchased by the deceased insured from Sun Life, along with applications for these policies and correspondence relating to the policies both before and after the insured's death. The plaintiff's response in opposition to the defendant's motion relies primarily on legal argument, claimed to be supported factually by inferences from the documentation provided by the defendant and from the death certificate of the insured.

 The record in this case shows that there is no genuine issue concerning the following material facts. On or about May 22, 1979, Bruce A. Lazovick, the insured son of the plaintiff, now deceased, applied for a decreasing business term life insurance policy which provided for a 30-year term at an initial face value of $35,000. The insured's wife, Lori Lazovick, was the named beneficiary. Application for the policy was made through Hertzel Freifelder, an independent agent of Sun Life located in Philadelphia, Pennsylvania. On May 25, 1979, Sun Life approved the application and issued Policy No. 7909014 (the "1979 term policy"). This policy contained the following suicide clause:

 
SUICIDE CLAUSE
 
If the Insured commits suicide, while sane or insane, within 2 years from the Issue Date, this policy shall terminate and the Company's liability will be limited to an amount equal to the premiums actually paid, without interest.

 The 1979 policy was delivered to Bruce Lazovick on or about June 4, 1979. Under the terms of the 1979 policy, payment of the second annual premium was due on May 22, 1980. The second annual premium payment was never made, and the 1979 policy lapsed due to non-payment on June 22, 1980. Sometime in May, 1980, while the 1979 term policy was still in effect, Bruce Lazovick contacted Freifelder and stated that he wished to arrange a meeting to review his insurance program because he was not satisfied with his existing coverage. On June 4, 1980, Bruce Lazovick applied to Sun Life for a $50,000 modified whole life insurance policy. On June 17, 1980, Sun Life approved this application and issued Policy No. 8011361 (the "1980 whole life policy"). The insured's wife, Lori Lazovick, was again named a primary beneficiary. On or about June 24, 1980, the 1980 policy was delivered to Bruce Lazovick. The 1980 whole life policy contained the same two year suicide clause contained in the 1979 term policy.

 On December 18, 1981, within two years of the issue date of the 1980 whole life policy but more than two and one-half years after the issue date of the 1979 term policy, Bruce Lazovick was found dead in his residence. The death certificate stated that the cause of death was hanging, with an indication that an investigation was "pending" as to whether death was caused by homicide, suicide, accident, or other cause. Furthermore, the plaintiff, when asked how his son [the insured] died, responded at page 16 of his deposition: "Suicide."

 Prior to his death, the insured made an effective change in beneficiary from his wife, Lori Lazovick, to his father, the plaintiff in this case. The plaintiff subsequently filed a claim with Sun Life for $50,000, the value of the 1980 whole life policy. Sun Life denied the claim based on the contention that the insured's death was by suicide within two years of the issuance of the 1980 policy, the only policy in force at the time of death. As provided by the terms of the suicide clause, Sun Life tendered to the plaintiff an amount equal to the premiums actually paid, plus interest. The plaintiff refused this payment and instituted the instant action.


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