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JOHN TONKOVIC v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (12/21/84)

filed: December 21, 1984.

JOHN TONKOVIC, III
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANT



No. 00456 HARRISBURG, 1983, Appeal from an Order Entered November 9, 1983, in the Court of Common Pleas, Civil Division, of Dauphin County, No. 3992 S 1981.

COUNSEL

Richard H. Wix, Harrisburg, for appellant.

R.C. Angino, Harrisburg, for appellee.

Wickersham, Wieand and Hester, JJ. Wickersham, J., filed a dissenting statement.

Author: Hester

[ 337 Pa. Super. Page 125]

In Standard Venetian Blind v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983), the Supreme Court held that an insured cannot avoid the application of clear and unambiguous policy limitations contained in an insurance contract by alleging an unawareness of the exclusion and its effect. In the case at bar, appellant contends that the retroactive application of Standard Venetian Blind warrants a grant of a judgment n.o.v. or a new trial. For the reasons that follow, we hereby reverse and remand for a new trial.

It is undisputed that appellee applied for a policy providing disability insurance coverage offered by appellant on July of 1979. The policy which was ultimately issued excluded coverage of any injuries which were also compensable under a plan of Workmen's Compensation. Appellee was injured on the job on October 15, 1979, and received Workmen's Compensation benefits. In accordance with the

[ 337 Pa. Super. Page 126]

    exclusion for coverage under the terms of the disability insurance policy, appellant denied appellee's application for disability benefits.

Appellee subsequently instituted an action in assumpsit to recover benefits claimed pursuant to his policy. Following a jury trial, the verdict was returned in favor of appellee. Appellant filed a timely motion for judgment n.o.v. and a motion for a new trial, which were denied by Order of Court dated September 20, 1983. This appeal ensued.

Based upon the concededly clear and unambiguous language of the exclusionary clause, appellant argues that its motion for judgment n.o.v. should be granted in light of the Supreme Court's decision in Standard Venetian Blind Co. Alternatively, appellant submits that a new trial is warranted so that the jury can be charged with a correct instruction of the law as enunciated in that case.

Prior to the pronouncement of Standard Venetian Blind, the prevailing rule of law concerning the enforceability of exclusionary provisions in insurance policies was found in Hionis v. Northern Mutual Insurance Co., 230 Pa. Super. 511, 327 A.2d 363 (1974). Therein, we held that it was the insurer's burden to show that the insured was made aware of and understood an exclusion which the insurance company sought to enforce. The Supreme Court refused to adopt this rule, explaining:

[w]e hold only that where, as here, the policy limitation relied upon by the insurers to deny coverage is clearly worded and conspicuously displayed, the insured may not avoid the consequences of that limitation by proof that he ...


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