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ELIZABETH DUNN v. MARYLAND CASUALTY COMPANY (02/13/85)

filed: February 13, 1985.

ELIZABETH DUNN, ADMINISTRATRIX OF THE ESTATE OF JAMES E. DUNN, DECEASED, APPELLANT,
v.
MARYLAND CASUALTY COMPANY, APPELLEE



No. 2761 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Carbon County, No. 162 January Term, 1978.

COUNSEL

Thomas J. Carlyon, Hazelton, for appellant.

Roger N. Nanovic, Jim Thorpe, for appellee.

Brosky, Wieand and McEwen, JJ. Brosky, J., files a concurring opinion.

Author: Wieand

[ 339 Pa. Super. Page 71]

In this action to recover benefits for accidental death under a group policy of life insurance, the trial court

[ 339 Pa. Super. Page 72]

    entered a compulsory non-suit because the plaintiff failed to show that her decedent's death had been caused directly by accident and independently of all other causes. After the trial court refused to remove the non-suit, an appeal was taken to this court. We affirm.

James E. Dunn, a volunteer fireman in the Borough of Weatherly, Carbon County, was insured under a group life insurance policy purchased by the Citizens Fire Company and the Weatherly Fireman's Relief Association from Maryland Casualty Company. The policy provided for a death benefit of $5,000 in the event that an insured's death were caused by cardiovascular disease such as coronary thrombosis. The policy also provided for a lump sum payment of $15,000 in the event of an accidental death "which results directly and independently of all other causes." The accidental death benefit was restricted, however, and was specifically excluded where death was "caused or contributed to by . . . [s]ickness or disease or bacterial infections."

Similar clauses have frequently been before the appellate courts in Pennsylvania, and the controlling law is clear.

Where the liability of the insurance carrier is restricted as in the policy here in controversy, it is well settled in this Commonwealth that it is insufficient for plaintiff merely to show a direct causal relation between the accident and disability or death. The burden is on her to establish the death was caused solely by external and accidental means. Real Estate Tr. Co. of Philadelphia v. Metropolitan L. Ins. Co., 340 Pa. 533, 17 A.2d 416. If the proof points to a pre-existing infirmity, which may have been a contributing factor, plaintiff must also produce evidence to exclude the possibility. Johnson v. Kentucky Central Life Insurance Co., 144 Pa. Super. 116, 18 A.2d 507. Where it appears that insured's death resulted from accidental injury acting in conjunction with a pre-existing and substantial physical infirmity, there can be no recovery.

[ 339 Pa. Super. Page 73]

Rodia v. Metropolitan Life Insurance Co., 354 Pa. 313, 315, 47 A.2d 152, 153 (1946). Accord: Lucas v. Metropolitan Page 73} Life Insurance Co., 339 Pa. 277, 14 A.2d 85, 131 A.L.R. 235 (1940); Dauphin Deposit Trust Co. v. Lumbermens Mutual Casualty Co., 171 Pa. Super. 86, 87-88, 90 A.2d 349, 350 (1952); Mulholland v. Fidelity & Casualty Co. of New York, 161 Pa. Super. 425, 427, 55 A.2d 561, 562 (1947); Puszkarewicz v. Prudential Insurance Co. of America, 161 Pa. Super. 500, 502-503, 55 A.2d 431, 432 (1947); Brandeis v. Metropolitan Life Insurance Co., 116 Pa. Super. 558, 561, 176 A. 789, 790 (1935); Lubowicki v. Metropolitan Life Insurance Co., 114 Pa. Super. 596, 599, 174 A. 649, 650 (1934). See also: Frame v. Prudential Insurance Co., 358 Pa. 103, 56 A.2d 76 (1948). It has been suggested that a better rule would allow recovery, irrespective of the stringencies of policy language, where the accident is a proximate cause of death even though the death would not have occurred except ...


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