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ESTHER WILLIAMS AND SHIRLEY MORRIS v. PILGRIM LIFE INSURANCE COMPANY (04/25/88)

filed : April 25, 1988.

ESTHER WILLIAMS AND SHIRLEY MORRIS, APPELLEES
v.
PILGRIM LIFE INSURANCE COMPANY, APPELLANT



Appeal From Judgment Entered October 13, 1987, Court of Common Pleas, Civil Division, Philadelphia County, No. 2582 September Term, 1977

Before: Cavanaugh, Olszewski and Melinson, JJ.

Author: Per Curiam

MEMORANDUM:

This is an appeal from a non-jury verdict and judgment entered in favor of appellees, beneficiaries under life insurance policies. Appellant contends that (1) the appellees failed to prove that the insured's death was accidental, and thus the double indemnity provision of the insurance policies should not have been triggered; (2) the appellees failed to prove their case;*fn1 and (3) appellees' admission of the death certificate and the police report should have raised a rebuttable presumption that the insured's death was not accidental, and, because appellees failed to rebut this presumption, the lower court should have entered judgment in favor of appellant.

Appellees are the beneficiaries under three life insurance policies issued by appellant. After the death of the insured, appellees brought this action, seeking recovery of proceeds under the three policies.*fn2

The two insurance policies at issue provided for double indemnity for the beneficiaries if the insured died from accidental causes.

The policies are identical and contain the following clauses on liability:

Pilgrim Life Insurance Company agrees to pay an additional amount of insurance equal to the amount of insurance payable at the death of the Insured, immediately upon receipt of due proof that the death of the Insured resulted directly and independently of all other causes from accidental bodily injury as evidenced by a visible contusion or wound on the exterior of the body . . .

     and

Exceptions and Exclusions - this agreement does not apply to death of Insured resulting directly or indirectly . . . (F) from participating in a riot or committing or attempting to commit an assault or felony. . . .

The evidence offered at trial as to the cause of the insured's death was a death certificate and a post-mortem report stating that he had been "shot during altercation."

Appellant contends that the gunshot wound suffered during the "altercation" precludes double recovery because it falls under the "committing or attempting to commit an assault or felony" exclusion of the policies.

The initial burden is on an insured to prove death by accidental means. Short v. Metropolitan Life Insurance Co., 339 Pa. Super. 124, 488 A.2d 341 (1985). The evidence introduced by appellees in the form of the death certificate and post-mortem reports is sufficient to show that the death was accidental, within the language of the policies. The policies state that an accidental death is one which results from bodily injury that is, ". . . effected solely through external, violent, and accidental means . . .". Appellant does not contest that the death was accidental in nature, but relies upon the exclusions clause*fn3

After a prima facie case was made out, the burden of going forward with the evidence shifted to the appellant. ". . . [A] defense based on an exception or exclusion in a policy is an affirmative one and the burden is cast upon the insurer to establish it." Rothstein v. ...


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