filed : April 25, 1988.
ESTHER WILLIAMS AND SHIRLEY MORRIS, APPELLEES
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
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 . . .
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. Aetna Insurance Co., 216 Pa. Super. 418, , 268 A.2d 233, 235 (1970).
Appellant introduced no admissible evidence at trial.*fn4 Although it argues that the deceased was in a drunken condition at the time of his death, there is no support in the record for this assertion. The notations on the post-mortem report and death certificate that the insured was shot during an altercation, fall far short of a showing that the insured was himself committing or attempting to commit an assault or felony. The insured was the victim of a homicide. The trial evidence establishes nothing beyond this regarding the insured's conduct. There was no showing either that the decedent was a participant in the altercation or that the altercation involved a physical confrontation on the decedent's part. ("Altercation" is defined as a "noisy heated angry dispute." Webster's New Collegiate Dictionary (1973)).
Appellant retained for itself in the insurance policy the right to investigate the circumstances of death. Its attempt to foist upon the beneficiaries the burden of proving the applicability of the exclusions clause was properly rejected by the lower court.