*1
of Ms rigMs. On these facts the waiver was certainly
voluntary
at least it may not be ruled
involuntary
a matter
law. Cf. Commonwealth v.
Jefferson,
Pa.
The majority say once Mercier asserted his con- stitutional rights, any subsequent waiver thereof to be effective “must have been initiated Mm.” isn’t But, this what occurred?
After the police confronted Mercier with WasMng- ton’s statement, interrogation did stop. police said further at nothing point. was Mercier who initiated the subsequent events by requesting poly- test. graph say But majority, even tMs is hav- so, once asserted his ing constitutional rights there could not be subsequent “knowing and waiver” intelligent unless a were lawyer present assist in this decision. tMs is my view, unwarranted and improper exten- sion of Mvra/nda. In fact, witMn court, my knowl- has ever ruled edge, previously that a twenty-year-old individual of average intelligence must have the assist- ance of a before he lawyer may effectively waive his one. right have
I dissent. Pomeroy
Mr. CMef Justice Jones and Mr. Justice join tMs opinion. Appellant, Franklin Insurance
Burne,
Company. *2 16, reargument November April 1971; Argued Roberts, J., Eagen, C. Jones, O’Brien, 1972. Before JJ. Nix Manderino, Pomeroy, him with Gallagher, O’Malley, Morgan, E. Joseph appellant. for Gallagher, & Hour J. Charles him with Henhel- Hamahue, Warren, Hill, man <& McMenamin, appellee.
Opinion 1973: Mr. Justice March Roberts, This is an from the order of appeal the Court Common Pleas of County plain- Lackawanna denying tiff-appellant’s motion for summary judgment and entered judgment below favor of defendant-insur- ance said company, upon for sum- defendant’s motion mary judgment. The action below, assumpsit, for the of the accidental recovery (double indemnity) death benefits of a life insurance policy, ap- pellant beneficiary. For the out be- reasons set low, we reverse.
In 1919, defendant-appellee issued to insured (appellant’s husband) life in the face amount $15,000. policy also contained a *3 for an indemnity proviso additional $15,000 if the death of the insured resulted from purely means. accidental This double indemnity and the provision, exceptions contained subject the of this therein, appeal.
On January 30, effect, while the policy the insured Bartholomew struck Burne, was au tomobile while crossing a street North Miami, Flori da. Immediate and extensive brain re surgery was quired. From the moment the his accident until Mr. death, Burne’s existence was that of a complete hopeless subject unable to invalid, to seizures speak, and requiring nursing constant and medical care. Vast expended sums of money were and the appellant, techniques medical sophisticated merely most utilized, her medically husband keep albeit alive, vegeta for state, years.1 tive is conceded áy2 the appel- inappropriate observe, record, It is not in view of this prejudice by the insurance carrier suffered no the the retention of proceeds years. for double these additional 4% company injuries sustained were lee insurance Ap- the direct and sole cause of insured’s death. paid policy, pellee the face of the refused amount but pay the accidental death benefits. pro The under life insurance consideration resulting indemnity liability for for death vides ac from accident. states that such However, payable only if cidental death benefits “. . . such will ninety days . . . occurred within the date exception in in the double accident.” One further demnity provides: Accidental Death Bene rider “This ** payable fit shall death of in not be premium any being sured shall occur while waived any incorporat disability to or under benefit attached * *” (It policy. ined said should be however, noted, premiums policy, until that under are waived proof company in to the insured furnishes totally incapacitated for has at six sured been least months.) exceptions, basis these the trial On the defendant-appellee’s granted en motion banc, court, appeal challenges summary judgment. This the validi ty exceptions applied in these to the facts case.2 stant public policy strong mili
There are reasons which enforceability ninety against day limita tate origins provision earlier has its at a much tion. Accordingly, leading stage con case medicine. predates struing progress three decades of *4 appellee enjoyed appears an bene- in fact that economic What by having during period, of the use these funds that rather than fit having pay that sum or near time of the to out at accident. 2 alleges policy gave Appellant prominence “the also that undue corresponding prominence benefit death without the accidental ninety-day period”, limitation in contravention of Section Company 1921, May 617(A) (4) 17, Insurance of Act of of The Law VI, §617, amended, §752(A) (4). L. P.S. art. P. pass upon disposition, need not we this of our claim. view made field medicine. of curative Advancements during period profession have enabled medical startlingly adept delaying to become at death for inde periods. Physicians surgeons terminate stand now very possessing at the citadel of re death, the awesome sponsibility deciding of sometimes and what whether prolong, though mo measure should used even legal mentarily, an individual’s life. The ethical comp attending gravely issues such deliberations are lex.3 presents grue-
The result reached the trial court paradox permit some indeed—it would double indem- nity recovery for the death of accident victim who instantly ninety days dies or within of an but accident, deny recovery for an accident would such agony prolonged victim endures the suf- who illness, longer, greater expense his fers and necessitates family hopes sustaining momentarily life even be- yond ninety day period. predicate liability un- To policy upon occurring only der a life insurance prior specific denying policy on or to a while re- date, covery if death after that occurs fixed offends date, concepts objectives basic and fundamental insur- life contrary public policy. ance and is the nine- Hence, ty day limitation is unenforceable. recognize anguish quite
All must the mental naturally accompanies tragic these occurrences. Sure- ought ly anguish aggravated to be cases this hind with concerns of whether the moment of death permits or defeats too, claim. So general legal problems For discussions of the and ethical sur rounding Symposium—The Medical, Moral, euthanasia see Le gal Implications Advances, of Recent Medical L. 13 Vill. Rev. 732 Silving, Study (1968) ; Comparative A Euthanasia: Criminal Law, purpose opinion L. Rev. U. Pa. of this controversy into is not to introduce the area life policies it. to forestall but
223
should be
medical
treatment
as to what
the decisions
unhampered by
an accident victim should
accorded
encour-
a
tendency
have
might
considerations which
medical care on
maximum
less than the
something
age
in ex-
succeeds
if
care
of financial
loss
such
penalty
factors
90th
All such
day.
life
tending
beyond
anti-
from the
be removed
should,
possible,
wherever
arbitrary
of the
Rejection
septic
hospital.
halls of the
that.
ninety
exactly
does
day provision
nine
of public policy,
Aside from considerations
sup
decisional
ty day provision possesses
persuasive
judg
summary
motion for
port.
granting appellee’s
thir
single
relied
a
obviously
upon
ment,
court
trial
Metropolitan
v.
Insurance
old
ty year
Sidebothom
case,
Life
That
14
2d 131 (1940).
Co
339 Pa.
A.
.,
con
other case which
as
case,
virtually every
well
on
is based
provision,4
a
limitation
ninety day
strued
applicability
no pragmatic
considerations
have
inter
earlier
judicial
here. The
the factual situation
un
was that
its
day provision
pretation
ninety
where there
situations
derping
govern
was to
purpose
injuries
over
uncertainty
existed
whether
possible
some
result
in death.
actually
in an accident would
sustained
line
to delineate
attempted
The ninety day provision
may
may
the injuries
where
cases
governing
4
ninety day provision
concerning
leading
have
eases
of an accident
it will
is to he the result
assumed
days.
ninety
dealt with
Bach of these cases
manifest
itself within
uncertainty
type
injuries
inherent
as to
there was
where
v. United States Casu
in fact ensue. Brown
death would
whether
injuries
(insured
being
Co.,
alty
from
suffered
Fed. 935
dog cart) ;
Ins.
Fed.
Kerns v. Aetna
from
thrown
Life
dislodged
esophagus
1923)
(piece
metal
while
(8th
Cir.
Conn.,
Hartford,
car) ;
Ins.
pushing
v. Travelers'
Co.
Barnett
accidently
during
opera
1929) (artery
nose
(8th
cut
Cir.
F. 2d 479
Soc.,
Equitable
(8th
Spaunhorst
Assur.
tion) ;
It is well settled
be
a certain factual
reasonably
applied
cannot
to
be
disregarded.
it should
This sound rule
situation
v.
articulated as
as
succinctly
early
law was
Grandin
Insurance
Demonstrative
particular
fact
dition has no relevance
situation
jurisdictions construing
applied
provisions allowing
awards
the loss
a limb,
*7
sixty days
only if
loss
acci
the
occurs within
the
successfully
they
recovered when
dent. Claimants have
produced
testimony
it
medical
which established that
period
sixty day
that
the end of the
was obvious before
amputation,
the
victim
need an
but
the insured
would
delayed by
amputation was
doctors until
actual
after
days period
sixty
health.
for reasons of
Westen
the
Casualty
hover
&
Insurance
v.
The waiver of pre- suffers previously noted, death supplement, infirmities as does the same cisely public waiver-of-premium limitation. Further, ninety day entire conjunction when read with exception, am- creates obvious waiver-of-premium supplement, read togeth- the two when Simply, provisions biguity. insured If the following interpretation: er yield continuously incapacitated period for a totally are the policy due on months, premiums at least six if during post-six company; however, waived die the insured should waiver-of-premium period month benefits paid. no double will by accident, preclude the policy provisions is unclear whether in those cases where only indemnity recovery double occurred a second accident which caused bars or whether the policy month period, after the six in- in all cases where indemnity recovery period means when during accidental dies sured waived. being premiums occasions: *8 on innumerable Court has stated
As this be read, insurance is to contract of “. . . [T]he in its in the language, light ambiguity of any event v. the insured.” Weissman supporting strongly most 175 A. 67 2d 226, 233, 63, (1961). Pa. 405 Prashker, Co., Amsterdam v. New Casualty Cadwallader See, e.g., v. Pa. A. 2d 484 Mutual Beley 582, 152 (1959); Life 2d MacDonald (1953); Ins. 373 Pa. 95 A. Co., 231, Ins. Pa. 155 Atl. Metropolitan does Accordingly, on this (1931). record, benefits. preclude is sum- and it is directed that judgment reversed be entered for mary judgment plaintiff-appellant. Mr. in this joins Justice opinion Manderino also files a opinion. concurring
Concurring Opinion Mr. Justice Manderino : I is opinion. in the join concur true that courts must not rewrite contracts between pri- parties. vate This all terms presupposes, however, that never been any contract There has legal. a be historically bargain will considered question its or is either formation its illegal performance public or otherwise to criminal, tortious, opposed policy. Contracts A can bargain Restatement of (1932). §512 or be- illegal because violates statutory provisions developed cause it violates law as courts A list illegal bargains reasons of all public policy. bar- variety because the impossible public illegal Restatement of §512, almost infinite. Contracts gains Comments and b (1932). and traditionally, do-
Historically bargains affecting relationships mestic have been scrutinized closely Bargains the courts. financial inducements providing accept one’s person voluntarily for a restrictions on freedom sexual relation- concerning marriage, divorce, have relationships frequently other domestic ships Restatement opposed public policy. been stricken Like- Topic (1932). Contracts, §581 §589 life person’s inducements jeopardizing financial wise, illegal bargain opposed constitute health may of Contracts Restatement §591 policy. public *9 If the purpose of a will primary complete bargain bargain not be defeated and the can be enforced with illegal the omission of the condition, only illegal condition is the bar- stricken and other terms of of remain and enforceable. gain binding Restatement Contracts §603 bargain this case the was to a sum of pay money pay
to the wife the death of her husband and to upon by an additional the death of the husband upon sum means. Provisions time referring accidental to the of primary death are conditions which do not defeat can be enforced even purpose bargain pub- is as though illegal portion ignored opposed lic policy. the ad- majority opinion pointed
As the has out, of the medical and sciences pharmaceutical vancement con- time years subjects person’s recent kind Financial inducements of living. any trol as repugnant deathbed as hovering family over financial do- inducements illegal affecting other ancient relationships. mestic life involving payment
In matters insurance, pro- other been has on occasions sensitive to the law inducements from possibly tempting financial hibiting another time of death. person’s to decide one person have life required beneficiary we Traditionally, to have an insurable interest. We proceeds strangers to be unduly preoccupied not wanted have of death. Neither should per- time we person’s with this case a family—in member of wife—to be mit a preoccupied. so Opinion Pomeroy:
Dissenting Mr. Justice question whether case a contract presents This interpreted to be performed is life insurance the intent of the contracting parties with accordance am- expressed terras which are neither unclear nor this Court or whether be rewritten biguous, through hindsight benefit a benefit where afford none provided. Specifically, question wheth- er a in a 90-day clause
means whether, a “hard” it can days, case, *10 stretched that to some beyond period (in case days), ignored altogether public poli- as violative in- that the cy. opinion was the lower court and tent of the in parties expressed was as the policy that no restraints on the freedom of con- public policy had been this Court violated; majority of tract holds I cor- believe the court contrary. below and I dissent. rect, accordingly by appel 1949 a of insurance was issued E. lee insurance on the life Bartholomew company in the years $15,- then face amount of Burne, age, 000. Attached of the was forming part entered on date supplemental agreement into of the main addition policy, providing issuance al likewise in the amount of in benefit, $15,000, indemni event that death accidental. This double was part: read in “Such Accidental Death Bene ty provision fit due and shall payable shall be only Company death due ... such occurred proof prior receive that Policy to the of said on which the Insured’s anniversary birthday sixty years was within age nearest the date accident.” ninety days (Emphasis from in October, Burne’s death is conceded supplied.)1 injuries resulted he sustained solely to have one-half earlier in years January, four and accident recovery the additional Today’s 1959. decision allows indemnity premium for the double feature $31.05 The premium year. per in addition to the annual of $476.55 This was coverage. $15,000 for the basic for this accidental death addition to (i.e., $15,000 basic face amount of the $15,000 policy). judgment majority, reversing summary attempts
below favor of the insurer, necessarily hurdle obstacles: a rationale that will first, two seeks under the above accidental permit recovery quoted the fact provision, notwithstanding benefit beyond period; insured died well the 90-day it tries to avoid some manner a secondly, in the accidental death benefit endorsement which would make double unavailable should any occur under premium being “while waived any attached .. . notwith disability policy],” benefit [the the time standing premiums being were waived at death. I am of insured’s opinion has not either hurdle but successfully jumped trampled instead has on some fundamental principles of contract in the attempt.2 law
I. The The Intent the 90-Day Parties, Provision, of
and Public Policy a. Intent the Parties of
In contracts construing arguably pub violative of the traditionally lic we policy, begin by determining intent the and reach parties only pub of of question lic Block v. Pa. policy necessary. then 351 Mylish, 2 issue, Court, typo- not reached Another is whether graphical including provision, format of the accidental death benefit 90-day clause, particularly §617 violated of The Insurance Com- May pany 1921, 17, 1921, 682, VI, Act of P. L. of art. amend- Law (4). requires (A) ed, style, That section P.S. that “the ar- §752 40 appearance policy rangement give of the and over-all undue any portion prominence text” of the The lower court found no agree completely. page violation, I A and close examination of such appears double-indemnity policy, provision, whereon 8 remotely anything misleading even to disclose about either the fails employed setting print 90-day provision. placement forth the
231
41 A.
2d
Pocono Manor Association v.
611,
(1945);
337 Pa.
A. Norlund v. Ins. Co., 2d 385 Reliance (1944); 282 Pa. 128 A. An examination of in all these decisions reveals of them the court sought interpret language a contract to arrive at the intention for parties. Grandin, example, sought the insured of oil was either coverage which through pipeline stored in or which passing system he insurer issued which was not operated. rather term but contained a adapted purpose, be absolute required insured to “the sole, which The court “driven to unconditional owner.” there was of the character the condition examination it is in order to as reason upon founded, been contempla could have in the certain whether it tion the contract of insurance was parties when 107 Pa. at The court (emphasis added). made.” parties it was intent of the concluded that Grandin whereby a contract write loss caused de recompensed insured would *12 oil of he was not oil his which pipelines, struction of that requiring The term Grandin the sole owner.3 emphasizes following quotes majority and sentence The suppose involving that are conditions for- not “We from Grandin: the sole owner was not “within the contemplation parties”, part was the contract.4 Both Ten nant, are of supra, Norlund, import; similar supra, both turn on intention of the parties.5 policies by companies, feitures are introduced into wbieli purely arbitrary merely reason, trap are and without as a escape company insured or as a means of for the case loss.” passage entirely apt dealing This is when with a clause is which obviously extraneous, contrary place, out of to that which the requested. inapposite referring coverage insured when to a specifically requested paid for. 4 Today the Grandin result would no doubt be reached under (Second) §237, (Tent. the Restatement of Contracts at 131 Draft 5, 1970), provides: No. March which Agreements. “§237 Standardized “(1) Except (3), party as stated in Subsection where a to an agreement signs writing or otherwise manifests assent to a and has writings regularly embody reason to that like know used to agreements adopts type, writing of the terms same he as an integrated agreement respect to with the the terms included in the writing. party “(3) party the other has Where reason to know that the manifesting writing such assent believes assumes that does particular term, part agree- not contain a the term is not specifically requested coverage the insured ment.” Grandin petroleum owner; he of which was not the sole he assumed that require the contract he received did not him to be sole The owner. contract, insurer, “party author of had reason to know manifesting assent” would assume that such a term not in the although policy. Therefore, term, in fact included in the writ- ing, not a term of contract because it was not so intended. §2-207(2)(b), §2-207(2)(b). 12A See also U.C.C. P.S. majority Pennsyl- cites two cases from states other than support proposition power its vania courts have the they general conditions out of a contract if read have “no relevance particular Casualty Westenhover fact situation”: v. to a & Ins. Life App. 1946) (La. ; 2d Interstate 27 So. & Accident Co. Waters, 213 Miss. So. 2d 493 decisions, however, proposition of those Neither stands for the them. cites Both hold which a clause in a against disability policy insures “loss of limb” means ‘loss
233
I take no
of
exception
the
stated view
implicitly
in
courts
the
interpreting
contracts,
be
par-
should
careful not to defeat the
intention oí
in the
ties
terms and conditions
by applying
appearing
not
in
writing
parties
situations
which the
could
intended
Unlike the
they
majority,
have
apply.
in
I do
find that
however,
help
not
of
proposition
any
do
this case. For I
doubt—indeed,
parties
have
not
otherwise—that
the insurer but
argue
only
not
for an ac-
insured intended that the additional
recovery
nor-
if death in the
precluded
cidental death would
more than
acceptation
mal
of the term should occur
else
90
after the date of the accident. Whatever
days
judg-
does not in
appeal
my
it
presents,
therefore,
ment
in
intent—as
present
determining
a
problem
the time of
parties,
contracting—of
by
of use of a limb”
does
mean “loss of limb
severance”.
amputation
60-day period
tiie fact that
after the
Thus
an
occurred
following
limb
accident was irrelevant when loss
use
60-day period.
in
had
fact occurred before
end of the
required prior
policy
bar,
at
the “loss” that
is
to the end of
Although
90-da.yperiod
life”;
say,
it
that is to
“death”.
“loss
varying
Kass,
possible
death,
Capron
to draft
see
&
definitions
Statutory
Determining
the Standards
A
Human
Definition
Appraisal
Proposal,
(1972),
Penn
An
and a
321 U.
L. Rev.
Death:
87
meaning
should not undertake
attribute a
other than
a court
normally accepted meaning
appears
to the term
con-
when
parties
indication
there is no
whatever
meant
tract and
usage.
anything
normal
other than
company
“loss”
does define
within a
When
complete
only
complete
limb”,
meaning
severance of a
“loss
period
v.
time
suffice. Cornellier
will
within
severance
Casualty Co.,
(2d
1968) ;
F. 2d
Cir.
v.
389
641
American
Huffman
Co.,
335,
;
(1965)
141 S.E.
Ins.
264 N.C.
2d 496
Occidental Life
Society,
Equitable
App.
Assurance
Ill.
2d
Shelton
Life
v. Vulcan
Accident
Cf.
&
Ins.
2d 787
N.E.
Huff
(1968) (held:
2d 861
So.
whether “loss
Ala.
at
of all
the wrist
includes severance
but a shard
severance”
generally Anno.,
question).
jury
See
from an the reader understand ambiguity. Is that all death benefit 90-day provisions accidental policy, endorsements invalid public as violative of insureds (2) only policies those found owned pos- who fact die but without “some days outside 90 *14 ample sup- sible causation? There is uncertainty” to for port reading. either enforce the opinion of the court observes to limitation “a
90-day gruesome paradox would permit indeed—it recovery would permit or the death of an accident victim who dies instantly re- within 90 of an but would such days accident, deny for the death of an accident victim who endures covery illness, suffers and ne- agony prolonged longer, . .” expense type “grue- cessitates . . This greater some in be- paradox” on a distinction way depends after “some present pos- tween those deaths that 90-day sible causation those that do uncertainty” as to specter not. Neither does the evocation of hu- man medical decisions greed shaping depend upon in whether or not the insured fact died outside the 90- day as to causation. period uncertainty without to
On the other hand, opinion goes court some the case at bar from length distinguish Side- Ins. Metropolitan bothom 339 Pa.
A. 2d 131 there uncertain- where was “inherent (1940), as to whether fact death was acci- ty” caused interpretation dent. Were the first intended 90- (all then distin- it would be idle to day provisions void), 90-day provision a case which a guish appeared; be simply case would overruled. would appear all clauses are meant that not such stricken, follow a provision and that of such thus validity depends like Bartholomew insured, whether entirely upon beyond limitation and without died the time Burne, “gome uncertainty” possible causation. as to determining is here
It is obvious that the Court hindsight. validity In so contract means principle doing it fails to observe the fundamental validity judicial determining of con function of cir be limited to examination tractual terms must parties time of con at the known to the cumstances tracting. in its sec Institute, Thus the American Law dealing or terms, contracts tion with unconscionable provides: “If thereof is unconscion a contract or term may made refuse able at the time the contract is a court may the remainder to enforce the or enforce contract, term, of the contract without unconscionable any may application of unconscionable term limit the any result.” Restatement as to avoid unconscionable (Tent. (Second) March §234 Draft No. 5, of Contracts added).6 Contrary 1970) (emphasis to what apparently my must al Court it is view we holds, persons make contracts are reasonable low light *15 the to them at the time of of circumstances known contracting. more should not ask; More we cannot we impose. limit violation of external rule a some Absent presume ing a court should not freedom of contract, approach prospective to of the Restatement as See the also enforceability agreement fixing damages (enforceable if the compensation). just the amount fixed is “a reasonable forecast” Contracts §339 Restatement of damage commenting enforceability liquidated the on require- general, Professor that Corbin has noted clauses in pre-estimate”, “reasonable and that ment is for a “Reasonable- always retrospect is not the same as in reasonableness ness Hindsight prospect. demonstrates the error in fore- sometimes enough Here, too, sight. often that it it is said that it awas that it is immaterial the later forecast and what event reasonable Corbin, §1059, he.” A. Corbin on Contracts to at 346-347 turned out added). (emphasis (1964) reason- were contracts which to and redraft intervene they entered into. able at the time were external such an that finds, however, The predi- present “To that it is violated: rule is here and upon policy liability a life insurance cate under prior specific occurring only de- to a while date, on or nying policy recovery fixed that if death occurs after concepts fundamental ob- and offends basic date, concept jectives of life . . . .” The “basic insurance objective” have I should of life insurance, fundamental upon money payable provide supposed, a fund of was to designated beneficiary in accordance one’s death to a and for the considerations terms and conditions with pur- mutually agreed upon the insurer and between insured). (usually Here chaser of “ordinary for life”, the basic was one paid upon proceeds to Burne’s death were $15,000 present beneficiary. appellant, as The his widow, compel payment un- the additional $15,000 is to suit benefit endorsement added der the accidental death (less premium than additional small premium). benefit additional basic This 10% (1) subject that as to time: to two limitations (in prior effect) 60th birth- insured’s occur days day, from the “within occur date of the accident.” unworthy gratuitously motives attributes court suggests (with support spouses and relatives and hospitals record) medical decisions 90-day
might the existence of influenced majority argues Specifically, the deci- clause. patient might try keep not to alive sion whether or beneficiary interest the venal be dictated *16 days having an accident. This occur within 90-day be limited would not to the however, rationale, apply 60-year-old as well to the would but clause, reach the accidental beyond it would Indeed, clause. basic a policy, to the coverage and, fortiori, in situation For the wife example, term insurance. decide to fur- might one bar well forego such as the at a comatose and hus- certainly dying ther treatment of treat- costly than allow additional medical band rather estate also only patient’s ment consume not but (assuming they that proceeds the wife’s life make them be or that the wife would available, would Other situations can expenses). for medical available, family be in medical decision imagined easily in understandably, light be might made, quite at- financial limitations. no court should Certainly on under the possibilities these tempt pass judgment no more should we strike “public policy”; rubric of in because of unfounded con- down the clause issue of a al- beneficiary fear will be jectural greed that medical treatment to the insured deny proper lowed to patient. legal
The court benefit of or medical without states, like the authority, holding, supra, Sidebothom that clause has been rendered obsolete 90-day itself, in the last 30 I dis in medical science years. advances in record suggest There is this agree. nothing four one- not have lived might Bartholomew Burne had occurred, half after accident years say, is nothing 1943 rather than 1958. There to suggest days occur within 90 of an ac few deaths now so make 90 an unreasonable uncon days cident as to to measure the attachment of by which span scionable arbitrariness may A involved degree coverage. factor present would be days; stipulation shorter or longer. whether con period, time any minimize is to purpose valid cededly to cause of a death dispute allegedly uncertainty *17 238 means
due to accidental
the accident
by preventing
remote in time.
becoming too
While
contro
versy
subject
on that
exists
we
here,
should not over
companies
look the fact
that
insurance
their
have set
rates in reliance on the actuarial
statistics
other
data
deaths within
or
days.
Whether
pertaining
in
comport
not the
terms
situation
agreed-upon
every
today
with the
offered
medical
possibilities
current
for
they
voluntarily
1949,
were contracted
practice,
Insurance Com
Pennsylvania
with the
of
approval
and it cannot be said that
were then
they
missioner,
policy.7
or
or
contrary
public
are now either unfair
Company
1921,
May 17,
Law of
Act of
Under The Insurance
amended,
§4776,
1921,
682,
Ill, §354,
policy
40 P.S.
P.
art.
as
L.
here
filed
of
that
involved
must have been
life insurance such as
approval”
the Insurance
of the
for “formal
Commissioner
Com-
with
disapproves
language
policy
If the
of
monwealth.
Commissioner
may
sought by
terms, judicial
the insurer.
review
Assembly
appears
placed primary
that the General
has
It thus
determining
provisions
responsibility
policy
insurance
which
public
in the
of
Commissioner
Insurance.
are
accord with
published by
regulations
that
A
official
reveals
review
policies
given
(2) many pro-
examination,
(1) insurance
are
close
proscribed
types
policies
altogether,
visions
90-day
here strikes
has
been
which
down
clause
par-
must
assume that
condemned
Commissioner. We
approved
Longenberger
the Commissioner.
ticular contract was
America,
Superior
Ins.
Pa.
Ct.
183 A.
v. Prudential
(1936).
proposition,
Although
appellee-insurer has not advanced the
primary
suggest that
the doctrine of
administrative
I
venture
apply
require
plaintiff-appel-
might
jurisdiction
here and
well
of the Commissioner of Insurance
first
the views
lant
to obtain
90-day
proceeding
through
as to
an administrative
whether
public policy.
here violates
See Weston v.
at issue
Read-
limitation
ing Company,
II. The Waiver Premium Provision The claim of for yet should fail an appellant reason been quite independent other has dis what before. Even assuming cussed 90- invalidity *18 beneficiary precluded day provision, is, my view, death recovery by exception the accidental referred herewith: earlier, quoted endorsement “Exceptions: This shall Accidental Death Benefit not if the death of the payable Insured shall result.... any ... while is under premium being any waived (10) benefit attached to or said disability incorporated . . .”9 The did have benefit . Policy disability attached would— provided which company premium “waive the of each due un payment becoming disa der such Policy said after commencement of that no shall be bility, provided however, premium is more than six the due date of which months waived, of writ prior receipt [by to the date Company] .10 . . . is “Disability” ten notice of claim hereunder as a pre endorsement condition which defined or “performing any the insured from work trans- vents Validity Anno., and Construction of in Accident In- Provision Coverage Policy Limiting for Death or Loss Member surance specified Occurring Accident, after or Loss within Period to Death cited); Appleman, (all cases therein 3d J. A.L.ii. ed.). §612, (1941 at 746 Law Insurance premium provision consideration of was in an additional This year. per of $7.80 10Although record not reveal on date the does what waiver premium Burne’s activated notifica premiums disability, clear that have been waived un tion of years prior to Bume’s death after the date of der that clause 4% the accident. profit” compensation
acting any business pe- already uninterruptedly for a continued “has six months”. riod of at least
Contrary majority, I am read this unable to to the waiver-of-premium death and the accidental benefit ambiguity.11 producing an I think If, benefit as expiration prior of a the insured’s clear, following 90-day period intend the date accident was recovery necessary parties condition to as a ed then death benefit endorsement, the accidental under provisions mesh Because that the two well. it is evident majority following disability what the insured’s accident” must continue un refer as the “first would interruptedly activate the months in order to for six recovery waiver-of-premium can be no there benefit, acci if the “first benefit, the accidental under since the the insured in the death of dent” eventuates required 90-day period. within death did occur by accidental death is caused the result when As to pre being premiums waived due to means while disability (what “second calls the vious equally accident”) clear: The insured’s the situation *19 entitle not the “second accident” will because of indemnity; beneficiary the this is indeed, to double the against this drafted precise the insurer which situation language. majority in- uncertainty
Any finds which (accidental terrelationship the two clauses majority’s altogether waiver-of-premium) is due 90- erroneous invalidation believe, Ias and, own ambiguity opinion “It is thus: the court describes indemnity preclude policy provisions re double unclear whether only covery acci death is caused a second cases where in those period, month after the six whether occurred dent which recovery indemnity in in all cases where bars during period premiums means when accidental dies sured being waived”. day limitation. It understandable the policy is is not well adapted resulting situation language from that only invalidation. because the beyond allows double for a death resulting period that it finds it also to cir- 90-day necessary on the the waiver cumvent, theory pre- ambiguity, I clause. it miums as have Nevertheless, indicated, seems to me that even clause ruled with 90-day out, the deliberate invocation the insured of the waiver- to double of-premiums provision operates a bar re- Accidental covery by appellant. “This beneficiary Death Benefit shall if the death payable shall any premium being Insured . . . while result waived. . court
Being completely satisfied the lower claim in correct notwith- disallowing case, the obvious standing appeal sympathies one’s I the judgment appellee. would affirm contains, joins Mr. Chief Justice Jones in this dissenting opinion. Tingle,
Commonwealth. Appellant.