Demito v. Life Insurance Co. of North America

11 Pa. D. & C.3d 465, 1979 Pa. Dist. & Cnty. Dec. LEXIS 275
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedMay 9, 1979
Docketno. 71-01669
StatusPublished

This text of 11 Pa. D. & C.3d 465 (Demito v. Life Insurance Co. of North America) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Demito v. Life Insurance Co. of North America, 11 Pa. D. & C.3d 465, 1979 Pa. Dist. & Cnty. Dec. LEXIS 275 (Pa. Super. Ct. 1979).

Opinion

GARDNER, P.J., Specially Presiding,

This matter is a non-jury trial which was presented to this court on an agreed factual statement. The sole issue is whether Anthony Demito, a former employe of the Commonwealth of Pennsylvania, was, at the time of his death, an insured under a group life insurance policy issued to the Commonwealth by defendant.

[466]*466The relevant dates involved in this controversy are:

January 22, 1969, at noon — the decedent taken ill; last day of his actual work for the Commonwealth; January 22, 1969 (noon) through February 4, 1969 — decedent on sick leave; February 1, 1969 — issue date of insurance policy; February 5, 1969, through March 10, 1969 — decedent on accrued vacation leave (extended specially for last five working days, March 4 through March 10); March 11, 1969, at 4:30 a.m. — date and time of decedent’s death.

Plaintiff contends: (1) that since decedent had fulfilled the statutory and policy prerequisites of three months’ prior continuous service, he became automatically insured, (2) that the policy requirement that an insured must “actively engage in work”1 relates only to those employes who declined coverage initially and later elected such protection, (3) that the policy is at variance with the enabling statute which provides that employes on “active [467]*467service”2 would be covered and that the statute controls, and (4) that the policy language is ambiguous, and, therefore, its construction must favor the insured.

Defendant submits that the policy is clear, that its language controls, and that decedent never became an insured, since he did not fulfill the active work requirement on or after the policy’s effective date.

Our research, and that of counsel, revealed the following general principles of Pennsylvania law which we believe provide the context in which this matter is to be viewed:

(1) A contract of insurance is to be construed liberally in favor of the insured and strictly as against the insurer who drew it: Penn-Air, Inc. v. Indemnity Insurance Company of North America, 439 Pa. 511, 269 A. 2d 19 (1970).

(2) Quigley v. Western and Southern Life Insurance Company, 136 Pa. Superior Ct. 27, 7 A. 2d 70 (1939), as cited in an excellent opinion by Judge Acker of Mercer County; Welch v. National Union Life Insurance Co. of Pittsburgh, 51 D. & C. 2d 189 (1971).

(3) The usual definition of words employed in a contract must control in the absence of a clear expression of contrary intention: Morris v. American Liability & Surety Company, 322 Pa. 91, 185 Atl. 201 (1936), as cited in Judge Acker’s opinion, supra.

(4) A statute applicable to a contract of insur[468]*468anee in force at the time of the making of the contract must be read in connection therewith in construing the terms of the policy, and controls in case of conflict: Neel v. Williams, 158 Pa. Superior Ct. 478, 45 A. 2d 375 (1946).

However, the specific question here involved has never been decided by a Pennsylvania appellate court.

This question, although not involving the specific statute under which the instant matter arose, has been the subject of two common pleas decisions. In Shockley v. Travelers Insurance Company, 33 Del. Co. 526 (1945), the Court of Common Pleas of Delaware County held that where a group life insurance policy stipulates that an employe to be eligible for benefits must complete three months of service and must be actively at work on the date when he would become eligible, and it is admitted that the employe was not at work on that date and at any time between that date and the date of his death, the beneficiary of the employe is not entitled to recover. In Clark v. Washington National Insurance Co., 6 D. & C. 3d 178 (1978), the Court of Common Pleas of Philadelphia County held that the words “actively at work” must be given commonly accepted meaning. The court denied coverage to an employe who was out ill on a year’s leave of absence, subsequently changed to a sabbatical leave, under a policy which required active work.

Of major aid to this court is an extensive annotation found in 58 A.L.R. 3d 993, wherein cases of other jurisdictions are analyzed. The authors conclude that there is more flexibility of argument as to coverage in policies such as involved instantly where the employe was a professional, an execu[469]*469tive, or in a supervisory capacity, since such persons maybe “at work” even when hospitalized, as a result of the ability to be consulted or to act as an advisor though confined.3

Other than the “executive” exception, the inescapable conclusion from cases cited in the A.L.R. annotation is that the concepts of “actively at work,” “active duty,” or “active service,” which the authors consider synonymous, require an insured to be in active pursuit of employment duties. Some examples are:

(1) In Smith v. Connecticut General Life Insurance Company, 25 App. Div. 2d 555, 267 N.Y.S. 2d 579 (1966), a policy required “active service with the employer” on the effective date of the policy. The deceased was in the hospital at the effective date, and it was held that the insurance never became effective. The same holding is found in Elsey v. Prudential Insurance Company of America, 262 F. 2d 432 (C.A. 10th Cir. Okla. 1958).

(2) In Rabinovitz v. Travelers Insurance Company, 11 Wis. 2d 545, 105 N.W. 2d 807 (1960), a general manager was held not actively at work where he was confined in a hospital from about one week prior to the policy’s effective date until one month after the effective date at which time he died.

(3) In Marshall v. Connecticut General Life In[470]*470surance Company, 371 S.W. 2d 363 (Mo.App. 1963), an airline mechanic was held not in “active service” after a determination of total disability.

(4) In Williams v. Metropolitan Life Insurance Company, 448 S.W. 2d 295 (Mo.App. 1969), a deceased employe was held not “actively at work” where he had been laid off one day before the policy’s effective date, the court citing a dictionary definition of the word “active.” This court also stated that where there was no ambiguity, it could not search for a meaning beyond the plain language of the contract.

(5) In McLean v. Metropolitan Life Insurance Company, 78 Ohio L.Abs. 464, 153 N.E. 2d 349 (1957), it was held that an employe who was totally disabled could not be “actively at work.”

Plaintiff places heavy reliance on Chinea v. Northeastern Life Insurance Company, 53 Misc. 2d 437, 278 N.Y.S. 2d 560, 561 (1966), where the New York Supreme Court determined that a deceased was on active duty though at the time on sick leave. However, we agree with the defendant that this case is readily distinguishable from the instant one. Chinea involved an employe who was insured, and the issue concerned the effectiveness of a policy amendment which was instituted during his sick leave. The policy involved provided that where a covered employe was “temporarily . . . absent on account of sickness or injury, employment shall be deemed to continue until premium payments for such employee’s insurance are discontinued,” and premium payments had never been discontinued.4 [471]*471In the matter before us, the question is whether the deceased was covered initially. We are of the opinion that he was not.

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Related

Williams v. Metropolitan Life Insurance Company
448 S.W.2d 295 (Missouri Court of Appeals, 1969)
Zehren v. F. W. Woolworth Co.
105 N.W.2d 563 (Wisconsin Supreme Court, 1960)
Morris v. American Liability & Surety Co.
185 A. 201 (Supreme Court of Pennsylvania, 1936)
Quigley v. Western & Southern Life Insurance
7 A.2d 70 (Superior Court of Pennsylvania, 1939)
Neel, Insurance Commissioner v. Williams
45 A.2d 375 (Superior Court of Pennsylvania, 1945)
Marshall v. Connecticut General Life Insurance Co.
371 S.W.2d 363 (Missouri Court of Appeals, 1963)
Smith v. Connecticut General Life Insurance
25 A.D.2d 555 (Appellate Division of the Supreme Court of New York, 1966)
Chinea v. Northeastern Life Insurance
53 Misc. 2d 437 (New York Supreme Court, 1966)
Great American Insurance v. State Farm Mutual Automobile Insurance
194 A.2d 903 (Supreme Court of Pennsylvania, 1963)
Lovering v. Erie Indemnity Co.
195 A.2d 365 (Supreme Court of Pennsylvania, 1963)
Penn-Air, Inc. v. Indemnity Insurance Co. of North America
269 A.2d 19 (Supreme Court of Pennsylvania, 1970)
McLean v. Metropolitan Life Insurance
153 N.E.2d 349 (Cuyahoga County Common Pleas Court, 1957)

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11 Pa. D. & C.3d 465, 1979 Pa. Dist. & Cnty. Dec. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demito-v-life-insurance-co-of-north-america-pactcomplmontgo-1979.