Lewin v. METROPOLITAN LIFE INSURANCE COMPANY
Decision Date | 16 April 1968 |
Docket Number | No. 16285.,16285. |
Citation | 394 F.2d 608 |
Parties | Conchita S. LEWIN, Executrix of the Estate of Sidney E. Lewin, Deceased, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellee. |
Court | U.S. Court of Appeals — Third Circuit |
Richard B. Malis, Malis, Malis & Malis, Philadelphia, Pa., for appellant.
Arthur W. Leibold, Jr., Dechert, Price & Rhoads, Philadelphia, Pa. (Owen B. Rhoads, Philadelphia, Pa., on the brief), for appellee.
Before STALEY, Chief Judge, KALODNER, Circuit Judge, and SHERIDAN, District Judge.
Sidney E. Lewin, a citizen of Pennsylvania, brought an action against the Metropolitan Life Insurance Company, a New York corporation with its principal place of business in New York City, to recover benefits under two accident insurance policies. A jury awarded him $33,700, the maximum benefits under the policies. The district court granted Metropolitan's motion for judgment n. o. v. and, in the alternative, its motion for a new trial. Lewin v. Metropolitan Life Ins. Co., E.D.Pa.1966, 257 F. Supp. 506. This appeal is from that order.1
The district court had jurisdiction under 28 U.S.C.A. § 1332. The substantive law of Pennsylvania applies.
Lewin was insured under two policies of accident insurance issued by Metropolitan in 1936 and 1945. The 1945 policy provided in pertinent part:
The 1936 policy was similar in that it provided for payment for injuries "caused directly and independently of all other causes, by violent and accidental means," and excluded coverage for disabilities caused by disease germs excepting only septic infection "of and through a visible wound caused directly and independently of all other causes by violent and accidental means."
On June 7, 1960, Lewin, 64 years of age, was the head of a candy brokerage firm and was attending a candy convention at the Bellevue-Stratford Hotel in Philadelphia. At 5:30 o'clock in the afternoon, he went to the room of a guest of the hotel to shower and change clothes. While showering, he stepped on a sharp object which resulted in a wound on the bottom of his right foot. He applied a Mercurochrome Band-Aid, but sought no treatment until eleven days later when he called Dr. Asher Woldow who had been treating him since 1956 for diabetes mellitus and peripheral vascular disease associated with coronary artery disease (arteriosclerosis). Dr. Woldow found a massive infection, with the foot and leg swollen and inflamed to mid-calf and pus exuding from the undersurface of the foot from a large wound with necrotic tissue2 underneath it. He diagnosed the infection as a "toxic purulent septic infection"3 which was so far advanced as to present a surgical problem. Dr. Woldow called in Dr. Stein, a surgeon, who after a period of conservative treatment, amputated several toes and finally amputated the right leg at mid-thigh. Lewin had a severe psychic disturbance resulting from the amputation which caused an acute depression and required treatment by a neurologist and psychiatrist. He was not able to return to work.
Lewin applied for benefits under the policies. If the provisions had been fulfilled, under the 1936 policy he would have received $2,500 for the loss of one foot and $25 per week up to a maximum of 262 weeks, and under the 1945 policy $5,000 for the loss of one foot and $75 per week up to a maximum of 262 weeks. Metropolitan denied coverage.
The district court granted the motion for judgment n. o. v. because Lewin The court's conclusion was based principally on a determination that Pennsylvania law made it plaintiff's burden to show not only that the loss was caused solely by external, violent and accidental means, but also to exclude as causative factors all pre-existing and substantial infirmities which may have combined with the accident to produce the loss. Appellant contends that the court erroneously placed on Lewin the burden to prove that it did not come within the exclusions, which is an affirmative defense. Appellant also argues that even if this burden were on Lewin, there was sufficient evidence to meet it. We hold that the district court erred in both of these respects.
The district court relied primarily on O'Neill v. Metropolitan Life Ins Co., 1942, 345 Pa. 232, 26 A.2d 898. In that case the court held that the burden of proof in the first instance was upon a plaintiff to show that he did not come within the exclusions in the policy. The court noted, however, that the plaintiffs alleged they were not within the exclusions:
The court rejected a previous case which indicated that the burden was on the insurance company:
The court also cited authority for the proposition that "`the burden is often on one who has a negative assertion to prove.'" and held that it was plaintiffs' burden to prove that the insured did not come within the risks excluded.
The Pennsylvania Supreme Court's next statement on the subject was in Frame v. Prudential Ins. Co. of America, 1948, 358 Pa. 103, 56 A.2d 76, which appears to have modified the rule in O'Neill to provide that the plaintiff has the burden to show that the exclusion does not apply only if the proof points to a specific pre-existing infirmity or condition. The court said:
This rule was followed in later Pennsylvania decisions. McGarity v. New York Life Ins. Co., 1948, 359 Pa. 308, 59 A.2d 47; Dauphin Deposit Trust Co. v. Lumbermens Mutual Casualty Co., 1952, 171 Pa.Super. 86, 90 A.2d 349; Kubacki v. Metropolitan Life Ins. Co., 1960, 193 Pa.Super. 138, 164 A.2d 48.
Finally, in Brenneman v. St. Paul Fire & Marine Ins. Co., 1963, 411 Pa. 409, 192 A.2d 745, the court had before it a policy which provided for payment on proof of loss of life "`resulting directly and independently of all other causes from accidental bodily injury * * * (excluding such loss) resulting from * * * bodily or mental infirmity or any kind of disease * * *.'"4 The insured died of a head injury sustained in an automobile mishap. The insurance company claimed that the accident was the result of a dizzy spell caused by arteriosclerosis and hypertension and therefore that these pre-existing infirmities contributed to the cause of death. The lower court, in granting judgment n. o. v., held that "The burden was on plaintiff to prove that the car collision which caused the head injury resulted from some event constituting an `accident,' and to exclude the inference that it resulted from dizziness or blackout caused by arteriosclerosis and high blood pressure." In reversing, the Supreme Court said:
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