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Allison v. Nationwide Mut. Ins. Co.

filed: May 21, 1992; As Corrected June 2, 1992.

AUDREY ANN ALLISON AKA MRS. WILLARD ALLISON
v.
NATIONWIDE MUTUAL INSURANCE COMPANY AUDREY ANN ALLISON, A/K/A MRS. WILLARD ALLISON, APPELLANT



Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Civ. No. 89-01428)

Before: Stapleton And Mansmann, Circuit Judges, and Pollak, District Judge.*fn*

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

This appeal raises a discrete question under Pennsylvania law regarding the interpretation of an exculpatory clause in a limited travel accident insurance policy. We are asked to determine whether that clause relieved the insurer of liability for the insured's death since her death was due, at least in part, to a pre-existing disease. Because we find that the district court erred in its interpretation of the insurance policy's language, we will reverse the district court's grant of summary judgment in favor of the insurer, and we will remand for entry of summary judgment in favor of the beneficiary.

I.

The appellant, Audrey Ann Allison, is the named beneficiary to an insurance policy purchased by Martha B. Frances ("insured") from the appellee, Nationwide Insurance Company for coverage during a cruise operated by Carnival Cruise Lines, Inc. Ms. Frances boarded the cruise ship on June 5, 1986. On the next day, June 6, 1986, she fell in the bathroom of her cabin, breaking her right hip. She immediately was taken from the ship to Ormand Memorial Hospital in Ormand Beach, Florida where the medical staff determined that surgery was necessary to repair her hip. Surgery was performed on June 9, 1986. During surgery, Ms. Frances suffered a fatal cardiac arrest. The cause of death listed on the death certificate was "terminal cardiac arrest due to or as a consequence of arteriosclerotic cardiovascular disease due to or as a consequence of previous myocardial infarction."

Allison requested payment of the $75,000 accidental death benefit under the policy. When Nationwide refused to pay, she instituted this action.*fn1

At the pre-trial conference, the district court determined, on stipulation of the parties, that there were no genuine issues as to any material fact. Because the case turned on the legal question of coverage under the terms of the policy as drafted, the case was ripe for summary judgment.*fn2

The parties' dispute involved two sections of the insurance policy, the preamble and Part I. The policy's preamble states as follows:

"Injury" as used in the Master Policy means an accidental bodily injury occurring anywhere in the world which arises solely from accident, is not contributed to by sickness, disease, or bodily or mental infirmity, and is sustained by an insured member while:

SECTION A - riding as a fare-paying passenger, but not as an operator or member of a crew, in or on any bus, train, subway, streetcar, taxi-cab, power boat or ocean liner operated under a license for the transportation of passengers for hire; or . . .

SECTION B - [coverage for airline passengers]; or

SECTION C - [coverage for auto operators, passengers, ...


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