Daburlos v. Commercial Insurance Co. of Newark, NJ, Civ. A. No. 69-1947.

• Decision Date: 12 December 1973
• Docket Number: Civ. A. No. 69-1947.
• Parties: Kathleen E. DABURLOS v. COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY and Fidelity and Casualty Company of New York.
• Court: U.S. District Court — Eastern District of Pennsylvania

367 F. Supp. 1017

Kathleen E. DABURLOS v. COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY and Fidelity and Casualty Company of New York.

Civ. A. No. 69-1947.

United States District Court, E. D. Pennsylvania.

December 12, 1973.

David F. Binder, Philadelphia, Pa., for plaintiff.

Francis E. Marshall, Marshall, Dennehey & Warner, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

CLIFFORD SCOTT GREEN, District Judge.

I

In this diversity action, there are, presently pending before this Court, cross-motions for summary judgment.

At issue is the question of whether the insureds complied with the requirements of four insurance policies purchased from the defendants. Specifically, the narrowest questions presented are, first, what the insureds were required to do to maintain coverage for the flight on which they were killed under the policies in question and the ticket exchange provisions thereof; and, second, whether it was possible and/or practicable to comply with the requirements of the ticket exchange provisions of the policies. We decide that as to this latter question there exists a genuine issue of material fact and related to this issue of fact and as to the former question, there exists a relevant contractural ambiguity.¹ Therefore, we deny both the motion of the plaintiff and the motion of the defendants for summary judgment.

II

Plaintiff,² Kathleen E. Daburlos, is a citizen of Pennsylvania and the beneficiary of four insurance policies issued by the defendants.

Defendants are citizens of states other than Pennsylvania but doing business in Pennsylvania. They issued policies here in question and they are both members of the Continental Insurance Companies and are generally run by the same personnel.

The policies were purchased by Kenneth and Shirley Daburlos on May 19, 1968, at the Continental Insurance counter at the Philadelphia International Airport prior to their departure for Los Angeles on an United Air Lines plane. Both Mr. and Mrs. Daburlos purchased two policies, one from each defendant and each has a principal sum of $75,000 and the premium for each was $2.50. After purchasing the insurance policies, Mr. and Mrs. Daburlos mailed them to the plaintiff-beneficiary in an envelope provided by defendants with the policies.

Mr. and Mrs. Daburlos had purchased round trip tickets for flights from Philadelphia to Los Angeles and return to Philadelphia prior to purchasing the insurance in question. The itinerary on each is listed as Philadelphia, Los Angeles, Philadelphia. Insureds used these tickets to fly from Philadelphia to Los Angeles on a United Air Lines, Inc. airplane on May 19, 1968.

On May 22, 1968, Mr. and Mrs. Daburlos each purchased a sky tour round trip ticket from Los Angeles Airways, Inc. (LAA)³ at Los Angeles International Airport (LAIA) for a round trip flight from LAIA to Anaheim/Disneyland and return. They made an uneventful flight from LAIA to Anaheim/Disneyland. However while they were passengers on the return flight from Anaheim/Disneyland to LAIA, the helicopter in which they were riding crashed and they were killed.

All four insurance policies are identical. They contain, at the top, blocks for the identification of the insured and the beneficiary. In addition, there is one block space for point of departure and one block space for point of destination and one of two squares to be checked indicating a one way on a round trip ticket. On each policy, Philadelphia was listed as the point of departure and Los Angeles as the point of destination and the trip designated as on a round-trip ticket. Immediately above these boxes appears the following: "I hereby apply to Company named below for Scheduled Air Carrier (Airline) Trip Insurance to insure me on one airline trip between the Point of Departure and Destination show below."

The principal clauses of the policy, as relevant here are as follows:

"2. INSURING CLAUSE: Ticket Or Pass Requirement. The Company will pay the benefits specified below if during the term of this policy the Insured suffers loss resulting directly and independently of all other causes from accidental bodily injury (hereinafter referred to as `such injury'), sustained under circumstances specified below during the first one-way or round trip flight taken by the Insured after the purchase of this policy on Aircraft Operated by a Scheduled Air Carrier as defined below from the Point of Departure to the Destination, both shown above, and return if round trip ticket is obtained before leaving said Point of Departure, provided that at the time that the Insured sustains such injury he is traveling on a ticket or pass covering the whole of said airline trip, issued to him for transportation on an Aircraft Operated by a Scheduled Air Carrier. A ticket issued to the Insured aboard such aircraft after leaving the Point of Departure but before reaching the first scheduled stop of such aircraft shall be deemed to have been issued before leaving the Point of Departure.

3. SUBSTITUTE TRIP COVERED IF TICKET EXCHANGED. In case of a change in the itinerary of said first airline trip referred to in Section 2 above, following issuance of this policy and after the Insured has left the Point of Departure on said trip, the insurance afforded as set forth in Section 2 above shall no longer apply on the original itinerary but shall apply on the new itinerary in the same manner and to the same extent as it would have applied on the original itinerary, provided that (1) the transportation ticket or pass issued to the Insured for said first airline trip prior to his leaving the Point of Departure has been exchanged for another ticket or pass issued for transportation on an Aircraft Operated by a Scheduled Air Carrier on the substituted trip and (2) the Point of Departure is the same as that shown above and (3) at least one other stop on the new itinerary is a stop that was scheduled on the original itinerary for said first airline trip.

4. DEFINITION AND DELIMITATION OF COVERAGE. This policy applies only to such injury sustained by the Insured during such first or substituted airline trip referred to in Sections 2 and 3 above . . . ."

These three provisions are on the front of the policy. The other provisions of the policy relevant here are printed on the back of the policy.

"6. POLICY TERM. This insurance shall commence on the day and hour shown above and shall terminate either upon completion of the above described airline trip or upon expiration of, or surrender for refund or credit of, the transportation ticket hereinbefore referred to but in no event shall this insurance extend beyond a period of twelve months.

. . .

POLICY PROVISIONS. Entire Contract; Changes: This policy, including the endorsements and the attached papers, if any, constitutes the entire contract of insurance. No change in this policy shall be valid until approved by an executive officer of the Company and unless such approval be endorsed hereon or attached hereto. No agent has authority to change this policy or waive any of its provisions." (Emphasis added)

III

Pennsylvania substantive law applies and governs the resolution of this controversy. Pittsburgh Bridge & Iron Works v. Liberty Mutual Ins. Co., 444 F.2d 1286, 1288 n. 2 (3 Cir. 1971); First Pa. B. & T. Co. v. United States Life Ins. Co., City of N. Y., 421 F.2d 959, 962 (3 Cir. 1969); Eastcoast Equipment Co. v. Maryland Casualty Co., 207 Pa. Super. 383, 213 A.2d 91, 95 n. 5 (1966); Varas v. Crown Life Insurance Company, 204 Pa.Super. 176, 183, 203 A.2d 505, 508 (1964), cert. den. 382 U.S. 827, 86 S.Ct. 62, 15 L.Ed.2d 72 (1965).

However, summary judgment is not to be granted if there are unresolved issues of material fact and all doubts thereto are resolved against the moving party and factual inferences are not drawn in favor of the moving party. First Pa. B. & T. Co. v. United States Life Insurance Co., City of N. Y., supra. Moreover, the applicable standards do not change by reason of the fact that the Court is presented with cross-motions for summary judgment. Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3 Cir. 1968); F.A.R. Liquidating Corp. v. Brownell, 209 F.2d 375, 380 (3 Cir. 1954).

IV

It is undisputed that the accident on which the insureds lost their lives did not occur while either was traveling on a ticket covering the...