Dillard v. Continental Ins. Co.
| Decision Date | 05 May 1961 |
| Docket Number | No. 9481,9481 |
| Citation | 130 So.2d 489 |
| Parties | James R. DILLARD, Plaintiff-Appellee, v. CONTINENTAL INSURANCE COMPANY, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Theus, Grisham, Davis, Leigh & Brown, Monroe, for appellant.
Captan Jack Wyly, Lake Providence, for appellee.
Before HARDY, GLADNEY and BOLIN, JJ.
James Dillard, the owner of a Cessna 170 Airplane, brought suit against defendant insurance company for the total loss of his aircraft due to fire. Defendant denied any coverage under the terms of the policy issued to plaintiff and resisted the demands. The lower court awarded judgment in favor of plaintiff for the full policy amount of $5,500 for total loss of the plane, and defendant has appealed. Plaintiff has answered the appeal and again urges his demand for penalties and attorney's fees which were denied by the trial court.
The facts are simple and not in dispute. Plaintiff, on May 31, 1960, took off from Gilliard Airport near Lake Providence, Louisiana, en route to Vicksburg, Mississippi, on a personal mission. His departure time was approximately 4:00 P.M., and shortly after becoming airborne he noticed the odor of smoke about the aircraft and observed that the amp meter was discharging. He checked the electrical system by turning off and on the master electrical switch and concluded the plane was experiencing electrical difficulty.
Under these circumstances, Mr. Dillard performed a power landing on a pipeline right of way which traversed East Carroll Parish, Louisiana. The landing was made safely without any apparent damage to the plane. Upon landing, the plaintiff noticed smoke discharging from the cowling and immediately retreated a safe distance from the plane. As nothing happened, he returned to inspect the craft and found the smoke still billowing from the cowling but saw no flame. As he had no fire fighting equipment, he again retreated a distance of about 200 yards. Thereupon, the plane burst into flame and was completely destroyed by the fire.
Plaintiff testified the time lapse from take off until he noticed the odor of smoke to be four to six minutes. It was also his testimony that approximately eight minutes passed from the time he noticed the difficulty until the time of his final inspection of the plane before the fire broke out.
After his return to Lake Providence, Dillard notified the insurance agency from which he purchased the policy in question. The agency informed defendant herein of the destruction of the plane and after an investigation, defendant insurance company refused payment for the loss on the ground that same was not within the coverage afforded by the policy.
The question of liability resolves itself into one of construction of the policy in question. The appropriate schedule of coverage provides protection against:
It is the position of defendant that even though the destruction of the insured aircraft occurred on the ground, the cause of the fire originated while in flight (i.e., in motion) and the loss is therefore excluded from protection by the terms of the policy. While referring to no Louisiana authorities interpreting the policy language before us, appellant cites 9 A.L.R.2d 581, 582, which contains the following language:
'A policy of insurance against loss of or damage to aircraft may provide coverage for 'flight risks' only, or for 'ground risks' only, in which event it may become necessary to determine whether the insured craft was or was not in flight at the time of the occurrence of the loss, damage, or critical event.'
Defendant maintains the 'critical event' occurred 'while in motion under its own power' and the loss was not protected by the policy.
Defendant also tenders as support for its position the case of James v. Federal Ins. Co., 5 N.J. 21, 73 A.2d 720. There, plaintiff's claim under a similar...
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