Dorsey v. State Mutual Life Assur. Co. of Worcester, Mass.

• Decision Date: 17 December 1964
• Docket Number: Civ. A. No. 8173.
• Citation: 238 F. Supp. 391
• Parties: Sam Adams DORSEY and the Citizens and Southern National Bank, Executors of the Estate of Roby Robinson, deceased, Plaintiffs, v. STATE MUTUAL LIFE ASSURANCE COMPANY OF WORCESTER, MASS., Defendant.
• Court: U.S. District Court — Northern District of Georgia

238 F. Supp. 391

Sam Adams DORSEY and the Citizens and Southern National Bank, Executors of the Estate of Roby Robinson, deceased, Plaintiffs, v. STATE MUTUAL LIFE ASSURANCE COMPANY OF WORCESTER, MASS., Defendant.

Civ. A. No. 8173.

United States District Court N. D. Georgia, Atlanta Division.

December 17, 1964.

Troutman, Sams, Schroder & Lockerman, Atlanta, Ga., for defendant.

Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for plaintiffs.

MORGAN, District Judge.

Defendant State Mutual Life Assurance Co., of Worcester, Mass. (hereinafter called State Mutual) has filed a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure upon the grounds that there is no dispute as to any material fact in the case at hand. Thereafter, the plaintiffs, Sam Adams Dorsey and the Citizens and Southern National Bank, Executors to the estate of Roby Robinson, likewise filed a motion for summary judgment under Rule 56, the Federal Rules of Civil Procedure upon the same ground.

Both parties rely upon attached affidavits, the pleadings the pretrial order heretofore entered, and agreed admission of facts. The briefs having been submitted by both parties under local Rule 8 the case is now ripe for consideration. Both parties agree that there is no dispute as to any material facts.

The deceased, Roby Robinson, was killed while a passenger on a 707 Boeing Intercontinental Jet of Campagnie Nationale Air France (hereinafter referred to as "Air France") which crashed near Orly Field, Paris, France, on June 3, 1962. Deceased was a senior officer of the Robinson-Humphrey Co., a participating member of the National Association of Security Dealers, Inc. Insurance Trust, and State Mutual had issued a certificate of insurance under said policy, affording under certain circumstances accidental death insurance in the amount of $50,000.00 to Mr. Robinson. There is no issue concerning the form or due receipt by defendant of the proof of death.

The certificate of insurance contained the following exclusion which is the basis for the denial of liability by the defendant:

"No benefits shall be payable for any loss which is caused or contributed to by * * * being in or on or in contact with any kind of aircraft, either on the ground, water, or in the air, or falling or in any other manner descending with or from such aircraft, except loss resulting from flight or travel as a passenger in a licensed aircraft (other than a chartered aircraft) operated by a licensed pilot on a scheduled passenger service regularly offered between specified airports by a passenger carrier duly licensed by the proper licensing authority * * *."

The question at issue narrows down to whether or not the accidental death of Roby Robinson was one excluded under the terms of the contract.

The policy of insurance in this case is to be interpreted or construed, if the necessity for construction arises, according to the principles followed by Georgia Courts in the interpretation and construction of contracts. Sulzbacher v. Travelers Ins. Co., 8 Cir., 137 F.2d 386. Under Georgia Law State Mutual having admitted Robinson met his death by reason of the accident, the burden is on State Mutual to show that the loss comes within an exception to coverage. Johnson v. Southern Life Ins. Co., 95 Ga.App. 625; Jewelers Mutual Ins. Co. v. Balough (5th Cir.) 272 F.2d 889, 892.

Also, under Georgia Law where a contract of insurance is ambiguous or its meaning is doubtful, such contract is to be construed against the insurer and in favor of the insured. Georgia Southern & Florida Railway Co., 177 F.Supp. 751, 758, affirmed per curiam, 5 Cir., 272 F.2d 712. Exclusions from coverage are construed against the insurer and in favor of providing the indemnities sought. National Surety Co. v. Musgrove, et al., 5 Cir., 310 F.2d 256, 261.

The defense of State Mutual rests on provisions in the exclusion clause of the certificate. Is the accepted clause ambiguous? To determine this question, we must first examine the excepted clause in question. It is apparent under the clause that the insurer would not pay for loss being caused by contact with any kind of aircraft, even on the ground, water, or in the air, or falling or in any other manner descending with or from such aircraft, except loss resulting from flight or travel as a passenger in a licensed aircraft (other than a chartered aircraft) operated by a licensed pilot on a scheduled passenger service regularly offered between specified airports by a passenger carrier duly licensed by the proper licensing authority * * *. (emphasis supplied).

Was the aircraft in the instant case a chartered aircraft as was intended in the contract of indemnity and was the aircraft on a flight between two points on Air France's schedule? It is now incumbent upon this Court to determine the contract of transportation between the insured, Robinson and Air France.

Air France is an international air carrier approved by the Civil Aeronautics Board. Air France operated on certain days each week between Houston and Paris via New York (Idlewild Airport) and on certain days between Paris, France and Houston, Texas, with a stop via New York. The insured Roby Robinson was a member of the Atlanta Art Association. It appears that around November, 1961, a committee of the Atlanta Art Association began negotiations with the American Express Co. to obtain a tour for the members of Atlanta Art Association. Thereafter, more than 100 members of the Association having made plans to make the trip, the officers of the Association entered into a contract (a charter flight agreement) with Air France for the transportation of the various members of the Association, between Atlanta, Georgia and Paris, France via New York. The charter agreement will be hereafter dealt with in some detail.

Air France had no regularly approved scheduled flight into or out of Atlanta. Air France, however, did maintain an Atlanta office. The flight on which Robinson later met his death — arrived in Houston, Texas on May 8, 1962 from Paris. The flight was a Boeing 707 Jet, being Airplane F-BHSH. This same plane left Houston, Texas for Paris, France on Wednesday, May 9, 1962 as Flight AF0700. The extra digit was added to the flight number because the particular plane was to operate from Houston to New York and Paris, via Atlanta. Otherwise the flight would have been Air France Flight 070. No tickets were sold for Houston to Paris as the plane was pre-empted for use by the Atlanta group and the Jet was flown by way of Atlanta where it enplaned the Association members.

The return trip began on Sunday, June 3, 1962, and the return trip on which insured was killed is set forth by schedule A attached to the copy of the contract submitted with the application on May 17, 1962 for approval by the Civil Aeronautics Board of the return flight. This schedule provides that the return will be "Flight AF007". The evidence further shows that this disastrous flight was a regular Air France flight which leaves Paris at 13:00 on Sundays, Tuesdays and Thursdays of every week. Except for the disaster the Intercontinental Jet Aircraft No. F-BHSM would have proceeded on to Idlewild International Airport, New York and would have flown to Atlanta and from Atlanta to Houston, Texas to return to Paris on Monday, June 4th, as Flight AF 070.

Air France filed with the Civil Aeronautics Board its chartered tariff No. CH-1, in which it (Air France) offered to furnish charter transportation from New York to Paris, France, by a Boeing 707 for $4.29 per statute mile, plus ferry charges.

The letters of submission of Atlanta Art Association contracts to the CAB refer in one case to a ferry between New York and Atlanta, or Atlanta and New York and in the other to a ferry between Atlanta and Houston.

The regular tariff of Air France provides for the assessment of a ferry charge from the point of origin of the flight to the regular point of departure and for a ferry charge to return the aircraft to the point required by the carrier.

In this case, the compensation to be paid by the members of the Atlanta Art Association included a ferry charge as fixed by the tariff ($3.15 per statute mile) from Atlanta to New York where the plane returned to the regular route, and on the return trip a ferry charge at the same rate from Atlanta to Houston where the plane would return to the regular route.

It does not appear that the ferry charge is of import here for the reason that the accident occurred as the plane was taking off at Orly Field for New York, both points being points between which Air France operated these flights every day.

Defendant insists that the exclusion clause prevents a recovery for the reason that aircraft in the instant case was a chartered plane. It is true that the original contract between the Art Association and Air France which was approved by CAB refers to the flight as "International Charter Flight Agreement," yet it might be noted that the word "charter" is used to describe many and varied transportation arrangements. Questions of charter-parties have arisen mainly in connection with maritime matters. A "charter-party" is ordinarily the contract between two parties having to do with the use and operation of a sea-going vessel.

Justice Field, speaking for the Supreme Court in the case of Leary v. United States, 14 Wall. 607, 20 L.Ed. 756 held:

"The question as to the character in which the charterer is to be treated is, in all cases, one of construction. If the charter-party let the entire vessel to the charterer with a transfer to him of its command and possession and consequent control over its navigation, he will generally be considered as owner for the voyage or service stipulated. But, on the other hand, if the charter-party let only the use of the vessel, the owner at the same time retaining its command and possession and control over its navigation, the charterer is regarded as a

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