Downs v. National Cas. Co.

Decision Date05 June 1959
Citation152 A.2d 316,146 Conn. 490
CourtConnecticut Supreme Court
PartiesWalter W. DOWNS v. NATIONAL CASUALTY COMPANY. Supreme Court of Errors of Connecticut

T. Holmes Bracken and Robert E. Mansfield, New Haven, for appellant (plaintiff).

William E. Glynn, Hartford, for appellee (defendant).

Before BALDWIN, KING, MURPHY and MELLITZ, JJ., and PHILLIPS, Superior Court Judge.

MELLITZ, Associate Justice.

The plaintiff sustained injuries in an airplane accident when a privately owned airplane in which he was a passenger crashed while landing at a privately owned airstrip. He was insured at the time under an accident and health policy issued by the defendant. The trial court concluded on the facts that there was no liability under the policy, and the plaintiff has appealed.

The insuring clause of the policy provides 'indemnity for loss of life, limb, sight or time resulting from accidental bodily injury which is the sole cause of loss and sustained while this policy is in force (hereinafter referred to as 'such injury') and for loss of time caused by sickness commencing while this policy is in force,' subject to the provisions and limitations contained in the policy. The coverage provided by the policy is limited by two clauses which, so far as they are pertinent, read as follows: 'Part IV. Limited Air Travel Indemnity. If the Insured shall suffer loss by reason of 'such injury' sustained while riding as a fare paying passenger in a licensed passenger aircraft, provided by an incorporated passenger carrier, while operated by a licensed transport pilot, upon a regular passenger route, between definitely established airports, but not otherwise, the Company will pay indemnity provided for such loss. * * * Part VIII. Exclusions. This policy does not cover any loss resulting from: * * * (4) aerial navigation of any character except as provided under Part IV of the policy.'

No evidence was taken in the trial court. The case was presented and decided upon a written stipulation of facts. Presumably, the stipulation recited the facts necessary for the court to rule upon the issue in dispute, as the parties conceived it. It negatived the existence of the conditions which, under Part IV, must be present to impose liability on the defendant. The plaintiff, concededly, was not 'riding as a fare paying passenger in a licensed passenger aircraft, provided by an incorporated passenged carrier, while operated by a licensed transport pilot, upon a regular passenger route, between definitely established airports.' The plaintiff contends that the only limitation upon the right of an insured to recover for injuries sustained in the course of air travel is contained in the exclusion in Part VIII and that the words 'aerial navigation,' found in that clause, mean the process of conducting an aircraft from place to place. He argues, therefore, that a passenger such as himself could not be excluded from recovery by the provisions of Part VIII because a passenger would have no part in operating the aircraft, and a loss sustained by a passenger would not be a loss resulting from 'aerial navigation,' as these words are interpreted by the plaintiff. To reach this conclusion, he is obliged to ignore the provisions of Part IV, and he contends that Part IV serves only to specify one of the innumerable possible situations in which injury might arise, that this situation would be included in any event under the general insuring clause, and therefore that Part IV is superfluous and mere surplusage. After the trial, the defendant was permitted, by agreement of counsel, to file an amendment to its answer, pleading Part VIII as a special defense, to make the pleadings conform to the issue as it was presented to the court.

The plaintiff also claims that the exclusion in Part VIII of 'any loss resulting from * * * aerial navigation of any character' means loss resulting from some act or omissiion of the pilot or other personnel of the aircraft in their operation of it, as distinguished from loss resulting from mechanical or structural failure or the action of the elements; that Part VIII exempts a loss which would otherwise fall within the insuring clause, and the burden of establishing that the loss fell within the exemption was therefore upon the defendant; that this burden required the defendant to establish that the cause of the accident was some act or omission of the aircraft personnel; and that since the stipulation of facts is silent in this regard and the defendant failed to prove the cause of the accident, the plaintiff is entitled to a recovery. In other words, the contention of the plaintiff is that the effect of Part VIII is to exclude only losses from errors in navigation, in the sense of operation of the aircraft by its personnel, and that the case hinges, therefore, on proof of the cause of the accident, as to which the burden rests on the defendant. The varying contentions of the plaintiff reflect the ingenuity of counsel in seeking to read into the policy a meaning never contemplated rather than to accept the apparently clear intent of the parties expressed in the policy. The defendant's position is that the term 'Air Travel' in the title of Part IV and the...

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68 cases
  • Hammer v. Lumberman's Mut. Cas. Co.
    • United States
    • Connecticut Supreme Court
    • April 17, 1990
    ...inoperative, if any reasonable meaning consistent with the other parts of the policy can be given to it.' Downs v. National Casualty Co., [146 Conn. 490, 495, 152 A.2d 316 (1959) ]." Schultz v. Hartford Fire Ins. Co., supra, 213 Conn. at 706, 569 A.2d 1131. 7 Further, we note that since Whe......
  • Griffith v. Security Ins. Co. of Hartford
    • United States
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    ...meanings. A. M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 622, 220 A.2d 32; Downs v. National Casualty Co., . . . 146 Conn. 490, 494, 152 A.2d 316.' Marcolini v. Allstate Ins. Co., 160 Conn. 280, 284, 278 A.2d 796, 799. No persuasive argument or legal authority has been submitt......
  • Levinson v. Westport Nat'l Bank
    • United States
    • U.S. District Court — District of Connecticut
    • September 28, 2012
    ...where there is a claim of ambiguity a court must attempt to give meaning to every word of a contract”) (citing Downs v. Nat'l Casualty Co., 146 Conn. 490, 495, 152 A.2d 316 (1959)). Although, the terms of the contract do contemplate that the funds will be grouped together as WNB points out,......
  • Buell Industries v. Greater Ny Mutual Insurance
    • United States
    • Connecticut Court of Appeals
    • February 26, 2002
    ...and words do not become ambiguous simply because lawyers or laymen contend for different meanings.'' Downs v. National Casualty Co., 146 Conn. 490, 494-95, 152 A.2d 316 (1959). ''The fact that the parties advocate different meanings of the exclusion clause does not necessitate a conclusion ......
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1 books & journal articles
  • Analyzing Environmental Insurance Coverage Claims Under Connecticut Law
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 66, 1991
    • Invalid date
    ...susceptible of multiple constructions simply because lawyers or laymen contend for different meanings." Downs v. National Casualty Co., 146 Conn. 490, 494 (1959). establish an ambiguity the insured must do more than proffer a competing 'possible construction of the policy. Unless the insure......

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