Engel v. Credit Life Ins. Co.

• Decision Date: 11 December 1985
• Docket Number: Docket No. 79465
• Citation: 377 N.W.2d 342,145 Mich.App. 55
• Parties: James R. ENGEL, Plaintiff-Appellant, v. CREDIT LIFE INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 342

377 N.W.2d 342

145 Mich.App. 55

James R. ENGEL, Plaintiff-Appellant, v. CREDIT LIFE INSURANCE COMPANY, Defendant-Appellee.

Docket No. 79465.

Court of Appeals of Michigan.

Submitted July 9, 1985.

Decided Aug. 19, 1985.

Released for Publication Dec. 11, 1985.

Cholette, Perkins & Buchanan by Robert J. Riley, Grand Rapids, for plaintiff-appellant.

Wheeler, Upham, Bryant & Uhl by Susan B. Flakne, Grand Rapids, for defendant-appellee.

Before WAHLS, P.J., and ALLEN and RAVITZ, ^* JJ.

ALLEN, Judge.

Plaintiff appeals as of right from a June 1984 order of the circuit court for Kent County which: (1) denied plaintiff's motion for partial summary judgment on plaintiff's action for a declaratory judgment against defendant and (2) granted defendant's motion for summary judgment in favor of defendant. The question presented is both novel and of first impression.

Plaintiff, a student at Michigan State University, suffered a broken leg with resultant surgery when he struck the ground on October 15, 1983, after an otherwise successful first parachute jump. Defendant is the insurer which had issued a group student accident and sickness policy. Defendant denied plaintiff's claim on grounds that plaintiff was not insured under the policy at the time of the accident and that defendant was exempt from liability because of exclusion (j) in the policy. Plaintiff then filed this action seeking a declaratory judgment against defendant insurer.

Opposing motions for summary judgment were filed with respect to exclusion (j). The issue of whether plaintiff was insured at the time of the accident was not raised in the motions because that issue became irrelevant if the injury was excluded under the policy. Exclusion (j) reads in relevant part:

"No benefits are payable under the policy for:

* * *

* * *

"(j) Injuries sustained while in or on, or entering or leaving any kind of aircraft, except as a passenger in a duly licensed passenger aircraft provided by a scheduled airline and flown by a pilot duly licensed to operate such aircraft."

A hearing on the cross motions for summary judgment was held June 14, 1984, at which time the scope of exclusion (j) was argued. Following argument, the trial court granted defendant's motion and denied plaintiff's motion, the court stating:

"The language in the policy which says no benefits are payable under the policy for injury sustained while in or on, or entering or leaving any kind of aircraft are not ambiguous. I do not give it overall the broad interpretations that have been presented. They are very interesting but I think the word leaving has a general meaning either departing from, going away or exiting or separating oneself from something: leaving a room, leaving a house.

"I think here the plaintiff while flying in this aircraft from which he was to parachute jump, when he obviously went to and jumped from the side door, open door, he was leaving an aircraft, a kind of aircraft that does not provide such coverage.

"I don't find that the Court engage in anything but the normal and reasonable meaning of this clause. By the same token I am not sure; it possibly could have been clearer as it is in all contracts whether drafted by lawyers, companies, whatever. If more words had been put in such as descending or parachuting, jumping or whatever of course it would be made more clear and may have been more clear. But the fact that a contract clause can be made more clear does not of itself prove that the language used is unclear and ambiguous."

An order effecting the court's decision was entered on June 29, 1984, from which plaintiff now appeals as of right.

On appeal, defendant argues that insurance policies are to be construed "in accordance with the ordinary and popular sense of the language used", Kinnavy v. Traill, 56 Mich.App. 370, 375, 223 N.W.2d 741 (1974), and that the ordinary and popular meaning of the term "while in or on, or entering or leaving any * * * aircraft" includes at least until such time as firm contact with the ground is reestablished. In support of this position, defendant cites Cabell v. World Service Life Ins. Co., 599 S.W.2d 652, 653; (Tex.Civ.App., 1980), which held that where a person goes aloft for the purpose of making a parachute jump, his "participation in aviation continued until he returned to earth". Defendant also relies on Krueger v. Lumbermen's Mutual Casualty Co., 112 Mich.App. 511, 515, 316 N.W.2d 474 (1982), where this Court held that "an individual has not finished 'alighting' from a vehicle at least until both feet are planted firmly on the ground".

Defendant also argues that the trial court's decision could also have appropriately been based on the theory that the parachute itself was an "aircraft" which the plaintiff was "in or on" at the time of injury. Most jurisdictions which have considered the question have found that parachutes, kites and gliders are aircraft or devices for aerial navigation. Edison v. Reliable Life Ins. Co., 664 F.2d 1130 (CA 9, 1981); Deschler v. Fireman's Fund American Life Ins. Co., 663 P.2d 97 (Utah, 1983); Fireman's Fund American Life Ins. Co. v. Long, 148 Ga.App. 216, 251 S.E.2d 133 (1978); Smith v. Mutual Benefit Health & Accident Ass'n., 175 Kan. 68, 258 P.2d 993 (1953). ¹

Plaintiff contends that the language in exclusion (j) is ambiguous; that the injury did not occur "while leaving" the plane but occurred after plaintiff had separated himself from the aircraft and that defendant is attempting to expand the words "while leaving" to include "while descending from an aircraft" or "while parachuting or skydiving". Plaintiff refers to the long established legal principle that where a policy contains an ambiguity it is to be construed in favor of the insured, particularly where the language is drawn by the insurer. Michigan Mutual Ins. Co. v. Sunstrum, 111 Mich.App. 98, 102, 315 N.W.2d 154 (1981).

We hold for the plaintiff and reverse. While we agree that an insurance policy should be construed according to the ordinary meaning of the language used therein, we disagree that the phrase "while * * * leaving any kind of aircraft" commonly and ordinarily includes exiting a plane by parachute. Instead, we are persuaded that the language describes situations occurring where the aircraft has made a normal landing but during the exit from the plane a passenger trips while descending a stairway, walks into a propeller, or is struck by a vehicle servicing the plane. Likewise, the language includes situations arising where the aircraft has made a faulty or emergency landing and the passengers leave the plane under crash or emergency conditions. In each instance the plane has completed its flight and is at rest on the ground and the injury occurs during the passenger's exit from the plane. In all such situations the passenger and the plane are in proximity to one another.

The phrase injuries sustained while * * * "entering or leaving any kind of aircraft" suggests both that the injury be suffered contemporaneously with the entering or leaving and in close proximity to the plane being entered or exited. Actual physical contact with the plane is not necessarily required, but close proximity is. Injuries sustained upon touching the ground by parachute occur thousands of feet from the aircraft from which the parachutist has jumped. Likewise, the injury occurs a substantial period of time after "leaving". In the instant case there was neither close proximity nor contemporaneousness.

We also find exclusion (j) at best ambiguous. The ambiguity lies in the uncertainty as to whether "while leaving" means the time frame occurring immediately upon the act of leaving or whether it includes an appreciable length of time after immediate...