Estate of Carroll, In re, No. WD

• Decision Date: 01 June 1993
• Docket Number: No. WD
• Parties: In re ESTATE OF CARROLL, Joseph Brandon, Plaintiff. CARROLL, Joseph Brandon II & C.S.V. Carroll, Respondents, Sutton, Randall K., Personal Rep. of Estate, Intervenor-Respondent, v. CONTINENTAL CASUALTY COMPANY, Appellant. 46096.
• Court: Missouri Court of Appeals

Page 848

857 S.W.2d 848

In re ESTATE OF CARROLL, Joseph Brandon, Plaintiff.

CARROLL, Joseph Brandon II & C.S.V. Carroll, Respondents, Sutton, Randall K., Personal Rep. of Estate, Intervenor-Respondent, v. CONTINENTAL CASUALTY COMPANY, Appellant.

No. WD 46096.

Missouri Court of Appeals,

Western District.

June 1, 1993.

Craig A. Strayer, Kansas City, for Carroll.

Kriston Altice, Kansas City, for Continental Cas.

Jean Ryan, Springfield, for Sutton.

Before BRECKENRIDGE, P.J., and SHANGLER and SPINDEN, JJ.

SHANGLER, Judge.

The plaintiffs Joseph Brandon Carroll II and Christian Sheppard Victor Carroll brought suit to recover accidental death benefits under a policy issued to their father, Joseph Brandon Carroll by the defendant Continental Casualty Company. The father died from injuries suffered in an airplane crash near a private landing strip. It was admitted that the policy was in full force in effect when Carroll suffered fatal injury by accidental means.

The insured Carroll was employed by Litton Industries as a chemical engineer. During his employment, Carroll purchased Group Accidental Death and Dismemberment Insurance coverage in the amount of $350,000 from the defendant Continental Casualty. The policy named the sons, Joseph Carroll II and Christian Carroll, as the beneficiaries each of $150,000 in accidental death benefits, and his friend, Carolyn Sue Brashers, as the beneficiary of $50,000. Randall K. Sutton, personal representative of the estate of Joseph B. Carroll, intervened to recover accidental death benefits left to Carolyn Brashers, who died simultaneously with him in the plane crash.

On April 12, 1987, a single engine, 1978 model Lake LA-4-200 Buccaneer crashed on a private landing strip near Nixa, Missouri. Two people were found in the plane, still strapped to their seats. Carroll was found in the left seat and Ms. Brashers was in the right seat. They were both pronounced dead at the scene by the county coroner. There were no eyewitnesses to the crash. The Buccaneer, a dual control amphibious plane, was owned by Carroll and was capable of being piloted from either the left hand or the right hand seat.

Carroll and Brashers were both capable of flying the airplane. Carroll had a pilot's license, but his log book reflected that he was not current and so could not operate an aircraft and be in compliance with FAA regulations. Brashers had held a student pilot certificate from 1982 to 1984 which had expired.

The airstrip where the crash occurred is located on a farm owned by Steve E. Moore. Moore was himself a licensed pilot. He had known Carroll for many years and also had known Ms. Brashers as an acquaintance. Moore testified that it is not possible to tell from the outside of the airplane who is flying the craft if both right and left seats are occupied by persons who know how to fly.

Although there were no eye-witnesses to the casualty, Moore saw the Buccaneer immediately before it crashed. He saw the plane flying to the landing strip, but did not see the craft thereafter until he arrived at the scene of the crash. He found the Buccaneer there upside down. Moore flipped the plane over and found Carroll strapped in the left seat and Brashers strapped in the right seat. Apparently, the plane had collided with a tree near the landing strip and crashed into the ground.

The insurance policy issued by Continental had a provision, "Limited Air Travel Coverage." That provision was deleted and was substituted by Rider # 1:

It is agreed and understood that Part II Limited Air Travel Coverage is deleted in its entirety and the following substituted therefore. [Sic]

Insurance provided under this policy includes riding as a passenger and not as a pilot or crew member in, including boarding and alighting from, any aircraft being used for the transportation of passengers.

In addition, Rider # 3 contained an Exclusions provision that read:

PART VI This policy does not cover any loss to an Insured Person caused by or resulting from:

(1) injury sustained in consequence of riding as a pilot or crew member in any aircraft;

(2) riding in any aircraft not being used for the transportation of passengers; ¹

. . . . .

There was testimony from the Carroll sons as well as Moore, of occasions when each was in the airplane when Carroll and Brashers were flying together. Carroll always sat in the pilot's--or left seat--and Brashers sat in the right seat. There were occasions when Brashers operated the plane unassisted from takeoff to landing. She was then always in the right hand seat. Moore had also flown with Carroll in the Buccaneer, and Carroll sat on the left and Moore on the right.

On the day of the casualty, Carroll and Brashers had left the airstrip to buy fuel at the Springfield airport. The only other person with contact with Carroll and Brashers near the time of their deaths was Leonard Patton, the attendant at the Springfield airport who gave directions to park the Buccaneer that day for refueling. The plane was directed in the service area by means of hand signals. Patton testified that he gave those directions to Carroll with whom he had eye contact for that purpose. Carroll responded to the communications by nodding. Patton acknowledged that it is not possible to tell from the outside who is taxiing the craft on the ground. That is done with the rudder pedals that are on the floor of the airplane. The witness testified also that at take-off, it was Carroll who requested clearance for departure. The plane crashed thirty minutes later.

At the close of the evidence, the court determined that the issue for jury decision was whether or not the insured Carroll was a passenger "at the time this airplane went into a crash attitude." There was a dispute as to which party properly bore the burden of proof on that issue.

The trial court found that there was an ambiguity between the policy exclusion [PART VI], which did not cover any loss to an insured person resulting from injury sustained "as a passenger or otherwise in any vehicle or device for aerial navigation, except as provided in PART II," and Rider The analysis of the court rests on a lapse of inadvertence. ² The policy exclusion [PART VI] was superseded by Rider # 3 which was in effect as a policy provision at the time of the casualty. Rider # 3 in effect excluded from coverage loss from injury to an insured riding as a pilot or crew member in any aircraft, but not as before under the original exclusion [PART VI], "riding as a passenger or otherwise" in any vehicle for aerial navigation. Thus, there was not the ostensible ambiguity between the Rider # 3 exclusion and Rider # 1, which expressly affords coverage to a passenger in any aircraft, upon which the court determined the allocation of the burden of proof on the issue of whether the decedent Carroll was a passenger within the terms of the policy.

                # 1, which provided coverage for an insured riding as a passenger "in any aircraft being used for the transportation of passengers."   The court ruled that, on principle, an ambiguity is resolved in favor of coverage, and accordingly the burden rested on the insurer to prove that at the time of loss the deceased was not riding as a passenger.  The principle applied, presumably, was that of contra proferentem as to an insurance policy with provisions in contradiction
                

The plaintiffs' theory of recovery under the policy was submitted to the jury by instructions that allocated to the insurer the burden to prove that Carroll was not a passenger. The verdict was for the plaintiffs beneficiaries.

On appeal the defendant Continental assigns trial error as to rulings on evidence, denial of a directed verdict, and the allocation to the insurer of the burden of proof on the issue of passenger.

It is the essential argument of the defendant Continental Casualty that Rider # 1 was an insuring clause and that the provision, that coverage under the policy "includes riding as a passenger and not as a pilot or crew member" in any aircraft, was a description of the peril insured against. And since it befalls to the claimant to prove that the claim sued upon is within the coverage of the policy, the burden to prove that the insured was a passenger in the aircraft at the time of the casualty properly rests on the beneficiaries. See, e.g., Martin v. Prier Brass Mfg. Co., 710 S.W.2d 466, 470[3, 4] (Mo.App.1986). That argument, however, does not explain the necessity, nor the role as a contract term, for the express exclusion in Rider # 3 from the coverage of the policy of a loss to an insured person by injury suffered "in consequence of riding as a pilot or crew member" in any aircraft. The burden to prove an exclusion to a coverage already endowed rests on the insurer. Harold S. Schwartz & Assoc., Inc. v. Continental Cas. Co., 705 S.W.2d 494, 498[6, 7] (Mo.App.1985); Transport Indem. Co. v. Teter, 575 S.W.2d 780, 784[4, 5] (Mo.App.1978).

The plaintiffs argue, on the other hand, that the peril insured against by the policy is injury or death by accidental means. Accordingly, the limitations on that coverage, first by the original PART II--LIMITED AIR TRAVEL COVERAGE--and then by Rider # 1, both of which confined air travel coverage to passengers, function as exclusions upon which the insurer bears the burden of proof. Truck Ins. Exch. v. Heman, 800 S.W.2d 2, 4 (Mo.App.1990). They conclude that the allocation to the insurer of the burden of proof on the issue of passenger was legally valid and the return of verdict under proper direction. ³

This essential contention of error colors two of the points on appeal of the defendant Continental Casualty, and we address them at the outset. The defendant insurer argues that the trial court erred in giving Instruction No. 6 and in failing to give Instruction No. A.

Instruction No. 6 submitted:

Your verdict must be for plaintiffs unless you believe plaintiffs are not entitled to recover by reason of Instruction No....