Goddard v. Avemco Ins. Co.

• Jurisdiction: Oregon
• Parties: E. Laverne GODDARD, Personal Representative for the Estate of Forrest I. Goddard, Deceased, Appellant, v. AVEMCO INSURANCE COMPANY, Respondent. ; CA 13389.
• Citation: 43 Or.App. 39,602 P.2d 291
• Docket Number: No. 106,739,106,739
• Court: Oregon Court of Appeals
• Decision Date: 05 November 1979

Page 291

602 P.2d 291

43 Or.App. 39

E. Laverne GODDARD, Personal Representative for the Estate of Forrest I. Goddard, Deceased, Appellant, v. AVEMCO INSURANCE COMPANY, Respondent.

No. 106,739; CA 13389.

Court of Appeals of Oregon.

Argued and Submitted Aug. 22, 1979.

Decided Nov. 5, 1979.

J. Michael Alexander, Salem, argued the cause for appellant. With him on the brief was Brown, Burt & Swanson, P. C., Salem.

John L. Langslet, Portland, argued the cause for respondent. With him on the brief was Martin, Bischoff, Templeton, Biggs & Ericsson, Portland.

Before JOSEPH, P. J., and LEE and RICHARDSON, JJ.

RICHARDSON, Judge.

Plaintiff, personal representative of Forrest Goddard, brought suit on an aviation insurance policy for property damage to the insured aircraft and funeral benefits for the deceased pilot. Defendant, the insurer, denied coverage under the policy. Defendant's demurrer to plaintiff's complaint on the ground that it failed to state a cause of action was sustained. Plaintiff declined to replead and judgment was entered for defendant. Plaintiff appeals.

The issue is whether plaintiff has properly pleaded an estoppel. The material parts of plaintiff's complaint allege:

"IV.

"Prior to October 31, 1976, Forrest I. Goddard applied for renewal of such policy to cover the period October 31, 1976 through October 31, 1977. On such application Forrest I. Goddard indicated that he did not have a current medical certificate. Defendant nevertheless renewed the policy of insurance and accepted a full premium covering in flight losses. A copy of such policy and premium schedule is attached hereto, marked 'Exhibit B', and by reference incorporated herein.

"V.

"On April 4, 1977, Forrest I. Goddard, in reliance upon Defendant's issuance of the above described insurance policy and its acceptance of Forrest I. Goddard's premium, was operating the insured aircraft at or near Toledo, Oregon, when such aircraft crashed, killing Forrest I. Goddard and destroying the aircraft."

It was further alleged that the defendant denied coverage because Goddard did not hold a valid medical certificate.

"IX

"That Defendant's actions in voluntarily issuing a policy and accepting premiums despite the fact that Forrest I. Goddard had indicated that he did not have a medical certificate, and Forrest I. Goddard's reliance upon such actions, prevents Defendant from denying coverage."

The policy, which was incorporated in the plaintiff's complaint, provides:

"PILOTS: This policy applies when the aircraft is in flight, only while being operated by one of the following pilots (indicated by X below) who, (1) holds a valid and effective Pilot and Medical Certificate, (2) has a current biennial flight review and (3) if carrying passengers, has completed at least three Take-Offs and Landings within the preceding 90 days in an aircraft of the same make and model as the insured aircraft."

This paragraph was followed by a list of three possible categories of pilots permitted to fly the aircraft if they generally met the qualifications stated above. The list included Forrest I. Goddard, any other pilot with a private or commercial certificate who had more than 1500 hours of flight time and any certificated pilot who is flying the aircraft for a repair shop. The policy specifically did not cover the aircraft in flight while being operated by a pilot not meeting the qualifications set out above. There is no ambiguity in this exclusion of the policy.

The essence of plaintiff's complaint is that the company is estopped to invoke this specific exclusion because it issued the policy with the knowledge that Forrest Goddard did not have a medical certificate at the time he applied for renewal of the policy. The question is whether the pleaded facts, if true, are sufficient to establish estoppel. With certain exceptions not applicable in this case, the facts which justify an estoppel must be pleaded. Cody v. Ins. Co. of Oregon, 253 Or. 587, 454 P.2d 859 (1969); Reed v. Commercial Ins. Co., 248 Or. 152, 432 P.2d 691 (1967); Farley v. United Pacific...