Goforth v. Franklin Life Ins. Co.

• Decision Date: 25 January 1969
• Docket Number: No. 45194,45194
• Citation: 202 Kan. 413,449 P.2d 477
• Parties: Maria GOFORTH, Appellant, v. FRANKLIN LIFE INSURANCE COMPANY, Appellee.
• Court: Kansas Supreme Court

Page 477

449 P.2d 477

202 Kan. 413

Maria GOFORTH, Appellant, v. FRANKLIN LIFE INSURANCE COMPANY, Appellee.

No. 45194.

Supreme Court of Kansas.

Jan. 25, 1969.

Syllabus by the Court

1. As a general rule, the construction and effect of a written contract of insurance is a matter of law to be determined by the court. If the facts upon which a beneficiary relies to recover on the policy are admitted, then it is for the court to decide whether they come within the terms of the policy, and such determination may be made pursuant to a motion for summary judgment.

2. When the terms of a policy of insurance are clear and unambiguous, the words are to be taken and understood in their plain, ordinary and popular sense, and there is no need for judicial interpretation or the application of rules of liberal construction; the court's function is to enforce the contract according to its terms.

3. The language of an aviation exclusion clause attached to a life insurance policy stating that death 'occurring as a result of operating, riding in or descending from any kind of aircraft operated for military or naval purposes * * * is a risk not assumed under said policy' is clear and unambiguous, and it is held, that the insured's death, which occurred while he was serving as an Air Force navigator on a military aircraft that was disabled by gunfire from Russian aircraft over international waters, the crew bailing out, and the insured's body never being recovered, was an excluded risk under the terms of the policy.

4. Although summary judgment should not be rendered if there remains a genuine issue of material fact, the issue of fact is not genuine preventing summary judgment unless it has legal probative force as to a controlling issue.

5. Where the defendant pleads a statute of limitations and moves for summary judgment and it appears that the action is barred by the appropriate statute and there is no genuine issue as to any material fact in connection with such statute, the motion should be granted.

6. In an action by the widow of a United States Air Force officer to collect the proceeds of an insurance policy issued by the defendant on the life of her husband, the record is examined, and for the reasons stated in the opinion, it is held, that the district court did not err in rendering summary judgment for defendant on each of the alternative theories upon which plaintiff predicated her right to recover.

Kay McFarland, Topeka, argued the cause, and T. M. Murrell, Jack A. Quinlan, George A. Scott and John A. Bell, Topeka, were with her on the brief for appellant.

Philip E. Buzick, Topeka, argued the cause, and Robert L. Webb, Ralph W. Oman, William B. McElhenny, James D. Waugh, James L. Grimes, Jr., Donald J. Horttor, Terry L. Bullock and Edward L. Bailey, Topeka, were with him on the brief for appellee.

O'CONNOR, Justice.

This action was brought by the widow of a United States Air Force officer to collect the proceeds of an insurance policy issued by the defendant on the life of her husband. Plaintiff predicated her right to recover on two alternative theories: (1) upon the policy as written, and (2) upon the policy as sought to be reformed. The trial court sustained separate motions for summary judgment in favor of the defendant on each theory, and plaintiff has appealed.

Two points are presented for our consideration. The first relates to the claim upon the policy as written and involves the question of whether or not the insured's death, under the circumstances alleged in the petition, was a risk excluded by the terms of an aviation exclusion rider attached to the policy. The second point has to do with the statute of limitations barring the claim for reformation of the policy on the ground of fraud. Because the two points involve different questions, they will be discussed separately.

The pertinent portions of the aviation exclusion rider are as follows:

'MILITARY EXCLUSION

'AVIATION PROVISION

'Death of the Insured occurring as a result of operating, riding in or descending from any kind of aircraft (1) operated for military or naval purposes, or (2) operated for any aviation training, or (3) of which the Insured is acting as a pilot or member of the crew, is a risk not assumed under said Policy.

'The limitation of liability set forth above shall not apply if the death of the Insured occurs as a result of operating, riding in or descending from a licensed commercial aircraft provided by an incorporated commercial carrier on a scheduled airline service regularly offered over an established route.'

The essential facts surrounding the insured's death are gathered from plaintiff's original petition filed June 29, 1966. Plaintiff's husband, Oscar Goforth, was a navigator, serving in the United States Air Force. While stationed at Forbes Air Force Base on October 14, 1959, he purchased the life insurance policy, upon which recovery is sought, through the defendant's agent, a retired Air Force colonel, R. W. Rodieck. Plaintiff was named as the beneficiary in the policy. On July 1, 1960, a military aircraft upon which Lt. Goforth was serving as a navigator was fired upon by Russian aircraft over international waters of the Barents Sea. As a result of the damage inflicted on the plane, the crew bailed out, abandoning the aircraft. Two crew members were taken alive from the sea by a Russian ship, and the body of another was later recovered by the Russians. The bodies of Lt. Goforth and the two other crew members were never found. The temperature and weather conditions were such that it was impossible for a person to survive in the water for more than a few hours. Lt. Goforth was officially declared dead on year later (July 1, 1961). Plaintiff alleged her husband died as a result of conditions existing after his descent, and that the proximate cause of his death was exposure rather than any failure of the aircraft in which he was riding. She further alleged that the insured's death was not excluded by the aviation exclusion clause contained in the policy.

Defendant filed a motion to dismiss plaintiff's original petition as to both theories of recovery. Insofar as it related to her right to recover on the policy as written, defendant contended the aviation rider specifically excluded the insured's death and there was no coverage under the terms of the policy. The parties stipulated the policy should be considered by the trial court in ruling on the motion. A part of the court's memorandum opinion follows:

'Defendant's motion to dismiss for failure of the petition to state a claim upon which relief can be granted has been treated as a motion for summary judgment under K.S.A. 60-256 for the reason that matters outside the pleadings were presented and not excluded by the Court. Specifically, the Court considered the insurance policy.

'* * * Assuming for the purpose of this motion that all the facts alleged in plaintiff's petition are true and considering said facts in the light most favorable to the plaintiff, the Court rules that the facts alleged in plaintiff's petition conclusively show, as a matter of law, that the insured's death occurred as a result of operating, riding in and descending from an aircraft operated for military purposes.

'It would appear that plaintiff in her brief concedes that death by drowning or exposure after the forced landing of a land-based airplane in a body of water has been held by a number of courts to be within the terms of a variety of aviation exclusion clauses and hence not to be a risk assumed by the insurance company. (Citing cases.)

'However, plaintiff seeks to distinguish the instant case on the ground that the aircraft upon which the insured was riding was disabled by Russian gunfire making it necessary for all members of the crew including the insured to parachute from the aircraft. Enemy gunfire has been discussed in several cases. * * *

'The aviation provision in the instant case differs (from other cases) in that the risk relating to aircraft operated for military purposes is specifically excluded. The allegations of the petition clearly indicate that the insured was riding in an aircraft operated for military purposes. Certainly, a familiar and ordinary risk of operating military aircraft is the danger of being 'shot down' by unfriendly forces. The risk that a land-based military aircraft might be 'shot down' or forced down over water by gunfire of unfriendly forces is equally ordinary and familiar.

'It is, therefore, the ruling of the Court that the facts as alleged in plaintiff's petition constitute a risk excluded by the terms of the aviation provision of the insurance policy and that the defendant is liable to the plaintiff only for the amounts due under the terms of said aviation provision. If the beneficiary has been previously paid said amounts, then no further liability exists on the part of the defendant.'

Plaintiff first attacks the trial court's ruling on the basis the entry of summary judgment was premature because the case was not at issue, discovery had not been completed, and pretrial had not been conducted. We are unable to agree. At the time of the ruling the court had before it plaintiff's petition. As against a motion to dismiss, all well-pleaded facts in the petition were fully admitted. (Parker v. City of Hutchinson, 196 Kan. 148, 410 P.2d 347.) The basis of plaintiff's claim was that the insured's death was not excluded by the aviation provision. The facts and circumstances of his death were fully alleged, and for the purposes of the motion, the cause of death was undisputed. By agreement, the policy, which had not been a part of plaintiff's petition, was also before the court for consideration. The posture of the proceedings at this point left merely a question of law for the court to determine, namely, whether or not the insured's death was a risk excluded by the terms of the rider. This involved interpretation of the policy in light of the...