Hamilton v. General Insurance Co. of America

• Decision Date: 08 November 2000
• Docket Number: 00-46
• Citation: 32 S.W.3d 16
• Parties: Mason HAMILTON dba Swift Flying Service v. GENERAL INSURANCE COMPANY of America CA 00-46 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Court of Appeals

Mason HAMILTON dba Swift Flying Service v GENERAL INSURANCE COMPANY of America

CA 00-46 ___ S.W.3d ___

Opinion delivered November 8, 2000

Court of Appeals of Arkansas

Divisions I and II

Appeal from Jackson Circuit Court; Harold S. Erwin, Judge; affirmed.

1. Judgment -- summary judgment -- standard of review. -- Summary judgment is a remedy that should only be granted when there are no genuine issues of material fact and when the case can be decided as a matter of law; review is limited to examining the evidentiary items presented below and determining whether the trial court correctly ruled that those items left no material facts disputed; the burden of sustaining a motion for summary judgment is always the responsibility of the moving party; all proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party; when a movant makes a prima facie case showing entitlement, the respondent must meet proof with proof by showing that a genuine issue exists as to a material fact.

2. Insurance -- policy clear & unambiguous -- no need to resort to rules of construction. -- Where there was no dispute between the parties in regard to the terms, conditions, and exclusions of the aviation-insurance policy issued by appellee, and it was undisputed that the policy was in full force and effect at the time appellant's aircraft was damaged, it was unnecessary to resort to rules of construction in order to ascertain the meaning of the insurance policy because no ambiguity existed.

3. Judgment -- no evidence presented to rebut appellee's proof that engine failure was caused by normal wear & tear --appellant failed to show genuine issue existed as to material fact. -- There appeared to be no evidence presented to rebut appellee's proof that the engine failure was caused by normal wear and tear over an extended period of time where appellant admitted that he did not actually see any foreign objects enter into the engine at the time of take off and that there were no foreign objects visible in the engine upon his own inspection, and where there was no evidence presented showing any sworn testimony by appellant's expert witness regarding his expert opinion of the cause of the engine failure; once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact.

4. Judgment -- when proper -- no error in trial court's grant of summary judgment. -- Summary judgment is proper where review of the documents filed reveals nothing that would raise an issue of fact; because appellant failed to meet proof with proof to rebut evidence provided by appellee on the issue of the cause of the engine's failure, the trial court did not err in granting appellee's summary judgment motion; affirmed.

C. Scott Nance, for appellant.

Clevenger, Angel & Miller, PLLC, by: T. Scott Clevenger, for appellee.

Olly Neal, Judge.

Mason Hamilton d/b/a Swift Flying Service appeals from an order of the Jackson County Circuit Court granting summary judgment in favor of appellee, General Insurance Company of America. On appeal, appellant contends that the appellee failed to make a prima facie case showing that it was entitled to summary judgment.

The facts presented in this case reveal that in April of 1995, appellant attempted to take off from a private airstrip in Swifton, Arkansas, but was unable to take flight due to the aircraft's engine failure. The aircraft was later determined to have suffered nearly $70,000 worth of damage to its internal components, including the failure of a compressor blade. At the time of the incident, appellant's aircraft was insured for liability and property damage under an aviation insurance policy issued by the appellee. The insurance policy contained the following pertinent agreements and exclusions:

AIRCRAFT POLICY

In consideration of the payment of the premium, in reliance upon the statements in the application and declarations made a part hereof, and are subject to all terms of this policy, the Company agrees with the named insured as follows:

A. INSURING AGREEMENTS

. . . .

6. Coverage H-All risks of Physical Damage

To pay for any direct and accidental physical damage to or loss of the aircraft while or not in flight . . . .

. . . .

B. EXCLUSIONS

This policy does not apply:

. . . .

11. As respects to coverages H and I, to . . . damage which is due and confined to wear and tear, deterioration, freezing, mechanical, structural or electrical breakdown or failure. . . .

Appellant subsequently filed a claim with appellee for losses incurred from the aircraft's engine failure. Following an investigation, appellee denied the claim based upon its determination that the internal engine of appellant's aircraft was caused by a mechanical and structural breakdown secondary to wear and tear.

On November 18, 1998, appellant filed an amended complaint alleging that appellee refused to pay his claim for loss, which was covered under the insurance policy issued by appellee. He alleged that substantial damage to the aircraft's engine was created by a foreign object that entered the engine during the aircraft's takeoff. On November 25, 1998, appellee filed an answer to the complaint admitting its issuance of an insurance policy to appellant, which covered the aircraft for any damages, but denied any liability under the policy. On January 27, 1999, appellant filed his answers in response to appellee's set of interrogatories and request for production of documents. In one of his answers, appellant stated that his expert witness, Mr. Jim Mills, would be called to testify regarding the cause of the damage to the aircraft. Appellant stated that Mr. Mills was expected to testify that Mills examined the turbine engine and the aircraft and was of the opinion that a foreign object caused the damage to the aircraft.

On May 18, 1999, appellee filed a motion for summary judgment alleging that the loss sustained by appellant's aircraft was due to wear and tear, deterioration, and a mechanical and structural breakdown. In support of its motion, appellee included excerpts from appellant's deposition and the affidavit of Weldon E. Garrelts, an aviation consultant who examined the internal engine of the aircraft on behalf of appellee.

In his deposition, appellant stated that a grain of sand was the cause of the damage sustained inside the aircraft's engine, and that after consulting with Mr. Mills, he felt that "there was not any question that a grain of sand, or something of that nature, had been sucked through the wire mesh and struck one of those blades." Appellant testified, however, that he didn't actually observe any foreign object enter into the engine at the time of the incident and that after a visual inspection of the engine, he did not observe any foreign object in the engine itself. Weldon Garrelts stated in his affidavit that based upon his observation and examination of the engine's parts, he found that the engine failure resulted from "a structural or mechanical breakdown of its internal components due to and confined to `wear and tear' occurring over a period of time, which ultimately led to the failure of a compressor blade." Mr. Garrelts further stated that the damage to appellant's engine was not caused by a foreign object as alleged by appellant.

On June 8, 1999, appellant filed a brief in response to appellee's motion for summary judgment. In his brief, appellant argued that "he had his own opinions as to the cause of the engine failure evidenced in the sworn exhibits in the appellee's brief, and that they formed a general issue of material fact when placed against the appellee's witness's opinions filed in his affidavit." After reviewing all evidence presented, the trial court entered an order on September 30, 1999, granting appellee's summary judgment motion pursuant to Ark. R. Civ. P. 56.

Summary judgment is a remedy that should only be granted when there are no genuine issues of material fact and when the case can be decided as a matter of law. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995). Review is limited to examining the evidentiary items presented below and determining whether the trial court correctly ruled that those items left no material facts disputed. Id. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Rankin v. City, 337 Ark. 599, 990 S.W.2d 535 (1999). When a movant makes a prima facie case showing entitlement, the respondent must meet proof with proof by showing that a genuine issue exists as to a material fact. Wilson v. J. Wade Quinn Co., 330 Ark. 306, 952 S.W.2d 167 (1997).

In this case, there is no dispute between the parties in regard to the terms, conditions and exclusions of the aviation insurance policy issued by appellee, and it is undisputed that the policy was in full force and effect at the time appellant's aircraft was damaged. Thus, it is unnecessary to resort to rules of construction in order to ascertain the meaning of an insurance policy when no ambiguity exists. Ratliff Enters., Inc. v. American Employers Ins. Co., 334 Ark. 547, 975 S.W.2d 837 (1998). We need only decide if the evidentiary items presented to the trial court left no material facts disputed in regard to the cause of the engine failure.

Appellant contends that based upon the statement in his complaint that foreign objects were seen entering the engine immediately before the engine failure and upon his deposition testimony that only a foreign object could have caused the damage to the engine based upon his...