Kalamazoo Aviation, Inc. v. Royal Globe Insurance Company

• Decision Date: 21 July 1976
• Docket Number: Docket No. 25683
• Citation: 70 Mich.App. 267,245 N.W.2d 754
• Parties: KALAMAZOO AVIATION, INC., Plaintiff-Appellee, v. ROYAL GLOBE INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 754

245 N.W.2d 754

70 Mich.App. 267

KALAMAZOO AVIATION, INC., Plaintiff-Appellee, v. ROYAL GLOBE INSURANCE COMPANY, Defendant-Appellant.

Docket No. 25683.

Court of Appeals of Michigan.

July 21, 1976.

Released for Publication Oct. 7, 1976.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen by Jeannette A. Paskin, Detroit, for defendant-appellant.

James, Dark & Craig by J. William Dark, Kalamazoo, for plaintiff-appellee.

Before R. B. BURNS, P.J., and KELLY and HUGHES, ^* JJ.

R. B. BURNS, Presiding Judge.

Defendant insurer appeals a directed verdict entered on behalf of plaintiff insured, a company in the business of renting small airplanes. Plaintiff rented a Piper Cherokee 6 to a Joseph Patti who was ostensibly going scuba diving in California. Plaintiff next heard about its plane from federal customs officials in Arizona.

It turned out that Patti had flown the airplane to Arizona and excited the interest of the customs officials. Warren J. Parthen, U.S. Customs Service Patrol Officer, testified by deposition as to various actions by Patti that had raised suspicions of narcotics smuggling--extra gas cans in the plane, removal of seats, and the like.

Parthen had observed Patti fly the plane into Mexico without filing the required flight plan. Parthen's experience was that people who illegally fly over the border often return over the same spot, and he set up surveillance accordingly. Nine hours later, radar detected an airplane coming north out of Mexico. The plane crossed the border with its lights out and without having filed the required Border Penetration Report. An infrared detector revealed the plane to be a Piper Cherokee 6.

Parthen and another customs official pursued in their own plane and situated the craft immediately behind the Piper Cherokee so as to be undetectable. Parthen verified that this was the plane that had been under surveillance by its registration number.

The Piper Cherokee bypassed the mandatory ports of entry and landed at the airport in Chandler, Arizona. Parthen landed directly behind it. The Cherokee came to the end of the runway, turned around, and saw the other plane situated immediately behind it obstructing the runway. The Cherokee attempted to swing around Parthen's plane and get up the runway. As a result, the tail of the Cherokee collided with the wing of the other airplane. The Cherokee's pilot then headed the airplane across a dirt area into some very rough terrain not meant to be used by airplanes under any circumstances. Parthen pursued on foot. The Cherokee became totally inoperable and came to rest, with Joseph Patti exiting the airplane and running from the officer. He was captured. The Cherokee was found to have been severely damaged.

The trial judge's decision in directing the verdict was based upon his construction of the contract of insurance between the parties. The policy contained an exclusion from coverage for losses resulting as follows:

'(From the) capture, seizure, arrest, restraint or detention or the consequence thereof or of any attempt thereat, or any taking of the property insured or damage to or destruction thereof by any Government or...