Keller v. Safeco Ins. Co. of America
| Decision Date | 13 June 1994 |
| Docket Number | No. 93-1301,93-1301 |
| Citation | 877 S.W.2d 90,317 Ark. 308 |
| Parties | Thomas Craig KELLER, Appellant, v. SAFECO INSURANCE COMPANY OF AMERICA, et al., Appellee. |
| Court | Arkansas Supreme Court |
Todd Williams, Jonesboro, for appellant.
Fletcher Long, Jr., Forrest City, for appellee.
Thomas Craig Keller, the appellant, is the owner of an airplane insured by the appellee, Safeco Insurance Company of America (Safeco). The insurance policy has two "deductible" provisions. One of them, 10% of the amount of insurance, is to be applied to an injury to the airplane which occurs when the airplane is "in motion." The airplane is insured for $140,000, so the deductible under that provision is $14,000. The other, a flat $1,000 deductible, is to be applied when injury occurs when the airplane is "not in motion."
An accident occurred, and Safeco declined to pay for the injury to the airplane on the ground that it was moving and the damage amount, $9,650, was less than the $14,000 deductible. Mr. Keller claimed the lesser deductible applied and sued Safeco for the cost of repair less $1,000. The Trial Court granted Safeco's motion for summary judgment. The Court of Appeals affirmed by a tie vote. Keller v. Safeco Ins. Co. of America, 44 Ark.App. 23, 866 S.W.2d 419 (1993). We reverse and remand the case. Summary judgment was inappropriate because there was a genuine issue of material fact remaining to be decided. Ark.R.Civ.P. 56(c). The policy was ambiguous in its definitions provisions which determine the issue, thus the question of the intent of the parties to the insurance agreement should have been tried as a question of fact.
Depositions presented with the motion for summary judgment and response showed that, on the day the accident occurred, Mr. Keller had been flying the plane and was taking a lunch break. He noticed a storm developing. He returned to the airplane and attempted to taxi to a tie-down area. Approximately five feet from the end of the tie-down chain all three wheels of the airplane sank in mud stopping the airplane. He revved the engine in an attempt to free the wheels but realized the attempt was fruitless and turned off the ignition.
About three seconds after he turned the key, a gust of wind lifted the tail of the airplane and smashed the nose of the plane into the gravel while the propeller was turning. Some witnesses described the turning of the propeller as the result of momentum remaining after the engine had been shut down. Mr. Keller said the propeller was "windmilling."
The insurance contract has a definitions subsection entitled, "Motion--Not in Motion." It provides,
"Aircraft" is defined in the policy as follows:
"Aircraft" means the airplane or rotorcraft described herein and shall include the engines, propellers, rotor blades, tools and repair equipment therein which are standard for the make of the type of the aircraft, and operating and navigation instruments and radio equipment usually attached to the aircraft, including parts temporarily detached and not replaced by other similar parts.
According to Safeco, as the propeller was in motion and is included in the definition of "aircraft," the aircraft was in motion under the terms of the contract and the $14,000 deductible was correctly applied. To support its position, Safeco relies primarily on Ranger App. Ins. Co. v. Lamppa, 115 Ariz. 124, 563 P.2d 923 (App.1977). The Arizona Court of Appeals held that where an aircraft was damaged as a result of fire which occurred in one of the engines during a maintenance check, coverage was provided under the provision that governed loss which occurred while the aircraft was in motion or when the engine was running.
The insurance policy at issue in the Arizona case specifically referred to the operation of the engine when discussing its "in motion" coverage. The policy which covered Mr. Keller's aircraft did not have such a provision, and this Court will not read one into the contract.
The Arkansas Court of...
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