Marson Coal Co., Inc. v. Insurance Co. of State of Pa., No. 13452
| Court | Supreme Court of West Virginia |
| Writing for the Court | HADEN; NEELY |
| Citation | 158 W.Va. 146,210 S.E.2d 747 |
| Parties | MARSON COAL COMPANY, INC. v. The INSURANCE COMPANY OF the STATE OF PENNSYLVANIA. |
| Docket Number | No. 13452 |
| Decision Date | 29 October 1974 |
Page 747
v.
The INSURANCE COMPANY OF the STATE OF PENNSYLVANIA.
Page 748
Syllabus by the Court
1. In ascertaining the intention of parties to an insurance contract where construction is required, the test is what a reasonable person in the insured's position would have understood the words of the policy to mean. Thompson v. State Automobile Insurance Co., 122 W.Va. 551, 554, 11 S.E.2d 849, 850 (1940).
2. Ambiguous and irreconcilable provisions of an insurance policy should be construed strictly against the insurer and liberally in favor of the insured, although such construction should not be unreasonably applied to contravene the object and plain intent of the parties.
3. Where a contract prepared from a printed from contains, when executed, both the form printing and, as well, written or typewritten inserious and there appears an irreconcilable repugnance and conflict between the printed and written portions thereof requiring interpretation, the writing will prevail over the printing to determine the intention of the parties.
[158 W.Va. 147] 4. Where proof is to be made of some fact which is recorded in writing, this jurisdiction is committed to the 'best evidence' rule, which requires the production of the written document and which forbids the consideration of parol evidence, unless the failure to produce the document itself is properly accounted for.
5. A condition in an insurance policy requiring that the operator of the designated aircraft have a certain number of 'logged' flying hours is not satisfied by proof of flying time not 'logged' in any record book; such requirement contemplates and reasonably requires either production of the journalized entry or, upon proper explanation of the failure or inability to produce the document, parol evidence establishing journalization.
Steptoe & Johnson, Herbert G. Underwood, Clarksburg, for appellant.
Herschel Rose and Duane Southern, Fairmont, for appellee.
HADEN, Justice:
This is an appeal by the plaintiff below, Marson Coal Company, Inc., from the final decision of the Circuit Court of Randolph County in a declaratory judgment action brought by it to seek determination of liability coverage under a certain policy of aviation insurance issued by the appellee, The Insurance Company of the State of Pennsylvania. The circuit court's assailed judgment declared the non-availability of coverage to the coal company.
[158 W.Va. 148] By a policy renewal dated March 5, 1972, the insurance company issued an Aviation Hull and Liability Policy to the coal company insuring it against specified hazards for the period from March 5, 1972 to March 5, 1973.
Page 749
On April 18, 1972, the aircraft described by the policy collided with a high-tension wire owned by the Monongahela Power Company, which resulted in the death of the pilot, Harry C. Marson, III, and the sole passenger, William R. McCutcheon.
The insurance company denied coverage under the policy and the plaintiff, thereafter, instituted a declaratory judgment action. The case was tried to the court without a jury, and upon the trial court's findings of fact and conclusions of law, coverage under the policy was denied.
The primary issue arising upon the pleadings, discovery and evidence was whether, under the facts adduced, the policy afforded liability coverage to plaintiff at the time of the accident. An ancillary issue, involving the application of the 'best evidence rule,' also became highly significant in the determination of this action.
The pertinent portions of the insurance policy, which are of paramount significance, are as follows: Item 8 of the 'DECLARATIONS' provides:
'When in flight the aircraft will be piloted only by Harry Marson, provided he is a private or commercial pilot properly certificated by the FAA having a minimum of 1900 logged flying hours including 200 hours on helicopters; or any private or commercial pilot with a helicopter rating properly certificated by the FAA having 500 logged helicopter flying hours.'
That portion of the above quoted provision, beginning with the words 'Harry Marson' and ending with the close of the quote, was a typewritten addition to a standard form printed policy. Within the printed portions of [158 W.Va. 149] the policy, under 'EXCLUSIONS', the following provision is found:
'THIS POLICY DOES NOT APPLY AND NO COVERAGE IS AFFORDED:
'2. To any insured while the aircraft is in flight:
'(b) if piloted by a pilot not properly certificated and qualified under the current applicable Federal Air Regulations for the operation involved whether said pilot is designated in the Declarations or not; . . ..'
The trial court, based upon a finding that Harry Marson had 1,549 hours and 4 minutes logged flying time and 123 hours and 30 minutes logged helicopter flying time, concluded that the plaintiff failed to sustain its burden of establishing that Harry Marson 'was properly certificated by the FAA and had the logged flying hours required by the typewritten declarations and printed exclusion of the policy.' The trial court's finding was predicated upon the exclusion of certain 'secondary' evidence offered during the trial purporting to supply evidence of flying time not recorded in the exhibited logs.
With reference to the above quoted policy provisions, the trial court stated:
'(I)f the conditions precedent had been credibly established by a preponderance of the evidence, this Court would have held that there is coverage under the policy and that the typewritten declarations would have controlled the printed exclusion.'
The trial court reasoned, however, that under applicable Federal Aviation Regulations, Harry Marson, at the time of the accident was carrying a passenger in the helicopter; that he was not properly certificated; that he did not thereby meet the requirements described in said [158 W.Va. 150] Item 8 and was thereby excluded from coverage under Item 2(b) of the 'EXCLUSIONS' of the policy. The trial court opined that said Item 8 was not intended to be controlling or even material to the initial question of coverage, but was merely a declaration of the plaintiff's representations concerning the identity of the person piloting the helicopter. We disagree with that legal conclusion.
Page 750
A careful reading of the printed provisions of the policy in conjunction with the typewritten insertion of Item...
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...Pt. 6, Hamric v. Doe, 201 W.Va. 615, 499 S.E.2d 619 (1997) (quoting Syl. Pt. 2, Marson Coal Co. v. Ins. Co. of State of Pennsylvania, 158 W.Va. 146, 210 S.E.2d 747 (1974) ). A policy provision is ambiguous if it is “reasonably susceptible of two different meanings or ... of such doubtful me......
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Am. States Ins. Co. v. Surbaugh, 11–1186.
...did not fall under the ‘business pursuits' exclusion of his policy.”); Marson Coal Co., Inc. v. Insurance Co. of State of Pennsylvania, 158 W.Va. 146, 148, 210 S.E.2d 747, 749 (1974) (“The insurance company denied coverage under the policy and the plaintiff, thereafter, instituted a declara......
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Glen Falls Ins. Co. v. Smith, 31972.
...6, Hamric v. Doe, 201 W.Va. 615, 499 S.E.2d 619 (1997), quoting Syl. Pt. 2, Marson Coal Co. v. Insurance Co. of State of Pennsylvania, 158 W.Va. 146, 210 S.E.2d 747 (1974). To be ambiguous, the policy provision must be "reasonably susceptible of two different meanings or [be] of such doubtf......
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Cannelton Industries, Inc. v. Aetna Cas. & Sur. Co. of America, 22015
...not be unreasonably applied to contravene the object and plain intent of the parties.' Point 2, Marson Coal Co. v. Insurance Co., W.Va. , 210 S.E.2d 747 (1974)." Syllabus Point 2, Prete v. Merchants Property Insurance Company of Indiana, 159 W.Va. 508, 223 S.E.2d 441 Gale R. Lea, John L. Mc......
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Canal Ins. Co. v. Dupont, Civil Action No. 5:13–cv–24764.
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Best evidence rule
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