Maryland Casualty Company v. Rosen, 892
| Decision Date | 18 June 1971 |
| Docket Number | 893,Docket 71-1101,No. 892,71-1123.,892 |
| Citation | 445 F.2d 1012 |
| Parties | MARYLAND CASUALTY COMPANY, Plaintiff-Appellant, v. Betty B. ROSEN, Administratrix of the Estate of Robert L. Rosen, Defendant-Appellant, Joan S. Ross, Administratrix of the Estate of David N. Shefler, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul D. Sheehey, Burlington, Vt. (A. Pearley Feen, Burlington, Vt., of counsel), for plaintiff-appellant.
Thomas M. Ward, Burlington, Vt. (Wick, Dinse & Allen, Burlington, Vt., of counsel), for defendant-appellant.
Before CLARK, Associate Justice,* SMITH and ANDERSON, Circuit Judges.
This is an appeal from the United States District Court for the District of Vermont, Bernard J. Leddy, Chief Judge, granting the declaratory judgment sought by plaintiff-appellant, the Maryland Casualty Company. We find error in the relief granted and reverse and remand for dismissal of the action.
The action arose out of an airplane accident which occurred on October 6, 1966. The appellant had issued a policy of liability insurance in favor of Executive Investments Corporation covering a Piper Twin Comanche airplane owned by that company. The stock of Executive Investments was owned by David Shefler, Robert Rosen, and Maury Weiner. On October 6, 1966 at about 5:00 p. m. Rosen and Shefler left Montreal intending to fly to the Burlington, Vermont airport apparently so that Rosen could practice instrument landings. At 8:10 p. m. the airplane landed at Newport, Vermont for customs inspection. The customs form which was executed at Newport indicated that Rosen was the pilot at this point. Sometime after leaving Newport, the aircraft contacted the Burlington Airport tower and requested permission to make a simulated instrument approach to the field. The tower was occupied with other planes at the time and instructed the aircraft to call back in about ten minutes. Before the plane had any further contact with the Burlington tower it crashed into Mt. Mansfield killing those on board.
The administratrix of the Estate of Shefler brought a tort action against the Estate of Rosen in the United States District Court in Vermont alleging negligence in Rosen's operation of the aircraft. The Estate of Rosen brought a similar action in the same court and alleged negligent operation of the plane by Shefler. Following the filing of these two actions, the Maryland Casualty Company brought this declaratory judgment action seeking an adjudication as to whether Rosen or Shefler was the pilot of the plane. It did so apparently because it was of the view that once it determined who was the pilot it would then know which estate it was obligated to defend under its insurance policy. Judge Leddy found that Rosen had been the pilot of the plane at the time of the accident, but specifically refused to include in the judgment any finding as to the coverage of the policy or the obligation of the appellant to defend in the action brought against Rosen's estate by Shefler.
The relevant portions of the insurance policy issued by the appellant, Maryland Casualty Company, are as follows:
Under the terms of the policy the Maryland Casualty Company was therefore obligated to defend a suit and assume liability in a...
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