Mobil Oil Corp. v. Reliance Ins. Co.

• Decision Date: 02 March 1971
• Parties: MOBIL OIL CORPORATION, Plaintiff, v. RELIANCE INSURANCE COMPANY, Defendant.
• Court: New York Supreme Court

Page 532

332 N.Y.S.2d 532

69 Misc.2d 876

MOBIL OIL CORPORATION, Plaintiff, v. RELIANCE INSURANCE COMPANY, Defendant.

Supreme Court, Trial Term, New York County, Part XI.

March 2, 1971.

Speiser, Shumate, Geoghan, Krause & Rheingold, New York City (Charles F. Krause and Alfred W. Gans, New York City, of counsel), for plaintiff.

Haight, Gardiner, Poor & Havens, New York City (Douglas B. Bowring, New York City, of counsel), for defendant.

ARNOLD L. FEIN, Justice.

Plaintiff sues to recover $50,000 on an insurance policy, allegedly payable because of the death of one, Long, plaintiff's employee, who was killed while piloting plaintiff's 1967 Bell Helicopter Jet Ranger, Model 206A, on plaintiff's business when it crashed in the Gulf of Mexico.

The policy 'Declarations' provide:

'This policy shall not apply to an aircraft while in flight unless operated by' a pilot 'who has piloted aircraft * * * fifty hours in the same make and model of aircraft'.

The policy 'Exclusions' state:

'None of the coverages applies * * * (b) while the aircraft is * * * (2) operated, while in flight, by other than the pilot or pilots as stated in the Declarations'.

Special Term, affirmed by the Appellate Division (34 A.D.2d 895, 311 N.Y.S.2d 261), denied plaintiff's motion to strike the separate defenses alleging there was no coverage because, at the time of the accident, Long had not 'piloted the same make and model of aircraft for fifty hours.' This did not shift the burden of proof. CPLR 3015(a), a rule of pleading, which does not affect the burden of proof, provides that 'the party relying upon the performance or occurrence shall be required to prove on the trial only such performance or occurrence as shall have been so specified'.

Plaintiff's proof on the trial established that Long had only 32.2 hours flying time in the Bell Jet Ranger. Although plaintiff attempted to show that Long had additional hours, not logged or otherwise recorded, the evidence was insufficient for an inference that he had fifty hours. Additional evidence was received over objection, as to his experience in other aircraft of a similar type. If admissible for such purpose, it was sufficient for findings that: (1) Long was as well qualified to fly this aircraft as a pilot who had the requisite fifty hours; and (2) Long's lack of fifty hours' experience in this particular aircraft did not either materially increase the risk, or tend to do so.

Defendant, offering no evidence, moved for judgment on the ground that there was no coverage, under the Declarations and Exclusions provisions of the policy, because of plaintiff's failure to prove Long had the requisite fifty hours' experience.

Plaintiff's reliance on Insurance Law, Sec. 150, is misplaced. Section 150, defining the term 'warranty' for insurance policy purposes, and limiting the effect of a breach of such warranty does not preclude an insurer from limiting its liability so as to cover only the persons, events, premises or things it wishes to insure, provided the language of the policy is clear and unambiguous. When it does so, there is no issue of warranty to be resolved. The carrier has the right to determine what and whom it will insure (Sommer v. Guardian Life Ins. Co., 281 N.Y. 508, 24 N.E.2d 308; Geer v. Union Mut. Life Ins. Co., 273 N.Y. 261, 7 N.E.2d 125; Bronx Savings Bank v. Weigandt, 1 N.Y.2d 545, 154 N.Y.S.2d 878, 136 N.E.2d 848; County of Erie v. Continental Casualty Co., 268 App.Div. 603, 52 N.Y.S.2d 627). However, the burden is on the insurer to show that the language it has chosen is susceptible only of the construction urged by it and that such construction is the only possible meaning which can be ascribed to the words used. (Sincoff v. Liberty Mutual Fire Ins. Co., 11 N.Y.2d 386, 230 N.Y.S.2d 13, 183 N.E.2d 899; American Surety of New York v. National Fire Ins. Co. of Hartford, 25 A.D.2d 734, 269 N.Y.S.2d 77; Lachs v. Fidelity & Casualty of New York, 306 N.Y. 357, 118 N.E.2d 555; Hartol Products Corp. v. Prudential Ins. Co., 290 N.Y. 44, 47 N.E.2d 687; Shneiderman v. Metropolitan Casualty Co., 14 A.D.2d 284, 220 N.Y.S.2d 947).

Some of the cases indicate that where the carrier relies solely upon an exclusion clause in the policy to avoid liability, the burden is upon it to prove that the events fall within such exclusion clause. (Sperling v. Great Amer. Ind. Co., 7 N.Y.2d 442, 199 N.Y.S.2d 465, 166 N.E.2d 482; Green v. Travelers Ins. Co., 286 N.Y. 358, 36 N.E.2d 620; Sachs v. American Central Ins. Co., 34 Misc.2d 687, 230 N.Y.S.2d 126, aff'd 19 A.D.2d 538; see American Fid. Fire Ins. Co. v. Pardo, 32 A.D.2d 536, 299 N.Y.S.2d 521). 'An exclusion, in insurance parlance, serves the purpose of taking out persons or events otherwise included within the defined scope of coverage'. (Edwards v. MVAIC, 25 A.D.2d 420, 266 N.Y.S.2d 460).

These and other cases suggest that the rule is otherwise where what is involved is a construction of the coverage, i.e., declarations clauses of the policy. If the language of the declarations provision of the policy is clear and unambiguous and admits of no construction other than that urged by the carrier, the burden is on the plaintiff to establish that the loss was within the coverage of the policy. (Goell v. U.S. Life Ins. Co., 269 App.Div. 573, 55...