Morningstar v. Insurance Company of North America

• Decision Date: 15 January 1969
• Docket Number: No. 65 Civ. 3274.,65 Civ. 3274.
• Parties: Mary Eleanor MORNINGSTAR, Plaintiff, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant.
• Court: U.S. District Court — Southern District of New York

295 F. Supp. 1342

Mary Eleanor MORNINGSTAR, Plaintiff, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant.

No. 65 Civ. 3274.

United States District Court S. D. New York.

January 15, 1969.

Freedman, Loewenstein & Meyers, New York City, for plaintiff; Charles J. Meyers, New York City, of counsel.

Friend, Kinnan, Post & Friend, New York City, for defendant; Edward T. Post, New York City, of counsel.

OPINION

BONSAL, District Judge.

Plaintiff's husband, Thomas Morningstar, President of Morningstar-Paisley, Inc., (Morningstar-Paisley), was killed in an automobile accident in Harrison, New York on June 11, 1964. Plaintiff instituted this action in the State court to recover the death benefit of $100,000 provided in the Group Travel Insurance Policy issued by the defendant to Morningstar-Paisley. Defendant removed the action to this court because of diversity of citizenship (28 U.S.C. § 1332).

Plaintiff is named as the beneficiary of her husband in the Group Travel Insurance Policy, and Mr. Morningstar's death was a "loss resulting directly and independently of all other causes from accidental bodily injuries." Therefore, plaintiff is entitled to recover under the policy if her husband's injuries arose "out of the hazards described in Schedule II," which provides:

"SCHEDULE II DESCRIPTION OF HAZARDS

The hazards against which insurance is granted under this policy are

(subject to the conditions, limitations and exclusions of the Policy):

All those to which the Insured may be exposed during travel and sojourn on the business of the policyholder, provided such travel is to a point or points located away from the premises of permanent assignment. The following shall specifically qualify the above:

(a) Coverage begins at the actual start of an anticipated trip whether it be from the Insured's place of employment, his home, or other location. Coverage terminates upon his return to his home or place of employment, whichever shall first occur;

(b) Commutation travel is excluded from coverage;"

Mr. Morningstar resided at 25 Orchard Lane, Rye, New York, and the offices of Morningstar-Paisley were located at 630 West 51st Street, New York City. It was Mr. Morningstar's custom to travel by automobile from house to office and return.

Immediately before his accident, Morningstar-Paisley was entertaining suppliers of tapioca starch from Thailand and was discussing with General Foods Corporation, (General Foods), having offices at 250 North Street, White Plains, New York, the possibility of supplying tapioca starch to General Foods' plant in Orange, Massachusetts. On June 10, the day before Mr. Morningstar's accident, a meeting took place in the General Foods' office at White Plains with regard to these negotiations. Mr. Morningstar had expected to attend this meeting but was unable to do so because of other business obligations. At the conclusion of the June 10 meeting, those present from General Foods and Morningstar-Paisley decided to meet again at Morningstar-Paisley's New York office at 10:00 a. m. on June 11 to discuss product quality control, with regard to which information could be provided by Morningstar-Paisley's technical personnel. Mr. Pfister, a buyer for General Foods, was expected to be present at the June 11 meeting.

Mr. Morningstar returned to his home in Rye on the afternoon of June 10 at around 4:30 or 5:00 p. m. Plaintiff accompanied him that evening to his father's house in Greenwich, Connecticut to attend a dinner party given by his father, who was Chairman of the Board of Morningstar-Paisley, in honor of the visiting suppliers from Thailand. Mr. Malkovich, an executive of Morningstar-Paisley, also attended the dinner party. He testified that Mr. Morningstar had inquired of him about the meeting at General Foods and remarked to him that he would take a chance and try to get hold of the General Foods people before the meeting which was scheduled for 10:00 o'clock the next morning.

Mrs. Morningstar, the plaintiff, testified that usually her husband got up at about 8:00 o'clock and left for work between 8:30 and 8:45 a. m., and that when their neighbor, Earl C. Lenz, Vice-President of Morningstar-Paisley, was home, Mr. Morningstar would drive him to the office in his car. On the morning of June 11, Mr. Morningstar awakened her between 7:00 and 7:30 and requested a quick breakfast. She observed Mr. Morningstar make a telephone call and drink his coffee standing by the kitchen sink. Mr. Lenz testified that Mr. Morningstar had called him and asked him to be ready to leave early, as he planned to drive to General Foods at White Plains to see Mr. Pfister and someone else. Mr. Morningstar told Lenz that morning that "I am assuming Pfister will be in his office." According to Mrs. Morningstar, her husband left the house at around 8:00 a. m., and Mr. Lenz testified that he picked him up shortly thereafter. Mr. Morningstar and Lenz proceeded from Lenz's home at 100 Mendota Avenue along Highland Avenue to Purchase Street and made a left turn on Polly Park Road, where the accident occurred. Mr. Lenz testified that this was the route they followed when they drove to town together via the Hutchinson River Parkway, which they would enter at North Street. He testified that North Street was also the street on which General Foods was located in White Plains, the driving time thereto being some five minutes from the Hutchinson River Parkway.

Mr. Pfister testified for the defendant that he had had no communication with Mr. Morningstar and, indeed, had not met him, although he knew who he was because of the business relationship between General Foods and Morningstar-Paisley. Mr. Pfister was involved in the negotiations on behalf of General Foods and was instructed to be present at the June 11 meeting in Morningstar-Paisley's office. He testified that he proceeded to the meeting by car from his house in Ossining without stopping at his office in White Plains.

Plaintiff has the burden of establishing that she is covered by the terms of the policy and that no exclusion is applicable. New York & Cuba Mail S. S. Co. v. Continental Insurance Co., 117 F.2d 404 (2d Cir.), cert denied, 313 U.S. 580, 61 S.Ct. 1103, 85 L.Ed. 1537 (1941); Lavine v. Indemnity Insurance Co., 260 N.Y. 399, 183 N.E. 897 (1933); Society of New York Hospital v. Burstein, 22 A.D.2d 768, 253 N.Y.S.2d 753 (1st Dept. 1964); Sagorsky v. Malyon, 4 A.D.2d 1016, 168 N.Y.S.2d 490 (1st Dept. 1957); Carles v. Travelers' Insurance Co., 238 App.Div. 43, 263 N.Y.S. 29 (1st Dept. 1933); Stawski v. John Hancock Mutual Life Insurance Co., 7 Misc.2d 424, 163 N.Y.S.2d 155 (Sup.Ct.), appeal dismissed, 4 A.D.2d 940, 170 N.Y.S.2d 489 (1st Dept. 1957).

The evidence raises a strong unrebutted inference that at the time of his accident on June 11, 1964, Mr. Morningstar was proceeding to the White Plains office of General Foods "on the business of the policyholder," to consult with Pfister and another General Foods representative in connection with the tapioca negotiations. Perhaps he planned to offer Pfister a ride to the New York meeting, as a gesture of business good will. In any event, his purpose was to further his company's business by going to the General Foods offices. His declarations, his unusual haste in leaving home on the morning of the accident, his interest in the pending negotiations, and his position as president of his company all support this conclusion.

His intended travel to White Plains was to "a point * * * located away from the premises of permanent assignment." Mr. Lenz testified that he and Mr. Morningstar customarily drove to New York...