Powell Valley Elec. Coop. v. United States Aviation U., Civ. A. No. 680.

• Decision Date: 11 December 1959
• Docket Number: Civ. A. No. 680.
• Parties: POWELL VALLEY ELECTRIC COOPERATIVE, INC., Plaintiff, v. UNITED STATES AVIATION UNDERWRITERS, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

179 F. Supp. 616

POWELL VALLEY ELECTRIC COOPERATIVE, INC., Plaintiff, v. UNITED STATES AVIATION UNDERWRITERS, INC., et al., Defendants.

Civ. A. No. 680.

United States District Court W. D. Virginia, Abingdon Division.

December 11, 1959.

Joseph N. Cridlin, Jonesville, Va., for plaintiff.

Robert B. Davis, Bristol Va., for defendant Phoenix Insurance Company.

Fred C. Parks, Abingdon, Va., and Wicker, Baker & Goddin, Richmond, Va., for all other defendants.

THOMPSON, Chief Judge.

This is an action by Powell Valley Electric Cooperative, Inc., Jonesville, Virginia, herein referred to as "plaintiff," against numerous insurance companies as defendants, herein referred to as "defendants."

The defendants have moved for summary judgment upon the pleadings, depositions, admissions, exhibits, stipulations, and the record at large.

The facts are as follows:

On March 15, 1958, the defendants insured in the sum of $40,000 a certain aircraft known as Bell 47 G-2 helicopter owned by the plaintiff, against damage or destruction for a period of one year. On April 28, 1958, the insured aircraft, while in flight, crashed. It was demolished, and David L. McNeil, plaintiff's manager, an unlicensed pilot in the aircraft, was killed. The only other person in the aircraft was John J. Ryan, a licensed pilot, employed by the plaintiff.

The parties have agreed that if plaintiff is entitled to recover, it is entitled to recover the sum of $35,500.

Item 8 of the Declarations in the policy expressly provides that the policy applied only while the aircraft was being used for "power line patrol and aerial spraying of power line right-of-ways."

Item 9 of the Declarations in the policy provides as a condition of "in-flight" coverage that coverage:

"shall apply only while the aircraft is being operated by John J. Ryan, commercial certificate No-1248550 with proper rating as required by the C. A. A. for the flight involved."

The policy contained the following Exclusions:

"This policy does not cover (a) * * * while the aircraft is * * (3) used for instruction * * * (4) operated while in flight by other than the pilot specified in Item 9 of the Declaration."

The aircraft was equipped with dual controls, and on the day it crashed, Ryan and McNeil were patrolling and inspecting the plaintiff's power lines. About noon, they landed at Morristown, Tennessee to refuel. When flight was resumed, Pilot Ryan made a normal takeoff, and when he had lifted the aircraft to an elevation of approximately 100 feet, he took his hands off the "stick" and turned the controls over to McNeil, as was his custom on former flights when giving McNeil instructions in helicopter piloting.

When McNeil took over the controls, the helicopter was in a safe and sound position and condition. McNeil was then the pilot of the aircraft and in complete control of it. McNeil piloted the aircraft in the same direction of the flight and gained a little more altitude, and then undertook to make a very steep right-hand turn. As he was doing so, the helicopter started sliding into the turn and started losing altitude. Pilot Ryan became alarmed, got back on the controls, and made an effort to right the helicopter. He was able to get it almost straightened out prior to the crash, but the vertical descent was too great, and the helicopter was demolished upon impact with the ground.

When Pilot Ryan undertook to take over the controls from McNeil, the helicopter was in a "precarious or dangerous" condition. Ryan was unable to extricate the aircraft from its perilous condition.

Ryan had considerable experience as a helicopter instructor, and while on other flights in this aircraft had turned over the controls to McNeil and had given him pilot instructions. Ryan stated that when an instructor was teaching one to become a pilot of a helicopter it was wise to let the student pilot develop confidence in his skill at the controls. He stated that

"If a student feels that the instructor pilot will get on the controls as soon as he does something wrong, then that would tend to make him feel that every time in the future he does something wrong, there would always be somebody to help him out. * * * If you tend to get on the controls every time something is wrong, then you would undermine the self-assurance of the student, and on the other side, if you get on the controls a little bit too late, you might not be able to straighten up the mistake, which is particularly true in

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