Prashker v. U.S. Guarantee Co.
| Decision Date | 11 July 1956 |
| Citation | 136 N.E.2d 871,1 N.Y.2d 584,154 N.Y.S.2d 910 |
| Parties | , 136 N.E.2d 871 Goldie B. PRASHKER, as Administratrix of the Estate of Nathan Prashker, Deceased, et al., Respondents-Appellants, v. UNITED STATES GUARANTEE COMPANY et al., Appellants-Respondents. |
| Court | New York Court of Appeals Court of Appeals |
The following questions were certified:
motion to dismiss the complaint herein on the grounds that it does not state facts sufficient to constitute a cause of action for a declaratory judgment?
J. Joseph Noble and Sheldon A. Vogel. New York City, for appellants-respondents.
Lee S. Kreindler, New York City, for respondents-appellants.
On October 5, 1953 an airplane crash occurred near Pittsburgh, Pennsylvania. It was a private plane belonging to Choice Embroidery & Laces, Inc., being piloted by Nathan Prashker, with Harold Weissman as passenger. They had taken off from Allegheny County Airport to fly to Cleveland, Ohio. Both were killed. The pilot held a VFR license (entitling him to pilot an aircraft under visual flying rules), but he was not licensed to operate under instrument flight conditions. Blinded by clouds, the pilot doubled back upon his course and crashed to the south of Allegheny County Airport, from which he had taken off, in what appears to have been an unsuccessful endeavor to land there.
The pilot's administratrix, Goldie B. Prashker, and the corporation which owned the plane, have been sued by the administratrix of the passenger, Weissman, in three actions one in a State court in Pennsylvania, where the accident occurred, one in the United States District Court for the District of New Jersey, where the pilot lived, and the third action in a New Jersey State court.
The pilot's estate and the corporation which owned the plane immediately notified Federal Insurance Company, then known as United States Guarantee Company, defendant in this action, but it declined liability under its policy in letters, dated May 12, 1954, stating that 'Mr. Prashker at the time of the accident was violating the Civil Aeronautics Administration's regulations pertaining to instrument flying and was in addition violating the terms of his pilot's certificate', and further that
The pilot's estate and the corporate owner of the plane thereafter commenced this action for a declaratory judgment determining that the accident was covered by the policy, and that the defendant is obligated to defend these suits and to pay all obligations previously incurred in defending.
After answering, the defendant insurance company moved at Special Term to dismiss so much of the complaint as asks for a declaratory judgment that the accident is covered by the terms of the policy, and that it is obligated to pay any damages which may be awarded against the pilot's estate and the owner of the plane arising out of the crash. 'The ground for said motion', the notice of motion states, 'is that it appears on the face of the complaint that it does not state facts sufficient to constitute a cause of action in that it fails to present a present or justiciable controversy with respect to the above matters'.
The pilot's estate and the plane owner cross-moved for summary judgment under rules 113 and 114 of the Rules of Civil Practice.
Special Term denied the insurance company's motion to dismiss the portions of the complaint asking for an adjudication of defendant's liability to indemnify against whatever loss may result from recoveries in the pending negligence actions brought by the estate of the passenger, partially granted plaintiffs' motion for summary judgment by requiring the insurance company to defend these actions, and to reimburse plaintiffs for suit money theretofore incurred, and denied the rest of plaintiffs' motion for summary judgment. Although declining to decide the coverage of the policy on motion for summary judgment, that disposition would allow the question of the insurance company's liability for indemnification to be decided upon the trial of an action for declaratory judgment, prior to the determination of whether or on what basis the assureds may be held to be liable in the principal actions.
The Appellate Division affirmed, without opinion, Presiding Justice Peck dissenting.
The only policy with which we are concerned on this appeal is the liability policy described as No. AL1-5763, which contains the following exclusionary clause:
'Exclusions
'This policy does not apply:
'(e) to any Insured who operates or who permits the operation of the aircraft: (1) in violation of * * * the terms of any Civil Aeronautics Administration Pilots Certificate; (2) in violation of any regulations of the Civil Aeronautics Administration applicable to acrobatic flying, instrument flying, repairs, alterations and inspections, night flying, minimum safe altitudes and student instruction; (3) * * *.'
Section 43.65 of the Civil Air Regulations administered by the Civil Aeronautics Administration, states: 'A pilot shall not pilot aircraft under instrument flight rules, unless he holds a valid instrument rating issued by the Administrator.' It is conceded that Nathan Prashker did not hold a valid instrument rating issued by the administrator. Section 60.30 et seq. of the Visual Flight Rules provide the cloud ceiling conditions and distance from clouds under which the holder of such a license is permitted to fly.
The complaint in the Pennsylvania action, and presumably the complaints in the other actions also, alleges that Nathan Prashker was negligent in the following respects:
'(a) In operating said airplane in weather conditions in which he was not qualified to fly.
'(b) In climbing into clouds, overcast or other atmospheric condition which prevented him from seeing the ground and in which he was not qualified to fly.
'(c) In failing to keep said airplane under control.
'(d) In allowing said airplane to descend in a rapid dive or spiral.
'(e) In pulling said airplane out of a rapid downward descent too abruptly.
'(f) In maneuvering said airplane so as to subject it to loads, stresses and strains in excess of its designed and placarded limitations.
'(g) In allowing said airplane to exceed its designed and placarded limitations.
'(h) In operating said airplane in a careless and reckless manner so as to endanger the life of said Harold B. Weissman and without due regard for his safety.
'(i) In not returning to the airport from which he had left, or landing at some other airport in the vicinity, as soon as he discovered or could anticipate the unsuitability of the weather and while he could still have landed with safety.
'(j) In failing to exercise reasonable care and diligence under the attendant circumstances.'
Liability is thus asserted against these assureds by the Weissman estate on some grounds which, if established, would fall within and upon some which would fall without the exclusionary clause in the insurance policy. The grounds most likely to exempt defendant insurance company from liability would be that Prashker operated the airplane in weather conditions in which he was not licensed or qualified to fly, that he neglected to return to the airport or to land at another airport in the vicinity as soon as he discovered or should have anticipated the unsuitability of the weather, and while he could still have landed with safety, but that instead of doing so he climbed into the clouds in violation of the terms of his...
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