Ranger Ins. Co. v. Cates

• Decision Date: 19 October 1972
• Docket Number: No. 4093,4093
• Citation: 501 P.2d 1255
• Parties: RANGER INSURANCE COMPANY, Appellant (Defendant below), Dick Lange, individually and dba Western Agency Insurance (Defendant below), v. Earl C. CATES, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1255

501 P.2d 1255

RANGER INSURANCE COMPANY, Appellant (Defendant below)Dick Lange, individually and dba Western Agency Insurance (Defendant below), v.Earl C. CATES, Appellee (Plaintiff below).

No. 4093.

Supreme Court of Wyoming.

Oct. 19, 1972.

Rehearing Denied Nov. 20, 1972.

David A. Scott, of Murane, Bostwick, McDaniel, Scott & Greenlee, Casper, for appellant.

Leimback, Aspinwall & Hofer and Ronald W. Hofer, Casper, for appellee.

Before McINTYRE, C. J., and PARKER, McEWAN, and GUTHRIE, JJ.

Mr. Justice PARKERdelivered the opinion of the court.

Plaintiff Cates sued the Ranger Insurance Company, alleging the issuance of a policy covering his plane, the waiver of Paragraph 5 of 'Special Provisions Endorsement'¹ by Lange, the agent for the insurance company, ² a subsequent crash, demand for insurance benefits, and the refusal to pay.The company admitted issuance of the policy through Lange but denied both the waiver of Paragraph 5 and liability.The case was tried to a jury, which was given no written interrogatories upon issues of fact and rendered a general verdict for $9,250 (based on the market value of the plane at the time of the accident).

The significant facts are uncomplicated and for all practical purposes largely undisputed.Plaintiff, an accountant and engaged in the mineral business, in October 1969 purchased a Cessna 182 (Skylane) on which he secured insurance through Lange.His principal objective in buying the aircraft was to fly himself and personnel used in his mineral business to where they were working in the Red Desert.Lange placed the insurance application with Aviation Office of America, a corporation which functioned as managing general agent for six insurance companies, including Ranger.When Lange received the policy, which was effective November 19, 1969, he took it to Cates and they discussed Paragraph 5.Cates decided he could not accept the policy and described to Lange the areas which would be used as landing strips, i. e., that he would land out at his drilling operations, using hard-packed surface roads.According to Cates, later that day Lange phoned him to say that he had contacted Aviation Office of America, explaining that under the circumstances Cates would not accept the policy and had been told that if other aircraft were using 'the same' it would be okay.Both men agreed that a letter should be written; and the following, under date of January 3, 1970, was sent by Lange to Aviation Office of America:

'Insured wishes to have the special provisions endorsement clarified. #5 under the policy.What consitutes (sic) an airport?They use this plane for business and pleasure.They check on their business (sic) locations around Casper, Wyo. and they have hard packed approved landing strips which they use.They do not land on open range, but on landing strips built to accommodate this type of aircraft.Please indicate if policy covers.Thank you.'

Whereupon Alderman, vice-president of the corporation, responded in writing:

'If it is a surface prepared for aircraft operation there is no problem.'

Lange said he took this letter to plaintiff and that they agreed it was not 'sufficient to clarify the position we were in landing the aircraft out in the areas that he was landing.'Lange returned to his office and by telephone contacted the person whom he believed to be the one who wrote the letter, discussing the letter and telling him, inter alia, that the insured would want coverage for landing out near his drilling operation, that they had hard-packed surface roads that were straight and wide enough to accommodate an aircraft and where other planes had landed and taken off.He was told that in such a situation there should be no problem.Lange said he then relayed this information to Cates, who indicated that he did not like the clause in the policy but since Lange had written the letter and also called he did not see any problem.

On September 23, 1970, plaintiff flew from Casper to the west Red Desert area, landing in flat terrain on a graded hardpacked dirt road.He was there approximately four or five hours, probably leaving between 5 and 6 p. m. The weather was clear with gusty winds.According to Cates, his plane lifted off the ground, between ten and thirty feet, and he had flown three hundred feet, apparently straight, when the plane made an almost ninety-degree right turn and crashed.

Defendant's appeal is based on the following grounds:

1.That as a matter of law the plaintiff failed to prove a waiver of the exclusionary clause in question and the trial court therefore erred in not directing the verdict in favor of the appellant.

2.That the plaintiff failed to prove as a matter of law a modification of the exclusionary clause, which would have brought the road used by the plaintiff within policy coverage, and the trial court therefore erred in not directing the verdict in favor of appellant; that further, the record does not contain substantial evidence, even if believed, upon which to justify the verdict in favor of plaintiff on the grounds that said paragraph had been so modifed.

3.That the trial court erred in giving Instruction 4 relating to the doctrine of estoppel, and further, that the instruction on estoppel given did not correctly set forth said doctrine as did Instruction A offered by defendant for the purpose of correcting Instruction 4.

4.That the court erred in refusing to give defendant's Instruction B.

5.That the court erred in allowing plaintiff and his witnesses to testify, in effect, that pilots customarily landed planes on roads in the general area of the Red Desert basin.

6.That the court erred in allowing plaintiff's witness, Gary Gosney, to testify concerning his landing and taking off from the road used by Cates subsequent to the latter's accident.

While plaintiff contended at the trial and argues here that he was in flight prior to the crash, that it made no difference if it was for 300 feet or 300 miles, and that since he was in flight the policy should cover the accident, there seems no occasion to enter into a discussion of this thesis.

Waiver

In its first point the defendant takes the position, as it did at the trial, that in view of the evidence concerning the type of road used by Cates at the time of the accident plaintiff's case had to stand or fall on the allegation in his complaint to the effect that the exclusionary provision identified as Paragraph 5 had been waived by Lange.While the defendant says it does not deny the answering of the letter nor the phone call, it maintains that admittedly no waiver had been made by Aviation Office of America, arguing that the question on the issue of waiver was whether or not Lange as an agent of Aviation Office of America had authority to waive such a provision as Paragraph 5, citingSowers v. Iowa Home Mutual Casualty Insurance Company, Wyo., 359 P.2d 488, 492, as authority for the holding that under a statute such as § 26-66, W.S.1957, not defining the power of an agent, the agent has no power to waive any condition of an insurance policy.³In our view defendant successfully answers the question it thus poses, and we agree that Lange was in no position to waive Paragraph 5.However, this does not per se produce error on the part of the trial court in not directing a verdict in favor of defendant.

Even though the plaintiff pleaded waiver, in effect it was his position throughout the trial that Aviation Office of America modified the definition of 'airport' which defendant now argues to mean, inter alia, 'a landing area used regularly by aircraft for receiving or discharging passengers or cargo,''landing area' being defined as 'any locality, either land or water, including airports and intermediate landing fields, which is used or is intended to be used, for the landing and take-off of aircraft, whether or not facilities are provided for the shelter, servicing, or repair of aircraft, or for the receiving or discharging of the passengers or cargo.'The evidence adduced might well have been interpreted to show a modification of the contract by the insurance company, and the trial court did not err in refusing to direct a verdict in defendant's favor.

Modification

Plaintiff next argues that the road Cates used for take-off was not straight, wide, and equivalent to a landing strip, that even Cates admitted to a 'little curve in the road,' and that there were some rough spots in the road with a few small chuckholes in it.While these were matters for the jury to weigh before reaching a verdict, there is no valid basis for defendant's contention that they warranted a directed verdict in its favor.

Instruction 4

Defendant argues that the giving of the instruction regarding estoppel, whether or not it correctly stated the doctrine, was prejudicial to it and was sufficient ground for reversal, maintaining that since this doctrine was not pleaded plaintiff could not utilize it and that it influenced the jury to rely primarily on Cates'...