Safeco Ins. Co. of America v. Husker Aviation, Inc.
| Decision Date | 26 March 1982 |
| Docket Number | No. 44013,44013 |
| Citation | 211 Neb. 21,317 N.W.2d 745 |
| Parties | SAFECO INSURANCE COMPANY OF AMERICA, a corporation, Appellee, v. HUSKER AVIATION, INC., a corporation, and Mary Ann Kinney, Personal Representative of the Estate of Max W. Kinney, deceased, Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Insurance: Contracts. Insurance is a contract by which one party assumes specified risks of the other party for a consideration, and promises to pay him or his beneficiary an ascertainable sum of money on the happening of a specified contingency. It is true, however, that an insurance contract will be construed against the insurance company when the contract or policy is indefinite or ambiguous because it drafted the contract or policy and is responsible for any indefiniteness or ambiguity therein. But where the contract is plain and unambiguous in its meaning, the contract will be enforced according to its terms.
2. Insurance: Contracts. The parties to an insurance contract may make the contract in any legal form they desire, and in the absence of statutory provisions to the contrary, insurance companies have the same right as individuals to limit their liability and to impose whatever conditions they please upon their obligations, not inconsistent with public policy. If plainly expressed, insurers are entitled to have such exceptions and limitations construed and enforced as expressed.
John R. Timmermier and Michael A. Nelsen of Schmid, Ford, Mooney & Frederick, Omaha, for appellant Kinney.
Frank Matthews of Matthews & Cannon, P. C., Omaha, for appellant Husker.
C. L. Robinson of Fitzgerald, Brown, Leahy, Strom, Schorr & Barmettler, Omaha, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, WHITE, and HASTINGS, JJ., and BRODKEY, J., Retired.
This is a declaratory judgment action brought by Safeco Insurance Company of America (Safeco) to determine the rights of the parties under two policies issued by it to Husker Aviation, Inc. (Husker), as its insured. The appellant Mary Ann Kinney (Kinney), as personal representative of the estate of Max W. Kinney, deceased, was joined as a necessary party defendant. Both Safeco and Kinney filed motions for summary judgment, and after a hearing in which evidence was adduced the trial court sustained the motion of Safeco for summary judgment and entered a declaratory judgment determining that neither of Safeco's policies afforded liability coverage for the tort action by Kinney against Husker, or obligated Safeco to defend such action. We affirm.
On June 4, 1978, Dr. Max W. Kinney was piloting an aircraft provided to him by Husker. The plane crashed and Dr. Kinney was killed. At the time of the crash, Safeco had issued to Husker two insurance policies. One policy was an aircraft hull and liability policy and the other policy was an airport fixed base operator's liability policy.
On July 17, 1979, Kinney, as personal representative for her deceased husband, filed suit for damages against Husker. Basically, her petition alleged that the decedent was involved in an accident which resulted in his death due to certain acts of negligence on the part of Husker. Essentially, Kinney contends that Husker performed certain acts of negligence with respect to the operation of its pilot training school which were the proximate cause of decedent's accident and resulting death. Under the provisions of the aircraft hull and liability policy, only the aircraft described in the declaration of the policy was covered by the policy. The aircraft being operated by Dr. Kinney was a Piper leased from a company called Alpha Flying Service, Inc. The lease agreement makes it clear that Husker was to obtain the insurance coverage for the Piper and simply failed through inadvertence to do so. All of the parties concede that the aircraft being operated by the decedent at the time of the crash was not described in the policy and that the policy did not afford any coverage for the accident.
While Husker and Kinney concede that the aircraft hull and liability policy does not afford a right of defense or coverage due to the fact that Husker failed to list the Piper as one of the aircrafts covered by the policy, they maintain that there is coverage under the airport fixed base operator's liability policy because the policy, by inference, provides coverage for the operation of a pilot training school. Whether that is the case or not need not be decided here. The airport fixed base operator's policy issued by Safeco specifically contained an exclusion which read in part: "This insurance does not apply : ... (b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of (1) any automobile or aircraft owned or operated by or rented or loaned to any insured ...." (Emphasis supplied.) The language of the policy is clear and unambiguous. It specifically provides, as noted, that there is no coverage for bodily injury arising out of the operation or use of an aircraft rented to the insured.
Husker and Kinney seek to avoid the exclusion of the policy by maintaining that the injury in the instant case did not arise out of the operation of an aircraft but, rather, by reason of Husker's negligence in training the decedent and permitting him to fly the aircraft at a time when he was not qualified to do so. While the argument is ingenious, it cannot overcome simple facts of the matter. Regardless of what may have been a contributing cause of the decedent's death, it is clear beyond question that the bodily injury resulting in his death was directly related to the operation of an aircraft leased to Husker. Whatever else may have been a cause of the decedent's ultimate death, it is clear from the record here that if he had not been operating the aircraft at the time it crashed, he would not have been killed. That is specifically what the policy excluded.
Our obligation in interpreting an insurance policy is clear. In Adolf v. Union Nat. Life Ins. Co., 170 Neb. 38, 44, 101 N.W.2d 504, 508-09 (1960), we said: ...
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