Spiess v. United Services Life Insurance Company, 8031.

• Citation: 348 F.2d 275
• Decision Date: 08 August 1965
• Docket Number: No. 8031.,8031.
• Parties: Diana Weddington SPIESS, Appellant, v. UNITED SERVICES LIFE INSURANCE COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

348 F.2d 275 (1965)

Diana Weddington SPIESS, Appellant, v. UNITED SERVICES LIFE INSURANCE COMPANY, Appellee.

No. 8031.

United States Court of Appeals Tenth Circuit.

July 1, 1965.

Rehearing Denied August 8, 1965.

James Parker of Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, N. M., for appellant.

Eric D. Lanphere of Iden & Johnson, Albuquerque, N. M. (Bryan G. Johnson and Richard G. Cooper, Albuquerque, N. M., on brief), for appellee.

Before MURRAH, Chief Judge, and PICKETT and BREITENSTEIN, Circuit Judges.

MURRAH, Chief Judge.

This is an appeal from a summary judgment in a diversity suit filed in the District of New Mexico by the beneficiary of a United Services Life Insurance policy to recover its face amount due to the death of her insured aviator-husband. As finally issued, the policy contained a rider which limited recovery to the return of the premiums if the policy became a claim by "death of the Insured due to any service, training, travel, flight, ascent or descent in, on, or from any species of aircraft at any time", but excepted from the limitation "death resulting from travel as a passenger on an aircraft owned and operated by the United States Government." The death of the insured resulted from a mid-air collision of two government aircraft, one of which was being piloted by the insured husband.

The crucial question is whether the phrase "passenger on an aircraft" is to be construed to embrace the insured, pilot and lone occupant of the aircraft. The trial court, sitting in New Mexico and applying its choice of laws rule, looked to "place of consummation", i. e., the place where the "final act is done", to determine the applicable law for interpretation of the contract. The parties agree that such is the conflict rule in New Mexico. See Alexander Film Co. v. Pierce, 46 N.M. 110, 121 P.2d 940; Transradio Press Serv. v. Whitmore, 47 N.M. 95, 137 P.2d 309; Merriman v. Harter, 59 N.M. 154, 280 P.2d 1045; Nielsen v. General American Life Ins. Company, 10 Cir., 89 F.2d 90, 110 A.L.R. 1133; Harris v. Pacific Mut. Life Ins. Co., 10 Cir., 137 F.2d 272. They disagree on the place of consummation, and thereon hangs this lawsuit.

Appellant contends that the contract was consummated in Washington, D. C.; that the law of the District controls, according to which the insured pilot of the aircraft was "a passenger on an aircraft" as those words were used and are to be interpreted in the contract. The company takes the position that the policy contract was finally consummated and delivered in the State of Maryland, according to the statutory law of which "`Passenger' includes any person riding in an aircraft, but having no part of its operation. Art. 1A, Sec. 1(p) Ann.Code Md., 1957. (Ann.Code, 1951 § 1; 1949, ch. 422, § 1)".

The summary judgment is based upon the trial court's conclusion that the insurance policy was not a District of Columbia contract; that the law of the District was inapplicable; and, furthermore, the contract cannot be interpreted to include the insured pilot as a "passenger".

Appellant-beneficiary apparently concedes, as indeed she must, that the statutory law of Maryland, if applicable, bars recovery. The question is thus whether the law of the District of Columbia is applicable to the construction and interpretation of the contract and, if so, whether it authorizes recovery.

The basic and undisputed facts are that while temporarily stationed in Maryland the insured, Spiess, applied for the policy on October 7, 1957. The application pertinently provided that "insurance approved pursuant to this application shall take effect at 12 o'clock noon, Eastern Standard Time, on the date of such approval by the Company at its Home Office". It also contained certain questions, to-wit: "Are you now a pilot?" to which Spiess answered "No"; and "If you are not a pilot, have you applied or do you expect to apply for flight training as a pilot?" to which he replied "Yes". In the portion of the application entitled "Explanations and Special Requests" Spiess wrote: "Applied for aviation tr'g May 1957 but under subsequent orders do not expect to become a crew member. I understand that the policy — if issued — may contain an aviation exclusion rider." The policy was dated and issued at the company's home office in Washington, D. C., on October 10, 1957.

As approved and issued, the policy did not contain the aviation hazard...