State Mutual Life Assur. Co. of Worcester, Mass. v. Dorsey

• Decision Date: 15 March 1966
• Docket Number: 22481.,No. 22480,22480
• Citation: 357 F.2d 600
• Parties: STATE MUTUAL LIFE ASSURANCE COMPANY OF WORCESTER, MASSACHUSETTS, Appellant, v. Sam Adams DORSEY et al., Appellees. STATE MUTUAL LIFE ASSURANCE COMPANY OF WORCESTER, MASSACHUSETTS, Appellant, v. The CITIZENS & SOUTHERN NATIONAL BANK, Executor of the Estate of David J. Murphy, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

357 F.2d 600 (1966)

STATE MUTUAL LIFE ASSURANCE COMPANY OF WORCESTER, MASSACHUSETTS, Appellant, v. Sam Adams DORSEY et al., Appellees.

STATE MUTUAL LIFE ASSURANCE COMPANY OF WORCESTER, MASSACHUSETTS, Appellant, v. The CITIZENS & SOUTHERN NATIONAL BANK, Executor of the Estate of David J. Murphy, Appellee.

Nos. 22480, 22481.

United States Court of Appeals Fifth Circuit.

March 15, 1966.

T. M. Smith, Harold C. McKenzie, Jr., Atlanta, Ga., Troutman, Sams, Schroder & Lockerman, Atlanta, Ga., of counsel, for appellant.

B. D. Murphy, James N. Frazer, Atlanta, Ga., Watkins & Daniell, Atlanta, Ga., Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., of counsel, for appellees.

Before GEWIN and BELL, Circuit Judges, and HUGHES, District Judge.

GRIFFIN B. BELL, Circuit Judge.

These appeals, consolidated by the parties for briefing and argument and by the court for decision, arise out of diversity suits brought to recover death benefits under accident insurance policies. The suits are identical except as to the amounts involved.

Roby Robinson, the insured decedent in No. 22,480 and David J. Murphy, the insured decedent in No. 22,481, were killed on June 3, 1962 while passengers on a Boeing 707 Intercontinental Jet Aircraft of Compagnie Nationale Air France when it crashed while attempting to take off from Orly Field, Paris, France. State Mutual had issued group accident contracts to insurance trusts in which the employers of the respective decedents were participants, and certificates of insurance had been issued to the decedents. State Mutual denied coverage on the basis of the following exclusion contained in the insurance certificates:

"No benefits shall be payable for any loss which is caused or contributed to by * * * being in or on or in contact with any kind of aircraft, either on the ground, water, or in the air, or falling or in any other manner descending with or from such aircraft, except loss resulting from flight or travel as a passenger in a licensed aircraft (other than a chartered aircraft) operated by a licensed pilot on a scheduled passenger service regularly offered between specified airports by a passenger carrier duly licensed by the proper licensing authority * * *".

The issues were narrowed in the District Court by State Mutual to a reliance on only two provisions of the exclusion: that the aircraft on which the decedents met their deaths was a chartered aircraft; and that it was not being operated in scheduled passenger service regularly offered between specified airports. Both of these issues were resolved against State Mutual and summary judgment was entered for the plaintiff in each case. Dorsey v. State Mutual Life Assurance Company of Worcester, Mass., N.D.Ga., 1964, 238 F.Supp. 391.¹ These same issues are the basis of the appeals to this court.

The Atlanta Art Association entered into two contracts with Air France for the transportation of a group of its members from Atlanta to Paris and return via New York. One covered the flight from Atlanta to Paris and the other covered the return trip. The contracts referred variously to the contemplated flights as charter flights or charter transportation. It was necessary for Air France to have the contracts and flights approved by the Civil Aeronautics Board and the same terminology was used. There was no reference at any time to a "chartered aircraft." The nearest reference is the CAB tariff filed by Air France which is entitled "A Passenger Charter Tariff * * * applicable to the Charter of Aircraft for the air transportation of persons and property * * *" but the applicable text of the tariff again is related only to charter flights.

The passenger seats were preempted under the contracts by the Art Association. Air France and its crew remained in control of such aircrafts as were to be employed in the flights, and also the cargo space. A separate ticket was issued to each passenger. The contract relating to the ill-fated return trip called for a flight on June 3, 1962 from Paris, France to Atlanta, Georgia on Air France Flight AF 007. This was a regularly scheduled Air France flight which left Paris on Sundays, Tuesdays, and Thursdays for New York and Houston. It was to be diverted in New York on this day for Atlanta and thence to Houston for return flight to New York and Paris. These are the facts as the District Court found them. They are amply supported in the record and thus are not clearly erroneous. Rule 52(a), F.R.Civ.P.

We must apply the pertinent principles of law to these facts in determining the validity of the appeals. It is undisputed that Messrs. Robinson and Murphy met their deaths by reason of an accident and State Mutual asserts the exclusion in bar of recovery. The burden is on the insurer in such event to show that the deaths fall within the contract exclusion. Darby v. Interstate Life & Accident Insurance Company, 1963, 107 Ga.App. 409, 130 S.E.2d 360; Loftin v. United States Fire Insurance Co., 1962, 106 Ga.App. 287, 127 S.E.2d 53; Jewelers Mutual Insurance Co. v. Balogh, 5 Cir., 1959, 272 F.2d 889.

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