Steven v. Fidelity & Cas. Co. of New York

• Citation: 22 Cal.Rptr. 83
• Court: California Court of Appeals Court of Appeals
• Decision Date: 23 May 1962
• Parties: Kathryn E. STEVEN, Plaintiff and Appellant, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation, Earle A. Lloyd, Mercury International Insurance Underwriters, Defendants and Respondents. Civ. 25715.

Page 83

22 Cal.Rptr. 83

Kathryn E. STEVEN, Plaintiff and Appellant, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation, Earle A. Lloyd, Mercury International Insurance Underwriters, Defendants and Respondents.

Civ. 25715.

District Court of Appeal, Second District, Division 4, California.

May 23, 1962.

Rehearing Denied June 11, 1962.

Hearing Granted July 18, 1962.

Opinion vacated 27 Cal.Rptr. 172, 377 P.2d 284.

Gerald H. Gottlieb, Beverly Hills, John W. Preston, Los Angeles, for plaintiff and appellant.

Crider, Tilson & Ruppe, and Edward A. DeBuys, Henry E. Kappler, Los Angeles, for defendants and respondents.

BALTHIS, Justice.

Plaintiff, as beneficiary, brought ths action upon a life insurance policy insuring the life of her deceased husband, George A. Steven. The policy was purchased by decedent prior to a contemplated round-trip air flight from Los Angeles to Dayton, Ohio, and return. On the return trip decedent was a passenger in a Piper Tri-Pacer airplane (an air taxi) chartered for the flight from Terre Haute to Chicago. On the trip to Chicago the plane crashed and decedent died a few hours thereafter from the injuries suffered.

After the trial by the court without a jury judgment was entered for defendants and plaintiff appeals.

A brief summary of the facts either admitted in the pleadings or stipulated to in the pre-trial statement is as follows:

On March 3, 1957, the deceased, George A. Steven, purchased at Los Angeles, California, a round-trip airplane ticket to Dayton, Ohio, via Terre Haute and Chicago on the return leg. Through a vending machine at Los Angeles International Airport he also purchased for a premium of $2.50 an insurance policy in the amount of $62,500.00 on his life, designating his wife Kathryn E. Steven as the beneficiary.

On March 6, 1957, he found himself at the Terre Haute airport on his way home. The 4:26 p. m. flight of the Lake Central Airlines which was to take him from Terre Haute to Chicago was canceled. This was the flight that the deceased had intended to take as part of his round-trip return route pursuant to his ticket as originally purchased. The deceased, along with four other prospective passengers for the Lake Central Airlines flight, proceeded to the Turner Aviation Corporation which agreed to fly them to Chicago for $36.00 a person, or for $21.00 a person if two more passengers could be obtained. Two additional passengers were obtained and, therefore, the deceased and each of the other passengers paid Turner Aviation Corporation $21.00 a person.

The deceased boarded an aircraft of Turner Aviation Corporation which took off from the Terre Haute airfield at 5:55 p. m. C.S.T. Sometime around 7:10 p. m. on March 6, 1957, near Grant Park, Illinois, the airplane crashed.

During March 1957 Turner Aviation Corporation operated out of Terre Haute under an air taxi certificate issued either by the Civil Aeronautics Board or the Civil Aeronautics Administration. On March 6, 1957, Turner Aviation Corporation held no Certificate of Public Convenience and Necessity issued by the United States Civil Aeronautics Board, which was the governmental authority authorized to issue such certificates. Neither the State of Illinois nor the State of Indiana grants Certificates of Public Convenience and Necessity or other authorizations to air carriers of any kind. During March 1957 Turner Aviation Corporation did not file, print, maintain and publish schedules and tariffs for regular passenger service between named cities within the boundaries of either Illinois or Indiana at regular and specified times. The plane trip on which the accident occurred was not a regular and scheduled flight of Turner Aviation Corporation but the flight was flown pursuant to the arrangements mentioned above.

The coverage clause of the policy is as follows:

'1. INSURING CLAUSE: Ticket or Pass Requirement. The Company will pay the benefits specified below if during the term of this policy the Insured suffers loss resulting directly and independently of all other causes from accidental bodily injury (hereinafter referred to as 'such injury'), sustained under circumstances specified below during the first one-way or round airline trip taken by the Insured after the purchase of this policy on Aircraft Operated by a Scheduled Air Carrier as defined below from the Point of Departure to the Destination, both shown above, and return if round trip ticket is obtained before departure, provided that at the time that the Insured sustains such injury he is traveling on a transportation ticket or pass covering the whole of said airline trip, issued to him for transportation on an aircraft operated by a scheduled air carrier.'

The definition of 'aircraft operated by a scheduled air carrier' is contained in paragraph 4 of the policy as follows:

'4. DEFINITION OF AIRCRAFT OPERATED BY A SCHEDULED AIR CARRIER. The words 'Aircraft Operated by a Scheduled Air Carrier' as used in this policy, mean and are defined as follows: (1) aircraft of United States registry, operated on a regular, special or chartered flight by a scheduled air carrier holding a Certificate of Public Convenience and Necessity issued by the Civil Aeronautics Board of the United States of America, or its successor, and which in accordance therewith files, prints, maintains and publishes schedules and tariffs for regular passenger service between named cities at regular and specified times, or (2) aircraft of foreign registry * * * or (3) aircraft of United States registry operated on a regular scheduled flight solely within the boundaries of a State of the United States by a scheduled air carrier legally authorized to conduct such operation, and which files, prints, maintains and publishes schedules and tariffs for regular passenger service between nemed cities solely within the boundaries of such State at regular and specified times. Specifically excluded from the above definition of 'Aircraft Operated by a Scheduled Air Carrier' are any and all aircraft operated by scheduled military airlines and any and all aircraft operated by air carriers recognized, designated, licensed or determined by the governmental authority having jurisdiction over civil aviation as being irregular or non-scheduled air carriers.'

The court made the following finding: '* * * that George A. Steven, at the time of the accident referred to in plaintiff's Complaint and death resulting therefrom, was not riding as a passenger on an aircraft operated by a scheduled air carrier, as defined in said policy, and further finds that he was riding a charter plane from Terre Haute, Indiana, to Chicago, Illinois.'

On the basis of the above finding the court concluded that plaintiff was not entitled to recover on the policy and judgment was given for defendants.

Plaintiff contends that the airplane trip on which the deceased sustained fatal injuries was included within the coverage of the policy. Plaintiff further argues the provisions of the policy are ambiguous and all uncertainties are to be resolved against the insurance carrier in favor of the insured and the insured's beneficiary. However, upon reading the insuring clause and the definition of 'aircraft operated by a scheduled air carrier' we find no ambiguity or uncertainty. We agree fully with the trial judge and on the points of claimed ambiguity and the coverage provided by the policy we quote from, approve and adopt his memorandum decision in part as follows:

'The court fails to see any ambiguity in the language of the policy which in reasonably clear language restricts coverage to death or injury resulting while the insured is a passenger upon an 'aircraft operated by a scheduled air carrier' * * *

'It seems equally clear that the aircraft upon which the insured was a passenger at the time it crashed and caused his death does not fall within C...