Toler v. All Am. Assur. Co.

• Decision Date: 01 June 1959
• Docket Number: No. 43837,43837
• Citation: 112 So.2d 623,237 La. 815
• Parties: Wilda Lee Soileau TOLER, Individually and as Natural Tutrix, v. ALL AMERICAN ASSURANCE COMPANY of Louisiana.
• Court: Louisiana Supreme Court

Page 623

112 So.2d 623

237 La. 815

Wilda Lee Soileau TOLER, Individually and as Natural Tutrix, v. ALL AMERICAN ASSURANCE COMPANY of Louisiana.

No. 43837.

Supreme Court of Louisiana.

June 1, 1959.

Rehearing Denied June 25, 1959.

C. Kenneth Deshotel, Opelousas, for appellant.

Voorhies, Labbe , Voorhies, Fontenot & Leonard, Lafayette, for defendant-appellee.

HAWTHORNE, Justice.

Wilda Lee Soileau Toler, individually and as natural tutrix of the minors Thomas M. Toler III, Jerry Christopher Toler, Craig S. Toler, and Barbara Lee Toler, beneficiaries named in an insurance policy, instituted this suit against the All American Assurance Company of Louisiana seeking a judgment of $50,000. Mrs. Toler contends that the defendant insurance company is indebted to them in this amount under the provisions of an insurance policy issued on the life of Thomas Maxwell Toler, Jr., bearing No. 11,360, dated December 8, 1955, for the face amount of $25,000 with an additional accidental death benefit, commonly referred to as a double indemnity provision, of $25,000. After trial on the merits there was judgment in favor of plaintiff for $25,000, the face amount of the policy, with 6 per cent per annum interest from December 17, 1956, until paid, and for all costs, and the clerk of court was ordered to pay to the attorneys for plaintiff the sum of $25,000 which had been deposited in the registry of the court by defendant. The demand of plaintiff for an additional $25,000 under the double indemnity provision of the policy was denied. Plaintiff appealed asking a reversal of the judgment insofar as it denied recovery under the double indemnity provision. The defendant insurance company has answered the appeal praying that the judgment be set aside only so far as it condemned defendant to pay interest and costs.

The insured, Dr. Thomas Maxwell Toler, Jr., was killed in November, 1956, in the crash of a private airplane of which he was the pilot and owner. In 1955 Dr. Toler made application to the defendant insurance company for life insurance of $55,000 with additional provisions of disability and accidental death benefits. This application contained the question: 'Have you ever been a pilot or other member of the crew of any type of aircraft or do you contemplate becoming such (if yes give details)?' The insured answered that he had a private pilot's license and flew approximately 200 hours a year. There appears on this application, for home office endorsement only, the following: '$3.75 per M rate up for aviation. Correct total premium is $795.40. Two separate policies have been made, one for $25,000.00 with DI (double indemnity) and one for $30,000.00.' Pursuant to this application the two policies of insurance were issued, one for $30,000.00 without double indemnity and the other, on which the instant suit was filed, for $25,000. The application is attached to and made part of both policies.

The policy sued on contains an endorsement or rider providing that the insurance company would pay to the beneficiary an additional amount 'of $25,000.00 upon receipt * * * of due proof (1) that the Insured's death resulted from bodily injury caused solely by external, violent, and accidental means and independently of all other causes * * *'. This rider further provides under 'Risks Not Assumed': 'Under this provision for Accidental Death Benefit, the Company does not assume the risk of death * * * from any of the following causes: * * * operating, riding in, or descending from, any kind of aircraft, except riding as a fare-paying passenger * * * in a licensed passenger aircraft provided by incorporated passenger carrier on a scheduled passenger air service regularly offered over an established passenger route.'

It will thus be seen that the insured was not covered under the accidental death benefit in the event his death was caused from operating, riding in, or descending from a private airplane. This policy, however, has attached to and made part of it an endorsement dated December 8, 1955, which provides:

'This policy issued in consideration of an extra annual premium of $3.75 per thousand, due to aviation, and is included in the premiums shown on the face of this policy.'

The annual premium shown on the face of the policy is $382.

It is the position of appellant that the endorsement dated December 8, 1955, which we have quoted above, is clear and explicit, and that by this endorsement the parties to the contract intended to delete the aviation exclusion clause of the accidental death benefit, since the endorsement 'specifically provided that an extra annual premium would be paid because of the aviation activities of the insured'. Appellant further argues, however, that if the court should find this endorsement to be ambiguous, the ambiguity should be construed against the insurer and for the benefit of the insured.

Appellee, on the other hand, denies liability under the double indemnity provision of the policy because of the stipulation therein that the risk of death caused by operating, riding in, or descending from a private plane is a risk not assumed but one expressly excluded. Appellee states that because the insured in his application declared he was a private pilot flying 200 hours a year, it took cognizance of this increased hazard, and that the basic life portion of the policy would have been issued with an aviation exclusion had the insured not agreed to pay an extra premium of $3.75 per thousand. In other words, appellee says that because of the insured's flying activities this $3.75 per thousand was an additional premium on the life provision of the policy; hence the endorsement.

As we view the matter, the endorsement providing for an extra annual premium of $3.75 per thousand is ambiguous. This endorsement states that the extra premium is 'due to aviation, and is included in the premiums shown on the face of this policy'. The face of the policy gives the total annual premium, which includes the premium for the basic life insurance and also the premium for the accidental death benefit, but the premium charge for these separate benefits is not disclosed by the policy. Under these circumstances we cannot, from the endorsement alone, determine whether the additional premium was intended to remove from the accidental death benefit provisions of the policy the aviation risk not assumed, or whether this premium represented only an increase of rate on the basic life portion of the policy because of the insured's activities in aviation.

Under the provisions of the accidental death benefit as set out in the policy the insurance company would not be liable in the instant case for the accidental death benefit because the death of the insured occurred in the crash of a private...