Utica Mut. Ins. Co. v. Ueding

• Decision Date: 06 December 1977
• Docket Number: No. 1-1276A255,1-1276A255
• Citation: 175 Ind.App. 60,370 N.E.2d 373
• Parties: UTICA MUTUAL INSURANCE COMPANY, Appellant (Defendant below), v. Robert G. UEDING d/b/a Ueding Flying Service and Midwest Pawnee Center, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 373

370 N.E.2d 373

175 Ind.App. 60

UTICA MUTUAL INSURANCE COMPANY, Appellant (Defendant below), v. Robert G. UEDING d/b/a Ueding Flying Service and Midwest Pawnee Center, Appellee (Plaintiff below).

No. 1-1276A255.

Court of Appeals of Indiana, First District.

Dec. 6, 1977.

James L. Crawford, Sacopulos & Crawford, Terre Haute, for appellant.

Paul B. Ledford, Vincennes, for appellee.

ROBERTSON, Chief Judge.

Defendant-appellant, Utica Mutual Insurance Company (Utica) appeals from a judgment in the sum of $26,545.19 which was rendered in favor of plaintiff-appellee Robert Ueding (Ueding). Utica raises three issues on appeal:

I. Did the insurance policy issued by Utica cover the airplane in question?

II. Did Utica's insurance policy provide coverage for the occurrence in question?

III. Did the trial court improperly compute the award of damages?

Ueding was in the business of selling and servicing small aircraft, particularly crop-dusting airplanes, and was also involved in the business of crop-dusting. In September of 1973, Ueding purchased a new Piper Pawnee Brave (Piper) crop-dusting plane from a dealer in Florida. Michael Burgett, who was a pilot employed by Ueding, was sent to Florida to pick up the Piper. While en route home, Burgett made an emergency landing in a farm field near Russelville, Kentucky. Although the landing was completed without incident, the subsequent take-off was not. For unknown reasons, Burgett hit a fence and barn on take-off, which substantially damaged the Piper. The airplane was transported to Ueding's place of business in Vincennes where it was eventually repaired and sold.

Utica denied all liability for damages which were caused by the crash of the Piper. Ueding then instituted this action, which resulted in judgment against Utica.

Utica first argues that it is not liable to Ueding because the airplane that crashed was not one which was insured under its policy. Utica contends that this conclusion is inescapable because the plane was not listed on the schedule of covered aircraft and because the provisions of the Automatic Insurance for Newly Acquired Aircraft (Commercial) Endorsement do not apply in this case.

It is undisputed that the Piper was not a scheduled aircraft under the policy. Only two airplanes were listed on the schedule, neither of which was the Piper. Under the automatic insurance endorsement all newly acquired additional aircraft were covered automatically, but only if Utica was the insurer for all of the insured's aircraft at the time of acquisition. Utica concludes that because Ueding conceded at trial that not all of his aircraft were insured through Utica, the automatic insurance endorsement is inapplicable and the Piper was therefore not a covered airplane. It further contends that the trial court erroneously ruled in favor of Ueding because Ueding testified that all of his insurance was procured through the same agency and underwriter.

The judgment of the trial court must be affirmed on appeal if it can be sustained on any legal theory which the evidence supports. Brockman v. Detroit Diesel Allison Division (1977), Ind.App., 366 N.E.2d 1201. Therefore, we need not consider whether the basis of the trial court's judgment is erroneous, for we feel its judgment can be sustained on other grounds.

Ueding concedes that the Piper was not a scheduled aircraft and that the automatic insurance endorsement is not applicable. However, he argues that the Piper was insured under the provisions of the Reporting Form Policy Endorsement. Paragraph one of the latter endorsement reads as follows:

1. AIRCRAFT COVERED The insurance afforded under this Policy shall apply to all standard licensed Fixed Wing Land aircraft owned by the Insured at the inception date of this Policy and shall automatically apply to any additional standard licensed aircraft (excluding any military surplus craft unless specifically endorsed hereon) acquired by the Insured as owner during the Policy period, effective as of the time and date the Insured acquires possession of such additional aircraft.

Ueding testified that as a dealer in agricultural airplanes, it was his practice to insure those airplanes under this endorsement. There were other provisions in this endorsement which described the manner in which the premiums were to be computed and that those premiums should be sent to Utica along with the monthly reports required under paragraph four, which reads in pertinent part as follows 4. REPORTS The Insured agrees to keep accurate records pertaining to all aircraft insured under this Policy and to report monthly the following information with respect to each aircraft insured under this Policy during the preceding month: Make and type of aircraft license number, insured value as defined in paragraph 2 of this Endorsement, and the number of days the Company has been at risk with respect to each such aircraft. The company shall not be liable for any claims with respect to any aircraft which has not been reported from the date the Insured acquired such aircraft as owner as provided above . . . . (emphasis added).

In summary, Ueding argues that because he sent the proper information as to the Piper in his monthly report following his acquisition of the aircraft, along with the proper premium, the plane was covered under the Reporting Form Policy Endorsement. Utica, on the other hand, argues that additional planes can be insured only under the automatic endorsement and not under the reporting endorsement.

When interpreting the provisions of an insurance policy, this Court cannot extend the coverage delineated by clear and unambiguous language in the insurance contract. Ely v. State Farm Mutual Automobile Insurance Company (1971), 148 Ind.App. 586, 268 N.E.2d 316. However, it is well settled that where the language of an insurance policy is so ambiguous as to be susceptible of more than one interpretation, the court will adopt the construction most favorable to the insured. State Farm Fire and Casualty Co. v. Ackerman (1972), 151 Ind.App. 464, 280 N.E.2d 332. Furthermore, it was stated in O'Meara v. American States Insurance Co. (1971), 148 Ind.App. 563, 268 N.E.2d 109, that:

In order to constitute ambiguity so as to be susceptible to more than one interpretation, it must be shown that reasonably intelligent men on reading the insurance contract would honestly differ as to its meaning. 268 N.E.2d at 111.

It seems to us that the provision of the two endorsements are indeed conflicting. Both endorsements explicitly supersede Agreement IV of the printed policy, which was the original provision concerning coverage of additional airplanes. Both endorsements provide a procedure by which newly acquired planes will be insured, but the two list different requirements. We certainly feel that reasonably intelligent men would differ as to whether these provisions were complementary or mutually exclusive. We hold, therefore, that Ueding properly brought the Piper within the coverage of the policy by using the procedure outlined in the reporting endorsement.

Utica next argues that the policy did not cover this particular occurrence due to the following special provision:

This Policy does not apply to any occurrence or to any loss or damage involving the intentional use, except emergency, of any location other than an airport, regularly used for a normal landing and taking off of the type aircraft insured under this Policy.

Specifically, Utica contends that the trial court's finding that Burgett's use of the field for a landing and take off was an emergency is not supported by sufficient evidence and is contrary to law.

In determining whether a judgment is supported by sufficient evidence, ...