Walker v. Imperial Cas. & Indem. Co., 48434

• Decision Date: 20 May 1977
• Docket Number: No. 48434,48434
• Citation: 1 Kan.App.2d 349,564 P.2d 588
• Parties: Gene R. WALKER, Appellant, v. IMPERIAL CASUALTY AND INDEMNITY COMPANY, Appellee.
• Court: Kansas Court of Appeals

Page 588

564 P.2d 588

1 Kan.App.2d 349

Gene R. WALKER, Appellant, v. IMPERIAL CASUALTY AND INDEMNITY COMPANY, Appellee.

No. 48434.

Court of Appeals of Kansas.

May 20, 1977.

Syllabus by the Court

1. When an insurance contract is entered into in Missouri, and the loss giving rise to the lawsuit occurred in Missouri, the substantive law of the state of Missouri will be applied.

2. Words employed in contracts of insurance are to be construed according to the meaning of the terms used, and are to be taken and understood in their plain, ordinary and usual sense, so as to give effect to the intentions of the parties.

3. In determining the intention of the parties to a contract of insurance, the test is not what the insurer intends the printed language to mean, but rather what a reasonable person placed in the position of the insured would have understood the words to mean.

4. The term 'passenger,' when construed in accordance with the ordinary and popular meaning of the entire policy language, limits the term to mean a nonoperator of an aircraft whom a common carrier, as defined in the policy, has contracted to carry from one place to another, and has in the course of the performance of that contract received the person in its care.

5. A student pilot taking a flying lesson and logging time as a student pilot is participating as an operator of the aircraft and is not a passenger within the meaning of the insurance policy in question.

6. In a proceeding on a travel accident insurance policy, it is Held that the trial court did not err in finding the deceased insured was not riding as a passenger, as opposed to an operator, in a common carrier as defined in the insurance policy at the time the insured was killed in an aircraft accident.

Orval L. Fisher, Wichita, for appellant.

Jerry G. Elliott and Mikel L. Stout, of Foulston, Siefkin, Powers & Eberhardt, Wichita, for appellee.

Before ABBOTT, P. J., and FOTH and SPENCER, JJ.

ABBOTT, Judge:

This is an appeal by plaintiff-appellant from a judgment denying recovery under a travel accident insurance policy for the death of an insured student pilot who was killed while receiving instruction in a dualcontrol aircraft.

Plaintiff is the father of the insured student pilot, Steven G. Walker, and the designated beneficiary in the insurance policy in issue. Prior to his death, Steven G. Walker purchased a travel accident policy from appellee. The policy provided in pertinent part for indemnity for loss of life caused by accident '(w)hile the insured is riding as a passenger (and not as an operator) in, boarding or alighting from any air, land or water common carrier . . .' A 'common carrier' is defined in the policy as 'any air . . . vehicle licensed to carry passengers for hire.'

Walker was taking flying instructions from American Aviation, Inc. At the time of his death, he had logged 32.5 hours of flight time as a student pilot. He had soloed but was not a licensed pilot, nor was he qualified to obtain a pilot's license.

At approximately 2:45 p. m. on July 26, 1974, Walker departed Kansas City Municipal Airport, Kansas City, Missouri, in a dual-control aircraft with his flight instructor, Joseph D. Earl. No flight plan was filed. Some thirty minutes after takeoff, permission was requested of the control tower operator to make touch-and-go landings. One touch-and-go landing had been completed when several witnesses observed the aircraft near the south end of runway 18 climbing out of takeoff, southbound from Kansas City Municipal Airport. The takeoff appeared normal until the aircraft reached an altitude of several hundred feet when the aircraft entered a climbing right turn. Almost immediately, the nose of the aircraft dropped sharply to the right, went into a spin, and crashed into the dry river bed. Both Walker and Earl died in the crash. Earl's body was found in the right front seat where the flight instructor normally sits with one set of the dual controls available. Walker's body was in the left front seat where the student pilot normally sits with the other set of dual controls available to him. No evidence was offered, nor available, as to which person was actually flying the aircraft at the time it crashed. The purpose of the fatal flight was for Walker to learn to operate the aircraft, to practice operating the aircraft, or to actually operate the aircraft.

American Aviation, Inc., was licensed to give flight instructions. It was not licensed to carry passengers for hire in any capacity other than to give flight instructions. The aircraft that crashed was owned by American Aviation, Inc., and it would have been eligible to be used as an air taxi had American Aviation, Inc., been licensed to conduct an air taxi service.

At the time of the accident, American Aviation, Inc., charged $15 an hour for the use of the plane and $7.50 an hour for the instructor. It was possible to rent the plane without an instructor if the pilot were properly qualified and licensed to operate without an instructor. Walker was not qualified to operate the aircraft on the date of the accident without a flight instructor along. Earl was the pilot in command. A student pilot cannot be a pilot in command when a flight instructor is in the aircraft with him. Both pilots log all of the flight time when the student pilot is receiving instruction.

The trial court found that Steven G. Walker '. . . was not riding as a passenger in any common carrier as defined in the insurance policy at the time he sustained injuries and resulting death . . .' and denied recovery under the travel accident insurance policy.

The insurance contract was entered into in Missouri, and the loss giving rise to this lawsuit occurred in Missouri. The substantive law of the state of Missouri will be applied and all parties so agree.

Three of the alleged errors appellant relies on as grounds for reversal of the judgment can be considered together. The errors alleged are that the trial court erred (1) in construing the insurance policy as limiting and excluding coverage afforded to the insured, (2) in finding and holding that the airplane in which plaintiff was receiving flight instruction for hire was not a common carrier as defined in the insurance policy, and (3) in finding and holding that the deceased, Steven G. Valker, was riding as an operator and not as a passenger at the time he sustained injuries and resulting death.

An insurance policy can be construed only when the language of the policy is equivocal, indefinite, or ambiguous (44 C.J.S. Insurance § 290, p. 1139). If the language is clear or unequivocal, there is no occasion for construction (Barrett Plaza, Inc. v. Northwestern Mutual Ins. co., 411 S.W.2d 265 (Mo.App. 1967)).

Appellant relies on Linam v. Murphy, 360 Mo. 1140, 232 S.W.2d 937 (1950), and Lange v. Nelson-Ryan Flight Service, Inc., 259 Minn. 460, 108 N.W.2d 428 (1961), to support his contention that the insured was a passenger and not an operator. The Linam case involved an agency question relating to the liability of the instructor pilot for injuries the student pilot received in a plane crash. While on a training flight, the instructor pilot took control of the plane and despite the objections of the student pilot 'buzzed' two towns, a bridge, and a dam at an altitude lower than that of tree tops. The flight ended when the aircraft his a power line. The Missouri court held that the instructor pilot had the right to take over the controls and that the instructor pilot and his employers were liable for the instructor pilot's negligence. The undisputed evidence was that the instructor pilot had exclusive control of the plane and his negligence was the sole proximate cause of plaintiff's injuries....