Kinnavy v. Traill

244 N.W.2d 924, 397 Mich. 521, 1976 Mich. LEXIS 314

• Court: Michigan Supreme Court
• Decided: August 27, 1976
• Docket: 56477, (Calendar No. 5)
• Status: Published

Opinions

Fitzgerald, J.

The single question before us is whether a group insurance policy containing an exclusionary clause which does not provide coverage for death, injury or disablement while the insured is "engaged in or taking part in aeronautics and/or aviation of any description or resulting from being in any aircraft except while a passenger in an aircraft previously tried, tested and approved” extends coverage to a pilot while flying his own aircraft commuting from his employment to his home. In our view it does not.

The facts of the case are well stated by the Court of Appeals.

"Plaintiffs husband, Robert J. Kinnavy, was a vice-president of Bastian-Blessing Company, headquartered in Chicago, Illinois. The employees of Bastian-Blessing Company were insured under a group accident policy, issued by defendant in the amount of $50,000.00 for accidental death.

"Mr. Kinnavy lived in Benton Harbor, Michigan, and commuted to work each day in his personally-owned Piper-Cherokee airplane. Plaintiff would drive her husband to the airport in Benton Harbor and he would then fly to Sky Harbor airport, a small field on the northwest side of Chicago. Mr. Kinnavy kept a car at Sky Harbor airport, which he used to travel to and from his office.

"On November 13, 1969, Roger Kinnavy took his usual flight to work, left the office around 4:30 p.m. and was never seen alive again. On December 6, 1969, the body of Mr. Kinnavy washed up on a Lake Michigan beach near New Buffalo, Michigan. The medical examiners determined that his death was caused by external-violent means, and that his injuries were of the type frequently found in aircraft fatalities.

"While no one actually saw Roger Kinnavy’s plane take off or crash, the undisputed circumstantial evidence established that Mr. Kinnavy died while piloting his plane. Between 5:30 p. m. and 6:30 p.m. on the evening in question, it was noted that Kinnavy’s car was parked at the Sky Harbor airport and his plane was gone. The National Weather Service in Chicago reported taking a call that night from someone on the ground, identifying himself as the pilot of 7636 J, who requested weather information on the flight route to Benton Harbor, Michigan. The South Bend airport also reported receiving a call from the pilot of 7636 J that night, requesting landing clearance. The plane, however, never came in for a landing and all contact was lost with it. There was no evidence that anyone was in the plane with Mr. Kinnavy when he left Sky Harbor, or that any other body was found, or that any other person was ever reported missing.”

Plaintiff, the deceased’s wife and the named beneficiary of the accident policy, sued to recover insurance proceeds and the defendant insurer refused payment. Defendant responded by claiming the affirmative defense that the policy excluded recovery for injury or death in any type of aviation endeavor. Defendant then moved for summary judgment contending that the deceased was not a "passenger” within the meaning of the exclusionary clause. Following denial of this motion, plaintiff moved for and was granted summary judgment on the basis that the exclusionary clause should be interpreted to permit recovery by a pilot’s beneficiary provided the airplane was tested and approved.

At trial, the sole question was whether decedent’s death was caused by accident. The jury returned a verdict for plaintiff in the amount of $50,000, the value of the insurance policy. Defendant then appealed the jury verdict and the trial court’s grant of partial summary judgment in favor of plaintiff. The Court of Appeals reversed the trial court and held that the lower court erred in denying defendant’s motion for summary judgment. The court ruled that the insurance policy provided coverage only while the insured was a "passenger” in an aircraft "tried, tested and approved” and did not extend coverage in situations where the insured accidentally dies while piloting his privately-owned aircraft. We granted leave to consider the correctness of that ruling.

The specific language of the group insurance policy states:

"IV. Exclusions: This contract does not cover death, injury or disablement:

"(d) While engaged in or taking part in aeronautics and/or aviation of any description or resulting from being in any aircraft except while a passenger in an aircraft previously tried, tested and approved.”

Reading the exclusionary clause as far as the word "except”, the policy clearly provides that any death of an insured occasioned by his mere presence in any aircraft which engages in any type of aeronautics or aviation results in the denial of insurance benefits. To this point, no distinction is made between passenger and pilot nor the various types of airborne activity in which the insured may engage. Were the exclusionary clause limited to activity involving "aeronautics and/or aviation of any description or resulting from being in any aircraft”, there would be agreement that plaintiff, the named beneficiary, would not be entitled to death benefits.

However, the exclusionary clause also contained an exception which permits recovery by "a passenger in an aircraft previously tried, tested and approved”. Plaintiff urges that strict construction of the exclusionary clause in favor of the insured requires that the ambiguous word "passenger” connote "occupant”. Therefore, death benefits would be awarded to anyone killed in an aircraft provided the plane was "tried, tested and approved”.

There is no ambiguity in the meaning of the word "passenger” when read in context with the entire exclusionary clause. If an operator of a private aircraft is a "passenger” there would be no need for an exception to the exclusionary clause. If, as plaintiff suggests, such an expansive description of aeronautical or aviation activity were contemplated by the insurer, the language "except while a passenger in an aircraft” could have been replaced by the single word "not”. The exclusionary clause would then read "while engaged in or taking part in aeronautics and/or aviation of any description or resulting from being in any aircraft not previously tried, tested and approved”. We interpret the word passenger as a purposefully-included exception to the exclusionary clause which, when construed in accordance with the ordinary and popular meaning of the entire policy language, specifically limits the term to mean non-operators of an aircraft. See Paul Revere Life Insurance Co v First National Bank in Dallas, 359 F2d 641 (CA 5, 1966).

In none of the authorities advanced by plaintiff does the word "passenger” appear in the same context as the instant case. It would be a strained interpretation to believe that the parties contemplated the payment of insurance benefits for death or injury based solely upon whether the aircraft involved was "tried, tested and approved”. An ordinary man would, in interpreting the exclusionary clause in the proper context, draw a distinction between pilots who operate and persons who are carried or conveyed in airplanes. In our opinion, the policy is not ambiguous and the deceased was not a "passenger” within the meaning of the policy.

Affirmed. Costs to appellees.

Kavanagh, C. J., and Williams, Coleman, Lindemer, and Ryan, JJ., concurred with Fitzgerald, J.