US Aviation v. Fitchburg-Leominster

• Court: Court of Appeals for the First Circuit
• Decided: December 16, 1994
• Docket: 94-1644
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 94-1644

                      UNITED STATES AVIATION UNDERWRITERS, INC.,

                                 Plaintiff, Appellee,

                                          v.

                   FITCHBURG-LEOMINSTER, FLYING CLUB, INC., ET AL.,

                                Defendants, Appellees,

                                         and

                                 DEBORAH G. CROCKER,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Nathaniel Gorton, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                     Coffin and Campbell*, Senior Circuit Judges.
                                           _____________________

                                 ____________________

____________________

        *Judge  Campbell  heard  oral argument  in  this  matter  but did  not
        participate  in the drafting or  the issuance of  the panel's opinion.
        The remaining two  panelists therefore issue this  opinion pursuant to
        28 U.S.C.   46(d).



Traver Clinton Smith, Jr., with whom  Michael P. Giunta and Margot
            __________________________            _________________     ______
        A. Clower were on brief for appellant Crocker.
        _________
            Richard M. Sharp with whom John  Moustakas, Peter L. Puciloski and
            ________________           _______________  __________________
        Keith  D.  Dunnigan   were  on  brief   for  appellee  U.S.   Aviation
        ___________________
        Underwriters, Inc.

____________________

                                  December 16, 1994
                                 ____________________



COFFIN,  Senior Circuit  Judge.   Deborah  Crocker sued  the
                        _____________________

          Fitchburg-Leominster  Flying Club,  Inc. and  her former  husband

          (the insureds) in state court to recover $1,000,000  for injuries

          suffered when, on exiting a plane to seek help in parking it, she

          accidentally walked into its rotating  propeller.  The plane  was

          owned by  the Club and  was being operated  by her  then husband.

          The liability insurer brought this diversity action in the United

          States District Court for  the District of Massachusetts, seeking

          a declaration that, since the victim was a "passenger" within the

          meaning of the policy, even though  she was outside the plane  at

          the  time of  the  accident, its  policy  restricted coverage  to

          $100,000  for any judgment that  might be recovered  in the state

          court action.  The district court granted summary judgment to the

          insurer.  We affirm.

                                     Background  
                                     __________

               The undisputed facts  are that, on  December 25, 1980,  John

          Holden,  his then wife Deborah Crocker, appellant herein, and his

          two children  flew in a single engine Cessna from a Boston suburb

          to the Toronto International Airport.  The aircraft had  overhead

          wings and a propeller in the nose.  The plane landed at  dusk and

          Holden  taxied it  to an  area near  a building  in which  he saw

          someone through a lighted window.  Unable to attract attention by

          flashing the plane's lights,  Holden spoke with his wife  and she

          left to get help from the person in the window.  The engine still

          running, she exited, leaving the door open.   She was then struck

          in the arm and head by the propeller.

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The Club's policy was issued on an insurance form that lists

          seven different  categories of  coverage.2  The  parties selected

          the  first category,  "combined liability  for bodily  injury and

          property  damage,"  which  insured  against  "claims  for  bodily

          injury,  mental anguish  and damage  to someone  else's property,

          resulting  from   the  ownership,  maintenance  or   use  of  the

          aircraft."  This insurance covered up to $1,000,000 of liability,

          but  was subject to  a cap of  $100,000 per passenger.   The term

          "passenger" is  defined as  "anyone who  enters your  aircraft to

          ride in or operate it."3 

               The   policy  contains   additional  language   relating  to

          "passenger" in  other options not  selected.   The second  listed

          option covers  bodily injury  and property damage  claims "except

          bodily  injury and mental anguish  claims by a  passenger in your

          aircraft."   The fourth option  covers claims "for  bodily injury

          and mental anguish to any passenger in your aircraft."  The third

          option covers  claims "for  bodily injury and  mental anguish  to

                              
          ____________________

          2  The  seven  kinds  of  coverage  are  (1)  "combined liability
          coverage for  bodily injury  and property damage,"  (2) "combined
          liability coverage  for bodily injury (except  to passengers) and
          property damage,"  (3) "liability  coverage for bodily  injury to
          anyone but passengers," (4) "liability coverage for bodily injury
          to  passengers  only,"  (5)  "liability  coverage   for  property
          damage,"  (6)  "medical  coverage," and  (7)  "aircraft  physical
          damage coverage."

          3  We, like  appellee,  do not  consider  it important  that  the
          combined  liability  coverage  option  selected does  not  itself
          contain this definition  of passenger, which is  given in several
          of  the more  narrow categories  of coverage  listed.   Since the
          combined liability  coverage is merely  an amalgam  of the  risks
          covered  by the  narrower  categories, by  implication, the  same
          definition of passenger applies.

                                         -4-



anyone -- except a passenger -- who is injured."   The phrase "in

          your  aircraft,"  present  in  the former  two  options,  is  not

          included in the latter.

                              Applicable Legal Standards
                              __________________________

               The issue of choice  of law was apparently not  addressed by

          the  parties  or  the court  below,  but,  since  the policy  was

          delivered  to  the  Club  in  Massachusetts, which  is  also  the

          domicile of  insureds  and claimant,  we  shall assume  that  the

          substantive  law  of  that  commonwealth applies.    We  suspect,

          however, that in  general there is  no relevant difference  among

          jurisdictions.  Our review of  the propriety of summary judgment,

          in the absence of any factual dispute, is of course plenary.  

               In interpreting the  insurance policy at issue in this case,

          we  apply the  three fundamental  principles articulated  in Camp
                                                                       ____

          Dresser &  McKee, Inc. v. Home  Ins. Co., 30 Mass.  App. Ct. 318,
          ______________________    ______________

          323-24, 568 N.E.2d 631 (1991): we  construe the policy "according

          to the  fair  and reasonable  meaning  of its  words,"  interpret

          exclusionary  clauses  against  the  insurer,  and   resolve  all

          ambiguities  against  the  insurer.    These  tasks  of  contract

          interpretation, including the  determination of ambiguity  or its

          lack, are matters  for the court.  Boston Edison Co. v. F.E.R.C.,
                                             _________________    ________

          856 F.2d  361, 365  (1st Cir.  1988) (referring to  Massachusetts

          cases).

               When,  as  here,  both  parties earnestly  contend  that  an

          insurance  policy   is  clear,  unambiguous,  with   a  fair  and

          reasonable  meaning exactly  opposite to  that advanced  by their

-5-



adversary,  a court  is tempted  to say  that, whatever  a policy

          really  means, it is at least ambiguous.   But the discernment of

          two possible  meanings for a  word is not  the end of  a judicial

          assessment of ambiguity.  As we have said: 

               Lack of ambiguity is a relative status, not an absolute
               one.   The  parties need  not choose  phraseology which
               invariably excludes every possible interpretation other
               than  the one they intend.  [I]t [is] sufficient if the
               language  employed is  such that  a  reasonable person,
               reading  the  document  as  a whole  and  in  realistic
               context,  clearly  points  to  a  readily ascertainable
               meaning.

          Fashion House,  Inc. v. K  Mart Corp., 892  F.2d 1076, 1085  (1st
          ____________________    _____________

          Cir. 1989).

                                      Analysis  
                                      ________

               Appellant  would have us  quickly assume that,  based on its

          dictionary  definition,  the word  "passenger" under  this policy

          means someone who has entered the aircraft to ride in  or operate

          it and who is in the aircraft at  the time of injury.  If one  is
             ___

          outside,  no  matter  how near  or  far,  and  regardless if  the

          separation from the  aircraft is recent  or remote, transient  or

          permanent,  or  involuntary  or  voluntary, one  is  no  longer a

          "passenger."    There is,  indeed,  literary  precedent for  such

          literal and  narrow reading: Portia, a  "rightful judge," refused

          to expand  "a pound of flesh" to authorize the shedding of even a

          "jot of blood."4  

               But we lack the playwright's license.  Literal exactitude is

          not the end of our  quest.  In Hazen Paper Co. v. U.S. Fidelity &
                                         _______________    _______________
                              
          ____________________

          4 William Shakespeare, The  Merchant of Venice, Act IV,  Scene 1,
                                 _______________________
          lines 306-313.

                                         -6-



Guar. Co.,  407 Mass.  689, 693, 555  N.E.2d 576,  579 (1990),  a
          _________

          liability policy  required the  insurance company "to  defend any

          suit seeking damages  on account of . . .  property damage."  The

          insured had  been accused of releasing  hazardous substances into

          the environment.  The threshold  issue confronting the court  was

          whether a letter from  the Environmental Protection Agency naming

          the  insured   as  a   "potentially  responsible  person"   [PRP]

          constituted a "suit."  The court reasoned:

               Obviously, on  the record no lawsuit  has been brought.
               Literally,  there is no suit.  That fact alone has been
               sufficient  to  provide  the  answer for  some  courts.
               [Citations omitted.]  It is, however, not sufficient to
               provide an answer for us.

          Id.  After  surveying the importance to the  insured of the early
          ___

          involvement  of  the  insurer on  receipt  of  a  PRP letter,  it

          concluded that  "[t]he  consequences of  the receipt  of the  EPA

          letter were  so substantially equivalent to the commencement of a

          lawsuit that  a duty to defend  arose immediately."  Id.  at 696,
                                                               ___

          555 N.E.2d at 581. 

               Similarly, our focus  must be the broader  one of discerning

          the  parties' reasonable  expectations from  the context  and the

          purposes sought to be served.   As the Hazen Paper court  put it,
                                                 ___________

          "[i]t is . . . appropriate, in construing an insurance policy, to

          consider  what an  objectively  reasonable  insured, reading  the

          relevant  policy language, would expect  to be covered."   Id. at
                                                                     __

          700, 555  N.E.2d at  583.   Accordingly, both  to probe fair  and

          reasonable  meaning  and to  test for  ambiguity, we  examine the

-7-



actual  language  used,  the  context,  the  parties'  reasonable

          expectations, and the relevant cases.  

               The  policy definition  of passenger  -- "anyone  who enters

          your aircraft to ride in or operate it" -- does not carry us very

          far.  Indeed, on its  face, it does not seem to  contemplate that

          the  status of passenger ever  terminates.  We  are confident the

          parties  did  not  intend  that,  under   this  policy,  once  an

          individual entered the insureds'  aircraft, she would remain, for

          all time, a passenger.

               The  context in  which the policy  was written,  however, is

          decidedly  more illuminating.    This is  a  two tier  policy  of

          liability  insurance  for a  recreational  flying  group and  its

          members.  It protects the insureds for up to one hundred thousand

          dollars  against claims by  individual passengers  and up  to one

          million  dollars  against  claims   by  non-passengers.    As  we

          contemplate what  the parties  must reasonably have  intended and

          expected,  we readily  assume that  they were  aware of  the full

          range  of possible injuries that could befall members of the Club

          and  their  guests, including  possible  injury or  death  due to

          emergency landings  or accidents involving maintenance  work.  We

          also assume they knew the risks of injuries to other aircraft and

          their owners, operators, and passengers, visitors to the airport,

          licensees,  workmen, and all  third parties.   Finally, we assume

          that  keeping   down  the  cost  of  premiums  was  an  important

          consideration in choosing to cover claims by passengers up to one

          hundred thousand dollars instead of up to one million dollars.

-8-



In  this context,  we  cannot  believe  that the  Club,  its

          members,  or the  insurer could  have intended  that members  and

          their  guests could  suddenly  find themselves  eligible for  the

          million  dollar  coverage because  they  were forced  to  exit an

          aircraft by parachute and subsequently were injured or killed, or

          because  they  suffered  some  injury  or  anguish  while  making

          emergency  repairs  in flight,  or while  trying to  remove wheel

          blocks or adjust a  propeller before takeoff, or, as  here, while

          temporarily leaving the plane to get assistance prior to securing

          the  aircraft for  the  night.    Conversely, if  only  passenger

          coverage had been purchased and  the same situations occurred, we

          doubt  very much that the parties would expect to find themselves

          deprived of coverage.   We  conclude that there  is a  reasonable

          expectation that "passenger" implies some  necessary, unavoidable

          or frequently encountered situations occurring in connection with

          and in proximity to, but outside, an aircraft.5  

               What we described  as our  sense of the  situation is  amply

          borne out by the cases, some of them going back to the 'twenties.

          Similar  language as  that  in  the  policy  at  issue  has  been

          construed  to apply to persons who, during a journey by aircraft,

          had  occasion  to  approach  the  plane  and  collided  with  the
                              
          ____________________

          5  It is true that the phrase "in  your aircraft" is found in two
          of the (not selected)  coverage descriptions.  See supra  at 3-4.
                                                         ___ _____
          But it seems likely to  have been inserted to emphasize  that the
          limitation does not apply  to passengers in another aircraft  who
                                                      _______
          have been  injured.  And, as we have  noted, the clause is not to
          be  found  in a  companion  clause offering  coverage  for bodily
          injury   to  anyone  but  passengers.     There  is  no  rational
          explanation for this varying treatment and we therefore assign no
          other significance to the phrase.

                                         -9-



propeller.   In Pittman v. Lamar Life  Ins. Co., 17 F.2d 370 (5th
                          _______    ____________________

          Cir.  1927),  a co-owner  of an  aircraft,  which stopped  near a

          hangar with  its  engine  running,  got out,  walked  toward  his

          automobile, and was struck by the propeller and killed.  The life

          insurance policy  contained a provision that  limited benefits in

          the event that death was caused by "participating in aeronautical

          activity."  The court  held that "aeronautical activities  of one

          who  takes [an  airplane] trip  . .  . includes  his presence  or

          movements  in or near to  the machine incidental  to beginning or

          concluding the trip"  and that the activity  in this case  was so

          "connected with and  incidental to  the airplane trip."   Id.  at
                                                                    __

          371.  

               The narrow  term,  "riding  in" an  aircraft,  was  held  to

          include  one who jumped  or was thrown  from it  in Willingham v.
                                                              __________

          Life & Cas. Ins. Co. of Tenn., 216 F.2d 226, 228 (5th Cir. 1954).
          _____________________________

          The court  said, "[w]e think that  the phrase `riding in'  in the

          context here employed is unambiguous and clearly includes falling

          or  being thrown  from the  airplane because  of difficulties  in

          flight."

               A  similarly  narrow   definition  contained  in   a  policy

          exclusion (injury sustained "while in or on any vehicle . . . for

          aerial  navigation") was  held to  apply to  a death  by drowning

          after a forced  landing on  water in Wendorff  v. Missouri  State
                                               ________     _______________

          Life Ins.  Co., 318  Mo. 363,  366-67, 1  S.W.2d 99, 100  (1927).
          ______________

          Almost  forty years  later, in  a case  involving a  crash during

          takeoff near  a lake,  the Ninth Circuit  similarly ruled,  under

-10-



policy language covering  death from "operating  or serving as  a

          member  of a  crew of  an aircraft."   Rauch  v.  Underwriters at
                                                 _____      _______________

          Lloyd's of London, 320 F.2d 525,  526 (9th Cir. 1963).  The court
          _________________

          held that the  "aeronautical activities of decedent Rauch did not

          end with  the actual flight .  . . but included  his voluntary or

          involuntary  presence and  movements in  the lake water  near the

          plane following its crash."   Id. at 531.  In  short, "operating"
                                        ___

          included  something  following  actual operation  of  the  plane.

          Other cases  recognizing risks of  drowning as familiar  risks of

          aviation are Green v. Mutual Benefit  Life Ins. Co., 144 F.2d  55
                       _____    _____________________________

          (1st Cir. 1944), and Neel  v. Mutual Life Ins. Co., 131  F.2d 159
                               ____     ____________________

          (2d Cir. 1942). 

               In the  instant case,  the activity  in which appellant  was

          engaged was not reembarking or  parachuting or struggling in  the

          water after  a crash but,  more like that  in Pittman, even  more
                                                        _______

          tied to trying  to bring about the successful end  of the flight,

          to obtain assistance  before securing the aircraft.   The concept

          of  coverage  for  one  who   was  injured  while  assisting  the

          transportation enterprise was articulated in Emerson v.  Carolina
                                                       _______     ________

          Cas. Ins.  Co., 206 F.2d 13 (8th Cir. 1953), where a passenger in
          ______________

          a truck had  been asked by the driver to  help uncouple a trailer

          and  was then injured.  The court  denied him the status of guest

          passenger  because it was  not reasonable that  a guest passenger

          would be instructed to do something that was normally done by the

          operator at the end of a journey.  But it said:

               If what  Goodman was doing at  the time of his  injury was a
               reasonable  incident  to his  relationship  of  the kind  of

                                         -11-



passenger  he  initially  was,  he  will  continue  to  be a
               passenger although  not physically  in or upon  the vehicle.
               Ruel v. Langelier, 299 Mass. 240, 12 N.E.2d 735.
               _________________

          Id. at 18.  
          ___

               Emerson's citation to Ruel v. Langelier leads us to a number
               _________             ____    _________

          of Massachusetts cases dealing with a related question: when does

          the status of a guest passenger in another's automobile cease for

          purposes  of determining the driver's duty of care in tort suits?

          In  Ruel,  the defendant  offered  plaintiff  a  ride home,  but,
              ____

          because his car was stuck in the snow, he first elicited her help

          in pushing the  car free.  She  was injured in the attempt.   The

          court found that, though she  was outside the car at the  time of

          the injury,  she was  still his guest.   Ruel  v. Langelier,  299
                                                   ____     _________

          Mass. at 242.  

               In Ethier v. Audette,  307 Mass. 111, 29 N.E.2d  707 (1940),
                  ______    _______

          the  driver of  the  vehicle gave  plaintiff  a ride  home.   The

          plaintiff wanted to stop to buy sandwiches for both to eat at her

          home.   They stopped at a restaurant; plaintiff walked toward it,

          then back  to the  car to  persuade the driver  to join  her; the

          motor  running,   the  car  slipped  into   reverse  and  injured

          plaintiff, whose  foot was on the running  board.  The court held

          that  "[t]he stop,  which  was  for  a  common  purpose,  was  an

          incidental  part  of  the  transportation,  and  a  part  of  the

          undertaking."   Id.  at 113,  29  N.E.2d at  708.   Similarly, in
                          ___

          Bragdon  v. Dinsmore, 312 Mass.  628, 630, 45  N.E.2d 833 (1942),
          _______     ________

          helping  a  driver park  a vehicle  was  held to  be "necessarily

-12-



incidental to  the accomplishment of the  gratuitous undertaking,

          in order to carry out its prearranged purpose."     

               Finally,  in  Sutherland v.  Scardino,  334  Mass. 178,  134
                             __________     ________

          N.E.2d  444 (1956),  plaintiff helped  the driver  change  a flat

          tire.  He was held still to be an "occupant" of the vehicle.  The

          fact that plaintiff was  not in defendant's vehicle when  injured

          was not material.   "Both were in its immediate  vicinity engaged

          in activities designed to promote a  resumption of its use."  Id.
                                                                        ___

          at 182, 134 N.E.2d at 446. 

               In  sum, we  feel  that the  Massachusetts Supreme  Judicial

          Court  would  apply  similar  reasoning  in  determining  whether

          appellant  in the case  at bar had  lost her status  as passenger

          because  she had left the  aircraft momentarily to  seek help and

          was injured almost immediately.

               We have searched for contraindications of these authorities,

          ancient as  some may be.   Appellant has not favored  us with any

          cases  where, in like situations, the narrowest of definitions of

          "passenger"  or  similar  words   has  been  applied  to  exclude

          necessary or  predictable events so closely tied  to the original

          status.   She  has argued  mainly against  relying on  precedents

          construing cases  decided under the Warsaw  Convention and common

          carrier cases where pro-passenger public policy may have played a

          major role.  We have not relied on any.

               As  for  appellant's urging  that  we  construe exclusionary

          clauses against the  insurer, we  observe that  this policy  form

          contains certain options covering passengers and certain  options

-13-



covering  non-passengers.   If the insureds  had chosen  only the

          option  covering passengers,  it  could not  be  argued that  the

          policy  provision  that  was  the  source  of  protection was  an

          exclusion.   The same  reasoning applies  to the policy  actually

          chosen, which combines extensive coverage for non-passengers with

          more  limited   coverage  for  passengers.     The  coverage  for

          passengers is not  subject to the  special rules of  construction

          for policy exclusions.

               We therefore, after this considerable journey, conclude that

          the policy language  at issue is not, in law, ambiguous, and that

          its  fair and  reasonable purport  is to  include appellant  as a

          "passenger"  at  the  time  of  her  unfortunate  accident.   The

          judgment of the district court is

               AFFIRMED. 

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