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.
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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
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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.
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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
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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.
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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.
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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
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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
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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
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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
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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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