specially concurring.
I agree that the judgment of the district court in this case must be affirmed. I am in complete agreement with the discussion in the majority opinion with respect to the issues involved in Parts I, II and IV. I do find a different ground for affirming the decision of the district court to grant the judgment notwithstanding the verdict which is treated in Part II of the majority opinion.
It is my view that the problem relating to the granting of the judgment notwithstanding the verdict is not really an issue arising under Rule 49(b), W.R.C.P., and to a degree the parties may have misled the court by treating the question as one involving a conflict between a general verdict and an answer to special interrogatories under that rule. For me the difficulty occurred because the district court in its general verdict submitted a question of law to the jury. The question presented in the general verdict was:
*1155“Is there insurance for Wyoming Central Aero-Ways, Inc., for the personal injuries claimed by the occupants; Gerber, Tad-day, Soester and Perry, as a result of the accident of December 19, 1979, involving the Piper Turbo-Lance aircraft, N2168D, under Policy Part I, Aircraft Liability?”
That issue instead of being submitted to the jury should have been the object of an instruction on the law.
Insurance policies are special forms of contracts, and this court uniformly has recognized the right of the parties to an insurance contract to embody whatever lawful terms they desire in their contract. The court will not rewrite such a contract under the guise of judicial construction. Worthington v. State, Wyo., 598 P.2d 796 (1979); State Farm Mutual Automobile Insurance Company v. Farmers Insurance Group, Wyo., 569 P.2d 1260 (1977); Aim v. Hartford Fire Insurance Company, Wyo., 369 P.2d 216 (1962); and Rosenblum v. Sun Life Assur. Co. of Canada, 51 Wyo. 195, 65 P.2d 399, 109 A.L.R. 911 (1937). In the absence of any ambiguity, insurance policies are to be enforced according to the plain, ordinary meaning of their terms, which is done to effectuate the expressed intention of the parties. Worthington v. State, supra; McKay v. Equitable Life Assurance Society of United States, Wyo., 421 P.2d 166 (1966). These legal principles are applicable in an instance such as this which is aptly and correctly described by the majority opinion in Part III in which it is said with respect to clauses in two policies which were before the court:
“ * * * There is no difference and no ambiguity in the applicable portions of the two insurance policies. * * * ”
In the absence of ambiguity the construction and interpretation of the language of the agreement is accomplished by the court as a matter of law. Tate v. Mountain States Telephone and Telegraph Company, Wyo., 647 P.2d 58 (1982); Madison v. Marlatt, Wyo., 619 P.2d 708 (1980); and Shepard v. Top Hat Land & Cattle Co., Wyo., 560 P.2d 730 (1977).
With respect to the trial of cases involving insurance policies, the matter is aptly stated in 46 C.J.S. Insurance § 1368, pp. 599-600:
“The construction and interpretation of the terms of the policy are questions of law for the court,27 where there is no ambiguity in the language of the policy when applied to the undisputed facts,28 and it is error to leave its construction to the jury;29 but disputed questions of fact on which the construction rests should be submitted to the jury,30 * * (Footnotes omitted.)
A number of cases are cited in the footnotes of C.J.S. supporting these propositions.
It was proper for the district court to submit to the jury the issue of whether at the time of the accident the flight was being made for a business purpose of Wyoming Central Aero-Ways, Inc. Once that issue was resolved by the jury, however, the applicable language in the insurance policy unequivocally provided that there would be no coverage. The jury should have been so instructed by the district court, but since the question instead was submitted to the jury which returned an incorrect verdict in response to that submission, the appropriate technique for correcting the problem at that stage of the proceedings was the granting of the motion for judgment notwithstanding the verdict.
While the parties have not argued the case upon this premise, it seems so clear to me that this is the appropriate avenue for disposing of the issue that I feel compelled to provide this special concurring opinion.