
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.                                         -3-               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.                                          -14-
