UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NORTH AMERICAN SPECIALTY
INSURANCE COMPANY,
Plaintiff-Appellant,

v.

RABOTEAU T. WILDER, JR., Personal
Representative of the Estate of Blair
Michael Bycura; JEAN C. MCLEAR;
                                                               No. 97-1588
JOSEPH T. MCLEAR; ROBERT M.
MCLEAR, Co-Administrators of the
Estate of Jennifer C. McLear,
Defendants-Appellees,

and

NATIONSBANK, N.A.,
Defendant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Carl Horn, III, Chief Magistrate Judge.
(CA-96-4-3-H)

Argued: March 4, 1998

Decided: June 9, 1998

Before LUTTIG and MICHAEL, Circuit Judges, and
HILTON, Chief United States District Judge for the
Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Rodney Allen Dean, DEAN & GIBSON, L.L.P., Char-
lotte, North Carolina, for Appellant. Frank Hilton Lancaster, ROBIN-
SON, BRADSHAW & HINSON, P.A., Charlotte, North Carolina, for
Appellees. ON BRIEF: D. Christopher Osborn, DEAN & GIBSON,
L.L.P., Charlotte, North Carolina, for Appellant. Martin L. Brackett,
Jr., ROBINSON, BRADSHAW & HINSON, P.A., Charlotte, North
Carolina; J. Reid McGraw, Jr., Raboteau T. Wilder, Jr., ALALA,
MULLEN, HOLLAND & COOPER, P.A., Gastonia, North Carolina,
for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Blair Bycura, M.D. and Jennifer McLear died in the crash of a pri-
vate plane piloted by Bycura. At that time Bycura held a $1,000,000
flight insurance policy from North American Speciality Insurance
Company (NAS). NAS filed a declaratory judgment action against the
estates of Bycura and McLear seeking a determination that there was
no coverage under the policy for any claims arising from the crash.
NAS alleged that Bycura, in his application for insurance, misrepre-
sented his medical condition by failing to indicate that his Federal
Aviation Administration (FAA) medical certificate had a one-year
expiration date rather than the usual two years. This failure, NAS
argued, invalidated the insurance policy. The magistrate judge found
that the application form did not make an unambiguous request that
required disclosure of the one-year expiration date of Bycura's medi-
cal certificate. The judge therefore concluded that Bycura did not
make a misrepresentation on the application form, and he granted
summary judgment to the estates. Because we agree that the language
of the request in the application is ambiguous, we affirm.

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I.

Shortly after midnight on August 20, 1995, an airplane piloted by
Bycura crashed on approach to the airport in Rock Hill, South Caro-
lina, killing both Bycura and his passenger, McLear. The National
Transportation Safety Board (NTSB) determined in its subsequent
investigation that the crash did not result from mechanical failure.
Rather, the NTSB concluded that Bycura had suffered a heart attack
that incapacitated him and led to the fatal crash. Bycura's death certif-
icate indicated that he died of massive bodily injuries from the crash,
but it listed a heart attack as a contributing factor.

This was not Bycura's first heart attack. He had a history of heart
problems dating back to 1978 that included two bypass surgeries in
1979 and 1986. Since 1988, however, Bycura's health had improved
dramatically. By May 1990 Bycura had committed himself to a rigor-
ous exercise regimen, running eight to ten miles a day at a pace of just
over a six-minute mile. As a result, his doctor reported that he was
in "exceptionally robust health" and suffered no symptoms of heart
problems. Subsequent examinations in 1992, 1993, and 1994 affirmed
that Bycura "remain[ed] in excellent general health . . . free of symp-
toms of [heart problems]."

In a letter dated September 10, 1990, the FAA informed Bycura
that because of his prior heart condition he qualified for a third-class
medical certificate (the lowest pilot classification) only if he met cer-
tain conditions prescribed by FAA regulations. Among these was the
requirement that Bycura undergo annual medical examinations. Most
pilots who receive a third-class medical certificate are required to
undergo medical examinations only every two years. On Bycura's
third-class medical certificate, dated March 29, 1993, there is a box
marked "Limitations." In that box the following information was writ-
ten: "not valid after 4-30-94" and "must wear glasses for near and dis-
tant vision."

On January 31, 1994, Bycura filled out an application for a
$1,000,000 flight insurance policy from NAS. One question in this
application asked whether Bycura had "[a]ny physical impairments or
limitations or waivers on Medical Certificate[.]" Two boxes next to
the question indicated that it was to be answered by checking boxes

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marked "yes" or "no." Bycura checked the box marked "yes" and
wrote in the margin, "[m]ust wear glasses." He did not volunteer the
expiration date of his medical certificate. NAS issued a policy for the
period January 17, 1994, to January 17, 1995. The policy was
renewed in 1995 and was in effect at the time of the crash.

On January 4, 1996, NAS filed this declaratory judgment action in
the Western District of North Carolina against the estates of Bycura
and McLear, seeking to avoid coverage.1 With the consent of all par-
ties, the case was referred to a magistrate judge. After cross-motions
for summary judgment were filed, the magistrate judge granted sum-
mary judgment to the estates and denied it to NAS. NAS now appeals.

II.

A.

A district court's award of summary judgment is reviewed de novo
on appeal. Facts and reasonable inferences must be taken in the light
most favorable to the party opposing the motion. Summary judgment
is appropriate if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

An insurance contract may be avoided by the insurer if it can show
that the applicant made a material misrepresentation or omission on
his application. See Prudential Ins. Co. v. Barden, 424 F.2d 1006,
1009-10 (4th Cir. 1970) (applying North Carolina law). To carry this
burden, the insurer must demonstrate that it made a specific and
unambiguous request for the information that was misrepresented or
omitted. See, e.g., Nat'l Aviation Underwriters, Inc. v. Fisher, 386
F.2d 582, 584 (8th Cir. 1967) ("The general rule is that absent fraud
an applicant's failure to disclose facts about which no questions were
asked will not avoid the policy"). A provision of a contract is ambigu-
ous if the words or effect of the provision are uncertain or capable of
several reasonable interpretations. See Woods v. Nationwide Mut. Ins.
Co., 246 S.E.2d 773, 777 (N.C. 1987). An ambiguous provision in an
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1 Federal jurisdiction is based on diversity of citizenship. The parties
agree that North Carolina law applies.

                    4
insurance contract is to be construed in favor of coverage for the
insured. See Brown v. Lumbermens Mut. Cas. Co. , 390 S.E.2d 150,
153 (N.C. 1990); Mutual Life Ins. Co. v. Hurni Packing Co., 263 U.S.
167, 174 (1923). This canon of interpretation also applies to ambigui-
ties in applications for insurance. See Union Indemnity Co. v. Dodd,
21 F.2d 706, 710-11 (4th Cir. 1927). If no genuine issue of material
fact remains after any ambiguity is construed in favor of coverage,
summary judgment may be granted to the insured. See, e.g., Miller v.
Nationwide Mutual Ins. Co., 486 S.E.2d 246 (N.C. Ct. App. 1997)
(affirming summary judgment for insureds when damage to their
home was caused by an incident which could be interpreted as an "ac-
cident," and the insurance contract was ambiguous because it did not
define the term); Hartford Fire Ins. Co. v. Pierce, 489 S.E.2d 179
(N.C. Ct. App. 1997) (reversing trial court with direction to grant
summary judgment to insured because liberal reading of ambiguous
insurance contract resulted in coverage).

B.

In this case, the NAS application form asked for a yes or no answer
to the following question: "Any physical impairments or limitations
or waivers on Medical Certificate?" NAS contends that this language
was a specific and unambiguous request for the expiration date of the
medical certificate. NAS argues that had Bycura written the expira-
tion date on his application form, it would have discovered his history
of heart disease and restricted or denied coverage. 2 The question on
the application does not ask specifically for the expiration date. NAS
nevertheless contends that the question indicates unambiguously that
NAS wanted the expiration date. While NAS's interpretation of the
question may be a reasonable one, it is by no means the only reason-
able interpretation.

The question asks for "physical impairments or limitations or waiv-
ers" on the medical certificate. The question is ambiguous because it
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2 NAS admits that it did not directly request information about
Bycura's health. NAS further admits that Bycura was under no obliga-
tion to reveal his medical history, with the exception (NAS alleges) that
he should have listed the expiration date of his medical certificate in
response to the question. See Appellant's Br. at 17-18.

                    5
is unclear whether the word "physical" applies just to impairments or
to limitations as well. This ambiguity is important because if the word
"physical" also modifies limitations, then Bycura could have
answered the question correctly by listing any physical limitations.
Since an expiration date is not a physical limitation, the only physical
limitation on Bycura's medical certificate was that he had to wear
glasses. That is exactly how Bycura answered the question. We
believe that the term "limitations" could reasonably be interpreted to
mean only physical limitations listed on the certificate. As a result,
the question did not unambiguously ask for the expiration date on
Bycura's medical certificate.

A reading of the application as a whole lends further support to the
argument that the question at issue here is ambiguous. The application
asked for several specific dates, such as the date of the applicant's
biennial flight review. It also requested specific information about the
medical certificate, such as the date of the last physical and the class
of the certificate. In contrast to these specific requests for other infor-
mation, the form did not directly ask for the expiration date of the
medical certificate. Because the form asked specifically for other
dates and asked for certain specific information about the medical cer-
tificate, Bycura could have reasonably understood that NAS was not
seeking the expiration date of the certificate.

In sum, it is a reasonable interpretation that the question on the
application form only asked for physical limitations on the medical
certificate. Because insurance applications must be construed in favor
of coverage, we adopt this interpretation and conclude that Bycura's
answer was accurate. NAS does not allege any other misrepresenta-
tion. As a result, there is no genuine issue of material fact that would
preclude the award of summary judgment to the estates of Bycura and
McLear.3

The judgment of the district court is

AFFIRMED.
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3 NAS also argues that the magistrate judge improperly struck portions
of affidavits submitted by Donald Barker, chief underwriter for NAS.
Because we affirm on grounds not relating to the stricken portions of the
affidavits, we need not reach this issue.

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