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WZONTEK v. ZURICH INSURANCE COMPANY (04/20/65)

decided: April 20, 1965.

WZONTEK
v.
ZURICH INSURANCE COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas of Northampton County, April T., 1962, Writ Ex. No. 3, in case of Joseph Wzontek, Jr., administrator of estate of Anthony J. Wzontek, deceased, v. Zurich Insurance Company.

COUNSEL

John B. O'Brien, for appellant.

Francis H. S. Ede, with him Charles L. Shimer, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 418 Pa. Page 31]

This appeal involves the interpretation of an insurance contract.

On July 20, 1958, appellee's decedent, Anthony J. Wzontek, was killed in an airplane accident while a passenger in an airplane piloted by Robert J. Williams. Williams was also killed in the same accident. The relevant facts are undisputed. Williams held a private pilot's license and he rented the airplane involved from Edwin S. Braden, trading as Braden's Flying Service. Braden was insured by appellant, Zurich Insurance Company. The airplane was one of those listed in the "Aircraft Schedule" attached to the insurance policy issued to Braden, which policy was in full force and effect at the time of the accident.

Appellee, administrator of Wzontek's estate, instituted a trespass action against Williams' estate and obtained a judgment in the amount of $15,000. The present proceeding was instituted by appellee who claimed that appellant was liable to Williams' estate under the insurance policy, and issued an attachment execution against appellant in order to collect the judgment.*fn1

Appellant chose to defend solely on the ground that Williams was not an "insured" and was excluded from coverage under provisions of the policy issued to Braden. The trial judge, however, directed a verdict for appellee, and a subsequent motion for judgment n.o.v. by appellant was denied. Appellant's sole contention on appeal is that Williams is a "renter pilot" within the meaning of subsection III of the printed portion of the policy and is therefore excluded from coverage.*fn2 That subsection reads:

[ 418 Pa. Page 32]

"III Definition of 'Insured' (Coverages A.B.C. D and E).

"With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and also includes any person while using the aircraft and any person or organization legally responsible for the use thereof, provided the actual use of the aircraft is by the named insured or with his permission. The insurance with respect to any person or organization other than the named insured does not apply : . . . (c) to a student or renter pilot or anyone operating the aircraft with the actual or implied knowledge or consent of a renter pilot." (Emphasis supplied.)

Other sections of the policy, both printed and typewritten, contain language broad enough to extend coverage to Williams. Under the heading of "Exclusions", the policy provides: "This Policy Does Not Apply: . . . (d) while the aircraft is being operated in flight by any pilot other than the pilot(s) named or described in Item 8 of ...


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