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DABURLOS v. COMMERCIAL INS. CO.

September 10, 1974

Kathleen E. Daburlos
v.
Commercial Insurance Company Of Newark, New Jersey and Fidelity and Casualty Company of New York



The opinion of the court was delivered by: GREEN

 GREEN, J.

 I

 This is a diversity action based upon four policies of airline trip insurance which were issued by the defendants to Kenneth and Shirley Daburlos who named the plaintiff as beneficiary on the policies. Previously, both parties had moved for summary judgment and the court denied the same. Subsequently, this case was tried to the court without a jury.

 The court denied summary judgment primarily because from the evidence we believed that a crucial factual issue appeared, though incompletely developed, and the court could not, sua sponte, draw inferences on the evidence against either party. We now grant judgment for the plaintiff. *fn1"

 II

 On May 19, 1968, the policies in question were purchased by Kenneth and Shirley Daburlos at the companies' insurance counter at Philadelphia International Airport. Both Mr. and Mrs. Daburlos purchased two policies, one from each defendant, each has a principal sum of $75,000 and the premium for each was $2.50. After purchasing the insurance policies, Mr. and Mrs. Daburlos mailed them to the plaintiff - beneficiary in an envelope provided by defendants with the policies. Then, the Daburloses flew from Philadelphia to Los Angeles as scheduled.

 On May 22, 1968, Mr. and Mrs. Daburlos each purchased a "sky-tour" round trip ticket from Los Angeles Airways, Inc. (LAA) at Los Angeles International Airport (LAIA) for flights from Los Angeles Airport to Anaheim/Disneyland and return. They made an uneventful flight from LAIA to Anaheim/Disneyland. However, while they were passengers on the return flight from Anaheim/Disneyland to LAIA, the helicopter, in which they were riding, crashed and they were killed, at approximately 5:55 P.M. on May 22, 1968.

 III

 All four insurance policies involved are identical. They contain, at the top, blocks for the identification of the insured and the beneficiary. In addition, there is one block space for point of departure and one block space for point of destination and one of two squares to be checked indicating a one way or a round-trip ticket. On each policy, Philadelphia was listed as the point of departure and Los Angeles as the point of destination and the trip designated as on a round-trip ticket. Immediately above these blocks appears the following: "I hereby apply to Company named below for Scheduled Air Carrier (Airline) Trip Insurance to insure me on one airline trip between the Point of Departure and Destination shown below."

 The principal clauses of the policy, as relevant here are as follows:

 
"2. INSURING CLAUSE: Ticket Or Pass Requirement. The Company will pay the benefits specified below if during the term of this policy the Insured suffers loss resulting directly and independently of all other causes from accidental bodily injury (hereinafter referred to as 'such injury'), sustained under circumstances specified below during the first one-way or round trip flight taken by the Insured after the purchase of this policy on Aircraft Operated by a Scheduled Air Carrier as defined below from the Point of Departure to the Destination, both shown above, and return if round trip ticket is obtained before leaving said Point of Departure, provided that at the time that the Insured sustains such injury he is traveling on a ticket or pass covering the whole of said airline trip, issued to him for transportation on an Aircraft Operated by a Scheduled Air Carrier. A ticket issued to the Insured aboard such aircraft after leaving the Point of Departure but before reaching the first scheduled stop of such aircraft shall be deemed to have been issued before leaving the Point of Departure.
 
3. SUBSTITUTE TRIP COVERED IF TICKET EXCHANGED. In case of a change in the itinerary of said first airline trip referred to in Section 2 above, following issuance of this policy and after the Insured has left the Point of Departure on said trip, the insurance afforded as set forth in Section 2 above shall no longer apply on the original itinerary but shall apply on the new itinerary in the same manner and to the same extent as it would have applied on the original itinerary, provided that (1) the transportation ticket or pass issued to the Insured for said first airline trip prior to his leaving the Point of Departure has been exchanged for another ticket or pass issued for transportation on an Aircraft Operated by a Scheduled Air Carrier on the substituted trip and (2) the Point of Departure is the same as that shown above and (3) at least one other stop on the new itinerary is a stop that was scheduled on the original itinerary for said first airline trip.
 
4. DEFINITION AND DELIMITATION OF COVERAGE. This policy applies only to such injury sustained by the Insured during such first or substituted airline trip referred to in Sections 2 and 3 above. . . ."

 These three provisions are on the front of the policy. Superimposed over these clauses, primarily clause 3, appear the following words, which are printed in half-inch high letters, outlined in red ink:

 "THIS IS A LIMITED POLICY READ IT CAREFULLY."

 The other relevant provisions of the policy are printed on the back of the policy.

 
"6. POLICY TERM. This insurance shall commence on the day and hour shown above and shall terminate either upon completion of the above described airline trip or upon expiration of, or surrender for refund or credit of, the transportation ticket hereinbefore referred to but in ...

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