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MATTES v. NATIONAL FID. LIFE INS. CO.

October 2, 1980

Roger MATTES, Executor of the Estate of Vincent M. Kerrigan, Plaintiff,
v.
NATIONAL FIDELITY LIFE INSURANCE COMPANY and Aviation Insurance Agency, Defendants



The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

I. FACTS

 This case concerns the liability of two insurance companies under an occupational "Disability Plan." Plaintiff Roger Mattes, Esq., is the executor for the estate of Vincent M. Kerrigan, a deceased Pan American Airlines pilot. The complainant claims the right to recover $ 75,000.00, the proceeds from an insurance policy that the decedent purchased from the defendants in 1974. According to the companies, liability is precluded by an exclusion *fn1" contained in the terms of the agreement. Both the plaintiff and the defendants have requested summary judgment. Resolution of these motions requires a close review of the facts. *fn2"

 The January 1974 Issue of Aviation Medical Bulletin carried an advertisement offering active airline pilots a special insurance policy. *fn3" One side of the page consisted of a picture caricaturing Father Time, replete with hourglass and sickle. The ad contained the following wording opposite the cartoon:

 
TIME WAITS FOR NO MAN. NOT EVEN PILOTS. Just a year ago this old bird was a baby. And we hope he was good to you in "73.
 
We also hope your financial circumstances are in good shape for "74. If they're not if the time has slipped by and you're interested in additional coverage get in touch with us. Now.
 
We offer the Watt Plan-airline pilot occupational disability coverage from $ 25,000.00 to $ 75,000.00. It's coverage that pays the entire dividend in one tax-free, lump sum (after the specified waiting period) if you're permanently prevented from flying for your airline for medical reasons. (Of course, preexisting conditions are not covered)
 
Here's another way you can keep up: If you're a new-hire, you can have our full coverage for half-price (a 50% reduction in your premiums) during your first two years with your airline.
 
For more information, write to Harvey W. Watt, P.O. Box 20787, Atlanta Airport, Atlanta, Georgia 30320. Or call 767-7501. If you're outside Georgia, call toll free: (800) 241-6103. Aviation Insurance Agency.

 In December 1978, Mr. Kerrigan contracted stomach cancer. All parties to the litigation agree that the disease permanently precluded the insured from continuing in his position with Pan American. *fn6" He died on March 9, 1979. The Disability Plan issued by the defendants extended coverage to any insured "permanently prevented from carrying on his occupation as an airline pilot." See the attachment to Document 1 of the Record. The executor demands recovery on the grounds that the latter condition was fulfilled. The defendants, nevertheless, rely on a special provision in the Disability Plan. Condition 6 of the Agreement states the following:

 
No claim shall be payable by reason of the death of the insured. In the event death occurs after the expiration of twelve months continuous and uninterrupted medical suspension from flight status, and after the medical referees have determined that disability exists, as provided in Conditions 1, 3, and 4 above, any payment due under this policy shall be made to the estate of the Insured.

 National Fidelity and Aviation contend that this clause totally absolves them from liability.

 In the view of the defendants, the sixth condition dispels the idea that the Disability Plan was in any way a life insurance policy. The language states that "no claim shall be payable by reason of the death of the Insured." On this basis, the insurance companies argue that the paragraph excluded coverage for the misfortune that befell Mr. Kerrigan. National Fidelity and Aviation also maintain that the provision limits protection to instances in which the insured suffers from a "disability lasting twelve months." See Document 17 of the Record at 2. The decedent's incapacitation did not last a year, because he died four ...


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