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PAULINE LOOMER v. M.R.T. FLYING SERVICE (05/02/89)

filed: May 2, 1989.

PAULINE LOOMER, EXECUTRIX OF THE ESTATE OF WALTER LOOMER, LOUISE MILLER, ADMINISTRATRIX OF THE ESTATE OF DONALD MILLER
v.
M.R.T. FLYING SERVICE, INC., CESSNA AIRCRAFT AND JAMES D. MILLER, T/A MILLER AVIATION. APPEAL OF PAULINE LOOMER, EXECUTRIX OF THE ESTATE OF WALTER LOOMER



Appeal from the Order entered February 25, 1988, in the Court of Common Pleas of Bradford County, Civil No. 277 July Term 1976.

COUNSEL

Richard F. Stevens, Allentown, for appellants.

Edward C. German, Philadelphia, for appellees.

Wieand, McEwen and Olszewski, JJ.

Author: Olszewski

[ 384 Pa. Super. Page 246]

Pauline Loomer, executrix of the estate of Walter Loomer, appeals from an order of the Court of Common Pleas of Bradford County, entitling Loomer to the insurance coverage provided to a "passenger" pursuant to the terms of an insurance policy.

On September 20, 1975, Walter Loomer was piloting an aircraft leased to him by the M.R.T. Flying Service, Inc. ("MRT"). The plane was also occupied by Donald Miller and David Lennington. Due to a defective fuel tank, the fuel began leaking from the plane. In response, Loomer made an emergency landing in a field. The landing resulted in the death of Loomer and the front seat passenger, Miller.

Thereafter, Pauline Loomer brought suit against MRT. Following a lengthy jury trial, Pauline Loomer obtained a verdict in the amount of $708,306.00. The court then granted Mrs. Loomer an additional $186,870.00 for delay damages against MRT.

Following the exhaustion of all appellate remedies by MRT, Pauline Loomer filed a writ of execution against MRT, joining Gulf Insurance Company ("Gulf") and Aviation Adjustment Bureau, Inc., as garnishees. Gulf had written the original insurance policy in question. The policy provided a maximum coverage in the amount of $50,000 ($50,000 each person; $150,000 each occurrence) for each passenger injured as a result of an occurrence arising out of the use of the aircraft under Coverage "C" in the policy.

[ 384 Pa. Super. Page 247]

Coverage "A" of the policy, however, provides maximum coverage in the amount of $100,000 ($100,000 each person; $300,000 each occurrence) for non-passengers. Accordingly, the issue before the trial court was whether Loomer, the pilot of the airplane, was entitled to insurance coverage as a passenger ($50,000) or as a non-passenger ($100,000), pursuant to the terms of the insurance policy provided by Gulf. In addressing this issue, the trial court determined that Loomer was both a pilot and passenger since he was on the aircraft for the purpose of riding therein. Subsequently, Mrs. Loomer filed the instant appeal.

On appeal, Mrs. Loomer contends that the trial court erred in holding that her husband was a passenger. She argues that her husband, who was commanding, flying, operating, navigating, and otherwise controlling the aircraft, was not on the airplane for the purpose of merely riding therein and, as such, should not be placed in the same category as the other two occupants of the plane.

The construction of an insurance policy is a question of law which must be resolved by the courts. Timbrook v. Foremost Insurance Co., 324 Pa. Super. 384, 471 A.2d 891 (1984). Initially, this Court must determine whether the terms of the insurance contract are ambiguous. Musisko v. Equitable Life Assurance Society, 344 Pa. Super. 101, 496 A.2d 28 (1985). A provision of an insurance contract is "ambiguous" if reasonably intelligent people could differ as to its meaning. Musisko, supra. Where a provision of an insurance policy is ambiguous, it will be construed in favor of the insured. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). Where the terms of the insurance contract are not ambiguous, however, this Court must read the policy in its entirety and give the words therein their plain and proper meanings. Koval v. Liberty Mutual ...


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