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KEYSER v. CONNECTICUT GENERAL LIFE INS.

September 26, 1985

NANCY P. KEYSER, PLAINTIFF,
v.
CONNECTICUT GENERAL LIFE INSURANCE CO., DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Nancy Keyser ("Mrs. Keyser") seeks to recover from Connecticut General Life Insurance Co. ("Connecticut General") the proceeds of an accidental death indemnity rider to a life insurance policy on the life of Mrs. Keyser's son, John F. Keyser ("John Jr.").*fn1 Each litigant has moved for summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, Mrs. Keyser's motion is denied and Connecticut General's is granted.

Facts*fn2

In 1980 Connecticut General issued a $50,000 ordinary life insurance policy to John Jr., with his father John E. Keyser ("John Sr.") and Mrs. Keyser as co-beneficiaries. As is frequently the case, the policy contained a $50,000 "accidental death benefit" rider payable in case of John Jr.'s death "as a result of bodily injury effected directly . . . through external, violent and accidental means." Among the limitations on the accidental death benefit was the one at issue in this case:

  The insurance under this rider also does not cover
  death caused by . . . (g) travel or flight in any
  aircraft while the Insured is a pilot or member of
  the crew of such aircraft, or while the aircraft is
  operated for aviation training or experimental
  purpose. . . .

Upon the death of John Jr., Connecticut General paid the basic $50,000 coverage to Mrs. Keyser but refused to pay the accidental death benefit.

John Jr. was killed when a single-engine two-seat Pitts S-2A biplane (the "Pitts"), which he and his wife owned, crashed into Lake Michigan. At the time of the crash John Jr. and John Sr., both licensed pilots, were in the Pitts, John Jr. occupying the rear seat and John Sr. the front. Lloyd Reinhardt ("Reinhardt"), a friend and frequent flying companion of the Keysers who had flown in the Pitts, testified*fn3 the plane had a full set of controls at each seat and could be piloted from either without mechanical adjustment or special prearrangement. Typically the person controlling the plane would simply say to the other person, "You got it" or "It's yours," and the other person would take over (Dep. 71, 83-84). Despite the dual controls, the rear seat is normally considered to be the pilot's seat, both because the visibility is better from that seat (Dep. 69, 86-87) and because the ignition switch is there (Dep. 72).

Reinhardt ran into John Jr. in the lounge of the Waukegan airport on the afternoon of August 20, 1983. Reinhardt suggested they go flying (Dep. 14-15). After John Sr. arrived at the airport about a half hour later, they agreed to take off (Dep. 17-19). No flight plans were filed (none was required).

Reinhardt took off first in his own plane, followed by the Keysers in the Pitts. They flew over Lake County, Illinois, keeping both visual and radio contact between the two planes. Both Keysers spoke over the radio to Reinhardt at various times during the flight (Dep. 32-33). At one point John Jr. said they were circling over the home of some of his friends near Fox Lake (Dep. 33-34). Then John Jr. suggested the planes fly to Racine, Wisconsin, which they did (Dep. 34-36).

Once the planes reached Racine, Reinhardt announced he was returning to Waukegan for an appointment. Both planes turned south along the shore of Lake Michigan, and after a few minutes Reinhardt headed west toward the airport. He last saw the Pitts flying level and pointed straight south (Dep. 43). One of the Keysers said, "We're going up," but Reinhardt could not tell which one had spoken because the radio was unclear (Dep. 42-43). Reinhardt had no further radio contact with the Pitts, for he switched his radio to the frequency used to announce arrival at the airport (Dep. 43).

According to a written statement given to the National Transportation Safety Board ("NTSB") by William O'Brien ("O'Brien"), an eyewitness standing on the lake shore, the Pitts passed him overhead shortly after Reinhardt's plane. Then the Pitts climbed straight vertically for some 250 feet, leveled off for about a second, then dropped, nose first, straight downward. It did two aileron rolls*fn4 with a slight pause between them, then entered the water. Both Keysers were killed.

Mrs. Keyser's Motion

Mrs. Keyser advances a series of propositions in support of her summary judgment motion:

    1. John Jr. unquestionably died from bodily injury
  resulting from an accident, the conditions triggering
  payment of the accidental death benefit.
    2. Because the policy rider's exclusionary clause
  is an affirmative defense against payment,
  Connecticut General would bear the ...

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