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.
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
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
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 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 ...