United States District Court, Northern District of Illinois, E.D
September 26, 1985
NANCY P. KEYSER, PLAINTIFF,
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.
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'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 ultimate burden of
proof at trial.
3. It will never be known who was piloting the
plane at the time of the crash, for either John Jr.
or John Sr. could have been controlling the Pitts.
4. Connecticut General has offered neither (a) any
evidence that John Jr. was the pilot nor (b) any
basis from which this Court may presume he was the
Though the first three of those assertions are true, they fail in
the aggregate — both because the fourth assertion is wrong and
because, in any event, the assertions are not fully exhaustive in
It is basic to Rule 56 jurisprudence that the movant bears the
burden of demonstrating the absence of a genuine issue
of material fact. Korf, 726 F.2d at 1226. Where that burden is
not met, summary judgment cannot be entered even if the opposing
party fails to respond to the motion. Big O Tire Dealers, Inc. v.
Big O Warehouse, 741 F.2d 160, 163 (7th Cir. 1984). But once the
burden has been met, the opponent must come forward with specific
facts showing the existence of a genuine and material factual
issue. Id. at 163.
As Mrs. Keyser has (inaccurately) framed the dispute, one
factual question would be dispositive of this litigation: whether
or not John Jr. was piloting the Pitts at the time of the crash.
If he were, of course, payment of the accidental death benefit
would be precluded. But if he were not, two questions would still
1. whether he was a "member of the crew of such
aircraft"*fn5 at that time; and
2. even if he were not, whether the exclusionary
clause bars coverage so long as John Jr. was "a pilot
or member of the crew" of the Pitts at any time
during its fatal flight.
Any uncertainty on either score (subjects not addressed by Mrs.
Keyser's analysis) would be fatal to her motion. And it scarcely
requires discussion to conclude there is at least uncertainty in
Nonetheless, because Mrs. Keyser advances her position so
earnestly, this opinion will deal with matters (only arguendo) on
her terms — as though identity of the pilot at the time of impact
were the controlling question. Again, Mrs. Keyser does not say
John Jr. was not the plane's pilot. Rather she says Connecticut
General cannot prove he was, which it must do to defeat her
It is to that end she urges we will never know for certain who
was the pilot, given the dual-control design of the Pitts. Lack
of certainty, however, does not convert an issue into a
non-issue. While at trial Connecticut General would bear the
burden of proving John Jr. was the pilot (and thus, in the
absence of any evidence at all, would lose on Mrs. Keyser's
thesis), its burden is only the burden of proof by a
preponderance, or the "greater weight," of the evidence.
Sundquist v. Hardware Mutual Fire Insurance Co., 371 Ill. 360,
365, 21 N.E.2d 297, 300 (1939).
Mrs. Keyser has offered no evidence whatever tending to prove
John Jr. was not the pilot when the plane crashed. Conversely,
from such evidence as there is, inferences may be drawn favorably
to Connecticut General tending to prove he was. John Jr. owned
the plane. He sat in the rear seat, normally where the pilot
would sit. It was he who suggested to Reinhardt that the two
planes set a course for Racine. While there appears to be no
Illinois case in point, other jurisdictions have looked at
similar factors in determining that the identity of the pilot in
the crash of a small dual-control airplane was properly for the
Thus Insurance Co. of North America v. Butte Aero Sales &
Service, 243 F. Supp. 276, 281 (D.Mont. 1965) pointed to such
factors as ownership of the plane, the seat occupied by the
putative pilot and radio contact made by the putative pilot with
the airport. While the court acknowledged the impossibility of
knowing to an absolute certainty who was the pilot, it held those
facts formed a sufficient basis for a jury's verdict.
More factors were available to the court in Todd v. Weikle,
36 Md. App. 663, 376 A.2d 104 (1977). There too a jury question was
found in evidence as to the seat occupied by the putative pilot,
the fact he had made radio contact with the control tower shortly
before the accident, the fact he owned the plane and was the more
experienced of the two potential pilots, the facts the other
pilot had no experience with instrument flying and weather
conditions were such as to require instrument flying
and the fact the instruments themselves were in front of his
seat. 376 A.2d at 109-11.
Connecticut General does not rest wholly on ownership, seat
location (including the placement of the engine controls at John
Jr.'s seat) and radio communication to establish the triability
of the issue. It has submitted the affidavit of University of
Illinois Professor Weldon Garrelts, who declares himself an
expert on aviation accidents (and whose credentials are adequate
to permit opinion testimony on the current summary judgment
motions). Based on the statement of eyewitness O'Brien, Professor
Garrelts opines that the Pitts was engaged in an aerobatic (or
"stunt") maneuver at the time of the crash. That is relevant
because both Reinhardt and Mrs. Keyser stated John Jr. was an
aerobatic pilot (Reinhardt said he was "excellent," better than
Reinhardt himself, Dep. 62) while John Sr. was not — he was, in
Reinhardt's words, "against" aerobatics (Dep. 62; and see Nancy
Keyser Dep. 9). Given the strong evidence that if the Pitts were
flying an aerobatic maneuver John Jr. would have been the pilot,
it would surely be for the jury to decide whether or not the
steep climb, the steep descent and the aileron rolls described by
O'Brien amounted to such a maneuver.
Even apart from her wrong turn at the outset, Mrs. Keyser has
surely not met her burden of establishing there is no issue of
material fact. Beyond that, Connecticut General has pointed to
facts creating reasonable inferences that would render triable
even Mrs. Keyser's question: whether or not John Jr. was the
pilot of the airplane at the time of the crash. Accordingly Mrs.
Keyser's summary judgment motion must be and is denied.
Connecticut General's Motion
Connecticut General begins by focusing on the policy language
Mrs. Keyser chooses to ignore: It argues Jack Jr. (whether or not
he was actually piloting the Pitts at the time of the crash) must
as a matter of law be considered a "member of the crew" for
purposes of the rider's exclusionary clause. Because the policy
does not define "crew" or "member of the crew," Mrs. Keyser
retorts the clause is ambiguous. She therefore invokes the
principle calling for ambiguities in insurance contracts to be
construed in favor of the insured. See, e.g., FSC Paper Corp. v.
Sun Insurance Co. of New York, 744 F.2d 1279, 1282 (7th Cir.
It is true Connecticut General could have chosen to define
"member of the crew," just as it defined "military or naval
service" and "war," terms that appear in another provision of the
exclusionary paragraph (this time clause (h)). That fact — the
insurer's ability, in drafting the contract of insurance, to
define such potentially problematic provisions — is part of the
basis for the role of construing ambiguities against the insurer.
Wahls v. Aetna Life Insurance Co., 122 Ill. App.3d 309, 313, 77
Ill.Dec. 843, 847, 461 N.E.2d 466, 470 (1st Dist. 1983).
Nevertheless, neither the mere absence of a policy definition
nor the presence of a dispute as to the meaning of the provision
necessarily renders it ambiguous as a matter of law. Western
Casualty & Surety Co. v. Brochu, 105 Ill.2d 486, 495, 86 Ill.Dec.
493, 497, 475 N.E.2d 872, 876 (1985) put it simply:
If the words of a policy can reasonably be given
their plain, ordinary, and popular meaning, the
provisions shall be applied as written and the
parties should be bound to the agreement they made.
No Illinois court appears to have had occasion to deal with any
airplane exclusionary clause to accidental death benefit policies
in any context relevant here: either by construing "crew member"
language or by deciding as of what time the "pilot" or "crew
member" determination must be made. However, courts elsewhere
have looked at some facets of like phrases, with mixed results.
In some cases the problem has been whether the "crew" embraces
whose duties are connected with flying the plane or also extends
to persons engaged in other activities for which the plane
provides only transportation. See, e.g., American Casualty Co. v.
Mitchell, 393 F.2d 452, 457 (8th Cir. 1968) (participant in a
Civil Air Patrol flight, whose duty was to observe the ground for
evidence of a prior plane crash, held not a "member of the crew"
for exclusionary clause purposes); New York Life Insurance Co. v.
Atkinson, 241 F.2d 674, 675-76 (10th Cir.), cert. denied,
353 U.S. 959, 77 S.Ct. 865, 1 L.Ed.2d 910 (1957) ("observer" on an
oil-exploration flight, whose only duties were to operate
prospecting equipment, held not a "member of the crew" under
That problem, of course, is clearly not posed here. There is
nothing whatever to indicate John Jr. was performing some sort of
airborne mission apart from flying or helping to fly the plane.
Another and more relevant issue — one producing divergent lines
of authority — has been whether the exclusionary clause is
triggered by a person's status as a pilot or crew member during
a flight, or solely by his or her active conduct of pilot or
crewmember duties at the moment the crash occurs. Alliance Life
Insurance Co. v. Ulysses Volunteer Fireman's Relief Association,
215 Kan. 937, 529 P.2d 171, 179-80 (1974) construed language
excluding coverage "while piloting or serving as a crew member"
in favor of the beneficiary, holding coverage excluded only if
the insured were performing as a pilot or crew member at the
moment of the crash — a factual burden of proof the insurance
company conceded it could not meet. Vander Laan v. Educators
Mutual Insurance Co., 356 Mich. 318, 97 N.W.2d 6, 7-9 (1959),
relied on heavily by Mrs. Keyser, also construed exclusionary
language written in an active voice ("while operating . . . or
serving as a member of the crew. . . .") to require the insurance
company to prove the insured's activity at the time of impact. On
the other hand, Travelers Insurance Co. v. Warner, 169 Colo. 391,
456 P.2d 732 (1969) held exclusion from coverage of "any
person . . . serving as a member of a crew of . . . an aircraft"
posed a question of the insured's status during the whole flight,
not merely his actions at the moment of impact. Warner, 456 P.2d
at 734 defined a "crew" as "a company of two or more persons
associated for the purpose of operating an aircraft between
different points or during a certain time interval." Thus Warner
excluded coverage of a person in a dual-control plane, where
there was no actual proof of what that person was doing at the
moment of impact.
In this Court's view, it is perhaps conceivable to read such
active language as that in Ulysses and Vander Laan ("while
piloting or serving" and "while operating or serving") in a
narrow temporal sense — requiring proof of performance at the
actual moment of impact. But any such reading strains common
sense about as far as it can go. Connecticut General's policy
language ("travel or flight in any aircraft while the Insured is
a pilot or member of the crew. . . ."), written in status terms,
cannot fairly be stretched so far. It would be unreasonable to
construe a clause written in such language to require actual
performance of a duty at the moment of death. Le Breton v. Penn
Mutual Life Insurance Co., 223 La. 984, 67 So.2d 565, 570 (1953);
see also Beckwith v. American Home Assurance Co., 565 F. Supp. 458,
461-62 (W.D.N.C. 1983) (rejecting the Vander Laan "moment of
impact" test and holding a person who at some point during the
flight had piloted the plane did not become a "passenger" when
another person took over the controls). Otherwise a pilot or a
crew member would be included in or excluded from coverage on a
moment-to-moment basis during each flight, according to what he
or she happened to be doing. And given the real-world context of
small-aircraft fatal crashes, with the almost universal
impossibility of eyewitness testimony as to an insured's
moment-of-crash conduct, such a rule would effectively read the
exclusion right out of the policy. That is
just not a common-sense or fair reading of the Connecticut
Although neither litigant has focused at all on the remaining
language of exclusion clause (g) (no doubt because it does not
apply directly to the circumstances of the Keysers' flight), that
language is also strongly corroborative of the reading this
opinion has given to the critical provision. Clause (g) also
excludes from coverage "travel or flight in any aircraft . . .
while the aircraft is operated for aviation training or
experimental purpose." It would be a truly odd construction to
read that provision as hinging coverage on the activity at the
precise moment of the crash (again such activity is a fact that
the insurer, in drafting the policy, would have had to anticipate
as unknowable in virtually every case of accidental death due to
an airplane crash), as distinct from the general purpose of the
flight. Once again it is abundantly clear the focus of the clause
is on the first phrase ("travel or flight in any aircraft") in
the sense of the insured's being on such a flight, rather than on
any temporal moment-of-crash determination. That too bespeaks a
"status" question, and under principles of parallel construction
it confirms the same meaning to be ascribed to the clause
involved in the present dispute.
All of this compels the conclusion that the exclusionary clause
is not ambiguous in terms of its looking to the status of the
insured during the flight rather than his actions at the moment
of the fatal crash. That means unless some ambiguity in the terms
"a pilot or member of the crew" forces the latter question to a
jury determination, the application of those terms to a given set
of facts is a matter of law. National Tea Co. v. Commerce &
Industry Insurance Co., 119 Ill. App.3d 195, 199-200, 74 Ill.Dec.
704, 708, 456 N.E.2d 206, 210 (1st Dist. 1983). It only remains
to be considered, then, whether a "genuine issue of material
fact" exists as to John Jr.'s status as "a pilot or member of the
crew" on the Pitts.
For its purposes the Federal Aviation Administration ("FAA")
has defined "crewmember" as "a person assigned to perform duty in
an aircraft during flight time." 14 C.F.R. § 1.1. "Pilot" is not
defined in the regulations, but "pilot in command" means "the
pilot responsible for the operation and safety of an aircraft
during flight time." Id. That definition is significant because
a private pilot may log time as a "pilot in command" only when he
or she is the "sole manipulator of the controls of an aircraft
for which he is rated." 14 C.F.R. § 61.51(c)(2).
While not determinative of this contractual dispute, those
definitions offer guidance as to the usage of such terms in the
aeronautics industry. If John Jr. were at the controls of the
Pitts at any time during its flight, he unquestionably had duties
on that aircraft "during flight time," thus bringing him within
FAA's conception of "crewmember" (indeed, in a two-seater
aircraft with dual controls, he would be the "pilot in command"
during that part of the flight). Alternatively, if John Sr. were
at the controls and John Jr. performed any duties at his
direction, he would also be a "crewmember" in this sense. See
also Warner, 456 P.2d at 734 (defining crew member as "a company
of two or more persons associated for the purpose of operating an
aircraft between different points or during a certain time
Even though a small plane like the Pitts cannot be said to have
a "crew" in the manner of a jet airliner,*fn6 on the facts as
presented it would be totally unreasonable for any trier of fact
to infer that John Jr. neither served as pilot at the controls
nor carried out any functions at the direction of John Sr. if and
when John Sr. was at the controls (the latter itself representing
an attenuated inference). It must be remembered a summary
judgment motion compels only reasonable inferences, not unduly
strained ones. Hermes, 742 F.2d at 353.*fn7
There is thus no doubt — even in inferential terms — that John
Jr., if not actually at the controls at the moment of impact, was
"a pilot or member of the crew" of the Pitts, or both, during its
flight on August 20, 1983. And it is implicit in this analysis
that the contractual language presents no ambiguity in its
application to the present situation, so that the issue is one of
law for this Court, not one of fact for a jury. Were John Jr.
neither "a pilot" nor "a member of the crew," that would leave
open only status as a mere passenger, and no reading of the
facts, however favorably to Mrs. Keyser, sensibly supports this
Warner, 456 P.2d at 734 also pointed to the insured's ownership
of the plane and operation of the radio during the flight as
bringing him within the common conception of a crew member. Those
factors (and more) apply to John Jr. as well. True enough, the
combination of his opportunity and his right (as owner) to
operate the plane might not necessarily create a presumption of
operation — of his being the "pilot." But once again the "pilot"
is only part of the inquiry. Even were John Jr. not the pilot at
any point during the flight (and, it must be repeated, whatever
evidence exists renders his having piloted the aircraft during
the flight the far more likely circumstance), he was at a minimum
engaged in activities that have led courts to categorize
decedents as "crew members." Other factors that might be
relevant — who filed the flight plan, who received clearance for
take-off and who radioed for help — are simply inapplicable in
this case, for none of those things was done. Their absence from
consideration does not show there was no crew in the common sense
of the term under the circumstances of this flight.*fn8
Finally, it is worth noting John Jr.'s activity in the Pitts on
the day of the crash is precisely the sort of extra-risk position
the policy's exclusionary clause must have been intended to
exclude. Although questions of intent in contract construction
are generally for the jury, Fitzsimmons v. Best, 528 F.2d 692,
694 (7th Cir. 1976) (per curiam), Mrs. Keyser has raised no
factual issue as to the intent of the parties, nor does she
present any facts from which a trier of fact might infer John
Jr.'s role on the flight was wholly and purposely passive.
Indeed, every reasonable inference is otherwise. He sat in the
rear — or "pilot's" — seat, which had the ignition switch, he was
active on the radio, and the only suggestion as to the itinerary
(to go to Racine) was his. Though the exclusionary clause might
perhaps have been more specific or detailed, no triable issue of
fact is raised by the briefs or affidavits as to the parties'
Mrs. Keyser's motion for summary judgment is denied. Even on
Mrs. Keyser's own impermissibly narrow approach, addressing only
the "pilot" question as of the time of impact (and ignoring
entirely the policy's "member of the crew" language), there is at
least a material issue of fact on that score.
When the entire exclusionary clause and its fair meaning are
taken into account, any material fact issue vanishes. Though
there are some factual uncertainties, they are not
"outcome-determinative," Big O, 741 F.2d at 163. As a matter of
law John Jr. was either "a pilot" or a "member of the crew" of
the Pitts airplane during its fatal flight, so that the policy's
exclusionary clause bars coverage. There is thus no genuine issue
of material fact, and Connecticut General is entitled to a
judgment as a matter of law. This action is dismissed with