Summary
In Butche, the Ohio Supreme Court held that damage to an airplane caused by the wind while the airplane was taxiing was a covered loss even though the policy insured against losses to aircraft caused by wind but did not cover losses caused by taxiing an airplane.
Summary of this case from Hartman v. Erie Ins. Co.Opinion
No. 37394
Decided December 28, 1962.
Insurance — Liability — Construction of policy — Loss covered — Exclusions from certain coverage provision — Language of policy selected by insurer — Construed favorably for insured.
1. Where a loss would be covered by more than one of the coverages provided for in an insurance policy form, a policy on that form will cover that loss although it may provide for only one of those coverages.
2. Where a policy of insurance prepared by an insurer provides generally for a certain coverage, exclusions from such coverage must be expressly provided for or must arise by necessary implication from the words used in the policy.
3. Policies of insurance, which are in language selected by the insurer and which are reasonably open to different interpretations, will be construed most favorably for the insured.
APPEAL from the Court of Appeals for Franklin County.
This action was instituted in the Columbus Municipal Court to recover on an insurance policy insuring plaintiff against liability for damage to property resulting from certain specified risks.
Attached to the policy is a "hangar keepers liability endorsement" stating that the policy is "extended to apply with respect to liability imposed upon the insured * * * for * * * damage to aircraft * * * which are the property of others and in the custody of the insured for storage, repair or servicing, and on or about the premises described in the declarations * * * as occupied by the named insured."
This endorsement provides further that "the insurance afforded by this endorsement is only with respect to such and so many of the following coverages as are indicated by a specific premium charge or charges." Thereafter the following, among other "coverages," are specifically set forth:
"B. Windstorm * * *.
"* * *
"E. Taxiing, i.e., damage occurring while the aircraft is moving under its own power on taxi ways or ramps of the premises described in the declarations for the purpose of moving the aircraft about the premises, but not while taxiing into position for take-off or while taxiing from landing area after landing."
A specific premium charge is indicated for each of the coverages except coverage "E" with respect to which the word "Nil" was indicated under the heading, "premium."
In the margin, next to these descriptions of "coverages" and the premiums charged therefor, is the following:
"The word `nil' in any premium space shall mean that insurance is not afforded with respect to the coverage opposite thereto."
Plaintiff had agreed to do some work on a plane, had completed a flight test of the plane, and was engaged in getting it back to plaintiff's hangar when the wind picked up the tail of the plane and turned it over onto its nose and left wing tip and thereby damaged it.
A judgment for $1,471.94 was reversed by the Court of Appeals and final judgment was rendered for defendant. In rendering its judgment, the Court of Appeals stated that the plane was "taxiing" when damaged and that the policy provided no coverage for a plane while taxiing.
The cause is now before this court on appeal from that judgment of the Court of Appeals and pursuant to allowance of defendant's motion to certify the record.
Mr. Walter J. Siemer, for appellant.
Messrs. Hamilton Kramer and Mr. E. Bruce Hadden, for appellee.
In view of the conclusion which we have reached, it is not necessary for us to consider whether the Court of Appeals was correct in determining that the plane was "taxiing" at the time it was damaged. We will assume that it was. However, we cannot agree with the conclusion of the Court of Appeals that the policy provided no coverage on account of "windstorm" damage to a plane while such plane was "taxiing."
There is no express provision of the policy excluding "windstorm" coverage during "taxiing" operations. Although the marginal notation, as to the meaning of the word "nil" in the premium space opposite the policy provisions for "taxiing" coverage, requires the conclusion that "insurance" was "not afforded with respect to * * * taxiing," nothing stated in the policy requires the conclusion that the "windstorm" coverage provided for in the policy was not to apply during "taxiing" operations. Where a loss would be covered by more than one of the coverages provided for in an insurance policy form, a policy on that form will cover that loss although it may provide for only one of those coverages.
Where a policy of insurance provided by an insurer provides generally for a certain coverage, exclusions from such coverage must be expressly provided for or must arise by necessary implication from the words used in the policy. This follows from universal holdings that policies of insurance, which are in language selected by the insurer and which are reasonably open to different interpretations, will be construed most favorably for the insured. Home Indemnity Co. v. Village of Plymouth (1945), 146 Ohio St. 96, 64 N.E.2d 248.
As defendant contends, even if the reasons given by the Court of Appeals for a judgment are erroneous, that judgment should be affirmed if it is correct for other reasons.
Thus, in support of the judgment of the Court of Appeals, defendant contends that the policy involved in the instant case provides coverage only for damage "on or about the premises described in the declarations * * * as occupied by the named insured"; and that the damage here involved was not such damage because it occurred nearly 2,000 feet from the hangar occupied by plaintiff.
In the "declarations" under the heading "location of premises covered by this policy" are the words "Sullivant Avenue Airport, 6 mi W.S.W., Columbus, Ohio." Next to this and under the heading "portion of premises occupied by named insured" are the words "that portion of the hangar designated as 3863 Sullivant Avenue occupied by" plaintiff.
Admittedly, the damage occurred on the "Sullivant Avenue Airport" which the policy form indicates as "covered." Even though the place where the damage occurred was not in the "portion of the hangar * * * occupied by" plaintiff and so not "on * * * the premises * * * occupied by the named insured," it can reasonably be said that that place was "about" those occupied premises. Therefore we are of the opinion that the damage to the plane in the instant case did occur "on or about the premises occupied by" plaintiff, within the meaning of those words as used in the policy whose language had been selected by defendant. See Home Indemnity Co. v. Plymouth, supra ( 146 Ohio St. 96). It follows that the judgment of the Court of Appeals must be reversed and the judgment of the Municipal Court must be affirmed.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, CRAWFORD, O'NEILL and GRIFFITH, JJ., concur.
CRAWFORD, J., of the Second Appellate District, sitting by designation in the place and stead of HERBERT, J.