Citations
- 922 F.2d 732
Full opinion text
GODBOLD, Senior Circuit Judge:
Carolyn Jordan’s husband, James Jordan, was killed in the crash of a private plane. He was covered under a group accidental death policy provided by his employer and issued by Reliable Insurance Company. The policy covered injuries sustained from aviation accidents, provided the insured was riding as a passenger and not as a pilot or crew member of the aircraft involved in the accident. Carolyn filed a claim with Reliable, and it denied coverage on the ground that James was not riding as a passenger on the flight. She sued, asserting diversity jurisdiction, alleging that Reliable had breached the policy, and the district court awarded her the policy proceeds. Reliable appeals and Jordan, by cross-appeal, questions the rate of interest awarded by the court. We affirm the award of damages, and certify the question of interest to the Supreme Court of Alabama.
BACKGROUND
James Jordan obtained his private pilot’s license in 1976 and his instrument rating in 1978. He accumulated over 600 hours of flight time in private aircraft and was part owner of a six-seat Cessna Centurion. This aircraft was equipped with dual controls so that it could be flown from either of the two front seats. The left front seat was designated the pilot’s seat and the right front seat the co-pilot’s or passenger’s seat. In November 1986 Jordan hired Jack Page, a professional flight instructor, to give him a refresher course in instruments-only flying. Page is a highly experienced pilot who has flown more than 9,000 hours in military and civilian aircraft.
On the day of the crash Jordan made arrangements for himself and Page to take his plane up for instrument practice. He called the FAA to obtain a weather briefing and file a flight plan. He performed a pre-flight inspection of the aircraft, taxied to the runway, and took off. As Jordan and Page flew from Birmingham to Montgomery, Jordan sat in the pilot’s seat and handled all the flight controls without assistance from Page. After landing in Montgomery the two men took off again to practice instruments-only landings. Again, Jordan performed all of the pre-flight procedures, sat in the pilot’s seat, and handled all the flight controls alone. As he maneuvered the plane on the practice landing approach he wore a device that allowed him to see only the aircraft’s instruments.
The plane suddenly lost power while it was on final approach. Page immediately engaged his set of flight controls and took over the throttle and the control wheel. He instructed Jordan to switch fuel tanks and engage the fuel pump boost as part of the emergency procedures for a loss of power. Page attempted to guide the plane back to the Montgomery airport, but it struck power lines and crashed. Page survived the crash but Jordan was killed. Approximately 30 seconds elapsed from the time that Page took control of the aircraft until impact. Page did not operate any of the flight controls that day outside of that 30 second period.
Jordan sued, and Reliable moved for summary judgment. The court denied the motion, and the case was tried on the merits. Two provisions of the policy were at issue:
SECTION II DESCRIPTION OF COVERAGE
Subject to the conditions, limitations and exclusions of the policy, the insurance granted hereunder shall apply to the injuries sustained by an Insured Person anywhere in the world provided that aviation coverage shall be limited to riding as a passenger (and not as a pilot or member of the crew) in any previously tried, tested and approved aircraft, (emphasis added).
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