429 F2d 1312 Coffin v. Insurance Company of North America

429 F.2d 1312

Dexter D. COFFIN, Jr., Defendant-Appellant,
v.
INSURANCE COMPANY OF NORTH AMERICA, a foreign stock
insurance company, Defendant-Appellee.

No. 29309 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 14, 1970.

Robert Orseck, Miami, Fla., for plaintiff-appellant.

Martin Flanagan, John R. Beranek, West Palm Beach, Fla., for defendant-appellee.

Before BELL, AINSWORTH, and GODBOLD, Circuit Judges.

PER CURIAM.

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1

This appeal is from the pretrial dismissal of Count I of a complaint.1 The case was tried on Count II with judgment for defendant and there is no appeal from that judgment. In Count I plaintiff alleged that his liability insurance carrier wrongfully denied coverage and wrongfully refused to defend him in an action involving injury and death to a third person in connection with plaintiff's operation of a Cessna Aircraft.

2

Plaintiff contended that the aviation policy in question was ambiguous as to liability coverage including coverage for injury and death to the third person. Postulating ambiguity, plaintiff contended that the policy should be construed in his favor.

3

The district court found that the third person was a passenger, that the policy did not afford passenger coverage, and that there was no ambiguity with respect to passenger coverage. We agree and it is thus unnecessary to reach the cross-appeal filed by defendant.

4

Affirmed.

1

We dispose of this case on the briefs and record, without oral argument, as provided by our Local Rule 18