UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AVEMCO INSURANCE COMPANY,

Plaintiff-Appellee,

v.

SUSAN H. DOERING, Administratrix

of the Estate of James Harold

No. 98-1891

Doering; GLENDA W. CUTHRELL,

Executrix of the Estate of Wilford

Rubin Cuthrell, Jr.; DIANNE T.

SWARINGEN, Executrix of the Estate

of Charles Edward Swaringen, Jr.,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Greenville.

Malcolm J. Howard, District Judge.

(CA-97-103-4-H)

Argued: March 5, 1999

Decided: March 25, 1999

Before HAMILTON and MOTZ, Circuit Judges, and

SMITH, United States District Judge for the Eastern District of

Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Albert Charles Ellis, WARD & SMITH, P.A., Greenville,

South Carolina, for Appellants. Kevin Walter Benedict, MAUPIN,
TAYLOR & ELLIS, P.A., Raleigh, North Carolina, for Appellee. ON

BRIEF: Teresa DeLoatch Bryant, WARD & SMITH, P.A., Greenville, South Carolina; Benjamin Glenn Alford, HENDERSON, BAXTER & ALFORD, P.A., New Bern, North Carolina, for Appellants.

M. Keith Kapp, MAUPIN, TAYLOR & ELLIS, P.A., Raleigh, North

Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Avemco Insurance Company brought this diversity declaratory

judgment action against Susan Doering, Glenda Cuthrell, and Dianne

Swaringen as representatives of the estates of their deceased husbands, who died in the crash of an airplane that Avemco insured (collectively "the Estates"). Avemco alleged that the policy did not cover

damages resulting from the accident because James Doering, the pilot

during the crash, failed to comply with the terms and conditions of the

insurance contract. The Estates argued that Doering had in fact complied with the policy and that their claims were covered by the policy.

The district court granted summary judgment to Avemco. See Avemco

Ins. Co. v. Doering, et al., 7 F. Supp.2d 685 (E.D.N.C. 1998). We

affirm.

I.

The parties do not dispute the underlying facts. On October 30,

1996 James Doering purchased flight insurance from Avemco for his

newly acquired Piper 600A Aerostar airplane. The policy was effective from November 2, 1996 through November 2, 1997. On November 9, 1996, James Doering, Rubin Cuthrell and Charles Swaringen

died when the Piper, piloted by Doering, crashed shortly after takeoff. Following the crash, the Estates filed claims with Avemco,

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which, in turn, brought this declaratory judgment action to determine

its obligations under the policy.

The Avemco policy at issue here provides a maximum of $100,000

liability coverage for bodily injury to "occupants" of the Piper, with

a limit of $1 million per accident. The policy states, in relevant part:

This policy covers when your insured aircraft is in flight,

only while being operated by one of the following pilots

who holds a currently effective Pilot Certificate (unless a

pre-solo student pilot) issued by the FAA:

A. James Doering: Prior to solo, must receive not less than

10 hours' dual flight instruction in the insured aircraft

or one of the same make and model. They must also

obtain written approval from that certificated flight

instructor who is current in make and model.

At the time of the accident, James Doering was the only pilot in

the aircraft; Cuthrell and Swaringen had no piloting experience. Prior

to November 9, 1996, Richard N. Cooke, an FAA certified flight

instructor, gave James Doering 3.7 hours of instruction while flying

in the Piper and 7.2 hours of "ground school" instruction. At the time

of the crash, James Doering had not obtained written approval to fly

solo from a certified flight instructor.

II.

Before the district court, the Estates relied on the North Carolina

rule that ambiguous insurance contracts are to be construed in favor

of the insured, see Fayetteville Aviation, Inc. v. Insurance Co. of

North Am., 199 S.E.2d 485, 487 (N.C. Ct. App. 1973), and maintained that the terms "solo" and "dual flight instruction" in the

Avemco policy were ambiguous. While the district court acknowledged this legal principle, it concluded that the Estates' proposed

reading of the policy terms was simply unreasonable and that the policy unambiguously provided no coverage for damages arising from

the accident. Thus the district court granted summary judgment to

Avemco. See Guyther v. Nationwide Mut. Fire Ins. Co., 428 S.E.2d

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238, 241 (N.C. Ct. App. 1993) ("The question of the meaning of language used in an insurance policy is a matter of law.").

First, the district court rejected the Estates' argument that Doering

was never "solo" in the insured aircraft because he was never physically alone while flying the aircraft, i.e. Doering had passengers with

him on the day of the crash. The court explained that the Estates could

not ignore the context in which the term "solo" was used, namely, an

aviation insurance contract. See id. at 241 (context is important when

interpreting undefined terms in an insurance contract); cf. Parker v.

State Capital Life Ins. Co., 130 S.E.2d 36, 38 (N.C. 1963) (insurance

policies "must receive a reasonable interpretation, consonant with the

apparent object and plain intent of the parties") (citations omitted).

The district court found that, in this context,"solo" could only reasonably mean flying an airplane without an instructor, explaining that

"[t]o hold otherwise would imply that Doering could have flown himself and nine others, never having a day of instruction, and yet all parties would be covered under [Avemco's] policy because Doering was

not alone in the plane." Avemco, 7 F. Supp.2d at 688.

The district court also rejected the Estates' alternative contention

that, even if James Doering had been flying solo on the day of the

accident, he was nonetheless covered because he had received enough

hours of flight instruction prior to the accident. In making this argument, the Estates interpreted the term "dual flight instruction" in the

policy to include flight instruction given on the ground; under this

broad reading of the policy, Doering's 7.2 hours of ground training

would combine with his 3.7 hours of training in the plane to meet the

requisite 10 hours of "dual flight instruction" needed for coverage.

The district court again noted the logical extension of the Estates'

argument and its unreasonable result. The court explained that, under

the Estates' reading of the policy, "Avemco would be responsible for

coverage if Doering had completed any number of hours of `ground

school' instruction without ever having logged any in flight time with

an instructor in the insured aircraft." Id . at 689. The court found that

Avemco's interpretation -- that "dual flight instruction" means flight

instruction with a certified instructor while in flight -- was the only

reasonable interpretation of the term in this context. Accordingly, the

court concluded that Doering received, as a matter of law, only 3.7

hours of "dual flight instruction."

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Thus, the district court held that Doering had not complied with the

terms and conditions of the Avemco policy and that Avemco was not

obligated to cover claims arising from the November 9, 1996 accident.

III.

On appeal, the Estates reiterate the arguments made to, and rejected

by, the district court. After careful review of the record, briefs, and

applicable law, and after having the benefit of oral argument, we

affirm on the basis of the district court's well-reasoned opinion. See

Avemco Ins. Co. v. Doering, et al., 7 F. Supp.2d 685 (E.D.N.C. 1998).

AFFIRMED

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