Kyle v. Indemnity Ins Co N A

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-50349
Summary Calendar
_______________________
MARK KYLE,
Plaintiff-Appellant,
versus
INDEMNITY INSURANCE COMPANY
OF NORTH AMERICA,
Defendant-Appellee.
______________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, Austin
A-00-CV-195-JN
_________________________________________________________________
October 17, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Mark Kyle, the plaintiff, appeals the district court’s grant
of summary judgment for Indemnity Insurance Company of North
America (“Indemnity”). For the reasons stated by the district
court in its order, we affirm.
The question in this contractual dispute is whether damage to
the engine of Kyle’s aircraft is covered by a comprehensive
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
insurance policy issued by Indemnity. The insurance policy
contains a section entitled “Losses Not Covered,” which contains
the following sub-section:
Wear and tear to engines. We will not cover the
following types of damage to your aircraft’s engines or
auxiliary power units:
[1] damage caused by heat that results from the
operation, attempted operation, or shutdown of the
engine.
[2] damage caused by the breakdown, failure, or
malfunction of any engine part or accessory.
[3] damage caused by an object not part of the engine or
its accessories, whether the damage results from
ingestion of the object or not. . . .
At the summary judgment stage, Indemnity presented evidence
that the damage to Kyle’s aircraft was caused by excessive heat
resulting from the pilot’s attempt to start the engine. Kyle does
not dispute that heat caused the damage. Instead, Kyle insists
that the insurance policy is ambiguous because not all heat damage
is related to “wear and tear,” as that phrase is ordinarily
understood.
Kyle’s appeal to the everyday understanding of “wear and tear”
is inconsistent with the principle that individual phrases must be
read in the context of the contract as a whole. See State Farm
Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995). The
sub-section heading -- “wear and tear to engines” -- is nothing
more than a short-hand introduction to the specific provisions
included in that sub-section. In other words, the contractual
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meaning of “wear and tear to engines” is supplied by the three
specific references (to heat damage, malfunctioning parts, and
foreign objects) that follow the caption. To quote the district
court, “The insured must read beyond the caption to ascertain the
specific types of damage the policy defines as wear and tear and
excludes from coverage.” The judgment is therefore
A F F I R M E D .
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