Insurer Does Not Have To Cover Pilot In Small Airplane Crash

By Don R. Sampen, published, Chicago Daily Law Bulletin, October 19, 2021

The 4th District Appellate Court recently gave effect to an exclusion in a liability insurance policy applicable to claims asserted by an “insured,” which included the pilot of a small plane. The court said the exclusion took priority over a separate policy sub-part providing bodily injury coverage generally, excepting only coverage for “bodily injury to a passenger,” i.e., not excepting claims by the pilot.

The case is Old Republic Insurance Co. v. Pro-Agr, Inc., 2021 IL App (4th) 200340 (4th Dist. Sept. 14). The insurer, Old Republic, was represented by SmithAmundsen LLC of Chicago. BartlettChen LLC of Chicago and Patrick Jennetten of Peoria represented the insureds, Pro-Agr and pilot Kyle Dowdy.

Dowdy was injured when a Pro-Agr airplane he was flying crashed because of mechanical failure. He claimed the crash was caused by Pro-Agr’s failure to service and maintain the aircraft.

Pro-Agr sought a defense and indemnification from its liability insurer, Old Republic. The policy issued to Pro-Agr contained an exclusion to coverage applicable to bodily injury sustained by “any insured.” The policy defined the term “insured” to include “any person while using or riding in your aircraft.”

In response to requests to admit, Pro-Agr and Dowdy both admitted that Dowdy, as the pilot, was both using and riding in the aircraft at the time Dowdy was injured.

The policy, however, also contained a “Coverage F.” This sub-part stated that the insurer would pay claims for damages due to bodily injury” resulting from use of the aircraft, “except claims for damages due to bodily injury to a passenger.” The term “passenger” was defined to exclude the pilot.

Based on Coverage F, Pro-Agr and Dowdy argued Pro-Agr was entitled to coverage for Dowdy’s claimed injuries. Pro-Agr also relied in part on the separation-of-insureds provision in the policy, contending that treating Pro-Agr separately from Dowdy for coverage purposes, somehow entitled Pro-Agr to coverage.

In response to Pro-Agr’s tender, Old Republic denied coverage but agreed to provide a defense subject to a reservation of rights. It then brought this declaratory action, took some limited discovery, and filed a motion for summary judgment.

The trial court, apparently focusing exclusively on the underlying complaint and ignoring Pro-Agr’s and Dowdy’s admissions, found that Dowdy was not an insured excluded from coverage. It then denied Old Republic’s motion but made the necessary finding under Illinois Supreme Court Rule 304(a) to allow an immediate appeal. Old Republic appealed.

Analysis

In an opinion by Justice John W. Turner, the 4th District reversed. He began his analysis by noting that, at least in declaratory proceedings, a trial court may look beyond the underlying pleadings in determining the existence of a duty to defend. In this case, he wrote, the trial court should have taken the defendants’ admissions into account in determining coverage.

Turner proceeded to find that Dowdy was an insured, and the trial erred in finding otherwise. And because he was an insured, the policy excluded coverage for his claim against Pro-Agr.

The language of Coverage F, moreover, did not affect the exclusionary language that specifically applied to Dowdy’s claim for damages. According to Turner, the policy had to be read as a whole, and reading it as a whole, it was clear the policy was not intended to cover bodily injuries suffered by a pilot.

In addition, the separation-of-insureds provision had no effect on coverage. In requiring that insureds be treated separately, that provision permitted coverage only for “covered claims,” and Dowdy’s claim was not covered.

In sum, Turner found that Old Republic’s summary judgment motion should have been allowed. The 4th District therefore remanded with instructions for the trial court to grant the motion.

Key Point

A policy must be interpreted as a whole, and when so interpreted an exclusion makes clear that no coverage is intended, then an insurer has no duty to defend.