The Morse Law Group Blog

CAN AIRCRAFT INSURANCE COVERAGE BE VOIDED BY ALLOWING A NON QUALIFIED PERSON TO OPERATE THE CONTROLS DURING FLIGHT?

Many aircraft insurance policies covering business and pleasure use exclude coverage when the aircraft is operated in flight by a person not qualified under the policy.  Other policies covering rental and instruction use exclude coverage if a renter pilot allows another person to operate the controls in flight.   The purpose of this article is to discuss several cases in which coverage was and was not voided under such circumstances and to suggest some rules of general application to be considered by pilots in conducting such operations and by insurance adjusters investigating the circumstances of such accidents.
It is quite common for a pilot to allow another person in the front seat of an airplane to operate the controls in flight for brief periods, even if that pilot is not qualified under the insurance policy to do so, and even if that person has no pilot experience.  Normally this never presents a problem for the insured or the insurer.  However, where an accident results during or as a result of such operation, there may be no insurance coverage for the claims arising out of that accident.

Whether or not insurance coverage can be voided based on allowing another person to operate the controls in flight depends on the facts and circumstances of the accident, the language of the policy, and the state whose law is to be applied.  While it is impossible to provide any rule covering all such situations, there are a number of general principles which appear to be applicable in such situations.

There are no published appellate court decisions in California involving the validity or enforceability of such exclusions.  However, at least one trial court decision and several out of state appellate court decisions provide some guidance concerning the validity and enforceability of such exclusions.

In American National Property and Casualty Company vs. Dragonfly Ventures, Inc., etc., et al, Case No. 2:06-cv-00356, tried in the Eastern District of California, the insurer obtained a Declaratory Judgment establishing that it had no duty to defend or indemnify the owner or pilot of an airplane which crashed after losing power in the traffic pattern as a result of fuel starvation.  A flight instructor working with a flying club rented the airplane to provide night instruction to her student because all of the flying club airplanes were down for maintenance.  The instructor met the requirements to rent the airplane but did not meet the requirements to provide flight instruction.  Following a two hour night flight, the student and instructor landed at a different airport and spent the night at the instructor’s home.  The next morning they were returning the airplane to the airport where it was rented.  When the aircraft was in the traffic pattern the engine lost power because the fuel selector was on the empty right tank rather than the full left tank.  The flight instructor took over the controls but was unable to make a safe emergency landing.  The aircraft was destroyed and both the student and instructor received serious injuries.  The insurer denied coverage on several grounds.  In particular, the insurer contended that the renter pilot [the instructor] allowed the student pilot to operate the controls in flight.  It was undisputed that the student pilot was in the left seat and operated the controls until she lost power.  The student and instructor contended, however, that the flight instructor was operating the controls at the time of impact and therefore the exclusion did not apply.  The court agreed with the insurer that the exclusion applied to bar coverage where the student was operating the controls up to the point where a life threatening emergency was created from which the instructor was unable to recover.

In Powell Valley Elec. Coop. v. United States Aviation Underwriters, 179 F. Supp. 616 (D. W. Va. 1959) the insurance policy covering the insured’s helicopter expressly provided that it applied only while it was being operated by the named pilot and that no coverage was afforded while being used to provide flight instruction.  The accident occurred when the student pilot operating the helicopter lost control and the named pilot was unable to recover.  The Court held that coverage was suspended while the helicopter was being operated by the student pilot and did not revive until the named pilot took over and returned the helicopter to the same safe condition it was in before the student pilot took over.  The Court further held that when the helicopter was in a dangerous and precarious position when the named pilot took over there could be no recovery under the policy even if the ensuing crash was caused by some malfunction of the helicopter or by some pilot error on the part of the named pilot in attempting to regain control and prevent the crash.

In Beckwith v. American Home Assurance Co., 565 F. Supp. 468 (D. N.C. 1983), the Court enforced an exclusion in a life insurance policy and after mentioning the Powell Valley case came up with essentially the same general rule.  In that case Beckwith was flying the aircraft with a more experienced pilot in the other pilot seat.  After takeoff the engine lost power; the other pilot took over but was unable to prevent the crash.  While acknowledging that policy exclusions are to be strictly construed against the insurer the Court found as a matter of law that Beckwith was acting as a pilot and not as a passenger and that there was no coverage under the policy.  In so holding, the Court explained that coverage under the policy was suspended while Beckwith was piloting the plane and the risk of loss increased while coverage was suspended.  The Court further stated that coverage could be renewed only if the other pilot had been able to restore the aircraft to safe and normal operating condition, which he did not.  The Court went on to state that a reasonable person could not conclude that Beckwith was riding as a passenger within the meaning of the policy.

While the insured will almost always have the burden of proving that the unauthorized person was operating the controls, at least one case suggests that the insurer can meet this burden by using circumstantial evidence even if both pilot died in the crash.  In Keyser v. Connecticut General Life Ins. Co., 617 F. Supp. 1406 (N.D. Ill. 1985), the Court enforced an exclusion in a life insurance policy even though there was no direct evidence as to who was piloting the aircraft at the time of the crash.  The insured owned the aircraft, a two seat biplane which could be flown from either seat.  The insured was in what was generally considered to be the pilot seat and was heard speaking on the radio during the flight.  The insured was accompanied by his father, also a licensed pilot, and both were killed in the crash.  The Court held that the insured was either a pilot or crewmember during the flight and upheld the accidental death exclusion.

Circumstantial evidence is not, however, always enough to carry the day, even though it may be quite compelling.  In Vander Laan v. Educators Mutual Ins. Co., 96 N.W. 2d 6 (Mi. 1959) the life insurance policy at issue covered the insured while riding as a passenger but not while operating or serving as a member of the crew of an aircraft.  The insured owned the aircraft and was on an extended trip with another pilot and two passengers.  Over the course of the trip the insured had handled substantial pilot duties but there was no evidence he was performing any pilot duties at the time of the crash.  The court upheld judgment for the insured, holding that if the insured was not operating the controls or performing crew duties when the crash occurred he was a passenger, regardless of what he had been doing at earlier times on the trip.

There are, of course, cases which decline to follow the general rules set forth above.  In one case, the Court essentially ignored the exclusion at issue over a dissenting opinion which would have followed the rules set forth in the Powell Valley and Beckwith cases.

In Marshall v. Peerless Ins. Co., 428 S.W.  2d 190 (Ky. 1968) the accident occurred when a student pilot was accompanied by a licensed pilot, not a flight instructor, in the other pilot seat.  The student operated the controls throughout the flight until the other pilot took over just before landing.  The other pilot was at the controls when the aircraft ran off the runway and the accident occurred.  The policy excluded coverage when the aircraft was operated in flight by a student pilot unless such flight was with the specific advance of and under the direct supervision of a certified flight instructor.  Despite this language, the Court held that the other pilot was qualified under the policy, had a set of controls and the authority to use them.  Accordingly, the Court held that the other pilot, being pilot in command, met the requirements of the policy.  The dissenting opinion noted the testimony of the student pilot who admitted that he was operating the controls until the other pilot decided he was in trouble and decided to do something about it, then stated: “The owners would have us say that one of them could set in motion the events which caused the damage but be free from the consequences because Hammonds took control at the last moment before the damage occurred. This we should not do.”  In short, the dissenting judge would undoubtedly have applied the same rule as the courts in the Powell Valley and Beckwith cases.

There is other out of state authority which also declined to follow the Powell Valley and Beckwith rule.  In National Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., Inc., 811 S.W.2d 552 (Tx. 1991) the Court upheld an award of damages and attorney fees against the insurer.  In that case the aircraft was being operated by a student pilot and a certified flight instructor.  At the time of the accident the aircraft was being operated simultaneously by both after the student pilot lost control.  The Court held that the policy did not prohibit simultaneous operation by a qualified and non qualified person, approved the holding in the Peerless case, refused to enforce the exclusion, and enforced coverage under the policy.
In summary, pilots operating airplanes with a non qualified pilot in the other pilot seat should use caution in allowing that other person to operate the controls in flight.  While it is unlikely that any problem would develop from operating the controls in cruise, there is always a possibility that a problem could develop during takeoff and landing.  Special care should be used during those phases of flight to avoid having the airplane placed into situations from which a safe recovery cannot be made.

[Note:  This article is intended to provide only general information and is not to be construed as legal advice for any particular situation or any particular state.  Policy language, state laws, and numerous other factors can affect the outcome of a case based upon a particular set of facts.  General inquiries are welcome.  For legal advice concerning any particular factual situation, the reader should contact an attorney admitted to practice in the state in question.]

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