Airmanship, Inc. v. U.S. Aviation Underwriters, Inc., No. 89-1643

CourtCourt of Appeal of Florida (US)
Writing for the CourtBASKIN; BASKIN
Citation559 So.2d 89
Docket NumberNo. 89-1643
Decision Date13 February 1990
Parties15 Fla. L. Weekly D1127, 15 Fla. L. Weekly D401 AIRMANSHIP, INC. and Avemco Insurance Company, Appellants, v. UNITED STATES AVIATION UNDERWRITERS, INC., as Aviation Managers for United States Aircraft Insurance Group, Appellee.

Page 89

559 So.2d 89
15 Fla. L. Weekly D1127, 15 Fla. L. Weekly D401
AIRMANSHIP, INC. and Avemco Insurance Company, Appellants,
v.
UNITED STATES AVIATION UNDERWRITERS, INC., as Aviation Managers for United States Aircraft Insurance Group, Appellee.
No. 89-1643.
District Court of Appeal of Florida,
Third District.
Feb. 13, 1990.
On Motion for Rehearing April 24, 1990.

Page 90

McDonald & McDonald and Cecile Hatfield, Miami, for appellants.

Barwick, Dillian, Lambert & Angel and Thomas E. Ice and Howard Barwick, Miami Shores, for appellee.

Before BASKIN, LEVY and GERSTEN, JJ.

BASKIN, Judge.

Airmanship, Inc., and AVEMCO Insurance Company appeal the entry of final summary judgment in favor of United States Aviation Underwriters, Inc., [USAU] in an action they brought to enforce USAU's obligations to defend an insured and to indemnify another insurer. We reverse.

Stanley Brons and John Tasso died in the crash of a private airplane in which Brons was the main pilot and Tasso, who was employed by Airmanship as a flight instructor, was the safety pilot. Tasso was

Page 91

certified by the Federal Aviation Administration [FAA] as a commercial pilot with multi-engine and instrument ratings. Brons owned all the stock of Executive Flight, Inc., the owner of the airplane. Stanley Brons was also certified by the FAA with a multi-engine rating. Whenever Brons flew the plane in question, he arranged with Airmanship for Tasso to accompany him in a copilot/safety pilot capacity. Tasso would also ferry the plane to Brons and would have the aircraft serviced. Airmanship paid Tasso's salary and billed Brons for Tasso's services.

Airmanship was insured by AVEMCO. Its policy covered Airmanship and its employees when they flew a rented or borrowed aircraft. The AVEMCO policy contained a commercial use exception which, by policy definition, did not exclude coverage for employees furnishing flight instruction in a non-owned aircraft. The AVEMCO policy provided that it was primary unless other coverage was available; in that case, it would furnish excess coverage.

Brons' airplane was insured by USAU. The USAU policy covered anyone using or riding in the aircraft with the owner's permission and any employee acting as a flight instructor. Stanley Brons was listed on the policy as an additional insured. Also listed as additional insureds were pilots holding an FAA commercial pilot certificate with FAA multi-engine and instrument ratings. The USAU policy contained a "commercial aviation" exclusion, amended one month before the accident, exempting from the exclusion lease of the aircraft to Brons. The policy did not define "commercial aviation."

After the accident, Brons' widow sued Tasso, as the agent or employee of Airmanship, and Brons, Airmanship, Executive Flight, and Beech Aircraft Corporation. Although AVEMCO formally demanded that USAU indemnify AVEMCO and provide a defense for Tasso's estate, USAU did not respond to AVEMCO's demands. Prior to settling with Brons' widow, AVEMCO requested that USAU attempt to obtain a better settlement; again, USAU did not respond. When AVEMCO settled with Brons' widow and demanded indemnification from USAU, USAU instituted an action for declaratory relief to determine whether it was obligated to indemnify AVEMCO. Both AVEMCO and USAU moved for summary judgment, but the trial court granted USAU's motion and entered final judgment in its favor.

Airmanship and AVEMCO appeal, asserting that USAU should have defended Tasso's estate and was obligated by its policy to indemnify AVEMCO. USAU counters that it was not obligated to defend Tasso's estate even though when the accident occurred, Tasso was riding in the airplane with the owner's permission, met the policy's FAA licensing requirements, and was therefore an additional insured under the terms of the USAU policy. USAU argues that because Tasso was being paid for his services, he was engaged in commercial aviation and came within the policy's commercial aviation exclusion. Alternatively, USAU maintains that Tasso was not entitled to employee coverage because he was not Brons' employee. We reject USAU's arguments for several reasons.

The first reason for our decision evolves from our construction of the policy. The policy does not define "commercial aviation." Reasonable people could differ as to the definition of "commercial aviation." Although the term may be understood to emcompass the furnishing of compensation for assisting in piloting an aircraft, it could just as easily apply to leasing the aircraft or employing it to carry passengers or freight. See Hutzel v. United States Aviation Underwriters, Inc., 132 A.D.2d 45, 522 N.Y.S.2d 301 (N.Y.App.Div.1987). We must construe the policy terms...

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11 practice notes
  • Galen Health Care v. Am. Cas. Co. of Reading, Pa., No. 94-795-CIV-ORL-22.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • January 25, 1996
    ...and demanded that the primary insurer defend the insured party. See Airmanship, Inc. v. United States Aviation Underwriters, Inc., 559 So.2d 89, 92 (Fla. 3d DCA 1990), rev. denied, 576 So.2d 294 (citing Lehman-Eastern Auto Rentals v. Brooks, 370 So.2d 14 (Fla. 3d DCA 1979) and Lumbermens Mu......
  • Alberto-Culver Co. v. Aon Corp., No. 1-02-3815.
    • United States
    • United States Appellate Court of Illinois
    • May 13, 2004
    ...does not embrace the full scope of "commercial" in the aviation context or elsewhere. In Airmanship v. U.S. Aviation Underwriters, Inc., 559 So.2d 89 (1990), USAU argued that a copilot pilot fell within its "commercial aviation" exclusion since he had been paid for his services. The policy ......
  • Estate of Miller v. Principal Mut. Life Ins. Co., No. 90-1558-Civ-T-21(B).
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 14, 1992
    ...not ambiguous.2 In support of its contention that the term is ambiguous, Plaintiff relies upon Airmanship v. U.S. Aviation Underwriters, 559 So.2d 89 (Fla. 3rd DCA 1990), a case wherein the Third District Court of Appeal interpreted the somewhat related phrase "commercial aviation." In Airm......
  • Liberty Mut. Fire Ins. Co. v. Wal-Mart Stores E., LP, Case No: 8:16–cv–2791–T–30JSS
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 25, 2017
    ...an agreement preserving its right ..., nor in any way disclaims its liability ." Airmanship, Inc. v. U.S. Aviation Underwriters, Inc. , 559 So.2d 89, 92 (Fla. Dist. Ct. App. 1990) (emphasis in original) (citations omitted). As the court in Airmanship noted, "[t]o hold otherwise would counte......
  • Request a trial to view additional results
11 cases
  • Galen Health Care v. Am. Cas. Co. of Reading, Pa., No. 94-795-CIV-ORL-22.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • January 25, 1996
    ...and demanded that the primary insurer defend the insured party. See Airmanship, Inc. v. United States Aviation Underwriters, Inc., 559 So.2d 89, 92 (Fla. 3d DCA 1990), rev. denied, 576 So.2d 294 (citing Lehman-Eastern Auto Rentals v. Brooks, 370 So.2d 14 (Fla. 3d DCA 1979) and Lumbermens Mu......
  • Alberto-Culver Co. v. Aon Corp., No. 1-02-3815.
    • United States
    • United States Appellate Court of Illinois
    • May 13, 2004
    ...does not embrace the full scope of "commercial" in the aviation context or elsewhere. In Airmanship v. U.S. Aviation Underwriters, Inc., 559 So.2d 89 (1990), USAU argued that a copilot pilot fell within its "commercial aviation" exclusion since he had been paid for his services. The policy ......
  • Estate of Miller v. Principal Mut. Life Ins. Co., No. 90-1558-Civ-T-21(B).
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 14, 1992
    ...not ambiguous.2 In support of its contention that the term is ambiguous, Plaintiff relies upon Airmanship v. U.S. Aviation Underwriters, 559 So.2d 89 (Fla. 3rd DCA 1990), a case wherein the Third District Court of Appeal interpreted the somewhat related phrase "commercial aviation." In Airm......
  • Liberty Mut. Fire Ins. Co. v. Wal-Mart Stores E., LP, Case No: 8:16–cv–2791–T–30JSS
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 25, 2017
    ...an agreement preserving its right ..., nor in any way disclaims its liability ." Airmanship, Inc. v. U.S. Aviation Underwriters, Inc. , 559 So.2d 89, 92 (Fla. Dist. Ct. App. 1990) (emphasis in original) (citations omitted). As the court in Airmanship noted, "[t]o hold otherwise would counte......
  • Request a trial to view additional results

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