Fort Myers Airways, Inc. v. American States Ins. Co., 81-459
| Decision Date | 13 January 1982 |
| Docket Number | No. 81-459,81-459 |
| Citation | 411 So.2d 883 |
| Parties | FORT MYERS AIRWAYS, INC., and Beverly Varboncoeur, as Personal Representative of the Estate of Donald R. Varboncoeur, Deceased, Appellants, v. AMERICAN STATES INSURANCE COMPANY, a foreign corporation, Appellee. |
| Court | Florida District Court of Appeals |
John M. Murray, Joan S. Buckley of Walton, Lantaff, Schroeder & Carson, Miami, for appellants.
Edward R. Curtis of Dolan, Fertig & Curtis, P. A., Fort Lauderdale, for appellee.
The appellants, two of the defendants below, have appealed the entry of a summary judgment entered in favor of the appellee, American States Insurance Company (American States).
The sole question on this appeal is whether Donald R. Varboncoeur, deceased, was an insured under American States' insurance policy.
Under the circumstances of this case, we hold that a flight instructor, giving instructions to the owner and insured of an airplane is the agent or employee of the owner under an insurance policy which provides coverage to an agent or employee of the insured. We accordingly reverse the summary judgment entered against the appellants.
This case arose out of an airplane accident occurring in January 1977. The airplane, a Cessna 411, was owned by Herman Shaw, deceased, and insured by American States. An endorsement to the policy required Shaw to receive thirty-five hours of multi-engine instruction. 1 In order to meet this requirement, Shaw contracted with one of the appellants, Fort Myers Airways, Inc., and through them received flight instructions from Donald R. Varboncoeur, deceased. During an instructional flight, and while Shaw was at the controls, the plane crashed into a building killing Shaw, Varboncoeur, and an occupant of the building.
American States filed an action seeking a declaratory decree concerning its rights and obligations under the policy. Fort Myers Airways and Beverly Varboncoeur as personal representative of the Estate of Donald R. Varboncoeur counterclaimed alleging that Varboncoeur was an insured under the policy and therefore Fort Myers Airways, his employer, was also protected. Shaw's estate filed a separate suit in the state of Indiana, and in that action it was determined that the policy was in effect at the time of the accident.
All parties to this appeal moved for a summary judgment, and the trial court held that Varboncoeur was not an insured under the policy and therefore American States had no duty to defend his estate.
The pertinent portions of the policy in question are as follows:
III. Definition of Insured. The unqualified word "insured" whenever used in this policy with respect to Coverages A, B, C and D, includes not only the named insured but also any person while using the aircraft and any person or organization legally responsible for its use, provided the actual use is with the permission of the named insured. The provisions of this paragraph do not apply to:
....
(c) any person or organization or any agent or employee thereof (other than agents or employees of the named insured) engaged in the manufacturing of aircraft, aircraft engines, aircraft accessories, or operating an aircraft repair shop, airport, hangar, aircraft sales agency or flying school with respect to any occurrence arising out of the manufacture or the operation thereof.
The appellants contend, and we agree, that Varboncoeur was an insured because he was a person using the aircraft with the insured's permission. They further contend that, since he was an agent or employee of the named insured, he was not excluded from coverage by paragraph III(c) of the policy.
The appellee contends that Varboncoeur was an independent contractor and not an agent under both the dangerous instrumentality doctrine and the law of agency.
We are fully aware of the pitfalls of equating the existence of insurance with the existence of liability. Ray v. Earl, 277 So.2d 73 (Fla. 2d DCA 1973). However, we feel a construction of the term "insured" which closely parallels the...
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