Pickett v. Woods
| Decision Date | 21 October 1981 |
| Docket Number | No. 80-1112,80-1112 |
| Citation | 404 So.2d 1152 |
| Parties | Nancy Elizabeth PICKETT, as Personal Representative of the Estate of Wilbur Crafts Pickett, Jr., Deceased, et al., Appellants, v. T. Michael WOODS, Successor Personal Representative of the Estate of Jack L. Byrd, Deceased, Foremost Insurance Company, a Michigan corporation, et al., Appellees. |
| Court | Florida District Court of Appeals |
Lester A. Lewis of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for appellants.
David William Boone of Dolan, Fertig & Curtis, P. A., Fort Lauderdale, for appellee Foremost Insurance Co.
No appearance for appellees Woods and Sellers.
Appellant Nancy Pickett's husband, Dr. Wilbur Pickett, was killed in an aircraft accident. The trial court held that a policy issued by appellee Foremost Insurance Company did not cover the liability as claimed by appellant. An exclusion in the policy provided in pertinent part:
This policy does not apply:
4. to any insured
(b) who operates or permits the operation of the aircraft, while in flight, unless its airworthiness certificate is in full force and effect....
After the issue of coverage had been severed for jury trial, the jury in a special verdict found that the aircraft did not have a valid airworthiness certificate in force at the time of the accident. The court then entered judgment holding that Foremost was not subject to liability. Appellant appeals from that judgment.
Appellant has raised several points on appeal but the only one which requires discussion is whether section 627.409(2), Florida Statutes (1979) prevents Foremost from escaping liability. This section provides:
A breach or violation by the insured of any warranty, condition, or provision of any wet marine or transportation insurance policy, contract of insurance, endorsement, or application therefore shall not render void the policy or contract, or constitute a defense to a loss thereon, unless such breach or violation increased the hazard by any means within the control of the insured.
Appellant argues that because the crash was due to pilot error (the plane flew into the ground while attempting to land in bad weather) and not the result of any malfunction, the failure to have a valid airworthiness certificate did not contribute to the accident and that therefore, the statute should apply and prevent the insurance company from relying on the exclusion to deny coverage. We agree and REVERSE.
Appellees rely on Bill Hames Shows, Inc. v. J. J. Taylor Syndicate # 173, 642 F.2d 179 (5th Cir.1981), wherein the court held that an alteration of the aircraft's rudder invalidated the craft's airworthiness certificate and therefore the insurance coverage which required such a certificate was suspended at the time of the crash. The court noted that the fact that the alteration may have been innocuous to normal operation of the aircraft was irrelevant. The court quoted from Glades Flying Club v. Americas Aviation & Marine Ins. Co., 235 So.2d 18 (Fla. 3d DCA 1970):
An aircraft insurance policy may validly condition liability coverage on compliance with a governmental regulation and, while non-compliance with such a regulation continues, the insurance is suspended as if it had never been in force. There need be no causal connection between the non-compliance and the loss or injury.
Glades, however, was prior to the enactment of section 627.409(2). This...
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