U.S. Aviation Underwriters, Inc. v. Cash Air, Inc.

• Citation: 409 Mass. 694,568 N.E.2d 1150
• Parties: UNITED STATES AVIATION UNDERWRITERS, INC. v. CASH AIR, INC. et al., 1 Katherine J. Tully et al., interveners. 2
• Decision Date: 03 April 1991
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1150

568 N.E.2d 1150

409 Mass. 694

UNITED STATES AVIATION UNDERWRITERS, INC. v. CASH AIR, INC. et al., ¹ Katherine J. Tully et al., interveners. ²

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Feb. 6, 1991.

Decided April 3, 1991.

Leonard Glazer (Frank E. Glazer with him), Boston, for interveners.

Cynthia J. Cohen (Michael B. Bogdanow with her), Boston, for plaintiff.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

On June 26, 1987, a Piper Seneca airplane crashed in the Dorchester section of Boston causing personal injuries and property damage. The plaintiff insurer (USAU) had issued aircraft insurance policies to the defendant Crete, the owner of the airplane, and to the defendant Cash Air, Inc., the employer of the airplane's pilot, providing bodily injury and property damage coverage.

About four months later, USAU commenced this action against its two insureds seeking a declaration that coverage was not available for injuries or damage caused by the plane crash. One theory that USAU advanced was that Peter Covich, the pilot of the aircraft, did not meet the pilot experience requirements set forth in the policies. Various persons and the city of Boston were permitted to intervene in the case. A judge of the Superior Court allowed USAU's motion for summary judgment and directed that judgment be entered declaring that neither USAU policy provided coverage for property damage or personal injury arising out of the crash of the Piper Seneca.

It is uncontested on the record that Covich did not have the experience as a pilot that was stated in the pilot experience clauses of the policies. The questions for the judge were (1) whether the policy requirements concerning pilot experience were conditions precedent to coverage and (2), if they were, whether USAU could avoid liability under its policies without any showing that Covich's failure to meet the pilot experience requirements was a cause of the injuries and damage resulting from the crash. The judge answered each question affirmatively, that is, denying coverage. We transferred the interveners' appeal here on our own motion. We affirm the judgment.

The introduction of each policy states that to be covered under the policy, the aircraft must be "flown only by a pilot or pilots described on the Coverage Summary page." Each policy coverage page either stated or incorporated language that stated that a pilot not named in the policy must be one who holds "an FAA commercial pilot certificate with FAA multi-engine and instrument ratings who has flown a minimum of [2,000] [2,500] hours as pilot in command, at least 1,000 hours of which shall have been in multi-engine aircraft and at least 25 hours of which shall have been in [Piper Seneca PA-34] [Piper PA 31-350] aircraft." ³

There have been numerous cases across the country concerning the consequences of the failure of a pilot of a crashed airplane to have met pilot experience requirements stated in an insurance policy issued to cover the airplane or the pilot. The contest has not often been focused on the question whether the insurance policy by its terms excludes coverage. The great weight of authority, and the only well reasoned authority, holds that pilot experience clauses like those involved in this case unambiguously undertake to deny coverage. See, e.g., Security Ins. Co. of Hartford v. Andersen, 158 Ariz. 426, 428-429, 763 P.2d 246 (1988); United States Aviation Underwriters v. Van Houtin, 453 So.2d 475, 478 (Fla.Dist.Ct.App.1984) ("[t]he provisions of this policy may appear complicated, but complexity should not be confused with ambiguity"); Eastern Aviation & Marine Underwriters, Inc. v. Gilbertson, 379 N.W.2d 567, 570 (Minn.App.1985); U.S. Fire Ins. Co. v. Producciones Padosa, Inc., 835 F.2d 950, 954 (1st Cir.1987) (Puerto Rico law); Ideal Mut. Ins. Co. v. Last Days Evangelical Ass'n, Inc., 783 F.2d 1234, 1238 (5th Cir.1986) (Texas law). Cf. Western Food Products Co., Inc. v. U.S. Fire Ins. Co., 10 Kan.App.2d 375, 378 (1985) (pilot lacked current medical certificate required by policy; no coverage); Edmonds v. United States, 642 F.2d 877, 881, 883 (1st Cir.1981) (Massachusetts law) (pilot lacked biennial flight review unambiguously required by policy; requirement was condition precedent because of its "reasonable bearing on the extent of the risk assumed by the insurer"). Contra Avemco Ins....