TEXAS UPDATE!

 

By CHAMBERLAIN McHANEY

 

TEXAS LAWYERS

 

        Texas Update! receives a lot of email offering us various products and services.  After reading all of our email this past week, we have come to the troubling  conclusion that people think we are bald, impotent and in need of constant refinancing.

 

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Does a Homeowner’s Policy cover an Insured’s liability for Injury caused by a Tipsy Airplane?

 

Indeed it does, if you follow the logic of the Texarkana, Tx. Court of Appeals in an opinion handed down this week.

 

Tucker and Hartless owned similar aircraft, were aircraft aficionados, and began debating the relative weight of their respective planes (doesn’t everyone?).  Since a set of scales was conveniently located in the hangar, they decided to settle the debate once and for all by weighing their planes.  Moving to Tucker’s plane first, they slid the scales beneath each of the wheels.  While Tucker was positioning the scales, the airplane nosed over on top of them both, pinning Hartless under the propeller and injuring him.  Hartless sued Tucker, and Tucker demanded a defense from Allstate, his homeowner’s carrier.  Allstate denied coverage.

 

Allstate sought a declaratory judgment specifying its rights and responsibilities under the terms of the policy, arguing that it had no duty to defend or cover the claim.  Allstate then filed for summary judgment and the trial court granted it.  Sounds reasonable to us, because the homeowner’s policy contained the following exclusion:

 

Coverage C (Personal Liability) and Coverage D (Medical Payments to Others) do not apply to:

h. bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of aircraft: Aircraft means any device used or designed for flight, except model or hobby aircraft not used or designed to carry people or cargo.

 

Well, the Texarkana Court of Appeals did not agree, reversed the trial court and declared Allstate had a duty to defend Tucker.  (This may be partially explained by the fact that part of Texarkana is located in the State of Arkansas, but we digress).

 

Said the court, “the insurer is obligated to defend if there is, potentially, an action alleged within the policy coverage, even if the allegations do not clearly show there is coverage.”  The court reasoned (term used loosely here) that the exclusion was inapplicable because the accident did not arise out of the ownership, maintenance, operation or use of the plane.  Although Tucker owned the plane, there was no causal connection between his “ownership” and the accident.  He would be liable for his negligent acts causing this injury regardless of his ownership of the plane.  As to “maintenance,” they were not maintaining the plane, they were trying to weigh it, darn it!  Two exclusory terms down, two to go.  As to “operation,” they weren’t operating the plane, because the plane wouldn’t operate—it was broke.  As to “use,” the court said that while these flyboys were weighing the craft, they were not using it as an aircraft or for its intended purpose in any fashion.  Again, the dang thing would not fly and they weren’t trying to fly it at the time.

 

We take away valuable lessons from this case.  First, if you are going to do something stupid with a plane, do it in Arkansas—oops--we mean Texarkana.  Better yet, don’t try to weigh a plane.  It’s not good for you, your friend or your home insurer.  TUCKER v ALLSTATE (Tex App.--December, 2005).

 

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Speaking of vehicles, Texas Update! could not afford to get our car brakes fixed, so we decided to get a louder horn.

 

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Chamberlain McHaney is an AV (highest) rated Firm and is listed in Best’s Directory of Recommended Attorneys.

 

DAVID E. CHAMBERLAIN

CHAMBERLAIN McHANEY

AUSTIN & SAN ANTONIO

512.474.9124