Most prudent pilots know that accidents happen. Despite expensive training and exercising an abundance of caution, the unexpected can happen…which is one reason why pilots purchase accidental death and dismemberment insurance. Did you know, however, that sometimes your accidental death policy will exclude coverage for accidents occurring when you are acting as a “pilot or crewmember” of an aircraft involved in an accident? This means that if at the time of an aviation accident that causes your death, you are the pilot-in-command or crewmember of an aircraft, your loved ones will be denied the coverage offered under your policy.

 

But for general aviation pilots, there can be a fine line between when you’re acting as a “pilot or crewmember” and when you are just a passenger with a pilot’s license. For instance, what is one to do in the flight instructor/instrument student situation? If an aircraft requires only one pilot and there are two licensed pilots at the controls, how can an insurance company determine who was acting as a “pilot” or “crewmember” on that particular flight? Better yet, at what point during the flight will the insurance company base its determination of whether or not the insured is acting as “pilot?” State and federal courts alike have struggled to answer this question – as nearly every court has a different stance. Perhaps one of the “better” cases for pilots, and a position which every court should adopt, comes from the Federal Court of Appeals, 11th Circuit, in Jordan v. Natl. Acc. Ins. Underwriters Inc., 922 F.2d 732 (11th Cir. 1991). The following will review the facts of this case and the court’s holding.

 

“James Jordan obtained his private pilot’s license in 1976 and his instrument rating in 1978. He accumulated over 600 hours of flight time in private aircraft and was part owner of a six-seat Cessna Centurion. This aircraft was equipped with dual controls so that it could be flown from either of the two front seats. The left front seat was designated the pilot’s seat and the right front seat the co-pilot’s or passenger’s seat. In November 1986 Jordan hired Jack Page, a professional flight instructor, to give him a refresher course in instrument flying. Page was a highly experienced pilot who had flown more than 9,000 hours in military and civilian aircraft.

 

On the day of the crash Jordan made arrangements for himself and Page to take his plane up for instrument practice. He called the FAA to obtain a weather briefing and file a flight plan. He performed a pre-flight inspection of the aircraft, taxied to the runway, and took off. As Jordan and Page flew from Birmingham to Montgomery, Jordan sat in the pilot’s seat and handled all the flight controls without assistance from Page. After landing in Montgomery the two men took off again to practice instrument approaches. Again, Jordan performed all of the pre-flight procedures, sat in the pilot’s seat, and handled all the flight controls alone. As he maneuvered the plane on the practice landing approach he wore “floggles,” which allowed him to see only the aircraft’s instruments.

 

The plane suddenly lost power while it was on final approach. Page immediately engaged his set of flight controls and took over the throttle and the control wheel. He instructed Jordan to switch fuel tanks and engage the fuel pump boost as part of the emergency procedures for a loss of power. Page attempted to guide the plane back to the Montgomery airport, but it struck power lines and crashed. Page survived the crash but Jordan was killed. Approximately 30 seconds elapsed from the time that Page took control of the aircraft until impact. Page did not operate any of the flight controls that day outside of that 30 second period.”

 

In this case, Jordan’s estate sued because accidental death and dismemberment benefits were denied based on the following exclusions in Jordan’s policy:

 

“SECTION II DESCRIPTION OF COVERAGE: Subject to the conditions, limitations and exclusions of the policy, the insurance granted hereunder shall apply to the injuries sustained by an Insured Person anywhere in the world provided that aviation coverage shall be limited to riding as a passenger (and not as a pilot or member of the crew) in any previously tried, tested and approved aircraft. (emphasis added).

SECTION IV EXCLUSIONS: The policy does not cover an Insured Person for any loss caused by, contributing to or resulting from…injury sustained while, or in consequence of, riding as a passenger or otherwise, in…any vehicle or device for aerial navigation other than as provided by Section II, Coverage.”

 

The Insurance Company advanced two principal contentions relating to interpretation of the policy on summary judgment and at trial: (1) the policy required that the status of an insured person as passenger, pilot or crew member be established at some point during the flight before the death or injury occurred (i.e. before the so-called moment of impact); and (2) even if the insured person’s status was to be determined at the moment of impact, Jordan’s actions during the flight nevertheless established that he was a pilot or crew member and therefore was not entitled to coverage.

 

The district court, applying Alabama law, rejected each of these contentions and ruled for Jordan. First, the court held that the policy was ambiguous, and, construing it against its drafter as required by Alabama law, it determined that an insured’s status must be determined at the moment of impact. Secondly, the court held that Reliable had not met its burden of proving that Jordan was a pilot or crew member at the moment of impact and that therefore the policy covered him at the time of his death.

 

Some courts in the United States have held that the determination of whether the insured was acting as a “pilot” or “crewmember” must be determined by the tasks that the insured had while on the flight. For instance, if the insured gathered weather information, talked on the radios, did the preflight check, etc., he or she may have been the “pilot” on that flight. Keyser v. Connecticut Gen. Life Ins. Co., 617 F. Supp. 1406, 1413 (N.D. Ill. 1985). In Jordan v. Natl. Acc. Ins. Underwriters Inc., however, the Court says that the insurance company could have limited coverage by defining the key terms in the policy so as to expressly rule out the moment of impact test. It could have defined “pilot” as “any person who operates any flight control at any time during the flight in question,” but it did not. As a result, the Court etched out the moment-of-impact rule, where the insurance company must determine “pilot” or “crewmember” status at the time of the accident.

 

What does all this mean for you? First, know what your accidental death and dismemberment policy says. What are the exclusions? How does it define “pilot” or “crewmember?” Secondly, know what the state of the law is on this issue in your state. An aviation accident is a very unfortunate occurrence; however, it can be much worse for your family if they have to wrestle with insurance companies after you are gone. If you have any questions, feel free to contact an aviation attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.