A high school student accidentally injures a teacher. The teacher sues the student for negligence and the claim is turned in under his parents’ homeowners policy. Does the policy respond? While, as always, we would need to examine the language of THAT policy, it’s safe to say that most HO policies would extend liability coverage to accidents involving resident relatives. HOWEVER, what if the injury arose from the student throwing a paper airplane that hit a teacher in the eye?
That’s exactly what happened at a South Carolina high school earlier this month, though the issue in this published news account involved a charge of criminal assault and battery. But let’s assume the injured teacher files a lawsuit against the student. A good lawyer is going to sue on several grounds, including in this case most likely an intentional tort and also negligence. While most HO policies would exclude the intentional tort allegation, most would cover claims of ordinary negligence IF no exclusion applies. And that’s the rub.
This is what the liability exclusions in all ISO HO policies say with regard to “aircraft”:
This policy does not cover “aircraft liability”.
“Aircraft liability” is defined in the ISO policies to include ownership, maintenance, occupancy, operation, use, loading or unloading, entrustment, etc. of an aircraft. The definition goes on to include vicarious liability for the actions of a child, something that could be material since it’s likely that the parents will be sued as well. According to the definition:
Aircraft means any contrivance used or designed for flight except model or hobby aircraft not used or designed to carry people or cargo….
So, first we have a very broad, sweeping exclusion for ANY contrivance used or designed for flight, BUT then there is an exception incorporated for “model or hobby” aircraft as long as they are not used or designed to carry people or cargo. So, a paper airplane, though it is an aircraft, is clearly a model or hobby aircraft and exempted from the exclusion. The same would likely be true for most recreational drones.
HOWEVER, we are only examining the ISO HO policies. What if the policy covering the family is not an ISO form? Well, of course, we’d have to read it. And what we might very well find is that MANY non-ISO homeowners policies exclude aircraft of ANY kind. I have copies of dozens of non-ISO HO policies. One of them, from one of the largest HO insurers in the country, a direct writer, excludes “aircraft” without exception. Another insurer, an independent agency carrier, covers model aircraft, but not hobby aircraft. In fact, the ISO HO forms, as of 02/01/17 in most states, may now optionally exclude ALL aircraft, including hobby or model aircraft…see the last paragraph below.
If you represent an HO insurer that does not exclude BI or PD caused by drones, does that give you a sales advantage? For families that have drones, of course, especially if you know that a prospect is current insured with a carrier that doesn’t cover this exposure. Do you know which of your HO carriers cover or exclude drones or even paper airplanes? Do you know which of your competitors excludes them?
One other VERY IMPORTANT thing…ISO has filed a countrywide endorsement, the HO 34 02 17 – Aircraft Liability Definition Revised To Remove Exception For Model Or Hobby Aircraft (there is also one for personal injury), which, as the name implies, makes the HO aircraft exclusion absolute and applicable to drones and, arguably, to paper airplanes as well. This endorsement has a proposed effective date in most jurisdictions of February 1, 2017. So, be very vigilant when insuring customers with hobby drones to make sure that, even if it’s an ISO form, this new endorsement (or a company-specific form) is not added.
Photo by vivekkhurana
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