قالب وردپرس درنا توس
Home / Insurance / Clear and unambiguous exclusion must be applied

Clear and unambiguous exclusion must be applied



T

he

took the court a decision to deny the Old Republic Insurance Company (Old Republic) a claim for summary judgment against the defendant Pro-Agr, Inc., (Pro -Agr) and Kyle Sjaskig. The district court found that Old Republic had an obligation to defend and provide insurance coverage to Pro-Agr in Kyle Dowdy's underlying personal injury claim against Pro-Agr for bodily injuries that Dowdy suffered during a crash while piloting Pro-Agr's aircraft. In Old Republic Insurance Company v. Pro-Agr, Inc. and Kyle Dowdy 2021 IL App 200340-U, Nos. 4-20-0340, 4-20-0365, Court of Appeals of Illinois, Fourth District (July 30, 2021), the Court of Appeal decided the dispute.
. injuries he sustained while flying Pro-Agr's aircraft.

In the underlying case, Dowdy claimed that he was injured when Pro-Agr & # 39 ;s Air Tractor AT-602 aircraft, which Dowdy was flying, crashed due to a mechanical fault. Dowdy claimed that his injuries were caused by Pro-Agr's breach of its duty (1) to maintain, inspect and repair its aircraft and (2) to comply with airworthiness directives … ”

Pro-Agr requested defense and reparations from the Old Republic. Old Republic informed Pro-Agr that Dowdy's claim for damages was not covered by Pro-Agr's insurance and Old Republic had no obligation to defend or indemnify Pro-Agr for any settlements, judgments, distribution of errors and / or contributions made to Pro-Agr in the underlying action. Although the Old Republic denied that it owed Pro-Agr either a defense or an indemnity, the Old Republic agreed to provide Pro-Agr with a defense subject to rights.

The Old Republic noted that its policy excludes coverage for any bodily injury caused by any "insured". The exemption provision stated:

We do not cover bodily injury suffered by the insured under this insurance. We will also not cover bodily injury caused by any family member to an insured under this insurance to the extent that such family member's bodily injury derives from or arises from, relates to or exists due to bodily injury suffered by an insured under this insurance. (Emphasis in original.)

The policy defined the term "insured" as follows:

Insured means both you and any person when using or cycling in your aircraft and any person or organization ( except in respect of the persons or organizations who are excluded from coverage under Parts IV and V under their respective "not covered" sections) legally responsible for its use, provided that the actual use takes place with your express permission. (Emphasis in original.)

Both Pro-Agr and Dowdy acknowledged that Dowdy used Pro-Agr's aircraft with Pro-Agr's permission when Dowdy was injured. Furthermore, Dowdy admitted that he "went" in the plane with Pro-Agr's permission, and Pro-Agr admitted that Dowdy piloted the plane with Pro-Agr's permission at the time of the accident.

ANALYSIS

In interpreting an insurance, the court is obliged to ascertain and enforce the intention of the parties, which is expressed in the language of the insurance. The construction given to an insurance company should be a natural and reasonable construction. Undefined terms will have their simple, common and popular meaning, that is, they will be interpreted with reference to the average, ordinary, normal, reasonable person. If the language of the insurance is receptive to more than a reasonable sentence, it is considered ambiguous and will be interpreted against the insurer.

If the actual claims either fall within or potentially fall within the insurance coverage, the insurer's obligation to defend its insured arises. In certain circumstances, a court may look beyond the allegations in the underlying complaint to determine whether there is any insurance coverage.

The consideration of a third party's complaint in determining an obligation to defend is in line with the general rule that a district court may consider evidence in addition to the underlying complaint if the court does not decide a matter critical to the underlying action. The district court does not have to wear protective curtains and can look beyond the complaint for other evidence that is suitable for a request for a summary judgment.

Demanding that the district court only look at the complaint in the underlying measure to determine coverage would make the declaration go little more than a useless exercise that has no accompanying benefit and would greatly reduce the purpose of a declaration measure to resolve and establish the parties' rights . essential facts are not in dispute. Dowdy piloted and used Pro-Agr's plane with Pro-Agr's permission when his alleged injuries occurred. When comparing these undisputed facts with the insurance in question, Dowdy was an "insured" according to the definition of the insurance when the plane crashed and he is alleged to have been injured. Since the insurance policy specifically states that the Old Republic "will not cover bodily injury caused by any insured under this insurance", the district court erred both by not granting the Old Republic's claim for summary judgment and by ordering the Old Republic to provide defense and coverage. to Pro -Agr.

The district court's decision to find Old Republic had an obligation to defend and cover Pro-Agr and dismiss this case with instructions for the district court to grant Old Republic's claim for summary judgment because the district court erred in denying Old Republic Insurance Company claim for summary judgment in this declaratory judgment. Kyle Dowdy's claim against Pro-Agr, Inc., in the underlying action, was excluded from the insurance coverage from the insurance Pro-Agr, Inc., purchased from Old Republic Insurance Company.

Ordinary language of the police clearly provided that it will not cover bodily injury indemnity brought by a pilot in Dowdy's situation and as insured. It is not unreasonable or draconian for an insurance company to offer its customers insurance that does not cover a claim like Dowdys. The Illinois Court of Appeal firmly refused to limit its decision on coverage to the underlying action but considered evidence and admissions that made it impossible for coverage for a defense or damages to apply.


© 2021 – Barry Zalma Barry Zalma, Esq. , CFE, now limits its practice to serving as an insurance consultant specializing in insurance coverage, insurance claims handling, unfaithful insurance and insurance fraud almost as much for insurers and policyholders.

He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance and claims management attorney and more than 54 years in the insurance industry.

He is available at http://www.zalma.com and zalma@zalma.com. Mr. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award. For the past 53 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurance companies and their indemnity staff to become insurance professionals.

Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma ; Go to Barry Zalma videos on Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to Insurance Claims Library-https: //zalma.com/blog/insurance-claims-library/ Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts; and the last two issues of ZIFL at https://zalma.com/zalmas-insurance-fraud-letter-2/ podcast now available at https://podcasts.apple.com/us/podcast/zalma-on -insurance / id1509583809? uo = 4


Source link