Schantini v. Hartford Accident & Indemnity Co.

COYTE, Judge,

dissenting:

I agree that the insured died while a passenger in an aircraft not being operated in accordance with F.A.A. regulations. However, the parties stipulate that it has not been determined whether the cause of the crash was mechanical failure, pilot error, or an act of God. It would be pure speculation and conjecture to say that the accident was in any way caused by the violation of an F.A.A. regulation.

All plaintiff must prove in order to be entitled to recover is that the policy was issued and that the insured died. The burden of proof is then upon the insurer to prove any exclusion from the life insurance coverage. Capitol Life Insurance Co. v. Roth, 191 Colo. 289, 553 P.2d 390 (1976).

This exclusion is similar to policy provisions that deny coverage whenever the insured’s death involves a violation of law. In interpreting these provisions, “[t]he majority rule is to the effect that there must be a causative connection between the violation of law and the injury received.” 1A J. Appleman, Insurance Law & Practice § 511. See Penn Mutual Life Ins. Co. v. *922Gibson, 160 Colo. 462, 418 P.2d 50 (1966). This rule has been applied to aviation exclusions in Security Mutual Life Insurance Co. v. Hollingsworth, 459 P.2d 592 (Okl.1969); South Carolina Insurance Co. v. Collins, 269 S.C. 282, 237 S.E.2d 358 (1977). See also 1A J. Appleman, supra, § 602 (1979 Supp.).

The causal connection requirement becomes essential when dealing with an exclusion broadly applicable to all existing F.A.A. regulations. Such an exclusion would “result in only a scantling of coverage in most airplane crashes. This is true since the federal aviation regulations are so labyrinthine that it is nearly impossible for a plane crash to occur without the violation of at least one regulation.” Southwestern Life Insurance Co. v. Rowsey, 514 S.W.2d 802 (Tex.Ct.Civ.App.1974). See also Thompson v. Ezzell, 61 Wash.2d 685, 379 P.2d 983 (1963). Furthermore, nothing in the exclusion limits its application to .private aircraft; presumably the insurer could avoid liability if the insured was a passenger on a commercial flight whose pilot failed to comply with a minor regulation not causally related to the crash.

As I read the aviation exclusion in this policy, the “caused by or resulting from” language is applicable to the provision regarding violation of agency regulations. My conclusion is supported not only by the apparent meaning of the provision, but also by the rule that ambiguities in insurance policies must be construed favorably to the insured, Travelers Insurance Co. v. Jeffries-Eaves, Inc., 166 Colo. 220, 442 P.2d 822 (1968), and, in particular, exclusions must be narrowly construed in favor of the insured. Ferndale Development Co. v. Great American Insurance Co., 34 Colo.App. 258, 527 P.2d 939 (1974). If the insurer wished to exclude coverage in this situation, it should have done so more clearly. Ferndale Development, supra; Bobier v. Beneficial Standard Life Ins. Co., Colo.App., 570 P.2d 1094 (1977). The only reasonable interpretation of this exclusion is to limit its effect to violations that proximately cause an accident.

The insurer has written an ambiguous policy provision and has failed to prove that the accident was caused by excluded activity. Insurance liability should not be so easily avoided.

I would reverse the judgment of the trial court.