O'Connor v. Proprietors Insurance Co.

COYTE, Judge,

dissenting.

I dissent.

The majority opinion uncritically applies the rule of Schantini v. Hartford Accident and Indemnity, 43 Colo.App. 79, 605 P.2d 920 (1971), that a violation of the express terms of the exclusionary provisions of a contract for insurance bars recovery by the insured even though there is no causal relationship between the violation and the accident. I am still of the opinion that Schanti-ni was wrongly decided and that the application of the rule announced therein leads to improper and unjust results.

The stipulated facts of this case graphically illustrate the harsh results of the application of the rule in Schantini. The sole basis for denial of coverage under the exclusion provision of the policy in this case was that the 100-hour inspection on September 22, 1978, was not designated as an annual inspection and was not performed by an Aircraft Inspector. It was stipulated that: “Although different persons are authorized to perform the types of inspections, the scope and detail of the inspections are exactly the same in all respects.” Furthermore, the trial court found that under F.A.A. Regulations it is possible that a 100-hour inspection may be substituted for an annual inspection if it is performed by a person authorized to perform annual inspections and is entered as an annual inspection in the record. There is nothing in the stipulated factual record to show that aircraft inspectors who are authorized to perform *1183annual inspections are any more skilled or qualified by way of education, training, or experience than are Aircraft and Power-plant Mechanics who are authorized to perform 100-hour inspections. As the trial court stated in its findings and conclusion, “There is nothing in evidence that explains why the precisely identical procedures done by an A & P are not as satisfactory or of less merit than if done by an A.I.” Here, there was compliance in substance but not with the strict letter of the F.A.A. regulations.

The result in this case points out the importance for requiring a causal connection when dealing with an exclusion broadly applicable to all existing F.A.A. regulations. As I stated in my dissent in Schantini, supra, Federal Regulations are so numerous and technical that there is virtually no plane crash that does not occur without the violation of at least one regulation. Logic and sound public policy dictate that insurance carriers not be allowed to deny coverage by invoking an exclusion clause that is triggered by a violation of such regulations where there is no causal connection between the claimed violation and the accident.

In my opinion the better reasoned approach requires that the exclusion provisions of aviation insurance policies should be interpreted in a manner similar to other policy provisions that deny coverage whenever the insured’s death involves a violation of law. In interpreting such 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.” 1 A.J. Appleman, Insurance Law and Practice, § 511. See Penn. Mutual Life Ins. Co. v. Gibson, 160 Colo. 462, 418 P.2d 50 (1966). Courts in other jurisdictions take such an approach. Security Mutual Life Ins. Co. v. Hollingsworth, 459 P.2d 592 (Okl.1969); South Carolina Ins. Co. v. Collins, 269 S.C. 282, 237 S.E.2d 358 (1977). See also 1 A.J. Appleman, supra, § 602 (1979 supp.).

Accordingly, I would reverse the judgment of the trial court.