In Van Berlo v. Aim Underwriting Limited, 2014 ONSC 4648, Mr. Van Berlo, a potato farmer, crashed his twin engine Piper Aztec while attempting to take off from the Brantford Airport with one dead engine. Mr. Van Berlo was aware that his right engine was not working but believed a one-engine take off could be accomplished. The aircraft was insured for damage caused by an accident and Mr. Van Berlo sought coverage under his policy.
The insurer argued that Mr. Van Berlo was reckless to the extent that his conduct was outside the scope of coverage. The insurer submitted that in effect, Mr. Van Berlo recognized the dangers of his actions and deliberately assumed the risk. The insurer argued that a single-engine take off in dual engine aircraft so increased the risk that the crash could not be characterized as an "accident". The insurer submitted that Mr. Van Berlo's conduct amounted to an occurrence outside the risks intended to be insured by the policy.
Justice Mitrow reviewed the law and concluded that although Mr. Van Berlo's attempt at a single-engine take off was foolish and showed bad judgement, the crash was still an accident because it was "an unlooked for mishap or occurrence" and an accident can occur even if the conduct that caused the accident can be characterized as gross negligence.
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