A recent decision of the Ontario Superior Court considered the
definition of an "accident" within the meaning of an
aviation policy of insurance, with important consequences for
insurers and pilots. In Van Berlo v. Aim Underwriting
Limited, 2014 ONSC 4648, the plaintiff crashed his twin-engine
Piper Aztec aircraft while deliberately attempting to take off with
only one of the two engines functioning. The plaintiff sought
recovery of $140,000 under his insurance policy. The insurer argued
that the actions of the pilot were foreseeable, and therefore there
was no "accident", which is required to trigger the
Van Berlo has a storied history. In the original trial
decision from 2012, the trial judge decided that the behavior of
the plaintiff was reckless and outweighed what was to be expected
coverage under an "accident" policy (2012 ONSC 5272). We
have previously discussed this case on our
Aviation Law Blog. The Court of Appeal reversed the decision
from the bench, on the grounds that it was unclear whether the
trial judge was referring to recklessness or negligence in her
reasons (2013 ONCA 582). A new trial was held before Justice Mitrow
who reconsidered the factual and legal issues in this case.
The evidence at the new trial showed that prior to take-off the
plaintiff was unable to start the right engine. He inspected it and
determined that it could not be started via the starter motor. The
plaintiff chose to fly home with only one working engine—a
six minute flight away—rather than have repairs undertaken at
the airfield's on-site repair shop. On take-off he hit a runway
marker and slid through a cornfield before getting airborne. Once
climbing, his right wing clipped a tree at the end of the runway.
Realizing a crash was imminent, the plaintiff then turned the plane
on one wing, to absorb the weight of the crash and prevent injury
to himself. At trial, the plaintiff attempted to explain the
thought process behind his decision, citing the lack of any warning
against single engine take-offs in the flight manual or warning
placards on the aircraft. He also cited hearsay stories from other
pilots regarding the Aztek aircraft's capability to achieve a
single engine take-off.
The primary issue was whether these circumstance fell within the
plaintiff's insurance policy, which was limited to coverage for
"occurrences", defined as: "...an accident, or
continuous or repeated exposure to conditions, which results in
injury during the term of the Policy, provided the injury is
accidentally caused...". The term "accident" was not
Justice Mitrow canvassed the relevant law regarding the
interpretation of the undefined term of "accident" and
concluded that an accident is "an unlooked for mishap or
occurrence", which can occur even where the conduct of the
insured is negligent, or even grossly negligent.
In this case, Justice Mitrow found that although the
plaintiff's decision was "foolish" and negligent, the
plaintiff believed that the take-off was possible and he was not
courting the risk of a crash. The Court found that the plaintiff
could not be said to have realized the danger of his actions and
have deliberately assumed the risk, nor could his conduct be
characterized as reckless to the extent that the
"occurrence" was no longer an "accident".
The insurer also argued that the plaintiff had breached an
aircraft protection condition contained in the policy. The insurer
argued that once it became clear there was a risk that the
plaintiff could not complete the take-off, this condition imposed a
duty upon him to minimize the damage and stop the aircraft. Justice
Mitrow rejected this argument finding that by the time the risk of
a crash materialized the only reasonable course of action was to
continue to attempt the lift-off.
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