Playing with airplanes and other exceptions to the ‘eight corners’ rule

The accident occurred when the insured and a friend moved the insured’s home-built light plane outside to place it on movable scales and weigh it”just out of curiosity.” While attempting to weigh it, the insured tipped the plane on its nose, pinning the friend under the propeller and injuring him.

When the friend sought to recover from the insured, and the insured, in turn, sought coverage under his homeowner’s policy, Allstate filed a declaratory judgment action. Allstate relied on the aircraft exclusion, which precludes coverage for injuries “arising out of the ownership, maintenance, operation, use, loading or unloading of aircraft…” The trial court granted Allstate summary judgment.

On appeal, the court first recognized that “arising out of” usually requires “but for” causationthe injuries would not have occurred “but for” the excluded activity. The court concluded that ownership of the plane had no causal relationship to the accident, although without explaining what type of causal relationship to ownership would suffice. Similarly, the court found there was no relationship to “operation” or “maintenance,” as weighing the plane had nothing to do with its operability.

Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153 (Tex. 1999), addressing the scope of coverage under an auto policy. In Lindsey, the Court reasoned that “use” of an auto meant use “qua auto,” and not just an incidental relationship between the auto and the injury. After setting out those parameters, however, the Court concluded that an accident that occurred when a child climbed through the rear window of the cab of a pick-up truck to retrieve his jacket, and dislodged a gun in the gun-rack, causing it to fire and injuring someone in a nearby car, was adequately related to “use” of the auto.

The Texarkana court reached an opposite conclusion: That weighing the plane was unrelated to its essence as plane and did not arise out of its “use.” The court seemed to conclude that the weighing was purely diversionaryplaying with the plane rather than using itand so not excluded.

Lindsey test. What is use qua auto, or qua plane? If it had been essential to know the weight before flight, would the outcome be different? And where exactly are the parameters of “but for” analysis? While the court notes that there is no causal relationship to ownership, isn’t the same true in most cases involving an accident with an auto (or a plane)? Yet, the rules of construction require that each word be given meaning. The exclusion is obviously written broadly, to encompass most ways in which an insured can be responsible for, interact with, or control a plane. Still, at least under this analysis, there are gaps.

The case is also interesting in its analysis of the complaint allegation, or eight corners rule. To determine what evidence it should consider, the court of appeals also reviewed the scope of the eight corners rule.

In several recent opinions, the state and federal district courts and the Fifth Circuit Court of Appeals have analyzed whether and when a court can look beyond the pleadings to determine a duty to defendreaching conflicting results and even contradicting themselves. In Tucker, the court reviewed the various approaches to extrinsic evidence, and recognized at least a limited exception to the eight corners rule when the policy terms are ambiguous, or the petition does not include sufficient facts to determine coverage. Because the petition did not contain sufficient facts, the court looked to other summary judgment evidence to determine whether the exclusion applied. It may be notable, however, that neither party seemed to question the use of extrinsic evidence.

The court noted the opinion in Fielder Road Baptist Church v. GuideOne Elite Ins. Co., 139 S.W. 3d 384 (Tex. App. — Fort Worth 2004, pet. granted), in which the court of appeals recognized limited exceptions.

The Supreme Court has granted review, and may offer further guidance. Until then, the court’s analysis in Tucker seems to reflect a new, practical approach to the eight corners rule: Many courts will look to extrinsic evidence when it seems to be fair and make sense to do so.

Beth Bradley is a partner in the Dallas firm of Tollefson Bradley Ball & Mitchel, LLP. Her practice is focused on coverage analysis and insurance disputes.