U.S. District Court, Western District of Virginia
In McGirk v. Certain Underwriters at Lloyds’s, -- F. Supp. 2d --, 2014 WL 690684 (W.D.Va. Feb. 21, 2014), the U.S. District Court for the Western District of Virginia found that an action by an injured skydiver seeking payment under an aircraft hull and liability policy for a consent judgment he obtained in an underlying suit, was barred by the policy’s jumper exclusion. No appeal has been taken.
The action arose out of a 2009 incident in which the skydiver, Mr. McGirk, was injured while participating in a group skydive offered by the insured, Skydive Factory. Skydive’s aircraft carrying the jumpers was piloted by a contract pilot, Mr. Mehl. After jumping from the aircraft and while in midair, McGirk’s parachute was struck by the aircraft when Mehl made a prohibited low altitude pass—commonly known as a “buzz job”—over the landing area, causing McGirk to fall 15 to 20 feet to the ground. The investigation disclosed evidence that the buzz job had been requested by the group of skydivers who were performing a memorial jump for a deceased friend.
McGirk commenced a personal injury action against Skydive, and Mehl. Underwriters, represented by Sedgwick, denied coverage to both Skydive and Mehl on the basis that the policy excluded coverage for liability to skydivers. Skydive was dismissed from the personal injury action and Mehl agreed to an entry of judgment against him for $975,000 and, in exchange for an agreement that McGirk would not enforce the judgment against him in excess of $3000, assigned his rights to pursue payment of the judgment from Underwriters.
McGirk commenced an action in Virginia state court seeking to enforce the consent judgment against Underwriters. After removing the action to federal court, in lieu of filing an answer, Underwriters moved to dismiss the complaint for failure to state a claim based upon the policy’s jumper exclusion. The exclusion, contained in an endorsement, read:
Combined Single Limit (Bodily Injury/Property Damage) excluding Passenger Legal Liability, excluding Passenger Legal Liability to Occupants and excluding Liability to and of the jumpers after descending from aircraft and whilst attempting to exit the Aircraft.
Underwriters contended that the only reasonable interpretation of the exclusion is that it bars coverage for liability to skydivers at all times: while they are in, on or boarding the aircraft as passengers; while attempting to exit the aircraft; and after they have descended or jumped from the aircraft. Thus, liability for McGirk’s claim that he was struck in midair after jumping from the aircraft was outside the coverage of the policy.
McGirk opposed the motion to dismiss, raising several arguments as to why his claim was covered. His principal argument was that the exclusion was ambiguous and did not apply because he was hit by the plane “while“ he was descending—not “after“ descending. Agreeing with Underwriters’ position, the court noted that “descending” from the aircraft means getting down from, alighting or jumping from the aircraft. Anything occurring after that act is “after descending” from the aircraft. The court agreed that given the clear intent of the exclusion to exclude coverage for all phases of skydiving, plaintiff's suggested reading, which would create a small window of coverage for jumpers after they have jumped from the plane but before they have reached the ground, was unreasonable.
McGirk’s other arguments directed at the wording of the exclusion were equally unavailing. The court rejected McGirk’s argument that the exclusion “was not an exclusion at all” because it was included in an endorsement. Also, rejecting the argument that the exclusion was not comprehensible because the word “jumper” was not defined and the word “Liability” was capitalized but not defined, the court turned to the dictionary meanings of those terms and found no ambiguity. McGirk also argued that because the word aircraft in the phrase “after descending from aircraft” was not capitalized and the policy used the capitalized word “Aircraft” to refer to the scheduled plane from which he jumped, the exclusion must only apply to “some other airplane.” The court agreed that McGirk clearly descended from aircraft for purposes of the exclusion.
Finally, the court rejected McGirk’s argument that coverage under the policy, which the parties agreed was governed by Georgia law, was mandated by a Georgia statute defining vehicle insurance. McGirk relied on a portion of the definition, contained in § 33-7-9 of the Georgia code, that referenced “insurance against accidental death or accidental injury to individuals … caused by being struck by … aircraft” together with a Georgia appellate decision that appeared to say that the statute mandates minimum statutory requirements. The court found that, on its face, the statute does nothing more than provide a definition of vehicle insurance and does not contain any words suggesting an affirmative obligation to provide minimum insurance. Rather, the portion relied upon by McGirk was followed by the words “if such insurance is issued as part of insurance on the … aircraft,” which the court viewed as conditional language negating any purported mandate.