The D.C. Court of Appeals Just Scrapped the Drone Registry and May Have Also Turned Homeowners Insurers into Aviation Insurers

by Butler Weihmuller Katz Craig LLP

Model-aircraft hobbyist John Taylor didn’t want to register his model aircraft with the FAA pursuant to the newly created drone registry. So he took on the FAA, challenging new regulations aimed at unmanned aircraft registration and flight restrictions. Last Friday (May 19, 2017), he won. See Taylor v. Huerta, Case No. 15-1495 (D.C. Cir. May 19, 2017). At issue were the recently issued FAA Regulation Rule and Advisory Circular requiring registration of drones and restricting their use in certain areas.  Although not an insurance-related lawsuit, the Taylor court’s ruling will certainly affect insurance-policy interpretation moving forward. Here’s why:

In citing to Section 336(a) of the FAA Modernization and Reform Act (“FMRA”), the Taylor court agreed with Mr. Taylor that the FAA did not have the authority to impose a registration rule for the use of drones. FMRA bars any rules or regulations concerning “model aircraft.” A “model aircraft” is defined under the Act as an “unmanned aircraft that is --- 1) capable of sustained flight in the atmosphere; 2) flown within visual line of sight of the person operating the aircraft; and 3) flown for hobby or recreational purposes.” The court ruled that the Registration Rule is squarely prohibited under FMRA, even though its stated purpose is aimed at addressing aviation-safety concerns.

Did you catch that? The D.C. Circuit Court of Appeals just concluded that hobby or recreational drones are “model aircraft” under the FAA Modernization and Reform Act and therefore can’t be regulated by the FAA. That means that the registration requirement and its modest registration fee weren’t permitted, but that’s not why you’re reading this. You’re reading this because many homeowners’ insurance policies exclude liability coverage for injuries or damage caused by an “aircraft” but then define “aircraft” as “any contrivance used or designed for flight, except model aircraft or hobby aircraft not used or designed to carry people or cargo.”

So, what’s the difference between a “drone” and a “model aircraft”? It seems like there is a difference, doesn’t it? But the difference, it seems, is impossible to articulate. At some level, we think of “model aircraft” as yellow, airplane-shaped hobby devices with propellers flown in public parks by pipe-smoking fathers bonding with their sons, and beyond question, this is what the actuaries had in mind when they blessed the insurance-policy definition of “aircraft” that excluded these wholesome little toys that hardly ever fly directly into someone’s face or capture compromising images of stalking victims. “Drones,” on the other hand, are model aircrafts’ more sophisticated cousins, equipped to do far more dangerous things than simply bring a smile to an apple-cheeked ten-year-old.

But as sure as we are that we understand the differences between the two, the difference defies articulation. Though we tend to think of “model aircraft” as being shaped like airplanes and “drones” as being quadcopters, we know that there are exceptions to both of these generalizations. Though we think of “model aircraft” as being operated by remote control within the pilot’s line of sight and “drones” as being self-piloting and utilizing global positioning systems, we know that there are model aircraft equipped with autopilot and drones that are operated by remote control within line of sight.

So far there isn’t a judicial opinion deciding whether a drone is a “model aircraft” within the meaning of an insurance policy that covers “model aircraft,” but the first judges to confront the question are undoubtedly going to read the D.C. Court of Appeal’s Taylor decision for some insight. And Taylor didn’t even attempt to distinguish between the two. The entire opinion uses “drone” and “model aircraft” interchangeably, and that should alarm homeowners’ insurers that believe there is a difference between a “drone” and a “model aircraft” as that term is used in the policy definition of “aircraft.” Though the Taylor opinion leaves room for the argument that “model aircraft” means something different in a homeowners’ policy than it means in FMRA, the argument doesn’t seem as persuasive after Taylor.

As technology continually advances, insurers scurry to keep up, accommodating shifting trends by clarifying policy language, definitions, and coverage. Only recently, the act of flying model aircraft was once such a rare, esoteric hobby that the additional risk of covering model aircraft under homeowners’ policies was negligible.  We have since, however, seen a recent surge in the number of people who own and fly recreational drones, which now expand across all walks of life.  The drone, which was once seemingly limited to the military, journalists, and first responders to capture photographs in hard-to-reach and/or dangerous places, is now widely used by everyday civilians.

Thus, for now, the ruling in Taylor  gives credence to the argument that the “model aircraft” exception to the aircraft exclusion means that homeowners’ insurers are covering drone risks. Insurers that don’t want to be caught flat-footed should consider either removing the “model aircraft” exception from their definitions of “aircraft” or setting their actuaries to the monumental undertaking of assessing how many of their policyholders have drones in their bedroom closets, and then quantifying this new risk that they may now be covering.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Butler Weihmuller Katz Craig LLP | Attorney Advertising

Written by:

Butler Weihmuller Katz Craig LLP

Butler Weihmuller Katz Craig LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.