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Carlson v. Old Republic Insurance Company9/16/2003
PUBLISHED
Plaintiff, as Administratrix of the Estate of Mark Elliott Carlson, brought this action seeking, inter alia, a declaratory judgment that defendant Old Republic Insurance Company (hereinafter "Old Republic") provided coverage under two insurance policies issued by it, for claims arising out of the 14 June 1999 crash of a Cessna aircraft registered to and owned by the David Drye Company, L.L.C. The aircraft's pilot, Kelly Ward, and three passengers, David Drye, Ann Drye and plaintiff's decedent, Mark Carlson, were killed in the crash. At the time of the accident, Ward was a part owner in Corporate Air Fleet, Inc. (hereinafter "Corporate Air") and owner of Ward's Aircraft Services, Inc. (hereinafter "Ward's Services"). Corporate Air maintained its own planes and those owned by others. In addition, it used its own planes to provide charter air service to fly persons or products. Ward's Services supplied aircraft maintenance and service and owned hangers for the purpose of aircraft storage.
Plaintiff, as administratrix of Carlson's estate, filed a suit in Mecklenburg County seeking damages for his wrongful death arising out of the aircraft accident. In the complaint, plaintiff alleged that Corporate Air and Ward's Services failed to provide adequate maintenance, repair, inspection or service on the airplane, and that such negligence contributed to the crash. In addition, the suit alleged that Ward was negligent in piloting the airplane and that he failed to provide adequate ground maintenance. At the time of the accident, there were in force two insurance policies, an Airport Liability Policy and an Aviation Policy, issued by Old Republic to Corporate Air and Ward's Services. The Airport Liability Policy provided comprehensive liability insurance to both Corporate Air and Ward's Services for ground services such as maintenance, fuel and oil, and for claims arising out of airport and airport premises operations. The Aviation Policy provided coverage to Corporate Air for bodily injury liability and property damage liability arising from the ownership, maintenance and use of specifically listed aircraft.
After the actions were tendered to Old Republic for defense and indemnification of Corporate Air, Ward's Services and Ward pursuant to these policies, Old Republic issued a reservation of rights letter as to coverage for Corporate Air and Ward's Services, and denied coverage for Ward. Plaintiff then filed this action requesting a declaration that coverage existed under the insurance policies. Old Republic answered, denying coverage and requesting a declaration to that effect. Plaintiff moved for partial summary judgment declaring that Old Republic is obligated to indemnify Corporate Air and/or Ward's Services under the Airport Policy should the plaintiff prevail in the underlying claim. Old Republic moved for summary judgment declaring that coverage did not exist under either policy and therefore, Old Republic would have no duty to defend or to indemnify for the accident.
The trial court entered an order in which it determined that Old Republic had a duty to defend Corporate Air and Ward's Services under the Airport Policy in the underlying wrongful death action, and that Old Republic's Airport Policy provided coverage to Ward's Services and/or Corporate Air for damages, if any, "in connection with the maintenance or service of the airplane . . . ." Holding that genuine issues of fact existed as to Old Republic's duty under the Airport Policy to defend and indemnify the Estate of Kelly Ward in the underlying wrongful death action, the trial court denied plaintiff's motion for summary judgment insofar as it sought such a declaration. Old Republic's motion for summary
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