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Hartless v. Allstate Texas Lloyds Insurance Co.12/6/2005
Lonnie L. Tucker and Kerry Hartless appeal from a summary judgment rendered in favor of Allstate Texas Lloyds Insurance Company, based on Allstate's position that it had no coverage for an injury to Hartless. In short, the summary judgment evidence shows that the two had moved Tucker's home-built light plane onto a set of movable scales to weigh it---just out of curiosity---and while finishing lining up one of the main wheels, Tucker tipped the plane onto its nose, pinning Hartless under the propeller. Hartless sought to recover from Tucker; Tucker called on Allstate, who provided his homeowner's insurance, to defend him. Allstate does not contend that coverage would not exist, but takes the position that an exclusionary clause prevents recovery.
Procedurally, the insurer sought a declaratory judgment specifying its rights and responsibilities under the terms of the policy, arguing that it had no duty to defend or cover the claim.
Allstate filed a motion for summary judgment, which was granted. Tucker's motion for summary judgment was denied. Tucker and Hartless contend that the court erred by granting summary judgment because Allstate failed to establish as a matter of law that it did not have a duty to defend. We agree.
In its motion for summary judgment, Allstate took the position that the injury was not covered under the "aircraft" exclusion because it "arose out of" the ownership, loading, maintenance, and/or use of Tucker's airplane. It asked the trial court to hold that coverage was excluded and that it had no duty to either defend or to indemnify. The trial court granted the motion.
As a general rule, the insurer is obligated to defend if there is, potentially, an action alleged within the policy coverage, even if the allegations do not clearly show there is coverage. Nat'l Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997); Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex. 1965).
Thus, the correctness of the judgment depends on the meaning of the policy exclusion, and its application to the alleged facts that resulted in the accident as shown by the pleadings, and the attached evidence. The exclusion is reproduced in whole.
1. Coverage C (Personal Liability) and Coverage D (Medical Payments to Others) do not apply to:
h. bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of aircraft:
Aircraft means any device used or designed for flight, except model or hobby aircraft not used or designed to carry people or cargo.
The evidence shows that the two friends, who own similar aircraft, were aircraft aficionados, and while they were at the airport where their aircrafts were stored, they began talking about the weight of the planes. Since a set of balance scales was in one of the hangars, they picked the scales up and moved them over to Tucker's airplane first, and slid one beneath each of the wheels. The scales were under the wheels, but while Tucker was positioning one scale to center it, he pulled on one side and the airplane nosed over on top of them both, pinning Hartless under the propeller.
Duty to Defend
A liability insurer is obligated to defend a suit if the facts alleged in the pleadings would give rise to any claim within the coverage of the policy. Utica Nat'l Ins. Co. v. Am. Indem. Co., 141 S.W.3d 198, 201 (Tex. 2004). An insurer's duty to defend is determined solely by the allegations in the pleadings and the language of the insurance policy. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002). The insurer bears
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