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Hartless v. Allstate Texas Lloyds Insurance Co.12/6/2005
r terms of definition such as ownership an maintenance." Pan Am. Ins. Co., 437 S.W.2d at 545 (emphasis added) (holding that refueling of truck was maintenance, not use); see State Farm Mut. Auto. Ins. Co. v. Whitehead, 988 S.W.2d 744, 745 (Tex. 1999) (where State Farm urged that "use" refers to use of the vehicle as a vehicle); Nationwide Prop. & Cas. Ins. Co. v. McFarland, 887 S.W.2d 487, 493 (Tex. App.---Dallas 1994, writ denied) (discussing definition of "use" as "employment of a vehicle as a means of transportation, or some other purpose incident to transportation").
The Texas Supreme Court has also attempted on several occasions to provide some guidance in determining when an injury arises out of the use of a vehicle, and has set out (nonexclusive) considerations.
For an injury to fall within the "use" coverage [or exclusion] . . . (1) the accident must have arisen out of the inherent nature of the automobile, as such, (2) the accident must have arisen within the natural territorial limits of an automobile, and the actual use must not have terminated, (3) the automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury.
Lindsey, 997 S.W.2d at 157 (quoting 8 Couch on Insurance 3D ยง 119.37, at 119-56 (1997)). We also recognize that the court did not propose these factors as an absolute test, recognizing that the third factor is especially troublesome. Additionally, the court added a fourth factor to examine: whether a person is using a vehicle as a vehicle depends not only on his or her conduct, but on his or her intent. Lindsey, 997 S.W.2d at 156; Lyons, 41 S.W.3d at 205.
We will attempt to apply the factors mentioned above to the facts of this case.
(1) Did the accident arise out of the inherent nature of the aircraft, as such? We do not believe that it did. The accident occurred when Tucker tipped the plane and it struck Hartless. The fact the object tipped by Tucker was an aircraft was incidental to the accident. The same type of accident and injury could have been caused if the two friends had been moving a piece of furniture and one lifted a corner of the furniture so that it tipped over and struck the other. Any number of items of personal property could have been the instrumentality involved. Nothing about the inherent nature of an aircraft caused this accident to occur. "The use required is of the vehicle qua vehicle, rather than simply as an article of property." Mid-Century Ins. Co., 997 S.W.2d at 156.
(2) Did the accident occur within the natural territorial limits of the aircraft? The accident did occur as the two men were within the natural territorial limits of the aircraft even though neither of them was piloting the plane or attempting to prepare the plane for use as an aircraft.
(3) Did the aircraft merely contribute to the condition which produced the injury or did the aircraft itself produce the injury? The aircraft itself actually struck Hartless and, in that sense, produced the injury. However, as pointed out previously, there is nothing peculiar to an aircraft that caused this injury. This situation is factually similar to the one addressed by the Texas Supreme Court in LeLeaux, 835 S.W.2d at 51. The court applied the same reasoning set out above: that "use" means "to put or bring into action or service; to employ for or apply to a given purpose." Id. In that case, a student was injured when she struck her head on the doorframe of the bus. The bus was not in operation; it was parked, empty, with the motor off. The driver was not aboard, and there were no students aboard. The bus was not "doing or performing a practical work"; it was
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