New Trial – New Decision: Crash in a Deliberate Single Engine Take-Off is an “Accident”

A recent decision of the Ontario Superior Court considered the definition of an “accident” within the meaning of an aviation policy of insurance, with important consequences for insurers and pilots. In Van Berlo v. Aim Underwriting Limited, 2014 ONSC 4648, the plaintiff crashed his twin-engine Piper Aztec aircraft while deliberately attempting to take off with only one of the two engines functioning. The plaintiff sought recovery of $140,000 under his insurance policy. The insurer argued that the actions of the pilot were foreseeable, and therefore there was no “accident”, which is required to trigger the insurance policy.

Van Berlo has a storied history. In the original trial decision from 2012, the trial judge decided that the behavior of the plaintiff was reckless and outweighed what was to be expected coverage under an “accident” policy (2012 ONSC 5272). We have previously discussed this case on our Aviation Law Blog. The Court of Appeal reversed the decision from the bench, on the grounds that it was unclear whether the trial judge was referring to recklessness or negligence in her reasons (2013 ONCA 582). A new trial was held before Justice Mitrow who reconsidered the factual and legal issues in this case.

The evidence at the new trial showed that prior to take-off the plaintiff was unable to start the right engine. He inspected it and determined that it could not be started via the starter motor. The plaintiff chose to fly home with only one working engine—a six minute flight away—rather than have repairs undertaken at the airfield’s on-site repair shop. On take-off he hit a runway marker and slid through a cornfield before getting airborne. Once climbing, his right wing clipped a tree at the end of the runway. Realizing a crash was imminent, the plaintiff then turned the plane on one wing, to absorb the weight of the crash and prevent injury to himself. At trial, the plaintiff attempted to explain the thought process behind his decision, citing the lack of any warning against single engine take-offs in the flight manual or warning placards on the aircraft. He also cited hearsay stories from other pilots regarding the Aztek aircraft’s capability to achieve a single engine take-off.

The primary issue was whether these circumstance fell within the plaintiff’s insurance policy, which was limited to coverage for “occurrences”, defined as: “…an accident, or continuous or repeated exposure to conditions, which results in injury during the term of the Policy, provided the injury is accidentally caused…”. The term “accident” was not defined.

Justice Mitrow canvassed the relevant law regarding the interpretation of the undefined term of “accident” and concluded that an accident is “an unlooked for mishap or occurrence”, which can occur even where the conduct of the insured is negligent, or even grossly negligent.

In this case, Justice Mitrow found that although the plaintiff’s decision was “foolish” and negligent, the plaintiff believed that the take-off was possible and he was not courting the risk of a crash. The Court found that the plaintiff could not be said to have realized the danger of his actions and have deliberately assumed the risk, nor could his conduct be characterized as reckless to the extent that the “occurrence” was no longer an “accident”.

The insurer also argued that the plaintiff had breached an aircraft protection condition contained in the policy. The insurer argued that once it became clear there was a risk that the plaintiff could not complete the take-off, this condition imposed a duty upon him to minimize the damage and stop the aircraft. Justice Mitrow rejected this argument finding that by the time the risk of a crash materialized the only reasonable course of action was to continue to attempt the lift-off.