CHARLES A. KOHLER AND KENNETH POTEET, APPELLANTS,
v.
PROPRIETORS INSURANCE COMPANY, APPELLEE
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Court affirmed summary judgment for insurer, holding that an aircraft hull policy exclusion for operations "for which a charge is made" barred coverage where co-owners required a $125/hour payment from the operator.
An aircraft insurance policy exclusion for operations "for which a charge is made" applies when the insured co-owners required a fixed hourly payment as a prerequisite to use, regardless of whether payment was directed to a third party.
[1] An aircraft insurance policy exclusion for operations "for which a charge is made" encompasses a fixed hourly payment required by insured co-owners as a prerequisite to u…
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Join FLexlaw to unlock all legal intelligenceKohler and Poteet, co-owners of an aircraft, held an aircraft hull and liability insurance policy with Proprietors Insurance Company. When the aircraf…
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DANIEL S. PEARSON, Judge.
We affirm the summary final judgment in favor of Proprietors Insurance Company, issuers of an aircraft hull and liability poli cy. The policy, under which Kohler and Poteet, co-owners of the aircraft, claimed a loss when the aircraft was taken by one Stiller,1 excluded from coverage any operation of the aircraft “for which a charge is made.” It is undisputed that Kohler and Poteet required Stiller to make an hourly payment of $125.00 for use of the plane. The agreed-upon payment was a prerequisite to the use of the plane, not a gratuitous reimbursement of flight expenses, compare Pacific Indemnity Company v. Acel Delivery Services, Inc., 485 F. 2d 1169 (5th Cir. 1973), cert. denied, 415 U.S. 921, 94 S.Ct. 1422, 39 L.Ed.2d 476 (1979), with Houston Fire & Casualty Insurance Co. v. Ivens, 338 F. 2d 452 (5th Cir. 1964), and Fidelity & Casualty Co. of New York v. Marion L. Crist & Associates, Inc., 248 Ark. 1010, 455 S.W. 2d 904 (1970), and, therefore, a charge within the language of the policy. That the required charge was to be paid to a third-party charitable organization does not affect the result. See Restatement of Contracts § 75(d)(2) (1932); Guaclides v. Kruse, 67 N.J.Super. 348, 170 A. 2d 488 (1961).
In light of this disposition, we find it unnecessary to address whether the loss claimed was otherwise excluded from coverage.
Affirmed.
. Stiller went south with the plane: according to Kohler and Poteet, figuratively, see H. Went-worth and S. Flaxner, Dictionary of American Slang (2d Supp.Ed.1975), p. 505; according to Stiller, literally (the plane was seized in Barranquilla by Colombian authorities).
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- Point E. One Condo. Corp., Inc. v. Point E. Mgmt. Corp., 415 U.S. 921 (U.S. 1974)
- Tate v. Fauver, 415 U.S. 921 (U.S. 1974)
- Pac. Indem. Co. v. Acel Delivery Serv., Inc., 485 F.2d 1169 (5th Cir. 1973)
- Houston Fire & Cas. Ins. Co. v. Reba Ivens, 338 F.2d 452 (5th Cir. 1964)