Archive for August, 2015

Off Target – Hunting Club Insurance Doesn’t Cover Member Involved in Accidental Shooting (VA)

August 6, 2015

Marks v. Scottsdale Co. (Virginia)

This case involves a creative attempt by a tortfeasor to find insurance coverage.  The plaintiff Ray Marks, Jr. (“Marks) was a nonmember the defendant hunting club.  He had been injured when he was accidentally shot by a hunting club member (plaintiff Timothy B. Johnson [“Johnson”]) as the Marks was driving by the club’s property.  Both Marks and Johnson sued the club’s general liability insurer after the insurer denied insurance coverage to Johnson for the incident.  The insurer filed a motion for summary judgment contending that the club’s policy did not cover club members for their personal recreational activities, and the trial court granted the motion.  Plaintiffs appealed. (more…)

All Wet – Airport Not Liable for Failed “Soft-Field Take Off” (NY)

August 5, 2015

Bouck v. Skaneateles Aerodrome, LLC (New York)

This matter involved an unsuccessful attempt by a private plane to take off from a grass-surfaced runway at the defendant’s airport.  Plaintiff suffered personal injury when his plane encountered a soft and wet area on the runway, causing the plane to dig in and tip over.  Plaintiff was a flight instructor with 40 years of experience and he had utilized the defendant’s runway for more than 100 take offs and landings.  Although it had not rained on the day of the incident, it had rained for several days prior.  Before attempting to take off, plaintiff inspected the runway because he was concerned that the surface was soft and wet.  The trial court denied the defendant’s motion for summary judgment, and the defendant appealed.

On appeal, the Appellate Division of the Supreme Court reversed the decision.  The Court indicated that it agreed with defendant “that its airport is a designated venue for the recreational activity of private aviation and that plaintiff’s use thereof was in furtherance of his pursuit of that activity.”  The Court noted that “plaintiff’s recreational use of defendant’s airport was a qualifying activity under the doctrine of primary assumption of the risk” and that the “primary assumption of the risk doctrine also encompasses risks involving less than optimal conditions.”  It was not necessary for the plaintiff to have foreseen the exact manner in which his injury occurred, so long as he was aware of the potential for injury or the mechanism from which injury resulted.

Don’t Believe the Type – No Liability Coverage for Event Production Company Despite Contrary Insurance Certificate (LA)

August 4, 2015

Daniels v. SMG Crystal, LLC (Louisiana)

This case revolves around the 2005 Essence Festival held at the Louisiana Superdome in New Orleans. An attendee of the event slipped and fell on an unknown substance at the Superdome, suffering personal injury.  She filed a lawsuit against government entities, the Superdome manager, the festival organizer, and a production company hired by the organizer to produce the festival.  The government entities and the Superdome manager filed cross-complaints against the festival organizer and the production company seeking defense and indemnity protection.  The organizer filed a cross complaint against the production company and its commercial general liability (“CGL”) insurer.  The insurer eventually filed a motion for summary judgment on the grounds that it did not owe a duty to defend or indemnify any of the parties under the CGL policy.  The District Court initially denied the motion, but later granted the insurer’s motion for a new trial and for summary judgment.  Appeals followed.  On appeal, the Court of Appeal of Louisiana vacated the District Court decision and remanded the matter.  On remand, the District Court granted the insurer’s motion for summary judgment against the injured attendee and the production company on the issue of insurance coverage, and it dismissed all the claims against the insurer.  The production company appealed again. (more…)