PASSENGER INJURIES CAUSED BY ROUTINE DISINSECTION NOT CONSIDERED AN ARTICLE 17 “ACCIDENT”
 
In re: UAL Corporation, et al., Debtors. 30 Avi. 15,150. (Bankr. N.D. Il. 2004)
 
Plaintiffs filed a class action law suit seeking $6 billion in damages for personal injuries suffered by United Airlines passengers as a result of “disinsection” of United’s aircraft on international flights to Australia and New Zealand. Disinsection of the flights is done pursuant to the laws of Australia and New Zealand and involves the use of residual insecticides, applied to the surfaces of passenger compartment, and additional aerosol insecticides sprayed during flight. The plaintiffs claim that United has known that this disinsection process causes irritation in about 2% of those passengers exposed, and that United has chosen not to warn passengers of this known risk. The plaintiffs claimed that their injuries were an “accident” as defined by the Warsaw Convention because they had not been warned of the presence of insecticide and that therefore their contact with the insecticide was an “unexpected, external event [similar to] the movement of the surrounding surface of the plane into their bodies in a crash.”
 
The Court, in disallowing the plaintiffs’ claim, reviewed the decisions of the Supreme Court and foreign courts regarding the definition of accident, and adopted the Supreme Court’s definition of “accident” as “an unexpected of unusual evident or happening that is external to the passenger.” The Court then addressed the plaintiffs’ contention that an ordinary aspect of air travel could be considered an accident if it was unexpected by the passengers. The Court, in reviewing the Supreme Court decisions and looking to foreign courts interpreting the Warsaw Convention, found that the term “accident” has been confined to include only those causes of action that are “fortuitous or unpredictable” or “sudden and independent of the will of the carrier,” or “unexpected and unusual.” Reviewing the Article 17 decisions, the Court concluded that there were no decisions allowing recovery for injury arising from the “usual and ordinary operation of an aircraft,” and further, that the Supreme Court had barred recovery “when the injury indisputably results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.”
 
Finding injuries from disinsection to be a matter of first impression, the Court likened them to DVT injuries, where, the Court noted, recovery for failure to warn of DVT risk had been denied unless the plaintiff could prove that the carrier had departed from industry standards. The Court hen disallowed plaintiffs’ claims, holding that the plaintiffs’ injuries did not stem from an “unexpected or unusual” occurrence in that disinsection was a usual procedure and that plaintiffs failed to allege that United had violated industry disinsection standards.
 
INSURANCE -- COMMERCIAL EXCLUSION
 
Alberto-Culver Company v. AON Corporation, 30 Avi. 15,196 (Ill. App. 2004)
 
AAU/Alberto appealed from the circuit court’s grant of summary judgment in favor of USAU/Aon on the issue of insurer liability resulting from the 1996 crash of a Gulfstream G-IV aircraft owned by Alberto. Four people were killed as a result of this crash, they were the chief pilots of both Alberto and Aon, the CEO of Aon Risk Management, and a flight attendant employed by Executive Air. Aon and Alberto, each owners of a G-IV aircraft, had entered into an agreement, entitled Interchange Agreement, whereby each party could make use of the other’s G-IV on occasion, when needed. At the time of the crash, Alberto’s aircraft was being utilized by Aon under the terms of the Interchange Agreement. Alberto had insurance coverage provided by AAU; Aon had insurance coverage provided by USAU. Following the liability litigation, where the chief Aon pilot was found to be at fault for the crash, AAU sought a judicial declaration that Aon was not insured under the AAU policy issued to Alberto. USAU moved for cross-summary judgment against AAU and Alberto. The circuit court granted USAU’s motion for cross-summary judgment holding that Aon was covered under Alberto’s insurance policy and that therefore AAU was the primary insurer for this claim.
 
The Appellate Court in reversing the lower court’s decision, focused on Exclusion (i) of the AAU policy which provided that “the insurance afforded … does not apply to:
(i) any person or organization or agent or employee thereof (other than employees of the Named Insured) engaged in *** the operation of *** any flying service, or aircraft or piloting service, with respect to any occurrence arising out of such activity.”
AAU argued that this exclusion applied to Aon as a “flying service,” USAU argued that Aon was not excluded by this provision because the provision applied only to “commercial” flying services.[1] In interpreting this contract provision, the Court first noted that when the dispute arises between two insurance companies, the application of the contra preferendum rule[2] was inappropriate. The Court, then considering the language of Exclusion (i) found that the language was clear and unambiguous, holding that the use of the word “any” before flying service invoked the exclusion regardless of the “commercial nature” of the flying service. The Court also turned to Black’s Law Dictionary for the definition of “service,” which, defined as, “a duty or labor to be rendered by one person to another,” did not “connote monetary exchange.” Based on this plain meaning reading of the exclusionary clause, the Court reversed the circuit court’s grant of summary judgment and held that Aon was excluded from coverage as a matter of law.
 
The Court further reasoned that even if it read the word “commercial” into the exclusion, the exclusion would still apply to Aon. The Court reasoned that Aon’s use of Alberto’s aircraft for “private, in-house corporate purposes” could be considered a commercial use. The Court cited Airmanship v. Avemco Insurance Co., 559 So.2d 89 (1990), where USAU argued that a co-pilot fell within its “commercial aviation” exclusion because he was paid for his services, and the where the Florida District Court of Appeals agreed, holding that the lease of an aircraft to carry passengers or freight is “commercial.” The Court therefore reasoned that because, in the instant cast, the ill-fated flight was conducted under the terms of the Interchange Agreement, a lease by definition, “Aon necessarily engaged in the operation of a commercial activity at the time of the accident, placing it squarely within the scope of Exclusion (i).”

 
[1] USAU based its assertion on the “juxtaposition of ‘flight service’ amidst ‘other purely commercial activities,’ including the operation of any airport, hangar, [or] flying school.”
 
[2] Also referred to as the “anti-drafter inference” this rule is that the if “the policy language is susceptible to more than one meaning, it is considered ambiguous and will be construed strictly against the insurer who drafted the policy and in favor of the insured.”