In a Missouri case, the beneficiaries of an Accidental Death & Dismemberment (AD&D) plan brought suit for breach of contract after an insured was killed in an airplane crash near a private landing strip. The trial court entered judgment in accordance with a jury verdict for the beneficiaries and the insurer appealed. On appeal, the Court of Appeals held that: (1) the AD&D policy provided coverage for loss while insured was riding as a passenger but excluded coverage while riding as a pilot or crew member; (2) the insurer had the burden of proving that the insured was a crew member of pilot; and (3) the insurer waived its argument that the exclusion applied by failing to present the issue to the jury.
The insured was employed as a chemical engineer. During his employment he obtained a group AD&D policy naming his two sons and his friend as beneficiaries. While flying in his single engine airplane, the insured was killed when the plane crashed on a private landing strip in Missouri. Only two people were found in the plane, the insured and his friend. The two men frequently traveled together and both were pronounced dead at the scene by the county coroner. There were no eyewitnesses to the crash. The aircraft, a dual control amphibious plane, was owned by the insured and was capable of being piloted from either the left hand or the right hand seat. Both men were capable of flying the airplane. The insured had a pilot’s license, but at the time of the crash, his license had expired. The friend had held a student pilot certificate for two years which had also expired.
The court determined that the issue for jury decision was whether or not the insured was a passenger at the time his airplane crashed. The court determined that the insurer bore the burden of proof on this issue as part of its concurrent burden of proving that the exclusion for “death while piloting an aircraft” applied to preclude coverage. After failing to present evidence supporting its contention that the insured was piloting the plane at the time of the crash, the court awarded AD&D benefits to the beneficiaries.