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McGirk v. Certain Underwriters at Lloyd's

United States District Court, W.D. Virginia, Charlottesville Division

February 21, 2014

SAGE MCGIRK, Plaintiff,
v.
CERTAIN UNDERWRITERS AT LLOYD'S, LONDON SUBSCRIBING TO POLICY NO. B0595/TA044390Y, et al., Defendants

Page 838

For Sage McGirk, Plaintiff: Matthew Wayne Broughton, Travis Jarrett Graham, LEAD ATTORNEYS, Gentry Locke Rakes & Moore, Roanoke, VA.

For Certain Underwriters At Lloyd's, London Subscribing To Policy No. B0595/TA0443907, et al, Defendant: Elisabeth L. Manuel, James Wingate Barkley, LEAD ATTORNEYS, Morin & Barkley LLP, Charlottesville, VA; Andrew Timothy Houghton, Dirk C. Haarhoff, Timothy Donald Kevane, PRO HAC VICE, Sedgwick, LLP, New York, NY.

OPINION

Page 839

MEMORANDUM OPINION

Hon. Glen E. Conrad, Chief United States District Judge.

This case is presently before the court on the motion to dismiss filed by Certain Underwriters at Lloyd's, London Subscribing to Policy No. B0595/TA044390Y (" Lloyd's" ). For the reasons set forth below, the motion will be granted.

Factual Background

On June 13, 2009, plaintiff Sage McGirk participated in a group skydive offered by Skydive Factory. Robert Mehl, an agent of Skydive Factory, piloted the airplane carrying the group, which took off from the Orange County Airport in Orange, Virginia. " After the jumpers exited the plane" upon reaching the proper altitude and position, " Mehl turned and made a low pass over the landing area." Compl. ¶ 13. In doing so, " the aircraft struck McGirk's parachute in mid-air, which caused him to fall to the ground and suffer serious injuries." Id.

At the time of the incident, Skydive Factory had an aircraft hull and liability insurance policy issued by Lloyd's (" the Policy" ). The Policy insured Skydive Factory and others against certain liability and property damage arising from Skydive Factory's use of particular aircraft, including the DeHavilland DHC-6 Twin Otter operated on the day of the incident.

The Policy's Schedule provides as follows:

The Interest:
To cover the Insured against Hull physical loss or damage and to indemnify them in respect of their legal liability arising out of the ownership and/or operation of aircraft as per schedule but excluding passenger legal liability and excluding liability to occupants.
. . .

The Sum Insured:

Hull as per schedule
Combined Single Limit (Bodily Injury/Property Damage) excluding Passenger Legal Liability, excluding Liability to occupants and excluding Liability to and of jumpers after descending from aircraft and whilst attempting to exit the aircraft

Page 840

USD 1,000,0000 any one occurrence

Compl. Ex. A at 1.

The pertinent Insuring Agreement provides as follows:

COVERAGE E - SINGLE LIMIT -- BODILY INJURY (EXCLUDING PASSENGERS) AND PROPERTY DAMAGE LIABILITY.
To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, excluding any passenger, and for damages because of injury to or destruction of property, including the loss of use thereof, caused by an occurrence and arising out of the ownership, maintenance or use of the Aircraft.

Id. at 14. The Policy defines the term " Passenger" to mean " any person while in, on or boarding the Aircraft for the purpose of riding or flying therein or alighting from the Aircraft following flight or ...


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