Khiry Cosey on Behalf of Her Minor Children, Corbin Hilliard and Allyssa Hilliard Individually and on Behalf of the Estate of Reginald Hilliard, Jr; Tiara Liggins on Behalf of Her Minor Child, Takhiree Hilliard Individually and on Behalf of the Estate of Reginald Hilliard, Jr.; Tukeya Jarvis Individually and on Behalf of Thomas Hilliard; And Dorothy Jarvis v. Flight Academy of New Orleans, LLC; Jazz Aviation, LLC; Qbe Insurance Corporation; Christiansen Aviation, Inc.; Abc Insurance Company; Signature Flight Support Corporation; Allianz Global Corporate & Specialty Se; The Estate of James Biondo; And Def Insurance Company

KHIRY COSEY ON BEHALF * NO. 2019-CA-0757
OF HER MINOR CHILDREN,
CORBIN HILLIARD AND *
ALLYSSA HILLIARD COURT OF APPEAL
INDIVIDUALLY AND ON *
BEHALF OF THE ESTATE OF FOURTH CIRCUIT
REGINALD HILLIARD, JR; *
TIARA LIGGINS ON BEHALF STATE OF LOUISIANA
OF HER MINOR CHILD, *******
TAKHIREE HILLIARD
INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF
REGINALD HILLIARD, JR.;
TUKEYA JARVIS
INDIVIDUALLY AND ON
BEHALF OF THOMAS
HILLIARD; AND DOROTHY
JARVIS

VERSUS

FLIGHT ACADEMY OF NEW
ORLEANS, LLC; JAZZ
AVIATION, LLC; QBE
INSURANCE CORPORATION;
CHRISTIANSEN AVIATION,
INC.; ABC INSURANCE
COMPANY; SIGNATURE
FLIGHT SUPPORT
CORPORATION; ALLIANZ
GLOBAL CORPORATE &
SPECIALTY SE; THE ESTATE
OF JAMES BIONDO; AND DEF
INSURANCE COMPANY

CONSOLIDATED WITH: CONSOLIDATED WITH:

KHIRY COSEY ON BEHALF OF NO. 2019-CA-0786
HER MINOR CHILDREN,
CORBIN HILLIARD AND
ALLYSSA HILLIARD
INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF
REGINALD HILLIARD, JR;
TIARA LIGGINS ON BEHALF OF
HER MINOR CHILD, TAKHIREE
HILLIARD INDIVIDUALLY AND
ON BEHALF OF THE ESTATE OF

REGINALD HILLIARD, JR.;
TUKEYA JARVIS INDIVIDUALLY
AND ON BEHALF OF THOMAS
HILLIARD; AND DOROTHY
JARVIS

VERSUS

FLIGHT ACADEMY OF NEW
ORLEANS, LLC; JAZZ
AVIATION, LLC; QBE
INSURANCE CORPORATION;
CHRISTIANSEN AVIATION, INC.;
ABC INSURANCE COMPANY;
SIGNATURE FLIGHT SUPPORT
CORPORATION; ALLIANZ
GLOBAL CORPORATE &
SPECIALTY SE; THE ESTATE OF
JAMES BIONDO; AND DEF
INSURANCE COMPANY

CONSOLIDATED WITH: CONSOLIDATED WITH:

KHIRY COSEY ON BEHALF OF NO. 2019-CA-0878
HER MINOR CHILDREN,
CORBIN HILLIARD AND
ALLYSSA HILLIARD
INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF
REGINALD HILLIARD, JR;
TIARA LIGGINS ON BEHALF OF
HER MINOR CHILD, TAKHIREE
HILLIARD INDIVIDUALLY AND
ON BEHALF OF THE ESTATE OF
REGINALD HILLIARD, JR.;
TUKEYA JARVIS INDIVIDUALLY
AND ON BEHALF OF THOMAS
HILLIARD; AND DOROTHY
JARVIS

VERSUS

FLIGHT ACADEMY OF NEW
ORLEANS, LLC; JAZZ
AVIATION, LLC; QBE
INSURANCE CORPORATION;
CHRISTIANSEN AVIATION, INC.;
ABC INSURANCE COMPANY;

SIGNATURE FLIGHT SUPPORT
CORPORATION; ALLIANZ
GLOBAL CORPORATE &
SPECIALTY SE; THE ESTATE OF
JAMES BIONDO; AND DEF
INSURANCE COMPANY

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-09317 C\W 2016-11198, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
******
Judge Joy Cossich Lobrano
******
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy
Cossich Lobrano)

BELSOME, J., CONCURS IN THE RESULT

John D. Sileo
Casey W. Moll
LAW OFFICE OF JOHN D. SILEO, LLC
320 North Carrolton Avenue, Suite 101
New Orleans, LA 70119

Eric J. Allen (Admitted Pro Hac Vice)
ZEHL & ASSOCIATES, PC
2700 Post Oak Blvd., Suite 1120
Houston, TX 77056

Roderick “Rico” Alvendia
Jeanne K. Demarest
Kurt A. Offner
ALVENDIA, KELLY & DEMAREST, L.L.C.
909 Poydras Street, Suite 1625
New Orleans, LA 70112-4500

Cleo Fields
THE FIELDS LAW FIRM, LLC
2147 Government St.
Baton Rouge, LA 70806

Ike Spears
SPEARS & SPEARS
909 Poydras Street, Suite 1825
New Orleans, LA 70112

COUNSEL FOR PLAINTIFFS/APPELLANTS

Darrell K. Cherry
Stephen D. Collins
DEUTSCH KERRIGAN, LLP
755 Magazine Street
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLANT

Robert I. Siegel
Leo R. McAloon, III
GIEGER LABORDE & LAPEROUSE, LLC
701 Poydras Street, Suite 4800
New Orleans, LA 70139

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

MAY 13, 2020

JCL In this insurance coverage dispute, multiple parties appeal the April 23, 2019

DLD district court judgment, which granted partial summary judgment in favor of

defendant/appellee, QBE Insurance Corporation (“QBE”), finding no coverage

under QBE aviation commercial general liability policy number QAV0000847 (the

“CGL policy”) and dismissing all claims against QBE under its CGL policy.1 For

the reasons that follow, we affirm.

This litigation arises out of an airplane crash during an aerial tour over New

Orleans departing from the Lakefront Airport. Briana Davis (“Davis”) and her

boyfriend, Reginald Hilliard, Jr. (“Hilliard”), were the passengers, and the pilot

was James Biondo (“Biondo”). When the airplane crashed into Lake Pontchartrain,

Hilliard and Biondo drowned, while Davis escaped and survived. Davis and

numerous members of Hilliard’s family (the “Hilliard plaintiffs”) filed lawsuits,

1
As discussed in this opinion, the judgment found coverage under a separate aircraft policy, also
issued by QBE, and QBE remains a defendant in this litigation with respect to damages allegedly
covered under the aircraft policy.

1

and these lawsuits were consolidated. The defendants named in these consolidated

lawsuits, which are pertinent to this appeal, include:

 Estate of James Biondo (“Biondo’s estate”);

 Flight Academy of New Orleans, LLC (“FANO”) as operator of the
aerial tour, lessee of the airplane, and Biondo’s alleged employer or
principal;

 Jazz Aviation, LLC (“Jazz”), which is a separate company2 operating out
of the same office as FANO and having the same members as FANO;
and

 QBE as insurer for FANO and Jazz.

QBE issued a CGL policy to FANO and Jazz containing the following

relevant provisions:

COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE
LIABILITY

1. Insuring Agreement
a. We will pay those sums that the insured becomes legally
obligated to pay as damages because of bodily injury or property
damage to which this insurance applies resulting from your aviation
operations….
b. This insurance applies to bodily injury and property damage
only if:
(1) The bodily injury or property damage is caused by an
occurrence that takes place in the coverage territory:
…

2. Exclusions
This Insurance does not apply to:
…
g. Aircraft, Auto, Or Watercraft
Bodily injury or property damage arising out of the ownership,
maintenance, use, or entrustment to others of an aircraft, auto, or
watercraft owned or operated by or rented or loaned to any insured.
Use includes operation and loading or unloading and with respect to
aircraft, operated by also includes operation on behalf of any insured.

2
The record reflects that FANO’s primary business is flight training and aerial tours, while
Jazz’s primary business is charter flights.

2

This exclusion applies even if the claims against any insured allege
negligence or other wrongdoing in the supervision, hiring,
employment, training, or monitoring of others by that insured, if the
occurrence which caused the bodily injury or property damage
involved the ownership, maintenance, use or entrustment to other of
any aircraft, auto, or watercraft that is owned or operated by or
rented or loaned to any insured….
…
SECTION V – DEFINITIONS
3. Aircraft means any aircraft including engines, propellers,
operating, and navigating instruments and radio equipment attached to
or usually attached to or carried on the aircraft. Including component
parts detached, and tools therein which are standard tor the make and
type of aircraft. The term aircraft excludes missiles, spacecraft and
launch vehicles.
…
5. Aviation operations means all operations arising from the
ownership, maintenance, or use of locations for aviation activities,
including that portion of roads or other accesses that adjoin these
locations. Aviation operations include all operations necessary or
incidental to aviation activities.
…
7. Coverage territory means;
a. The United States of America (including its territories and
possessions), Puerto Rico, and Canada;
b. International waters or airspace, but only if the injury or damage
occurs in the course of travel or transportation between any places
included in a. above; …

18. Occurrence means an accident, including continuous or repeated
exposure to substantially the same general harmful conditions….

(Emphasis in original).

Davis, the Hilliard plaintiffs, and QBE each filed motions for partial

summary judgment regarding coverage under the CGL policy. Davis and the

Hilliard plaintiffs argued that the CGL policy provides coverage for their claims.

Conversely, QBE contended that the CGL policy’s “aircraft, auto, or watercraft”

exclusion (the “aircraft exclusion”) precludes such coverage. QBE conceded,

however, that it issued a separate aircraft policy to FANO, policy number

QAV0000846 (the “aircraft policy”), which provides coverage for the accident.

3

Biondo’s estate opposed QBE’s motion, but filed no separate summary judgment

motion. Following a hearing on April 12, 2019, the district court rendered

judgment on April 23, 2019, denying Davis’ and the Hilliard plaintiffs’ motions

and granting QBE’s motion. Davis, the Hilliard plaintiffs, and Biondo’s estate

timely appealed the judgment.3

An appellate court’s “review of a grant or denial of a motion for summary

judgment is de novo.” Jones v. Estate of Santiago, 03-1424, p. 5 (La. 4/14/04), 870

So.2d 1002, 1006 (citation omitted). Summary judgment procedure is favored in

Louisiana. La. C.C.P. art. 966(A)(2). “After an opportunity for adequate discovery,

a motion for summary judgment shall be granted if the motion, memorandum, and

supporting documents show that there is no genuine issue as to material fact and

that the mover is entitled to judgment as a matter of law.” La. C.C.P. art.

966(A)(3).

“A dispute as to whether, as a matter of law, an insurance policy provides or

precludes coverage to a party usually involves a legal question which can be

resolved in the framework of a motion for summary judgment.” Batiste v. City of

New Orleans, 11-1168, p. 3 (La. App. 4 Cir. 2/29/12), 85 So.3d 800, 802 (citations

omitted). “Although the insured bears the burden of proving a policy of insurance

affords coverage for an incident, the insurer bears the burden of proving the

3
On appeal, Davis, the Hilliard plaintiffs, and Biondo’s estate all raise similar assignments of
error: that the district court erred in (1) granting QBE’s motion for partial summary judgment
and (2) denying Davis’ and the Hilliard plaintiffs’ motions for partial summary judgment. Their
various arguments differ somewhat, however. In this opinion, we identify arguments raised by
Davis, the Hillard plaintiffs, and Biondo’s estate as being argued by “all appellants.” We identify
arguments by Davis and the Hilliard plaintiffs only (but not joined by Biondo’s estate) as being
argued by “the plaintiffs.”

4

applicability of an exclusionary clause within a policy.” Jones, 03-1424, p. 12, 870

So.2d at 1010 (citation omitted). “Summary judgment declaring a lack of coverage

under an insurance policy may not be rendered unless there is no reasonable

interpretation of the policy, when applied to the undisputed material facts shown

by the evidence supporting the motion, under which coverage could be afforded.”

Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La. 4/11/94), 634 So.2d 1180,

1183 (citing Westerfield v. LaFleur, 493 So.2d 600, 605 (La. 1986)).

In Sims v. Mulhearn Funeral Home, Inc., 07-0054, pp. 7-9 (La. 5/22/07),

956 So.2d 583, 588-90, the Louisiana Supreme Court summarized the principles of

insurance policy interpretation as follows:

… an insurance policy is a contract between the parties and should be
construed using the general rules of interpretation of contracts set
forth in the Civil Code.

According to those rules, the responsibility of the judiciary in
interpreting insurance contracts is to determine the parties’ common
intent. … In ascertaining the common intent, words and phrases in an
insurance policy are to be construed using their plain, ordinary and
generally prevailing meaning, unless the words have acquired a
technical meaning, in which case the words must be ascribed their
technical meaning.

An insurance contract is to be construed as a whole and each
provision in the contract must be interpreted in light of the other
provisions. One provision of the contract should not be construed
separately at the expense of disregarding other provisions. Neither
should an insurance policy be interpreted in an unreasonable or a
strained manner so as to enlarge or to restrict its provisions beyond
what is reasonably contemplated by its terms or so as to achieve an
absurd conclusion.

When the words of an insurance contract are clear and explicit
and lead to no absurd consequences, no further interpretation may be
made in search of the parties’ intent and courts must enforce the
contract as written. Courts lack the authority to alter the terms of
insurance contracts under the guise of contractual interpretation when

5

the policy’s provisions are couched in unambiguous terms. The rules
of contractual interpretation simply do not authorize a perversion of
the words or the exercise of inventive powers to create an ambiguity
where none exists or the making of a new contract when the terms
express with sufficient clarity the parties’ intent.

Nevertheless, if, after applying the general rules of contractual
interpretation to an insurance contract, an ambiguity remains, the
ambiguous contractual provision is generally construed against the
insurer and in favor of coverage. Under this rule of strict construction,
equivocal provisions seeking to narrow an insurer’s obligation are
strictly construed against the insurer. This strict construction principle
applies, however, only if the ambiguous policy provision is
susceptible to two or more reasonable interpretations; for the rule of
strict construction to apply, the insurance policy must be not only
susceptible to two or more interpretations, but each of the alternative
interpretations must be reasonable.

(Internal citations omitted).

With respect to exclusionary provisions within the insurance policy, the

Supreme Court further explained that “unless a statute or public policy dictates

otherwise, the insurers may limit liability and impose such reasonable conditions

or limitations upon their insureds.” Supreme Servs. & Specialty Co. v. Sonny

Greer, Inc., 06-1827, p. 6 (La. 5/22/07), 958 So.2d 634, 638-39 (citations omitted).

“In these circumstances, unambiguous provisions limiting liability must be given

effect.” Id., 06-1827, p. 6, 958 So.2d 634, 639. “If the insurance policy’s language

clearly expresses the parties’ intent and does not violate a statute or public policy,

the policy must be enforced as written.” Id., 06-1827, p. 6, 958 So.2d 634, 638.

In the matter sub judice, QBE sought summary judgment declaring that the

aircraft exclusion in its CGL policy precludes coverage for this accident. As set

forth above, the exclusion reads:

2. Exclusions
This Insurance does not apply to:

6

…
g. Aircraft, Auto, Or Watercraft
Bodily injury or property damage arising out of the ownership,
maintenance, use, or entrustment to others of an aircraft, auto, or
watercraft owned or operated by or rented or loaned to any insured.
Use includes operation and loading or unloading and with respect to
aircraft, operated by also includes operation on behalf of any insured.

This exclusion applies even if the claims against any insured allege
negligence or other wrongdoing in the supervision, hiring,
employment, training, or monitoring of others by that insured, if the
occurrence which caused the bodily injury or property damage
involved the ownership, maintenance, use or entrustment to other of
any aircraft, auto, or watercraft that is owned or operated by or
rented or loaned to any insured….

(Emphasis in original).

This Court interpreted a virtually identical “aircraft, auto or watercraft”

exclusion in a CGL policy, in a motor vehicle accident claim, and found this

exclusion “unambiguous.” Vise v. Olivier House Prop. Mgmt., LLC, 16-0741, p. 7

(La. App. 4 Cir. 4/12/17), 216 So.3d 157, 162; see also Howell v. Ferry Transp.,

Inc., 04-2057, p. 5 (La. App. 4 Cir. 3/29/06), 929 So.2d 226, 229 (finding an

exclusion, which contained the same language as the first paragraph of the

“aircraft” exclusion herein, unambiguous). There are no reported Louisiana cases,

however, interpreting this exclusion in aircraft crash litigation.4

4
The only reported Louisiana decision specifically addressing a policy exclusion for “use” of an
“aircraft” involved a farm CGL policy containing substantially different language from the QBE
CGL policy. In Little v. Kalo Labs., Inc., 406 So.2d 678 (La. App. 2d Cir. 1981), the Second
Circuit considered whether the exclusion applied to damage to a neighboring property from
chemicals sprayed on the insured property via aircraft. The court found a genuine issue of
material fact as to whether the chemical damage was caused by “use” of the aircraft, specifically,
whether the chemicals reached the neighboring property through the aircraft spraying the wrong
property or by chemicals drifting from the insured property. The Second Circuit took the view
that chemical drift from the insured property was too attenuated from “use” of the aircraft. Under
these facts, Little provides us with very limited guidance for resolving the issues on appeal.

7

QBE contends that the CGL policy covers premises liability at FANO’s

office at the Lakefront Airport but provides no coverage for the aircraft that FANO

operates. Conversely, all appellants claim that the policy language covering

“aviation operations” should be construed to include flying an aircraft. According

to all appellants, certain coverage provisions are ambiguous and contradict the

aircraft exclusion. All appellants, thus, contend that such ambiguity should be

construed against QBE, thereby affording coverage for Davis’ and the Hilliard

plaintiffs’ claims. Their argument points to the “definitions” section within the

“Insuring Agreement” in “Coverage A” of the policy, containing the definitions for

“aviation operations” and “coverage territory.” The policy definition for “aviation

operations” refers to “aviation activities,” which is not defined in the policy.5 The

policy also defines the “coverage territory” to include the U.S. and international

waters and airspace where damage occurs in the course of travel or transportation.

All appellants argue that the “coverage territory” definition renders the policy

ambiguous; they claim that there would be no need for coverage territory aside

from FANO’s offices at Lakefront Airport if the policy did not intend to cover

bodily injury resulting from the use or operation of an aircraft. We note that the

language “aviation operations,” “aviation activities,” and “coverage territory” do

not appear in the “aircraft exclusion.”

5
As reflected above, the insuring agreement states, in relevant part, that “[w]e will pay those
sums that the insured becomes legally obligated to pay as damages because of bodily injury or
property damage to which this insurance applies resulting from your aviation operations….”
Aviation operations are defined as “all operations arising from the ownership, maintenance, or
use of locations for aviation activities, including that portion of roads or other accesses that
adjoin these locations. Aviation operations include all operations necessary or incidental to
aviation activities.” (Emphasis in original).

8

In our view, appellants’ arguments involve a narrow reading of the policy,

which relies on isolated phrases but fails to accord meaning to the entire insuring

agreement. We find that accepting these arguments would contravene the well-

settled principles of contract interpretation. Appellants’ interpretation of the policy

would give this Court no choice but to disregard certain provisions at the expense

of others, which is prohibited. Rather, the Louisiana Supreme Court made clear

that “[o]ne provision cannot not be construed separately at the expense of

disregarding other provisions.” Sims, 07-0054, p. 12, 956 So.2d at 592. This Court

is required to construe the policy as a whole and interpret each provision in light of

other provisions. Id., 07-0054, p. 12, 956 So.2d at 591-92. “In determining whether

a policy provides coverage, every provision of the policy must be read and

interpreted.” Id., 07-0054, p. 12, 956 So.2d at 592. “Only then can a determination

of coverage be made.” Id. To determine coverage here, the broad insuring

agreement must be read together with the exclusionary provisions.

Appellants do not identify any ambiguity in the aircraft exclusion and do not

explain with any record evidence a reasonable interpretation of the exclusion that

would render it inapplicable to Davis’ and the Hilliard plaintiffs’ claims. Rather,

we adopt this Court’s holdings in Vise and Howell, and, likewise, we find no

ambiguity in the aircraft exclusion. Here, the CGL policy does not cover bodily

injury resulting from use of an aircraft owned or operated by any insured. It is

undisputed that the aircraft involved in this accident was being operated by an

insured under the policy at the time of the accident. A reading of the CGL policy as

9

a whole establishes that it covers bodily injury and property damage resulting from

the use of FANO’s premises, including all such operations that are necessary and

incidental to FANO’s business of operating aircraft, but excludes coverage for

accidents by FANO-operated aircraft. Under these facts, we do not find any

reasonable interpretation of the CGL policy which renders the aircraft exclusion

inapplicable or affords coverage for the accident. We thus reject appellants’

arguments that the policy is ambiguous.6

Also, all appellants contend that the CGL policy terms and the aircraft

exclusion contradict each other such that coverage is illusory. Appellants ask this

Court to conclude that the CGL policy cannot exclude coverage for an accident

arising from use of an aircraft, where the insured’s business is flying airplanes. We

find nothing in the record or the CGL policy that supports this argument. Rather,

insurers are “entitled to limit their liability and to impose reasonable conditions or

limitations upon the obligations they contractually assume,” as long as there is no

conflict with statute or public policy. Stewart Interior Contractors, L.L.C. v.

Metalpro Indus., L.L.C., 07-0251, p. 7 (La. App. 4 Cir. 10/10/07), 969 So.2d 653,

659 (citations omitted). “In these circumstances, unambiguous provisions limiting

liability must be given effect.” Id.

6
Because we do not find the policy ambiguous, we do not reach Biondo’s estate’s arguments
regarding the reasonable expectations doctrine. See Louisiana Ins. Guar. Ass’n v. Interstate Fire
& Cas. Co., 93-0911 (La. 1/14/94), 630 So.2d 759, 764)(the reasonable expectations doctrine is
used to resolve ambiguity in the policy).

10

We acknowledge that courts of this state have upheld exclusionary

provisions under similar circumstances. In Howell, 04-2057, p. 9, 929 So.2d at

231, this Court affirmed summary judgment enforcing an auto exclusion in a

transportation company’s CGL policy for an accident involving its tractor-trailer.

Similarly, in Williams v. Galliano, 601 So.2d 769, 770 (La. App. 1st Cir. 1992),

the Second Circuit enforced an auto exclusion in a waste management contractor’s

CGL policy for an accident involving its garbage truck.

We further note aircraft accident litigation in other jurisdictions. In Barba v.

Allianz Glob. Risks US Ins. Co., unpub., 16-2673 (S.D.N.Y. 10/25/16), 2016 WL

6236324, a New York federal district court, applying Alaska law, rejected the

argument that the aircraft exclusion eliminates most coverage under the policy for

aviation operations. Specifically, the court held that the aircraft exclusion applies

only to a subset of aviation activities that involves use of an aircraft, finding that

the exclusion:

… does not negate the Policy’s coverage of claims arising not out of
the use of an aircraft, but out of locations at which aviation operations
occur. For example, as Allianz notes, the Policy covers—and the
Owned Aircraft exclusion does not negate coverage—for personal
injuries such as slips and falls at premises owned, maintained or used
for the insured’s aviation activities.

Id. at *8.

We find this reasoning persuasive, and we find no impermissible conflict

within the policy as a whole.7 Thus, we find no merit in the contention that the

aircraft exclusion renders coverage illusory.

7
We are not persuaded by the argument that Little, supra, supports a finding of coverage or
requires us to find that the exclusion impermissibly “swallows” all coverage. As discussed

11

Davis and the Hillard plaintiffs also argue that the district court applied an

overly broad application of the aircraft exclusion. They contend that they raised

additional negligence claims arising out of FANO’s pre-flight conduct. They argue

that FANO negligently failed to conduct pre-flight safety briefings for its

passengers or implement a corporate policy requiring life preservers on flights,

conduct which they argue represents a different theory of liability and is beyond

the scope of the aircraft exclusion.

QBE argues, and we agree, that plaintiffs have not asserted any theory of

liability that is independent from its use of the airplane. As discussed above, the

second paragraph of the aircraft exclusion specifically provides:

This exclusion applies even if the claims against any insured allege
negligence or other wrongdoing in the supervision, hiring,
employment, training, or monitoring of others by that insured, if the
occurrence which caused the bodily injury or property damage
involved the ownership, maintenance, use or entrustment to other of
any aircraft, auto, or watercraft that is owned or operated by or
rented or loaned to any insured….

(Emphasis in original).

The aircraft exclusion explicitly addresses negligent training. Claims of

failure to provide passengers with a pre-flight safety briefing fall squarely within

this exclusion, and thus, are not covered by the CGL policy. In Calvin v. Janbar

Enterprises, Inc., 03-0382, p. 5 (La. App. 4 Cir. 9/24/03), 856 So.2d 88, 91, this

Court considered a similar “auto” exclusion and held that:

the use of the motor vehicle is an essential element to the plaintiff's
theory of liability, that [defendant] negligently hired, supervised, and

above, the Little court found that genuine issues of material fact whether “use” of the aircraft
caused plaintiffs’ damage. No such factual dispute exists here.

12

retained [driver] despite knowledge of his frequent drug use. Without
the motor vehicle, this accident, as tragic as it was, would not have
occurred. Therefore, we find that the provisions of the [] policy
exclude coverage …

See also Howell, 04-2057, p. 5, 929 So.2d at 229 (following Calvin and

excluding coverage for negligent hiring and supervision of driver, stating that use

of an auto was an essential element to the plaintiffs’ theory of liability).8

We also consider aviation accident cases of other jurisdictions interpreting

similar exclusionary provisions. In Reliance Nat. Ins. Co. v. Estate of Tomlinson,

171 F.3d 1033 (5th Cir. 1999), the U.S. Fifth Circuit made an Erie prediction as to

Mississippi law, recognizing the majority rule that liability for negligent

entrustment of an aircraft and negligent supervision are excluded from coverage by

owned aircraft provisions when the alleged acts could not have resulted in injury

but for use of the aircraft.

In Ranger Ins. Co. v. Branning, 984 F.Supp. 466, 468-69 (S.D. Miss. 1997)

– a related case arising out of the Tomlinson accident – a Mississippi federal

district court held that negligent operation of the aircraft fell clearly within the

aircraft exclusion. The court also found that the exclusion applied to preclude

coverage for the following other allegations: the pilot “negligently induced Rives

8
We find that plaintiffs misplace their reliance on cases wherein each of the theories of
negligence at issue was wholly independent from use of an automobile. See LeJeune v. Allstate
Ins. Co., 365 So.2d 471 (La. 1978)(negligent deputy traffic control at intersection); Manuel v.
Luckett, 577 So.2d 203 (La. App. 1 Cir. 1991)(negligent deputy radio dispatch); Sarp v. United
States Fidelity & Guaranty Company, 572 So.2d 158 (La. App. 1 Cir. 1991)(negligently serving
alcohol to minor); Trammel v. Liberty Mut. Fire Ins. Co., 01-0948 (La. App. 4 Cir. 2/13/02), 811
So.2d 78, writ granted, judgment rev’d, 02-0768 (La. 5/24/02), 816 So.2d 294 (negligent tree
removal); Tillman v. Canal Insurance Co., 305 So.2d 602 (La. App. 1st Cir. 1974), disagreed
with by Carter v. City Par. Gov’t of E. Baton Rouge, 423 So.2d 1080 (La. 1982)(negligent gravel
spill left unattended on roadway); and Frazier v. State Farm, 347 So.2d 1275 (La. App. 1 Cir.
1977)(negligent supervision of minor).

13

and others to go flying with him on the night of the accident”; “Tomlinson

Avionics failed to establish and enforce safety rules, regulations and policies to

prevent and guard against ‘events which might reasonably be expected to occur

and cause injury’”; and Tomlinson Avionics failed to “provide an adequate

security force to implement and enforce’ its duties under Mississippi law.”

Similarly, in Barba v. Allianz Glob. Risks US Ins. Co., unpub., 16-2673

(S.D.N.Y. 10/25/16), 2016 WL 6236324, the federal district court described the

aircraft exclusion as “categorical,” and found that negligent entrustment claims fell

within the exclusion, thus precluding coverage for all claims against the owner and

lessor of a helicopter that crashed.

We find these holdings persuasive and find no reason to deviate from their

reasoning. Negligent training of “others” – here, passengers – is both addressed in

the plain language of the aircraft exclusion and inextricably linked with use of the

aircraft. Failure to require life preservers on the aircraft is also dependent on use of

the aircraft. We find no merit in plaintiffs’ arguments that their alternative theories

of negligence fall outside of the aircraft exclusion.

In sum, we find that the aircraft exclusion applies and precludes coverage

under the CGL policy for Davis’ and the Hilliard plaintiffs’ claims. The district

court, thus, properly granted summary judgment in favor of QBE finding coverage

under the aircraft policy and dismissing all claims against QBE under its CGL

policy.

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Accordingly, for the reasons discussed herein, we affirm the judgment of the

district court.

AFFIRMED

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