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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lisa Thompson v. United Services Automobile Association and Matthew Mrzena (1/26/2024) sp-7682
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
LISA THOMPSON, )
) Supreme Court No. S-18462
Appellant, )
) Superior Court No. 3AN-20-06539 CI
v. )
) O P I N I O N
UNITED SERVICES AUTOMOBILE )
ASSOCIATION and MATTHEW ) No. 7682 - January 26, 2024
MRZENA, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Yvonne Lamoureux, Judge.
Appearances: Jeffrey J. Barber, Barber & Associates, LLC,
Anchorage, for Appellant. Cheryl L. Graves, Farley &
Graves, P.C., Anchorage, for Appellees.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
HENDERSON, Justice.
INTRODUCTION
A woman was severely injured while moving an inoperable airplane. She
now seeks to recover from her husband's homeowner's insurance policy. The insurance
policy excludes injuries "arising out of" the ownership, maintenance, use, loading or
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unloading of an aircraft. The policy further defines "aircraft" as "any conveyance used
or designed for flight."
The woman claims that the policy should cover her injury because in her
view the aircraft became mere "parts" after her husband removed the wings, elevators,
and tail rudder. The superior court disagreed, concluding that the fuselage was still an
"airplane" and that, in any event, her injuries arose from her husband's ownership of
the aircraft. The court determined that her injuries were therefore not covered by the
policy. The woman appeals.
Agreeing with the superior court's interpretation of the homeowner's
insurance policy exclusion, we affirm.
FACTS AND PROCEEDINGS
A. Facts
Around 2011 Matthew Mrzena purchased a 1946 Piper PA-12 airplane
1
(Piper). Mrzena stopped using the Piper in 2014 when it failed an annual inspection
and was deemed no longer airworthy. In particular, the Piper's exterior fabric covering
was in disrepair. In order to repair the covering, Mrzena removed the wings, tail rudder,
and elevators from the fuselage, leaving the remainder of the fuselage and many other
parts intact, including the wheeled landing gear, propeller, seats, windows, and engine.
Mrzena kept the Piper in a plastic temporary garage at his home in Palmer.
In 2019, Mrzena purchased a new residence where he planned to live with
his now-wife Lisa Thompson. During the summer Thompson and Mrzena were in the
process of moving their belongings, including the Piper, to the new home. As part of
the move the Piper needed to be pushed out of the garage and onto a trailer. Mrzena
was pushing from the back of the Piper, with Thompson at the front, when Thompson
became pinned under the Piper 's nose. Thompson's resulting injuries were severe.
1 We use "Piper" here as a default term for clarity. We also use the term
"fuselage" to include the Piper's fuselage with other parts attached.
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During this time Mrzena had the Piper registered as an aircraft with the
Federal Aviation Administration (FAA). He also held an aircraft owner-specific
liability policy on the Piper with Avemco Insurance Company (Avemco). Throughout
his ownership of the Piper, Mrzena had continued to renew both the Piper's FAA
registration and the Avemco aircraft policy. Mrzena also held two homeowner
insurance policies with USAA at the time of Thompson's injuries, one related to the
residence Mrzena was moving from and one related to the new home he and Thompson
were moving into.
B. Proceedings
In December 2019 Thompson sued Mrzena to recover damages for her
injuries. Nearly two years later, Thompson, Mrzena, and Avemco entered into a
settlement agreement under which Avemco paid Thompson $57,500.
In the meantime, in June 2020, USAA filed a separate action in superior
court seeking a declaration that Thompson's personal injury claims were excluded from
coverage under Mrzena's two USAA homeowner's insurance policies. USAA moved
for summary judgment, seeking a determination that Mrzena's two USAA policies did
not cover Thompson's injuries. Thompson opposed and Mrzena joined her, both cross -
moving for summary judgment to establish that the policies covered Thompson's
injuries.
The superior court granted USAA's motion for summary judgment and
denied Thompson's cross-motion for summary judgment. The court noted that aside
from applying to different residences, both policies were identical. Examining the
policy language, the court noted that both excluded liability for "bodily
injury . . . [a]rising out of . . . the ownership, maintenance, use, loading or unloading
of . . . an 'aircraft' " (aircraft exclusion). Each policy defined "aircraft" as "any
conveyance used or designed for flight, except model or hobby aircraft not used or
designed to carry people or cargo."
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The court identified "the primary question . . . regarding coverage [as]
whether Thompson's injuries arose out of the ownership or use of an aircraft." Noting
that "arising out of" requires only "some causal connection" between the injury and the
activity - not a strict proximate cause determination - the court reasoned that "even
if Thompson's injuries were proximately caused by only part of an aircraft, the injuries
may still be causally connected to the ownership of an aircraft." (Emphasis added.)
The court then turned to the definition of "aircraft" under the policy, as
relevant both to determining whether Mrzena and Thompson were using an aircraft and
to determining whether Mrzena owned an aircraft at the time of the incident. It began
with the policy's definition of "aircraft": "any conveyance used or designed for flight,
except model or hobby aircraft not used or designed to carry people or cargo." It
considered Thompson's argument that "conveyance" meant "a means of transport," and
that a fuselage could not be considered a means of transport because it was only "part"
of an aircraft. It also considered USAA's argument that aircraft parts like a fuselage
were part of the definition of "aircraft" because "designed" means "planned or
conceived in detail or for a specific purpose" and the aircraft parts were designed for
flight.
The court concluded that "[t]he phrase 'conveyance used or designed for
flight' must be read as a whole." And considering the reasonable expectations of the
insured, the court concluded that "[n]o reasonable person would expect" that an insured
no longer owned an aircraft solely because the aircraft had been "partially disassembled
to make repairs . . . particularly . . . given that the policies exclude coverage for injuries
arising out of 'maintenance' of an aircraft," which often requires removing parts. The
court rejected Thompson's argument that the policy's definition of "aircraft" should
result in coverage of an injury incurred while moving inoperable parts. It described her
argument as "unreasonably narrow[ing] the aircraft exclusions" to require proximate
cause, with exclusions only applicable to a fully assembled, operable plane.
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The court also considered extrinsic evidence related to the insured's
reasonable expectations, looking to a photograph of the Piper in its state at the time of
Thompson's injury. It noted that the Piper's wings and part of the tail were removed,
but that the fuselage "remain [ed] attached to other parts, including the landing gear and
propeller." It noted that only parts requiring repair appeared to have been removed, and
that the Piper "otherwise resemble[d] an aircraft in size and form." The court concluded
that "[a] reasonable person would readily be able to identify the Piper . . . as an aircraft."
The court further noted Mrzena's continued registration of the Piper with the FAA over
the years, as well as his measures to insure the Piper under an aircraft liability policy
through Avemco.
Thompson appeals, contending that the superior court misinterpreted the
USAA policies' aircraft exclusion. Seeing no error, we affirm.
STANDARD OF REVIEW
We review a grant of summary judgment de novo, affirming "if there are
no genuine issues of material fact and the movant is entitled to judgment as a matter of
2
law." When making this determination we draw all reasonable inferences in favor of
3
the non-movant.
"If in reviewing a summary judgment [order] we must answer questions
of law, we will adopt the rule of law that is most persuasive in light of precedent, reason,
4
and policy." "Moreover, we may affirm a grant of summary judgment on grounds
5
other than those advanced by the [trial] court or parties."
2 Alakayak v. B.C. Packers, Ltd., 48 P.3d 432, 447 (Alaska 2002) (citing
Moore v. Allstate Ins. Co. , 995 P.2d 231, 233 (Alaska 2000)).
3 Moore , 995 P.2d at 233.
4 Id.
5 Id.
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DISCUSSION
Interpreting USAA's aircraft exclusion pursuant to the reasonable
expectations of the lay insured, we conclude that the policy 's exclusion of coverage for
injuries arising out of the ownership or maintenance of an aircraft applies here to
exclude coverage for Thompson's injuries. Regardless of whether the Piper was an
airplane or a collection of airplane "parts" when it injured Thompson, the injury arose
out of Mrzena's ownership. And counter to Thompson's argument, we observe that the
superior court did not improperly draw inferences in USAA's favor. In light of these
conclusions, we need not decide whether the Piper ceased to be an aircraft. We
therefore affirm the superior court.
A. The Policy Excludes Coverage For Thompson's Bodily Injuries
Because They Arose Out Of Mrzena's Ownership And Maintenance
Of The Piper.
"Insurance policies are construed . . . to honor a lay insured's reasonable
6
expectations." "Generally, we determine the liability of an insurer by the terms of the
7
policy the insurer has issued." "The objectively reasonable expectations of applicants
and intended beneficiaries regarding the terms of insurance contracts will be honored
even though painstaking study of the policy provisions would have negated those
8
expectations." "Policy language is construed in accordance with ordinary and
6 Ball v. Allstate Ins. Co. , 426 P.3d 862, 865 (Alaska 2018) (quoting State
Farm Mut. Auto. Ins. Co. v. Dowdy , 192 P.3d 994, 998 (Alaska 2008)).
7 Kalenka v. Infinity Ins. Cos., 262 P.3d 602, 607 (Alaska 2011).
8 Bering Strait Sch. Dist. v. RLI Ins. Co. , 873 P.2d 1292, 1295 (Alaska 1994)
(quoting State v. Underwriters at Lloyds London, 755 P.2d 396, 400 (Alaska 1988)).
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----------------------- Page 7-----------------------
9
customary usage." "We recognize a restriction on coverage if an insurer by plain
language limits the coverage of its policy."10
Thompson argues that although USAA 's homeowner's insurance policy
excludes injuries arising out of airplane ownership, maintenance, use, and other
activities, it nonetheless covers injuries caused by "airplane parts." USAA responds
that Thompson's injuries "arose out of" Mrzena's ownership of the Piper, so they
cannot be covered as a matter of law. The superior court concluded that "even if the
fuselage was the immediate cause of Thompson's injuries, the injuries still arose out of
Mrzena's ownership of the whole Piper."
We agree with the superior court. We begin our analysis with the policy's
language. The USAA policy broadly excludes coverage for bodily injury "arising out
of" not only use, loading, and unloading, but also ownership and maintenance of an
aircraft. This language supports the reasonable expectation that Thompson's injuries
would not be covered because Mrzena and Thompson's movement of the fuselage, and
her resulting injuries, "ar[ose] out of" Mrzena's ownership and maintenance of the
Piper. As USAA argues, a reasonable person would understand that the terms of the
policy exclude bodily injury "that has a causal connection to the possession and control
over (ownership [of]) an airplane." Regardless of which particular "part" struck
Thompson, the injury was causally connected to Mrzena's ownership of the Piper and
the homeowner's policy therefore excluded coverage.
As the superior court noted, given the clear language of the policy
exclusion, "it would be unreasonable to limit the scope of the aircraft exclusion to
accidents occurring only while the aircraft is fully assembled and operable." Indeed, to
conclude otherwise would ignore the policy's exclusion of coverage for bodily injury
9 Dowdy , 192 P.3d at 998.
10 Whittier Props., Inc. v. Alaska Nat 'l Ins. Co. , 185 P.3d 84, 88 (Alaska
2008).
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arising out of maintenance of an aircraft. The superior court logically observed that
"[m]aintenance often requires removing parts in order to repair or replace them" and
reasonable plane owners would not expect that their planes cease to be aircraft "solely
because the aircraft had been partially disassembled to perform that maintenance."
Consistent with that logic, Mrzena testified that he removed the wings, tail
rudder, and elevator to repair damage to the plane's exterior fabric, and to begin the
process of re-covering the components. The fact that several years elapsed between
Mrzena's initial removal of the Piper's fabric covering in 2014 and the time of
Thompson's injuries in 2019 does not remove the connection between those injuries
and Mrzena's ownership and maintenance of the airplane. And regardless of the
incomplete state of repairs, Mrzena and Thompson's movement of the Piper to their
new home still arose out of Mrzena's ownership of an aircraft. The clear and
unambiguous policy language excluding injuries arising out of ownership or
maintenance of an aircraft forecloses Thompson's argument that her injuries here were
covered by the policy.
We are not persuaded by Thompson's argument that the USAA policy's
separate provisions on property damage demonstrate that "USAA knew how to
distinguish . . . 'parts' " from a thing itself, and that this narrows the exclusion of
coverage for personal injuries arising out of the ownership or maintenance of an aircraft.
The property section states that the policy does not cover "motor vehicle(s)" including
but not limited to " 'aircraft' and parts." But the property section involves damage to
things, not bodily injury. And crucially, the property section does not use "arising out
of" language in describing coverage, or exclusions from coverage, for property damage .
Adopting Thompson's reasoning would disregard important differences in the language
of the separate sections of the policy.
Our precedent supports our interpretation. In Hale v. Fireman 's Fund
Insurance Co., we considered a claim brought by a grocery store employee who
suffered serious head and neck injuries resulting in permanent physical and mental
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impairment while unloading watermelons from a pickup truck into a container .11 The
man climbed onto the truck's tailgate and attempted to jump into the container, striking
his head on a low-hanging beam and then falling on the tailgate.12 The relevant
insurance policy excluded coverage for bodily injury "arising out of the ownership,
maintenance, operation, use, loading or unloading of" automobiles.13 We affirmed the
superior court's order on summary judgment that the employee's injuries fell in the
scope of the exclusion and were not covered.14 We held that the insurance company
and the insured "intended that accidents like [the employee's] would be excluded from
coverage" and that "it would be unreasonable to limit the scope of the exclusion"
because the policy's language clearly intended to exclude from coverage hazards
associated with loading and unloading.15 And we rejected the employee's argument
that the unloading activity "was incidental to the accident," noting that "[w]e are not
here determining questions of tort liability" but rather seeking to determine contracting
parties' intentions in the insurance policy.16
We later reaffirmed the broad nature of a homeowner insurance policy's
"arising from" coverage provision, as compared with a proximate cause requirement,
in C.P. ex rel. M.L. v. Allstate Insurance Co.17 There, we received certified questions
from the federal district court regarding whether a homeowner's insurance policy
covered the homeowners' alleged negligence preceding their adult son's assault on a
11 731 P.2d 577, 578 (Alaska 1987).
12 Id .
13 Id.
14 Id. at 581.
15 Id.
16 Id .
17 996 P.2d 1216, 1224 (Alaska 2000).
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person visiting their home.18 We held that although the homeowner's policy in question
excluded coverage of criminal and intentional acts, it also provided for coverage of
injuries "arising from an accident," and thus covered injuries "arising from" the
homeowners' alleged negligence.19 Indeed, we reasoned that that "arising from"
language "does not incorporate any requirement that an accident have been 'the
proximate cause.' "20 We further explained: "Nor does it foreclose coverage if an
accident was only 'a' cause," because "[t]he language 'arising from' is consistent with
multiple causes."21 As applied here, C.P. helps to demonstrate that a proximate cause
analysis is inapplicable in determining whether an injury "arose from" a particular thing
or event; even if Thompson 's injury was proximately caused by a mere airplane "part,"
the injury "arises out of" Mrzena's ownership or maintenance of the Piper.
We also consider persuasive the U.S District Court for the District of
Minnesota's approach in American Family Mutual Insurance Co. v. Pilarski, in which
a man injured his hand while attempting to winch his friend's boat back into a
boathouse.22 The policy at issue in that matter had a watercraft exclusion similar to the
aircraft exclusion here, excluding coverage of bodily injury "arising out of the
ownership, supervision, entrustment, maintenance, operation, use, loading or unloading
of a watercraft."23 Much of the Minnesota case involved interpreting the ambiguity of
"loading or unloading of a watercraft," which the court found could reasonably mean
either loading the boat itself by moving it (as into a boathouse or onto a truck) or loading
18 Id. at 1222-24.
19 Id.
20 Id. at 1224.
21 Id.
22 No. 0:17-CV-04463-KMM, 2018 WL 3193233, at * 1 (D. Minn. June 28,
2018).
23 Id. at *2.
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the boat with cargo and people.24 Evaluating that ambiguity, the court concluded that
a reasonable person in the position of the insured could conclude that the insurance
company intended the provision to limit exposure from either set of activities.25
However the Minnesota court determined that there was no genuine dispute that the
injuries "flowed from" the homeowner's possession of or control over the boat because
if he had not owned the boat, they would not have been in it and using it when the
injuries occurred.26 And the court reasoned that the policy's "arising out of" language,
combined with the ordinary meanings of "ownership" and "use," created "broad
exclusions for incidents related to boats."27 Similarly here, we conclude that a
reasonable person interpreting the USAA policy language's broad exclusions for
ownership, maintenance, and use would understand that the aircraft exclusion was
intended to create "broad exclusions" for incidents involving a homeowner's airplane.
Finally, a New York Supreme Court decision supports similar interpretive
principles. In Flood v. United States Fidelity & Guaranty Co., the New York court
considered a case involving a child injured on Flood's boat stored in a drydock on
Flood's neighbor's property.28 Flood's insurance policy excluded bodily injury "arising
out of the ownership, maintenance, operation, use, loading or unloading of any
watercraft," but Flood nonetheless sought indemnification and defense, arguing that the
exclusion was inapplicable because the boat was merely in storage.29 The court there
held that it did not matter "whether the watercraft is being operated or used, powered
or not. All that is necessary is that the injury arose out of the ownership, maintenance,
24 Id. at *3-5.
25 Id. at *4.
26 Id. at *5.
27 Id.
28 440 N.Y.S.2d 456, 456-57 (N.Y. Sup. 1981).
29 Id. at 457.
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operation, use, loading or unloading" of the boat.30 Similarly here, Thompson's injury
arose out of Mrzena's ownership and maintenance of the Piper even though the Piper
was in storage, partially disassembled, and not airworthy. The policy exclusion thus
applied.
Thompson asserts that the Piper is not an "actual aircraft" and became
mere "aircraft parts" at some point before her injury. She points to Dinocenzo v.
Aitken ,31 an Arizona case applying Alaska law that held a fuselage described as an "inert
hulk kept as a source of spare parts" and a "carcass . . . in the Arizona desert" was not
an airplane because it could not fly.32 There, an Anchorage cargo carrier was sued for
negligent maintenance of "a C-133 carcass at a location in the Arizona desert" while
holding an "Aviation Premises Liability" policy excluding bodily injury for "aircraft
owned, chartered, used or operated by or on account of" the Anchorage cargo carrier.33
Alaska law applied, so the Arizona court required "that the policy be construed to
provide the coverage a lay [person] would reasonably have expected from a lay
interpretation of policy language with ambiguities to be resolved against the insurer."34
Here we need not determine whether the Piper was an aircraft or mere
"parts" at the time of Thompson's injuries because we conclude that Thompson's
injuries "arose out of" Mrzena's ownership of the Piper. Moreover, we are not
persuaded by Dinocenzo as it is distinguishable on two points. First, and most
importantly, the Dinocenzo court applied a very different definition of "aircraft" than
that contained in the USAA policy in this case. The Dinocenzo court expressly
30 Id. at 458.
31 827 P.2d 478 (Ariz. App. 1991).
32 Id. at 478-79.
33 Id.
34 Id. (citing Weaver Brothers, Inc. v. Chappel, 684 P.2d 123 (Alaska 1984);
Starry v. Horace Mann Ins. Co., 649 P.2d 937 (Alaska 1982)).
12 7682
----------------------- Page 13-----------------------
acknowledged that it did not have a policy definition to apply, so it turned to the
American Heritage Dictionary definition of "aircraft."35 Because that definition turned
on whether a machine was "capable of flight" the court concluded that while it had no
doubt that the machine "was once an aircraft" under that definition, "it ceased to be so
when it was rendered incapable of flight and kept only as a source of spare parts."36
Here, the USAA policy contains a different and broader definition of "aircraft": "any
conveyance used or designed for flight, except model or hobby aircraft not used or
designed to carry people or cargo." The relevance of the Dinocenzo court's reasoning
is limited by that distinction.
And second, the Dinocenzo fuselage was a bare "carcass" in the Arizona
desert with no engine or instruments, whereas the Piper here only had three components
missing, with all other components intact, including the engine, propeller, flight
controls, other internal components, cockpit, seats, doors, landing gear, brakes, and
partial tail assembly. And while the Dinocenzo fuselage was used merely as a source
of spare parts, the Piper was neither abandoned nor beyond repair; Mrzena testified that
he removed the wings, tail rudder, and elevator temporarily to repair them and began
the process of re-covering each part in fabric. Given these distinctions, we are not
persuaded that Dinocenzo is instructive here.
In sum, considering the reasonable expectations of the insured, we
conclude that the USAA homeowner's policy excludes coverage of Thompson's
injuries because they "arose out of" Mrzena's ownership and maintenance of the Piper.
35 Id. at 479.
36 Id.
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B. The Superior Court Did Not Improperly Draw Inferences In USAA's
Favor.
Thompson also argues that the superior court erred in drawing
unreasonable inferences of fact in favor of USAA on summary judgment.37 She raises
three points, but none of those points are convincing.
First, she argues that the superior court made an improper inference when
it stated that "[n]o evidence indicates that Mrzena abandoned any intention to complete
the repairs and reassemble the Piper." She argues that the court's finding that Mrzena
still intended to repair the Piper required an inference, because there was no evidence
of his intent to continue "after years of failing to do so." But we are not convinced that
the court's statement is an inference at all. It is a plain statement of the absence of
evidence of Mrzena abandoning his intent to repair the Piper. Moreover, there is factual
support for the conclusion Thompson claims the superior court "inferred": Mrzena
expressly testified that he removed the fabric cover to make repairs.
Second, Thompson claims that the superior court inferred that Mrzena
"considered the fuselage an aircraft" because he maintained the Avemco aircraft
liability policy and made an injury claim and settlement under that policy. She suggests
that the court should have reviewed the Avemco policy and considered how an injury
arising from an aircraft part may fall under both USAA's and Avemco's policies
without inconsistency. But in considering the fact that Mrzena continued over time to
maintain the Avemco aircraft policy, the court did not improperly draw inferences
against Mrzena. Rather, this was part of the court's proper holistic inquiry into the
evidence of Mrzena's expectations from the perspective of a reasonable person in the
position of the insured.
37 Alaska R. Civ. P. 56(c); Progressive Cas. Ins. Co. v. Skin , 211 P.3d 1093,
1098 (Alaska 2009).
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And last, Thompson claims that the superior court improperly inferred that
Mrzena "considered the fuselage to be an aircraft" because he maintained its FAA
registration, citing that "there was no evidence about why he continued the registration"
and that the registration fee was only $5. But this also does not appear to present an
inference by the court. Rather, the court stated the undisputed fact that Mrzena
continued to register the Piper as an aircraft with the FAA as one point in analyzing the
reasonable expectations of the insured, and the court concluded that Mrzena either
"expected or reasonably should have expected" that the Piper was an aircraft under his
USAA homeowner's insurance policy. (Emphasis added.)
We thus reject Thompson's argument that the superior court improperly
drew unreasonable inferences of fact in favor of USAA. We further note that even
absent the superior court's consideration of extrinsic evidence as related to the
reasonable expectations of the insured, the clear language of the policy exclusion at
issue here is decisive.
CONCLUSION
Seeing no error in the superior court's analysis, we AFFIRM its order
granting summary judgment.
15 7682
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