OGH: No Insurance Event When Moving a Sailplane

Jun 9, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has commented on the waiver of liability in insurance policies with regard to damage arising from the use of an aircraft.

A household and homeowner’s insurance contract exists between the plaintiff and the defendant insurance company, including private liability insurance. The plaintiff’s wife is co-insured. The insurance is based on the Austrian General and Supplementary Conditions for Liability Insurance (Allgemeine und Ergänzende Bedingungen für die Haftpflichtversicherung, AHVB and EHVB 2009, as amended in 2012). According to Art. 7 of these policy conditions, waiver of liability excludes ‘damage caused by the policyholder or persons acting on the policy holder’s behalf by keeping or using aircraft or aviation equipment.’

The plaintiff’s wife helped him manually move his glider around in the hangar. In the course of this the glider’s canopy cracked.

The plaintiff then sought payment from the defendant liability insurer for the damage.

The dispute was whether moving the aircraft in the hangar constituted ‘using an aircraft’, as mentioned in the waiver liability list.

The OGH was on the side of the insurance company and applied the same reasoning from similar cases involving motor vehicles:

Strict liability under the Austrian Aviation Act (Luftfahrtgesetz, LFG) is termed similar to that in the Austrian Railway and Motor Vehicle Liability Act (Eisenbahn- und Kraftfahrzeuge-Haftpflichtgesetz, EKHG) to list the conditions of liability, which, in German, are described as ‘bei Betrieb’, i.e., during operation. The same criteria were therefore applied to the question of when an aircraft is in operation. There is ‘no operation’ if all safety regulations provided for in the flight manual have been complied with and the aircraft is also not parked in a way that it would obstruct traffic.

In contrast, ‘using’ a vehicle or aircraft is a broader term than ‘operating’ an aircraft and includes the usage of the motor vehicle (or aircraft) as such. Waiver of liability is intended to exclude any specific risks associated with the use of an aircraft.

Since a glider, due to the lack of an engine, can only be moved by applying force from the outside and, in doing so, the parking safeguarding must be removed, the glider was therefore ‘used’ as described the waiver list.

OGH 7 Ob 33/23p (19.04.2023)