Insurance Questions on "What If?"
Background
The Academy receives numerous requests from chartered clubs and individual members seeking information regarding the insurance program. These questions are routinely fielded by the people in the Special Services Department.
Occasionally the questions are posed in the form of hypothetical situations. Typically a brief set of assumptions or theoretical situations are outlined and the question asked is whether or not there is coverage.
There are a number of reasons why specific answers to these questions are difficult to provide and in some cases we must offer somewhat vague answers. Providing an opinion about coverage for a particular situation sometimes involves a legal opinion, and because we are not attorneys we cannot offer legal advice.
Problems with Hypothetical Questions
To have an attorney evaluate and answer these requests is of little value. To satisfy a member’s curiosity we have occasionally sought legal advice for the "what if" situation. This has proven to be an added expense for AMA and serves no beneficial purpose since the questions are hypothetical. These questions invariably lack the detailed information that is essential to provide a definitive answer.
Responding to hypothetical questions leads to answers that are too speculative to be of any assistance. Questions frequently involve some activity on the flying field and whether or not some action of an individual is or is not safe or is or is not a violation of the AMA Safety Code and/or a covered event. These questions never include the experience, knowledge, and understanding of each of the participants and spectators involved, the frequency with which the action occurs, or many other circumstances which in the final analysis would determine the ultimate outcome as to whether or not there may be liability and/or coverage.
A hypothetical question simply does not and cannot by its nature cover all the facts necessary for such a determination. This is why a fundamental principle of American jurisprudence is that courts will not give advisory opinions. There has to be an actual controversy before the court will render a decision.
Reasons hypothetical questions are difficult to answer include:
- They often require a legal opinion, and AMA staff are not attorneys.
- Seeking legal advice on speculative scenarios is costly and typically unhelpful.
- Hypotheticals usually omit critical factual details (participant experience, frequency, circumstances).
- Courts will not render advisory opinions; there must be an actual controversy.
Variations in State Law
Contributing to the uncertainty is that the 50 state laws and courts many times do not agree on all aspects of insurance law. Even with respect to basic principles, there are routinely different schools of thought followed by various groupings of the states.
The law is constantly changing and the various schools of thought usually vie with each other for ascendance, so there would likely be some states in the process of changing the reasoning underlying the enforcement of an insurance policy.
Some insurance matters are covered by statute and some are not. This varies from state to state and it can be crucial to the determination of coverage.
Conclusion
Because coverage and liability turn on specific facts and applicable law, hypothetical scenarios rarely produce definitive answers. If you have a concrete incident with full details, that information will be necessary for any meaningful evaluation of coverage or exposure.
Transcribed from original scans by AI. Minor OCR errors may remain.
