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Click here for the full text of this decision FACTS:Lonnie L. Tucker and Kerry Hartless appeal from a summary judgment rendered in favor of Allstate Texas Lloyds Insurance Company, based on Allstate’s position that it had no coverage for an injury to Hartless. In short, the summary judgment evidence shows that the two had moved Tucker’s home-built light plane onto a set of movable scales to weigh it just out of curiosity and while finishing lining up one of the main wheels, Tucker tipped the plane onto its nose, pinning Hartless under the propeller. Hartless sought to recover from Tucker; Tucker called on Allstate, who provided his homeowner’s insurance, to defend him. Allstate does not contend that coverage would not exist, but takes the position that an exclusionary clause prevents recovery. Procedurally, the insurer sought a declaratory judgment specifying its rights and responsibilities under the terms of the policy, arguing that it had no duty to defend or cover the claim. Allstate filed a motion for summary judgment, which was granted. Tucker’s motion for summary judgment was denied. In its motion for summary judgment, Allstate took the position that the injury was not covered under the aircraft exclusion because it arose out of the ownership, loading, maintenance and/or use of Tucker’s airplane. It asked the trial court to hold that coverage was excluded and that it had no duty to either defend or to indemnify. The trial court granted the motion. HOLDING:The court reverses the summary judgment rendered in favor of Allstate. The court reverses, in part, the denial of the summary judgment rendered against Tucker and Hartless, and renders judgment that Allstate had a duty to defend its insured. Both parties urged that the court consider the evidence presented to the trial court. Thus, in this instance, the court reviews the evidence that was before the trial court at the time that it made its determination and applies that information to the review of the policy to determine whether the court correctly determined Allstate had no duty to defend. The correctness of the judgment depends on the meaning of the policy exclusion, and its application to the alleged facts that resulted in the accident as shown by the pleadings, and the attached evidence. The exclusion states that coverage for personal liability and medical payments to others does not apply to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of aircraft. It is clear from the summary judgment evidence that Tucker owned the aircraft. Allstate has made no argument to suggest how a personal injury could “arise from” his ownership of the aircraft, and the court perceives no way in which that concept could be applied here. To suggest that simply because Tucker owned the aircraft, any personal injury in which the aircraft was implicated in any fashion was excluded does violence to the remaining portion of the exclusory clause. There is no causal connection between Tucker’s ownership of the airplane and the accident. Tucker could be liable for his negligent acts resulting in an accident which caused injuries to Hartless regardless of whether he owned the airplane. The trial court could not have properly rendered summary judgment on that basis. There is no evidence to suggest that Tucker and Hartless were involved in maintaining the vehicle. It was inoperable, and there is nothing to indicate their actions had any purpose toward making it operable, either directly or indirectly � and the evidence shows directly to the contrary. The trial court could not properly render summary judgment on that basis. The vehicle was not operable. The evidence shows conclusively that it was not doing any work of any sort, and the trial court could not render summary judgment on that basis. Applying the factors enunciated in Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153 (Tex. 1999), the court determines that the “arising from use” exclusion does not provide a basis to support rendition of summary judgment. the aircraft was obviously not being used as an aircraft; not being used as transportation; not being prepared for use; not being prepared for repair; or engaged or employed for its given purpose in any fashion. The evidence shows that the aircraft was not being loaded or unloaded with people, goods or any other items at the time of the accident. The term cannot apply to these facts and could not have served as a basis for the summary judgment. OPINION:Carter, J.; Morriss, C.J., Ross and Carter, JJ.

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