Friday, February 23, 2018

In a recent issue of Long island Boating World, Tim covers the
subject of homeowners insurance coverage for a boating accident
involving a towed water toy known as a Kite Tube. In most boating
accidents, a maritime attorney representing the injured parties will
examine insurance policies to determine coverage. Sometimes,
when smaller vessels are placed under a homeowners insurance
policy, there could be certain exclusions. These can depend on the
size of a boat, watertoy, jetski, or other towed devices such as
boogie boards or kite tube-type aquatic toys. In the case that was
examined here, the insurance carrier did not cover injuries from the
boating accident based on the horsepower of the vessel.

Court Examines Insurance Coverage in Kite Tube Accident

Boaters of an earlier generation who sought thrills behind a
speeding boat had a limited handful of options in their day. They
could have slipped on some water skis, which in those days were
often the wooden ones that might last a couple of seasons before
their fittings seized up and became inoperable. Later, boogie
boards appeared on the scene, which helped broaden the
envelope of adrenaline rushes. Today, there are towable toys that
go beyond any thrillseeker’s wildest dreams.

Technology has come a long way since the days when water toy
designers were limited to using wood, aluminum, and rubber. In
addition to materials science, the imaginations of designers who
conceive these things on drawing boards have also come a long
way. Some of these creations are on the tame side, like those
inflatable tubes that people ride like giant bananas at vacation
resorts. Then there are the toys that seem to skirt the boundary
between wave-skimming hydroplane and low-flying aircraft. These
lift off the water and actually become airborne as they’re towed. It
was one such device, known as a Kite Tube, that became the
subject of an insurance coverage lawsuit.

In the lawsuit at hand, a family that owned a Kite Tube lent it out.
The borrower towed it behind a boat that had a 120-horsepower
engine while a friend was riding it. The friend riding the Kite Tube
was injured. He sued the boat operator and the family that loaned
the Kite Tube out. The family that owned the Kite Tube turned the
matter over to their homeowner’s insurance policy, issued by
Allstate.
As a sidenote, here is more information on some of the
Legal Issues that Arise in a Boating or Jetski Accident.

Allstate denied the claim, relying on a policy exclusion that did not
cover “bodily injury or property damage… …if the watercraft (a) has
inboard or inboard-outboard motor power of more than 50
horsepower, (b) is a sailing vessel 26 feet or more in length, (c) is
powered by one or more outboard motors with more than 25 total
horsepower, (d) is designated as an airboat, air cushion, or similar
type of watercraft, (e) is a personal watercraft, meaning a craft
propelled by a water jet pump engine and designed to be operated
by a person or persons sitting, standing or kneeling on the craft.”

The family that owned the Kite Tube admitted that the Kite Tube was
a “watercraft,” but argued that it was not “powered by one or more
outboard motors.” This contention was based on the fact that the
Kite Tube has no independent power source, leave alone one as
small as 25 horsepower.

The court did not accept this position. So far as the court was
concerned, it wasn’t necessary that an actual physical engine be
situated in the craft. It was enough that the Kite Tube was towed by
a boat with a 120-horsepower engine. That satisfied the condition
of “powered by” in section (c) of the exclusion above. In other words,
being towed by the primary vessel effectively meant “powered by.”
The court ruled in favor of Allstate. This meant Allstate would be
permitted to exclude coverage for the accident.

For many boaters, some of the biggest thrills of being on the water
come more from using the inventory of “toys” than a boat itself.
However, it can pay to check insurance policies to determine what
is covered and what is not. And aside from the business of water
toys, policies can be quite specific just in the realm of boats when it
comes to a type of usage (commercial vs. recreational), who is
covered, what geographical areas are covered, as well as other
aspects of usage, such as the duration of a season or entrusting a
vessel to someone.

Insurance coverage might not be the most exciting thing to look into
as another boating season gets underway. However, as this case
demonstrates, courts will closely examine the wording in an
insurance policy in determining whether a boat owner will be
covered against injury or physical damage claims in the event of an
accident.

Allstate Casualty Ins. Co. v. Warchol, et al., Case No. 3:09CV1023,
United States District Court for the Northern District of Ohio,
Western Division







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