Wednesday, November 23, 2016

Poults, Planes, Piling & Named Perils -- A Fowl Coverage Decision for Thanksgiving

Larson v. Fireman's Fund Insurance Company
(Iowa Sup. Ct., decided 12/14/1965)

Did you know that a "turkey intitle:insurance" search on Google Scholar in all state and federal court databases returns 54 results?  No?  Well, now you do.

And that turkeys are NOT the dumbest animal on the planet?  In fact, I've tried cases before ceiling-staring judges who may also have been suffering from tetanic torticollar spasms, and they were no dumber that the tryptophan-laden fowl that will be my main course tomorrow.

And that while turkeys can be emotionally comforting on airplanes (the Air Carrier Access Act of 1968 legally permits customers to fly with emotional support animals), they are not emotionally comforted by overflying ones?  It's the predator shadow thing, apparently (see captioned image, infra).

A poult is a young turkey being raised for food.  Plaintiff's family owned and operated a turkey farm in Iowa (still does, apparently, albeit with two fewer barns and 11,000-12,000 fewer turkeys as of two weeks ago) that as of 1965 had raised and marketed about 9,500 turkeys a year for 15 years.

On March 11, 1964 plaintiff purchased 4,335 poults and, being the prudent poultry farmer he was, that same day obtained a "turkey floater policy" from Fireman's Fund Insurance Company.  In fact, I think Fireman's Fund's company slogan just before it became "Protecting Your Future for 150 Years" was "Fireman's Fund -- We Insure Turkeys".  Rumor has it that FF's underwriters came up with that beaut.

In any event, plaintiff's turkey floater policy did not provide all-risk turkey coverage, but insured against death of the turkeys from only certain perils and causes:
INSURED AGAINST LOSS BY DEATH: * * * (A) Directly resulting from: (a) Fire, Lightning, Explosion, Smoke, Vandalism and Malicious Mischief; * * * (B) Caused by huddling, piling, smothering, drowning, or freezing ONLY: (a) As the immediate and direct result of one of the above mentioned perils insured against coming in contact with the turkeys, or (b) If one of the perils mentioned (exclusive of collision, upset or overturning) causes damage to or on the premises of the Assured[.]
As pluck would have it, on July 21, 1964 at approximately 5:00 p.m. a single engine airplane, flying at an estimated altitude of only 150-200 feet, passed over the plaintiff's turkey farm and its poult-holding turkey pens and shelters. Early that evening, plaintiff and his wife went to the turkey pens and found hundreds of dead turkeys piled tight under the shelters.  All were large birds averaging 23 ½ lbs. They were being kept in pens just east of the smaller turkeys the witnesses observed running when the plane went over at 5 p. m.

An investigation and count the next day established that 2,066 large turkeys insured by Fireman's Fund had died. Plaintiff fixed their value at five dollars each ($10,333 in 1964 dollars and $79,591 in 2016 dollars). Subsequent investigation led plaintiff to believe the turkeys had died of suffocation after being frightened by the 5 p. m. low flying plane. Piling and smothering was the cause, but plaintiff needed a covered peril to warrant recovery.  There wasn't a fire, lightning, smoke or vandalism.  Plaintiff's claim to Fireman's Fund for the dead turkeys instead asserted that their death was due to the piling-caused and smothering-caused malicious mischief of the low flying plane's unidentified pilot.

Turkey Predator Silhouettes
In support of the claim, plaintiff's turkey expert, Tom Slaughter (okay, maybe his first name was Robert), testified (yes, at trial) that turkeys are very alert to flying objects (probably because they're looking up all the time; see, tetanic torticollar spasms, supra) and are easily frightened. He spoke of his own experience of having had turkeys die because of having been frightened. "The birds that die from fright will die in a pile. I mean they will get to an object and that stops them, but they just keep piling on top of one another, whether it be from flying objects or from rats or anything else, they will do the same identical thing. I have had experience of a flock that died from the fright of an airplane. That was in 1959."

I know what you're thinking.  Doesn't help with the dumbest animal rep, now does it?

At the close of the evidence the trial court directed a verdict for Fireman's Fund, finding the evidence insufficient to raise a jury question on malicious mischief and proximate cause.   Plaintiff appealed and the Iowa Supreme Court AFFIRMED, holding that the trial evidence regarding malicious mischief was insufficient:
Plaintiff calls to our attention several cases in which recovery was allowed because of low flying planes. In Leisy v. United States, D.C., 102 F.Supp. 789, low flying Navy planes near Hackensack, Minnesota frightened plaintiff's minks, causing the mothers to kill their kits. Recovery was allowed on the theory of negligence. In Maitland v. Twin City Aviation Corporation, 254 Wis. 541, 37 N.W.2d 74, recovery was also allowed for loss of minks caused by low flying planes in violation of the 500 foot safety standard rule. Matson v. United States, 171 F.Supp. 283, 145 Ct.Cl. 225, holds plaintiff entitled to damages from military aircraft flying below the minimum altitude. In Aaron v. United States, 311 F.2d 798, 160 Ct.Cl. 295, recovery for taking of an easement of flight was allowed as a result of jets flying in violation of the 500 foot safety rule. These cases do not consider malice or malicious mischief, they only support tort liability of the pilot or owner of the low flying plane. They do not support recovery here.
Apparently prolicidal minks are sKITtish creatures, as well.  I did not know that either.

Perhaps the bestest thing of all about being an insurance coverage lawyer is the variety of factual scenarios that give rise to the coverage questions and contests I see in my practice.  Who'd a thunk I'd learn something today about named peril turkey floater insurance coverage? Not me, or Mortimer Snerd, that's for sure.

Happy Thanksgiving all.

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