Alcohol Doesn’t Mix Well With Jet Skis or Personal Watercraft
Jet Skis have been around since the late 1960s. Although the term Jet Ski is used to describe a variety of small engine powered watercraft, the proper terminology should be personal watercraft (PWC). But just how dangerous can these watercrafts be? Very dangerous! According to US government reports show that operator inexperience is the greatest reason for injuries. A larger percentage of first-time user injuries is being recorded than at any other time since the development of these recreational devices.
Why is that happening? Probably because more and more people are discovering that these low-cost watercraft are easy to maintain and store. Another disturbing statistic is that a significant number of PWC accidents occur when the operator is under the influence of alcohol or other recreational substances. Frequently I am asked about such accidents and whether insurance is affected.
Liability insurance is almost never affected by the PWC’s operator being under the influence of alcohol. The same holds true with automobile insurance. The insurance industry has not yet been able to successfully lobby the Florida legislature to get such an exclusion. Even if passed, such exclusions would probably be declared void as against public policy. The public should not bear the brunt of the expense of caring for those injured by such operator error.
But what about other types of insurance that might come into play when the operator of a PWC is injured or killed as a result of driving intoxicated? That very scenario happened recently in Florida. It resulted in an insurance company successfully avoiding paying out under a death and dismemberment policy because of exclusions within the policy. The recent Florida 3rd District Court of Appeal opinion entitled American Heritage Life Insurance Company vs. Morales, illustrates how this insurance company was able to avoid paying out when their insured died.
The accident occurred in the summer of 2011. The insured Jet Ski operator was last seen at approximate 10 PM when he left an island in the Intracoastal Waterway in Miami-Dade County. This island is well known as a party hangout. In the summertime, when the sun doesn’t set until late in the evening, it is not unusual for boaters and PWC operators to try to head back late in the evening. The insured’s body was found later the next morning. The autopsy indicated the cause of death was multiple blunt force traumatic injuries sustained in a front end collision with a fixed object. A toxicology report indicated that the insured’s blood-alcohol level was .10 which is above the legal limit of .08 in Florida. In other words, the operator was drunk. An investigator for the Florida Fish and Wildlife Conservation Commission (various departments can have jurisdiction over a water related accident) concluded that the decedent was operating his jet ski while intoxicated. The report also indicated that the decedent was violating a Florida statute regarding operating PWC’s one half hour after sunset until one half hour before sunrise. In Florida, PWC’s cannot be operated after dusk.
The operator had previously purchased an accidental death and dismemberment policy. Within the policy was an exception or exclusion that coverage would not be afforded for “any loss incurred as a result of… any injury sustained while under the influence of alcohol or any narcotic unless administered upon the advice of a physician.” When presented with a claim for benefits under the policy, the insurance carrier declined to pay the beneficiary the life insurance monies available under the policy. A lawsuit was then filed, discovery was taken and both sides moved for summary judgment.
The beneficiary argued that there were several reasons why the accident happened, not just alcohol operator error. The insurance carrier argued that it didn’t matter if there were several reasons, all it took was one and the exclusion was applicable. The trial judge issued an order finding that because there were multiple possible reasons for how or why the accident occurred, that there was coverage under the policy.
In Florida, there is precedence for the beneficiary’s position. In the Florida Supreme Court case of Harris v. Carolina Life Ins. Co., a similar alcohol exclusion was at issue. However, in the Harris case, the exclusion was being used against a passenger who was intoxicated. There was absolutely no proof of any connection between the intoxication and the accident. Because there was no causal connection between the accident and the intoxication, the Florida Supreme Court declared that the exclusion was not applicable and that Carolina Life Insurance could not avoid paying death benefits to the decedent’s heirs. This opinion contains some interesting language criticizing the position of the insurance industry in pointing out that if their argument was actually followed, someone in an ambulance being driven to the hospital could have the exclusion prevent them from recovering for an accident occurring while being transported. That clearly doesn’t make any sense.
The 3rd District Court of Appeal felt otherwise. The term “any” within the exclusion was designed to cover situations in which there were multiple reasons or causes of a particular accident. It did not appear from the record that there was any issue of fact whether alcohol contributed to the accident. Alcohol was clearly a contributing factor to what happened to the operator. Given that Florida statute 327.354(2)(c) creates a prima facie case that the operator was impaired, the appellate panel felt that common sense indicated that such impairment was implicated when an intoxicated driver collides with a fixed object.
There were two conflicting experts, the investigating officer with FFWC and the beneficiary’s expert. Both experts appear to have similar opinions. Both experts indicated that alcohol was a factor, but the beneficiary’s expert opined that alcohol was not the sole cause of the accident. It is not apparent that the FFWC investigator felt otherwise. In the end, it didn’t really matter which expert opinion was followed. Although the trial court found that the exclusion was not applicable because there were other possible factors involved in the accident, the appellate court reversed and remanded for entry of a judgment in favor of the carrier.
The net effect of the opinion is that insurance exclusions related to alcohol use are enforceable in Florida. However, savvy attorneys with experience in the interpretation of insurance provisions are necessary when pursuing benefits under such clauses.