On January 8, 2020, Ukraine International Airlines Flight 752 was shot down by the Islamic Revolutionary Guard Corps (IRGC), killing all 176 civilian passengers and crew on board.

The tragedy occurred five days after the assassination of Qasem Soleimani by the United States and just hours after Iran had retaliated by launching dozens of ballistic missiles on American-led coalition forces. But did these heightened tensions between Iran and the US constitute acts of war?

In Arbabbahrami (Estate) v. MSH International (Canada) Ltd., 2022 ONSC 5723, Justice Rob Centa of the Superior Court of Justice had to consider this question. The case involved a coverage dispute between Berkley Insurance and the estate of one of the civilians killed on the flight. Below is the outcome of that case.

The Case

Arshia Arbabbahrami was studying as an international high school student in Calgary for the 2019-2020 school year. He had returned to Iran over the December holidays and was set to return to Canada on Flight 752. Along with all the passengers and crew on the flight, Arbabbahrami was killed when the IRGC missile struck the airplane.

Because he was an international student, he had been required to purchase a health insurance policy in Canada. The policy included accidental death coverage, a benefit of up to $100,000 that covered common carrier accidents. Following his death, Arbabbahrami’s family made a claim for the accidental death benefit on behalf of his estate.

The Issue

The underwriter of the policy, Berkley Insurance Company, argued that Arbabbahrami’s death fell within the scope of the policy, an exclusion for “acts of war” applied to the accidental death benefit. This exclusion states that the policy will not cover losses or expenses that are related in whole or in part, to “an act of declared or undeclared war, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation or nationalization or requisition by or under the order of any government or public or local authority.”

Berkley denied the accidental death benefit on the basis that this attack was an act of declared or undeclared war. They also put forward the argument that the downing of the flight was an instance of military or usurped power. Importantly, they stated that the terms “military” and “usurped” power are independent exclusions under the policy, and any military act fell within the scope of the exclusion.

To determine whether or not the exclusion applied, Justice Centa analyzed the final reports of the Canadian Forensic Examination and Assessment Team (CFT) and the Iran Aircraft Accident Investigation Board (AAIAB). A number of details from these reports demonstrate that the firing of the missile by the IRGC was not an act of declared or undeclared war, nor was it a result of military or usurped power.

The Decision

The fact that war had not been declared between the US and Iran as of January 8, 2020 and no declaration was made after that date meant that this was not an act of declared war. In regard to the exclusion applying to undeclared war, Justice Centa noted that:

• The operator of the missile did not know he was shooting at an airplane carrying civilians.
• The operator of the missile believed that he was shooting the missile at an incoming US missile.
• The Iranian military authorities had required that approval was sought from command before any missiles were fired and the operator of the missile did not have the necessary approval to fire.

• The military command and control operation were not functioning properly and, had they been functioning properly, the attack would not have happened.
• This was not a premeditated attack on behalf of the IRGC.

Justice Centa found that the insurer’s position that this was an act of undeclared war was also untenable. It was clear that the attack has not been deliberate, pre-meditated, or intended to take away human life, nor had it been sanctioned by the government or proper military authorities. Indeed, the launch of the missile into a civilian airplane was a result of human error on the part of the operator.

Justice Centa also disagreed that the terms “military” and “usurped power” should be read as independent exclusions. He based his disagreement in a review of case law, which found that these two terms had consistently been interpreted as a single exclusion.

He noted that this was not a case of military or usurped power because, although the operator of the missile had not received the required approval to shoot the missile, nothing indicated that the operator had acted with the intention of usurping the power of the state. There was also no indication that the power of the Iranian government had been seized by an organized military operation.

As a result of this analysis, Justice Centa held that the death of Arbabbahrami did indeed fall under the accidental death coverage of his health insurance policy. Berkeley Insurance Company was therefore ordered to pay the death benefit of $100,000 to the estate of Arbabbahrami.

Death Benefit Difficulties

Regardless of whether or not an individual dies of tragic, unforeseen circumstances, insurance companies are concerned with protecting their bottom line. They do not recognize the grief of those left behind and they’re unconcerned with their financial needs following the death of a loved one. For this reason, death benefits are often denied on the basis of exclusions, or the interpretation thereof.

Do not let your insurance company deny you of what’s entitled following the death of a loved one. Let us handle the reading of the policy and fighting for your rights and their memory. Contact Sharma Law when you’re facing a similar situation.