Skip to Navigation
The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

VANHYNING v. ACE PROPERTY AND CASUALTY INSURANCE COMPANY

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
3:15-cv-03053 Search Pacer
Opposing Party: 
David Vanhyning
Court Type: 
Federal
US District Court: 
Central District of Illinois
Date Filed: 
Feb 19 2015

COMPLAINT

NOW COMES the Plaintiff, DAVID VANHYNING, as Administrator of the
Estate of BEJNAMIN VANHYNING, by and through its attorneys, MORSE BOLDUC &
DINOS and TEICH LAW OFFICE and for its Complaint against ACE PROPERTY and
CASUALTY INSURANCE COMPANY ("ACE") states as follows:
1. On November 10, 2014, a settlement was entered into between DAVID
VANHYNING, as Administrator of the Estate of BENJAMIN VANHYNING, deceased,
and JACKSONVILLE AIRPORT AUTHORITY ("JAA") whereby DAVID
VANHYNING, as Administrator of the Estate of BENJAMIN VANHYNING, deceased,
agreed to release all claims against JAA in exchange for JAA's agreement to be liable for
the sum of $5,000,000 to be satisfied under ACE policy #AAP N00977548 007 issued to
JAA. (Settlement Agreement Attached hereto as Exhibit "A").
2. Said settlement was entered into in light of a lawsuit filed against JAA by
DAVID VANHYNING. (Attached hereto as Exhibit "B").
3. The settlement was approved by the court on October 24, 2104. (Attached
hereto as Exhibit "C").
4. ACE insures JAA under policy # AAP N00977548 007. (Attached hereto as
Exhibit "D").
5. JAA is insured under the ACE policy for the claim made against JAA for
their negligence in allowing Plaintiffs deceased son, BENJAMIN VANHYNING, a
student of JAA, to board and fly in an unsafe plane that was not owned or operated by
JAA, and was not rented, loaned or leased to JAA.
6. ACE denied any duty to defend or indemnify JAA by means of
correspondences dated 1-19-12, (Attached hereto as Exhibit "E") and 12-20-12.
(Attached hereto as Exhibit "F").
7. ACE is obligated to indemnify JAA for the $5,000,000 settlement
t
agreement JAA entered into with DAVID VANHYNING.
WHEREFORE, The Plaintiff, DAVID VANHYNING, prays that this court enter
judgment in its favor and against ACE PROPERTY and CASUALTY INSURANCE
COMPANY, in the amount of $5,000,000.
One of the Attorneys for Plaintiff

SETTLEMENT AGREEMENT, ASSIGNMENT
& COVEN-ANT NOT TO EXECUTE
This Settlement Agreement, Assignment and Covenant not to Execute (the
"Settlement Agreement") is made and entered into effective the _Jh day o f______ ,
2014, by and Between David VanHyning, as Administrator of the Estate of Benjamin
VanHyning, deceased ("VANHYNING") and JACKSONVILLE AIRPORT
AUTHORITY.
Recitals
A. VANHYNING Bled a complaint in the Circuit Court of the Seventh Judicial
•Circuit County of Morgan, under Court Number 2013-L-28 against JACKSONVILLE
AIRPORT AUTHORITY. The Action arose out of the injuries and resulting death
Benjaonin VanHyning sustained on 12-22-10, (the 'Incident"). VANHYNING sought to
recover monetary damages as a result of the Incident, from the Defendants.
B, The parties desire to enter into this Settlement Agreement in order to provide for
certain payments in full settlement and discharge of all claims which have been or
could have been made, by reason of the Incident upon the terms and conditions set
forth below.
Agreement
The parties agree as follows:
1.0 Release and Discharge
1.1 In sole consideration of the payments set forth in Section 2, VANHYNING,
completely releases and forever discharges JACKSONVILLE AIRPORT AUTHORITY
from any and all claims, damages, demands, actions, and causes of action whatsoever,
known or unknown, which it now has or may have in the future, arising from any event
that has occurred before the signing of this Settlement Agreement from, the beginning of
the world to the date hereof; particularly, of and from all claims alleged to have
occurred or resulted from the incident on December 22,2010.
1.2. VANHYNING has not been influenced to any extent whatsoever in making
this Settlement Agreement by any statements made by any party, or by any of their
representatives or counsel.
2.0 Payments
In consideration of the release set forth above, JACKSONVILLE AIRPORT
AUTHORITY shall provide:
2.1 An agreement to be legally liable for the sum of $5,000,000.00, on the part of
JACKSONVILLE AIRPORT AUTHORITY, such obligation, to be satisfied solely through
the assignment to VANHYNING, as set forth in paragraph 3.0 below, of all rights
possessed by JACKSONVILLE AIRPORT AUTHORITY to payment and/or
indemnification from ACE Property and Casualty Insurance Company under policy
number AAP NO0977548 007 with respect to such liability.
3.0 Assignment. JACKSONVILLE AIRPORT AUTHORITY hereby assigns,
acquits, transfers, conveys and jointly surrenders to VANHYNING, to the fullest extent
permitted by law, all of its rights, causes of action and claims, whether in law or equity,
in contract or tort or otherwise, and. whether present, future or inchoate, which
JACKSONVILLE AIRPORT AUTHORITY has or may come to have, against ACE
Property and Casualty Insurance Company arising out of case number 2033-L-28.
3.3 JACKSONVILLE AIRPORT AUTHORITY makes no representation whatever
to VanHyning as to the coverage afforded it under the terms of tire ACE Insurance
policy or as to the policy’s effectiveness or applicability to the Incident VANHYNING
represents that it has undertaken due diligence in investigating ihe coverage,
effectiveness, and applicability of the ACE Insurance policy, and VANHYNING accepts
this Assignment in full knowledge of any and all defenses that may or will be asserted
by ACE Property and Casualty Insurance Company as to the coverage, effectiveness, or
applicability of the ACE Insurance policy to the Incident.
3.2 Indemnification. In the'event VANHYNING collects the settlement amount
or a portion thereof from ACE Property and Casualty Insurance Company,
VANHYNING covenants to indemnify JACKSONVILLE AIRPORT AUTHORITY • and
hold it harmless from any claim, demand, action, or cause of action made or brought
against JACKSONVILLE AIRPORT AUTHORITY by ACE Property and Casualty
Insurance Company, arising in any manner out of JACKSONVILLE AIRPORT
AUTHORITY’S entering this Agreement or performing the actions set forth herein. The
amount VANHYNING is required to pay pursuant to this paragraph 3.2 is limited to
the amount VANHYNING collects from ACE Property and Casualty Insurance
Company, and in no event shall VANHYNING be liable for payment in excess of the
amount collected from ACE Property and Casualty Insurance Company.
4.0 Covenant Not to Execute. In consideration of die payments, assignment and
promises set forth above, VANHYNING covenants to execute on the amount confessed
in paragraph 2.1 of this Agreement only against, ACE Property and Casualty Insurance
Company and not against any of the assets of JACKSONVILLE AIRPORT AUTHORITY
other than the ACE insurance policy.
5.0 Covenant Not To Sue. VANHYNING hereby covenants not to sue
JACKSONVILLE ALPORT AUTHORITY in connection with any claims, whether in law
or in equity, that VANHYNING now or could in the future have against
JACKSONVILLE AIRPORT AUTORITY arising out of any matter occurring prior to the
date of this Settlement Agreement and which were Dr could have been asserted in cause
number 2013-L-28.
6.0 Dismissal nf ft aims and Actions. VANHYNING shall move to dismiss cause
number 2013-L-28.
7.0 Additional Documents. JACKSONVILLE AIRPORT AUTHORITY agrees to
cooperate fully and execute any and all supplementary documents and to take all
additional actions which may be necessary or appropriate to give full force and effect to
the terms and intent of this Settlement Agreement.
IN WITNESS HEREOF, the parties hereto have set their hands this A/g y ew b a r /o ^
day of 2014.
Benjamin. V anHymng, deceased

AMENDED COMPLAINT AT LAW
Plaintiff David VaiHyning, Administrator of the Estate of Benjamin
VanHyning, deceased, by and through bis attorneys, Rapoport Law Offices, P.C.
and Thomson, McNeely, Crews, Hurst & Thielen, P.C., states the following in
support of this amended complaint:
' Venue
1. Defendant Jacksonville Airport Authority (“JAA”) is local public entity
with principal offices in Morgan County that operates Jacksonville Municipal
Airport.
2. This Court is a proper venue pursuant to 735 ILCS § 103(a) because
this case involves Jacksonville Municipal A irport’s aircraft operations; and
pursuant to 735 ILCS § 5/2-10l(l) because the defendants reside in Morgan County.
Representative Capacity
3. Benjamin VanHyning died on December 22, 2010, as a result of
injuries he suffered in the crash of a Cessna Sierra aircraft that day in Wheeling,
Illinois.
4. On December 16, 2011, this Court appointed David VanHyning as
administrator of Benjami n VanHyning1 s estate.
5. In his representative capacity David VanHyning seeks judgment for
Benjamin VanHyning’s next of kin under the Illinois Wrongful Death Act, 740 3LCS
§ 180/0.01 et seq_., and his estate pursuant to 765ILCS §5/27-6.
General Allegations
6. On and before December 22, 2010, Benjamin VanHyning was a student
pilot at JAA’s flight school boated at the Jacksonville Munieipal Airport.
7. This flight school employed certified flight instructors, provided
aircraft for flying lessons and sold flying lessons to members of the public, including
Benjamin VanHyning, who sought training under Part 61 of the Federal Aviation
Regulations, 14 CFRPart 61.
8. In addition to operating the flight school and the airport, JAA also
regularly engaged and engages in other business activities at Jacksonville
Municipal Airport, including but not limited to- selling fuel, leasing aircraft, selling
parts and providing other products and services as part of a fixed base operation.
9. As relevant to this case, on December 22, 2010, JAA’s employees
included, but were not limited tin Shastin Saxer, the Jacksonville Municipal Airport
manager; Cole Nathan Harrison Foote, a commercial pilot, JAA’s fall-time flight
instructor and Benjamin VanHyning’s flight instructor; and Matthew David
Pennell, a commercial pilot and a JAA part time flight instructor.
10. On December'22, 2010, Cessna Sierra N5293M was a single engine
retractable gear four seat airplane that was owned by private pilot George Ronald
Kissinger.
11. At the time Mr. Kesinger was a JAA. customer who had purchased
N5293M in the fall of 2010 and decided to relocate the airplane torn Chicago
Executive Airport to Jacksonville Municipal Airport.
12. Mr. Kessinger hired pilot Todd Christopher Cole to fly Sierra N5293M
from Chicago Executive Airport to Jacksonville Municipal Airport.
13. For assistance in accomplishing the relocation, Mr. Kesinger turned to
JAA and on December 22, 2010, at Mr. KesingeFs expense,. JAA supplied an
airplane (N2936S) to transport Mr. Cole along with JAA employees Mr. Foote and
Mr. Pennell to pick up K esinger’s Sierra N5293M and then return both airplanes to
Jacksonville Municipal Airport.
14 With the knowledge and consent of Mr. Saxer, Mr. Foote and Mr.
Pennell, JAA student pilot Benjamin VanHyning was invited to ride along on this
trip as part o f his flight education and experience.
15. Before the flight Mr. Foote knew that Mr. Cole was going to be
compensated by Kesinger for flying Sierra N5293M on December 22, 2010, even
though this arrangement violated federal law because Mr. Cole did not have a
commercial pilot certificate. Other JAA employees may have known this as well*
16. Before Mr. VanHyning hoarded Sierra N5293M, JAA knew or should
have known this aircraft was mechanically unreliable and unsafe to operate on
December 22, 2010 because of its accident, overhaul and post-overhaul history:
a. In February of 2008 the aircraft was involved in a
gear up landing accident involving a propeller
strike;
b. In June of 2010 metal shavings were found in the
engine oil and the engine was removed and sent out
for overhaul;
c. In October of 2010, after the overhaul, the engine
initially failed to start and it was discovered that
the wrong starter had been returned with the
engine from the overhaul shop;
d. When the engine finally did start after overhaul, it
was not running-properly, demonstrating problems
with the induction system and other discrepancies
including a missing plug from the bottom of the
engine;
' e. By December 22, 2010, the aircraft had either not
been flown at all or Sown for only one hour and
there was no clear proof the overhauled engine was
working properly or that the aircraft was safe to
fly; and
£ Due to these safety concerns instead of cancelling
the flight until safety could he assured, the JAA
aviation professionals decided the two planes
should merely stop for a safety check in
Schaumberg, Illinois, before flying on to
Jacksonville Municipal Airport.
17. Notwithstanding this information, once at Chicago Executive Airport,
with the knowledge and consent of both JAA flight instructors, Benjamin
VanHyning boarded N5293M as a ride along passenger.
18. Before departing horn Wheeling Mr. Foote and Mr. Pennell discovered
that N6293M had been stored outside where it had accumulated a substantial
amount of snow and ice, and knew or should have known the aircraft was not
properly de'iced before take-off.
19. At tbe time of take off tbe weather was clear and dry, visibility was
good and the winds were out of the northeast at 11 knots.
20. Runway 3d was utilized from its intersection with Runway 06, leaving
a usable runway surface o f4,200 feet.
21. After take-off according to pilot in command Cole:
a. He retracted the landing gear at an altitude of 60
to 75 feet above ground level and the flaps at
approximately 200 feet above ground level, after
which the aircraft began to sink and the pilot
decided to execute a turn in order to return to the
airport;
b. During the turn back-toward the airport, the
engine began to vibrate and I o s b power and the
pilot could feel the vibrations in the control yoke;
land
c. The pilot lowered his landing gear.
22. After this, at approximately 2:46 p.m., Mr. Cole lost control of N5293M
due to an aerodynamic stall and the airplane crashed first onto the' roof a building
approximately one-half mile northwest of Chicago Executive Airport, then into a
parking lot and parked cars, erupting into flames.
23. As a result of the crash Benjamin VanHyning suffered severe and
ultimately fatal injuries, and Todd Christopher Cole survived the crash with severe
injuries.
COUNTI
(Wrongful Death)
24. Plaintiff incorporates paragraphs 1 through 23 by reference.
25. At the time of the crash Mr. Saxer, Mr. Foote and Mr. Pennell were
employees of JAA acting within the scope of their employment.
26. Mr. Saxer, Mr. Foote and Mr. Pennell each knew or should have
known, • before and at the time Benjamin YanHyning boarded N5293M as a
passenger*’
a. That N5293M might be mechanically unreliable
due to its accident and recent overhaul and postoverhaul
history!
b. That due to these safety concerns they planned to
stop in Schaumberg, Illinois instead of fly directly
firom Chicago Executive Airport to Jacksonville
Municipal Airport;
c. That Todd Cole had little experience flying Cessna
Sierra aircraft;
d. That Todd Cole was going to pilot the aircraft for
compensation and with a passenger on board even
though he was not a licensed commercial pilot and
this violated Federal Aviation Regulations meant to
protect the safety of passengers like Benjamin
VahHyning; and
e. That the situation was irregular, unlawful and
risky.
27. It was the duty of the JAA flight school to exercise reasonable care
under the circumstances to protect the safety o f its student pilot Benjamin
VanHyning yet, notwithstanding and in breach of this duty, through agents,
servants or employees acting in the scope of their employment, JAAa.
Negligently, carelessly and improperly placed
Benjamin. VanHyning aboard N5293M when it
knew or should have ■ known it was not safe,
suitable or proper to do so due to the condition of
the aircraft;
b. Negligently, carelessly and improperly placed
Benjamin VanHyning aboard N5293M when it
knew or should have known it was not safe,
suitable or proper to do so because the pilot in
■ command was inexp erienced;
c. Negligently, carelessly and improperly placed
Benjamin VanHyning aboard N5293M when it
knew or should have known it was not safe,
suitable or proper to do so because the pilot in
command was not properly licensed for the flight.
28. The aforementioned negligence by JAA employees or agents acting in
the course and scope o f their employment or agency was a direct and proximate
cause of Benjamin VanHyning's wrongful death.
WHEREFORE, Plaintiff David VanHyning, as Administrator of the Estate of
Benjamin VanHyning, deceased, respectfully requests judgment be entered in bis
favor and against Jacksonville Airport Authority in an amount which will fully and
fairly compensate each of the next of kin for all of their legally compensable
damages under the Illinois Wrongful Death Act, 740 ILCS § 180/0.01 etseq.
COUNT H
(Survival Action).
29. Plaintiff adopts and incorporates the Count I allegations by reference.
30. As a direct and proximate result of one or more of JAA’s negligent acts
or omissions, Benjamin VanHyning experienced physical injury, pain, suffering,
disability, loss of a normal life, emotional distress, and other economic and noneconomic
losses from the time the aircraft began to experience abnormal movement
until he lost consciousness on December 22,2010.
WHEREFORE, Plaintiff David VanHyning, as Administrator of the Estate of
Benjamin VanHyning, deceased, respectfully requests judgment be entered in favor
of the estate and against JAA in an amount that will fully and fairly compensate
the estate for all legally compensable losses under 755ILCS §5/27-6.

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

Javascript is required to view this map.