Downing of Flight 17 by Russian-backed separatists was ‘insurrection’ under war exclusion (US)

Patrick Bracher, Norton Rose Fulbright

The family of a student, who died in 2014 when the Donetsk People’s Republic, a Russian-backed separatist group in eastern Ukraine, shot down Malaysia Airline’s Flight 17, sued Western Union for damages for “providing ongoing and essential financial support to the DPR by facilitating money transfers”.  The court held that Western Union could not recover from their insurers because the war exclusion excluded bodily injury “however caused, arising, directly or indirectly, out of … war … warlike action by a military force … or insurrection rebellion revolution or usurped power”.  The court held that there was no reason to decide whether the case fell within the scope of the exclusion for “war” and “warlike action” because it fell squarely within the exclusion for “insurrection”.  An “insurrection” is “a violent uprising by a group or movement acting for the specific purpose of overthrowing the constituted government and seizing powers”.  The “revolutionary purpose” need not be objectively reasonable and any intent to overthrow, no matter how quixotic, is sufficient.  The DPR was unambiguous about its intent to undermine the government of Ukraine and was in the midst of a violent uprising to overthrow the constituted government.

The claim was also excluded by the exclusion for claims for bodily injury “resulting from the rendering of financial services by the insured to others”.  Facilitating money transfers fell squarely within the financial services exclusion.

Hartford Fire Insurance Company v The Western Union Company Case No. 22-cv-0557 (JMF) in the US District Court for the Southern District of New York

First published by: Financial Institutions Legal Snapshot