I wonder if anybody is aware of any actual claims in this area and whether they were paid.
The obvious case is a Seneca recertified for 1999kg but actually loaded to its normal MTOW of c. 2300kg. A similar thing can be done with a Meridian, though EASA doesn't accept that one and it has to be N-reg.
I have been told by an insurer that insurers tend to avoid paying if the flight was illegal before it took off e.g.
Practically everything else goes under "negligence" and that is covered. You could have 3 passengers who say they are 50kg but are actually 70. You are not required to weigh people... and it would be embarrassing to question, especially female passengers.
With an N-reg, if the US trustee dies, you have no CofR. Or if the plane is unregistered due to an admin cockup (e.g. Graham Hill).
As regards over MTOW, I have never heard of non payment, and if this happened we would all hear about it, because a large % of C150/152/PA28 flights are over MTOW. You can fairly safely bet that anytime four Brits get out of a PA28 after a nontrivial trip, they were 5-10% over MTOW.
A plane originally certified for say 2300kg but recertified for 1999kg is definitely technically illegal if flown over 1999kg (not least because the 1999kg will be in the Airworthiness Limitations section in the POH) but would an insurer pay out if it was loaded to say 2250kg? It probably depends on the particular country's insurance law. In the UK, they can avoid payment even if the breach did not cause the accident.
This might not be the answer but so far no insurance checked on the actual MTOW. Why not forget to tell them about the reduction and pay the rate for the full MTOW? In this case they can at least not say that if the MTOW would have been higher the rate would have been more expensive etc.
There is a lot of discussion on this topic with airplanes that are sold as ultralight and LSA with different MTOW. But so far I did not read about any actual lawsuit.
In Germany Ryanair is currently in trouble because they might have cheated on the MTOW to save enroute charges and Deutsche Flugsicherung is obviously not ammused.
If the fact that you were over MTOW contributes to the accident, then the insurer will either not pay for only partially pay. MTOW and COG are listed prominently in the law (at least here) as things the PIC has to make sure are within limits.
If you have an accident and exceeding MTOW did not contribute to it, the insurer doesn't have grounds for refusal.
You have to send a W&B sheet in for every accident or they take the calculations from the AAIB/BFU/.... I would not expect that insurance will ignore it.
If you have an accident and exceeding MTOW did not contribute to it, the insurer doesn't have grounds for refusal.
I wouldn't be so sure about that. I am only familiar with german law of which I have seen and received my fair share in almost 25 years of commercial GA activity, but it might be different in other countries.
To quote from a typical aircraft insurance contract: '"2. Versicherte Risiken und ausgeschlossene Risiken Im Rahmen dieser Bedingungen sind bis zur Höhe der Versicherungssumme alle Gefahren versichert, denen Ihr Luftfahrzeug ausgesetzt ist, voraus gesetzt - Ihr Luftfahrzeug hat sich bei Eintritt des Schadenereignisses in einem Zustand befunden, der den gesetzlichen Bestimmungen und behördlichen Auflagen über das Halten und den Betrieb von Luftfahrzeugen entsprochen hat und/oder wenn behördliche Genehmigungen, soweit erforderlich, erteilt waren..."
(rough tranlation: 2. Insured and excluded risks: Within the scope of these conditions all risks that your aircraft is facing are insured up to the agreed sum, provided that - Upon sustaining the damage claimed your aircraft was in a state complying to the legal and administrative rules and regulations .....)
I (and the legal department of any insurer in the world!) would clearly say that overloading an aeroplane that by "adminitrative rules" is limited to a certain maximum mass is a violation of those rules. If such a case comes before court (it almost certainly will) then - here in Germany at least - it will boil down to the question why the aircraft was operated outside its limitations: negligence, gross negligence or deliberate violation of regulations. Only in the first case the insurance will have to pay, but not always in full depending on the degree of negligence. In the latter cases, which the insurance must provide proof of however, it will not have to pay at all. For example not making a mass and balance calculation before the flight will be considered gross negligence. So I would say, that a real good excuse is required to get any insurance payment for an accident with an overloaded aircraft.
