National Insurance Underwriters v. Glover , 1976 Tex. App. LEXIS 2490 ( 1976 )

PRESLAR, Chief Justice

(dissenting).

It is a matter of regret that I am driven to disagree with the learned opinion of the majority, but I would affirm the judgment of the trial Court.

I would construe the policy to mean that the exclusion upheld by the majority applies only where there is a violation of the pilot’s rating as distinguished from a violation of F.A.A. Flight Regulations. Under the stipulated facts of this case, the pilot was not in violation of his rating.

The cases cited by the majority support the proposition that the exclusion applies where there is a violation of the pilot’s rating. In Mang v. Travelers, supra, cited by the majority, the exclusion applied because the one operating the aircraft was not licensed to carry passengers; he was in violation of his license or rating in that he was only a student pilot; in Bequette v. National Insurance Underwriters, Inc., cited by the majority, the pilot did not have a commercial license but was carrying passengers for hire. Clearly, he was in violation of his rating, and the Court said: “Since it was uncontroverted that Fouche, who was carrying passengers when the accident occurred, did not have the ratings required to carry passengers, the District Court held that the policy did not provide coverage for the accident. We affirm.” In Woods v. Insurance Company of North America, from which the majority quotes, the question was whether the pilot was properly certified and rated because his medical certificate had expired prior to the flight. The pilot did have a proper rating and the Court held that not having the medical certificate current did not exclude coverage — that he was a properly certified and rated pilot for the flight. In our case, the pilot was not in violation of his certificate. Pilot ratings are a very definite thing; they are a governmental license to do certain things and what the holder can and cannot do is well known to those having the ratings. As noted from the cases cited, a student cannot carry passengers; one who does not have a commercial rating cannot carry passengers for hire; and in the case before us, the pilot having the rating of a private pilot is not eligible to make an instrument flight.

My difference with the majority turns on the fact that I do not think he was in violation of his rating. This, because he was not attempting to make an instrument flight. An instrument flight rating is a separate and distinct rating which, among other things, entitles one to fly blindly without being able to see land but to base his course and operation of the aircraft purely from sounds coming to him from radio reception. The pilot is flying blind, depending only one his ears — what he hears from the instruments as to which operation of the controls to make. Rogers, the pilot in this case, was not attempting to do that. He was not attempting to fly instruments. He was flying visual, attempting to see the ground. That, he was qualified and rated to do. When the weather fell below the visual flight regulations of the F.A.A., he was in violation of those regulations but he was not in violation of his rating. His rating did not change each time he passed through a cloud; neither did the coverage under this policy change each time the weather conditions changed from visual flight conditions to IPR flight conditions. I cannot believe that the parties to this contract of insurance intended that the coverage would go on and off each time the weather conditions changed. The construction which the majority gives the policy makes for uncertainty and should be construed against its author.

In arriving at the intent of the parties to the contract, I think the situation is analogous to the rental of an automobile. There, the rental agency asks only if you have a license to operate the automobile and they rely on that license, not on your judgment or skill in the operation of the automobile. Here, the policy relies on the licensing of the pilot; if he is rated to do certain things, then there is coverage while he is doing those things. The licensed automobile driver may be negligent and may violate the traffic laws; likewise, the pilot may violate the P.A.A. Regulations, that is, fly in bad conditions or use bad judgment, and may be negligent, but that does not end the coverage. So it is here; our pilot may have used bad judgment; he may have violated the P.A.A. Flight Regulations in flying in the type of weather that he did, but he did not violate his rating; he did not attempt an instrument flight.

In our construction of this policy, we must bear in mind that the provision under consideration is an exception or exclusion from coverage. The well-settled general rule is that exceptions, limitations and exclusions to insurance agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations upon that coverage in clear and explicit terms. 13 J. Appleman, Ins.L. & P., § 7387, Supp.1970; Roach v. Churchman, 431 F.2d 849 (8th Cir. 1970); Ranger Insurance Company v. Culberson, 454 F.2d 857 (5th Cir.1971). In our case, if the insurer wished to suspend coverage in the event of any violation of F.A.A. Flight Regulations, then it should have specifically said so in the policy.

I would affirm the judgment of the trial Court.