Glover v. National Ins. Underwriters
Decision Date | 12 January 1977 |
Docket Number | No. B--5917,B--5917 |
Parties | Norma Jean GLOVER et al., Petitioners, v. NATIONAL INSURANCE UNDERWRITERS, Respondent. |
Court | Texas Supreme Court |
Warren Heagy, Odessa, Byrd, Davis, Eisenberg & Clark, Tom Davis, Austin, for petitioners.
Lord, Bissell & Brook, Terry Backus, Chicago, Ill., Little & Palmer, Jack Little, Big Spring, Fulbright & Jaworski, L. S. Carsey and Hugh Griffin, Houston, for respondent.
The question in this case is whether the pilot of an airplane which crashed and killed all aboard was 'properly rated for the flight' within the meaning of an aviation liability insurance policy. The trial court held that he was and entered judgment for the petitioners. The court of civil appeals, with one justice dissenting, reversed the judgment of the trial court and rendered judgment for the insurer. Tex.Civ.App., 535 S.W.2d 662. We reverse the judgment of the court of civil appeals and affirm that of the trial court.
The crash in question occurred on the Mexican border near Quemado, Texas, north of Eagle Pass, on December 9, 1972. The pilot of the airplane was William O. Rogers, and he was accompanied by two passengers on the flight, Burlon E. Glover and Ray Eugene Rives. All were killed.
The petitioners, herein referred to as the plaintiffs, are the wives and children of the deceased passengers. They brought an action against the estate of the pilot, Rogers, and against the Bill Rogers Trucking Company for the wrongful deaths of Glover and Rives. National Insurance Underwriters, herein called National, had prior to the crash issued a liability insurance policy to the owner of the airplane, the Bill Rogers Trucking Company. National refused to defend the wrongful death suit and denied liability under the policy it had issued to the trucking company. The parties to that suit then entered into an agreement that National would institute this suit, a declaratory judgment action, to determine its liability to the estate of Rogers under the insurance policy. The agreement provided that if National were found to be liable, then it would pay to the plaintiffs the policy limits in full settlement of their cause of action against the estate. On the other hand, if National were found not to be liable under the policy, then the plaintiffs agreed that they would dismiss their wrongful death action and make no further effort to recover for the deaths of the passengers.
Pursuant to the agreement, National brought this declaratory judgment action against the people we here call 'the plaintiffs.' The parties filed a document of stipulated facts in the trial court and submitted the cause to that court for determination. The trial court found as a matter of law that the insurance policy afforded coverage, and it ordered National to pay the plaintiffs the policy limits. The court of civil appeals reversed and rendered judgment for National. Tex.Civ.App., 535 S.W.2d 662.
The insurance policy was attached as an exhibit to the stipulated facts. Under Part I of this policy, National agreed to pay all sums which the insured would become legally obligated to pay as damages because of bodily injury or death, sustained by any person, including occupants. Under 'Exclusions Applicable to Part I,' however, the policy contained a provisions commonly known as a 'Pilot Warranty Clause.' This clause provided that coverage under Part I would Not apply 'to any aircraft, while in flight, . . . whenever the pilot operating the aircraft is not qualified in accordance with the requirements specified in Item 6 . . ..' Item 6 of the declarations provided in part:
(Pilot Certificate & Ratings)
Private
(Emphasis supplied)
National's contention is that the pilot of the airplane, Rogers, was not 'properly rated for the flight.' It is therefore argued that the pilot clause operated to suspend National's liability under the policy. The plaintiffs, on the other hand, argue that Rogers was 'properly rated for the flight' and that National is therefore liable under its contract of insurance.
The case was tried upon an 'Agreed Statement of Facts' and five attached exhibits. The agreed statement recites that the passengers, Glover and Rives, were business acquaintances of Rogers, and the three men were en route from Odessa to Eagle Pass on a fishing trip when the crash occurred. The site of the crash was between Del Rio and Eagle Pass, about 30 miles southeast of Del Rio and 204 miles southeast of Odessa. The airplane was a single engine Piper aircraft. Rogers had a private pilot's license to operate a single engine land aircraft, but he did not have an instrument flight rating.
At 7:55 a.m. on December 9, 1972, Mr. Rogers called the Midland F.A.A. Flight Service Station and requested a weather briefing for a flight from Odessa to Eagle Pass. He stated that his departure time would be in three or four hours. He was told that at 7:00 a.m., the weather conditions at Midland and Del Rio were 'indefinite 100 feet obscuration, (100 percent of the sky hidden), with the visibility of 1/2 mile and fog.' He was also told that the area forecast indicated ceilings below 1000 feet with visibility of less than two miles; and from 7:00 a.m. to 7:00 p.m., the forecast was for 300 to 800 foot ceilings, overcast, with visibility of from one to three miles and occasional near zero ceiling and visibility conditions.
Later that morning, the weather had cleared considerably in the Midland-Odessa area. At 9:00 a.m. the Midland Air Terminal recorded the conditions as showing scattered clouds at 400 and 15,000 feet, a ceiling of 25,000 feet overcast, and visibility estimated at four miles, with ground fog. At that time, the three men took off from Odessa on their flight to Eagle Pass. Rogers filed no flight plan and did not request a weather briefing before taking off.
At the time the men took off from Odessa, the conditions in the Del Rio area had not improved from those reported at 7:00 a.m., nor did they improve later in the day. At 9:20 A.m., Del Rio had a ceiling of 100 feet with visibility of one-half mile. At 11:05 a.m. and at 12:00 noon, Del Rio reported the weather as cloudy with fog, and with a ceiling of 200 feet and visibility of one-half mile. At approximately 11:20 a.m., the aircraft crashed near Quemado.
The above weather reports and weather forecasts recited in the agreed statement were apparently taken from a National Transportation Safety Board report that was attached as an exhibit to the agreed statement. This report summarized an N.T.S.B. investigation that was conducted after the crash, and the accuracy of the material in that report was stipulated to by the parties. Included in the report was a statement by the Air Traffic Control Specialist who briefed Rogers on the weather conditions on the morning of the flight. The Specialist's statement contained the following:
At 1355 GMT (Greenwich Mean Time) the pilot of N7714P (Rogers) called by telephone and requested an outlook for a proposed VFR flight from Ector County Airport, Odessa, Texas to Eagle Pass, Texas. His proposed departure time was 'in the next three or four hours.'
I gave the pilot of N7714P all the information available to me at the time which was pertinent to his proposed flight. Source material used for the briefing included surface reports from SA29 091300, MAF FT amendment 09111, and GSW FA 091240 with emphasis on pertinent AIRMET information it contained. The pilot then indicated that he intended to delay departure.
Also attached to the N.T.S.B. report were copies of the weather reports and weather forecasts that were available to the A.T.C. Specialist on the morning of December 9, 1972. These weather reports and forecasts included the forecasts referred to by the A.T.C. Specialist in his statement, but they also included forecasts that were not specifically mentioned by the Specialist. One of these forecasts was a 'terminal forecast' for Del Rio. According to a 'Key to Aviation Weather Reports,' which was issued by the U.S. Department of Commerce and was revised in 1974, terminal forecasts 'contain information for specific airports on expected ceiling, cloud heights, cloud amounts, visibility, weather and obstructions to vision and surface wind.' They are issued twice a day and are valid for 24-hour periods.
The Del Rio terminal forecast attached to the N.T.S.B. report was issued at 5:00 a.m. on December 9, 1972; and it indicated that at the time of issuance, Del Rio was reporting a ceiling of 300 feet obscuration with visibility of two miles with fog, variable to a ceiling of 100 feet obscuration with visibility of one-half mile with fog. This terminal forecast went on to forecast that by 8:00 a.m., the ceiling would be 500 feet overcast, with visibility of four miles with fog. The forecasted weather for 10:00 a.m., at Del Rio was a ceiling of 1,000 feet, with scattered clouds at 25,000 feet and visibility of seven miles. At 1:00 p.m., the forecast called for a ceiling of 12,000 feet with scattered clouds, thin scattered clouds at 25,000 feet, and no restrictions as to visibility. Because this forecast is mentioned in the agreed statement of facts, and because the A.T.C. Specialist stated that he gave Rogers 'All the information available to me at the time which was pertinent to his proposed flight,' it is clear that Rogers was given the information contained in the Del Rio terminal forecast on the morning of the flight.
Another exhibit attached to the agreed statement was a sectional map of Texas which showed the presumed flight path of the airplane, the crash site, and the weather...
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