Insurance Co. of North America v. Cash

• Decision Date: 08 December 1971
• Docket Number: No. B--2742,B--2742
• Citation: 475 S.W.2d 912
• Parties: INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. Ben A. CASH, d/b/a Sportsman Aero Service, Respondent.
• Court: Texas Supreme Court

Page 912

475 S.W.2d 912

INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. Ben A. CASH, d/b/a Sportsman Aero Service, Respondent.

No. B--2742.

Supreme Court of Texas.

Dec. 8, 1971.

Rehearing Denied Feb. 16, 1972.

Thompson, Knight, Simmons & Bullion, John A. Mackintosh, Jr., Dallas, for petitioner.

Locke, Purnell, Boren, Laney & Neely, John L. Shook and Ben Henderson, Dallas, for respondent.

McGEE, Justice.

Insurance Company of North America filed this action against Ben A. Cash, d/b/a Sportsman Aero Service, to recover on a note. Cash filed a cross action to recover proceeds of a policy of aircraft insurance covering an amphibious aircraft which crashed. The trial court granted summary judgment on the note in favor of Plaintiff which action is not in dispute on appeal. The trial court also denied summary judgment in favor of the Cross-Defendant insurance company while granting Cash's summary judgment counterclaim to recover under the policy. The Court of Civil Appeals affirmed. Tex.Civ.App., 465 S.W.2d 846. We affirm the judgments of the courts below.

Cash notified Petitioner of the crash on January 19, 1969 and submitted a proof of loss to Petitioner on March 7, 1969. T. D. Brown was piloting the aircraft at the time of the crash. This proof was not accepted by Petitioner and Respondent's claim for insurance proceeds for physical damage to the airplane was denied on the ground that T. D. Brown was not an insured pilot within the terms of the 'Pilot Endorsement' contained in the policy.

The Court of Civil Appeals erred in affirming the trial court's summary judgment for Respondent on the ground that Petitioner's pleadings did not meet the minimum requirements to substantially comply with Rule 94, Texas Rules of Civil Procedure, in order to raise its defense under the 'Pilot Endorsement.' The Court of Civil Appeals should have remanded the cause if the pleadings were insufficient. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233 (1956).

Respondent attached a copy of the entire policy to its cross action as an exhibit and referred to the 'Pilot Endorsement' in its pleadings. Petitioner specifically referred to the 'Pilot Endorsement' in its trial amendment allowed by the trial court before the final judgment was entered. We hold that the 'Pilot Endorsement' was put in issue as a defense to Respondent's counterclaim by Respondent's pleadings which anticipated this defense.

We must determine if there is any other ground which would require affirmance in the Court of Civil Appeals. City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex.Sup.1970). Careful review of all the record and arguments in the briefs reveals no dispute whatsoever as to any fact issue. The Court of Civil Appeals should have affirmed on the other ground supporting the trial court judgment, namely that the 'Pilot Endorsement' did not defeat Cross-Plaintiff's right to recover policy proceeds. The only issue before the courts below and the only issue before us is the interpretation of the 'Pilot Endorsement.'

The 'Pilot Endorsement' in the policy read as follows:

'It is agreed that coverage provided by this policy with respect to any aircraft specifically and individually described therein shall not apply while such aircraft is in flight unless the pilot in command of the aircraft is a person named below, or a person meeting the qualifications set forth below:'

Immediately below this portion of the printed form was typed:

'Ben A. Cash'

(Following 29 typing lines or 4 1/2 inch blank).

The printed form then resumed by stating:

'Nothing herein contained shall vary, alter or extend any provision or condition of the policy other than as above stated.'

Reviewing cases dealing with similar pilot endorsement coverages reveals that the practice in all instances brought to the attention of this Court is to provide for specific pilots and others equally as qualified to operate the aircraft. Schwab v. Ranger Insurance Co., 438 S.W.2d 121 (Tex.Civ.App.1969, n.w.h.); Electron Machine Corporation v. American Mercury Insurance Company, 297 F.2d 212 (5th C.A.1961); Paul Grigsby v. Houston Fire & Casualty Insurance Co., 1966, 113 Ga.App. 572, 148 S.E.2d 925; Roberts v. Underwriters at Lloyds, London, U.S.Dist.Ct., S.D. Idaho 1961, 195 F.Supp. 168; Peerless Ins. Co. v. Sun Line Helicopters, Inc., District Court of Appeal of Florida, 3rd Dist. 1965, 180 So.2d 364; Powell Valley Electric Co-op., Inc. v. United States Aviation Underwriters, Inc., Civ.App. No. 680, U.S.Dist.Ct., W.D.Va.1959, 179 F.Supp. 616; Fireman's Fund Insurance Company v. Mrs. Dorothy F. McDaniel, U.S.Dist.Ct., N.D. Mississippi, E.D., 1960, 187 F.Supp. 614; Petro v. Ohio Casualty Ins. Co., U.S.Dist.Ct., S.D.Calif., D.C., 1950, 95 F.Supp. 59; and Weissman v. Prashker, 1961, 405 Pa. 226, 175 A.2d 63. In the case at bar, apparently the insurance company chose not to contract in the usual manner. To give credence to Petitioner's argument, the last nine words of the 'Pilot Endorsement' must be totally disregarded.

A pilot endorsement limiting coverage to named individuals is found in Powell Valley Electric Co-operative, Inc. v. United States Aviation Underwriters, Inc., supra. In Powell, the policy read:

'* * * shall apply Only while the aircraft is being operated by John J. Ryan, commercial certificate No-1248550 with proper rating as required by the C.A.A. for the flight involved.' (Emphasis added).

No case is cited nor was one found to support Petitioner's contention that by typing 'Ben A. Cash' under the printed endorsement limited coverage to those times the aircraft was piloted by Cash.

The 'Pilot Endorsement' provides coverage in two situations; they are: (1) the pilot is a person named below, and (2) the pilot is a person who meets the qualifications set out below. Strictly construed, the second provision would not defeat coverage because the maker of the contract failed to set out any qualifications in the ample space provided in its own printed form. At best, the insurance company restricted coverage to those of similar or superior qualifications to the 'person named below.' We so construe the contract to mean coverage extended to Ben A. Cash and others at least as well qualified by recognized C.A.A. standards to pilot the aircraft. T. D. Brown unquestionably had these qualifications because of his commanding superiority as a pilot as evidenced by his multiple licenses, ratings, and experience shown in the record. T. D. Brown, a licensed flight instructor, taught Ben A. Cash to pilot aircraft of this type.

As distinguished from automobile liability and other types of insurance coverage over which the Insurance Commissioner has control, the Insurance Commissioner has...