U.S. Fire Ins. Co. v. Marr's Short Stop of Texas, Inc.

• Decision Date: 04 April 1984
• Docket Number: No. C-1929,C-1929
• Parties: UNITED STATES FIRE INSURANCE COMPANY, Petitioner, v. MARR'S SHORT STOP OF TEXAS, INC., Respondent.
• Court: Texas Supreme Court

Page 3

680 S.W.2d 3

UNITED STATES FIRE INSURANCE COMPANY, Petitioner, v. MARR'S SHORT STOP OF TEXAS, INC., Respondent.

No. C-1929.

Supreme Court of Texas.

April 4, 1984.

Rehearing Denied Nov. 28, 1984.

Baker & Botts, Larry F. York, Austin, L.W. Anderson, Dallas, for petitioner.

Byrd, Davis & Eisenberg, Tom Davis and Mike Davis, Austin, for respondent.

POPE, Chief Justice.

The question presented is whether the pilot of an airplane that crashed near New Orleans shortly after takeoff, killing all four persons aboard, was properly rated for the flight within the coverage of the aviation liability insurance policy. United States Fire Insurance Company filed this suit against Marr's Short Stop of Texas, Inc. for declaratory judgment and for the recovery of the money it had paid the insured's lienholder. The trial court, after a jury trial, rendered judgment for the plaintiff insurer. The court of appeals reversed the judgment of the trial court holding that Marr's Short Stop was covered. 643 S.W.2d 514. We reverse the court of appeals' judgment and affirm the judgment of the trial court.

At the time of the fatal crash, Ronald Marr was piloting the plane. Our decision turns upon the application of these sections of the insurance policy:

This policy does not apply ... to any occurrence or to any loss or damage occurring while the aircraft is operated in flight by other than the pilot or pilots set forth under Item 7 of the Declarations:

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7. PILOT CLAUSE: Only the following pilot or pilots holding valid and effective pilot and medical certificates with ratings as required by the Federal Aviation Administration for the flight involved will operate MARR.

United States Fire paid a claim for $213,956.81 asserted by the bank that held a lien on the destroyed plane. It then brought The court of appeals reversed the trial court's judgment that was based upon the second jury finding, holding that the first jury issue was determinative, and the second jury issue and finding were immaterial under this court's prior decision in Glover v. National Insurance Underwriters, 545 S.W.2d 755 (Tex.1977). The court of appeals, however, held that the evidence was legally and factually sufficient to support both jury findings. We agree that there was evidence that supported the findings.

this suit against Marr's Short Stop, contending that the pilot, Marr, was not properly rated as required for coverage under the policy. The trial court submitted two special issues. The jury refused to find that weather conditions that existed at the beginning of the flight were IFR (Instrument Flight Rules). The jury answered the second issue affirmatively, that is, "at the inception or beginning of the flight ... Ronald Eugene Marr knew that he would be flying in IFR weather conditions."

We granted the application for writ of error to review the court of appeals' disregard for the second finding. Marr's Short Stop, by cross-point, asserts the absence of any evidence to support the finding that Marr knew at the inception of the flight that he would be flying in IFR weather conditions. Since the factual background is essential to our discussion of both Marr's Short Stop's cross-point and also United States Fire's point, we shall first discuss the facts.

Ronald Marr, the deceased pilot, was certified for flying under visual flight rules, termed VFR. Visual flying must be in weather conditions that permit one to see the ground or horizon. The minimum requirements for VFR weather conditions within an airport traffic area that is controlled by the tower are a 1,000 foot ceiling and three miles of horizontal visibility. The controlled space of an airport is the area within a five mile radius of the airport and within 3,000 feet from the ground. See Federal Aviation Regulations, 14 C.F.R. § 91.105 (1983). Weather conditions that are below these minimum standards are classified under instrument flight rules, termed IFR.

Ronald Marr was not rated for instrument flight. On the morning of September 20, 1979, Marr planned a return flight from New Orleans to Mineral Wells, Texas, in his company's Piper twin engine plane. The weather was cloudy and rainy. He called the Flight Service Station at 7:45 a.m. for weather briefing and was told that the forecasts between New Orleans and the Dallas-Fort Worth area were governed by IFR. At the New Orleans Lakefront Airport, however, the weather was suitable for VFR flight. The controller told Marr that it would start getting better to the west by noon but "It's supposed to get worse here," meaning at New Orleans.

At 9:55 a.m., Marr obtained his next weather briefing. The route from New Orleans northwest to Dallas was reported as IFR with heavy embedded thunderstorms, but clearing to the south. Marr learned also that conditions to the west at Lake Charles had improved. Marr decided to fly west instead of northwest. That route, according to the weather briefer, had "some light rain showers, some IFR conditions every now and then and maybe a cell or two." The tops of the clouds were about ten thousand feet.

Marr filed an unauthorized IFR flight plan in violation of Federal Aviation Regulations, 14 C.F.R. § 61.3(e) (1983), ¹ and it was on the basis of that plan that he would receive clearance from the airport by way of Lake Charles, Waco, and Fort Worth Meacham Field. The controllers at the takeoff from New Orleans and his destination at Meacham Field did not know that Marr was certified only for visual flying.

After filing his unauthorized IFR flight plan, Marr was assigned an electronic path, Victor 20, to Lake Charles; and another path, Victor 15, to Waco. One who is properly rated can fly those routes without seeing the ground, and he can stay in continuous contact with Air Traffic Control from takeoff to his destination.

Important new weather data was transmitted to all pilots monitoring Lakefront Tower while Marr was taxiing to a runway at 10:31 a.m., just seventeen minutes before takeoff. The traffic controller issued a convective SIGMET warning of embedded thunderstorms with tops to 50,000 feet along his flight path. A "SIGMET" is a warning of a significant meteorological phenomenon. A "convective SIGMET" is a warning to all pilots for the safety of aircraft when there is violent weather such as danger of tornadoes, lines of thunderstorms, or embedded and other types of thunderstorms. An embedded thunderstorm is one that exists in an area that is covered and concealed by clouds.

At 10:37 a.m. the special Flight Service observation log showed that the weather around Lakefront Airport had deteriorated to one mile visibility and 1000 feet overcast with heavy rain and fog. Conditions were then classified, not as VFR, but as special VFR, but one could fly with permission. Special VFR conditions refer only to the airport traffic area. As forecast at the first weather briefing to Marr, the conditions had grown worse in the New Orleans area.

Marr was cleared for his IFR flight at 10:48 a.m. While climbing to his assigned altitude of 10,000 feet for his westbound flight, he immediately got lost. The controller discovered and advised Marr that he was headed eastward in the opposite direction of his assigned route. Marr attempted to correct his error, but the plane, after reaching an altitude of about 8,700 feet disappeared from the radar scope. Seventeen minutes after takeoff and about fifteen miles southwest of the airport, witnesses saw the plane flying almost straight into the ground. The weather was overcast and drizzling at the point of the crash.

Marr's Short Stop insists that all of the evidence of IFR weather conditions were along the direct path to Fort Worth that Marr chose not to take. It urges that there is no evidence of any IFR weather about which Marr knew on the alternate path, Victor 20, to the west. While it is true that by heading westward Marr could avoid much known IFR weather, there was evidence that he knew there were lesser but some IFR conditions through which he had to fly. The convective SIGMET warning of embedded thunderstorms with tops to 50,000 feet covered his route westward to Lake Charles. The jury had before it the undisputed fact that the deceased pilot misled the Flight Service and the tower by representing that he was IFR rated and thereby supplied the strongest evidence of his knowledge of IFR conditions. If Marr did not need IFR clearance, why did he seek it? Absent those conditions, there was no reason for him to violate the law by filing his IFR flight plan and taking an assigned electronic course, Victor 20.

The jury rightfully could reason that Marr knew the conditions through which he must fly, and his IFR flight plan was a way that he could be granted clearance. Whether he could have taken off without the IFR flight plan is not the point; Marr's filing the plan is a believable circumstance that he knew the weather conditions were IFR. He had to fly to his assigned route of 10,000 feet through clouds. He knew embedded thunderstorms were moving from the west and south of New Orleans and there was little chance to avoid them other than to fly through them. The purposes of flight instruments and specialized training for blind flying are to permit flight by those trained to overcome spatial disorientation that is inherent in flying non-visually. We agree with the court of appeals that there is evidence that supports the finding that at the inception of the flight, Marr knew he would be flying into IFR weather.

The court of appeals erred in its application of Glover v. National Insurance Underwriters, 545 S.W.2d 755 (Tex.1977), by ignoring the finding that Marr, at the inception of his flight, knew he would be flying in IFR weather conditions. In Glover this court held that a court in deciding whether a pilot, to use the words of the policy, was "properly rated for the flight," must make the determination from the flight in its entirety. We held that we...