In Trishan Air, Inc. et al. v. Federal Insurance Co., et al., 635 F.3d 422 (9th Cir. 2011), the Court addresses whether or not an insured, in this case a Part 91 Operator, can invoke the doctrine of substantial compliance with a pilot training warranty provision in the insurance policy to receive coverage.
Background
On June 10, 2007, a Dassault Falcon 900 jet was set to depart Santa Barbara Municipal Airport for Tampa International Airport. The aircraft had 2 crew members and 13 passengers. Due to a miscalculation in the gross takeoff weight by the second in command (SIC) pilot, the V-speeds were erroneous. As an accompanying error, the stabilizer trim was more than 2 degrees outside the recommended setting for takeoff. Upon reaching Vr, the captain pulled back on the yoke with no response. The captain released the back pressure and the aircraft sped up past the 130-knot mark and the captain again pulled back on the yoke again with no response. Power was reduced and maximum braking was applied. Nonetheless, the airplane departed the end of the runway and impacted a berm. The accident did not result in any fatalities but the aircraft received significant damage.
Prior to the accident, Trishan Air Inc. (Trishan) purchased an insurance policy from Federal Insurance company (Federal) to cover its fleet of jets. At the policy quote stage, Trishan requested that the insurance policy provide coverage for its SIC pilots as long as they met the minimum qualifications set forth in FAR Part 61.55. Trishan was informed by the underwriter that such a policy was not possible. Instead, the underwriter submitted a quote to Trishan that encompassed a pilot training warranty whereby the SIC pilots were required to complete ground school, flight school, and accrue time in a full motion simulator for the make and model of the covered aircraft they would fly in addition to the qualifications set forth in Part 61.55. When the policy of insurance was issued, it included a pilot warranty endorsement containing the more stringent requirements.
Subsequent to the accident, Federal denied coverage for the accident because the SIC at the time of the accident never attended any formal course (ground or flight) relative to any Falcon aircraft in violation of the pilot warranty endorsement in Trishan’s policy. The District Court granted Federal’s motion for summary judgment holding that Federal’s denial of coverage comported with California law.
Court’s Analysis
On appeal, Trishan argued that it was not required to strictly comply with the pilot training warranty to receive coverage. Trishan cited McKenzie v. Scottish Union & Nat’l Ins. Co., 112 Cal. 548 (Cal. 1896) to support the contention that substantial compliance with a warranty merits coverage by the insurer. The Court discounted Trishan’s argument on the basis that compliance with a warranty in an insurance policy is a fundamental component to the risk being evaluated. The Court held that pilot qualifications and experience are obviously factors bearing directly on the risk the insurer is underwriting. Thus, if Trishan were allowed to advance the sufficient compliance argument then there would be no effect whatsoever to the warranty provision in the insurance policy requiring a certain level of proficiency to merit coverage. For emphasis, the Court opined, “If adopted, the practical effect of Trishan’s proposition would be significant, as it would permit an insured to universally assert that only substitute performance, based on the insured’s subjective selection, would be necessary to receive coverage.” In effect, Trishan’s argument sought to rewrite public policy with respect to insurance contract interpretation, which is a step the court rightfully was not willing to take.
The Court went on to demonstrate how Trishan’s actions/inactions failed to merit consideration as substantial compliance. In this instance, the SIC had not received any formal ground school, flight time instruction, or time in a Falcon 900 flight simulator. It is important to note that the captain on the accident flight was also the Chief Pilot whose job duties included making sure that all of the SICs were qualified in make and model prior to dispatch for flights. Not surprisingly, the Court concluded that Trishan had not taken any steps to make sure that the accident SIC met any provision of the pilot training warranty. The cases cited supporting Trishan’s substantial compliance argument contain one common denominator- the fact that the insureds in the referenced cases complied with at least some of the specific requirements at issue. California courts have rejected substantial compliance arguments where the insured completely failed to comply with a warranty or condition. Trishan’s struggle to use the substantial compliance argument was destined to fail, just like the takeoff roll of its Falcon 900 with the improperly trained SIC.
For more information on how the Trishan Air, Inc. case impacts your operations, contact Ronnie Gipson by email at Gipson@higagipsonllp.com or telephone at 415.692.6523.
Showing posts with label Part 91. Show all posts
Showing posts with label Part 91. Show all posts
Monday, February 6, 2012
FAA Explains Crewmember Rest For Flights Conducted Under Part 91
In November 2011, the Flight Standards Regional Office in Alaska requested an interpretation as to whether or not Part 91 permits a required flight crewmember to take a "controlled rest period" i.e. a nap when an augmented crew is not present.
The controlling provision of the FARs is 14 CFR section 91.105(a)(1) which provides that each required crewmember must be at his crewmember station during takeoff, landing, and while en route. The implication present in the statute is that the crewmember must actually perform his duties while at his crewmember station. By simple deductive reasoning along with a careful reading of the regulation, the FAA reasoned that a crewmember who is asleep at his crewmember station cannot and is not performing his duties. Thus, the FAA concluded that Part 91.105(a)(1) does not permit a required flight crewmember to sleep at his crewmember station.
There are 2 recognized exceptions to the requirement. First, a crewmember may leave his station if the absence is necessary to perform duties in connection with the operation of the aircraft. Second, a required crewmember is allowed to leave his station in connection with physiological needs. In flight sleep is not a duty that is necessary to operate the aircraft thus a required crewmember does not qualify under the first exception on a Part 91 flight. Next, the physiological needs exception is very narrow, it only permits breaks for activities such as using the restroom or stretching your legs briefly during a long flight.
For a large portion of the flying community, a part 91 flight is conducted in an aircraft similar in size to a Cessna 172. For these pilots, if they were successful in extricating themselves from their seat, there is simply no where to go for physiological needs and there is no aisle to walk down to stretch their limbs. However, there are flights conducted under Part 91 on larger aircraft that allow a required crewmember to attend to physiological needs or stretch their legs and after reading the FAA's interpretation letter they can continue to do so.
The above discussion results in a different outcome if the flight is augmented. In an augmented flight, the required crewmember is replaced by another qualified crewmember. When the replacement of a crewmember happens, the original crewmember is no longer "required" within the meaning of FAR 91.105(a)(1) because his presence is no longer needed to safely operate the aircraft. It is important to remember that each and every crewmember is responsible for ensuring that they are sufficiently rested and able to perform their required duties prior to accepting the responsibility of becoming a required crewmember.
If you have questions about the crewmember rest provisions or understanding the FARS as they apply to your operations, then contact Ronnie Gipson by email at gipson@higagipsonllp.com or by telephone at 415.692.6523.
The controlling provision of the FARs is 14 CFR section 91.105(a)(1) which provides that each required crewmember must be at his crewmember station during takeoff, landing, and while en route. The implication present in the statute is that the crewmember must actually perform his duties while at his crewmember station. By simple deductive reasoning along with a careful reading of the regulation, the FAA reasoned that a crewmember who is asleep at his crewmember station cannot and is not performing his duties. Thus, the FAA concluded that Part 91.105(a)(1) does not permit a required flight crewmember to sleep at his crewmember station.
There are 2 recognized exceptions to the requirement. First, a crewmember may leave his station if the absence is necessary to perform duties in connection with the operation of the aircraft. Second, a required crewmember is allowed to leave his station in connection with physiological needs. In flight sleep is not a duty that is necessary to operate the aircraft thus a required crewmember does not qualify under the first exception on a Part 91 flight. Next, the physiological needs exception is very narrow, it only permits breaks for activities such as using the restroom or stretching your legs briefly during a long flight.
For a large portion of the flying community, a part 91 flight is conducted in an aircraft similar in size to a Cessna 172. For these pilots, if they were successful in extricating themselves from their seat, there is simply no where to go for physiological needs and there is no aisle to walk down to stretch their limbs. However, there are flights conducted under Part 91 on larger aircraft that allow a required crewmember to attend to physiological needs or stretch their legs and after reading the FAA's interpretation letter they can continue to do so.
The above discussion results in a different outcome if the flight is augmented. In an augmented flight, the required crewmember is replaced by another qualified crewmember. When the replacement of a crewmember happens, the original crewmember is no longer "required" within the meaning of FAR 91.105(a)(1) because his presence is no longer needed to safely operate the aircraft. It is important to remember that each and every crewmember is responsible for ensuring that they are sufficiently rested and able to perform their required duties prior to accepting the responsibility of becoming a required crewmember.
If you have questions about the crewmember rest provisions or understanding the FARS as they apply to your operations, then contact Ronnie Gipson by email at gipson@higagipsonllp.com or by telephone at 415.692.6523.
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