National Union Fire Insurance v. Zuver , 110 Wash. 2d 207 ( 1988 )

Goodloe, J.

(concurring) — Resolution of this case depends upon this court's interpretation of a specific phrase in an aviation insurance policy issued by the respondent, National Union Fire Insurance Company (National) to the insured, Phillip E. Strathy. The policy contains an exclusion from coverage for damages accruing under situations where the pilot is not properly certificated "for the operation involved." Clerk's Papers, at 2. National contends that this exclusion releases it from liability for a fatal crash which more likely than not occurred while Mr. Strathy, a pilot certificated to fly only under visual flight rating (VFR) conditions, was flying under weather conditions requiring an instrument flight rating (IFR). According to National's argument, Strathy's action in allegedly flying into a cloud bank was an "operation" for which he was not certificated and therefore fell within the terms of the exception. The petitioners contend that the term "operation involved" refers to the entire flight from takeoff to landing at the intended destination, regardless of weather conditions encountered en route. The majority of this court concludes that the phrase "operation involved" is ambiguous and, as such, should be construed against the insurer and in favor of the petitioners. I agree with this narrow holding.

Unfortunately, after deciding the case, the majority goes on to consider an issue of far greater scope: whether as a general rule aviation insurance should cover a VFR pilot flying in non-VFR weather conditions. In doing so, the majority purports to interpret insurance policies not before the court. I cannot concur in this action.

In its opinion, the majority adopts a rule of factual interpretation called the inception rule. Under the inception rule, each flight is characterized as a whole, either as a VFR or an IFR flight according to "the weather conditions at the time and place of departure". Majority opinion, at 213. The majority specifically excludes from consideration any knowledge the pilot may have had at the time of takeoff concerning weather conditions along the intended flight path, as well as the actual weather conditions encountered in flight. Indeed, under the majority's explanation of the inception rule, clear weather at the time and place of takeoff guarantees insurance coverage for a VFR pilot for the entire flight, even if the pilot deliberately chooses to violate the Federal Aviation Regulations (FAR's) requiring VFR pilots to fly only under weather conditions allowing specified ranges of visibility. Therefore, under the majority's analysis, a VFR pilot could take off from an airport in Yakima or Spokane under clear skies, knowing that poor weather conditions exist over the mountains; that pilot could continue west and, upon encountering conditions under which he is not qualified to fly, continue onward, deliberately entering cloud banks which obscure his view, all without disrupting his insurance coverage. Because I cannot agree that an insurance company should be liable for damages resulting from a pilot's deliberate noncompliance with the restrictions on his license, I cannot support the adoption of the inception rule as stated in the majority opinion.

Perhaps a more troubling aspect of the majority opinion, however, is that it impliedly requires that the inception rule be applied to all aviation insurance policies, irrespective of policy language. Even assuming, arguendo, that the inception rule yields an appropriate result under an insurance policy covering flights for which the pilot has been certified or, as in the present case, where an ambiguous provision of the policy is so interpreted, I find it highly inappropriate to hold that the inception rule should be applied in all aviation cases. Such a holding effectively deprives insurers of the right to contract specifically for coverage extending only so far as does the pilot's certification to fly. Although no such policy is before the court, it would be possible to draft an aviation policy which would clearly exclude coverage should a VFR pilot violate the FAR's by deliberately flying into a cloud bank when he could have avoided doing so by rerouting or aborting the flight. Should a policy containing such a provision come before this court, I believe it would be the court's duty to uphold the policy according to its clear meaning. I therefore object to the majority's universal adoption of the inception rule.

Brachtenbach, Andersen, and Durham, JJ., concur with Goodloe, J.