The Run-Up Is Complete by S

A Publication of The Florida Bar Aviation Law Committee To Promote Education in the Florida Aviation Community

Volume I, Issue 1 Florida Aviation Law Journal November 2007

The Run-Up is Complete By S. V. (Steve) Dedmon, Editor in Chief

Welcome to the inaugural edition of point— spoke to all the right people to make Florida Aviation Law Vectors. Without break- this happen. You, the members, also got IN THIS ISSUE: ing my arm patting myself on the back, but personally involved which is a testimony to trying nonetheless, the concept of getting Just In Case You responding to my call for help. this off the ground, so to speak, was totally Missed It...... 2 Second, I got this idea while perusing the Aviation Security: Are my idea. Thinking about that, if this crashes People More Dangerous and burns we know wherein the probable standing committees section of The Florida Than Bombs?...... 3 cause will lie! Bar’s website. The Education Committee Committee to Meet in As are many of you, I am a member of has been doing this for quite a few years Conjunction With Florida Bar Midyear Meeting...... 4 various associations which provide analysis and they do it well. Ultimately, if this publica- Litigating Insurance of legal issues and attend excellent semi- tion is favorably compared with theirs I will Coverage Issues Under nars where many knowledgeable speakers consider it a success. To help with the layout Aircraft Liability Policies...7 keep us updated on the latest aviation legal and design of our publication Yvonne Sher- In Pursuit of “Natural issues. We also attend quality seminars Quiet” – How New Noise ron, Director of Professional Development Modeling Methodology which originate here in Florida, such as and Noise Impact Embry-Riddle’s Aviation Law and Insur- lent her talent and expertise. Also, thanks Assessment Could Affect ance Symposium and our quarterly aviation to Connie Stewart for contacting Yvonne on Airports and Airlines Nationwide...... 18 bar committee meetings where our own our behalf. membership bring relevant and informative Finally, I want to thank in advance those presentations. It is that expertise I hope to of you who take your time and contribute ar- bring in written form to those who are unable Editorial Board: ticles you believe would be of interest to our to attend our meetings and to others both in members. Remember, when I say articles of S. V. (Steve) Dedmon, and out of state who may have an interest Editor-in-Chief interest, they do not have to be legal, they in aviation related issues and law Dan Anderson As always, there are people to recog- can be fun aviation stuff! This is our journal nize and thank for their participation. First, and although a cliché, it will be only as good Committee Officers: I pitched this idea to our past Aviation Bar as those who contribute. As such, I expect Elisabeth Daire Committee chair, Greg Popp, who began great things, as the quality of legal aviation Kozlow to say yes before I was able to finish my expertise on our committee is extensive. Chair sentence. As usual his enthusiasm was With your help we will navigate weather immediate as he was sending an e-mail to Harry Lee Coe IV deviations, expect further clearance times, Vice Chair our committee colleagues while we were holding patterns, and with quality VECTORS Brian David Burgoon still discussing the merits of the idea. Also, ultimately our flight into legal airspace will be Board Liaison our present chair Elisabeth Kozlow, vice chair Harry Coe and Board liaison Brian rewarded with a successful conclusion. We Burgoon— whom I hope to meet at some are cleared to GO! Just In Case You Missed It...

At our September 7, 2007 meeting and its membership. At this point the franchising. A primary focus is on an in Tampa our agenda included updates university has received about one-third entity having one owner but several and presentations from the certification of the necessary funds management companies. chair of the Aviation Bar Certification Steve Dedmon was the next updater Dr. Richard Karl, surgical oncologist committee, the Eilon Krugman-Kadi as the Journal is his project. A prototype professor at the USF medical school, Foundation and the Aviation Law Com- of the cover page was distributed to and contributing editor for Flying mittee Journal, as well as guest speak- the committee for their perusal. There Magazine discussed Aviation Safety ers Kent Jackson of Jackson, Wade & was then a lengthy discussion about Measures for use in Operating Rooms, Blanck, LLC and Dr. Richard Karl from content and possible expansion to in- Cath Labs and Endoscopy suites. His the University of South Florida School clude a variety of topics. The committee emphasis was essentially bringing of Medicine. discussed a variety of issues; however, CRM procedures to medicine as a The certification committee report since this article is now in VECTORS, means to reduce instances of surgical consisted of reviewing the standards fortunately the discussions regarding and medical mistakes. He provided to take the board certification test in- publication issues are now MOOT! some chilling statistics of medical mal- cluding the required CLEs in the past Kent Jackson then presented practice which included wrong site 3 years which must be related to avia- “Challenges for the Charter Industry.” operations, missing surgical tools, and tion law. There was also a discussion His emphasis was the relationship even instances of operating on the regarding teaching a review class in between aircraft owners and aircraft conjunction with the ERAU Aviation operators in Part 135 operations. The wrong patient. Through video and flow Law and Insurance Symposium to be FAA appears to have issues with who sheets he compared operating room held in January. exercises “operational control,” a term procedures to those required to turn The next update was in regards to which appears to have broad implica- on the coffee pot of a 747, extremely the endowment scholarship at ERAU tions yet a vague definition. Some of the simple to complex, respectively. He in the name of former graduate Eilon issues of concern the FAA is focusing said the AMA does not address the is- Krugman-Kadi. Greg Popp encour- on include non-employee pilots, air- sue of surgical safety measures nor do aged those members who have not craft/pilots coming from the same entity, M&M conferences. Literally, medicine yet contributed to do so, reminding us advertisement/booking/billing by the still sees the doctor as the DC3 captain of Eilon’s faithfulness to the committee management company and certificate of old, beyond reproach and question.

Get in on the “action!

Be a contributor to this newsletter. For more information, or to submit comments and articles, contact Steve Dedmon at: [email protected]

Aviation Security: Are People More Dangerous Than Bombs? By Timothy M. Ravicha*

Introduction is backward-looking and flawed, “the 1996 when a Boeing 747, TWA Flight 5 The “freedom to travel throughout the equivalent of fighting the last war.” 800 from New York to Paris, exploded United States has long been recognized Profiling airline passengers should soon after it took off. A defective fuel as a basic right under the Constitution.”2 be a vital part of commercial aviation se- tank caused the tragedy. Initially, however, government officials suspected Airline travel particularly has become curity because screening for bad people the tragedy was terrorist-related. such a usual mode of travel that many is at least as important as screening Consequently, on August 22, 1996, Americans simply presume their free- for bad things. This article amplifies President Bill Clinton announced the dom to it. In fact, airline service, not air- an argument that receives surprisingly creation of the “White House Commis- line security, was the topic that had the scant public attention: “The ‘magic’ at- sion on Aviation Safety and Security.”9 attention of transportation lawmakers tributed to isolated technological fixes This body, which also was known as the throughout the 1990s. Airline passen- must be jettisoned in favor of systems “Gore Commission,” was charged with gers— among whom are members of perspectives including the human 6 “develop[ing] and recommend[ing] to Congress— fumed at airline overbook- element.” People warrant at least as the President a strategy designed to im- ing practices, delays, and congestion much attention as putatively dangerous 7 prove aviation safety and security, both at airports.3 September 11th jolted the objects. Biometric, psychometric, and domestically and internationally.”10 On nation’s focus from service to security. sociometric profiling facilitates this real- February 17, 1997, the Gore Commis- In the aftermath of September 11th, ity by focusing on people and their ideas and behaviors, not just their weapons. sion issued a final report recommend- aviation security officials relentlessly ing the revitalization and reformulation hunt for bad things. They continually of the 1960s Anti-Air Hijack Profile. develop, contract for, and deploy vari- What is Airline Passenger Profiling? The first-generation computer airline ous high- and low-tech anti-terrorism passenger profiling system to follow measures, i.e., thermal neutron analy- Terrorism has always shadowed com- the Gore Commission’s report was sis, computerized tomography, X-ray mercial airline travel. The first document- developed by Northwest Airlines in devices and electromagnetic radiation, ed airline hijacking occurred as early as 1996 under a grant from the Federal trace detectors or “sniffers,” bomb-sniff- 1931, when Peruvian revolutionaries Aviation Administration (“FAA”). Known ing dogs, airline personnel screening, overtook a domestic flight to distribute as the “Computer-Assisted Passenger and automated passenger profiling. propaganda. Hijackers since have seized Pre-Screening System” (“CAPPS”), Terrorists continually find new ways to commercial airplanes to bargain for the the government’s initial profiling device threaten commercial aviation despite exchange of political prisoners or to es- was presented as a “management tool” 4 these security devices. cape to a particular destination like Cuba. whose goal was “not to pick a needle On August 10, 2006, British intel- The goal of the September 11th hijack- out of the haystack, but to make the ligence prevented a terrorist plot to ers was different, to kill Americans and haystack smaller.”11 CAPPS collects blow up ten airplanes by detonating to destroy national icons of economic, approximately 39 pieces of pre-board- common liquids. The United States military, and political power. ing data aimed at identifying travelers Transportation Security Administration This shift in objective exposed er- who should be subjected to heightened (“TSA”) subsequently banned carry-on roneous assumptions upon which security procedures. The precise data items; today, passengers may carry national aviation security policy oper- that compose a CAPPS profile are not on only 3-ounce or smaller containers ated for decades. Whereas the Soviet publicly known, but some airline secu- of shampoo, toothpaste, skin creams Union created “things” during the Cold rity observers discern CAPPS focuses and the like in a zippered, one-quart, War that could be observed and coun- on specific features such as the method clear plastic bag. In May 2007 the TSA tered, a threat from non-sovereigns of payment for an airline ticket (i.e., unveiled “FIDO,” a hand-held scanner like al Qaeda is an indefinite threat, as cash or credit); the timing of a purchase capable of detecting liquid explosives “terrorists only create transactions that (i.e., immediately before departure or inside sealed bottles. While providing can be sifted from the noise of everyday much earlier); the identity of travelers, an important layer of security, carry-on activity only with great difficulty.”8 In this including with whom, if anybody, the restrictions and explosives-detecting new context, airline profiling systems passenger is traveling; the activity at equipment exemplify why profiling is offer a preemptive and forward-looking the destination, including whether the necessary to safeguard commercial mechanism to relate historical terrorist passenger intends to rent a car; the aviation. Reaction-based national conduct to new terrorist plots. flight itinerary, including where the flight aviation security policy focused myo- The need for airline passenger originates and its ultimate destination; pically on objects instead of people screening was presented after July 17, the passenger’s specific travel plans,

Aviation Security including ultimate destination when Representative Don Young (R-Alaska) was more invasive than CAPPS II. different than the flight upon which the for extra security scrutiny. Finally, On September 19, 2005, Secure traveler is aboard; and whether the CAPPS critics cautioned against the Flight was dealt a serious setback as the flight is round trip or one-way. dissemination of CAPPS profiles to Aviation Security Advisory Committee After September 11, 2001, the other governmental agencies for pur- forwarded a report of a nine-member federal government sought to update poses unrelated to terrorism or aviation panel of security and privacy experts CAPPS with “CAPPS II.” This modi- security, so-called “mission creep.” (i.e., Secure Flight Working Group) to fied system would have authenticated The effort to roll-out CAPPS II was set the TSA, without recommendation, stat- the identity of commercial airline pas- back by these criticisms, and ultimately ing: “First and foremost, TSA has not sengers by comparing each traveler’s was defeated when it was learned that articulated what the specific goals of Passenger Name Record (“PNR”), in- some airlines voluntarily provided the Secure Flight are. Based on the limited cluding full name, home address, tele- TSA with lists of their respective pas- test results presented to us, we cannot phone number and date of birth, against sengers for testing in the CAPPS II assess whether even the general goal governmental databases for security system – without the consent of those of evaluating passengers for the risk assessment. CAPPS II would bridge passengers.15 The TSA abandoned they represent to aviation security is a law enforcement and intelligence data- CAPPS II on July 13, 2004, after the realistic or feasible one or how TSA pro- bases. “CAPPS II would have notified United States General Accounting Of- poses to achieve it.”17 These and other law-enforcement officials whenever the fice reported that the TSA failed to meet unresolved concerns about the intent and screening process turned up passen- related privacy concerns. architecture of Secure Flight doomed the gers with outstanding warrants against The TSA followed its aborted CAPPS program in 2006. However, the Depart- them, even for non-travel-related inci- II program with “Secure Flight,” in Au- ment of Homeland Security is working to dents.”12 Controversially, then, CAPPS gust, 2004. Secure Flight was intended reduce mistakes, protect privacy rights, II exploited commercial databases for to improve government “No-Fly” and and achieve reliability in order to release counterterrorism purposes. “automatic selectee” lists by reduc- a revamped form of Secure Flight some- To defeat CAPPS II, civil liberty and ing the number of domestic airline time between 2008 and 2010. privacy proponents publicized opera- passengers pulled aside for more tional failures of CAPPS I. They noted rigorous screening. More specifically, Is Common Sense Illegal? that profiling outside of the aviation are- Secure Flight would shift passenger Inarguably, profiling requires dis- na had been unsuccessful, for instance, pre-screening responsibilities from the crimination. Both “profiling” and “dis- the United States Customs Service privatized airlines to the federal govern- crimination” have acquired strong has not stopped the drug trade using ment. To test Secure Flight, therefore, negative connotations.18 Yet, profiling profiling.13 Profiling system critics also the TSA ordered more than 70 domestic and discrimination are common, lawful publicized the high risk of “false nega- airlines to submit PNRs for the month features of economic life in America tives,” where crucial people or events of June, 2004. The data the TSA re- today. This is so because of the com- are missed. For example, in September quested “varie[d] from airline to airline moditization of personal information. 2004, British pop star Cat Stevens (who . . . and may also [have] include[d] the Banks and supermarkets have long became a Muslim in the 1970s and names of others traveling in the same used profiling as marketing and stra- is known today as Yusuf Islam) was party, meal preference, whether the tegic planning tools. Businesses today removed from an international flight reservation was changed, the method segment their customers on the basis bound for the United States because of payment and comments of all types of buying habits and patterns, where his name was on the government’s by airline employees on matters like frequent customers earn benefits such “No-Fly” list.14 CAPPS I also identi- whether a passenger was drunk or as gift cards or giveaways. Airlines cer- fied United States Senator Edward M. belligerent.”16 This prompted privacy tainly profile and categorize their cus- Kennedy (D-Mass.) and United States advocates to contend Secure Flight tomers through computer reservation

Committee to Meet in Conjunction With Florida Bar Midyear Meeting The next meeting of the Aviation Law Committee will be Friday January 18, 2008 at the Hyatt Regency Hotel, in downtown Miami, from 2:00 - 6:00 p.m.

Aviation Security and yield management systems, along rower, disturbing question of whether screening probably are law abiding with frequent flyer reward programs. reason and racism are symbionts and citizens posing no threat to any facet of In state and federal courts across the not mutually exclusive when it comes society. In this respect, some observ- nation, too, lawyers profile potential to protecting commercial aviation from ers of aviation security policy perceive jurors during voir dire and doing so is terrorism. airline passenger profiling to be overtly an important and legitimate part of the Americans resisted profiling before racist, where “flying while brown” and judicial process. (Of course, lawyers September 11th, but later welcomed it “flying while Arab” is as risky an activity may profile potential jurors on the as a common sense solution to avia- as “driving while black.”25 condition they do not discriminate on tion terrorism. Following the thwarted Profiling in terms of ethnicity, political the basis of race, color, religion, sex, liquid-bomb plot of August 10, 2006, agenda, race and/or religious affilia- national origin or economic status.19) In moreover, the Wall Street Journal criti- tion is logical.26 Aviation security policy the marketplace and in the courtroom, cized the TSA’s refusal to use religious makers must imagine precedented then, profiling can be rational conduct or ethnic factors as even minor factors and unprecedented threats from all and discrimination can entail nothing in screening: passengers, not least of whom are more than differentiating individuals Nobody is suggesting using eth- passengers whose background fits with on permissible grounds for appropriate nicity or religion as the only – or those who have terrorized commercial ends. even the primary – factors in pro- airline travel historically. The federal Like profiling and discrimination, sur- filing terrorists. But it also makes government’s systematic targeting of veillance is an activity whose connota- no sense to take zero account a substantial subset of its population tion and legitimacy are context based. of the fact that every suicide at- (i.e., airline passengers) no doubt chal- From its founding, the United States tack against U.S. aviation to date lenges ideals expressed in the Consti- government has surveilled its own citi- has been perpetrated by men of tution and the Bill of Rights particularly. Muslim origin. While al Qaeda is zens in response to external threats, al- Therefore, the paramount questions no doubt seeking recruits who ternatively justifying its actions as either for aviation security policy makers are care or control. In 1798, for example, don’t obviously display such characteristics, that doesn’t mean whether and how it is possible to bal- Congress passed the Alien and Sedi- we should ignore the likeliest ance— not exchange— airline safety tion Acts, which allowed President John candidates . . . with civil liberties. These questions are Adams to deport non-citizens identified likely to endure as long as any terrorist The law on this is settled, and in the as threats to the country, without due threat to commercial aviation persists. process of the law.20 Later, during the other direction. On multiple occasions Civil War, President Abraham Lincoln the federal courts have upheld pro- Conclusion suspended the writ of habeas corpus grams that treat groups differently when on eight occasions; and, in 1875, in a “compelling” public interest can be Privacy, liberty, and security propo- Totten v. United States, the United identified: affirmative action, minority nents are equally blameworthy in pre- States Supreme Court upheld Presi- set-asides, composition of Congres- senting their arguments for or against dent Lincoln’s authority to enter into a sional districts, and the all-male draft airline passenger profiling systems in contract with a private citizen to spy on have all met that legal test. Yet the absolute terms. The starting point for Confederate troops.21 In 1917, during same people who allocate jobs, federal many libertarians and privacy advo- World War I, federal authorities pros- contracts and college admissions by cates is Benjamin Franklin’s uncompro- ecuted opponents to the war under the race or ethnicity object to using them mising statement in 1759 that “[t]hose Espionage Act.22 Most infamously, on merely as one factor in deciding whom who would give up essential liberty February 19, 1942, President Franklin to inconvenience for a few minutes at to purchase a little temporary safety D. Roosevelt authorized the interment an airline checkpoint. Surely aviation deserve neither liberty nor safety.”27 of Japanese Americans to designated security is a far more compelling public Oppositely, one well-known airline CEO military areas, a decision upheld by the interest than the allocation of federal gave this ultimatum: “You want to travel now disgraced decision of Korematsu set-asides.24 on the airline system? You give up your v. United States.23 The legacy of “us- Profiling proponents do not discount privacy. You don’t want to give up your against-them” domestic and foreign the Constitution. Rather, they argue privacy? Don’t fly. Your privacy isn’t policy brings into focus the broad ques- that common sense is not inconsistent equal to the safety of the rest of us.”28 tion whether legitimate ends such as with the Constitution. Yet, equating Where emotions run high, sometimes it national security are justified by any Arabs, Middle Easterners, Muslims, or is best just to relate facts: Ten of the 19 means, including the deprivation of civil any other group with terrorism is inequi- September 11th hijackers were identi- liberties and other rights for particular table and contrary to law. Sociologically, fied for further security screening by a groups of people. The topic of airline too, marginalizing passengers along computer passenger profiling system.29 passenger profiling encapsulates this demographic lines ignores the fact that How this data was managed by human analytic tension, touching upon the nar- passengers selected for heightened beings is another matter.

Aviation Security

available at http://www.upi.com/SecurityTerror- AVIATION SAFETY AND SECURITY, FINAL Endnotes: ism/view.php?StoryID=20060813-060440-5694r. REPORT (1997), available at http://www.fas. See also Michael A. Hiltzik, How Did U.S. Airport org/irp/threat/212fin~1.html. 1 * The author, a Miami, Florida commercial Security Break Down? L.A. TIMES, Sept. 23, 10 Executive Order 13,015, 61 Fed. Reg. 43,937 trial lawyer and Adjunct Professor of Aviation 2001, at A1 (“For three decades, [aviation secu- (1996). Law at the University of Miami School of Law, rity] has been preoccupied with looking for guns 11 Bill Dedman, FAA Looking to Expand Sys- welcomes comments at [email protected]. and explosives rather than for dangerous people. This article excerpts Timothy M. Ravich, Is Airline tem, BOSTON GLOBE, Oct. 12, 2001, at A27. . . . U.S. Security efforts aim to catch the bomb, Passenger Profiling Necessary?, 62 U. MIAMI L. El Al’s is to catch the bomber.”). 12 TSA Extends Registered Traveler Program REV. (forthcoming 2007). to Reagan National, CMP TECHWEB, Sept. 3, 6 Outline on Status of Post-9/11 Aviation Se- 2004, at 2004 WL 64587874. 2 United States v. Guest, 383 U.S. 757, 758 curity Initiatives, INT’L BULL. POL. PSYCHOL., 13 See, e.g., Gregory T. Nojeim, Aviation Se- (1966). May 3, 2002, http://security.pr.erau.edu/read. curity Profiling and Passengers’ Civil Liberties, 3 See, e.g., Timothy M. Ravich, Re-Regula- php?kind=html&article_volume=12&article_ 13-SUM. AIR & SPACE L. 3, 4 (1998). tion and Airline Passengers’ Rights, 67 J. AIR L. issue=16&article_title=Special%20Article%3A & COM. 935 (2002). To review ongoing federal %20Outline%20on%20Status%20of%20Post- 14 Some airline passengers have challenged efforts to legislate airline service see Airline Pas- 9%2F11%20Aviation%20Security%20Initiatives the No-Fly list (unsuccessfully) in federal court. senger Bill of Rights Act of 2007, S. 678, 110th %2C%20Part%20I. See, e.g., Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006). Cong. (2007) and Airline Passenger Bill of Rights 7 The argument to scrutinize airline passenger Act of 2007, H.R. 1303, 110th Cong. (2007). behavior through profiling or otherwise is not an 15 See, e.g., In re Jetblue Airways Corp. Privacy 4 A recent example of terrorism by people argument for diminished screening of dangerous Litigation, 379 F. Supp. 2d 299 (E.D.N.Y. 2005). considered to be caregivers occurred on June 30, objects. In this vein, the Transportation Secu- 16 Matthew Wald, U.S. Airlines Forced to Give 2007, when several physicians put into action a rity Administration’s decision to discontinue its Data on Travelers for Antiterror Screen, INT’L plot to drive a propane-laden, suicide car-bomb prohibition of butane lighters as a carry-on item HERALD TRIB. (Paris), Sept. 23, 2004, at 1. into the arrival terminal at the airport in Glasgow, (effective August 4, 2007) is puzzling. See, e.g., 17 REPORT OF THE SECURE FLIGHT WORK- Scotland. See, e.g., Aditi Khanna et al., Doctors Michael J. Sniffen, TSA Eases Carry-On Rules ING GROUP, Sept. 19, 2005, at 5. of Terror, INDIA TODAY, July 16, 2007, at 40; for Lighters, Breast Milk, ORLANDO SENTINEL, 18 E.g., Ben Winograd, ‘Profiling’ Not a Dirty Olga Craig, ‘The People Who Cure You Will Kill July 21, 2007, at A7. Word in Israel, REC., May 10, 2007, at A21. You,’ SUNDAY TELEGRAPH (London), July 8, 8 See Paul Rosenzweig, Civil Liberty and the 19 See, e.g., 28 U.S.C. §§ 1862, 1870. See, 2007, at 20. Response to Terrorism, 42 DUQ. L. REV. 663, e.g., Batson v. Kentucky, 476 U.S. 79 (1986) 5 Shaun Waterman & Jessica Taylor, Analysis: 679 (2004). (making illegal pattern or preemptory strikes TSA Liquid Ban to Continue (Aug. 14, 2006), 9 E.g., WHITE HOUSE COMMISSION ON exercised against minorities). 20 See An Act Concerning Enemy Aliens, 5th Cong., 2d Sess., 1 Stat. 577-78 (the Aliens Acts); An Act for the Punishment of Certain Crimes against the United States, 5th Cong., 2d Sess., 1 Stat. 596-97 (the Sedition Act). Building a 21 92 U.S. 105, 106 (1875). 22 Act of June 15, 1917, 40 Stat. 228-30 (codi- Better Practice: fied at 18 U.S.C. §§ 611-33 (1925)). 23 323 U.S. 214 (1944). 24 The ‘Profiling’ Debate, WALL ST. J., Aug. 19, 2006, at A10. www.FloridaBar.org 25 See e.g., Ellen Baker, Flying While Arab - Ra- Florida Bar cial Profiling and Air Travel Security, 67 J. AIR L. & COM. 1375 (2002); Charu A. Chandrasekhar, Comment, Flying while Brown: Federal Civil Rights Remedies to Post-9/11 Airline Racial Profiling of South Asians, 10 ASIAN L.J. 215 (2003). 26 See, e.g., R. Richard Banks, Racial Profil- ing and Antiterrorism Efforts, 89 CORNELL L. CLE! REV. 1201 (2004); Stephen J. Ellmann, Racial Quality Speakers! Profiling and Terrorism, 46 N.Y.L. SCH. L. REV. 675 (2002-2003); R. Spencer MacDonald, Note, Rational Profiling in America’s Airports, 17 BYU J. Online Registration! PUB. L. 113-138 (2002); David A. Harris, Racial Profiling Revisited: “Just Common Sense” in the Fight Against Terror?, 17 CRIM. JUST. 36 (2002); Convenient Locations! John Derbyshire, In Defense of Racial Profiling, 53 NAT’L REV. 38-41 (2001). 27 6 THE PAPERS OF BENJAMIN FRANKLIN Audiotapes/Videotapes/CDs! 242 (Leonard W. Labaree ed., 1963). 28 Robert L. Crandall, Airline Security and Economic Symposium – Freedom Versus Fear: Courses Online at Legalspan.com! The Future of Air Travel, 67 J. AIR L. & COM. 1, 19 (2002). Visit www.FloridaBar.org and click on “CLE,” ac See 9/11 COMMISSION REPORT; FINAL then “Search Calendar” to view scheduled courses. REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES 451 n.2 (2004) (Authorized edition).

Litigating Insurance Coverage Issues Under Aircraft Liability Policies By James B. Denman*

This article was presented at the Similarly, in Fireman’s Fund Insur- coverage, it would be in direct conflict Aviation Law and Insurance Sympo- ance Company v. McDaniel, 18 F. with the typewritten rider provisions, in sium at Embry-Riddle Aeronautical Supp. 614 (Dist. Ct. Miss. 1960), affd which event, the rider provisions would University, Daytona Beach, Florida in 289 F.2d 926 (5th Cir. 1960) the type- prevail and supersede the printed provi- January, 2000. written provision in an aircraft liability sions of the policy.4 policy providing that the persons au- An analysis and evaluation of a cov- thorized to operate the insured aircraft C. Strict Interpretation in Favor of erage defense asserted by an aviation in flight included “T. H. McDaniel or Insured and Against the Insurer insurer should begin with an examination any currently certified commercial pilot - Aircraft insurance policies will be of the policy language as a whole includ- having a minimum of 500 logged solo interpreted in favor of the insured and ing the declarations, insuring agree- flying hours including at least 50 hours against the insurer to give effect to the ments, exclusions, limitations, conditions as first pilot of multi-engine aircraft” was broad purposes of the policy to afford and sometimes definitions together found to mean that McDaniel could pilot coverage when this can be done with- with the circumstances surrounding a the aircraft in flight, with or without pas- out doing violence to the language of particular loss resulting in bodily injury sengers aboard, and that the coverage the policy.5 By failing to define terms and/or property damage. The material would then be in effect, whether he was or to include any additional qualifying language of the insuring agreement and certificated or rated as a pilot or not. circumstances surrounding a loss should or exclusionary language, an insurer be examined in light of established rules may not successfully insist upon a nar- B. Typewritten vs. Printed Provisions of construction and interpretation and the row and restrictive interpretation of the - When there exists a conflict between 6 applicable law. coverage provided. printed provisions and typewritten provisions, the typewritten provisions must D. Policy to Be Read as a Whole - A I. Applicable Law. The law of the take precedence and supersede con- provision in an aircraft liability policy place where a contract of insurance flicting printed material in the policy.3 defining the word “insured” had to be was entered into governs its construc- 1. Typewritten provisions con- read in connection with other portions of tion. Florida will apply its own laws tained in a rider or a typewritten the policy, including the pilot exclusion to interpret insurance policies which 7 endorsement to an aircraft liability clause. are purchased and delivered in this policy has been found to prevail over state.1 E. Irreconcilable and Inconsistent conflicting pilot certification provisions II. Construction and Interpretation Provisions of an Insurance Policy in the main printed body of the policy. of the Aviation Insurance Policy. Will Result in a Construction Fa- In LeBlanc v. American Employers voring the Most Coverage - Where A. Plain Meaning Rule - Undefined Insurance Company, 155 F.2d 969 separate provisions of a policy are irrec- terms in a liability policy are to be con- (5th Cir. 1946) the printed policy provi- oncilable and inconsistent, the Courts strued in accordance with their plain, sions provided that the aircraft should will adopt the construction of the policy ordinary, popular and natural mean- be operated only by instructor pilots which provides the most coverage.8 ing.2 in the employ of the insured who held In Insurance Company of North commercial pilot certificates. However, F. Ambiguous Terms Are Construed America v. Maurer, 505 S.W. 2d 931 a rider attached to the policy provided Against the Insured - In construing (Tex. Civ. App. 1974) the Court con- the insurance should apply only while policies of aircraft insurance, the gen- cluded that the phrase “valid pilot’s the aircraft was operated for purposes eral rule is applicable that doubts as certificate” since it was singular, incidental to and in accordance with to coverage due to ambiguous policy referred only to one certificate, this requirements of the civilian pilot training provisions are to be construed against being the pilot’s certificate and not the program by a flight instructor or a stu- the insurer who drew the contract or 9 medical certificate which had expired. dent named in an attached schedule. chose the language used. Although The additional phrase “as required by The pilot of the aircraft was killed while ambiguities should be resolved against the Federal Aviation Administration” flying the insured’s airplane but was not the insurer, this principle only applies the Court concluded simply required one of the pilots approved in the rider when there exists a genuine inconsis- the pilot have a valid pilot’s certificate and the aircraft was not being operated tency, uncertainty or ambiguity in mean- as required by the FAA. The lack of a for purposes incidental to the civilian ing after resort to the ordinary rules of 10 current medical certificate was found pilot training program. The Court stated construction. not to preclude coverage under this in finding no coverage that even if the 1. Ambiguity Defined - An ambiguity language. printed provisions of the policy afforded exists only when the language of an

Litigating Insurance Coverage Issues insurance policy makes it susceptible FARs and breach of a policy provision provisions was involved: to two different, reasonable interpreta- the causal connection test does not a. Invalid Airworthiness Certifi- tions, one resulting in coverage, and become an issue to attempt to defeat cate (Annual Inspection) - Puckett v. one resulting in no coverage. An insur- the insurer’s coverage defense. U.S. Fire Insurance, 678 S.W. 2d 936 ance policy is not ambiguous merely C. The Problem-If the Aircraft Loss (Tex.1984) holding that the insurer because some analysis is required in is Not Causally Related to a Breach could not use the lack of a required order to interpret it. of a Policy Provision, Many Courts annual inspection to deny coverage 2. Parol Evidence Admissible - Refuse to Enforce The Insurer’s Cov- unless it was causally connected to the Parol evidence is admissible in order erage Defense - Very frequently an loss. to change, add to or subtract from an aircraft loss has no causal relationship b. Invalid Medical Certificate – See insurance policy or affect its construc- to the Federal Aviation Regulations and Glades Flying Club v. Americas Aviation tion where the writing is ambiguous, policy provision alleged to have been and Marine Insurance Company, 235 uncertain or does not show an intent breached. Courts have been reluctant So. 2d 18 (Fla. 3rd DCA 1970).13 Cases to embody the complete agreement to enforce such policy provisions and requiring a causal connection before 11 between the parties. therefore to deny coverage, often the insurer can deny coverage include 3. Agent’s Interpretation - If the terms finding it unfair or unconscionable Bayers v. Omni Aviation Managers, 510 of the insurance policy are ambiguous, to do so on public policy grounds. F. Supp. 1204 (D. Mont. 1981), Avemco the insurer may be estopped to deny Therefore, in many jurisdictions it has v. Chung, 388 F. Supp.142 (D. Haw. the correctness of an interpretation put been held that there must be a causal 1975), and South Carolina Insurance upon the policy by the insurer’s general relationship between the breach of the Co. v. Collins, 237 S.E.2d 358 (S.C. agent. policy provision and the accident. This 1977). has occurred in two ways. First, appel- c. Breach of Pilot Warranty – In late courts have imposed by case law III. The Causal Connection Test American States Insurance Company the causal connection requirement to (A Method of Defeating a Denial of v. Bylerly Aviation, Inc., 456 F. Supp. defeat a denial of coverage for a techni- Coverage) - The Issue 967 (S.D. Ill. 1978) the court held the cal breach of aircraft policy provisions. Does the lack of a causal connection insurer could not deny coverage even Second, antitechnical statutes have between a breach of a “policy provi- though an unnamed pilot flew the air- been passed in some states seeking sion” (exclusion, condition, declaration craft absent a showing that the breach to prevent insurance companies from and/or warranty) and a loss prevent an contributed to the loss. In Firemans avoiding coverage based on a technical aircraft insurer from successfully deny- Fund Insurance Company v. McDaniel, policy violation or violation of a Federal ing coverage based upon the breach? 187 F. Supp. 614 (N.D. Miss 1960), Aviation Regulation (FAR) which did Aff’d 289 F.2d 926 (5th Cir. 1961) the A. Introduction-Aircraft Accidents not cause or contribute to causing the insurer could not deny coverage due Rarely Occur Without Either the Pilot accident. or Aircraft Itself Being in Violation to the insured’s failure to have a pilot’s 1. of the FARs- The Federal Aviation Causal Relationship Required by license absent a showing that it con- Case Law - Many cases require proof Administration (FAA) has promulgated tributed to the loss. of a causal link between the breach of a broad and comprehensive array of the policy provision relied upon to deny 2. Causal Relationship Required by rules and procedures which govern coverage and the accident. Most of Statute - Aviation insurance policies the certification, maintenance, and these cases utilize the same reasoning generally include one or more provi- operation of aircraft called Federal that it would be unfair or unconscio- sions which exclude coverage if the Aviation Regulations. A great number of nable and therefore against public aircraft is being operated in violation these regulations are safety-oriented. policy to enforce a policy provision of the Federal Aviation Regulations. Aviation insurance policies have largely to deny coverage when the breach of However, the government regulations incorporated one or more provisions that policy provision did not cause or are so comprehensive that it is prob- that exclude coverage if the aircraft contribute to causing an aircraft ac- ably impossible for an accident to is being operated in violation of these cident. This view has been referred to occur without the pilot of the aircraft FARs. Therefore, aircraft accidents are as the modern trend although there is having allegedly violated one or more unlikely to occur without either the pilot a clear split of authority between those of the Federal Aviation Regulations.14 or the aircraft being in violation of at cases applying the causal connection In response to this, some states have least one or more of these FARs. test to avoid a coverage defense and passed antitechnical statutes which B. If Loss Causally Related to Breach those cases that do not apply it.12 A seek to prevent insurance companies of Policy Provision - No Coverage - If causal connection has been required from avoiding coverage based on tech- the aircraft related loss or losses are to prevent a denial of coverage when nical violations of “policy provisions” causally related to a violation of the the following type of breach of policy and/or federal regulations. The stat-

Litigating Insurance Coverage Issues utes generally provide that in order for operative provision in Pickett prohibit- there is a clear breach of a specific coverage to be suspended based on a ing the operation of the insured aircraft and unambiguous policy provision that breach of a policy provision, there must while its airworthiness certificate was voids coverage. be a causal relationship between the not in full force and effect as a condi- 1. Lack of Airworthiness - O’Connor breach and the accident. Florida has tion subsequent. The Court character- v. Proprietors Insurance Company, such a statute.15 The following cases ized the provision in the Sunray case 661 P.2d 1181, Aff’d, en banc 696 P.2d required a causal connection between as an exclusion. The Court stated in 282 (Colo. 1982) held that since the the breach of the policy provision and part as follows: aircraft involved in the accident had the loss based upon the application of “Clauses which provide that a not received its annual inspection, it an antitechnical statute: policy shall become void or its was operated in violation of the terms a. Lack of Airworthiness - Pickett v. operation defeated or suspended, of its airworthiness certificate and Woods, 404 So.2d 1152 (Fla. 5th DCA or the insurer relieved wholly or within an exclusion in the insurance 1981) applied Florida’s antitechnical partially from liability upon the policy rendering the insurance policy statute, §627.409(2) and held (1) that happening of some event, or inapplicable even though there was no the doing or omission to do it was applicable to an aircraft liabil- causal relationship between the failure some act, are not conditions to inspect and the accident.18 In Hol- ity insurance policy, (2) that the word precedent, but conditions subse- lywood Flying Service, Inc. v. Compass “provision” in the statute was intended quent and are matters of defense to include any material provision of to be pleaded and proved by the Insurance Company, 597 F.2d 507 (5th the policy and (3) that a prior decision insurer. A condition subsequent Cir. 1979) the Court in applying Florida decided before the enactment of the is to be distinguished from an law held that a policy exclusion for an statute required no causal connection exclusion from the coverage; the aircraft whose airworthiness certificate between the breach of the policy provi- breach of the former is to termi- was not in full force and effect applied sion and the loss, was superseded by nate or suspend the insurance even though there was no showing of a Florida’s antitechnical statute.16 while the effect of the latter is causal link between the lack of a valid to declare that there never was airworthiness certificate and the loss b. Antitechnical Statute Can- insurance with respect to the of the aircraft.19 In Security Mutual not be Utilized to Created Coverage excluded risk.” Where None Existed in the First Casualty Company v. O’Brien, 99 N.M. In explaining its holding and distin- Place - In the case of United States 638, 662 P.2d 639 (N.M. 1983) it was guishing Pickett the Court held there Aviation Underwriters, Inc. v. Sunray held the lack of a causal connection was no “technical omission” since the Airline, Inc., 543 So.2d 1309 (Fla. 5th between the breach of an insurance aircraft was never insured under the DCA 1989) United brought a declara- policy exclusion requiring a current air- policy and the Court saw nothing in tory judgment action seeking a declara- worthiness certificate and an accident Pickett nor in the antitechnical statute tion that the insurance policy insuring did not preclude denial of coverage. which indicated an intent to supply Sunray which provided through an Similarly, in Ochs v. Avemco Insur- coverage where none existed prior to endorsement to the policy that it did not ance Company, 54 Or App 768, 636 the loss in question. The court went on cover turbine powered aircraft. The P.2d 421 (Or. 1981), it was held that to explain as follows: insured airplane crashed as a result of no causal connection between the fuel starvation and the affidavits of the “We do not believe that the legis- aircraft accident and the policy ex- insured’s experts opined that the fuel lature intended, by the enactment clusion requiring a valid and current starvation was caused by pilot error of §627.409(2), to give an insured airworthiness certificate was required and would have occurred under the coverage which is expressly ex- to invalidate coverage. The policy cluded from the policy or to resur- same circumstances regardless of the language excluded coverage for any rect coverage under a policy or an turbine powered nature of the aircraft’s aircraft in flight which did not have a endorsement which is no longer in valid and currently effective airworthi- engines. effect simply because an insurer ness certificate. United urged the Fifth District to fails to comply with the terms of recede from Pickett v. Woods17 and the aforementioned statute.” 2. Lack of Valid and Current Medical especially from its holding that Fla. Certificate - In Glades Flying Club v. Stat. §627.409(2) applies to aviation C. If Aircraft Loss Was Not Casually Americas Aviation and Marine Insur- insurance policies. In refusing to ad- Related to A Breach of A “Policy ance Company, 235 So.2d 18 (Fla. dress that issue, the Court held that Provision” (Insurer’s Coverage De- 3rd DCA 1970) it was held that the the causal connection requirement fense) Many Courts Will Still Enforce pilot’s failure to have a current medical will not serve to extend or create the Provision and Deny Coverage certificate as required by the insur- coverage where none existed in the - Many courts have agreed that a ance policy, resulted in a suspension first place. In distinguishing Pickett, causal link between the breach and of coverage even though there was no the Court in Sunray, characterized the the accident need not be proven where causal relationship between the lack of

Litigating Insurance Coverage Issues medical certificate and the loss.20 marijuana into the United States from even though there was no causal link The Court held: Mexico in violation of an exclusionary between the excluded use and the clause prohibiting unlawful use of the loss, there was no coverage under the “An aircraft insurance policy aircraft. The Court held that the insurer policy.22 may validly condition liability could lawfully limit its liability by ex- In Des Marais v. Thomas, 147 NYS coverage on compliance with a cluding certain risks and hazards from 2d 223 (NY 1955) the aircraft was governmental regulation and, coverage and that while the insured while noncompliance with such piloted by an individual who was not was engaged in excluded conduct, a regulation continues, the insur- a named pilot. The policy stated that coverage was suspended. The Court ance is suspended as if it had it did not cover any loss arising from further held that the insurer did not need never been in force. There need piloting of the aircraft by any person to show a causal connection between be no causal connection between other than the pilots named therein. It the forbidden conduct and the resulting the noncompliance and the loss was held that the exclusion clause in loss to successfully avoid liability under or injury.” the policy relating to pilots imposed a the policy. condition precedent upon the insured, Other decisions holding similarly 4. Conversion - In Gelder v. Puritan and the insurer need not show a causal include: Insurance Company, 100 N.M. 240, connection between the accident and 668 P.2d 1117 (N.M. 1983) the Court noncompliance with the condition in Grigsby v. Houston Fire and Casualty upheld the granting of a summary judg- order to avoid coverage. Insurance Company, 113 Ga. App. 572, 148 S.E. 2d 925 (Ga. 1966); Omaha ment in favor of the insurer holding that b. Lack of Required Pilot Qualifi- Sky Divers Parachute Club, Inc. v. no coverage was afforded where the cations-In Lineas Aereas Colombianas Ranger Insurance Company, 204 N.W. policy contained a provision excluding Expresas v. Travelers Fire Insurance 2d 162 (1973); Baker v. Insurance coverage for conversion even though Company, 257 F.2d 150 (5th Cir. 1958) Company of North America, 179 S.E. the conversion of the aircraft had noth- the court, apparently applying Florida 2d 892 (N.C. 1971); Economic Aero ing to do with the accident. law, held the insured was not entitled Club, Inc. v. Avemco Insurance Co., 5. Pilots Other Than Named Pilots to recover for the loss because the 540 N.W.2d 644 (S.D. 1995); National - In Roberts v. Underwriters at Lloyds policy requirements were violated Union Fire Insurance Co. v. Estate of of London, 195 F. Supp. 168 the Court even though the loss was not caused Meyer, 237 Cal. Rptr.632 (Cal. Ct. App. granted the insurance company’s sum- by the violations. The airplane crashed 1987); and Security Insurance Co. of mary judgment based on exclusion in while being used in operations which Hartford v. Andersen, 763 P.2d 246 the aircraft insurance policy stating breached a provision of the insurance (Ariz. 1988). that the policy did not apply unless policy requiring the aircraft be operated 3. Improper or Illegal Use of Aircraft the aircraft was piloted by certain by pilots with valid certificates from ei- - It was held in Globe Indemnity Com- named pilots. The Court held that the ther the United States or the Republic pany v. Hansen, 231 F.2d 895 (8th insurance company was not required of Colombia. At the time of the accident Cir. 1956) that the use of an aircraft to show a causal connection between the airplane was being piloted by a for aerobatics within the insurance the exclusion and the resulting loss to Mexican pilot who had neither a Unit- policy’s exclusion voided the insurance successfully avoid coverage. ed States nor a Colombian certificate coverage. The Hanson Court further a. In affirming a summary judgment and who was carrying passengers in held the excluded use need not be for the insurance company and appar- violation of the Colombian registra- the cause of the loss for the insurance ently applying Florida law, the Court in tion certificate. The policy provided company to successfully deny insur- Electron Machine Corporation v. Ameri- there was no coverage for operations ance coverage. can Mercury Insurance Company, 297 which were unlawful and that vio- The operation of an aircraft for an F. 2d 212 (5th Cir. 1961) said that since lated civil air regulations. In finding unlawful purpose within the policy’s the aircraft was being used contrary the insured was not entitled to recover exclusion clause prohibiting aero- to the insurance policy provision for the loss, the Court stated the clear batics served to suspend the policy specifying only three individuals and plain meaning of the policy was that as if it had never been in force even as covered, the insurance was not the risk was excluded if the loss was though there was no causal connection in force and it was immaterial that the caused by the operation of the plane between the breach of the exclusion excluded use was not a cause of the while it was being used in violation of clause and the accident.21 loss. The Court explained since the the requirements of the policy. In Middlesex Mutual Insurance airplane was being used for a purpose In Grigsby v. Houston Fire and Company v. Bright, 106 Cal App 3rd which removed it from the coverage of Casualty Insurance Company, 113 282, (4th Dist. 1980) it was apparent the policy, it would not hold the insur- Ga. App. 572, 148 S.E. 2d 925 (Ga. from the crash site that the aircraft ance company to the coverage of risks 1966) it was held that the insurance had been used to illegally smuggle which it expressly excluded. Therefore, company could avoid coverage based

10 Litigating Insurance Coverage Issues on a policy exclusion from coverage been in force and proof of a causal subsequent then many courts when of losses where there was an existing connection between the casualty and there is no connection between the violation of any regulation pertaining the pilot’s certification and rating as a aircraft loss and the “policy provision” to airman’s certificates, even though student pilot was unnecessary. A similar will find by case law or by applying an the violation in no way caused the loss result was reached in Des Marais v. antitechnical statute that the provision when the pilot failed to have made Thomas, 147 NYS 2d 223 (NY 1955). does not invalidate coverage. the required number of takeoffs and A pilot’s failure to have a current landings within the 90 days preced- biennial flight review as required by IV. Common “Policy Provisions” (Ex- ing the flight in violation of Federal the insurance policy was held to be a clusions, Conditions, Declarations Aviation Regulations. breach of a condition precedent and and/or Warranties) Relied Upon for In Johnson v. The Security Insurance therefore the insurer’s obligation was Denial of Coverage Company of Hartford, 135 Ill. App. 3d terminated even though there was no The following outlines some of the 690, 481 NE 2d 1263 (Ill. 1985) it was causal link between the pilot’s qualifica- more common policy provisions affect- held there was no insurance coverage tions and the loss, as held in Edmonds ing insurance coverage under aviation when a student pilot violated the terms v. United States, 642 F.2d 877 (1st Cir. liability policies. The cases cited are not of an aviation insurance policy endorse- 1981). intended to be comprehensive in cover- ment by carrying a passenger even When the pilot failed to have the age of the cases dealing with these type though a causal connection did not ex- specified number of hours as pilot in of policy provisions but rather utilized ist between the excluded conduct and command as required by a condition for illustrative purposes only. the cause of the loss of the aircraft. precedent of the insurance policy, the A. Pilot Warranty Clause - Every light The denial of insurance coverage insurer could avoid liability without any aircraft insurance policy contains a “pi- based on a policy exclusion for losses showing that the pilot’s failure to meet lot warranty clause” limiting coverage in while the aircraft was in flight during or those requirements was a cause of the flight only when certain named and/or as a result of its operation in violation injuries and damage resulting from the pilots with certain specified qualifica- of government regulations was upheld 24 aircraft accident. Similarly, in Di Santo tions are operating the aircraft. The on appeal where the pilot was flying v. Enstrom Helicopter Corporation, 489 “pilot warranty clause” may limit in-flight the aircraft in weather conditions F. Supp. 1352 (E.D. Pa. 1980) it was coverage of the aircraft only while the which were less than the minimums held the absence of a causal link be- aircraft is operated by (1) certain spe- prescribed for visual flight rules but tween the failure of the pilot to have cifically named pilots, (2) a combination without a required instrument rat- the required number of hours in a of certain specifically named pilots and ing.23 helicopter in violation of the pilot exclu- additional pilots with specified pilot In Kilburn v. Union Marine and Gen- sion resulted in a finding of no coverage qualifications, or (3) while operated only eral Insurance Company, 326 Mich. even though there was an absence of a by pilots with at least certain specified 115, 40 NW 2d 90 (Mich. 1949) the causal link between the pilot qualifica- qualifications (commonly referred to as Court held the lack of a causal relation tion provision and the accident. an “open pilot warranty clause”).25 Most between the accident and a student often the pilot clause containing the pilot operating the aircraft with a D. Practical Note - In analyzing the pilot warranty is stated as a declaration passenger in violation of the insur- cases dealing with the causal connec- or condition as well as an exclusion in ance contract was not relevant to tion test, it would appear that if a “policy the policy.26 the avoidance of insurance coverage. provision” relied upon by an insurer to The exclusion section of the insurance deny coverage can be characterized as 1. Student Pilots - Student pilots car- policy contained a provision stating an exclusion or condition precedent rying passengers, and while not under that the policy did not cover any loss so that in applying unambiguous and the direct supervision of a flight instruc- while the aircraft was operated by any clear “policy provisions” there is no tor, or whose flight is not approved by person in violation of the terms of his coverage from the outset, then most a certified flight instructor is a common 27 pilot’s certificate. Similarly, in Macalco, courts will enforce the policy provision exclusion in aircraft liability policies. Inc. v. Gulf Insurance Company, 550 and find no coverage regardless of a. Students With Passengers28 S.W. 2d 883 (Mo. App. 1977) the pilot whether there is a causal connection - Other cases that have found no cov- of the airplane violated provisions of between the aircraft accident and the erage due to a student pilot carrying the policy while flying with a student policy provision relied upon. The ratio- passengers in violation of the policy pilot’s certification without approval nale utilized by the cases is that courts exclusions are Johnson v. The Security and supervision of an instructor will not create coverage where none Insurance Company of Hartford, 135 and by carrying passengers in viola- existed in the first place. However, Ill. App. 3d 690, 481 NE 2d 1263 (Ill. tion of Federal Aviation Regulations. if the “policy provision” relied upon 1985).; The Court held the excluded activity, for denial of coverage by the insurer Kilburn v. Union Marine and General suspended coverage as if it had never can be characterized as a condition Insurance Company, 326 Mich. 115,

11 Litigating Insurance Coverage Issues

40 NW 2d 90 (Mich. 1949); Macalco, the student to make unsupervised Hawk flew the aircraft into instrument Inc. v. Gulf Insurance Company, 550 cross country solo flights. conditions, coverage was suspended SW 2d 883 (Mo. App. 1977). Des 2. Flight Time- In Utica Mutual Insur- and there was no coverage for the air- Marais v. Thomas, 147 NYS 2d 223 (NY ance Company v. Emmco Insurance craft accident involved. It should also be 1955); Chapman v. Ranger Insurance Company, 14 AVI. 17,130 (Minn. 1976) noted that since a flight by a VFR pilot Company, 485 P.2d 1168 (Ariz. App. the aircraft policy required “a minimum in instrument conditions is illegal under 1971); and Eastern Aviation and Marine logged flying time of 5,000 hours as the Federal Aviation Regulations, there Underwriters, Inc. v. Gilbertson, 379 pilot in command.” It was stipulated may also be a violation of the unlawful N.W.2d 567 (Minn. Ct. App. 1985); For that the pilot, Bennett, had not flown purpose exclusion of any given aircraft a result finding coverage while a Stu- as pilot in command in the literal sense insurance policy. dent Pilot was carrying passengers see for the requisite 5,000 hours. What In Glover v. National Insurance Un- Ranger Insurance Company v. Philips, was disputed was the extent to which derwriters, 14 AVI. 17,540 (Tex. 1977) 544 P. 2d 250 (Ariz. App. 1976) (finding other flying time could be “logged” as it was held that “the flight,” as used in the pilot clause to be ambiguous). pilot in command time for purposes of a pilot warranty clause of an aircraft B. Students Without CFI Direct Su- satisfying the policy’s pilot qualification liability insurance policy, refers to the pervision or Approval - In United endorsement. It was stipulated that entire time the aircraft is in flight. In States Aviation Underwriters v. Mack if 50% of Bennett’s co-pilot time was characterizing “the flight” as VFR or Van Houtin, 453 So.2d 475 (Fla. 2d counted as pilot in command time that IFR the court held that it must be looked DCA 1984) the pilot clause required he would have had 5,007 hours as at as a whole rather than in segments in making that determination and the Mack Van Houtin to hold a student logged flying time as pilot in command. character of “the flight” must be deter- pilot certificate and to be “under the The Minnesota Supreme Court found mined at its inception. Accordingly, a direct supervision or have the specific that the term “logged flying time as pilot pilot who embarks on a VFR flight (so approval of a pilot holding an FAA flight in command” was ambiguous and that characterized from its inception) but instructor rating.” Mack Van Houtin held extrinsic evidence was admissible to during the flight encountered IFR con- only a student pilot certificate and was support the finding that the pilot quali- ditions without holding an instrument not operating the airplane under the fied for coverage under the open pilot rating was held not to exclude coverage direct supervision of, or with the warranty clause. under the pilot warranty clause. specific approval of a pilot holding In Security Mutual Casualty Com- an FAA flight instructor rating as pany v. Luthi, 13 AVI. 17,685, 226 NW 4. Medical Certificate - Lack of a valid required by the pilot clause at the 2d 878 (Minn. 1975) the Minnesota and current medical certificate may time of the accident. The insured ar- Supreme Court had previously held the result in a suspension of coverage gued that the pilot clause did not apply term “logged flying time” to be ambigu- during the period after it expires (or to the physical damage coverage. The ous in computing required hours of fly- time it is suspended or revoked). The Second District Court of Appeals held ing time and resolved that ambiguity by typical pilot clause requires a “valid that since Mack Van Houtin did not determining that the “block-to-block” medical certificate” or a “valid and ef- meet the requirements of the policy at method, whereby time was comput- fective medical certificate.” This area the time of the accident, the airplane ed from the moment that the wheels has spawned much of the initial litiga- was not covered. The Court further moved until they stopped at the end tion that resulted in the development of indicated that although the provisions of the flight, rather than the “time-in- the causal connection test discussed of the policy might appear complicated, service” method which computed flying above. If the jurisdiction in question their complexity should not be confused time as the time the aircraft wheels does not require a causal connection, with ambiguity. leave the ground until they touch down the failure to have a valid and effective In Ranger Insurance Company v. again as the appropriate method of medical certificate will suspend cover- Harrell, 286 So.2d 261 (Fla. 2d DCA computing flight time under the open age. 1973) the aircraft liability policy pro- pilot warranty clause. B. Airworthiness29- Aircraft liability vided coverage only where a flight 3. Instrument Rating- In Jim Hawk policies generally exclude coverage was under the direct supervision of, Chevrolet-Buick v. Insurance Company when the airworthiness certificate of the and was specifically approved by, a of North America, 15 AVI. 17,536 (Iowa aircraft is not in full force and effect.30 Certified Flight Instructor. The Sec- 1978) the pilot endorsement (among Pickett v. Woods, 404 So. 2d 152 ond District Court of Appeals held that other things) required, “ratings and (Fla. 5th DCA 1981) and United States coverage did not exist when the flight certificates appropriate for the flight Underwriters, Inc. v. Sunray Airline, instructor had not been consulted in and the aircraft as required by the Fed- Inc., 543 So. 2d (Fla. 5th DCA 1989) advance of the flight in question, even eral Aviation Administration.” The pilot, in which both discussed the above in though he had, for several months be- Hawk, did not hold a rating for instru- connection with the causal connection fore the accident, generally authorized ment flights. It was held that when requirement. Also see Puckett v. U.S.

12 Litigating Insurance Coverage Issues

Fire Insurance Company, 678 SW 2d Rental Pilot Liability Policy has been connection with any... crop dusting, 936 (Tex. 1984) holding that a causal developed to provide coverage to pilots spraying, seeding, fertilization..” connection is required between the under these circumstances. There are It was argued that the exclusionary lack of a valid airworthiness certificate a substantial number of cases dealing language was ambiguous because the and the aircraft accident. Other cases with this exclusion. activity involved did not involve “crop enforcing the policy exclusion are In Wzontek v. Zurich Insurance dusting, crop spraying, crop seeding O’Connor v. Proprietors Insurance Company, 418 Pa. 30, 208 A.2d 861 and crop fertilization,” and since dam- Company, 661 P. 2d 1181, Aff’d, en (Pa. 1965) a typewritten declaration of a ages resulted from “mosquito spraying” banc 696 P. 2d 282 (Colo. 1982); Hol- flying service’s liability policy extending rather than “crop spraying”, the activity lywood Flying Service, Inc. v. Compass coverage to “any private or commercial was not excluded. Summary judgment Insurance Company, 597 F.2d 507 (5th certificated pilot” was held to cover was granted to the insurer in the trial Cir. 1979); The Security Mutual Casu- the operation by the renter pilot not- court. On appeal, the Second District alty Company v. O’Brien, 99 N.M. 638, withstanding a printed provision in the Court of Appeal found the exclusion- 662 P. 2d 639 (NM. 1983); and Ochs policy excluding operation by a “renter ary language to be unambiguous and v. Avemco Insurance Company, 54 Or. pilot.” refused to give it the meaning claimed App. 768, 636 P. 2d 421 (Or. 1981). In Saliba v. American Policyholders to be applicable by the insured, and af- C. Unlawful Use or Purpose - Al- Insurance Company, 385 A.2d 328 (NJ firmed the summary judgment in favor though almost any Federal Aviation 1976) the aircraft policy provided that of the insurer. permissible uses would be restricted Regulation that is violated in connection F. Territorial Limitations- Aircraft lia- to “limited commercial” purposes with an aircraft loss could be character- bility policies invariably contain clauses which was defined as including stu- ized as an “unlawful use” or “unlawful that limit coverage to a geographical dent instruction and rental to pilots purpose,” antitechnical statutes and territory.34 Some territorial geographical but excluding passenger carrying cases requiring a causal connection limitations clauses in aircraft insurance for hire or reward. The policy provided between the loss and the unlawful use policies limit coverage by the distance that the term “insured” under the policy may prevent unfairness and an uncon- the aircraft is from land as well as by 31 did not include a person operating the scionable result. description of the territory over which aircraft under the terms of any rental In Arnold v. Globe Indemnity Com- the aircraft will be flown and still cov- agreement providing compensation to pany, 416 F.2d 119 (6th Cir. 1969) the ered. aircraft insurance policy excluded cov- the named insured for use of the air- erage for losses during operation of an craft. Under these policy provisions it G. Flights Requiring Special Permits aircraft “in violation of any governmen- was found that the lessee who operated or Waivers- Frequently an aircraft tal regulation for civil aviation applying the aircraft pursuant to an oral rental will require a ferry permit or a waiver to instrument flying.” The pilot held a agreement was not insured under the to do aerobatics from the FAA. Other private pilot certificate and was quali- policy. activities for which the aircraft is utilized fied to fly under “visual flight conditions For a collection of cases dealing with may require a special permit or waiver only” but was not an instrument rated aircraft accidents and the rental pilot as well. These activities are typically pilot or qualified to fly under instrument provisions see 86 A.L.R. 3d 118. excluded under aircraft liability policies.35 conditions. It was held that the policy E. Crop Dusting and Spraying- An- language relating to unlawful purpose other common exclusion in aircraft H. Seizure, Confiscation, Restraint excluded coverage for the aircraft ac- liability policies is for activities involv- or Detention of the Aircraft- It has cident. ing aerial seeding, spraying, dusting been a frequent occurrence in the D. Rental Pilots- The rental pilot exclu- and other activities requiring low level Bahamas for the government to seize sion is another of the most common flying.33 aircraft utilized for unlawful purposes in policy defenses.32 Although most fixed In Brown v. Lee County Mosquito violation of that country’s laws. Aircraft base operators renting aircraft have Control District, 352 So. 2d 116 (Fla. liability policies do not cover loss of insurance coverage for their aircraft 2d DCA 1977) the Mosquito District, in aircraft or damage to them as a result insuring their facility, it is common for an effort to control the mosquito popu- of such activities.36 Aviation insurers the policy to contain a rental pilot exclu- lation, caused an excessive amount of provide coverage under War Risks sion. In the event of an aircraft accident pesticide and a large amount of fuel oil Aircraft Insurance policies to cover the or loss the insured fixed base operator to be sprayed over the land used for possibility of such governmental activ- will be covered, but should the rental grazing of cattle, causing the cattle to ity. pilot be sued, the insurer may deny both contract pneumonia and die. The Air- a defense and indemnification to the craft Hull and Liability Policy excluded V. “Lienholders Interest Endorse- rental pilot should there be a judgment coverage for damage occurring “while ment” or “Breach of Warranty Lien- against that pilot. The Non-owners the aircraft is being used for or in holders Endorsement” are not

13 Litigating Insurance Coverage Issues

Invalidated by Any Applicable and insurer need not deny coverage before f. Attorneys’ Fees are Recoverable Enforceable Exclusions Resulting in bringing such an action either.39 by the Insured- If the insured or an om- Denial of Coverage to the Insured B. Binding Outcome (Collat- nibus insured under an aircraft liability Frequently aircraft owners will pur- eral Estoppel) - The outcome of the policy is successful in establishing cov- chase an aircraft and secure financing coverage dispute will be binding upon erage, attorneys’ fees may be awardable to counsel for the insured.41 to do so. A bank or other lender fre- all parties to the action for declaratory quently will request a lienholder’s inter- relief. In the event that personal injury B. Severance of Coverage Issue from est endorsement or breach of warranty and wrongful death claims are later Case in Chief- An insured under an lienholder’s endorsement containing filed in separate actions, the outcome aircraft liability policy, after being sued protective language. Such endorse- of the coverage dispute will be binding by a claimant seeking damages for ments result in the payment of an ad- provided that there is an identity of personal injury or wrongful death, may ditional premium and is considered parties in the action for declaratory re- implead the insurer raising the cover- to be a separate contract between lief and the subsequent personal injury age issues and request that the third the lienholder and the insurer cov- or wrongful death action. To the extent party action be severed from the case ering only the financial interest of the that the parties are not identical the in chief. A claimant may not bring such lienholder in the aircraft in the event issue of coverage may be re-litigated an action until after judgment in most of physical damage to it and typically by a party not previously joined in the jurisdictions.42 If the trial judge can be provides that “any Physical Damage action for declaratory relief.40 convinced to try the severed coverage Coverage of this policy shall not be in- case separately and before the case validated by any act or neglect of the c. Avoidance of Jury Confusion- If in chief, many of the advantages of a Named Insured.” These provisions are the parties chose to try the coverage direct action for declaratory relief can generally enforceable, notwithstand- issues with the issues of liability and be realized. ing the application of an enforceable damages, it is likely that the jury would exclusion or condition resulting in no be confused by commingling the cover- C. Litigating Insurance Coverage coverage to the insured. age issues with the issues associated Issues Along With Liability and with the liability and damage aspects Damage Issues- In many jurisdictions VI. Procedures for Litigating Cover- of a personal injury or wrongful death where there is no severance procedure age Issues action. by which the insurance coverage issue Available procedures for litigating d. Uniform Results- In the event can be litigated in a separate trial from aviation insurance coverage issues that there are likely to be multiple the issues of liability and damages, not only vary between jurisdictions but wrongful death and/or personal injury the choice is between an action for also based upon the particular circum- claims arising out of a single aircraft declaratory relief or litigating the issue stances surrounding a given aircraft accident, one action for declaratory in a trial along with the issues of liability accident. relief joining all claimants, insureds and damages. This is the least prefer- able method of litigating the coverage A. Action for Declaratory Relief- and the insurer will result in a binding issues. Most states provide for subject matter disposition of the coverage issue by jurisdiction in the Court of General one court on one occasion. Otherwise, VII. Attorneys’ Fees are Awardable Jurisdiction to declare the rights of the coverage issue would be required to a Named Insured or Omnibus In- claimants, the insured or insurer under to be raised in each personal injury sured Securing a Judgment Against an insurance contract.37 None of the and wrongful death case that was filed, an Insurer above parties are required to wait until potentially resulting in differing results Fla. Stat. §627.428(1) provides for there has been a breach of the insuring as to coverage in each case. an award of reasonable attorneys’ agreement before bringing an action for e. Cost Savings- By litigating the fees to a named insured or omnibus declaratory relief.38 coverage issue in the action for declara- insured securing a judgment against 1. Advantages v. Disadvantages tory relief, multiple coverage trials and an insurer.43 A claimant’s attorney is a. Expeditious Resolution of costs associated with repeatedly put- not entitled to an award of reasonable Coverage Issues - By employing this ting on the same evidence in each case attorneys’ fees against the insurer in procedure a plaintiff in an action for can be avoided. From the claimant’s successfully pursuing a coverage case declaratory relief need not wait for a standpoint, substantial costs associ- unless the claimant can secure an as- personal injury or a wrongful death ated with preparing and trying the signment of the insured’s rights under action to be filed before seeking a liability and damage issues arising out the insurance policy. In the latter case, determination of the coverage issues. of an aircraft accident may be avoided the claimant is viewed as “standing in A claimant or insured need not wait for if there is a final determination that no the shoes of the insured” and therefore the insurer to deny coverage before fil- coverage exists for the aircraft accident having all of the rights of the insured ing such an action and furthermore an in question. against the insurer including the right

14 Litigating Insurance Coverage Issues to reasonable attorneys’ fees. to establish coverage bears the initial Publications include “Litigating Insur- burden of proving that the aircraft loss ance Coverage Issues Under Aviation A. Effect of Offer of Judgment - What was covered by the aircraft liability Liability Policies,” published in The effect does an Offer of Settlement44 by policy. Insurance Law Journal by Commerce the insurer have upon the claim by a Clearing House and as co-author of prevailing insured in a coverage case B. Once there is a prima facie case Matthew Bender’s Florida Torts Trea- who secures judgment against an insur- establishing coverage, the burden tise, chapters on Defamation and At- er but does not “beat” the insurer’s Offer shifts to the aviation insurer to prove torney Liability. of Settlement? According to Scottsdale that the loss was sustained under cir- Insurance Company v. DeSalvo, 24 Fla. cumstances whereby coverage would Endnotes: Law W. S 422 (Fla. Sept. 9, 1999)45 the be excluded or defeated by the “policy 1 30 A Fla. Jur. 2nd, Insurance, §1679. prevailing insured is entitled to recover provisions.” 2 Appleman, Insurance Law and Practice, attorneys fees under section 627.428 C. If the insurer is successful in prov- §7486; Ranger Insurance Co. v. Harrell, 286 (together with costs and prejudgment So.2d 261 (Fla. 2d DCA 1973). ing that a “policy provision” defeats interest) through the date of the first 3 Ideal Mutual Insurance Company v. C. D. I. coverage, then in some jurisdictions the Offer of Settlement which exceeds the Construction, Inc. 640 F.2d 645 (5th Cir. 1981). insured or claimant attempting to estab- 4 Also see Insurance Company of North Amer- recovery amount. Also included are lish coverage may attempt to prove that ica v. Butte Aero Sales and Service, 243 F. Supp. damage awards, attorney’s fees, costs, 276 (D. Mont. 1965). (Typewritten endorsement based on public policy considerations, and interest the insured would have to aircraft liability policy). there is no causal connection between received if the insured had accepted 5 72 A.L.R 3d 525. the “policy provision” and the aircraft that Offer of Settlement on the date it 6 30 A Fla. Jur. 2d, Insurance, §1697. loss. 7 Appleman, Insurance Law and Practice, was made. §7487. Matthews v. Ranger Insurance Company, 281 So.2d 345, 348 (Fla.1973). *Jim Denman is a graduate of Cum- VIII. A Liability Insurer is Not 8 Matthews v. Ranger Insurance Company, berland School of Law and received Permitted to Deny Coverage Based 281 So.2d 345, 349 (Fla.1973); See also, 30 A a B.S. degree in Business Administra- Fla. Jur. 2d, Insurance §1692. on a Policy Defense Without Taking tion from California State University 9 Peerless Insurance Company v. Son Line the Prescribed Action as Required at Fresno. Jim is a commercial, multi- Helicopters, Inc., 180 So.2d 364 (3rd DCA 1965); in Fla. Stat. §627.426 31 Fla. Jur. 2d, Insurance, §2540. engine, instrument rated pilot. He is The claims administration statute 10 Denman Rubber Manufacturing Company v. a member of the Aircraft Owners and World Tire Corporation, 396 So.2d 728 (Fla. 5th requires a liability insurer denying Pilots Association. He has been an ac- DCA 1981). coverage to give written notice of res- tive member of the Aviation Law Com- 11 31A Fla. Jur. 2d, Insurance, §3628. ervation of rights to the named insured mittee of The Florida Bar continuously 12 Avemco Insurance Company v. Chung, 388 by registered or certified mail within 30 F. Supp. 142 (D. Hawaii 1975). since 1977 and a former Chairman of days after the liability insurer knew or 13 See also Pickett v. Woods, 404 So. 2d 1152 the Committee. Jim is admitted to the should have known of the coverage (Fla. 5th DCA1981). Florida, Colorado and District of Colum- 14 See 14 C.F.R. §91.13. defense. In addition within 60 days, bia Bar and is a member of the United 15 Fla. Stat. §627.409 provides in part as fol- or within 60 days after receipt of a States District Courts for the Southern lows: summons and complaint, whichever is and Middle Districts of Florida and “627.409 Representations and applications; later, the insurer must do one of three warranties... admitted to the Trial Bar of the United additional things: (1) give written no- (2) A breach or violation by the insured of any States District Court for the Southern warranty, condition, or provision of any ... trans- tice to the named insured by certified District of Florida. He is also admitted portation insurance policy, contract of insurance, mail of the insurer’s refusal to defend endorsement, or application therefor does not to practice before the United States the insured, or (2) obtain a non-waiver void the policy or contract, or constitute a defense Supreme Court. He is “AV” rated by the to a loss thereon, unless such breach or violation agreement after full disclosure, or (3) Martindale-Hubbell Law Directory. Jim increased the hazard by any means within the retain independent counsel mutually control of the insured.” is Board Certified as an Aviation Lawyer agreeable to the parties (presumably 16 See Glades Flying Club v. Americas Aviation by The Florida Bar Board of Education to represent the insured, although the & Marine Insurance Company, 235 So.2d 18 and Specialization and has lectured (Fla. 3d DCA 1970) (invalid medical certificate) statute does not clearly so provide).46 in the fields of tort and aviation law & Hollywood Flying Service, Inc. v. Compass Insurance Company, 597 F.2d 507 (5th Cir. 1979) on behalf of The Florida Bar CLE Pro- IX. The Burden of Proof In the Cover- (invalid airworthiness certificate). In Pickett the grams and Embry-Riddle Aeronautical airworthiness certificate was invalid in violation age Case Shifts University in the past. His practice, The of an exclusion in the policy providing that the Counsel involved in a suit to deter- policy did not apply to any insured who oper- Denman Law Firm is located at 1885 mine coverage under aviation liability ated or permitted the operation of the insured E. Oakland Park, Blvd., Suite 105, Fort aircraft while in flight unless the airworthiness policies should be aware of the shifting Lauderdale, FL 33306, and he can be certificate was in full force and effect. Failure to burden of proof. have a valid airworthiness certificate, however, reached at 954/938-9777 or on the web did not contribute to the accident. The Court in A. The insured or claimant attempting at http://www.DenmanLawFirm.com Pickett stated “the statute is designed to prevent

15 Litigating Insurance Coverage Issues the insurer from avoiding coverage on a technical whether or not said pilot is designated in the the policy period, while the aircraft is within The omission playing no part in the loss. declarations;” United States of America, Canada or Mexico, or 17 404 So.2d 1152 (Fla. 5th DCA 1981). 27 A typical exclusion provides as follows: while being transported between ports thereof.” 18 The real basis for the holding was that the “This insurance does not apply: 35 A typical provision is as follows: insureds failed to carry their burden of proof to 3. In flight, if piloted by a Student Pilot: “This insurance does not apply: show that the violation of the policy exclusion was (i) When there is a passenger in your aircraft un- (c) when the aircraft is in flight: not a cause of the aircraft accident. The Supreme less that passenger is a Certified Flight Instructor (ii) when a special permit or waiver is required Court of Colorado clearly enunciated a rule of law teaching the student pilot; or by the FAA;” that the application of the exclusion should be precluded by public policy only when the insured (ii) When the Student Pilot is not under the direct 36 An example of such an exclusion is as fol- can show that the violation of the regulation was supervision of a Certified Flight Instructor for the lows: not a cause of the accident. For the foregoing flight involved.” “This policy does not apply: reasons, many writers and commentators place 28 Student pilots are prohibited from carrying ... this case in the category with the modern trend. passengers by section 61.89(a)(1) of Title 14 (d) to loss or damage arising from capture, con- However, this case seems to place the burden C.F.R. fiscation, seizure, arrest, restraint or detention of proof of lack of causal connection upon the 29 Section 91.203(a) of Title 14 C.F.R. provides or the consequences thereof or of any attempt insured while other cases following the modern in part: “no person may operate a civil aircraft thereat, or any taking of the property insured trend on this issue seems to place the burden of unless it has....[a]n appropriate and current or damage to or destruction thereof by any proof on the insurer. airworthiness certificate.” Section 91.409(a) (1) government or governmental authority or agent 19 This case is superseded by Fla. Stat. of Title 14 C.F.R. further provides that an aircraft (whether secret or otherwise) or by any military, §627.409(2). However, should the foregoing may not be operated unless an annual inspection naval or usurped power, whether any of the fore- statute ever be repealed the law set forth in this has been performed within the preceding twelve going be done by way of requisition or otherwise case and Glades Flying Club v. Americas Avia- months. and whether in time of peace or war and whether tion and Marine Insurance Company, 235 So.2d 30 A typical exclusion from the AIG Light Aircraft lawful or unlawful;” 18 (Fla. 3rd DCA 1970) would once again set Policy provides as follows: 37 See Chapter 86, Fla. Stat. forth the law in Florida providing that no causal “This insurance does not apply: 38 See §86.031, Fla. Stat. link between the breach of the insurance policy (d) if the aircraft is not certificated by the FAA 39 See §86.031, Fla. Stat. provision and the loss is required to invalidate under a standard Airworthiness Certificate;” A coverage. 40 Pickett v. Woods, 360 So. 2d 45 (Fla. 4th similar exclusion contained in the Old Republic DCA 1978). 20 This case has been superseded by statute Insurance Company policy issued through Phoe- and is of doubtful precedential value in Florida nix Aviation Managers provides as follows: 41 §627.428 Fla. Stat. The statute provides as follows: since the passage of Fla. Stat. §627.409. Pickett “This policy does not apply: v. Woods, 404 So.2d 1152 (Fla. 5th DCA 1981). “627.428 Attorney’s fee. 2. to any insureds while the aircraft is in flight 21 Bruce v. Lumbermans Mutual Casualty Com- (1) Upon the rendition of a judgment or decree pany, 222 F.2d 642 (4th Cir. 1955). (c) if the airworthiness certificate of the aircraft is by any of the courts of this state against an not in full force and effect; 22 This case would appear to be of continuing insurer and in favor of any named or omnibus precedential value under the Sunray exception to (d) if the aircraft has not been subjected to ap- insured... under a policy or contract executed the holding of Pickett v. Woods, supra. Hence the propriate airworthiness inspection(s) as required by the insurer, the trial court or, in the event of exclusion of the policy apparently made it clear under current applicable federal air regulations an appeal in which the insured... prevails, the that there was no coverage under the insurance for the operation involved” appellate court shall adjudge or decree against policy to begin with when an individual other 31 A typical insurance policy exclusion for un- the insurer and in favor of the insured... a rea- than one of those named on the list of covered lawful purpose is as follows: sonable sum as fees or compensation for the students was operating the aircraft contrary to “This insurance does not apply: insured’s...attorney prosecuting the suit in which the recovery is had.” the purpose of the use clause in the policy. (c) when the aircraft is in flight: 42 The text of Florida’s nonjoinder statute is set 23 Arnold v. Globe Indemnity Company, 416 (i) with your knowledge and consent for either an out below: F.2d 119 (6th Cir. 1969). unlawful purpose or for other than the approved 24 United States Aviation Underwriters, Inc. v. use;” “627.4136 Nonjoinder of insurers. Cash Air, Inc., 409 Mass. 694, 568 NE 2d 1150 32 A typical policy exclusion for rental pilots (1) It shall be a condition precedent to the accrual (Mass. 1991). provides as follows: or maintenance of a cause of action against a liability insurer by a person not an insured under 25 A typical pilot warranty clause containing “This policy does not apply: coverage for both named pilots and pilots meet- the terms of the liability insurance contract that ... (a) to a loss or damage...by any person in pos- such person shall first obtain a settlement or ver- ing certain minimum qualifications provides as session of the aircraft under a bailment, lease, follows: dict against a person who is an insured under the rental agreement, conditional sale,...or for any terms of such policy for a cause of action which “ITEM 6. Pilot: When in flight the aircraft will be loss or damage during or resulting therefrom;” is covered by such policy.” Also see §627.7262 piloted only by the following pilots, provided each 33 A typical policy exclusion provides as fol- Fla. Stat. has a valid pilot’s certificate including medical lows: certificate appropriate to the flight and aircraft: 43 The statute provides as follows: “This insurance does not apply: John Doe or pilots holding a private pilot certifi- “627.428 Attorney’s fee. cate or commercial pilot certificate with logged (h) if the aircraft is being used for: (1) Upon the rendition of a judgment or decree by flying time of at least 500 hours total time, 50 (i) aerial seeding, spraying, dusting, towing or any of the courts of this state against an insurer hours in the make and model of aircraft in- photography;” and in favor of any named or omnibus insured... sured herein, and 25 hours in retractable gear (ii) hunting, herding or spotting of animals, birds under a policy or contract executed by the in- aircraft.” or fish; surer, the trial court or, in the event of an appeal 26 A typical exclusion provides: (iii) patrol or surveillance of power lines, pipe- in which the insured...prevails, the appellate court shall adjudge or decree against the insurer and in “This policy does not apply: lines, traffic or fires;” favor of the insured...a reasonable sum as fees 34 A typical provision provides as follows: 2. To any insureds while the aircraft is in flight or compensation for the insured’s...attorney pros- a. If piloted by other than the pilot or pilots des- V. POLICY PERIOD, TERRITORY ecuting the suit in which the recovery is had.” ignated in the declarations; All Coverages 44 Also known as an Offer of Judgment depend- b. If piloted by a pilot not property certificated, “This policy applies only to bodily injury or proper- ing upon the jurisdiction and if the case is pending qualified and rated under the current applicable ty damage which occurs, and to physical damage in state or federal court. Florida’s present law on Federal air regulations for the operation involved, losses to the aircraft which are sustained during this subject is found in Rule 1.442 of the Florida

16 Litigating Insurance Coverage Issues

Rules of Civil Procedure. by registered or certified mail sent to the last (2) Obtains from the insured a non-waiver agree- 45 See also 748 So.2d 941 (Fla. 1999). known address of the insured or by hand delivery; ment following full disclosure of the specific facts 46 The applicable text provides as follows: and and policy provisions upon which the coverage “627.426 Claims administration. (b) Within 60 days of compliance with paragraph defense is asserted and the duties, obligations, and liabilities of the insurer during and following (2) A liability insurer shall not be permitted to (a) or receipt of a summons and complaint nam- deny coverage based on a particular coverage ing the insured as a defendant, whichever is later, the pendency of the subject litigation; or defense unless: but in no case later than 30 days before trial, the (3) Retains independent counsel which is mutu- (a) Within 30 days after the liability insurer knew insurer: ally agreeable to the parties. Reasonable fees or should have known of the coverage defense, (1) Gives written notice to the named insured by for the counsel may be agreed upon between written notice of reservation of rights to assert a registered or certified mail of its refusal to defend the parties or, if no agreement is reached, shall coverage defense is given to the named insured the insured; be set by the court.”

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17 In Pursuit of “Natural Quiet” How The Evolution of Aircraft Noise Management in National Parks Could Affect Commercial Aviation Nationwide1 By Daniel W. Anderson2

Airports, airlines, of public health and and aircraft manu- safety from adverse facturers are all too effects associated familiar with aircraft with aircraft over- noise impacts and flight,” and that the the resulting opera- FAA develop appro- tional and design priate regulations changes that have to implement such occurred since the recommendations, Federal Aviation Ad- without change, un- ministration first is- less the FAA de- sued national noise termines that the standards pursuant recommendations to the Federal Avia- will adversely im- tion Act of 1958.3 pact aircraft safety.8 What would likely be At first blush, one more surprising to might think such those involved in the provisions to be commercial aviation relatively harmless, industry, however, is if not laudable. Upon how the evolution of closer inspection, aircraft noise man- however, it becomes agement at national clear that the pro- parks may affect verbial “devil is in commercial aviation the details.” nationwide. The issues presented by the GCNP Grand Canyon related requirements National Park: of the Overflights Act A Case Study in Aircraft Memorial, “and at no less than four are myriad, and to date, have not been Sound Mitigation additional units of the National Park completely resolved. The problem for System, excluding all National Park the NPS, FAA, air tour companies, en- In the late 1980s, environmen- System units in the State of Alaska.”6 vironmental groups, and even an Indian tal groups began advocating flight The Overflights Act also requires the tribe, has been answering the multi-part restrictions at GCNP in an effort to NPS, and the FAA, to report back to question of: what is “substantial,” what reduce increasing noise impacts on Congress on the results of the study, is “restoration,” and what is “natural park visitors.4 In response to noise and make recommendations regarding quiet.” Based on its initial definition of and safety concerns, Congress en- further regulatory and legislative ac- these terms, and its initial studies, the acted the National Parks Overflights tion to address the issues discovered NPS transmitted its recommendations Act (Overflights Act) in 1987.5 The through the study.7 to the FAA in 1987 as required by the Overflights Act requires the Secretary The most controversial provision Overflights Act.9 In 1988, the FAA is- of the Interior, through the National of the Overflights Act, however, and sued Special Federal Aviation Regula- Park Service (NPS), to study overflight one which has resulted in substantial tion (SFAR) 50-2, which, among other impacts at GCNP, Cumberland Island litigation, is the requirement that the things, provided for limitations on the National Seashore, Yosemite National NPS make recommendations to the routes and altitudes air tour operators Park, Hawaii Volcanoes National Park, FAA which “shall provide for substantial could fly.10 The NPS then began moni- Haleakala National Park, Glacier Na- restoration of the natural quiet and ex- toring aircraft sound throughout the tional Park, Mount Rushmore National perience of the [GCNP] and protection GCNP in preparation for the submission

18 In Pursuit of “Natural Quiet” of its report to Congress. case (Grand Canyon I), air tour opera- and language of the Overflights Act. In late 1994, the NPS submitted tors asserted that the NPS/FAA had Likewise, the FAA regulations may also its report to Congress as required by erred in their interpretation of the statu- fail to reduce sound impacts in more the Overflights Act.11 According to the tory phrase, “substantial restoration of than half of the park without running NPS report, and a subsequent Environ- the natural quiet and experience of the afoul of the statute. mental Assessment, the NPS and FAA park,” and that the NPS/FAA interpre- determined that: tation “is overly restrictive of aircraft Post Grand Canyon I Regulations and Assessment 1. Aircraft “noise” is best quantified by overflights because it is contrary to the At the time Grand Canyon I was measuring the percentage of time ‘plain meaning’ of the statute and its 19 decided, the FAA had already discov- that aircraft are audible.12 legislative history.” In support of this proposition, the operators contended ered that it had significantly underesti- 2. Audibility results when the sound that the agencies erred by: defining mated the number of aircraft operating emanating from the aircraft increas- the term “natural quiet” without regard at the Grand Canyon, and the FAA es the ambient noise level by three to other sounds in the Park; “equat[ing] informed the court at oral argument (3) decibels, the smallest change ‘quiet’ with the absence of detectable that it was considering a cap on the 13 perceptible to the human ear. sound, rather than with the absence number of flights air tour operators 3. “Natural quiet” means that no air- of ‘noise’ that would disturb visitors or could conduct.24 In July 1999, the NPS craft are audible to the human ear, disrupt their experiences of the park; announced that it was changing the and that “substantial restoration” defining “natural quiet” based on the audibility threshold for aircraft operating will occur when 50% or more of the decibel level a human ear can hear in the backcountry areas of the park park achieves natural quiet for 75 to without regard to whether sound at that such that aircraft noise will be audible 100% of the day.14 level would be disturbing; attempting if it is eight decibels below the average to ensure quiet in 50% of the park for natural ambient level.25 Then, in Janu- On December 31, 1996, the FAA 75-100% of the day without regard to ary 2000, the NPS issued a review of its issued a final rule that: adopted the “‘whether there will be any visitors pres- change in noise evaluation methodol- definitions contained in the 1994 NPS ent to be disturbed’ in [the protected] ogy which gave a detailed explanation Report; established new flight-free areas.”20 At the opposite end of the of the acoustic model the NPS used zones; instituted flight curfews; and, set spectrum, environmentalists claimed in assessing aircraft noise impacts at a cap on the number of aircraft (not the that the regulations were “too little too GCNP, and reiterated the definition of number of flights) that could fly over the late,” and that the term “substantial,” by “substantial restoration of the natural 15 park. In addition to issuing the final its very definition, required the agencies quiet.”26 rule, the FAA also proposed noise limi- to implement rules to protect more than The next month, in February 2000, tations for certain aircraft operating in half (50%) of the park.21 the FAA issued a Final Supplemental the vicinity of GCNP in accordance with Employing the well-known prac- Environmental Assessment (FSEA) the “aircraft’s noise efficiency quotient.” tice of giving deferential treatment to setting forth the FAA’s analysis of the p Unlike the noise standards applicable agency interpretation of statutes, as potential effect that a cap on the number to most commercial jet aircraft (which outlined by the United States Supreme of flights would have on aircraft noise does not factor in size or carrying Court in Chevron U.S.A., Inc. v. Natu- at GCNP.27 In its FSEA, the FAA estab- capacity), the FAA’s “noise efficiency ral Resources Defense Council, 467 lished the “average annual day” as the quotient” employed the novel concept U.S. 837 (1984), the Circuit Court of standard to be used in evaluating the of measuring “the relationship between Appeals rejected the arguments of air percentage of “the day” in which natural the certificated noise level of the aircraft tour operators and environmentalists quiet is restored to a given location.28 and the number of passenger seats on alike.22 Because the statutory phrase In April 2000, the FAA again published the typical configuration of that aircraft “substantial restoration of the natural a final rule (the “2000 Rule”), this time type” to place aircraft in three different quiet” is ambiguous, the court con- imposing a cap on the total number categories of “noise efficiency,” and cluded, the FAA regulations should be of flights that air tour operators may suggested three corresponding catego- upheld because the NPS/FAA inter- conduct over the GCNP in any given ries of limitation.17 pretation of the phrases is reasonable, year.29 As the 2000 Rule explained, and the resulting regulations are not the FAA and NPS had determined that Grand Canyon I inconsistent with the Overflights Act or the aircraft cap imposed pursuant to Not surprisingly, both air tour op- its legislative history.23 Accordingly, the the 1996 rule did not adequately limit erators and environmental groups FAA may implement rules designed to growth in the number of flights, and filed suit, the former claiming the new reduce ambient sound levels without NPS noise modeling “indicated that regulations went to far, and the latter necessarily protecting the experience the potential growth in the number of claiming that the regulations did not go of park visitors so long as the regula- operations could erode gains made far enough.18 In the first Grand Canyon tions are consistent with the purpose toward substantial restoration of natural

19 In Pursuit of “Natural Quiet” quiet.”30 As such, the 2000 Rule was a in rejecting each of the arguments natural quiet does not exist when necessary step to reduce aircraft noise raised by the air tour operators.36 The the sound they make is audible. impacts at GCNP, though the FAA chief issue raised by the operators Nor does the Overflights Act pro- acknowledged that it would have to do was that the NPS had impermissibly vide any basis for ignoring noise still more, including requiring the use changed the “noticeability” standard at caused by such aircraft. Hence, the fact that the FAA has chosen of quiet technology aircraft, to comply issue in Grand Canyon I, to a “detect- not to regulate certain categories ability” standard which finds aircraft with the Congressional mandate of the of aircraft does not justify ignor- 31 Overflights Act. sound to be audible if it is eight decibels ing the sound those aircraft make below the average natural ambient when deciding how extensively to Grand Canyon II level.37 According to the operators, such regulate other categories. And in Air tour operators and environmen- a standard departed from the Grand the absence of any reasonable tal groups again challenged the FAA’s Canyon I requirement that “noise” be justification for excluding non-tour final rule.32 Air tour operators asked defined as that sound which adversely aircraft from its noise model, we the Circuit Court of Appeals to find that impacts visitor experience, because must conclude that this aspect of 2000 Rule was unlawful based on five visitors to the park would “not notice the FAA’s methodology is arbi- arguments: “(i) [the rule] was prompted below-ambient-level noise.”38 The court trary and capricious and requires reconsideration by the agency.43 by an improper change in the definition disagreed, finding instead that the NPS of ‘natural quiet’; (ii) the acoustic meth- had provided a “reasoned analysis” for In light of the foregoing, the court re- odology that justifies the rule is scientifi- its decision.39 As the court explained, manded the case to the FAA for further cally flawed; (iii) the FAA arbitrarily and the use of below-ambient-sound lev- proceedings consistent with the court’s capriciously issued the rule without first els “reflects the Park Service’s new opinion.44 promulgating a quiet technology rule; understanding that audibility depends (iv) in promulgating the rule, the FAA not just on volume (loudness), but also Post Grand Canyon II Regulations violated the Regulatory Flexibility Act, on frequency (pitch).40 As such, the and Assessment 5 U.S.C. § 601 et seq.; and (v) the rule court concluded, the agencies’ actions In the wake of Grand Canyon II, the arbitrarily and capriciously ignores the and interpretations should be upheld in FAA and NPS went back to the draw- needs of the elderly and disabled.”33 accordance with the principles estab- ing board in an effort to comply with The environmental groups also lished in Chevron. the mandate of the Circuit Court of asked the court to find that the 2000 The court found greater merit in the Appeals. The FAA issued a new supple- Rule was unlawful, claiming that the contentions put forth by the environmental notice of proposed rulemaking FAA’s interpretation of the term “the mental groups, finding that the FAA’s (“SNPRM”) in which it renewed the day,” as used in the 1994 NPS report use of the “average annual day” stan- concept of categorizing aircraft by their 45 to Congress, to mean “average annual dard is inconsistent and incompatible relative “noise efficiency.” The NPS day,” rather than “any given day.”34 The with the NPS interpretation of “the day” issued a notice in which it clarified that groups also challenged the FAA’s noise to mean “any given day” when such the definition of “the day” means “any methodology, arguing that: term is used in determining whether given day; that is . . . natural quiet must there has been “substantial restora- be substantially restored at GCNP on [i]n projecting the amount of noise tion” of “natural quiet” to areas of the any given day of the year.”46 About this experienced by different parts of park.41 Accordingly, the FAA had used same time, the FAA and NPS began the Park, the FAA’s noise model an improper standard in promulgating working together to resolve differences only considers noise emitted the 2000 Rule, and the court refused in the approach the two agencies had from air tour flights. By failing to uphold the rule to the extent that it been using toward noise mitigation at to account for noise from other 47 aircraft that fly over the Grand conflicted with the NPS interpretation. GCNP. The culmination of these ef- Canyon— for example, from The court also agreed with the en- forts was that in March, 2005, the FAA commercial jets, general aviation, vironmental groups’ assertion that the and NPS jointly announced the creation and military flights--the model ar- FAA’s noise methodology was flawed of the Grand Canyon Working Group bitrarily overstates how quiet the in that it excluded non-tour aircraft (GCWG), a subdivision of the National Park really is. The Trust asserts (e.g. commercial, general aviation, and Parks Overflight Advisory Group (NPO- that if non-tour aircraft noise were military aircraft) from its noise measure- AG) which the FAA created after Grand included in the calculation, the ments.42 As the court noted, Canyon II.48 The FAA simultaneously percentage of the Park in which released its final rule regulating flights natural quiet would be substan- [t]he FAA can certainly choose to achieve the substantial restora- at GCNP (the “2005 Rule”), the stated tially restored— even on the FAA’s purpose of which is to classify aircraft average annual day— would be tion of natural quiet by regulating used in commercial sightseeing flight significantly less.35 air tours alone. But the FAA cannot dispute that whether or not operations over GCNP by the noise The court again employed Chevron non-tour aircraft are regulated, they produce.49

20 In Pursuit of “Natural Quiet”

aircraft operations in the vicinity levels FAA considers compatible with Commercial Aircraft Overflights at of national parks is an outgrowth residential development.”60 GCNP and Other National Parks of efforts by the FAA and NPS to On October 24, 2007, the GAO re- Not long after the 2005 Rule was deal with safety and noise issues leased a report detailing its more recent published, the GCWG began working related to air tour operations over finding that, although aircraft operations on developing additional recommenda- Grand Canyon National Park and have become quieter, “aviation noise is other units of the NPS . . . Unfor- tions in an effort to achieve the hard- still a problem when communities allow tunately, due to overzealous in- fought noise standards established as incompatible land uses,” and “airspace a result of Grand Canyon I and II. In terpretations and faulty court decisions, these efforts have been redesign efforts . . . may expose some anticipation of the first GCWG meeting, greatly expanded to include all previously unaffected communities to Senator John McCain sent the FAA and aircraft operations in the vicinity of noise, raising concerns in those com- NPS a letter in which he explained that a National Park, which can mean munities about higher noise levels.”61 Congress did not intend for the Over- as much as several hundred miles Remarkably, the GAO cited FAA data flights Act “to regulate commercial air- away and at all altitudes.55 indicating that “noise mitigation efforts craft flying at or near cruising altitudes” over the last 35 years have reduced by 50 The one paragraph FAA response to over GCNP. In response, the FAA over 90 percent the number of people Congressman Young indicated that the and NPS stated that the language of affected by significant aviation noise FAA “believe[s] it necessary to conduct the Overflights Act governing “aircraft” levels - defined as a 65-decible day extensive noise analysis presented in noise impacts at the Grand Canyon is night level (DNL 65 dB) or greater— de- the EIS to fully and thoughtfully respond not explicitly limited to sightseeing air- spite nationwide increases in popula- to the comments and concerns of the craft, and that “without specific legisla- tion and air traffic.” tive authority, [the FAA and NPS] do not court, other Federal agencies, the have the ability to limit the application public, and to satisfy NEPA and other Ramifications for Aircraft Noise 56 of the Overflights Act to air tour opera- legal requirements.” Clearly, the Management and Commercial tors.”51 The letter further stated: FAA now views NEPA as requiring that Aviation it consider commercial aircraft when Taken together, the GAO findings “[N]PS and FAA are working to evaluating and managing the cumula- complete the analysis of the and developments at GCNP and Zion tive impact of aircraft noise on national extent to which substantial resto- National Park offer some interesting ration of natural quiet has been parks. insights with respect what the future achieved or not achieved when may hold for aircraft noise manage- all aircraft noise, rather than GAO Reports on Aircraft Noise ment, and commercial aviation: air tour noise only, is included In September, 2001, the GAO in the analysis . . . [o]ur research submitted its report entitled, “Aviation 1. Quiet is a relative term to date has indicated that com- and the Environment – Transition to As the GCNP litigation illustrates, mercial and general aviation Quieter Aircraft Occurred as Planned, “quiet” can be defined in many ways. aircraft in the enroute system but Concerns about Noise Persist.”57 For instance, a “quiet” city street may are audible at ground level, given The very title of this report foreshad- still have noise - just less noise than the extremely low natural ambi- ows its findings: public opposition to a comparatively louder city street. ent noise levels in the Grand Similarly, a jackhammer operator may Canyon.”52 airport expansion continues to increase despite the fact that fewer people are define “quiet” differently than a librar- The results have been similar at Zion exposed to aircraft noise as a result ian. Accordingly, the definition of “quiet” National Park where the Grand Canyon of the transition to quieter aircraft by is contextual, and a “one size fits all” Trust sued the FAA for failing to conduct commercial airlines.58 The GAO report approach does not apply. Moreover, an EIS with respect to environmental offers what would otherwise be a very “quiet” is a moving target, and what impacts resulting from a proposed re- laudable statistic: the transition to qui- some may consider “quiet” today may placement airport at St. George, Utah.53 eter aircraft resulted in a decline in the not meet that definition tomorrow. As such, one must understand that “quiet” The FAA conducted a full EIS after the population exposed to unacceptable is a fluid term of art, not a law of phys- D.C. Circuit Court again found that the levels of noise from 2.7 million people ics. Future noise management efforts FAA had failed to comply with the re- in 1990, to 444,000 people in 2000 – an 54 will likely focus as much on arriving at quirements of NEPA. In June, 2006, 83% reduction.59 But the report also a shared set of definitions as it will the Congressman Don Young, Chairman of states that in a1999-2000 survey of the methodology employed to ensure that the House Committee on Transporta- nation’s 50 busiest commercial airports, the standards derived from such definition and Infrastructure, wrote to the FAA the GAO found that 35 airports reported tions are met. and commented on the Final EIS: that “over half of the noise complaints [M]uch of the new found interest in the preceding year had come from 2. Quieter is not the same as quiet in potential noise impacts from persons living in areas whose noise The commercial aviation industry

21 In Pursuit of “Natural Quiet” has made a great deal of progress certain to play a role in future noise ever, the methods employed by non- in reducing aircraft noise, but as the management efforts airport groups, such as the NPOAG GAO reports point out, aircraft noise The aircraft noise efficiency catego- and GCWG, to deal with thorny noise complaints continue to increase despite ries established at GCNP may serve management issues may be of value to the use of dramatically quieter aircraft. as a basis for similar categorization of airport officials and others charged with This apparent dichotomy should not aircraft throughout the aviation industry. the responsibility of addressing these be surprising. As a friend of mine once The concept is far too logical to ignore: issues. The alternative dispute resolu- said: “if you made aircraft totally silent, aircraft producing less noise per seat tion models developed and employed people would still complain about or per pound of cargo should be given by non-airport groups will likely make seeing them.” Although some might priority over “less efficient” aircraft. their way into future local aircraft noise consider this position absurd, the real- Put another way, one might argue that management efforts, as well as aircraft ity is that only the absence of aircraft aircraft producing the same amount noise certification standards. sound aircraft results in silence, and of noise should not be treated equally for some, only silence is acceptable. where such aircraft do not produce an Conclusion Those involved in noise assessment equal benefit to society. Such unequal Airport officials, airlines, and aircraft and mitigation will need to address the treatment might result in preferential manufacturers alike, should recognize concerns of individuals and organiza- time slots, flight routes, or flight profiles, that the evolution of aircraft noise man- tions regardless of how extreme their for more noise efficient aircraft. agement now occurring in our national positions may appear. The question of 5. NEPA and other federal laws will be parks will likely impact t h e c o m - whether it is possible to achieve silence used to reduce aircraft noise impacts mercial aviation industry nationwide. may seem absurd to some, but it is a in other national parks and in areas Rather than fear such developments, question that many of those impacted outside of national parks the commercial aviation industry would by aircraft noise consider worth ask- The National Park System consists be well-served to study the lessons ing. of 391 units encompassing over 84 mil- learned from national park aircraft 3. Sociological impacts may supple- lion acres in virtually every state.62 The noise management efforts, and to be- ment acoustic measurement precedent established at GCNP and gin laying the groundwork to use these There is no question that the FAA’s Zion National Park requires the FAA to lessons to address aircraft noise con- DNL 65 dB noise contour has been a consider every type of aircraft overflight cerns nationally. It is clear from GAO useful tool in aircraft noise manage- when evaluating the cumulative impact reports that the problems associated ment efforts, but it may be time to re- of aircraft noise on National Park units. with aircraft noise are not going to go consider the relevance of this standard Without Congressional intervention, it is away if government and industry con- to noise mitigation efforts. In its most likely that the FAA will construe NEPA, tinue on the present course of simply basic form, the GCNP litigation was and other federal laws such as the reducing aircraft sound, changing flight about competing values between user Overflights Act and Endangered Spe- profiles, and insulating homes. A new groups. Although the context is differ- cies Act, as requiring the FAA to assess result requires a new approach, and in ent, the values of those impacted by and manage commercial aircraft noise national parks at least, a new approach aircraft noise in communities adjacent impacts in other national parks. More- is already underway. to airports/heliports is at the core of over, those who wish to reduce aircraft aircraft noise complaints. Future noise noise impacts on other protected lands, Endnotes: management efforts may include the such as wilderness and preservation 1 Copyright © 2004 by American Bar Associa- tion; Daniel W. Anderson. Portions of the follow- consideration of such values, along areas, will cite these federal laws in ing article are reprinted herein with permission: with the values of the commercial avia- court challenges to airport and airway In Pursuit of ‘Natural Quiet’: The Latest On Noise tion industry, in the noise management development. For Airports And Airlines, ABA Air & Space Law- yer (18-WTR Air & Space Law. 8). equation. Such an approach will likely 6. National Park groups offer lessons 2 Daniel W. Anderson is a Partner at Forizs involve the evaluation of sociological in consensus building & Dogali, P.L. in Tampa, Florida, and practices factors extending beyond the funda- aviation law and general civil litigation. Prior Whatever the future may hold for the mental impacts (e.g. eating, sleeping, to becoming an attorney, Mr. Anderson served commercial aviation industry, it is clear as President of the United States Air Tour As- and working) upon which the DNL 65 that such a future is dependent upon sociation (USATA), representing the interests dB noise contour is based. Further, airplane and helicopter tour operators at national the ability of the industry to successfully noise contours extending to the outer parks throughout the U.S.. Mr. Anderson has not build a consensus with those who have worked for or otherwise represented the USATA limits of aircraft audibility and/or detect- the most direct stake in aircraft noise since March, 1997. ability will likely be considered, and management efforts. The concept of 3 49 U.S.C. § 44715. different noise management tools will consensus building is not new to airport 4 See Noise News for Week of June 26, 1994 be applied to each. (available at http://www.nonoise.org/news/1994/ officials who have been dealing with jun26.htm) (last visited October 26, 2007). 4. Aircraft “noise efficiency” is almost aircraft noise issues for years. How- 5 See id.; Public Law 100-91.

22 In Pursuit of “Natural Quiet”

6 Public Law 100-91 at § 1(a), (c); 16 U.S.C.A. 24 Id. at 464. Although the FAA had already U.S. Department of Interior, 64 Fed.Reg. 38006 § 1a-1. capped the number of aircraft that air tour op- (July 14, 1999). 7 Public Law 100-91 at § 1(d)(emphasis add- erators could utilize in conducting air tours over 38 Grand Canyon II, 298 F.3d at 1006. ed). GCNP, it had not limited the number of flights that 39 Id. operators could conduct. 8 Public Law 100-91 at § 3 (b)(1)-(2). In the 40 Id. at 1007 citing Change in Noise Evaluation event that the FAA determines the NPS recom- 25 See Change in Noise Evaluation Methodol- Methodology for Air Tour Operations Over Grand mendations will adversely impact safety, howev- ogy for Air Tour Operations Over Grand Canyon Canyon National Park, National Park Service, er, the FAA’s duty does not end there. The same National Park, National Park Service, U.S. De- U.S. Department of Interior, 64 Fed.Reg. 38006 provisions of the Overflights Act further require partment of Interior, 64 Fed. Reg. 38006 (July (July 14, 1999). 14, 1999). that, in that event, the FAA must issue regulations 41 Id. at 1015-1018. As the court stated, “[t]he which substantially restore natural quiet while 26 Review of Scientific Basis for Change in problem for the FAA . . . is that it is not the Park eliminating the adverse effects on aviation safety Noise Impact Assessment Method Used at Grand Service, and ‘deference is inappropriate when which would otherwise result from the original Canyon National Park, National Park Service, [an agency] interprets regulations promulgated NPS recommendations. The Overflights Act also U.S. Department of Interior (January 2000). by a different agency.’” Id. at 1015 (citing Of- has a built-in monitoring provision which requires 27 Final Supplemental Environmental Assess- fice of Pers. Mgm’t v. FLRA, 864 F.2d 165, 171 the FAA to report back to Congress on whether ment: Special Flight Rules in the Vicinity of (D.C.Cir.1988) and Dep’t of the Treasury v. FLRA, the regulations were effective in substantially Grand Canyon National Park, Federal Aviation 837 F.2d 1163, 1167 (D.C.Cir.1988)). restoring natural quiet. Administration, U.S. Department of Transporta- 42 Id. at 1018-19. 9 Report to the United States Congress Pursu- tion (February 2000). 43 Id. at 1019. ant to Section 804 of the Wendell H. Ford Aviation 28 Id. at 4-12, 4-18, F-4. It is important to note Investment and Reform Act for the 21stCentury that, as discussed supra, the NPS definition of 44 Id. (AIR-21), Federal Aviation Administration (Au- “natural quiet” means that no aircraft are audible 45 Noise Limitations for Aircraft Operations in gust 2001). to the human ear, and that “substantial restora- the Vicinity of Grand Canyon National Park, 68 10 Id. tion” will occur when 50% or more of the park Fed. Reg. 14276, Federal Aviation Administra- 11 Report on the Effects of Aircraft Overflights achieves natural quiet for 75 to 100% of the day. tion, U.S. Department of Transportation (March on the National Park System, National Park The FAA’s pronouncement of its interpretation 24, 2003). Service, U.S. Department of Interior (1995). of “the day” to mean “average annual day” was 46 Clarification of the Term the day in the Defini- therefore a significant event, and one which 12 Id. At 60. tion of Substantial Restoration of Natural Quiet would later lead to considerable controversy. for Grand Canyon NP, National Park Service, 13 Id.; Environmental Assessment: Special 29 Commercial Air Tour Limitation in the Grand U.S. Department of Interior, 68 Fed. Reg. 216 Flight Rules in the Vicinity of Grand Canyon Na- Canyon National Park Special Flight Rules Area, (November 7, 2003). When combined with the tional Park, Federal Aviation Administration, U.S. 65 Fed. Reg. 17708, Federal Aviation Administra- definition of “substantial restoration” discussed Department of Transportation (December 1996); tion, U.S. Department of Transportation (April 4, supra, the result is that 50% or more of the park see also United States Air Tour Association v. 2000) (codified at 14 C.F.R. §§ 93.303-93.325). must achieve natural quiet for 75 to 100% of any Federal Aviation Administration, 298 F.3d 997, Under the 2000 Rule, air tour operators were lim- given day. 1001-02 (D.C. Cir. 2002)(cert. den. By AirStar ited to conducting the same or fewer flights in the 47 Overflights - Chronology of Significant Helicopters, Inc. v. F.A.A., 123 S.Ct. 1783 (U.S. Park than they conducted during the base year Events, National Park Service, U.S. Depart- 2003); Grand Canyon Air Tour Coalition v. FAA, of May 1, 1997 through April 30, 1998, pursuant ment of Interior (available at http://www.nps. 154 F.3d 455, 460-64 (D.C.Cir.1998)(cert. den. to 14 C.F.R. § 93.319(a), (b). gov/grca/naturescience/airoverflights_chrono. by Grand Canyon Trust v. F.A.A., 526 U.S. 1158 htm)(last visited November 7, 2007). (U.S. 1999)(hereinafter “Grand Canyon I”). 30 See 65 Fed. Reg. 17708 at 17713. 48 Membership in the Grand Canyon Working 14 Id. 31 See id. at 17714. Group of the National Parks Overflights Advi- 15 Special Flight Rules in the Vicinity of Grand 32 United States Air Tour Association v. Federal Aviation Administration, 298 F.3d 997, 1005 (D.C. sory Group Aviation Rulemaking Committee, 70 Canyon National Park, Federal Aviation Admin- Fed. Reg. 16327, Federal Aviation Administra- istration, U.S. Department of Transportation, 61 Cir. 2002)(cert. den. by AirStar Helicopters, Inc. v. F.A.A., 123 S.Ct. 1783 (U.S. 2003)(hereinafter tion, U.S. Department of Transportation (March Fed. Reg. 69302 (December 31, 1996);Grand 30, 2005); FAA Order 1110-138 (October 10, Canyon Air Tour Coalition, 154 F.3d at 462-63. “Grand Canyon II”). In Grand Canyon II, litigants included the United States Air Tour Association, 2003). 16 Noise Limitations for Aircraft Operations in “a trade organization whose members fly air tours 49 Membership in the Grand Canyon Working the Vicinity of Grand Canyon National Park, 61 over the Park,” and a group of six environmental Group of the National Parks Overflights Advisory Fed. Red. 69334, Federal Aviation Administra- groups led by the Grand Canyon Trust. Id. The Group Aviation Rulemaking Committee, 70 Fed. tion, U.S. Department of Transportation (Decem- author was not involved in this litigation. Reg. 16327, Federal Aviation Administration, ber 31, 1996) 33 Id. U.S. Department of Transportation (March 30, 17 Id. 2005); Noise Limitations for Aircraft Operations 34 Id. at 1015. As discussed supra, this is the 18 Grand Canyon Air Tour Coalition, 154 F.3d at in the Vicinity of Grand Canyon National Park, 70 tandard for determining whether natural quiet had 559-60. Litigants included 13 air tour operators Fed. Reg. 1684, Federal Aviation Administration, been restored to certain areas of the park, or in led by the Grand Canyon Air Tour Coalition, the U.S. Department of Transportation (March 30, other words, whether 50% or more of the park Clark County Department of Aviation, the Las 2005). achieves natural quiet for 75 to 100% of the day, Vegas Convention and Visitors Authority, the as the NPS had defined “substantial restoration” 50 Correspondence dated July 12, 2005 from Hualapai Indian Tribe, and seven environmental in its 1994 report to Congress. Senator John McCain to Marion Blakey (Admin- groups led by the Grand Canyon Trust. Id. at istrator, FAA) and Fran P. Mainella (Director, 459. Only the issues raised by air tour operators 35 Id. at 1018. NPS). and environmental groups are discussed herein. 36 Id. at 1005-12. The court also stated that 51 Id. The author, a non-lawyer at the time this action “[t]he Supreme Court has rejected the argument 52 Correspondence dated September 22, 2005, was filed, was involved in obtaining counsel for that an agency’s interpretation is not entitled to from Sharon Pinkerton (FAA) and Paul Hoffman the air tour operators, and providing counsel with deference because it represents a sharp break (NPS), to Senator John McCain. information related to this litigation. with prior interpretations’ of the statute in ques- 53 Grand Canyon Trust v. F.A.A., 290 F.3d 339 19 Id. at 465-66. tion.” Id. at 1006 (citing Rust v. Sullivan, 500 U.S. 173 (1991)) (citations and internal quotations (D.C.Cir.2002). 20 Id. omitted). 54 Id. at 347. 21 Id. at 476. 37 See id. at 1006; Change in Noise Evaluation 55 Correspondence dated June 30, 2006, 22 Id. at 466-72. Methodology for Air Tour Operations Over Grand from Congressman Don Young to Marion 23 Id. at 466-69. Canyon National Park, National Park Service, C. Blakey (Administrator, FAA)(emphasis in

23 In Pursuit of “Natural Quiet”

original)(available online at http://www.airport- Reg. 50497)(available online at http://www.air- 60 Id. at p.13. sites.net/sgu-eis/Pages_PDF/2-App%20A-RTC_ portsites.net/sgu-eis/Pages_PDF/2-App%20A- 61 Aviation and the Environment – Impact of 8-17-06.pdf)(last visited November 14, 2007). RTC_8-17-06.pdf)(last visited November 14, Aviation Noise on Communities Presents Chal- 56 Record of Decision for the Final Environmen- 2007). lenges for Airport Operations and Future Growth tal Impact Statement, St. George Replacement 57 Aviation and the Environment – Transition of the National Airspace System, Aviation and Airport, St. to Quieter Aircraft Occurred as Planned, But the Environment, GAO-08-216T (October 24, George, Washington County, UT, Federal Concerns About Noise Persist, Aviation and the 2007). Aviation Administration, U.S. Department of Environment, GAO-01-1053 (Sept. 2001). bj Frequently Asked Questions, National Park Transportation (August 21, 2006)(emphasis 58 Id. at p.2, 13-14 Service (available at http://www.nps.gov/faqs. added)(notice of availability published at 71Fed. 59 See id. at p.2. htm)(last visited November 14, 2007).

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