*1 for agreement good cause constituted filing responses. of their
late FIRE INSURANCE NATIONAL UNION PITTSBURGH, PA., OF COMPANY hearing, After a trial court held that Petitioner, an good Relators’ faith belief that oral an existed agreement for extension of time v. good cause. Relators’ constitute COMPANY, ENERGY HUDSON denied motion for an extension of time was INC., Respondent. Burlington’s compel to a com- motion No. C-9419.
plete response discovery requests to its granted. granted We Relators leave of Texas. Supreme Court mandamus petition to file their for writ of 19, good party’s faith to consider whether one disputed belief the existence of oral
agreement good as a for can serve basis in a motion for extension of time
cause discovery objections requests. Be-
file cannot, deny
cause we hold it we Relators’
petition for of mandamus. writ procedure our
Rule rules civil attorneys
requires agreements between
parties concerning pending suit
writing, and filed in signed the record ex-
the cause to be enforceable. Once the agreement of such an becomes dis-
istence
puted, it is unenforceable unless com-
ports Kennedy requirements. with these (Tex.1984); Hyde, 682 S.W.2d to avoid the
Tex.R.Civ.P. 11. Relators seek through reliance on
mandates of this rule 166b, focusing subjective on the belief
rule disputed agree- party ap- 166b.
ment. Tex.R.Civ.P. Such
proach purpose of would undermine the disputes over the
rule which is to avoid agreement
existence or terms of oral Kennedy, 682
between counsel. See 526-27. 122, Tex.R.App.P., rule
Pursuant court, hearing oral
majority of the without petition for
argument, writ denies Relators’
of mandamus. *2 23, 1980, Hudson, president of May
On Inc., Energy Company, purchased Hudson Johnny a P-210 aircraft from Walk- Cessna er, plane The owner of Eastex Aviation. single engine equipped model with was a purchase, dual controls. At the time of obtaining sought help in Hudson Walker’s Rags- contacted James insurance. Walker dale, In- employee Cooper Aviation Hudson, According to Walker surance. only one to have direct contact was the Ragsdale. ap- Hudson with submitted an plication showing for insurance he was a pilot. In a letter to Hudson dated student 10, 1980, Ragsdale explained quoted premium insurance was based on understanding private that Hudson was a pilot and that such information was neces- Smith, Moore, Charles H. John W. Dal- sary before a could be issued. las, petitioner. for completed application son then a new indi- Price, Austin, Patton, Lynn Jack N. cating private pilot.1 he a An insur- Longview, respondent. 30, 1980, for May ance binder was issued on year
and the
was effective for one
beginning May
on
OPINION
13, 1980, Hudson,
July
flight in-
On
his
GONZALEZ, Justice.
(Rodney Bishop),
passenger
structor
and a
interpretation
This case
involves
(visual
rules)
flight
Long-
flew VFR
an insurance
on an aircraft. Adam
view,
Orleans,
Texas to New
Louisiana.
Hudson,
pilot,
Rodney
a
Bish-
at the left hand controls and
instructor,
op,
his
took an instruction
Bishop
right
was at
hand controls.
on
was insured
National
plane throughout
Hudson flew the
Company
Union Fire Insurance
of Pitts-
flight,
which was uneventful until the
burgh, Pennsylvania.
plane flipped
began
approach.
its final
The control tow-
damaged.
over when it landed and was
granted permission
er
to land but
Inc.,
Energy Company,
the owner
approach-
took control when he noticed an
insurer,
against
filed suit
its
they
ing helicopter.
gained
After
altitude
Company
National
Fire Insurance
Union
distance,
to ensure a safe
the controller
Pittsburgh, Pennsylvania.
juryA
found
instructed the
to land on a different
improperly
that National Union had
denied
runway.
change
steeper
resulted
Energy
and awarded Hudson
ac-
runway. Bishop complied
descent to
exemplary damages,
damages,
tual
and at-
prop-
with the instruction and established a
torney’s
appeals
fees. The court of
struck
flight path. Bishop
er
then returned con-
exemplary damages and oth-
the award of
trol
to Hudson.
judgment
affirmed the
of the trial
erwise
began
Upon landing
affirm the
to bounce.
court.
555 merely pilot is at this court is whether under this ensures that a accident was a risk. covered and it not matter if a does the controls. is also at Generally, a contract of insurance subject to the same rules of construction clause nor Neither the exclusion as other contracts. Barnett v. Aetna Life clearly clause exclude declaration Co., (Tex.1987). Ins. 723 S.W.2d qualified pilot simultaneous If the written instrument is worded so that unqualified pilot. and an These clauses of given it can be con reasonable policy provide will be struction, it enforced as written. will be “piloted Adam R. only by” either Co., Puckett v. U.S. Fire Ins. “provided private pilot” any quali or (Tex.1984). However, he is if a contract private pilot, fied susceptible of insurance is or commercial and ex more than interpretation, “piloted reasonable we must re clude the aircraft is when uncertainty adopting solve the the con by pilots designated other than the *4 struction favors the that most insured. language in the declarations.” does Barnett, 667; Ramsay 723 S.W.2d at expressly the situation address where Co., Maryland Am. Ins. 533 Gen. S.W.2d piloted by qualified pilot the aircraft is 344, (Tex.1976); Palatine, 349 Brown v. 89 pilot qualified and than” a “other 590, 1060, (1896). Tex. 35 S.W. 1061 The pilot. It is not the exclusion clear court adopt must the construction of an clause interpreted must be to exclude cov exclusionary urged by clause the insured erage plane when the is several long as as that construction is not unrea pilots, any unqualified is one whom of sonable, urged by even if the construction only plane rather than when is appears insurer to be more reasonable pilots, quali several none whom is of or a more parties’ accurate reflection of the Furthermore, fied. it is reasonable to con Underwriters, intent. Glover Ins. v. Nat’l instructor, Bishop, clude that was act 755, (Tex.1977); 545 S.W.2d 761 Continen ing “pilot” through as the of the aircraft Warren, 164, tal Casualty 152 Tex. Co. v. out the entire he was effec because (1953). 254 particular, S.W.2d 763 In tively charge ultimately oper and in of the exceptions liability or limitations on are plane. ation of the strictly against construed the insurer and An coverage intent to must exclude be in Ramsay, favor of the insured. 533 expressed unambiguous in clear and lan- 349; Continental, S.W.2d at 254 S.W.2d at guage. National knew that Union 763. inquiry This our is whether the con plane If had dual National Union controls. struction advanced Hudson is a reason piloting wanted to exclude simultaneous interpretation. Barnett, able 723 S.W.2d coverage, scope from the then it was argues at 666. National Union upon expressly policy clearly incumbent it to and clearly coverage excludes when an unqualified controls, policy. Having state the pilot is at the exclusion even a so, qualified pilot failed simultaneously piloting was to do National Union cannot now argues the craft. policy complain.4 that the II, together, plane. National Union that Master ator asserts Feeders of the Read exclu- [the Co., Inc. v. United Fire Insurance provide States 15 Av. coverage only qualified when a sions] pilot 18,420 (CCH) (D.Kan.1980), aff'd, Cas. 17 Av. ¶ operating is the aircraft and not then if (CCH) ¶ 18,205 (10th Cir.1983) Cas. and Powell anyone operating else is too. Valley Cooperative, Electric Inc. v. United States disagree interpretation, Id. We with this which Underwriters, Inc., F.Supp. Aviation 616 could result in the unreasonable denial of cover- (W.D.Va.1959) support position. its The Master age even in a where two situation policy Feeders court held did not cover pilots airplane operating equipped are an unqualified piloting simultaneous and a Carrying reasoning dual this controls. to its qualified pilot. Id. at 424. The court con extreme, logical language under similar in a policy piloting by only strued the pilot to cover policy, there would in never reasoning, at a time. Id. its In the court emergency situation where there are two stated: bring attempting plane at the controls un- is an absolute exclusion of the cov- [T]here der control. erage qualified pilot only oper- unless a is the applied issued National Union covers analysis Our similar to that in is Co., 428 v. Peerless Insurance in airplane Marshall damage to the insured when Marshall, In (Ky.1968). a stu- S.W.2d 190 simultaneously, by flight piloted, both pilot plane dent was while a poli- the restrictions who meets qualified pilot at the set of sat con- cy pilot who does and another declarations trols if needed. was to assist As found, effect, The that there not. the student landing, the wind shifted and when it was landing. to abort decided damaged, support and there evidence landing believed the to be re- finding. The Court’s discussion safe and seized control garding joint pilots on cover- effect land. Id. overshot age is thus dicta. under the damage. Id. sustained substantial company The insurance refused cover in this does not estab- The evidence case pro- exclusions loss because conclusively lish who was when the vided that did not exist damaged. plane at the time it was operated by a with- full both seated behind were presence in- out the F.A.A. landing and in the course structor. Id. stop, plane and before it came to a each rejected argument this reason- The court full, to, did, them able exercise sitting ing qualified private pilot Hudson tes- exclusive control pilot in command. the controls was the he when tified that was Marshall, The plane at 193. *5 wheel, Bishop on the nose that took landed pilot; it operated by was a student was not gear, bring on main and to it down the over private pilot. the Id. he, Hudson, then resumed control of private pilot, the With reference to the Bishop testified that landing the court said: time started veer off from the the He had a full set of controls com- over he the the until it turned took plete authority to use them.... When relinquish not them to controls is a in the aircraft with access there evidence, however, also Hudson. There is full set who meets the Bishop control of that Hudson and shared policy, the then in our requirements of For at critical times. various opera- opinion requirements as to example, Hudson testified “the are tor of the aircraft met. being operated at the time of was Id. at 192-93. Rodney Bishop myself.” by loss both summary, agree the court of In we with short, might concluded jury In have language appeals that that at the time the from the evidence For of the fore- this situation. all covers to the ultimate mistake occurred which led reasons, going judgment court being it damage piloted was appeals is affirmed. solely, by by solely, by Bishop or simultaneously. both HECHT, J., joined opinion by Concurring PHILLIPS, C.J., and COOK that at the time of the jury found CORNYN, JJ. flight piloted aircraft was not loss “[t]he HECHT, Justice, concurring. designated in or than a other Hudson, be- [policy] declarations.” agree I with Court do qualifica- specified meet he did not is whether the cause question in this case decisive exclusionary language exclusionary specific pilot. The language Valley, In Powell "only unmistakably indi- provided extended it clear made being insured, piloted Ryan. John T. person while the aircraft John T. vidual flight, Ryan Ryan.” Id. at 617. On routine apply present language to the situation does not training employee he was another who allowed or where owner fly of the craft and crashed. to take control fly the craft. could distinguishable case case is Valley, the covered Powell bar. In declarations; tions, was not within the
Bishop If the that Hud- was. believed
son was at the time of loss, together either himself or
Bishop, then it could not have made the Rather,
finding it had to did. it would have
find that the aircraft —whether solely jointly by des- other than a — declarations, ignated namely, jury’s finding, supported
son. The evidence,
some factual contro- resolves the
versy plane: of who was Bish-
op.
If Bishop was the sole damaged,
at the time it was then the dam-
age policy. It is was covered under the decide,
unnecessary to as the Court at- do,
tempts whether also would joint pi-
exist and Hudson were Accordingly, join
lots. I in its the Court opinion. but not in its
PHILLIPS, C.J., and COOK and JJ.,
CORNYN, join concurring in this
opinion. *6 MURDOCK, Petitioner,
Vernie Lucritus MURDOCK, Respondent.
Chere Denise
No. D-0400.
Supreme Court of Texas.