*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. 780 S.W.2d 417. We and, appeals. Bishop grabbed his set of controls court of nothing necessary he tests and is more 1. Hudson claims that in the mid-1960's had failed pilot. prior Hudson claims that when lessons but the extent of this than a student taken training Hudson, private pilot’s training gave disputed. According completed he he he necessary require- then successfully completed his student certificate to his instructor who However, “private pilot” top. private pilot. typed across the the words ments to become produce as evi- It is this certificate that Hudson offers Hudson was unable to Federal Avia- confirming completion pilot train- this dence of his successful ing. tion Administration certificate actually and National Union claims that Hudson Hudson,2 along regain DECLARATIONS n n regained control of the * # * * run- control but as it continued down the will ITEM 5. the aircraft When reason, way, unexplained began for an by: along paved veer off the and ride grassy As this edge. it continued down *3 As endorsed path, gear the front nose sank in soft sod causing gear the the nose to sheer off and NO. 1 ENDORSEMENT flip over. IT THAT Item 5 of the IS AGREED the Energy Hudson filed a claim under flight in the Declarations—When aircraft damage to policy insurance to recover for piloted by completed will be —is plane. National Union denied read as follows: qualified not on basis that Hudson was provided pri- he is a Adam R. Hudson policy a not private pilot as pilot properly by certified vate plane by cover simultaneous control of the logged having PAA a minimum of 213 pilots. Energy alleg- two Hudson filed suit hours, 15 hours of and receives ing improperly that National Union was properly certi- dual instruction a applying policy exclusions and had solo; flight prior to fied instructor or duty good of faith and fair breached pilot Any private or commercial trial, dealing. jury After a the trial court rating properly an instrument certi- Hud- rendered on the verdict for by a having the FAA minimum fied $114,440 Energy son and awarded as actual hours, logged flying 750 150 of which of damages, $75,000 damages exemplary in gear are in retractable duty good faith and for breach craft, 15 hours in the make including $40,000 attorney’s dealing, in fees. fair and model aircraft. appeals The court of affirmed the award added). (Emphasis party pled Neither that damages attorney’s fees but actual ambiguous. policy the insurance exemplary damages, deleted award law, finding as matter of National court, appeal On to this National Union in faith Union had not acted bad when that, law, as a matter of it is enti- asserts 427. denied the claim. 780 S.W.2d judgment because the terms of the tled to by prohibit policy simultaneous following provi- policy contained pilot unqualified pilot. and an sions: Union asserts that the cause National in the crash occurred while Hudson was EXCLUSIONS Hudson main- control of the while apply: does not the crash occurred tains that the cause of in 2. To flight ^[*] any ^[*] insured while n ^[*] the aircraft ^[*] sfc is der either scenario the controls. National Union while both he and his instructor er the risk of piloting by policy does not cov- argues that un- were at the unqualified jury or found that Hudson than the a. other declarations; Thus, issue before qualified.3 not the sole pilots designated in the not “The aircraft was in 3. The found that whether both men It is uncertain by piloted than a or plane or Hudson relin- control whether 1); (question designated in declarations” Bishop. Bishop quished testified control to of the loss the "was that at the time controlling be- that he was he knew pilot lacking proper certifi- practice is for the instructor cause normal 2); cate, rating” (question qualifications and pilot. He further testified override the student being purpose for a that "the aircraft was used occurring he were believed that as events 3) (question designated policy" and that employing same maneu- also to issue the Union was not induced National gain attempt control vers as he misrepresentations made 4). (question son.

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.