NEUBERT AERO CORPORATION

v.

STARSTONE NATIONAL INSURANCE COMPANY

REPORT AND RECOMMENDATION¹

Plaintiff seeks declaratory relief that damages to its airplane are covered under an aircraft liability policy issued by Defendants.2 The parties have filed cross-motions for summary judgment regarding coverage (Docs. 107, 130). For the reasons discussed below, summary judgment should be granted in favor of Defendants because Plaintiff failed to satisfy the pilot requirements under the insurance policy, and thus, there is no coverage for the damages to the airplane.

I. FACTUAL BACKGROUND

The underlying facts are not in dispute. This action arises out of an off-field emergency landing of a NIZR 1977 Cessna T337GP (“the Aircraft”) while Timothy W. Neubert, the President of Neubert Aero Corporation (the plaintiff), was conducting a flight from the

Memphis International Airport to the Brooksville-Tampa Bay Regional Airport on November⁸, 2018 (“the Incident”). Mr. Neubert was the only occupant and pilot of the Aircraft at the time of the Incident. Neubert’s pilot certificate is for “airplane single engine land, instrument airplane” and the Aircraft is a multiengine airplane. Doc. 107-1 at 26. Just over two months prior to the Incident, Neubert received an endorsement in his pilot logbook from Certified Flight Instructor, Nathan Gary, certifying that Neubert “received training to qualify for solo flying” and that he “meets the applicable requirements of 61.31(d)2 and is proficient to make solo flights in a C-337P.” (Neubert Dec. at ¶ 10, Exhibit C). The Defendants, London Aviation Underwriters, Inc. (“LAU”), as manager and underwriter for StarStone National Insurance Company (“StarStone”), provided to Plaintiff an Aviation Insurance Policy (Policy No. SAV100311200), effective from March 22, 2018 to March 22, 2019 (“the Policy”). (Doc. 107-1, Affidavit of Jeffrey T. Sutton at ¶4).3 Plaintiff filed a claim under the Policy for damages the Aircraft sustained as a result of the Incident. The Policy states, in pertinent part: APPROVED PILOTS: The above coverages do not apply while N1ZR is operated by other than the following:

A. Named Pilot(s): • Timothy W. Neubert B. Additional Pilot Clause: any Pilot, aged between 25 and 65, having a Private (or better) Pilot Certificate with Multiengine Land and Instrument Ratings who has flown a minimum of 1000 total flying hours

Furthermore, all pilots must be in compliance with the requirements of both FAR 61.56 (Flight Review) and FAR 61.23 (Medical Certificates: Requirement and Duration), and must be certificated for the make and model being flown, and must be currently rated for the flight involved, unless otherwise stated. * * * SPECIAL CONDITION(S): Prior to solo in N1ZR, Timothy Neubert must have obtained a multiengine rating and an instrument rating for multiengine aircraft, and must successfully complete formal ground and flight training for a Cessna T337GP at a school acceptable to the Company, and must have completed 10 hours of dual instruction in a Cessna T337GP with a Certificated Flight Instructor who meets all the requirements of the Additional Pilot Clause. Up to⁵ hours of the required dual instruction may be accomplished in a full motion simulator. The formal school requirement shown above must be completed by 5/20/2018 in order for Timothy Neubert to remain an approved pilot.

No coverage for Bodily Injury to Passengers applies while Timothy Neubert is at the controls of N1ZR, until Timothy Neubert has completed the requirements shown above and logged 15 total hours in a Cessna T337GP. * * *

VIII. EXCLUSIONS

This Policy does not apply under any coverage: * * * B. when the aircraft is operated by persons who are not specifically named as a pilot on the declarations page, or in any endorsement to this policy; or, who do not meet all of the requirements of the Additional Pilot Clause, if applicable; or when the aircraft is operated by any pilot who is not in compliance with the requirements of FAR 61.56, (Flight Review); or, is not in compliance with the requirements of FAR 61.23, (Medical Certificates: Requirement and Duration); or is not certificated for the make and model being flown and currently rated for the flight involved.

(Doc. 107-1 at 7-25). On or around March 11, 2019, LAU, through coverage counsel, rendered its coverage determination to Plaintiff, concluding that, among other things, Neubert failed to meet the Special Conditions of the Policy that required him to obtain a multiengine rating and an instrument rating for multiengine aircraft prior to solo flight. (Doc. 107-1 at 28-31). This lawsuit followed.

II. PROCEDURAL BACKGROUND

The Court previously granted Defendants’ motion to dismiss, dismissing the case with prejudice and concluding that the Policy unambiguously requires that all pilots be certificated for the make and model of the aircraft being flown and rated for the flight involved. (Doc. 17). Because Plaintiff did not satisfy the Policy’s requirements, the Court concluded that the Policy does not provide coverage for the damages to the Aircraft as a result of the Incident.

(Doc. 17). On a motion for reconsideration, the Court granted Plaintiff leave to amend in an abundance of caution if Plaintiff “can allege that Neubert had obtained the requisite multiengine rating and instrument rating for multiengine aircraft at the time of the [I]ncident.” (Doc. 27). The Court further noted that if “Plaintiff cannot assert those allegations, Defendant will still be entitled to dismissal with prejudice.” (Doc. 27). In the Amended Complaint, Plaintiff alleges that Neubert “had a multi-engine rating for the type required by the FARs for the Aircraft, and instrument rating for multiengine aircraft.” (Doc. 29, ¶ 42). Defendants then filed their initial motion for summary judgment, which the Court denied, finding genuine issues of material fact as to whether Neubert satisfied the Policy’s requirements to cover the damages to the Aircraft as a result of the Incident. (Doc. 93 at 8-9).

Following this ruling, the Court granted Defendants’ motion to compel production of the FAA records, which have now been produced. The FAA’s Notice of Proposed Certificate Action dated May⁷, 2019, stated in pertinent part that Neubert “Held a Private Pilot Certificate with Airplane Single Engine Land Rating;” the Aircraft “is a multi-engine land airplane;” and that Neubert appears to have violated inter alia regulation 14 CFR § 61.3(e), which requires that a pilot be rated (on his pilot certificate) for the aircraft being flown if acting as pilot in command and flying under IFR. (Doc. 107-2 at 54-56). 4 On July⁶, 2020, the FAA issued a 60-day Order of Suspension (pursuant to a settlement agreement between the FAA and Neubert) containing the same conclusions regarding Neubert’s licensure and the Incident. (Doc. 107-2 at 57-59). Defendants then filed a renewed motion for summary judgment (Doc. 107) and Plaintiff filed a cross-motion for partial summary judgment (Doc. 130). The parties have also filed motions to exclude experts. (Docs. 106, 122).

III. LEGAL STANDARD

Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A movant carries her burden by showing that there is an absence of

The FAA stated that it appeared Neubert had also violated:

14 C.F.R. § 91.103(a) in that a pilot in command shall, before beginning a flight, become familiar with all available information concerning that flight, including for a flight under IFR, the fuel requirements and alternatives available if the planned flight cannot be completed; and

14 C.F.R. § 91.151 (a) in that no person may begin a flight in an airplane under VFR conditions unless there is enough fuel to fly to the first point of intended landing and, assuming normal cruising speed, during the day, to fly after that for at least 30 minutes. evidence supporting the non-movant’s case. Denney v. City of Albany, 247 F. 3d 1172, 1181 (11th Cir. 2001). The burden then shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show a genuine issue for trial. Porter v. Ray, 461 F. 3d 1315, 1320 (11th Cir. 2006). Affidavits submitted in relation to a summary judgment motion must be “based on personal knowledge and must set forth facts that would be admissible under the Federal Rules of Evidence.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F. 3d 1292, 1314–15 (11th Cir. 2011). A genuine dispute of material fact exists if “the evidence is such that a reasonable jury could return a verdict” for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Which facts are material depends on the underlying substantive law. Id. The Court must view the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the non-movant. Battle v. Bd. of Regents, 468 F. 3d 755, 759 (11th Cir. 2006). However, “[a] court need not permit a case to go to a jury . . . when the inferences that are drawn from the evidence, and upon which the non-movant relies, are ‘implausible.’” Mize v. Jefferson City Bd. of Educ., 93 F. 3d 739, 743 (11th Cir. 1996).

IV. DISCUSSION

In their cross-motions for summary judgment, the parties have offered dueling interpretations of the Policy and arguments as to whether it covers the damages to the Airplane. “Under Florida law, ‘[i]nsurance contracts are construed according to their plain meaning, with any ambiguities construed against the insurer and in favor of coverage.’” Zodiac, 542 Fed.Appx. at 848 (quoting U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 877 (Fla. 2007)).⁵ “If the language used in an insurance policy is plain and unambiguous, a court

The Court cannot rewrite the unambiguous terms of the Special Conditions upon which the parties agreed, simply because Neubert engaged in solo training that was permissible under the regulations, but not under the Policy. Accordingly, Defendants properly denied coverage under the Policy for damages to the Airplane caused by the Incident. See e.g., Ranger Ins. Co. v. Kovach, 63 F. Supp. 2d 174, 181 (D. Conn. 1999) (“The majority view is that the insurer is entitled to rely on a policy provision that unambiguously makes coverage dependent on the pilot of the aircraft meeting particular experience standards”); Ideal Mut. Ins. Co. v. C.D.I. Constr., Inc., 640 F. 2d 654, 660-61 (5th Cir. 1981) (applying Florida law, affirming judgment for insurer where policy required that pilot hold FAA ratings for the flight and the pilot lacked the required FAA ratings).

Section 61.63(c) requires that any person applying for an additional class rating (1) “Must have a logbook or training record endorsement from an authorized instructor attesting that the person was found competent”; (2) “Must pass a practical test” [known as a check ride]; and (3) “Need not meet the specified training time requirements prescribed by this part that apply to the pilot certificate for the aircraft class rating sought. . . .” 14 C.F.R. § 61.63.

PHILIP R. LAMMENS

United States Magistrate Judge Copies furnished to: Presiding District Judge Counsel of Record Unrepresented Party Courtroom Deputy