An airport services company asked the Eleventh Circuit to review a decision that its insurance doesn't cover damage to a plane that made an emergency landing, saying the pilot's lack of official qualifications did not increase the risk of damage to the plane and couldn't be used to bar coverage.
A lower Florida federal court incorrectly determined pilot Timothy Neubert's lack of an official multiengine rating to pilot the Cessna T337GP plane involved in the emergency landing was sufficient to bar coverage under aviation policies issued to Neubert Aero Corp., the company said Monday.
While a warranty in the policies required a multiengine rating to fly the aircraft, Florida's Anti-Technicality Statute requires insurers to prove that a policy breach resulted in a loss or increase of risk of loss before they can bar coverage based on that breach, the company told the appeals court.
Insurers Starstone National Insurance Co. and London Aviation Underwriters did not prove that Neubert's lack of a rating for the aircraft increased the risk of damage to the plane, meaning the lower court incorrectly ruled that the insurers could exclude the accident from coverage, the company said. It compared Neubert's emergency landing in a marsh to that of Captain "Sully" Sullenberger, who performed an emergency landing in a passenger plane on the Hudson River in 2009, saying he had demonstrated his lack of a rating did not increase the risk of plane damage.
"Like Capt. Sullenberger, Neubert quickly and correctly evaluated the crisis confronting him," the company said. "Despite his demonstrated superior ability to fly the insured aircraft and despite having achieved an outcome few qualified pilots could have duplicated, appellees denied coverage for the damage to the insured aircraft on the basis of mere technicalities."
According to court records, the plane departed from Memphis International Airport on a scheduled flight in November 2018 and ran out of fuel before reaching Brooksville-Tampa Bay Regional Airport. The insurers denied coverage for damage to the plane resulting from the emergency landing, after which Neubert Aero sued. Starstone and London later moved the action to federal court.
U.S. District Judge James Moody in November 2021 agreed with U.S. Magistrate Judge Philip Lammens' October 2021 recommendation to award summary judgment to the insurers, saying that the policy's conditions unambiguously required Neubert to have the multiengine rating required to operate the Cessna.
Neubert Aero on Monday slammed the lower court's ruling that the conditions were unambiguous. According to the company, under Federal Aviation Administration regulations, Neubert's operation of the plane was authorized by his instructor for class rating training, which Neubert was undergoing when he was operating the plane. The policy's use of the term "multiengine rating" in this case was ambiguous as it was not clear whether authorization by Neubert's flight instructor for solo training falls under that definition, the company argued.
"When both the FAA regulations authorize and require solo training, it is reasonable to interpret a flight instructor's endorsement for solo training pursuant to those regulations as a 'multiengine rating' under the policy," the company said.
Representatives of the parties did not respond to requests for comment.
Neubert is represented by Tracey K. Jaensch of FordHarrison.
The insurers are represented by Rory E. Jurman and Jenelle E. La Chuisa of Hinshaw & Culbertson LLP.
The case is Neubert Aero Corp. v. Starstone National Insurance Co. et al., case number 5:20-cv-00045, in the U.S. District Court for the Middle District of Florida.
Judge Rejects Coverage For Pilot's Plane Damage
November 17, 2021
A Florida federal judge permanently grounded an airport services company's dispute over coverage for damage a plane sustained from an emergency landing, agreeing Wednesday with a magistrate judge's finding that the pilot's lack of qualifications relieved the insurers of their obligations.
U.S. District Judge James S. Moody concurred with U.S. Magistrate Judge Philip R. Lammen's October recommendation to award summary judgment to Starstone National Insurance Co. and London Aviation Underwriters on the grounds that pilot Timothy W. Neubert did not have the required multiengine rating necessary to fly the Cessna T337GP plane.
A warranty in the policies issued by the insurers to the airport services company unambiguously required Neubert to have the multiengine rating in order to operate the aircraft, the magistrate judge concluded. Neubert was qualified to operate only single engine planes because he had only taken the necessary training course and completed 10 hours of flight training.
Rory E. Jurman of Hinshaw & Culbertson LLC, counsel for the insurers, told Law360 that the case is important "because it examines the scope and framework that the Eleventh Circuit has been scrutinizing recently in Ocean Reef LLC v. Travelers Property Casualty Co. of America, a marine warranty matter."
In Ocean Reef, the federal appeals court "called into question the blanket application of warranties," Jurman explained.
"In light of Ocean Reef, this is an important ruling for insurers because this warranty was applied correctly and therefore should give comfort to the industry," Jurman stated.
The dispute between Neubert and the insurers took off after they denied coverage for damage to a plane piloted by Neubert that had to make an emergency landing in November 2018. According to court records, the plane departed from Memphis International Airport and ran out of fuel before reaching Brooksville-Tampa Bay Regional Airport.
Neubert initially sued the insurers in Florida state court, seeking an order that they wrongfully denied coverage. Starstone and London's later moved the action to federal court.
The parties later filed competing motions for summary judgment. Judge Lammen recommended that Judge Moody find in favor of the insurers.
Neubert objected to Lammen's recommendation, complaining that Florida's Anti-Technicality Statute, which bars insurers from denying coverage over a technicality if it did not have a role in the loss, as not properly considered. According to the policyholder, the pilot's failure to have a multiengine rating was not a factor in the incident that caused the loss.
"The anti-technicality statute in question here pertains to transportation and wet marine policies, which does not apply to this particular aircraft at the time being flown by Mr. Neubert," Jurman said. "The statute itself was not applicable, and the court previously ruled on that."
Neubert, Neubert's counsel and the insurance companies did not respond to requests for comment Wednesday.
Neubert is represented by Tracey K. Jaensch of Ford & Harrison LLP.
The insurers are represented by Rory E. Jurman and Jenelle E. La Chuisa of Hinshaw & Culbertson LLP.
The case is Neubert Aero Corp. v. Starstone National Insurance Co. et al., case number 5:20-cv-00045, in the U.S. District Court for the Middle District of Florida.
Pilot's Plane Damage Not Covered, Judge Says
October 21, 2021
A Florida federal judge said Thursday that insurers correctly denied coverage to a pilot and owner of an aviation company for costs stemming from an emergency landing, due to the pilot's lack of proper qualifications for the plane he was flying at the time.
Neubert Aero Corp.'s policy with London Aviation Underwriters and StarStone National Insurance Co. clearly required Timothy W. Neubert to obtain a multiengine rating before flying a multiengine Cessna T337GP, U.S. Magistrate Judge Philip R. Lammens said in his report and recommendation to the judge overseeing the case.
Neubert did meet two of the three conditions in the policy to fly the Cessna, Judge Lammens said, by taking an approved training course and having flown 10 hours of dual flight training. But he did not have a multiengine rating and was only qualified to fly only single-engine planes, the judge said.
"It is undisputed that at the time of the incident, Neubert only had a single engine land rating and did not have a multiengine rating," Judge Lammens wrote.
The company tried to argue that the phrase "multiengine rating" is ambiguous, pointing to an endorsement from his certified flight instructor to fly the plane solo for training purposes.
However, the "plaintiff's own expert testified that the endorsement was not a multiengine rating, nor equivalent to a rating, but rather 'a tool to allow training in the airplane,'" the judge wrote.
Tracey Jaensch, an attorney representing Neubert Aero Corp., told Law360 that the judge ignored its argument that Florida's Anti-Technicality Statute prevents insurers from denying coverage over a technicality that didn't play a part in the loss.
"The magistrate judge did not address the anti-technicality statute, which was the whole basis for the" declaratory action, Jaensch said.
The dispute stems from a November 2018 flight from the Memphis International Airport to the Brooksville-Tampa Bay Regional Airport, according to the report. Neubert had to make an "off-field emergency landing," and Neubert filed a claim for damage the plane received in the incident, according to the report.
After the claim was denied, Neubert sued the insurers in Florida state court, and the insurers moved it to federal court in February 2020.
Counsel for and representatives of the insurers did not immediately return requests for comment.
Neubert Aero Corp. is represented by Tracey K. Jaensch of Ford & Harrison LLP.
The insurers are represented by Rory Eric Jurman and Jenelle E. La Chuisa of Hinshaw & Culbertson LLP.
The case is Neubert Aero Corp. v. StarStone National Insurance Co. et al., case number 5:20-cv-00045, in the U.S. District Court for the Middle District of Florida.
Pilot Tim Nubert, left, speaks with Citrus County Sheriff's Office personnel on November 8th, 2018 following his safe return from where he had to ditch his Cessna T337G Turbo Super Skymaster. He reported he ran out of fuel before putting the plane down in a swampy area off Mason Creek.
A Citrus County Sheriff's Office helicopter hovers over the site where a Cessna T337G Turbo Super Skymaster made an emergency landing on November 8th, 2018 near Mason Creek in Homosassa. The pilot was uninjured in the incident. He reported to law enforcement that he was out of fuel at the time of the hard landing.
Aviation Accident Final Report - National Transportation Safety Board
Additional Participating Entity:
Federal Aviation Administration / Flight Standards District Office; Tampa, Florida
Federal Aviation Administration / Flight Standards District Office; Tampa, Florida
Investigation Docket - National Transportation Safety Board:
Neubert Aero Corporation
Location: Homosassa, FL
Accident Number: GAA19CA070
Date & Time: 11/08/2018, 1000 EST
Registration: N1ZR
Aircraft: Cessna T337
Aircraft Damage: Substantial
Defining Event: Fuel exhaustion
Injuries: 1 None
Flight Conducted Under: Part 91: General Aviation - Personal
Analysis
The pilot reported that, 2 days before the accident flight, the multiengine airplane's fuel tanks were filled (150 gallons). During the taxi to the runway, the right main tire blew. During recovery, the right side of the airplane was placed on a dolly to support the gear so that the airplane could be towed. The pilot reported that, due to the airplane’s fuel system design, when one side of the airplane was raised, all the fuel could be transferred to the opposite tank, which then forced the fuel to be released out of the air vent line.
On the day of the accident, the pilot completed his preflight inspection and visually confirmed the fuel quantity by checking both fuel gauges, which were "green"; however, he did not verify the fuel onboard by checking the tanks. About 3 hours into the flight, the rear engine lost power. Before the pilot attempted to restart the rear engine and after he verified the correct engine to feather, the front engine also lost power. When the pilot realized the airplane would be unable to reach the nearest airport, he landed it in a grass marsh with the landing gear retracted. During the landing, the airplane’s wing hit grass and then veered right about 90°, which caused the left wing to dip and impact terrain.
The airplane sustained substantial damage to the left aileron and empennage.
The pilot reported that there were no preaccident mechanical failures or malfunctions with the airplane that would have precluded normal operation.
During his preflight inspection, the pilot should have verified the fuel quantity in the fuel tanks to ensure there was sufficient fuel onboard for the flight, and his failure to do so led to fuel exhaustion and the subsequent total loss of power in both engines.
Probable Cause and Findings
The National Transportation Safety Board determines the probable cause(s) of this accident to be:
The pilot's inadequate preflight inspection, which resulted in fuel exhaustion and the subsequent total loss of power in both engines.
Findings
Aircraft Fuel - Fluid level (Cause)
Personnel issues Fuel planning - Pilot (Cause)
Factual Information
History of Flight
Prior to flight Aircraft servicing event
Enroute Fuel exhaustion (Defining event)
Enroute Loss of engine power (total)
Landing Off-field or emergency landing
Landing Landing gear not configured
Landing Collision with terr/obj (non-CFIT)
Pilot Information
Certificate: Private
Age: 55, Male
Airplane Rating(s): Single-engine Land
Seat Occupied: Left
Other Aircraft Rating(s): None
Restraint Used: 3-point
Instrument Rating(s): Airplane
Second Pilot Present: No
Instructor Rating(s): None
Toxicology Performed: No
Medical Certification: Class 2 Without Waivers/Limitations
Last FAA Medical Exam: 05/08/2018
Occupational Pilot: No
Last Flight Review or Equivalent: 09/11/2018
Flight Time: (Estimated) 1293 hours (Total, all aircraft), 51 hours (Total, this make and model), 51 hours (Last 90 days, all aircraft)
Aircraft and Owner/Operator Information
Aircraft Make: Cessna
Registration: N1ZR
Model/Series: T337 G
Aircraft Category: Airplane
Year of Manufacture: 1977
Amateur Built: No
Airworthiness Certificate: Normal
Serial Number: P3370275
Landing Gear Type: Retractable - Tricycle
Seats:
Date/Type of Last Inspection: 08/21/2018, 100 Hour
Certified Max Gross Wt.: 4700 lbs
Time Since Last Inspection:
Engines: 2 Reciprocating
Airframe Total Time: 1879.8 Hours as of last inspection
Engine Manufacturer: Continental
ELT: C91A installed, activated, aided in locating accident
Engine Model/Series: TSIO-520-NB16
Registered Owner: Neubert Aero Corp.
Rated Power: hp
Operator: On file
Operating Certificate(s) Held: None
Meteorological Information and Flight Plan
Conditions at Accident Site: Visual Conditions
Condition of Light: Day
Observation Facility, Elevation: KCGC, 10 ft msl
Distance from Accident Site: 8 Nautical Miles
Observation Time: 1015 UTC
Direction from Accident Site: 32°
Lowest Cloud Condition: Clear
Visibility: 10 Miles
Lowest Ceiling: None
Visibility (RVR):
Wind Speed/Gusts: Calm /
Turbulence Type Forecast/Actual: None / None
Wind Direction:
Turbulence Severity Forecast/Actual: N/A / N/A
Altimeter Setting: 30.02 inches Hg
Temperature/Dew Point: 18°C / 18°C
Precipitation and Obscuration: No Obscuration; No Precipitation
Departure Point: Memphis, TN (MEM)
Type of Flight Plan Filed: IFR
Destination: Brooksville, FL (BKV)
Type of Clearance: Unknown
Departure Time: CST
Type of Airspace: Class G
Wreckage and Impact Information
Crew Injuries: 1 None
Aircraft Damage: Substantial
Passenger Injuries: N/A
Aircraft Fire: None
Ground Injuries: N/A
Aircraft Explosion: None
Total Injuries: 1 None
Latitude, Longitude: 28.753333, -82.647222 (est)
Date & Time: 11/08/2018, 1000 EST
Registration: N1ZR
Aircraft: Cessna T337
Aircraft Damage: Substantial
Defining Event: Fuel exhaustion
Injuries: 1 None
Flight Conducted Under: Part 91: General Aviation - Personal
Analysis
The pilot reported that, 2 days before the accident flight, the multiengine airplane's fuel tanks were filled (150 gallons). During the taxi to the runway, the right main tire blew. During recovery, the right side of the airplane was placed on a dolly to support the gear so that the airplane could be towed. The pilot reported that, due to the airplane’s fuel system design, when one side of the airplane was raised, all the fuel could be transferred to the opposite tank, which then forced the fuel to be released out of the air vent line.
On the day of the accident, the pilot completed his preflight inspection and visually confirmed the fuel quantity by checking both fuel gauges, which were "green"; however, he did not verify the fuel onboard by checking the tanks. About 3 hours into the flight, the rear engine lost power. Before the pilot attempted to restart the rear engine and after he verified the correct engine to feather, the front engine also lost power. When the pilot realized the airplane would be unable to reach the nearest airport, he landed it in a grass marsh with the landing gear retracted. During the landing, the airplane’s wing hit grass and then veered right about 90°, which caused the left wing to dip and impact terrain.
The airplane sustained substantial damage to the left aileron and empennage.
The pilot reported that there were no preaccident mechanical failures or malfunctions with the airplane that would have precluded normal operation.
During his preflight inspection, the pilot should have verified the fuel quantity in the fuel tanks to ensure there was sufficient fuel onboard for the flight, and his failure to do so led to fuel exhaustion and the subsequent total loss of power in both engines.
Probable Cause and Findings
The National Transportation Safety Board determines the probable cause(s) of this accident to be:
The pilot's inadequate preflight inspection, which resulted in fuel exhaustion and the subsequent total loss of power in both engines.
Findings
Aircraft Fuel - Fluid level (Cause)
Personnel issues Fuel planning - Pilot (Cause)
Factual Information
History of Flight
Prior to flight Aircraft servicing event
Enroute Fuel exhaustion (Defining event)
Enroute Loss of engine power (total)
Landing Off-field or emergency landing
Landing Landing gear not configured
Landing Collision with terr/obj (non-CFIT)
Certificate: Private
Age: 55, Male
Airplane Rating(s): Single-engine Land
Seat Occupied: Left
Other Aircraft Rating(s): None
Restraint Used: 3-point
Instrument Rating(s): Airplane
Second Pilot Present: No
Instructor Rating(s): None
Toxicology Performed: No
Medical Certification: Class 2 Without Waivers/Limitations
Last FAA Medical Exam: 05/08/2018
Occupational Pilot: No
Last Flight Review or Equivalent: 09/11/2018
Flight Time: (Estimated) 1293 hours (Total, all aircraft), 51 hours (Total, this make and model), 51 hours (Last 90 days, all aircraft)
Aircraft and Owner/Operator Information
Aircraft Make: Cessna
Registration: N1ZR
Model/Series: T337 G
Aircraft Category: Airplane
Year of Manufacture: 1977
Amateur Built: No
Airworthiness Certificate: Normal
Serial Number: P3370275
Landing Gear Type: Retractable - Tricycle
Seats:
Date/Type of Last Inspection: 08/21/2018, 100 Hour
Certified Max Gross Wt.: 4700 lbs
Time Since Last Inspection:
Engines: 2 Reciprocating
Airframe Total Time: 1879.8 Hours as of last inspection
Engine Manufacturer: Continental
ELT: C91A installed, activated, aided in locating accident
Engine Model/Series: TSIO-520-NB16
Registered Owner: Neubert Aero Corp.
Rated Power: hp
Operator: On file
Operating Certificate(s) Held: None
Meteorological Information and Flight Plan
Conditions at Accident Site: Visual Conditions
Condition of Light: Day
Observation Facility, Elevation: KCGC, 10 ft msl
Distance from Accident Site: 8 Nautical Miles
Observation Time: 1015 UTC
Direction from Accident Site: 32°
Lowest Cloud Condition: Clear
Visibility: 10 Miles
Lowest Ceiling: None
Visibility (RVR):
Wind Speed/Gusts: Calm /
Turbulence Type Forecast/Actual: None / None
Wind Direction:
Turbulence Severity Forecast/Actual: N/A / N/A
Altimeter Setting: 30.02 inches Hg
Temperature/Dew Point: 18°C / 18°C
Precipitation and Obscuration: No Obscuration; No Precipitation
Departure Point: Memphis, TN (MEM)
Type of Flight Plan Filed: IFR
Destination: Brooksville, FL (BKV)
Type of Clearance: Unknown
Departure Time: CST
Type of Airspace: Class G
Wreckage and Impact Information
Crew Injuries: 1 None
Aircraft Damage: Substantial
Passenger Injuries: N/A
Aircraft Fire: None
Ground Injuries: N/A
Aircraft Explosion: None
Total Injuries: 1 None
Latitude, Longitude: 28.753333, -82.647222 (est)
Nubert said he was on track to land at the Brooksville-Tampa Bay Regional Airport from Memphis, Tennessee, when his Cessna T337G Turbo Super Skymaster had a “fuel issue” midair, forcing him to look down toward the soft marshes surrounding Mason Creek.
Nubert was able to ease into a controllable rate of descent and landed in the marine grasslands, he said.
When he did, the Cessna’s front propeller dug into the earth and rotated the plane to the left before the aircraft came to rest roughly a half-mile southwest of the Mason Creek public boat ramp at the end of South Mason Creek Road.
“It was textbook,” Nubert said. “I must have used 800 feet for landing.”
Responders with the Citrus County Sheriff’s Office, Citrus County Fire Rescue, Florida Fish and Wildlife Conservation Commission (FWC) and Nature Coast EMS’ Surface Water Rescue Team searched for and rescued Nubert, who was uninjured and refused medical treatment.
Sheriff’s spokeswoman Lindsay Blair said the Federal Aviation Administration will be investigating what authorities are calling “an emergency landing,” and is allowing Nubert to remove his plane.
Tom Davis, with the Crystal River Airport, said there was no mayday call received by the airport prior to Nubert’s landing. Brooksville-Tampa Bay Regional Airport Manager Keven Daugherty also said his airport got no distress signal.
It took time for emergency crews to find Nubert’s plane after his plane was reported down a little after noon, and numerous rescue boats launched from the Riverhaven Marina and Mason Creek Boat Ramp to search for it.
A sheriff’s helicopter also took off to assist in the search for the downed plane, which it found and circled until boat crews reached Nubert, who was brought to the Mason Creek Boat Ramp by an FWC officer.
“It was a real soft landing,” Nubert told deputies and medics after he got ashore. “The tide worked for us.”
Sharol Lambert said she was kayaking in Mason Creek when she spotted a plane flying low and circling above her.
“He was way too close,” she said.
Lambert called the FWC Wildlife Hotline to report a dead dolphin she found nearby the Mason Creek boat ramp, and was surprised to see a quick response from FWC. She didn’t know the plane had been forced to land just moments earlier.
“I didn’t see or hear a crash,” she said.
After he was assessed by deputies and medics, Nubert took a ride to Brooksville — by land.
Original article ➤ https://www.chronicleonline.com
