Neubert Aero Corporation v. StarStone National Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

NEUBERT AERO CORPORATION,

Plaintiff,

v. Case No: 5:20-cv-45-JSM-PRL

STARSTONE NATIONAL

INSURANCE COMPANY and

LONDON AVIATION

UNDERWRITERS, INC.

Defendants.

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.

1 Within 14 days after being served with a copy of the recommended disposition, a party may

file written objections to the Report and Recommendation’s factual findings and legal conclusions.

See Fed. R. Civ. P. 72(b)(3); Fed. R. Crim. P. 59(b)(2); 28 U.S.C. § 636(b)(1)(B). A party’s failure to

file written objections waives that party’s right to challenge on appeal any unobjected-to factual finding

or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R.

3-1.

2 Plaintiff’s claim for declaratory judgment against Starstone National Insurance Company

and London Aviation Underwriters, Inc. is all that remains. The Court previously dismissed Plaintiff’s

claims against Southwest Aviation Group of Arizona, Inc. for breach of fiduciary duty and negligence.

(Doc. 93).

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 November

8, 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

3 A copy of the Policy is attached at Doc. 107-1 at 7-25.

as Pilot In Command, 250 of which shall have been Multiengine Land

hours, including 25 hours in a Cessna T337GP, and who has had no

accidents, incidents, violations, or suspensions within the past five years,

and who has the Insured’s full approval and consent. All such pilots to

have successfully completed, within 24 calendar months preceding the

intended flight, initial or recurrent training, in the same make and model

being flown, with a school acceptable to the company.

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 to 5 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 May 7, 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 July 6, 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

4 14 CFR §61.3(e) provides: “no person may act as pilot in command of a civil aircraft under IFR or

in weather conditions less than the minimums prescribed for VFR flight unless that person holds . . .

the appropriate aircraft category, class, type (if required), and instrument rating on that person’s pilot

certificate for any airplane . . . being flown.”

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

5 As previously noted by the Court, there is no dispute that Florida law applies to the interpretation

must interpret the policy in accordance with the plain meaning of the language so as to give

effect to the policy as written.” Id. (quoting Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc.,

No. SC12-905, 2013 WL 3332385 (Fla. July 3, 2013). And fundamentally, “courts may not

‘rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the

intentions of the parties.’” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532

(Fla. 2005). (quoting Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 942

(Fla. 1979)).

The analysis must start with the Court’s earlier ruling on Defendants’ initial motion

for summary judgment, which the Court denied and explained as follows:

Neubert is identified as a “Named Pilot” in the Policy. “Named

Pilot(s)” and “Additional Pilot[s]” are required, in relevant part,

to “be certificated for the make and model being flown and must

be currently rated for the flight involved, unless otherwise

stated.” The Special Conditions provision, which applies

specifically to Neubert, states that “[p]rior to solo in the NIZR,

Timothy Neubert must have obtained a multiengine rating and

an instrument rating for multiengine aircraft.” The Policy also

excludes coverage when the Aircraft is operated by any pilot who

is not “certificated for the make and model being flown and

currently rated for the flight involved.”

Plaintiff contends that Defendants failed to establish that

Neubert did not comply with the Special Conditions provision.

According to Plaintiff, the Policy does not expressly require that

Neubert obtain multiengine rating on his pilot certificate as is

required under the “Additional Pilots” provision. Rather,

Plaintiff contends that the provision is ambiguous and subject to

a reasonable interpretation that Neubert was covered (1) while

he was a student pilot conducting solo multiengine training with

an endorsement from a flight instructor under FAR 61.87, or (2)

if he received the required training for multiengine land rating

and was endorsed by an authorized instructor under FAR

61.31(d)(2) with a multi-engine rating. It is undisputed that

Neubert’s pilot certificate is for “airplane single engine land;

instrument airplane” and that the Aircraft is a multiengine

of the Policy. (Doc. 93 at 7).

aircraft. Plaintiff admits that Neubert “had a single engine rating

and a transitional multi-engine limited to center-line thrust rating

for solo fight from an authorized instructor pursuant to 14 FAR.

Section 61.31(d)(2).” (Doc. 57-3). 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 61.87e and is proficient to make solo flights in a

C-337P.” But, records from the FAA’s Department of

Transportation pertaining to an investigation of the Incident

state that Neubert was “engaged in multi-engine training but the

endorsements he held were not sufficient for the type of flying he

had been conducting” and that he was “not rated for aircraft.”

(Doc. 89- 1, p. 5). Accordingly, the Court concludes that, at this

stage of discovery, the record contains 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).

In their current motions for summary judgment, the parties disagree as to the scope of

the Court’s initial ruling. Defendants contend that the Court already concluded that the Policy

is unambiguous (Doc. 107 at 14-15), while Plaintiff continues to argue that the Policy is

ambiguous, and that certain provisions do not apply to Neubert. (Doc. 130 at 13-18). Neither

party is entirely correct. The Court clearly determined that both the Special Conditions

provision and the “All Pilots” clause6 apply to Neubert. 7 And while the Court addressed

Plaintiff’s argument that the Special Conditions provision is ambiguous, it did not make any

specific finding regarding ambiguity.

6 The “all-pilots” clause provides that “all pilots . . . must be certificated for the make and model being

flown, and must be currently rated for the flight involved, unless otherwise stated.”

7 Likewise, in the Court’s ruling on Defendants’ motion to dismiss, the Court held that “the plain and

unambiguous terms of the Policy require that all pilots be certificated for the make and model being

flown and that Mr. Neubert, prior to operating the N1ZR solo, “must have obtained a multiengine

rating and an instrument rating for multiengine aircraft.” (Doc. 17 at 6). On reconsideration, the Court

confirmed that both provisions apply to Neubert and that the provisions are not in conflict with each

other. (Doc. 27 at 4-5).

Now, after reviewing the record, the undersigned finds that the Special Conditions

provision is unambiguous and that Neubert failed to meet the requirements of the Special

Conditions provision.

Pursuant to the plain terms of the Special Conditions provision, prior to flying solo

in the Aircraft, Neubert was required to (1) obtain a multiengine rating and an instrument

rating for multiengine aircraft; and (2) successfully complete formal ground and flight training

for a Cessna T337GP at a school acceptable to the Company; and (3) 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 to 5 hours of the required dual

instruction may be accomplished in a full motion simulator.

There is no dispute that Neubert complied with the latter two requirements. Plaintiff

took a training course approved by LAU entitled “Initial Transition Training and Instrument

Flight Rules Recurrent Training for the Cessna C337 Skymaster at Recurrent Training Center

(RTC) in Tampa, Florida. (Doc. 124-7, Declaration of Timothy Neubert at 37-38). He

completed the formal school training on April 24, 2018 and sent notification to LAU. (Doc.

124-1, Deposition of Timothy Neubert at 104:1-18). Neubert also completed 10 hours of dual-

flight training with Certified Flight Instructor Nathan Gary spread over 8 flights. (Neubert

Depo at 25:1-26:2).

There is, however, disagreement as to the first requirement that Neubert had to obtain

a multiengine rating and an instrument rating for multiengine aircraft prior to flying solo.

Federal aviation regulations specifically identify categories of ratings that are placed on a

pilot’s certificate, including “airplane class ratings” for “single-engine land” and “multiengine

land.” 14 C.F.R. § 61.5. 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. While this would appear to

be dispositive of the issue, Plaintiff argues that the phrase “multiengine rating” is ambiguous,

and susceptible of interpretation in favor of coverage, i.e., that Neubert’s pilot certificate

together with the CFI’s endorsement to fly solo for training purposes was a “multiengine

rating.” (Doc. 135 at 19). This argument is unavailing.

Plaintiff does not suggest that the endorsement itself is a multiengine rating, and clearly

it is not. Indeed, 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.” (Doc.

124-2, Deposition of Richard Vandam at 38:10-39:25, 72:14-19). Likewise, Plaintiff’s expert

agreed that endorsements provided by a flight instructor during training are for the limited

purpose of allowing the student to gain experience and skills and that the “endorsement in

this case did not constitute any sort of rating and did not constitute any rating issued by the

FAA.” (Doc. 105-1, Supplemental Expert Report of Kathleen A. Yodice, at 6).

Moreover, even if the endorsement authorized Neubert to conduct solo training, it did

not alter, or render ambiguous, the Policy requirement that Neubert must first obtain a

multiengine rating to do so. Contrary to Plaintiff’s contention, Neubert was not required to

perform solo flight training to obtain a multiengine rating. 8 And if Neubert needed more

8 Plaintiff points to 14 C.F.R. § 61.109 (b) which provides that “a person who applies for a

private pilot certificate with . . . multiengine class rating must log at least .. . .10 hours of solo flight

training in the areas of operation listed in § 61.107(b)(2) of this part. This argument, however, is

misplaced because for pilots who already possess one rating (Neubert had single-engine rating) and

who wish to receive an additional rating (Neubert wished to obtain multiengine rating), the

requirements of 14 CFR § 61.63(c) and not 14 CFR §§ 61.107 or 61.109 are applicable. See Beard,

FAA Office of Chief counsel Opinion, Legal Interpretation re: Section 61.3(d) solo endorsement

requirements for additional category and/or class ratings (January 9, 2013) (Section 61.63 contains

requirements for pilots who hold a higher (than student) level pilot certificate and are seeking an

additional airplane class rating). Section 61.63(c) does not require solo flight training.

flight experience before his check ride, he could have continued to dual train with a properly

rated pilot.9 By choosing to fly solo, without first obtaining a multiengine rating, Neubert

failed to meet the unambiguous Special Conditions of the Policy, and the endorsement does

not change this conclusion because it did not convey the requisite multiengine rating.

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.

9 According to Neubert, prior to buying the Aircraft, he had completed formal classroom

multiengine training and was signed off to do a multiengine check ride, which he was unable to

complete due to a technical problem with his pilot’s certificate. (Neubert Depo at 29:1-8). Plaintiff

never rescheduled the check ride. Neubert claims that his subsequent training with CFI Gary was

more specific than the normal multiengine training and would result in a listing on his license for

“multiengine centerline thrust.” (Neubert Depo at 29:19-30:3). Neubert concedes that if he would have

gone and received his multiengine check ride he would have been eligible to fly the Aircraft—he did

not need the additional certification for centerline thrust airplane—nor did the Policy require it.

(Neubert Depo at 53:10-24).

For the reasons stated above, Defendants’ motion for summary judgment (Doc. 107)

should be granted, Plaintiff's motion for partial summary judgment (Doc. 130) should be

denied, and declaratory judgment should be entered in favor of Defendants as to Count I of

the Amended Complaint.

Given this conclusion, the Court need not address the pending motions to exclude

expert witnesses (Docs. 106, 122), because the experts’ opinions do not impact the ruling.

As discussed above, the parties’ experts agreed that the endorsement was not a multiengine

rating and they offered no other opinion that is relevant to the Court’s determination that

Neubert failed to meet the requirements of the Special Conditions. Accordingly, the motions

to exclude expert witnesses (Docs. 106, 122) should be terminated as moot.

Recommended in Ocala, Florida on October 21, 2021.

A

PHILIP R. LAMMENS

United States Magistrate Judge

Copies furnished to:

Presiding District Judge

Counsel of Record

Unrepresented Party

Courtroom Deputy