# Petition for Writ of Certiorari — Howell v. United States Fire Insurance

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 943

## Text

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> 4 Supreme Court, U.S,
88-482 FILED
No. 86- SEP 19 1988
| “JOSEPH F. SPANIOL, JR,
IN THE : =

Supreme Court of the United States
OCTOBER TERM 1988

ROBERT-E. HOWELL, BETTY
CHAVEZ AND ERNEST SCHUMACHER,
AS ADMINISTRATOR OF THE ESTATE OF RODNEY L. HOWELL,

DR. AND MRS. J. CRAYTON
PRUITT, INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF MARK H. PRUITT,

CORINA K. YIN, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE OF PAUL C. YIN,

CHARLES BOLAND, INDIVIDUALLY AND
AS ADMINISTRATOR OF THE ESTATE OF
ANN RENEE BOLAND AND CYNTHIA BOLAND,

y Petitioners,

UNITED STATES FIRE INSURANCE COMPANY,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO
THE GEORGIA COURT OF APPEALS

WARREN CANDLER FORTSON, ESO. WILLIAM C. LANHAM, JR.. ESQ.

JOHN ALLEN HOWARD, Esq. Lanham & McGhee, P.C.
Fortson and White 2100 Equitable Building
300 Atlanta Financial Center 100 Peachtree Street, N.W.
3333 Peachtree Road, N.E. Atlanta, Georgia 30303
Atlanta, Georgia 30326
(404) 239-1900 NICHOLAS C. MORAITAKIS, ESQ.
Gorby, Reeves, Moraitakis
DONALD ROSS ANDERSEN, ESQ. & Whiteman, P.C.
Suite 200 Hollowbrook Court Harris Tower, Suite 2200
1479 Brockett Road 233 Peachtree Street, N.E.

Tucker, Georgia 30084 Atlanta, Geogia 30343

(a Eee, ev
1

QUESTIONS PRESENTED FOR REVIEW

I. Whether 14 C.F.R. 298 et seq applies to a local flight,
where the flight is conducted by an air carrier registered under
Part 298, supra, and where it otherwise constitutes air transporta-
tion affecting interstate commerce.

II. Whether an air taxi operator (charter operator) regis-
tered under Part 298, supra, is required to carry insurance where,
within the scope of the carrier’s operation for which it is regis-
tered, it conducts a local flight that affects interstate commerce.

Ill. Is the fact that a particular flight begins and ends within
the confines of a single state always determinative of whether the
flight affects interstate commerce? The Georgia Court of Appeals
applied a strict geographical test in determining that such a flight
would always constitute an intrastate operation.

THE PARTIES

ROBERT E. HOWELL, BETTY
CHAVEZ and ERNEST SCHUMACHER,
as Administrator of the Estate of Rodney L. Howell,

DR. and MRS. J. CRAYTON
PRUITT, Individually and as
Administrator of the Estate of Mark H. Pruitt,

CORINA K. YIN, Individually and
as Administratrix of the Estate of Paul C. Yin,

CHARLES BOLAND, Individually and
as Administrator of the Estate of
Ann Renee Boland and CYNTHIA BOLAND,
Petitioners
V.

UNITED STATES FIRE INSURANCE
COMPANY,
Respondent

ii

TABLE OF CONTENTS

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Official Report

The opinion of the Georgia Court of Appeals is reported at
Howell, et al v. United States Fire Insurance Company, 185 Ga.
App. 154, 363 S.E.2d 560 (1987).

Jurisdictional Grounds

The Supreme Court of the United States has jurisdiction
pursuant to 28 U.S.C. §1257.

Moreover a State Court has decided an important question
of Federal law which has not been but should be, settled by this
Court, and in addition, has decided a Federal question in a way
that conflicts with applicable decisions within the same state. Sup.
Cr, i, 87,

The original denial of a Motion for Rehearing was dated
June 22, 1988. This Petition for Certiorari is being filed within
ninety days from the denial for Motion for Rehearing.

The history of this case shows that the Georgia Court of
Appeals rendered its consolidated decision in Howell v. United
States Fire Insurance Company, on November 5, 1987. The
Georgia Supreme Court granted certiorari on January 21, 1988.
Inexplicably, the Georgia Supreme Court then withdrew its Writ
of Certiorari on May 4, 1988. A Motion for Rehearing upon the
Georgia Supreme Court's decision to withdraw its previous grant
of certiorari, was denied, after oral argument, on June 22, 1988.

Regulations

14 C.F.R. §298.1

14 C.F.R. §298.2(b)(c)
14 C.F.R. §298.3(a)
14 C.F.R. §298.21(a)
14 C.F.R. §298.37

14 C.F.R. $298.41 (a)
See Appendix (F)

3
Statement of the Case

This appeal arises out of the crash on September 29, 1985 of
an aircraft federally registered as NS551CC near Jenkinsburg,
Georgia. It raises the question of whether an interstate air taxi
operator's insurance carrier can escape liability where the fatal
crash occurs during a local flight which does not cross state lines
but which is otherwise within the scope of the carrier's registered
operation and which affects interstate commerce.

In this case seventeen people died when the aircraft appar-
ently stalled and fell from flight shortly after take-off. The pur-
pose of the flight was to transport, for compensation or hire, sport
parachutists.

The aircraft was titled in the name of Air Carriers Express
Services, Inc., and was registered as an air taxi operator under
Part 298 of the Economic Regulations [14 C.F.R. §298 et seg]
and also was certificated under Part 135 of the Federal Aviation
Regulations. Ail air tax operators engaged in air transportation
(interstate commerce) are required by 14 C.F.R. §298.3 and
§298.21 to register with the Civil Aeronautics Board (now
Department of Transportation). This carrier’s registration as an
air taxi operator was in full force and effect on the date of the
crash.

Moreover, registered air taxi operators are required by 14
C.F.R. §§298.37 and 298.41 to maintain aircraft accident liabil-
ity insurance. Air Carriers Express Services, Inc. and its insurer
filed C.A.B. Form 257 certifying insurance in compliance with
applicable regulations.

Although Air Carriers Express Services, Inc. was registered
as an interstate air taxi operator under Part 298 and was operat-
ing within the scope of its registration at the time of the fatal
flight, the Georgia Court of Appeals nevertheless permitted the
operator’s accident insurance carrier to escape liability to fare
paying passengers upon a finding that Part 298 was inapplicable
to intrastate (local) flights. The overall operation of Air Carriers
Express Services, Inc., however, was factually interstate in

4

nature, as evidenced by the fact it registered under these
regulations.

Federal Question

The federal question presented was first raised in the Cross-
motions for Summary Judgment and briefed by both parties in
the court below and at all stages in the proceedings. [R-338, 639]
The federal question presented in this appeal was the determina-
tive issue in the decision below.

Reasons for Granting the Writ

This case involves the important question of whether
Part 298 of the Economic Regulations is applicable to local flights
by an interstate operator registered under these regulations and
which otherwise constitutes air transportation affecting interstate
commerce. (See 14 C.F.R. §298.2(b) & (c)).

This question is vitally important not only to the litigants in
this case, but also to all citizens because the answer determines
whether insurance will be available to air crash victims as pro-
vided in the Economic Regulations. If insurance is not mandated
by 14 C.F.R. §§298.37 and 298.41, then no required insurance
will cover fare paying passengers traveling between points within
a state, even though the air taxi operator is registered as engaged
in air transportation under 14 C.F.R. §298 et seq. There is no
state law which requires any such insurance in the State of
Georgia.

The Georgia courts are evenly split on this issue. In Corin v.
Puritan Insurance Company, 184 Ga. App. 667, 362 S.E.2d 380
(1987), the Georgia Court of Appeals correctly noted that insur-
ance was required for a registered operator for an intrastate flight
where the overail operation is or even may include authority for
interstate flights. A local joy ride was at issue in Corin.

in the case below, however, a different panel of the Georgia
Court of Appeals held that the fact the actual accident flight was
local was determinative of the question of whether the flight was

— —o

5

intrastate, and consequently, was determinative of the question of
coverage and the applicability of 14 C.F.R. §298 et seq. Howell,
et al v. United States Fire Insurance Company, 185 Ga.
App. 154, 363, S.E.2d 560 (1987).

The court below erred when it apparently attached no conse-
quence to the following undisputed, material facts: (1) the air taxi
operator was registered as interstate air taxi operator under
Part 298 of the Economic Regulations; (2) the air taxi operator’s
insurance carrier had filed a certificate of insurance as mandated
by the Economic Regulations; (3) the fatal flight was within the
scope of the carrier’s operation for which it was registered; (4) the
parachuting operation was in fact interstate in nature in that the
operator routinely flew from state to state for this purpose, adver-
tised the flights in national and international publications; and
(5) because at least one of the parachutists killed had flown in
from out-of-state to jump from this particular airplane.

In disregarding the above-stated facts, the Georgia Court of
Appeals utilized a strict geographical test to determine whether
the flight was intrastate or interstate for purposes of the applica-
bility of the Economic Regulations. Thus, under this opinion the
question of required insurance coverage depends solely on the
question of whether the flight crossed state lines. No analysis of
the impact of the scope of the interstate commerce clause of the
Constitution of the United States was considered by the Georgia
Court of Appeals.

The practical effect of this ruling can be gleaned by the
following example: A registered charter operator transports pas-
sengers for compensation or hire from Columbia, South Carolina
to Atlanta, Georgia. Under the ruling below by the Georgia Court
of Appeals, insurance coverage would be afforded under
14 C.F.R. §298.41. Should the same charter operator then pick
up a load of passengers and transport them from Atlanta, Georgia
to Albany, Georgia, however, the Georgia Court of Appeals
would find no mandatory coverage for the flight.

a

6

The ruling ignores the authority granted the Civil Aeronau-
tics Board (now Department of Transportation) under the Inter-
state Commerce Clause and applicable statutes and regulations.
For example, that authority was properly asserted in Braniff
Airways, 40 C.A.B. 887 (1964) where the Board rejected an
interstate carrier’s attempt to circumvent its jurisdiction where
proposed intrastate flights were at issue. In Braniff, the carrier
had filed an application for a Declaratory Order seeking to dis-
claim the Board’s jurisdiction over a proposal to carry passengers
wholly intrastate for free. Braniff argued that neither interstate
air commerce nor interstate air transportation was affected and
the Board was therefore without any regulatory jurisdiction. The
C.A.B. flatly rejected this position and held:

The Board has concluded that the proposed service con-
stitutes air transportation within the meaning of the
Act, and accordingly it will deny the application for
disclaimer of jurisdiction. The factors which determine
whether Braniff’s proposed operation is intrastate or
interstate transportation are the essential nature of the
movement and the character of the traffic... .

Admittedly Braniff is a common carrier in the services it
operates over its certificated routes, including points
within the State of Texas, and also holds itself out to
perform common carriage service between all points for
the transportation of persons and property on a charter
basis. .. .

On the basis of the matters set forth in the application,
particularly the geographical area of the prenosed oper-
ations and the alleged benefits which will accrue to
Braniff's common carriage operations, it is concluded
that the proposed tour is within the scope of Braniff’s
holding out as a common carrier and constitutes com-
mon carriage.

Braniff Airways, 40 C.A.B. 887, 888 (1964).

In the case sub judice, Air Carriers Express Services, Inc.
was not only a registered operator, but its registered geographical

4

limits also included the entire United States, Canada, Republic of
Mexico and the Bahama Islands. Moreover, the nature of the
operation at the time of the crash was within the scope of the
carrier’s operation, i.e., flights advertised and conducted through-
out the United States involving parachuting.

Further support for Petitioners’ Petition is found in Admin-
istrator v. Ferguson, N.T.S.B. Order No. EA-1822 (1982). At
issue were charges against a pilot for air taxi flights in air com-
merce with passengers for compensation or hire to and from
Tyrell, Texas without a Part 135 certificate. The N.T.S.B. easily
decided the question of whether the flight constituted interstate or
intrastate commerce, noting:

Respondent first argues that these flights were not ‘air
commerce’ which is defined in the Federal Act as inter-
state, overseas or foreign air commerce or the transpor-
tation of mail by aircraft or any operation or navigation
of aircraft which directly affects or may endanger safety
in, interstate, overseas or foreign air commerce. The
intrastate nature of those flights however, does not
mean that the safety regulations promulgated and
enforced by the FAA are not applicable. It is well settled
that the FAA’s authorities have been broadly construed
to extend to such flights because of their safety impact
on interstate commerce.

N.T.S.B. Order No. EA-1822

The Respondent has relied heavily upon the case of Dower v.
United Airlines, 329 F.2d 684 (9th Cir. 1964), for the proposition
that purely intrastate flights are exempt from the Economic Reg-
ulations. A close reading of that case, however, reveals that the
complaint in Dower failed to allege that the flight was interstate.
The court noted that there was nothing in the record to demon-
strate that the flight was “interstate.” Hence the court simply
directed the plaintiff to amend the petition to allege that the flight
was interstate. When the plaintiff, for some unknown reason,
refused to amend, the court dismissed the petition. Factually and
procedurally, Dower is inapposite to the case at bar. Moreover,

8

Dower pre-dates enactment of the liability insurance requirement
under Part 298 of the Economic Regulations which relates to
charter operators. Also, it does not appear that Dower would be
followed today.

Conclusion

The Georgia Court of Appeals erred in refusing to acknowl-
edge that a local flight can be “interstate” for purposes of the
interstate commerce clause and the applicability of 14 C.F.R.
§298 et seq. The test employed by the Georgia Court of Appeals
was strictly geographical, i.e., was the flight to begin and end
within the confines of the State of Georgia? The fact that the
flight was conducted by a registered air carrier and affected inter-
state commerce was not a consideration.

This is not a case where the Petitioners are burdened with
having to contend with whether the operator should have regis-
tered with the C.A.B. in order to conduct the accident flight. This
is a case where Air Carrier Express Services, Inc. in fact regis-
tered with the C.A.B. as an air taxi operator engaged in air
transportation, and in which the Respondent issued a policy of
insurance in compliance with, and subject to, the Economic
Regulations.

It is not difficult to understand why Air Carriers Express
Services, Inc. came to the conclusion that it was an air taxi
operator and that its operation was interstate in nature. This
carrier used the means and instrumentalities of interstate com-
merce in the conduct of its operation. It not only advertised flights
in a variety of national and international publications but it actu-
ally carried passengers for compensation or hire in interstate
commerce. There was in fact a passenger on board the fatal flight
who had flown into Georgia from out-of-state for the purpose of
sport parachuting. The aircraft routinely operated between
Peachtree-DeKalb Airport in Atlanta, Georgia and states
throughout the United States for the purpose of sport parachut-
ing. The policy of insurance was given pursuant to regulation for

SE SEEM S55 jh SOAR:

SR

9

the benefit of the public and should be interpreted subject to such
regulations.

For the foregoing reasons, Petitioners respectfully request
that this Court issue a Writ of Certiorari to review the decision of
the Court of Appeals of Georgia to the extent it holds that an
intrastate (local) flight conducted by a federally certificated air
carrier within the scope of its certificate is not subject to the
mandatory insurance requirements of Part 298 of the Federal
Aviation Regulations.

This day of September, 1988.

WARREN CANDLER FORTSON

JOHN ALLEN HOWARD
OF COUNSEL
Fortson and White
300 Atlanta Financial Center
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326
(404) 239-1900

DONALD ROSS ANDERSEN
OF COUNSEL
Donald Ross Andersen
Suite 200 Hollowbrook Court
1479 Brockett Road
Tucker (Atlanta), Georgia 30084
(404) 939-0888

10

WILLIAM C. LANHAM, JR.
OF COUNSEL
Lanham & McGehee, P.C.
2100 Equitable Building
100 Peachtree Street, N.W.
Atlanta, Georgia 30303-1962
(404) 524-5626

NICHOLAS C. MORAITAKIS
OF COUNSEL
Gorby, Reeves, Moraitakis &
Whiteman, P.C.
Harris Tower, Suite 2200
233 Peachtree Street, N.E.
Atlanta, Georgia 30343
(404) 527-4340

APPENDICES

APPENDIX A
SEPTEMBER TERM, 1987. (185 GA. APP.)

75040. HOWELL et al. v. UNITED STATES FIRE
INSURANCE COMPANY.

75041. PRUITT et al. v. UNITED STATES FIRE
INSURANCE COMPANY.

75042. WILSON et al. v. UNITED STATES FIRE
INSURANCE COMPANY.

75043. YIN v. UNITED STATES FIRE INSURANCE
COMPANY.

75044. BOLAND et al. v. UNITED STATES FIRE
INSURANCE COMPANY.

75045. AIR CARRIERS EXPRESS SERVICES, INC. et al. v.

UNITED STATES FIRE INSURANCE COMPANY.
(363 SE2d 560)

CARLEY, Judge.

On September 29, 1985, a Cessna 208 Caravan aircraft
carrying a pilot and sixteen parachutists crashed shortly after
take-off. All seventeen persons on board were killed. The aircraft
was owned by appellant-defendant Air Carriers Express Services,
Inc. (ACES). Appellee-plaintiff insurer had issued a policy which
provided coverage to ACES for damage to the aircraft and for
liability resulting from its operation. Appellee initiated this
declaratory judgment action, naming as defendants appellant
ACES and the appellant-administrators of the estates of
Mr. Steven Wilson, the pilot of the aircraft, and of Mr. David
Williams, the president of ACES. The remaining appellant-
defendants sought and were granted permission by the trial court
to intervene in the action as personal representatives of four of the
parachutists killed in the crash.

In its petition, appellee sought, insofar as it is relevant to
these appeals, a declaratory judgment to the effect that there
existed no insurance coverage for the crash and that it had no
duty to defend any civil action arising from the crash. Although

2a

appellee’s petition stated several grounds for its denial of cover-
age, it moved for partial summary judgment based only on the
ground that the pilot, Mr. Wilson, did not meet the terms and
conditions set forth in the “open pilot provision” of the policy
declaration. Appellants in case nos. 75040, 75041, 75043, and
75044 filed their own cross-motions for summary judgment
against appellee. The trial court granted appellee’s summary
judgment motion and denied the cross-motions for summary
judgment against appellee. Appellants filed separate appeals
from the order of the trial court granting summary judgment in
favor cf appellee. The resulting six cases are hereby consolidated
for disposition in this single opinion.

1. Appellants first urge that, pursuant to certain provisions of
federal aviation law, appellee has bound itself to provide cover-
age. However, the provisions of federal law upon which appellants
rely apply only to interstate flights. If the possibility exists that air
transportation services will cross state lines, then the air carrier
must secure “liability protection for bodily injury and property
damage in the event of such interstate travel and to avoid [fed-
eral] sanctions. . . . [The air carrier is required to be in] com-
pliance with [federal] requirements for any air taxi service where
interstate operations may be involved.” (Emphasis supplied.)
Coren v. Puritan Ins. Co., 184 Ga. App. 667, 669 (2) (1987).
That the fatal crash in question was an intrastate flight is uncon-
troverted in the record. Therefore, the issue of the extent to which
coverage would be afforded must be determined on the basis of
the policy as interpreted by applicable Georgia law. See Coren v.
Puritan Ins. Co., supra at 669 (2).

2. Appellants contend that the appellee is bound by the pilot
clause language which appears on the binder form issued to
ACES rather than that which appears in the policy. “A binder is a
contract of insurance in praesenti; temporary in its nature,
intended to take the place of an ordinary policy until the same can
be issued. It is a short method of issuing a temporary policy for
the convenience of all parties, to continue, unless sooner canceled,
until the execution of a formal policy . . . ‘[A binder is] . . .

3a

itself a contract — temporary, sketchy, and informal, but a con-
tract notwithstanding. [Cit.] Usually it fixes the term and cover-
age of the policy, but by express reference leaves the details of the
contract to the latter. [Cits.] Hence as to such details the contem-
plated policy rather than the binder is the determinative docu-
ment.’ [Cit.]”’ (Emphasis supplied.) Fort Valley Coca-Cola Co. v.
Lumbermen’s Mut. Cas. Co., 69 Ga. App. 120, 124 (24 SE2d
846) (1943). See also Cincinnati Ins. Co. v. Stuart, 139 Ga. App.
80, 81-82 (1) (227 SE2d 771) (1976).

Appellants urge, however, that the binder form was, in fact,
itself a policy of insurance rather than a mere binder. In one place
on the original form the following appears: “binder No.
However, the word “binder” had been stricken and the term
“assigned policy” inserted in its place, so that the form read:
“assigned policy No. ” As the result of this alteration,
appellants contend that the binder was itself a formal policy and
that the pilot clause typed on the binder form was therefore a
policy provision which could not be changed without the consent
of the insured. See Broome v. Mut. of Omaha Ins. Co., 119 Ga.
App. 443, 446 (2) (167 SE2d 607) (1969).

However, the alteration did not purport to change the very
nature of the document from a temporary binder to a formal
insurance policy. On its face, the document is clearly shown to be
a mere temporary binder rather than a formal insurance policy,
and this is made manifest by its language, including among
others, the following reference: “[u]nless this binder is replaced
by the issuance of policy. . . . ” (Emphasis supplied.) Since a
formal insurance policy was issued before the crash of the air-
craft, it is the language of the pilot clause in that formal policy
which controls. Compare /nternational Indem. Co. v. McKeever,
174 Ga. App. 871 (331 SE2d 909) (1985) (holding that where the
incident giving rise to the claim occurs before the policy is issued
the language of the binder controls). Accordingly, whether or not
the language of the pilot clause in the binder was ambiguous or in
conflict with the language of the policy are issues which need not
be addressed.

4a

3. On the date of the crash, the pilot clause of the policy
declaration stated as follows: “PILOT CLAUSE: Only the fol-
lowing pilot or pilots holding valid and effective pilot and medical
certificates with ratings as required by the Federal Aviation
Administration for the flight involved will operate the aircraft in
flight: 1. Pilots who must have a commercial or airline transport
certificate with an instrument rating and a minimum of 2000
logged pilot hours of which 250 hours have been in turbine air-
craft and are graduates of the ground and flight training school
conducted by the manufacturer or an entity under contract to it
for the [Cessna 208 Caravan] aircraft . . . otherwise Tom
Beaudrot. 2. A two person crew consisting of: A. Pilot in com-
mand: [same as | above]. B. Co Pilot: David Williams.”

“A provision in the policy that the aircraft should be piloted
only by the named insureds or a qualified private or commercial
pilot with a minimum of 200 logged hours as a pilot in command
of aircraft, 10 hours of which must have been in a Cessna 172 or
aircraft of similar type, and who has a valid and effective pilot
certificate with proper rating as required by the Federal Aviation
Agency for the flight involved, is a valid and binding one.” Grig-
sby v. Houston Fire &c. Ins. Co., 113 Ga. App. 572, 573 (2) (148
SE2d 925) (1966). See also Ranger Ins. Co. v. Colum-
bus-Muscogee Aviation, 130 Ga. App. 742, 745 (4) (204 SE2d
474) (1974) (holding that where the pilot of the plane at the time
of the crash did not possess a valid medical certificate as required
by the “Pilot’s Clause” summary judgment for the insurer was
mandatory); see also Atlanta Air Fleet v. Ins. Co. of N. America,
130 Ga. App. 15 (202 SE2d 192) (1973) (upholding the validity
of a “Pilot’s Clause” requirement that the pilot in command be
properly certificated and rated for the particular aircraft). In the
instant case, the policy requirement that pilots must be graduates
of the manufacturer’s ground and flight training school is valid.
Such a provision, like those previously held to be valid, “had an
obvious relation to the degree of risk or hazard assumed by the
insurer....” Atlanta Air Fleet v. Ins. Co. of N. America, supra at
16.

Sa

Appellants urge that this requirement is void because no
manufacturer's flight school existed from which a pilot could
graduate and, therefore, the requirement could not be met. How-
ever, the record shows that the manufacturer did operate a
pilot-training program under the name “Caravan I Flight Crew
Training,” which program was designed to provide training for
the type of aircraft in question. It is also clear from the record
that “Caravan I Flight Crew Training” was the on/y ground or
flight training for the particular make and model of aircraft that
was Offered by the manufacturer, and that there was no other
entity under contract to the manufacturer to provide such train-
ing. Accordingly, it is clear that “Caravan I Flight Crew Train-
ing” was ‘the ground and flight training school conducted by the
manufacturer or an entity under contract to it for the [Cessna 208
Caravan] aircraft” referred to in the policy declarations.
(Emphasis supplied.) At least two of the pilots employed by
ACES were graduates of the “Caravan I Flight Crew Training”
course. However, Mr. Steve Wilson, the pilot of the aircraft at the
time of the crash, had not attended that training program and was
not a graduate thereof. That actual flight training may not have
been a mandatory part of the curriculum of the “Caravan I Flight
Crew Training” does not obviate the fact that it was rhe manufac-
turer’s ground and flight training school for the particular air-
craft. The pilot clause of the policy requires graduation from the
manufacturer’s ground and flight training school, and it does not
expressly require that there be a specified amount of either
ground training or flight training. Rather, the pilot clause leaves
the requirements for graduation or certification to the manufac-
turer of the aircraft.

The fact that there were employees of ACES who were
graduates of the manufacturer’s only flight crew training pro-
gram for the make and model aircraft involved in the crash
negates appellants’ argument that the pilot training requirement
of the pilot clause of the policy was void because it could not be
satisfied. Accordingly, the trial court did not err in granting sum-
mary judgment in favor of appellee in that it was established that,
in violation of the pilot clause of the policy, the pilot at the time of

6a

the crash was not a graduate of the manufacturer's ground and
flight training school.

4. Appellants in case nos. 75040, 75041, 75043, and 75044
enumerate as error the denial of their cross-motions for summary
judgment. However, in light of our holding in Division 3 that the
trial court did not err in granting summary judgment in favor of
appellee, it follows that the trial court did not err in denying these
appellants’ cross-motions for summary judgment.

These appellants also enumerate as error the trial court's
denial of their motions to compel discovery of the investigatory
file prepared by Aviation Office of America (AOA) following the
crash. The trial court made specific findings that AOA was the
agent of appellee, and that AOA’s investigatory file was prepared
in anticipation of this litigation. The trial court’s order also recites
ample evidence to support its finding that the requested material
comes within the ambit of OCGA § 9-11-26 (b) (3), and the trial
court correctly held that discovery of such material could not be
had in the absence of a showing of substantial need and undue
hardship. See Tobacco Rd. v. Callaghan, 174 Ga. App. 539 (330
SE2d 768) (1985); Warmack v. Mini-Skools, 164 Ga. App. 737,
738-740 (2) (297 SE2d 365) (1982); Georgia Inti. Life Ins. Co. v.
Boney, 139 Ga. App. 575, 580-582 (3) (228 SE2d 731) (1976).
The trial court’s finding that appellants had “not made such an
affirmative showing of need” is not clearly erroneous, and there-
fore, the denial of the motion to compel discovery was not error.

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7a

Judgments affirmed. Banke, P. J., and Benham, J., concur.

DECIDED NOVEMBER 2, 1987 —
REHEARING DENIED DECEMBER 2, 1987 — CERT. APPLIED

FOR.
Action on policy. Fulton Superior Court. Before Judge

Langham.
John A. Howard, for appellants (case no. 75040).
William C. Lanham, Clark H. McGehee, for appellants

(case no. 75041).
Gregory T. Presmanes, James G. Jackson, for appellants

(case no. 75042).
Nicholas C. Moraitakis, for appellant (case no. 75043).
S. Phillip Brown, for appellants (case no. 75044).
John W. Henderson, Jr., H. Brian Sams, for appellants

(case no. 75045).
Sewell K. Loggins, John J. Wiles, for appellee.

8a
APPENDIX B

IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA

UNITED STATES FIRE
INSURANCE COMPANY,

Plaintiff,

CIVIL ACTION

V.
AIR CARRIERS EXPRESS SERVICES, FILE NO. D-27263
INC., JOHN WALTON HENDERSON,
Administrator of the Estate of
David L. Williams and
LOUIS LEVENSON, Temporary
Administrator of the Estate of
Steve Herbert Wilson, et al.,

Nm me ee ee ee

Defendants.

ORDER GRANTING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

This matter is presently before the Court on cross motions
for summary judgment of the plaintiff and of the defendant,
Estate of Rodney L. Howell.

The issues have been briefed and argued to the Court. After
a thorough consideration of the briefs, arguments and the entire
record (except for the affidavit of W. R. Scott which was not
considered), the Court enters this order.

The Motion for Summary Judgment of defendant Estate of
Rodney L. Howell is denied.

The Motion for Summary Judgment of plaintiffs is granted.

ere = ME re ot

9a

It is hereby ORDERED and adjudged that United States
Fire Insurance Company has no coverage under policy number
700AC-32-US-57005 for the accident of September 29, 1985 as
to any of the defendants: and that United States Fire Insurance
Company has no duty to defend any civil actions arising out said
accident or to pay any judgment which might be rendered against
defendants or any of them; and that United States Fire Insurance
Company has no duty to pay defendant Air Carriers Express
Services, Inc. or John Walton Henderson, Administrator of the
Estate of David L. Williams for any sums alleged to be due for
damage to the aircraft in question as a result of the accident of
September 29, 1985.

SO ORDERED, this 28th day of January, 1987.

/s/ Don A. Langham

DON A. LANGHAM, Judge
Superior Court of Fulton County

Copies to:

Sewell K. Loggins, Esq.

MITCHELL, LOGGINS,

CAMPBELL &
ELSBERRY, P.C.

One Lakeside Commons
Suite 400

990 Hammond Drive

Atlanta, Georgia 30328

S. Phillip Brown, Esq.
BROWN, KATZ,
FLATAU & HASTY
355 Cotton Avenue
Macon, Georgia 31201

Louis Levenson, Esq.
990 Edgewood Avenue, N.E.
Atlanta, Georgia 30307

John W. Henderson, Jr., Esq.
MOFFETT &
HENDERSON, P.C.
1916 Piedmont Road, N.E.
Atlanta, Georgia
30324-4187

10a

John A. Howard, Esq.
FORTSON & WHITE

300 Atlanta Financial Center
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326

Ncholas Moraitakis, Esq.
GORDY, REEVES,
MORAITAKIS,

& WHITEMAN, P.C.
P.O. Box 56690
Atlanta, Georgia
30343-0690

James G. Jackson, Esq.
HINES & LOWENDICK
600 Peachtree

Palisades West

1800 Peachtree Street, N.W.
Atlanta, Georgia 30309

lla
APPENDIX C
CLERK’S OFFICE, SUPREME COURT OF GEORGIA
ATLANTA: January 21, 1988

Dear Sir:

Case No. 45318. ROBERT E. HOWELL, ET AL. v.
UNITED STATES FIRE INSURANCE COMPANY, ET AL.;
Case No. 45319. HERBERT WILSON, ET AL. v. UNITED
STATES FIRE INSURANCE COMPANY, ET AL.; Case No.
45320. AIR CARRIERS EXPRESS SERVICES, INC. v.
UNITED STATES FIRE INSURANCE COMPANY

The Supreme Court today granted the writ of certiorari in
this case. All the Justices concur, except Marshall, C. J. and Bell,
J., who dissent.

THIS CASE WILL BE ASSIGNED TO THE MARCH
1988, ORAL ARGUMENT CALENDAR.

The Court is particularly concerned with the following:

Is there a conflict between this case and Coren v. Puritan
Ins. Co., 184 Ga. App. 667, cert. den. (1987)? If so, how should
the conflict be resolved and how does the resolution affect the
insurance in this case?

Briefs filed in the Court of Appeals are included in the
record presented to this court. Additional briefs are not required
but may be submitted.

Very truly yours,
JOLINE B. WILLIAMS, Clerk

12a
APPENDIX D
In the Supreme Court of Georgia

Decided: May 4, 1988

45318. HOWELL v. UNITED STATES FIRE
| INSURANCE CO.

45319. WILSON v. UNITED STATES FIRE
INSURANCE CO.

45320. AIR CARRIERS EXPRESS SERVICES, INC. v.
UNITED STATES FIRE INSURANCE CO.

PER CURIAM.

After plenary consideration of this matter (Howell v. U.S.
Fire Ins. Co., 185 Ga. App. 154 (1987)), it is found not to satisfy
the criteria for the grant of certiorari, and the writ is therefore
vacated.

All the Justices concur.

l3a

APPENDIX E
CLERK’S OFFICE, SUPREME COURT OF GEORGIA

ATLANTA: June 22, 1988

The motion for a rehearing was denied today:
Case No. 45318, 45319, 45320, Howell, Wilson, Air Carriers
Express Services, Inc. v. United States Fire Ins. Co. et al.

Yours very truly,
JOLINE B. WILLIAMS, Clerk

l4a
APPENDIX F

Part 298 Title 14—Aeronautics and Space

Chapter II—Civil Aeronautics Board

§ 298.1 Applicability of part.

This part establishes a classification of air carriers known as
“air taxi Operators,” provides certain exemptions to them from
some of the economic regulatory provisions of Title IV of the
Federal Aviation Act and specifies procedures by which such air
carriers may obtain authority to conduct operations, and estab-
lishes rules applicable to their operations in air transportation in
all States, Territories and possessions of the United States. !

§ 298.2 Definitions.

(b) “Air taxi operator” means an air carrier coming within
the classification of “air taxi operators” established by § 298.3.

(c) “Air Transportation” means interstate, overseas, or for-
eign air transportation or the transportation of mail by aircraft as
defined by the Act.

§ 298.3 Classification.

(a) There is hereby established a classification of air carri-
ers, designated as “air taxi operators,” which directly engage in
the air transportation of persons or property or mail or in any
combination of such transportation and which:

| Footnote Omitted

1Sa

§ 298.21 Filing for registration by air taxi operators.

(a) Every air taxi operator (whether or not he is also a .
commuter air carrier as defined in this part) who plans to com-
mence operations under this part shall register with the Board not
later than 30 days prior to the commencement of such operations,
unless, upon a showing of good cause satisfactory to the Director
of the Bureau of Pricing and Domestic Aviation, registration
within a lesser period of time is allowed.

§ 298.37 Prohibition of services not covered by insurance.

An air taxi operator shall not operate in air transportation or
provide or offer to provide air transportation unless there is in
effect liability insurance which covers such transportation and
which is evidenced by a current certificate of insurance on file
with the Board as required by Subpart E.

§ 298.41 Basic requirements.

(a) Each air taxi operator engaging in air transportation
shall maintain in effect liability insurance coverage which com-
plies with the requirements of this subpart and which is evidenced
by a currently effective policy of insurance, with an attached
standard endorsement, available for inspection by the Board and
the public at its principal place of business. Evidence of such
insurance coverage, in the form of a certificate of insurance, shall
be maintained on file at the Board at all times.

l6a
CERTIFICATE OF SERVICE

I, Warren Candler Fortson, hereby certify that I have a
served three true and correct copies of this Petition for Writ of
Certiorari, by hand, before the time of filing with the Clerk of this
Court upon:

Sewell K. Loggins
Mozley, Finlayson & Loggins
1800 Coastal States Building
260 Peachtree Street, N.W.

Atlanta, Georgia 30303

I further certify that all parties required to be served have
been served.

This day of September, 1988.

WARREN CANDLER FORTSON

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0152%3A1. Public record. Not legal advice.