by way of very brief background is i assume you're all familiar with the background he's arises out of a mini or crash that took place in iraq springs wyoming but we know a cessna skyhawk and a cirrus sr twenty two forth the issue that we're faced with is whether mr birch in reading that skyhawk or frankly relation wasn't insured under the home or policy that was purchased by franklin issued franklin and for the purpose of protecting renting aircraft correct as well as instructing individuals to learn how to fly the aircraft absolutely so both those business interests are course of its in the course of conducting its business that is absolutely correct and that's where we get to the what pursue the scope of coverage for sprite news ensured right the purpose is not only cover franklin but also any permissive user of the aircraft including incidentally student pilots who are permissive users and not renting such as lying and maybe taking flight lessons about anything let me ask you this i went with you because you brought up student pilots not renting you know paul and flight instruction many f b o was unfair to him their own structures and his outside instructors they're primarily in the business of running the aircraft i don't think the issue turns on that nope addicted dime did he paid to to rent the aircraft or did he pay to be instructed on the i think the unrefuted record in the case establishes that he both read that the aircraft and paid for flight out well welcome on you can't be instructed on the be the student pilot would not be insured under the pilot under the policy even in that scenario what we find is typically in the have scenario there isn't going to be a rational claim against the student pilot for which the student pilot would require if an accident occurs midair with under where the student pilot and an instructor hired by franklin or employed by franklin would there be coverage under the hallmark policy we don't like point is this that it seems to me that under the policy under the terms of the policy if an accident in midair or curse hallmarking will defend  student pilot instructor pilot lawyer sued arising from that mid air collision the student pilot again least in my experience command the pilot in command in this case was on the ground as opposed to in the aircraft with him with the deceased why does that make a difference and why doesn't that at the very least give rise to an ambiguity in the policy because the policy doesn't seem to exclude student pilots even when they're flying solo so long as there are no passengers in the  aircraft you actually have a couple different things there if i may respond when a student pilot with solo privileges is in the aircraft alone the student pilot is the pilot in command even if there is an instructor on the ground instructor on the ground can't see the anybody providing numeration to the named insured anybody who's writing just like somebody running a car yes they have their own interest they are not covered under this policy whether the instructors in the airplane on the ground some student pilots never get certified why for years circuit court judge certainly didn't agree with that that it that's a fair i disagreed with judge martin i continue disagree with judge martin read it is pretty simple to figure out if somebody renting an aircraft particularly simple here w a renter and and i think that the the my question is that the problem arises from fact that the policy says that  anybody did you insured anyway that you left why this plane is to be conquered and then it says except student pilots won't be covered if there's a passenger so my question is i guess to passenger or somehow license or whatever my question is when you say student pilots won't be covered if there's a passenger isn't it implying at least that a student pilot flying without a passenger w franklin will be covered for its low ability with the student pilot flying aircraft provided the franklin doesn't allow that student to take a pass and here it is school of coverage franklin is renting aircraft franklin is allowing students to fly aircraft franklin is allowing students to show up with so little privileges in the airplane on their home it is imperative that franklin under this policy now lower level students to bring one of their friends because then franklin will not be covered the policy does not say anything about a student pilot being covered as long as they don't carry a passenger have various certifications airline transport student recreational commercial policy does not unreasonably could not identify every category of pilot you're either a licensed pilot or you are not a student pilot license pilot with restrictions sometimes student pilots write aircraft for years without ever becoming certified they are still running the aircraft and they have no more expectation to be insured by the f b o as policy than we would have to expect to be insured by the insurance company that insures a rental car company the policy is simply not that product doesn't provide that coverage but the scope of coverage the provision the policy to talk about what is covered still have to address  instruction and what activities involving students would not be covered and in their brief the pelleas argue that you can see from the policy that there is no intention to cover student pilots i couldn't agree more there is provided the student pilot is not renting the aircraft and we typically see so how do you distinguish that situation well we typically see situations fixed they separators and own aircraft use the airplane airplanes that they read for their own personal use as well they loan them to friends that let their employees use them the concept into the policy is that your commercial customers the people who are running are not covered if one of your line is a student pilot hitting free instruction in the plane with your permission that's a different scenario that's within their control in terms of the risk assessment of the named insured that's cover it's simply somebody who is renting the aircraft they're not covered there's a different segment there's different product in the market to cover that which is renters insurance and the what i would back to my original question i considered the situation where you have a student pilot along with an instructor pilot in the air france seat and and you say that that frankly would be covered down or you or your policy could be covered could be sought under your policy if an accident happens i'm not talking about suing the student pilot i'm just talking about coverage under your policy that it could  covered under those situations i'm going that situation where you know it negligent you know out somebody to go up in the year that shouldn't have been allowed to go up in the air so i presume the franklin would be covered in such a scenario that  they're renting to commercial customers who are third parties to the insured presumably may not have as much control over but my question is is how do you draw that line when you when you have a situation where someone is taking fli lessons from this f b o and you know it was flying around with a flight instructor in the play with them and then as part of his it structure one day it's they say ok now it's time for you to fly solo i'll be on the ground i'll be talking on the radio you go fly solo how was your difference under the policy you know when he's in the plane with the instructor student pilots are made aware when they start flight training be careful get runners policy because they'll step against you if you're in the airplane something happens now you free to blame struck her for not reading the controls in time well then they're sure the super hit against you in  case law force discusses the broader duty to defend me narrower duty to indemnify and usually my understanding anyway is that those are separate questions and you really generally don't have to get to indemnification until a duty to defend has arisen or the duty to defend has been forfeited by failing to defend when the opportunity to but but has the underlying cause of action actually come to a conclusion and and to the extent that liabilities been imposed upon the truly culpable party here including believe he's unsure then come out and tell us why he's not a runner pilot and tell us why he's not sure and that isn't what they lead with this isn't the four corners case we didn't have a duty to defend because this person clearly and unequivocally does not come within the definition of who is a protected person under a and can be cuties simply and they really can't correct me if i'm wrong they didn't really have to file a summary judgment motion claim to give a date they could simply have filed a response to your summary judgment motion saying  you're not entitled to a judgment as a matter of right because the policy is ambiguous and to the extent authentic it was the only way to resolve that ambiguity is by a resolution of the deck  role of a student pilot that ends it either because they're covered or because there's an ambiguity in the sense that he's certainly paid for the use of the aircraft to fly and whether there's a dispute i mean there's a difference between those two positions that you've just declared give rise to the conclusion that coverage exists i think either way around or there would be coverage either if it's ambiguity you have to read the policy paper coverage if student pilots are covered in their cover so either way those companies do that's that's the other question i have because it it doesn't seem to make sense to me that he would be alone if so facto results in coverage it simply results in ambiguity and then you have to have a trial or some sort of resolution of in terms of if taking it in the light most favorable to the insured as opposed to the sure that you can reach you can conclude that coverage exists but it's also possible that you coverage even reading the clauses that is being ambiguous nonetheless can he forces a conclusion that down the coverage doesn't exist i think there's another rule that comes into play with what you just said rather that is that you're to look at these exclusions narrowly against the drafter of the policy which in this case is homer so if you take those two rules into play there should be a finding of coverages just martin found below because if we're talking about the only thing they've raised is one exclusion and that then let's go back to your original point which is you say one side hallmarked acknowledges that the deceiving was a student pilot coverage necessarily follows by what they're saying is that coverage i mean their policy provides coverage or frankly for the student policy first student pilot but it does not provide coverage to this student pilot i directly a suit distinguishes between student pilots and renter pilots in many places in the palace ok and so under that now in reality there's obviously a difference in reality between somebody who shows up to hop to franklin aviation says i want to go fishing in the north woods and rents an nothing to do with franklin and says i want to we want to take the aircraft up why is it that student pilot admittedly a student why is it that student pilot and middle eastern pilot why isn't black white why wouldn't that individual or those two individuals be treated as a renter pilot when franklin has nothing whatsoever to do with the instruction itself that person judge will be excluded under three day because this they're talking about other evasion business activity so if you have another instructor with you then you're excluded under that provision ok here obviously we don't have that side of that if we give me but but because of his conduct that's what section or three of their policy talks so that that's just the certainly protecting franklin aviation but this provision the section specifically discusses we're going to protect other people too because of their negligent conduct and program and so i think you know they've cited the the aviation insurance industry to say that this would blow up the industry if the court reaffirmed judgments the session but i think you have to look at the fact that they've known about this case for forty years and they've change their policy for some reason because of whatever reason that maybe and in the way the system is set up here you have to construe their policy against them and that's exactly just martin understood the law and that's why he found that to be covered well because he because if they if they didn't mean to cover student pilots they wouldn't have had to have a definition of a student pilot it would've had to have this separate exclusion referencing student else you would just say rec covers everything but they did include the definition of a student pilot but you earlier sat that a student pilot that brings his own instructor under the policy is not truly a student pilot under the policy because it falls under other business here under three a right under three a but he lived at the site but it but he is a student pop so white white white can you exclude a student pilot when he brings his own instructor and yet claim that a student pilot when he's under the guidance of franklin  your own instructor that scenario is covered under three a but he's still a student pilot grant scenario right yes absolutely but he's not covered but he would be the the student pilot would be covered under any scenario under the way this policy is set up to your point about the reason why they have the finest student pilot and i think as i understand hallmark response it would be well the reason why we have to define what a student pilot is is because they had affects the scope of coverage under the what is covered section of the policy in terms of what we are going to cover the f b o for and student pilots are involved and so if they actually really answer i'll give you the opportunity to rebut the ad because if that's their answer then we have to go back to the original who is covered section and they ask you where is the the coverage is again it's in the broad language of the coverage provision it's in and then you have to look at the policy as a whole and they want to pigeonhole him as a state as a rancher pilot but the problem they have is that the powers see contemplate thought i thought he said i thought he sat franklin would be covered with a student pilot but the pilot himself would not be well and you're seeking what you're seeking to impose life villany not through franklin but i'm sorry if i misread that i'm sorry for that but it's the problem that argument though frankly is the broad scope of coverage ok anybody who's flying a plane with their permission is covered unless there's an exclusion that applies in the issue bel me issue for this court here is when you look at the policy is a whole can you say that it's clear that student pilots are not covered it's the only way you can find no coverage in this case i believe is to say this policy unless there's any more questions i think that hallmark is going to get up and say the term student pilot has no relevance to the question of who is coming that's what they're going to say but but if you look at the policy th both instruction and rental those are two separate concepts under this policy so it isn't like we just say rental we don't care if you're talking about running into a licensed pilot or student pilot that's already under this policy instruction and in rental are separate and distinct uses for this aircraft and that's contemplating the house so all of these things are what led judge martin to sim but it looks to me like student pilots are covered they have never taken a pilot down i can't say for sure but when there is no no one in the aircraft and in the student pilots flying solo the wrist seems to be a greater then when the instructors in the pool in the plane with that student pilot and so to that extent you know and the trance policy would try to exclude that risk because you don't you can't control tho that's but but you would you would presumably in that scenario sue franklin and not just the student pilot and to that extent you have to have allegations of negligence on the part of franklin  franklin is saying they did sue us they only sue the pilot and to the extent that the pilot is solely responsible for his own conduct while in the plane home arts policy doesn't cover it but that the question is wh assume franklin aviation that's above my pay grade i don't know why exactly you got it but if the question is a risk assessment it makes sense frankly from our standpoint that the risk of you the same because of the risk that they're insuring is somebody that they train  all of the estates of the people who died of this are dishonest they tendered the defense to homer and hallmark instead of defending the claim decided unilaterally based upon explains extrinsic evidence and relying upon a clause in an insurance policy that at least one judge just terminus and they view us that we're not going to defend they flatly denied a defense and under that law everywhere especially illinois that's a breach of the duty to defend and once they reach their duty to defend timely fashion they breach down forever and and and does that does that really lead to a i'm a full blown out breach when and immediately thereafter attack is filed they want to terminate their duty defend that happens after the dec action is filed and they can terminate the duty to defend if it we can but it doesn't it's not defined by the idea that you can satisfy your defense obligation by suing your insure use the airplane they're not a ranter they are a student pilot and they would be covered up i heard the comment that exclusions should be narrowly construed it's absolutely correct however we're talking about who is an insured we're not talking about the exclusions on the policy so either the student pilot here was insured or he was not we're not seeking to apply an exclusion i heard the comment the policy distinguishes between writer and the student where where does it do they have thoughts about student pilots in the finds them the talks about rent or pilots and defines them where does it stinks between the two i don't see that i'm i heard counsel say that nobody can say that this person is not a renter i should be with their i heard the question asked also does not intend to cover students why do we have an exclusion regarding students well franklin is running a flight school i suspect that if you had read a policy without referencing students anywhere in the coverage for franklin  may file or it may defend under reservation of rights or it may deny it and file of the clerk very judgement action we picked option three to be on the safe side i'm not sure why the implication is that he simply the knight in walked away also foot used to preclude an insurer from raising a policy defense which many practitioners fail to appreciate is different from the existence or nonexistence of coverage under the coverage grant so you're absolutely correct then and in this case we're