this record felt constrained by the two cases cited by the insurance company in this in this matter with respect to the interpretation of the statute however i think she took too narrow a view of was under instrument rating requirement right that's correct so the only real question is whether this is a user operational anthro cal and right suggest that it was a  as a requirement for instrument ratings that's used that's used by almost any standard that i'm aware of insurance treated as treated that way these cases treat it that way the statute and there's no interpretation of that that i'm aware of but i believe that in this instance the category was single engine land which is what he was issued a certificate for i want to give you  where certified for instrument flying i believe there's a rating indication on your certificate that shows you are instrument rated i mean the reality is that a council but to take something extreme if somebody is has a v f r certification to fly a cessna one seventy two and they jump into a seven o seven the takeoff and first tell you they have a problem with that because they want to do their underwriting based upon the certification of the pilot the way the pilot uses something in connection with that certification instrument ratings are required and much of the united states all the time and insurance policies are going to rate the cost of the policy for one thing higher if they're instrument rated because there's a greater risk involved they have a business right to make an underwriting determination motley isn't that what we get and want to hear that california law does not by my reading appear to prohibit that kind of a distinction this pilot god rest his soul did not have an instrument rating it probably cost him his life but he also was not insured to fly in that weather and the insurance company isn't required to make it up to his seat and to his widows and other people because he didn't have private passenger plane flew a passenger jet clearly that would be a violation of the certificate and he was and he went of the end of the used the insurance policy right under the use provisions well with the in violation of the talks about this or does it that he had he didn't say that he had to be rated for the flight there's nothing in the declaration page that the point i'm kind of getting ahead to the other part of the argument but in terms of the statute it doesn't if there's no statutory definition of use of an aircraft and i think under general principles of statutory construction you look at what the plain ordinary meaning of use would be and i think if you did that in reference to standard dictionaries is one means of the term that meaning you'll find that a common definition is used refers to the object and or purpose for which something is used and i think that as i counsel eleven eleven five eighty four and i'm just going to read this to you as does this section does not prohibit the use of specific exclusions or conditions and any such policy which relates to and some for establishing limitations on the use of the aircraft and this particular case he used the aircraft and conditions that required for him to have an instrument rating he did not have an instrument rating it had to do with the use of beer craft taking the common sense plain meaning definition you're talking about doesn't that flow from that language well the difficulty arises here is that if in the district court struggled with this and you see in her opinion and in the transcript is that if you take the definition of used it in interpretation of the use in the context of the statute the california cases that talk about use of the aircraft have to do with something that's unrelated to the pilot they have to do with for instance reusing the aircraft to import marijuana or my understanding  well that's correct you want and that's the other in terms of the context of the statute there is a distinction between as you pointed out between permissible exclusions related to the aircraft and permissible exclusions related to  the other issue raised is whether the flight related exclusion in the policy was conspicuous is required by california law the court of course held that it was i the central premise of the hanes decision the california supreme court's decision he means and that is that the pilot clause in the decorations page is the place where you would look to find any limitations  and the fact that the company would be relying on exclusion for his lack of an instrument rating when in fact the pilot clause did not require him to have an instrument rating so you're insurance agent has it to them and they say thank you very much they don't work out so the reality is here under the case law as i understand it is that if you have something it's such a fine print you really can't figure it out it's hard to understand and it's just this little teeny teeny stuff that maybe one thing that this whole policy is written about the same type it's not particularly difficult to understand the section i'm having difficulty out little pieces of it and say well you know this what if they'd have done it differently we don't understand it but all the rest of it looks exactly the same i just i don't see the distinction of the fact that they had a cross reference  would have been put also excusing would have been to put the policy lower policy limits in the declaration so you're suggesting or it would require that any time a definition is involved or to understand the decorations page you have to ever cross reference to some other part of the the facts in this case are totally undisputed this pilot was a private pilot he was authorized fly this airplane as an insured however he was not authorized to fly under instrument flight rules  flight weather conditions which required an instrument rating there's no dispute i believe that he took off under weather conditions which were way below the visual flight rules minimums and he knew what he was doing he knew he didn't have an instrument clearance and he lost control of the airplane and that's the facts and what we have here is a situation where the pilot estate is asking the insurance company to cover a claim which they did not agree to claim and which they express only declined to claim under the words of the policy there are really only two issues that are raised in an attempt to avoid the plain words of the policy and the plain facts which are not applicability of insurance code for one one five eight four and the other is the conspicuousness of the exclusions i'd be pleased to address them in or in that order for the pilots certification ok the short answer is that we are relying on one one five eight four exception for relating to the use of the airplane it is our position that different i don't know what the ga ga statute is almost word for word the same as a california statute and they had the same provision that you can't have a policy exclusion based on violation of the federal aviation regulations but they have the exception for a use of the aircraft and the georgia case involved a student pilot who took off carrying a passenger which is not authorized under the federal aviation regulations and the georgia court held under that situation that was an impermissible use of the aircraft the georgia court also indicated that they would have upheld the exclusion under the second exception of a georgia specific case citation in mind your honor no and as i say i'm perfectly happy to stand on exception for because the two california cases you're perfectly happy  subject for it's not a question of whether or not he obtained the certification for example we know from the records that mr d and obtain his original policy while he was a student pilot the fact that he was not yet a private pilot did not prevent him from being a named insured or being authorized to operate the airplane within the limits of its pilot certificate however again under the ga case and even carrying a passenger in visual whether he would be using the airplane for impermissible use and coverage would be suspended during that impermissible yes this is an objective standard where the pilot can know before he takes off whether or not the flight is going to be covered let me ask you this question of the this case the airplane single engine land and then it requires additional training additional experience another flight jack another oral another written test to get an instrument rating and so the pilot would get an that's correct he would then be authorized to operate under instrument flight rules assuming he meets the other requirements such as you know minimum equipment aboard the airplane compliance with the air traffic control but he is required to obtain additional training not only to be able to accept and understand in comply with air traffic control instructions but also to operate the airplane solely by reference to instruments and avoid spatial disorientation in the clouds could you address the other side of the equation here in california first code section a level five eight four prohibits denial of coverage based on a quote operational pertaining to instrument flight so for example that would if you carried out to its logical conclusion that would it mean that if an instrument rated pilot were flying and he deviated from his assigned altitude or is assigned route of flight then he would be violating if you could invalidate a policy based on operational rules that in effect you could take away with one hand what you're giving with the other end up with essentially no coverage at all absolutely for example there's a regulation ninety one point thirteen prohibits and so you could almost always some find that a pilot were careless and reckless and that's why he crashed but so in other words what they're saying is once you get in the air if you do something careless or reckless you buzz the house you  wired high speed and don't watch where you're going they're not going to invalidate the policy and they're not going to allow an exclusion which would invalidate a policy based on that operational violation which takes place after you're flying in an otherwise coverage light on the other hand there are objective standards that you can look at which would tell you whether or not the tire flight coverage is going to be suspended for example if you take off the student pilot explosions for example automobiles typically if you're a licensed driver you're going to be covered fly driving anybody's car it's not that way in airplanes the airplane insurers want to know who the pilots are what kind of experience they for example the what i would call the open pilot warning in this case says we will not cover another pilot unless he meets the requirements a thousand hours of total flight time certain amount of time in the airplane so for example an airline pilot with ten thousand hours who has only flown this airplane this type of airplane five always would not be covered unless they get a specific indoors answer seems to be the provisions are distinguishing you distinguish  words they could in fact insist that only mr ganda fly this airplane and that would be a valid exclusion under subsection under exception to exception for the one i think really applies here and if we look at the ga case with a student pilot that's almost directly on point and again i'm not seeing any case where anybody has raised the issue that having taken off for an instrument flight with without an instrument be strictly construed in favor of the insured well once again the california court ruled rather can clearly that when you have a permissible where you have the entire flight is prohibited then that's a valid exclusion and the middlesex case specifically said that but but down to answering my question again aren't aren't insurance statutes like well same reason they say that you know exclusions are strictly construed against the insured but that they also say the insurance insurance against the insurance company against the insurance company however you don't know that only applies if there are two reasonable interpretations other you don't strain to find an unreasonable interpretation to construe it strictly example that as judge wright heart pointed out that the truth is there are really no california cases on point either way this is just a statute essentially and construed for the facts of this particular case you've got the georgia case which doesn't usually carry a lot of weight in the ninth circuit  but and so realistically you are in effect asking us to construe the california statute in the way you propose realistically i'm asking the court to follow california law a decisions as data and question will if they claim and this is a very unclear one well the point is that we have two cases that have rejected attempts to void an exclusion based on one one five eight four  specifically upheld the exclusion based on the use and they've made distinction between the manner of operation once the airplanes in the air and the use for which it's going to be used before takeoff and that's what we have here counsel wouldn't wouldn't  your your opposing counsel indicated that he concedes it has he's not prejudiced the fact he didn't bring up sub two below but the reality is the customs and practices of the insurance companies  california are rather important and constrain the statute wouldn't the better thing to do be to send us back to the trial court so you could try sub two and sub four put on your evidence find out what the insurance companies do because the reality is we're not going to rely on a ga case and we're just not going to do that and we want to do the right thing we want to construe the statute as it is supposed to be construed but neither of you have really given us very much to what you may bring in in terms of the practices and policies of california insurance companies how they write their policies what the underwriting practices are he can indicate what whatever he wants to and then the judge will have a record that you can look at and middlesex that the intent of one one five eight four is to preclude exclusions based on operational violations as opposed to the use of the aircraft where you can determine at the beginning of the flight whether it is or is not excluded but that's really the negative pregnant of what those cases say you're getting to be used provision by saying these cases give us the answer but they really don't deal with these facts as judge r exclusion that says you can't fly with more all then four passengers does that mean that mean surance company would be required to cover a flight where eight passengers are in the airplane obviously not that's the impermissible flight  other words you can tell by an objective standard before you take off that this exclusion more than for you would be in doubt about hey i'm safe it's more than four then the policy was not cover it that's exactly right under exclusion policy where the total number of passengers carrying the our craft at the time of the accident exceeds the declared maximum stated in the declarations that's an that would be again be an impermissible use of the aircraft well i think we've exhausted