specially insurance company good morning your honor stephen wood appearing on behalf of the happily performance aircraft good morning to both of you each of you will have about fifteen minutes at issue in the case is the application and interpretation of the pilot warranty in the insurance policy that my client issued to p a zero there are two parts to that warranty the st part is called a named means here obviously but it's because it's annually and because it's an adverb with the words are going to the school annually it's something that's in progress it's continuous and that on the day the policy in that this was an ongoing process so you said it was well this particular policy it headed renewed itself over a number of years the policy that's an issue at the time of the last renewed orange so that i and twelve and so the circuit court said well since the power to have an expired there was still time left on the policy this warranty could have been complied with because not much could have gone to the simulators for training or school after they actually well number of things are operational for most of the fact that it allows when you think of the concept of the warranty and what the purpose of it is it's to ensure that these pilots are properly trained and have i'm going training before they fly an aircraft posi having the same annual requirement this was an ongoing thing and i'm going relationship opposition would be that on the day this this policy renewed or in sept it became a fact to pick the current policy for purposes of the last one that went into effect in and twelve they were already in breach of them want to of the open i don't want to because already as of that time twenty months have passed since the last time mehmet was at the simulator school and therefore he wasn't going to continuously eleven that nimitz that the simulator school requirement be removed for naps yet so when the twenty seven policy and stuff to mount only worse was there this open pilot warranty the talked about the simulators for requirement for any policy which x l did and endorsement number twenty four was issued to the two thousand and eleven policy that removed the simulator school requirement that was specific to my maps it's still have the general one in the open pilot warranty so i think that going into the tw twelve o c term everybody understood that moment was not going to go to simulator school which is why we don't understand how this the open i want to was even applied to him by the circuit court because everybody understood he never was going to go to the simulator school they had asked that that be removed for him there was a separate requirement for him yes so i think that answers your question and that was either in compliance  renew it i would say that it's a spate xcel suspected that he wasn't going to go to the simulator school but they fully expected that he would do the training the approved training within twelve months or every time he the going back to the in the requirement it in the circuit court's ruling on i think judgment right rest of question about why we think the circuit court's ruling was wrong there's another aspect of it to me and it's it really is common sense which is thankfully the pilot survived this crash everybody in this aircraft survive the crash that often of course does not happen in air an aircraft disasters the employees of the circuit court's ruling would be that had the pilot died he would not have been able to fulfill n p o would not have been able to fulfill the simulator school requirement after the fact and so now we're in this bizarre scenario that had the pilot died they would have been in breach because they would not have been able to fulfill the to go to the simulator's well that's why they had a written out of the name pilot warranty for him of the twenty lemon policy and it therefore doesn't even make sense to apply this open pilot warranty to moments at all and i and so what happened in the circuit court is the judge there saw that the open pilot warranty starts with any pilot approved by the chief pilot and i don't think there's any dispute that chief pilot approved namath as a pilot and so then pilot approved him that's the end of the inquiry under the open plan working out the circuit court understood that that would got the open pile wanted of the actual training requirement and so the circuit court wouldn't go that far but what the circuit court then did context i want to touch briefly on the name pilot warranty yes the the circuit court one of the main issues below was whether or not company approved meant xcel he circuit court the parties dis seem to be applying to excel that we made a promise that we couldn't keep well the warranty is their promise the warranty is their promise to sell that our pilots are under going to go through training so i would say if there's a months or every time he flies the aircraft and then they didn't do that there was a meeting again hell they were all sitting around a table in january th well there is evidence the record from xcel that the training requirements were discussed here will dispute that but that begs the question well why didn't you ask excel at that meeting will this will this work for you this is what we proposed to do with minutes of the chief pilot was it that made the chief pilot could have said this is what we want to do with over the course of the next year is that going to be ok that's all they had to do they want to turn this around into x l can deny can can sit on its heels and deny a claim by after the fact defining what an approved program question about it and it was we believe that it is it is extremely important here too we think there there should be coverage under the nd in command we're jet sixty provision of the pilot warranty pilot and so we call it any pilot clause makes sense to us they've called it an open warranty but in any event your honor we think that under either we would qualify for cover just far as the annually issue is concerned the  nd any pilot clause does say that any pilot or any pilot approved by the chief pilot providing that they are going to simulate a school annually and so the actual st took the position in its by the term company approved ground in flight training right because company is defined is a defined term in the policy with a capital c and frequently it appears in the policy with a capital c intended to refer to x l but there are a couple of instances where company is is identified with a lower case here and in that particular instance it's company with a lower case see now a global insurance compan that is exercising care and in drafting you would expect that they would be consistent from the use of initial capitalizations and if they use a different form of a defined term it might have a different meaning consistent with performance aircrafts request for flexibility in qualifying their pilots for coverage for performance aircraft and looking at that language thought perhaps well lower case see this must be intentional that can't be a which is how it was characterized in exiles brief this must be intentional therefore company in this instance must prefer performance aircraft consequently we have the flexibility to decide what the training should be so that what i'm the interim getting for your honor is that performance or certainly did it isn't correct to say that mr nemesis didn't undergo any training he certainly did undergo training he didn't go to simulator school since may of two thousand and ten that's correct but he did undergo training just not some particular specific and night in my response the policy said in the name pilot clause but to qualify for coverage he would have to complete a company approved ground in flight training that's what it says it doesn't seem to think about your honor if you're going to look back all right and it's an interesting question about what excel knew about mr nemesis training because if they knew that the school requirement had been requested to be removed from the prior years policy they were aware that he hadn't attended simulated school by that period of time then when this policy was issued in february of two thousand and twelve i think it's reasonable to conclude that actual knew that mr nimitz hadn't attended that training and yet his any pilot clause was was contained in the pilot war to now if you're going to look back at prior years my concern about that your honor is that that is to bring into play prior years compliance or or non prior years time doc is to alter the terms of this policy and this issue came up in the court below because excel argued that this any pilot clause was a condition preceding it had to be satisfied before there would coverage in judgment around the said no this is an annual requirement it doesn't take it must be completed before the inception of the policy if that's what xo meant it should have said that it didn't so getting back to my st question is in terms of wh aircraft as copilot under disapprobation of a pilot in command the requirements for training and certification qualification for coverage for pilots in command are certainly going to be more rigorous right these are experienced pilots operating only a words it was reasonable for xcel to say we will defer to the judgment of the chief pilot and any pilot approved by the cheap pilot can operate the aircraft and qualify for coverage as long as they attend simulator school in at e you know i concur that to mean a ten right it doesn't mean complete simulator school at some point during the here that is a reasonable relatively low level requirement for nd in briefing he's out of the cockpit for less than a day but a school a course of instruction even if it's a refresher course it's going to take a week probably more so they're very different requirements completing school and attending school i don't know that i'd go suffice to say having a cup of coffee completed or sorry have gone to simulate a school visit me a year before yet you know i think it's a really i think it's relevant your honor because to look at that is to buy into this argument argue that this we were in breach of the davis policy and separate and they cannot be correct because if you if you take that position you've really written the terms of this policy right you have rewritten it in favor of the insurance company which i think is also i wanted to make sure that i dress this issue there's i think it is incorrect to assume that there's no coverage until this simulator attendant are going to simulate a school requirement isn't the end of the year your honor and certainly it was also a requirement to be approved by the chief pilot this pilot warty has drafted demonstrates deference to the judgment of the chief pilot but what i want to say was this the prior years policy originally had a now if an accident had occurred prior to that at all and before he had attended school let's just say it was march st right of that year it would have been there would have been cover to exactly a rotter xo would not have taken the position then well wait a minute he hasn't gone to simulator school yet well that's because he had until that deadline to complete simulator school or to attend simulator school it's the same with this policy he had until the end of that year under the terms of the any pilot clause to attend simulated school judge of all the rama in his denial of their motion to reconsider axels motion to reconsider i think it from my point if you were readily responded to this argument that they made it this this he had to have completed this simulator requirement before he could be covered and for this was my position then and now is that on the date of the loss he was approved by the chief pilot and those and the st in command of the pilot in command was in the aircraft but nonetheless was flying this airplane in the captain's chair and he had been of a similar school since may two thousand and ten obviously there's a lot of focus i believe so but of course you when there is something that is insurance well when you have in this case when it's negotiated as this this was and you have a record of the negotiations on this very point you can time it's not negotiated with the policyholder that doesn't always hold true and it doesn't it's a fallback provision it's really the last resort in contract interpretation in particularly of an insurance policy but where you do have an insurance broker board you have a commercial written into the policy that he had to complete it by may th eleven annually the next year within the year of the last time he did it well they didn't want to go to the simulator school but they didn't want to send him so they went to exile and they said can we well no not necessarily annually just means in a cycle of twelve months if you go to a doctor's appointment if i go to the doctor's appointment today and the doctor says i want to see you annually that doesn't mean the end of th means by next june th that's what annually means in that context what this provision says is are going to the school annually you have to interpret those words together not in really in the abstract in the named pilot warranty there always was those any pilot or open pilot warranty and so our position is it never was intended to plight and i'm it's because he always had his own specific warranty and now you've taken out the simulator school requirement for him how does this open pilot warranty how could it even apply to him the parties concede it wasn't going to go to the simulator school it really doesn't make sense i know there's an argument we've waived that argument but i would say all of that was was before the circuit court because the circuit court st addressed whether or not the open pilot wanted to comply by saying well the st part of it is pilots approved by the chief pilot so it was the entree into the open pilot warranty  yet the price conceded on the record that the simulator school requirement had been removed for damage so how could he comply with that requirement and we're simply saying now the natural extension of everything that was argued in the circuit court the fact was established is that they'll pump out warranty was not intended to apply to him because he wasn't going to go he had his own specific warranty you know webster's dictionary defines annually as once a year or each year