NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT 

PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

DANIEL L. KIRKLAND, Plaintiff/Appellant,

v.

OLD UNITED CASUALTY COMPANY, Defendant/Appellee.

No. 1 CA-CV 14-0427

Appeal from the Superior Court in Maricopa County

No. CV2012-011997

The Honorable Douglas L. Rayes, Judge (Retired)

AFFIRMED

COUNSEL

Stone Law Firm, PLC, Tempe

By C. Randall Stone 

Counsel for Plaintiff/Appellant

Clark Hill, PLC, Scottsdale

By Darrell E. Davis, Mark S. Sifferman

Counsel for Defendant/Appellee
KIRKLAND v. OLD UNITED

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Patricia A. Orozco and Judge Maurice Portley joined.

D O W N I E, Judge:

¶1 Daniel L. Kirkland appeals the superior court’s grant of 

summary judgment to Old United Casualty Company. For the following 

reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On March 30, 2012, Kirkland was involved in an accident 

while piloting a Focke-Wulf FW-190 airplane.

1 During the landing, the 

airplane veered off the runway and sustained damage. According to a 

report prepared by the National Transportation Safety Board, Kirkland 

failed to maintain “directional control of the airplane during the landing 

roll.” The flight was Kirkland’s first time piloting the FW-190. 

¶3 Kirkland — the plane’s owner — had purchased ground and 

flight insurance from Old United. Old United denied coverage for 

damages arising from the accident, taking the position Kirkland was not 

an approved pilot under the policy. Kirkland sued Old United in superior 

court, alleging breach of contract and bad faith. 

¶4 Old United filed a motion for summary judgment, which the 

superior court granted. The court awarded Old United its costs and 

attorneys’ fees, and this appeal followed. We have jurisdiction pursuant 

to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

 

1 The plane at issue is a reproduction of the Focke-Wulf FW-190, 

which was a German single-seat, single-engine fighter aircraft used 

during World War II. The FAA categorizes the plane as an “experimental 

category aircraft.” 
KIRKLAND v. OLD UNITED

Decision of the Court

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DISCUSSION

¶5 As identified by Kirkland, the issue before us is whether the 

superior court “erred in finding that [he] was not an approved pilot under 

the contract of insurance during his flight.” The interpretation of an 

insurance contract presents a question of law that we review de novo. 

Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529, 534 (1982). We review 

the facts and the record in the light most favorable to Kirkland, the party 

against whom summary judgment was entered. Gulf Ins. Co. v. Grisham, 

126 Ariz. 123, 124 (1980). 

¶6 “It is well established that parties to an insurance agreement 

may contract for any lawful coverage, and that an insurance company has 

the right to limit its liability by imposing conditions and restrictions on its 

contractual obligations.” Sec. Ins. Co. of Hartford v. Andersen, 158 Ariz. 426, 

430 (1988); see also Pac. Indem. Co. v. Kohlhase, 9 Ariz. App. 595, 597 (1969)

(insurer “may lawfully exclude certain risks from the coverage of its 

policy”). In Andersen, our supreme court upheld summary judgment in 

favor of the insurer because the pilot did not hold a valid and current 

medical certificate at the time of the crash, which was a condition of the 

policy. 158 Ariz. at 427-28, 431. Interpreting the insurance contract, the 

court observed that “[t]he language of exclusion, based on a FAA

regulation that is obviously related to safety, is clear and unambiguous.” 

Id. at 430. More recently, this Court applied this same standard in a case 

involving a pilot who failed to log the minimum number of flight hours

required for coverage under an insurance policy. Potter v. U.S. Specialty 

Ins. Co., 209 Ariz. 122, 125, ¶ 11 (App. 2004). In affirming summary 

judgment for the insurer, we acknowledged the company’s right to “limit 

its liability for losses associated with inexperienced pilots.” Id. at 124, ¶ 9.

¶7 The insurance policy at issue limits coverage to flights flown 

by “approved pilots” and imposes conditions that must be satisfied before 

coverage applies:

ITEM 7. APPROVED PILOTS – During each “Approved 

Use” as defined in Item 6, the aircraft must be operated 

in-flight only by the “Approved Pilots” shown below who 

must have a current and proper (1) medical certificate and 

(2) pilot certificate with necessary ratings as required by the 

FAA for each flight. There is no coverage under the policy if 

the pilot does not meet these requirements.

Lee Lauderback and Stewart Dawson and Bill Muzala
KIRKLAND v. OLD UNITED

Decision of the Court

4

Dan Kirkland is required to receive a check ride and sign off 

by Lee Lauderback in the same make and model aircraft 

insured herein and 25 hours solo in the same make and 

model aircraft insured herein prior to . . . completing a check 

ride with Stewart Dawson.

Absent compliance with the approved pilot conditions established in Item 

7, the insurance policy made clear that no coverage existed.

2 

¶8 The record establishes that Kirkland failed to satisfy the 

conditions required to be an “approved pilot” under the terms of the 

policy. He never completed a check ride with either Lee Lauderback or 

Stewart Dawson in a FW-190.

3 Indeed, Kirkland admitted in the superior 

court that he had not completed a check ride, arguing it would be 

“impossible in a single seat aircraft” such as the FW-190. FAA

regulations, however, state that a practical test can be conducted in a 

single seat airplane “if the [e]xaminer is in a position to observe the 

applicant during the practical test . . . .”4 14 C.F.R. §§ 61.63(g), 61.45(e). 

During such a test, “the inspector observes the applicant from the ground 

or from another aircraft.” FAA Order 8900.1, Flight Standards 

Information Management System, Vol. 5, Ch. 1, section 4, § 5-84(e). 

 

2 Under the section entitled “General Provisions and Conditions,” the 

policy states: “When the aircraft is in-flight, you must make certain that 

the pilots are ‘approved pilots’ in Item 7 of the PSP [policy summary 

page]. There is no coverage if this requirement is not met.” 

3 Kirkland flew with Lauderback in a TF-51 Mustang in January 2012, 

after which Lauderback gave Kirkland a sign off indicating he was ready 

to proceed with a FW-190 check ride. 

4 The regulations provide:

An applicant for a type rating . . . in a single engine airplane 

with a single-pilot station must perform the practical test in 

the multi-seat version of that single engine airplane, or the 

practical test may be performed in the single-seat version of 

that airplane if the Examiner is in a position to observe the 

applicant during the practical test and there is no multi-seat 

version of that single engine airplane.

14 C.F.R. § 61.63(g).
KIRKLAND v. OLD UNITED

Decision of the Court

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¶9 Additionally, Kirkland failed to complete the twenty-five 

hours of solo flight in a FW-190 that was expressly required by policy Item 

7. Kirkland concedes he had only “begun to fly up to 25 hours when the 

accident occurred.” 

¶10 As a final and independent basis for denying coverage, the 

record established that at the time of the accident, Kirkland was piloting

the Focke-Wulf FW-190 without proper FAA authorization. The 

insurance policy required each approved pilot to have a “pilot certificate 

with necessary ratings as required by the FAA for each flight.” Old 

United asserts, without contradiction, that on the day of the accident, 

“Kirkland was piloting the aircraft on an expired FAA Letter of 

Authorization.” Kirkland contends, however, that the policy did not 

require him to obtain a letter of authorization or any other FAA 

authorizations. 

¶11 The FAA can issue letters of authorization in lieu of a type 

rating and will do so in the case of experimental aircraft for which a type 

rating has not been established. See 14 C.F.R. § 61.31(b); FAA Order 

8900.1, Flight Standards Information Management System, Vol. 5, Ch. 9, 

section 2, § 1578(A)(1) and (2). “Issuance of this [letter of] authorization 

parallels the issuance of a type rating under Title 14 of the Code of Federal 

Regulations (14 CFR) part 61.” FAA Order 8900.1, § 1578(B)(3). 

¶12 The Focke-Wulf FW-190 is an experimental aircraft, and the 

FAA issued Kirkland a “temporary letter of authorization,” authorizing 

him to receive “pilot training and practice” on the aircraft. The temporary 

authorization expired on March 24, 2012 — six days before the accident. 

Accordingly, at the time of the accident, Kirkland was piloting the FW-190 

without FAA authorization.

¶13 Kirkland failed to meet several conditions necessary to 

become an “approved pilot” under the policy, justifying Old United’s 

denial of coverage. See Kohlhase, 9 Ariz. App. at 597 (“[W]here damage 

occurs during the operation of a plane under circumstances as to which 

the policy excludes coverage, there is no coverage.”). Accordingly, we 

affirm the grant of summary judgment in favor of Old United. 

CONCLUSION

¶14 We affirm the judgment of the superior court. Old United 

seeks an award of attorneys’ fees incurred on appeal pursuant to A.R.S. § 

12–341.01. In the exercise of our discretion, we grant that request and will 

award Old United its reasonable attorneys’ fees and taxable costs upon 
KIRKLAND v. OLD UNITED

Decision of the Court

6

compliance with ARCAP 21. See State Farm Mut. Auto. Ins. Co. v. 

Arrington, 192 Ariz. 255, 261, ¶ 27 (App. 1998).