Pilots would be justifiably offended if a bystander said to them, “Flying an airplane is as simple as driving a car.” That statement would be dismissive of the expertise, training and physical skills it takes to put an airplane in the air and bring it back down safely.

The same thing is true of insuring your airplane, be it a commercial or personal aircraft. Just because you’ve purchased home or auto insurance doesn’t mean that you can go it alone to purchase aviation liability insurance. Just as flying is a complicated activity, so too is the insurance coverage for that activity. Aviators need an experienced and seasoned aviation insurance professional, and a recent case illustrates why.

The case, from the federal courts in California, is called Trishan Air, LLC v. Federal Insurance Company. It illuminates a concept used in aviation insurance that does not have much of a counterpart in other types of insurance: the pilot warranty.

The event happened in June, 2007. A Dassault Falcon 900 was preparing to depart the Santa Barbara airport in California, destined for Tampa, Florida. According to the NTSB report, the V-speeds for the aircraft as loaded were V1 at 118 knots and Vr at 131 knots. The TOLD card had a gross weight of 45,400 pounds stated on it; the actual weight was 46,481. The stabilizer trim was set at -5.5 degrees, when the weight dictated a takeoff stabilizer trim between -7 and -7.5 degrees.

The NTSB Factual Report said, “The first officer called V1, followed by Vr, at which time he pulled back on the yoke, but with no response. When the speed was well into the upper 130-knot range he relaxed the yoke, then pulled aft again, and again there was no response from the airplane. Power was then immediately reduced to the stops, full nose forward pressure was applied to the yoke, and maximum braking effort was applied.” There was a failure to rotate at Vr.

The result was that the plan left the runway and impacted a berm. The nose landing great collapsed and the plane suffered multiple millions of dollars in damage. There were no fatalities.

What, then, to make of the insurance? The Falcon had been insured through Federal Insurance Company. One of the requirements that Federal had put in place was a requirement of specific training for the pilot and the second in command. Federal put that requirement in the form of a pilot warranty.

A pilot warranty in an aviation policy is, according to Profs. Wells and Chadborne’s text, “a statement or a promise set forth in the policy, the untruth or nonfulfillment of which in any respects renders the policy voidable.” Warranties can range from promises to use a co-pilot when flying under IFR all the way to statements which validate the time and type of training the pilots operating the aircraft have.

The warranties required in any specific circumstance are exceptionally important to whether there will be insurance coverage. The Trishan case illustrates why.

In Trishan, the binder and the policy captured essentially the same idea (with minor language variations) with its warranty:

It is required that the aircraft is operated by a two pilot crew at all times that has been approved by the named insured’s chief pilot. It is further required that such pilot(s) must have successfully completed a ground and flight recurrent/initial training course for the make and model operated within the past 18 months. Any such course must incorporate the use of a motion-based simulator specifically designed for the insured make and model/make and model series.

The second in command had 45 years and 15,000 hours of flight experience (13,000 in jets). He had about nine hours of SIC experience in the type of craft, had about ten hours of static training in the type of aircraft, and had several jump seat observatory flights.

What he didn’t have was the simulator training required by the pilot warranty.

Everyone agreed that the missing training would not have changed the outcome of the aborted takeoff. In fact, one expert said “a full motion simulator course” would not have altered his qualifications “in the slightest.”

So, can a warranty in an aviation contract be something like a “no harm, no foul” situation? Or, is close enough good enough?

Not to the insurance company. To it, the simulator training was considered “critical.” It was especially important for “emergency training.” The company’s representative said, “[T]here are a number of emergency procedures that can easily be practiced in a flight simulator that cannot be safely practiced in an actual aircraft.”

Warranties in insurance policies must, under the prevailing view, be strictly met. Substantial compliance with the warranty’s terms, the standard which Trishan offered, is not enough. The warranty is deemed to be “fundamental” to the risk. So, the Ninth Circuit agreed with the insurance company:

Trishan's failure to comply with any aspect of the required training for co-pilots completely undermined Federal's ability to negotiate and implement the terms of its policies. If adopted, the practical effect of Trishan's proposition would be significant, as it would permit an insured to universally assert that only substitute performance, based on the insured's subjective selection, would be necessary to receive coverage. This approach nullifies any specific requirement that an insurer has in assuming the covered risk, and generates uncertainty on the insurer's part regarding compliance.

The lessons from Trishan for pilots and others seeking aviation coverage are evident. The first is the core element that warranties are not mere boilerplate; the second is that warranties are not to be ignored or overlooked. Third, in many instances, the warranties may be unique to the aircraft and pilot(s). Inquiry and negotiation are often times the best avenue to full understanding of what the insurer is expecting about the risk and demanding about the coverage. Fourth, use of seasoned insurance professionals with experience in aviation is a must. If an aviator goes it alone on insurance, then the aviator is making the same error as the bystander…and we all know flying isn’t the same as driving.