The Deception about the Inception Rule: Coverage for VFR Pilots in IFR Conditions
Journal of Air Law and Commerce
The D eception about the Inception Rule: Coverage for VFR Pilots in IFR Conditions
Michael G. McQuillen 0
0 Michael G. McQuillen, Th e Deception about the Inception Rule: Coverage for VFR Pilots in IFR Conditions, 60 J. Air L. & Com. 179 (1994) https://scholar.smu.edu/jalc/vol60/iss1/3
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Article 3
THE DECEPTION ABOUT THE INCEPTION RULE:
COVERAGE FOR VFR PILOTS IN IFR CONDITIONS
MICHAEL G. MCQUILLEN*
* J.D., John Marshall Law School; Partner, Adler, Kaplan and Begy, Chicago, Ill.
VI.
VII.
INTRODUCTION
1992 a total of 1662 general aviation' aircraft accidents
loccurred with an average of one fatal accident per day.2
I The phrase "general aviation" refers to "[a] 11civil aviation operations other than
scheduled air services and nonscheduled air transport operations for remuneration
or hire." FEDERAL AVIATION ADMINISTRATION, AIRMAN'S INFORMATION MANUAL G-1,
May 27, 1993 [hereinafter AIM]. (Pilots are required to have obtained instruction on
the use of the AIM during their private pilot training. 14 C.F.R. § 61.105 (a) (
1
)
(1993)).
Recent legislation proposing a federal statute of repose defines a "General
Aviation Aircraft" as an aircraft with a maximum seating capacity of fewer than 20
passengers that was not, at the time of the accident, engaged in scheduled
passengercarrying operations. H.R. Rep. No. 3087, 103d Cong., 1st Sess. § b (1993).
2 AOPA AIR SAFETY FOUNDATION, JOSEPH T. NALL GENERAL AVIATION SAFETY
REPORT, 2 (1992).
Although the causes of the accidents were numerous,
weather-related accidents accounted for at least forty
percent of the general aviation fatalities.' The leading
weather-related cause was "VFR flight into IMC. '' 4 A
National Transportation Safety Board (NTSB) 5 report
concluded that VFR (Visual Flight Rules) 6 flight into IMC
(Instrument Meteorological Conditions) 7 was a factor in
361 general aviation accidents between 1983 and 1987 that
resulted in 583 fatalities.8 These statistics indicate that most
VFR-into-IMC accidents yield disastrous results. 9 When a
non-instrument rated pilot is involved in this type of
accident, a dispute frequently develops between the pilot (or
his estate) and his insurer on the issue of whether liability
coverage exists for the occurrence.
This article analyzes the judicial decisions that discuss the
issue of whether a non-instrument rated pilot, who is
allowed to fly only under Visual Flight Rules, is properly rated
for a flight when he suffers an accident after flying into
s Id. at 11.
4 Id. at 21.
The National Transportation Safety Board is an independent agency of the
United States charged with investigating civil aircraft accidents and determining the
probable cause thereof. 49 U.S.C. app. § 1902-03(a) (1988).
6 See infra notes 10, 12-19 and accompanying text.
7 See infra notes 20-26 and accompanying text.
8 GeneralAviation Accidents Involving VisualFlightRules Right Into Instrument
Meteorological Conditions, National Transportation Safety Board, Report No. NTSB/SR-89/
01, February 8, 1989, at i [hereinafter NTSB Report]. This report indicates that the
typical VFR-into-IFR conditions accident involves a 35 to 54-year-old non-instrument
rated private pilot who crashes his own single engine aircraft after encountering low
visibility conditions during daylight hours in the cruise portion of a pleasure flight.
Id. at 15, 17, 18, 21, 25. In most cases the pilot has less than 500 total hours, with less
than 200 hours in the type of aircraft involved and less than 10 hours of instrument
experience. Id. at 19-21, 23.
For a general discussion of the VFR-into-IFR accident, see Thomas A. Horne,
The VFR-Into-IMC Accident, AOPA PILOT, July 1993, at 111 ("[M]ost pilots know the
dangers of attempting VFR flight in instrument meteorological conditions. That
goes double for taking on low ceilings and visibilities without the benefit of an
instrument rating."); Thomas A. Horne, VFR Into IMC, AOPA PILOT, January 1992, at
91 ("In most cases, the pilot has prior knowledge of the possibility of low visibilities
and/or ceilings from a preflight weather briefing."); John M. Likakis, VFR-to-IFR
PilotsFace Deadly Odds,AVIATION SAFETY, April 1, 1988, at 1 ("One of the most
prominent characteristics of the VFR-into-IFR accident is the propensity for pilots to press
on into the weather ... in full knowledge of the danger.").
weather conditions requiring the application of Instrument
Flight Rules (IFR). During the past twenty years, only a
handful of cases have discussed the issue. As demonstrated
below, some of those cases have held that where the
insurance policy denies coverage if the pilot is not properly rated
for "the flight" involved, the weather conditions prevailing
at the time and place of departure will determine whether
the pilot was properly rated for the flight. Courts have
reached this conclusion even where the pilot, after a VFR
takeoff, encountered and crashed in IFR conditions. This
rule is known as the "incept (...truncated)