dissenting.
I respectfully dissent. In my view the trial court erred in finding that there was coverage under the liability policy. Accordingly, I would reverse and render.
Mustang Aviation and Roberts Airways entered into an arrangement whereby Roberts undertook to provide the transportation as carrier. Mustang paid Roberts $552.35 of the $952.63 collected by Mustang for the charter. Roberts flew the passengers — not Mustang. No aircraft of Mustang flew the charter. No pilot employed by Mustang flew the charter. The aircraft was owned by Roberts. The pilot was employed by Roberts. Once it agreed to fly the charter, Roberts controlled the entire operation of the aircraft in following the flight itinerary. The aircraft used was never in the possession or under the control of Mustang. Mustang never temporarily “used” a substitute aircraft. Mustang was never in the air. The present case involves the substitution of one charter air carrier for another charter air carrier rather than the substitution of an aircraft.
The present case appears to be one of first impression in this state. The majority relies on Lloyds America v. Ferguson, 116 F.2d 920 (5th Cir.1941); Lumbermens Mutual Casualty Co. v. Harleysville Mutual Casualty Co., 367 F.2d 250 (4th Cir.1966); and Roberts v. Gonzalez, 495 F.Supp. 1310 (D.V.I.1980). I would decline to follow in this state the interpretation of the substitution provision made in those cases. I would apply the correct interpretation in Tanner v. Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Co., 226 F.2d 498 (6th Cir.1955) that the substitution provision only applies if the vehicle (aircraft) is “in the possession or under the control of the insured to the same extent and effect as the disabled car (aircraft) of the insured would have been except for its disablement.” Since the aircraft used was never in the possession or under the control of Mustang, then under Tanner’s test the Roberts’ aircraft is not covered under the policy-
I recognize that words of exclusion or limitation should be strictly construed against the insurer and that the court must adopt the construction urged by the insured as long as that construction is not itself unreasonable. Glover v. National Insurance Underwriters, 545 S.W.2d 755, 761 (Tex.1977). In the present case, however, the construction urged by the insured, and adopted by the majority, is unreasonable. In the present case Roberts, not Mustang, performed the entire air transportation service required. Mustang did not fly the passengers, arrange for airport landings and departures, see to baggage and equipment of the passengers or service and fuel the aircraft while in use. In short, Mustang performed none of the myriad of functions required to be performed in carrying out the charter flight. I simply cannot agree that substitution of an entire transportation service is the substitution of the “use” of an aircraft within the meaning of this policy. To be covered under this policy the Roberts’ aircraft must have been in the possession or under the control of Mustang to the same extent and effect as the disabled aircraft of Mustang would have been except for its disablement. The Roberts’ aircraft was not, therefore, the Roberts’ aircraft was not covered under the policy.
Moreover, I do not agree with the implication, if not holding, in the majority opinion that Mustang’s liability for “using” the Roberts’ aircraft, through Roberts as agent, *593has already been judicially determined. See Croce v. Bromley Corp., 623 F.2d 1084, 1088 (5th Cir.1980). I interpret that case to hold that Mustang is estopped from denying that Roberts was its agent because Mustang did not advise the Croce group that a Roberts pilot and Roberts aircraft were going to make the flight. As the federal district court put it: “Mustang was under a duty to speak. Mustang did not.” For this reason only did the Fifth Circuit determine that Mustang was liable for the deaths caused through the operation of the Roberts aircraft. Thus, Mustang’s liability was based solely on a holding “that Mustang is estopped from denying that Roberts Airways was its agent and is liable for the acts of that agent.” Croce v. Bromley Corp., 623 F.2d at 1088. Liability based on an agency one is estopped to deny for failure to speak does not establish that Mustang was “using” the Roberts aircraft.
Ranger contracted to insure Mustang. The majority requires Ranger to insure Roberts. I disagree with the majority’s too liberal interpretation of the substitution provisions which adds Roberts as a named insured under the policy. The judgment of the trial court should be reversed and judgment rendered that the aircraft which actually made the flight was not insured under the liability policy.