concurring.
I concur with the result reached by the majority; however, I believe that the majority opinion perpetuates the confusion over the proper standard for determining IFR flights which was created by Glover v. National Ins. Underwriters, 545 S.W.2d 755 (Tex.1977).
In Glover, at least two separate tests for classifying a flight as IFR or VFR are set forth. One test involves an inquiry into whether the pilot actually knew that he would encounter IFR conditions. Although this test was dicta in Glover, the majority opinion has elevated it to a controlling level here. The second test in Glover stated that a flight would be determined by the weather conditions existing at the beginning of the flight. Within this test is the ambiguity of whether the “beginning” refers only to the weather conditions at the time and place of takeoff or to the conditions along the entire line of flight as viewed from information available at the beginning of the flight.
To resolve the confusion and to determine a reasonable construction of the pilot warranty clause, I would propose the following standard to determine the weather classification of “the flight.”
The determination of whether a flight is IFR or VFR should be made by the trier of fact on the basis of weather reports and forecasts of the expected weather conditions along the entire plan of flight which were available to the pilot at the time and place of departure. If the forecasts indicate that the pilot must fly through IFR conditions to reach his destination, it is an IFR flight.
Obviously, if there is an expected IFR thunderstorm at the time and place of destination and this information is available at the time of departure, the flight should not be characterized as VFR, irrespective of what the weather is at departure. The pilot’s knowledge should not be the controlling factor because the conditions of the *7flight are controlled by the weather and not by the pilot’s beliefs.
Although this standard implicitly places a duty on the pilot to seek available weather information, the pilot’s coverage will not be suspended because of his failure to seek or reasonably interpret the information, but rather because of the existence of IFR conditions. Though an insurance policy is intended to cover even the pilot’s own acts of negligence, all insurance policies have conditions and limits on coverage. A pilot’s failure to realize that his policy excludes coverage in a given situation does not prevent the exclusion from operating, whether or not the failure to realize it was negligent.
I believe that the above standard should be used to determine the character of the flight. Using this standard, I would hold as a matter of law that under these facts, this was an IFR flight.
The dissenting opinion on rehearing by Justice Ray states that the issue of causation was raised by Marr’s Short Stop and that the insurance company should be required to prove that the accident was caused, in whole or in part, by the IFR weather conditions in accordance with Puckett v. U.S. Fire Insurance Co., 678 S.W.2d 936 (Tex.1984). I disagree with both of these assertions. First, I do not believe that the record shows that Marr’s raised and preserved the issue of causation to prevent the exclusion from operating.
Second, I believe that in order to avoid an unambiguous exclusion in an insurance policy on public policy grounds, the claimant should have the burden to prove that his failure to comply with the terms of the contract in no way contributed to the loss. In Puckett, the parties stipulated that the crash was not caused by the insured’s failure to have a valid airworthiness certificate; therefore, the question of burden of proof was not addressed. In that opinion, however, we stated:
Puckett contends that allowing an insurance company to avoid liability when the breach of contract in no way contributes to the loss is unconscionable and ought not be permitted. We agree. Here, the accident was caused by something — pilot error — unquestionably covered by the policy. It would be against public policy to allow the insurance company in that situation to avoid liability
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Id. at 938 (emphasis added). In order for a claimant to avoid a properly raised and proven exclusion on the grounds of pubic policy, the claimant should have the burden of establishing that the situation is one which justifies the public policy exception recognized in Puckett.
KILGARLIN, J., joins in this concurring opinion. ROBERTSON, J., withdraws his dissent of April 4, 1984, and joins the majority opinion by POPE, C.J.