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hills(at)sunflower.com
Guest

Posted: Thu Feb 05, 2009 8:39 pm Post subject: a gentle suggestion

In the case I Mentioned before about the insurance company denying a claim

because of a "major" change being done after the DAR had oked the plane, I

must say that the unfortunate builder sunk his own boat. 



He made the mistake of actually entering the changes, that he made to the

fuel system, into his log book as he made them, thus giving the bean

counters at the insurance company something to use against him, his own

words. 



I say "mistake" because as he tried different changes to the fuel system, he

entered the changes into the log book, just as any good law abiding fellow

would do. But, as it turned out, he didn't like the changes, so he

reconfigured his fuels system into it's ORIGINAL configuration just before

his accident. Fine ok, well no.  



Even though he had gone back to the original fuel system configuration, as

ok'ed, by the DAR, the insurance company tried to deny his claim saying that

he had made major changes to the fuel system without notifying the FAA and

therefore nullifying this insurance.  The fact that he reverses the changes

before the crash did not matter to the insurance company; they still wanted

to deny the claim.  



The moral of this story might be.... change many, enter once.



Roger

--

Gig Giacona

Joined: 10 Jan 2006
Posts: 1416
Location: El Dorado Arkansas USA

Posted: Fri Feb 06, 2009 6:24 am Post subject: Re: a gentle suggestion

 	  hills(at)sunflower.com wrote: 	
		  In the case I Mentioned before about the insurance company denying a claim

because of a "major" change being done after the DAR had oked the plane, I

must say that the unfortunate builder sunk his own boat. 



He made the mistake of actually entering the changes, that he made to the

fuel system, into his log book as he made them, thus giving the bean

counters at the insurance company something to use against him, his own

words. 



I say "mistake" because as he tried different changes to the fuel system, he

entered the changes into the log book, just as any good law abiding fellow

would do. But, as it turned out, he didn't like the changes, so he

reconfigured his fuels system into it's ORIGINAL configuration just before

his accident. Fine ok, well no.  



Even though he had gone back to the original fuel system configuration, as

ok'ed, by the DAR, the insurance company tried to deny his claim saying that

he had made major changes to the fuel system without notifying the FAA and

therefore nullifying this insurance.  The fact that he reverses the changes

before the crash did not matter to the insurance company; they still wanted

to deny the claim.  



The moral of this story might be.... change many, enter once.



Roger



-- 	




Or the moral of the story might be follow the law. He made his mistake in notifing the FSDO of the changes has he made them and following the rules.



It amazes me how many folks here are suggesting pencil whipping the logs to get around what is a pretty clear order from the FAA. Somebody up thread gave as a reason for doing so that it would keep your plane in test period forever. My response to that is that if you keep making major changes it should remain in test phase because you are testing the fracking thing.



It makes you wonder if the builders of some of the accident aircraft didn't do the same.



And just for the record here is the text of the rule in questions.



REF: FAA Order 8130.2E-- January 23,2003 

(19) After incorporating a major change as described in Â§ 21.93, the aircraft owner is 

required to reestablish compliance with Â§ 91.319(b) and notify the geographically 

responsible FSDO of the location of the proposed test area. The aircraft owner must 

obtain concurrence from the FSDO as to the suitability of the proposed test area. If the 

major change includes installing a different make and model of engine or propeller, the 

aircraft owner must fill out a revised Form 8130-6 to update the aircraft's file in the FAA 

Aircraft Registry. All operations must be conducted under day VFR conditions in a sparsely 

populated area. The aircraft must remain in flight test for a minimum of 5 hours or for the 

time the FSDO assigns. Persons nonessential to the flight must not be carried. The aircraft 

owner must make a detailed logbook entry describing the change before the test flight. 

Following satisfactory completion of the required number of flight hours in the flight test 

area, the pilot must certify in the records that the aircraft has been shown to comply with Â§ 

91.319(b). Compliance with Â§ 91.319(b) must be recorded in the aircraft records with the 

following, or a similarly worded, statement: "I certify that the prescribed flight test hours 

have been completed and the aircraft is controllable throughout its normal range of 

speeds and throughout all maneuvers to be executed, has no hazardous characteristics 

or design features, and is safe for operation. The following aircraft operating data has 

been demonstrated during the flight testing: speeds Vso ______, Vx ______, and Vy 

______, and the weight ______, and CG location ______ at which they were obtained."

_________________
W.R. "Gig" Giacona
601XL Under Construction
See my progress at www.peoamerica.net/N601WR

Afterfxllc(at)aol.com
Guest

Posted: Fri Feb 06, 2009 7:05 am Post subject: a gentle suggestion

You guys crack me up... You take things and blow them so out of proportion.  If I take a 2700 cc corvair engine out of my plane and replace it with the exact  same engine it isn't a major change it is a replacement not change. Now if I  were to install a o 235 that would be a major change. You guys need to go flying  more and stop flying in 5 hour circles.

  

 Using some of your logic I guess every prop pitch change is a  Major change and should be written in the logs.... Geeezzz

  

 Jeff

 Great Deals on Dell Laptops. Starting at $499.

  [quote][b]

yak52

Joined: 25 Oct 2007
Posts: 50

Posted: Fri Feb 06, 2009 7:21 am Post subject: a gentle suggestion

Since the ZBAG group has been brought up, we haven't heard their usual comments lately. Does that mean their independent study results have come through, as rumored, with no significant findings? Or perhaps are they in possession of the dreaded design defect and they're just waiting for accidents so they can rejoice in the inury to others?  [quote][b]

Afterfxllc(at)aol.com
Guest

Posted: Fri Feb 06, 2009 7:26 am Post subject: a gentle suggestion

if you want to know pay your money and find out.

  	  Quote: 	
		  Since    the ZBAG group has been brought up, we haven't heard their usual comments    lately. Does that mean their independent study results have come through, as    rumored, with no significant findings? Or perhaps are they in possession of    the dreaded design defect and they're just waiting for accidents so they can    rejoice in the inury to others? 	


 

  

 Great Deals on Dell Laptops. Starting at $499.

  [quote][b]

jmaynard

Joined: 27 Feb 2008
Posts: 394
Location: Fairmont, MN (FRM)

Posted: Fri Feb 06, 2009 8:42 am Post subject: a gentle suggestion

On Fri, Feb 06, 2009 at 10:19:04AM -0500, roger lambert wrote:

 	  Quote: 	
		   Since the ZBAG group has been brought up, we haven't heard their usual

 comments lately. Does that mean their independent study results have come

 through, as rumored, with no significant findings? Or perhaps are they in

 possession of the dreaded design defect and they're just waiting for

 accidents so they can rejoice in the inury to others?


	


I'm a member of ZBAG, and I did contribute to the analysis fund.



I find the last comment well over the line. It's not my place to annoucne

where things are currently, but I will note that there has never, ever been

any suggestion of rejoicing in injury to others. I, and I'm pretty sure the

other contributors, did so to put the incessant rumors and sniping to bed

once and for all (I know, that's a faint hope...). If there is a problem, it

won't be kept a secret, either from the community or Zenith.

-- 

Jay Maynard, K5ZC, PP-ASEL, AGI      http://www.conmicro.com

http://jmaynard.livejournal.com       http://www.tronguy.net

Fairmont, MN (KFRM)                        (Yes, that's me!)

AMD Zodiac CH601XLi N55ZC http://www.tronguy.net/N55ZC.shtml

_________________
Jay Maynard, K5ZC
AMD Zodiac XLi N55ZC

bryanmmartin

Joined: 10 Jan 2006
Posts: 1018

Posted: Fri Feb 06, 2009 9:07 am Post subject: a gentle suggestion

§ 21.93   Classification of changes in type design.

(a) In addition to changes in type design specified in paragraph (b)  

of this section, changes in type design are classified as minor and  

major. A “minor change” is one that has no appreciable effect on the  

weight, balance, structural strength, reliability, operational  

characteristics, or other characteristics affecting the airworthiness  

of the product. All other changes are “major changes” (except as  

provided in paragraph (b) of this section).



Experimental amateur built aircraft are not issued a type certificate.  

Each one is a unique aircraft. There is no document that describes the  

details of every system on the airplane. It would be foolish to  

document any minor change to the airplane that can't be independently  

verified by the FAA or insurance company. That just gives some pompous  

bureaucrat or insurance adjuster an excuse to screw you over, just  

because they can. As I see it, I built my airplane, I know it better  

than any other person alive, if I determine that a change I make isn't  

going to cause a hazard to anyone else (by performing a proper test  

flight sequence in a safe manner, if necessary), it's nobody else's  

business.





-- 

Bryan Martin

N61BM, CH 601 XL,

RAM Subaru, Stratus redrive.

do not archive.

_________________
--
Bryan Martin
N61BM, CH 601 XL, Stratus Subaru.
do not archive.

Rhino

Joined: 01 Aug 2007
Posts: 56
Location: Xenia, Ohio

Posted: Fri Feb 06, 2009 9:44 am Post subject: Re: a gentle suggestion

 	  Gig Giacona wrote: 	
		  hills(at)sunflower.com wrote:

 	  Quote: 	
		  ....Even though he had gone back to the original fuel system configuration, as

ok'ed, by the DAR, the insurance company tried to deny his claim saying that

he had made major changes to the fuel system without notifying the FAA and

therefore nullifying this insurance.... 	




Or the moral of the story might be follow the law. He made his mistake in notifing the FSDO of the changes has he made them and following the rules. 	


The current rules don't require that the FSDO approve any major changes. They simply require a logbook entry and a flight test period, both of which are the responsibility of the builder/owner/pilot, not the FAA. The only place an FSDO is involved is in approving the location of the flight test area, not in approving the change.



The old rules used to require FSDO inspection and re-certification, from 1985 to 1993. From 1993 to 1999 the inspection and re-certification requirement was dropped, requiring only a written approval of the change from the FSDO. From 1999 to 2004 no FSDO involvement was required whatsoever, totally eliminating a approval requirement. From 2004 on, there is only the FSDO approval of the location of the test area required, again not approval of the change itself.



The FSDO does not approve your major changes, and you are not required to discuss the change with them beyond what affect the change may require on the testing location. As such, your insurance company cannot deny a claim because there was no FAA notification of the specific major change itself. And this only applies to the five hour test period anyway, a period that is assigned by you, not by the FAA.



As for what hills(at)sunflower.com wrote, the legality would not only depend on the details of the circumstances, but also as to when this actually happened.



Does a change to your fuel system plumbing really qualify as a major change? Admittedly subjective since the FAA never specifies what major change actually means, but likely it is not.



When did this happen, and what rules were in effect at the time?



Was the test period actually adhered to?



Did the incident occur during the test period?



If yes, was the aircraft being operated within the specified test area?



Without that information, none of us can adequately judge if the actions of either party were proper or improper.



By the way, although the original date of Order 8130.2E is January 23, 2003, two changes have been made to it since then. The 2004 requirement I mention above was one of those changes.

_________________
Bob Simmons
CH 750
N750TN (reserved)

Terry Phillips

Joined: 11 Jan 2006
Posts: 346
Location: Corvallis, MT

Posted: Fri Feb 06, 2009 10:05 am Post subject: a gentle suggestion

At 10:19 AM 2/6/2009 -0500, roger lambert wrote:

  	  Quote: 	
		  Since the ZBAG group has been brought up, we haven't heard their usual comments lately. Does that mean their independent study results have come through, as rumored, with no significant findings? Or perhaps are they in possession of the dreaded design defect and they're just waiting for accidents so they can rejoice in the inury to others? 	




 I do not choose to post on the Matronics Lists about the 601XL's safety record, because it is just not worth the flames. However today's post from Mr. Lambert demands  a response.



 I have never met Mr. Lambert. To my knowledge he has never met me. The builders and owners who have contributed to ZBAG are a small group who look at the safety record of the 601XL and draw the conclusion that, just maybe, the design of the 601XL is not perfect. And, realizing that, they have chosen to contribute to an independent analysis of the design so that they can feel more comfortable flying the airplanes in which they have invested thousands of dollars and hours. That Mr. Lambert can suggest that any ZBAGer is some sort of a ghoul who would get pleasure out of the death of fellow 601XL builder is beyond the pale. Unfortunately it is the sort of thing that can and does appear on the Matronics Forum. How very sad! I think that Mr. Lambert owes an apology to every single one of the ZBAGers whom he has slandered today.



 ZBAG shares all of our reports with both Zenith Aircraft Co., the NTSB, and the FAA. What they do with the information provided is up to them. 



 Regarding access to that same information, Jeff said it very well:



 At 10:23 AM 2/6/2009 -0500, Afterfxllc(at)aol.com wrote:

  	  Quote: 	
		  if you want to know pay your money and find out. 	




 

 

 Terry Phillips, Proud to be a  ZBAGer

 ttp44~at~rkymtn.net

 Corvallis MT

 601XL/Jab 3300 s .. l .. o .. o .. w build kit - Tail, flaps, & ailerons are done; working on the wings

 http://www.mykitlog.com/N47TP/     [quote][b]

_________________
Terry Phillips
Corvallis, MT
ttp44<at>rkymtn.net
Zenith 601XL/Jab 3300 slow build kit - Tail feathers done; working on the wings.

bryanmmartin

Joined: 10 Jan 2006
Posts: 1018

Posted: Fri Feb 06, 2009 10:25 am Post subject: a gentle suggestion

The most recent document is



ORDER 8130.2F

CHG 3



Effective Date:

April 18, 2007



http://tinyurl.com/cy4qav



On Feb 6, 2009, at 12:44 PM, Rhino wrote:



 	  Quote: 	
		  

 The current rules don't require that the FSDO approve any major  

 changes. They simply require a logbook entry and a flight test  

 period, both of which are the responsibility of the builder/owner/ 

 pilot, not the FAA. The only place an FSDO is involved is in  

 approving the location of the flight test area.



 ...



 By the way, although the original date of Order 8130.2E is January  

 23, 2003, two changes have been made to it since then. The 2004  

 requirement I mention above was one of those changes.




	




-- 

Bryan Martin

N61BM, CH 601 XL,

RAM Subaru, Stratus redrive.

_________________
--
Bryan Martin
N61BM, CH 601 XL, Stratus Subaru.
do not archive.

Gig Giacona

Joined: 10 Jan 2006
Posts: 1416
Location: El Dorado Arkansas USA

Posted: Fri Feb 06, 2009 12:05 pm Post subject: Re: a gentle suggestion

[quote="bryanmmartin] As I see it, I built my airplane, I know it better  

than any other person alive, if I determine that a change I make isn't  

going to cause a hazard to anyone else (by performing a proper test  

flight sequence in a safe manner, if necessary), it's nobody else's  

business.



[/quote]

And I agree with you there. But that really isn't the point in question. The issue I'm arguing against and the one that sooner or later could bite us in our collective homebuilding butts is those that would do a major change (a real honest major change) and not follow the rules. And lets face it the rules give us a lot more freedoms in what we do to our planes than do some other country's rules.



Those rules are that way because overall we have followed them or at least not hurt too many people when we didn't. Should the FAA and/or NTSB see that it isn't working they will right more rules. If you doubt that just look at what is happening with the 51% rule.

_________________
W.R. "Gig" Giacona
601XL Under Construction
See my progress at www.peoamerica.net/N601WR

Rhino

Joined: 01 Aug 2007
Posts: 56
Location: Xenia, Ohio

Posted: Fri Feb 06, 2009 12:41 pm Post subject: Re: a gentle suggestion

 	  bryanmmartin wrote: 	
		  The most recent document is



ORDER 8130.2F

CHG 3



Effective Date:

April 18, 2007



http://tinyurl.com/cy4qav



-- 

Bryan Martin

N61BM, CH 601 XL,

RAM Subaru, Stratus redrive. 	


Thanks. That pretty much says what I posted, but even more detailed.

_________________
Bob Simmons
CH 750
N750TN (reserved)

Gig Giacona

Joined: 10 Jan 2006
Posts: 1416
Location: El Dorado Arkansas USA

Posted: Fri Feb 06, 2009 12:57 pm Post subject: Re: a gentle suggestion

OMG.... I some how missed this pearl of wisdom on my first pass through the messages. Of course changing the engine is a major change. And if you don't see the difference between an engine swap and a prop pitch change you are a danger to yourself, anyone that flies with you and anybody that is nearby when you are flying.

 	  Afterfxllc(at)aol.com wrote: 	
		  You guys crack me up... You take things and blow them so out of proportion.  If I take a 2700 cc corvair engine out of my plane and replace it with the exact  same engine it isn't a major change it is a replacement not change. Now if I  were to install a o 235 that would be a major change. You guys need to go flying  more and stop flying in 5 hour circles.

  

 Using some of your logic I guess every prop pitch change is a  Major change and should be written in the logs.... Geeezzz

  

 Jeff

_________________
W.R. "Gig" Giacona
601XL Under Construction
See my progress at www.peoamerica.net/N601WR

Afterfxllc(at)aol.com
Guest

Posted: Fri Feb 06, 2009 1:40 pm Post subject: a gentle suggestion

Ok Gig

  

  

 Here is the reg... now show me where this is a major change

  

 Â§ 21.93   Classification of changes in type design.

(a) In  addition to changes in type design specified in paragraph (b)  

of this  section, changes in type design are classified as minor and  

major. A  â€œminor changeâ€ is one that has no appreciable effect on the  

weight,  balance, structural strength, reliability, operational   

characteristics, or other characteristics affecting the airworthiness   

of the product. All other changes are â€œmajor changesâ€ (except as   

provided in paragraph (b) of this section).



  

 Now does it effect the weight? NO

 Does it effect the Balance? NO

 Does it effect the structural strength? NO

 Does it effect Reliability? NO engine for engine should be just as  reliable

 Does it effect operational characteristics? NO

 Does it effect other characteristics affecting the airworthiness of  the product? NO

  

 All you have to do is make a log book entry of the serial # change of the  engine.

  

 As I said if you change engines ie a Corvair to a O 235 that would be a  major change.

  

 But you do what you like and stay in flight testing forever Gig. 

  

 And you can leave the personal attacks for the KR list. Somehow because you  think you know everything and I disagree with you I somehow put people in  danger is a stupid statement on your part.

  

 Jeff

  

  

  

  

  

  

  

 --> Zenith-List message posted by: "Gig Giacona"  <wrgiacona(at)gmail.com>



OMG.... I some how missed this pearl of  wisdom on my first pass through the messages. Of course changing the engine is a  major change. And if you don't see the difference between an engine swap and a  prop pitch change you are a danger to yourself, anyone that flies with you and  anybody that is nearby when you are flying.



Afterfxllc(at)aol.com  wrote:

 	  Quote: 	
		   You guys crack me up... You take things and blow them so out of  proportion.  If I take a 2700 cc corvair engine out of my plane and replace  it with the exact  same engine it isn't a major change it is a replacement  not change. Now if I  were to install a o 235 that would be a major change.  You guys need to go flying  more and stop flying in 5 hour  circles.

   

  Using some of your logic I guess  every prop pitch change is a  Major change and should be written in the  logs.... Geeezzz

   

  Jeff


	




  	  Quote: 	
		  -->    Zenith-List message posted by: "Gig Giacona"    <wrgiacona(at)gmail.com>



OMG.... I some how missed this pearl of    wisdom on my first pass through the messages. Of course changing the engine is    a major change. And if you don't see the difference between an engine swap and    a prop pitch change you are a danger to yourself, anyone that flies with you    and anybody that is nearby when you are    flying.



Afterfxllc(at)aol.com wrote:

 	  Quote: 	
		   You guys crack me    up... You take things and blow them so out of proportion.  If I take a    2700 cc corvair engine out of my plane and replace it with the exact     same engine it isn't a major change it is a replacement not change. Now if    I  were to install a o 235 that would be a major change. You guys need to    go flying  more and stop flying in 5 hour circles.

      

  Using some of your logic I guess every prop pitch change is    a  Major change and should be written in the logs....    Geeezzz

   

  Jeff

  

	

	


 

  

 Great Deals on Dell Laptops. Starting at $499.

notsew_evets(at)frontiern
Guest

Posted: Fri Feb 06, 2009 2:24 pm Post subject: a gentle suggestion

[quote] ---

bryanmmartin

Joined: 10 Jan 2006
Posts: 1018

Posted: Fri Feb 06, 2009 3:01 pm Post subject: a gentle suggestion

Even on type certificated aircraft, I don't think replacing an old  

engine with a new one of the same make and model is considered a major  

change.

On Feb 6, 2009, at 3:57 PM, Gig Giacona wrote:



 	  Quote: 	
		   



 OMG.... I some how missed this pearl of wisdom on my first pass  

 through the messages. Of course changing the engine is a major  

 change. And if you don't see the difference between an engine swap  

 and a prop pitch change you are a danger to yourself, anyone that  

 flies with you and anybody that is nearby when you are flying.




	


-- 

Bryan Martin

N61BM, CH 601 XL,

RAM Subaru, Stratus redrive.

do not archive.

_________________
--
Bryan Martin
N61BM, CH 601 XL, Stratus Subaru.
do not archive.

Afterfxllc(at)aol.com
Guest

Posted: Fri Feb 06, 2009 3:56 pm Post subject: a gentle suggestion

You don't, all you do is write the new engine info in the logs and go fly.  I will agree that if in our case you didn't fly a few hours around the  patch whether required to or not would be foolish but we don't have to if we  choose not to. 

  

 Like most of the rules made by the FAA they are allowing for pilots to make  the right decisions and most would but a few won't and some of the rules are  left to interpretation. 

  

 Some A&P's don't fly and they change out engines all the time and  simply sign them off and the pilot goes flying... I was shocked by this and  thought this is crazy but that's how it's been done for years and as long as we  self police the system works well.

  

 Jeff

  	  Quote: 	
		  Even on    type certificated aircraft, I don't think replacing an old  

engine    with a new one of the same make and model is considered a major     

change.

On Feb 6, 2009, at 3:57 PM, Gig Giacona    wrote:



 	  Quote: 	
		   --> Zenith-List message posted by: "Gig Giacona"    <wrgiacona(at)gmail.com>



 OMG.... I some how missed this    pearl of wisdom on my first pass  

 through the messages. Of    course changing the engine is a major  

 change. And if you don't    see the difference between an engine swap  

 and a prop pitch    change you are a danger to yourself, anyone that  

 flies with you    and anybody that is nearby when you are flying.

	

	


 

  

 Great Deals on Dell Laptops. Starting at $499.

  [quote][b]

JAPhillipsGA(at)aol.com
Guest

Posted: Fri Feb 06, 2009 7:37 pm Post subject: a gentle suggestion

maybe you guys ought to get  married.

 Who's never won?  Biggest Grammy Award surprises of all time on AOL Music.

  [quote][b]

Gig Giacona

Joined: 10 Jan 2006
Posts: 1416
Location: El Dorado Arkansas USA

Posted: Fri Feb 06, 2009 8:23 pm Post subject: Re: a gentle suggestion

A type certified engine is assumed to be reliable. A auto conversion isn't or at least shouldn't be until tested.

_________________
W.R. "Gig" Giacona
601XL Under Construction
See my progress at www.peoamerica.net/N601WR

hills(at)sunflower.com
Guest

Posted: Fri Feb 06, 2009 11:17 pm Post subject: a gentle suggestion

OK GUYS, HERE IS THE ORIGINAL COURT TEXT,,, READ AND LEARN FROM IT !!!!!



Roger



MAGILL, Senior Circuit Judge:

Avemco Insurance Company (Avemco) issued an insurance policy covering

William Davenport's home-built experimental aircraft. After Davenport's

aircraft crashed on May 7, 1995, Avemco sought a declaration from the

district court that, because Davenport had not complied with the terms of

the policy, Avemco had no duty to defend or indemnify Davenport for any

claims arising from the accident. The district court granted summary

judgment in Avemco's favor, and Davenport now appeals. We affirm

I.

Davenport, an experienced pilot and builder of experimental aircraft, holds

a private pilot certificate and a repairman's certificate issued by the

Federal Aviation Administration (FAA). Prior to the events giving rise to

this case, Davenport built a "VariEze" aircraft from plans he purchased from

Rutan Aircraft. Davenport eventually sold the VariEze and began building a

second aircraft in 1992. The second plane was built largely from Rutan

Aircraft's "Long EZ" plans. Because Davenport made several modifications to

these plans, he refers to his hybrid design as the "Davenport Long EZ."

In September 1994, Davenport purchased an amateur-built aircraft insurance

policy from Avemco, which provided coverage from September 13, 1994, to

September 13, 1995. The policy contained an exclusion from liability that

stated:

This Policy does not cover bodily injury, property damage or loss . . .

[w]hen your insured aircraft is in flight unless it[ ] is certified for

flight by the FAA, initially, and after a modification which requires

recertification.

Avemco Policy at 3 (emphasis omitted) (Policy Exclusion).

The FAA initially certified Davenport's aircraft as airworthy in April 1993,

but conditioned Davenport's airworthiness certificate on thirteen "Operating

Limitations. " One limitation required that "[t]he cognizant FAA Flight

Office must be notified and their response received in writing prior to

flying this aircraft after incorporating a major change as defined by [14

C.F.R. S 21.93]." Special Airworthiness Certificate, Operating Limitation

No. 10 (emphasis added). A major change is any change having any

"appreciable effect on the weight, balance, structural strength,

reliability, operational characteristics, or other characteristics affecting

the airworthiness of the product." 14 C.F.R. S 21.93(a) (1993).

According to Davenport, his aircraft was equipped with a gravity feed fuel

system at the time of the FAA's initial certification. This design relies on

gravity to transfer fuel from the fuel tanks through a fuel line and into

the engine. After receiving his initial certification, Davenport made a

series of changes to his fuel system without notifying the FAA. Davenport

first converted the gravity feed system into a pressurized fuel system by

installing a mechanical fuel pump and an electric boost pump. After flying

the aircraft for fifteen hours, Davenport removed the fuel pumps and

reconfigured the system to its original gravity feed design, again without

notifying the FAA. Hoping to improve the performance of his aircraft,

Davenport soon reinstalled the mechanized fuel pumps but again failed to

inform the FAA of this change. Davenport eventually grew dissatisfied with

the pressurized fuel system, and he removed the pumps--once again without

notifying the FAA. In sum, following the FAA's initial certification,

Davenport made four modifications to the design of his fuel system without

notifying the FAA of these changes or seeking FAA recertification of his

aircraft.

On May 7, 1995, with the most recent version of the gravity feed fuel system

in place, Davenport crashed his aircraft near an airport in Santa Monica,

California. The accident caused property damage on the ground, which in turn

spawned numerous claims against Davenport in California state courts.

Avemco filed this suit in federal district court, asserting diversity

jurisdiction and seeking a declaration that it had no duty to defend or

indemnify Davenport for claims arising from the accident. On October 30,

1996, the district court granted summary judgment in Avemco's favor. The

district court held that the Policy Exclusion applied because Davenport had

not recertified his aircraft after he modified its fuel system without

notifying the FAA. Davenport now appeals.

II.

We review the district court's grant of summary judgment de novo. Wendt v.

Host Int'l Inc., 125 F.3d 806, 809 (9th Cir. 1997). Summary judgment is

appropriate if there is no genuine issue of material fact and if the movant

is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).1

Under California law, the language of a contract governs its interpretation

"if the language is clear and explicit, and does not involve an absurdity."

Cal. Civ. Code S 1638. "[I]f the meaning a layperson would ascribe to

contract language is not ambiguous, we apply that meaning." AIU Ins. Co. v.

Superior Court (FMC Corp.), 799 P.2d 1253, 1264 (Cal. 1990). Exclusionary

language that limits coverage under an insurance policy must be conspicuous

and phrased in clear language. Hertz Corp. v. Home Ins. Co., 18 Cal. Rptr.

2d 267, 273 (Cal. Ct. App. 1993).

[1] We hold that the language of the Avemco policy clearly excluded coverage

in this case. The Policy Exclusion stated that Davenport's aircraft would be

covered only if it was certified for flight "after a modification which

requires recertification." Avemco Policy at 3. This language explicitly

premised coverage on Davenport's compliance with FAA restrictions. These

restrictions included an operating limitation that required Davenport to

notify the FAA upon making a change that could affect the "reliability,

operational characteristics, or other characteristics affecting the

airworthiness of the [aircraft]." 14 C.F.R. S 21.93(a). Davenport's failure

to notify the FAA prior to his initial modification of the fuel system

violated the operating limitation on his airworthiness certificate and

prohibited Davenport from operating the aircraft without recertification.

See 14 C.F.R. S 91.9(a) (1993) ("[N]o person may operate a civil aircraft

without complying with the operational limitations . . . prescribed by the

certificating authority of the country of registry."). Davenport's failure

to notify the FAA of his repeated modifications to his aircraft's fuel

system clearly triggered the Policy Exclusion and released Avemco from any

obligation to indemnify Davenport.

[2] Davenport argues that the series of modifications he made to his

aircraft's fuel system did not constitute a "major change" because the fuel

system at the time of the crash was in the same configuration as at the time

of the initial certification. We reject this argument. Common sense dictates

that altering the method of delivering fuel to the engine of an aircraft has

an obvious and substantial effect on the "reliability, operational

characteristics, or other characteristics affecting the airworthiness of the

[aircraft]." 14 C.F.R. S 21.93(a).2 The fact that Davenport made repeated

changes to the fuel system did not remedy his failure to notify the FAA

prior to making each change. Each change Davenport made to the fuel system

was major, and each change therefore required FAA notification under the

operating limitation.

Davenport also argues that the Policy Exclusion was vague and ambiguous, and

that it should therefore be construed to allow coverage. "[W]ords in an

insurance policy must be read in their ordinary sense, and any ambiguity

cannot be based on a strained interpretation of the policy language. "

Producers Dairy Delivery Co. v. Sentry Ins. Co., 718 P.2d 920, 925 (Cal.

1986). Furthermore, the "language in a contract must be construed in the

context of that instrument as a whole, and in the circumstances of that

case, and cannot be found to be ambiguous in the abstract." Bank of the West

v. Superior Court (Industrial Indem. Co.), 833 P.2d 545, 552 (Cal.

1992)(quotations and emphases omitted).

[3] We find no ambiguity in Davenport's policy. The policy clearly linked

Avemco's coverage to the continued validity of the FAA's certification of

Davenport's aircraft. Because California courts do not find ambiguity in

exclusions that similarly incorporate FAA requirements by reference, see,

e.g., Threlkeld v. Ranger Ins. Co., 202 Cal. Rptr. 529, 532 (Cal. Ct. App.

1984), we will not do so here.

[4] Davenport finally argues that, even if there is no duty to indemnify,

Avemco owed Davenport a duty to defend against pending state suits. Although

the duty to defend is broader than the duty to indemnify, see Horace Mann

Ins. Co. v. Barbara B., 846 P.2d 792, 795 (Cal. 1993), no duty to defend

arises if the undisputed facts establish that the insured is not entitled to

coverage. Montrose Chem. Corp. v. Superior Court (Canadian Universal Ins.

Co.), 861 P.2d 1153, 1159 (Cal. 1993) (agreeing with lower court that,

"where extrinsic evidence establishes that the ultimate question of coverage

can be determined as a matter of law on undisputed facts, [there is] no

reason to prevent an insurer from seeking summary adjudication that no

potential for liability exists and thus that it has no duty to defend."

(quotation omitted)). Because the facts viewed in the light most favorable

to Davenport could not have established coverage under the policy, Avemco

was entitled to summary judgment on Davenport's allegation of a duty to

defend.

Accordingly, we affirm the judgment of the district court.

AFFIRMED.

________________________________________

1 Because diversity jurisdiction exists in this case, the district court

could hear Avemco's declaratory judgment action in its discretion. See 28

U.S.C. S 2201(a). Because there was no objection to the district court's

exercise of its discretion in hearing this case, and because we do not find

extraordinary circumstances that warrant an independent inquiry by this

Court, we will not review the district court's exercise of its discretionary

jurisdiction. Government Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1224 &

n.4 (9th Cir. 1998) (en banc).

2 Indeed, in an analogous regulation applying to the maintenance and repair

of non-experimental aircraft, the FAA has defined major alterations as

including "[c]hanges to the basic design of the fuel . . . system[ ]." 14

C.F.R. S 43 app. A(a)(1)(xii).



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