Preserving the Aircraft Wreckage

Posted on September 28, 2009 by Mike Danko
What happens to the wreckage after an airplane accident? Who gets access to it? What does the aviation accident attorney need to do to make sure it is properly preserved?
 
Here's what happens: 
 
1. The National Transportation Safety Board Secures the Wreckage on Site. The wreckage usually remains at the site of the aircraft accident until the National Transportation Safety Board arrives. The Board investigator immediately secures the wreckage and makes Wreckage Awaiting NTSBsure no one tampers with it.  The Board investigator inspects, documents, and photographs the wreck.
 
2. The Wreckage is Removed to a Secure Location. After the Board investigator has inspected the wreckage on site, it asks a salvage company to remove it to a secure location.  The salvage company usually cuts the aircraft up, loads it on a truck and carts it away.  Wreckages from northern California airplane accidents often end up at a facility called Plain Parts in Pleasant Grove near Sacramento.  Wreckages from southern California accidents often end up at Aircraft Recovery Services in Pearblossom, California. Though the wreckage is now in the hands of a private salvage company, it is still considered to be in the custody of the NTSB. The salvage yard operators are supposed to allow no one access to the wreckage without the NTSB's permission.
 
3. The NTSB Goes to the Storage Facility. The NTSB visits the storage facility with the other parties whom the NTSB has invited to participate in the accident investigation.  (As discussed here, the NTSB often invites the aircraft and engine manufacturer to participate in the investigation. The NTSB never invites the victim or the victim's representatives. In fact, the NTSB won't even allow the victim or his representatives access to the wreckage.)  The NTSB and the invited parties conduct a more detailed inspection of the parts, and they may disassemble the engine. They may send parts out for testing. 
 
4. The Wreckage is "Released" to the Owner.  When the NTSB is done with its various inspections, it "releases" the wreckage to the owner.  By now, legal title to the aircraft has often changed from its original owner to the insurance company that paid for the loss of the aircraft. As far as the NTSB is concerned, the owner -- whether it's the insurance company or the original owner -- is now free to do with the wreckage what it wants, including scrapping it or selling it.    
 
Of course, the aircraft wreckage is important evidence. Therefore, before the NTSB releases the wreckage, the aviation attorney must take whatever steps are necessary to make sure the wreck is preserved.  The victim's attorney needs to determine who the aircraft wreckage's owner is, and he must obtain the owner's written agreement to keep the wreck secure once the NTSB releases it. If the owner refuses, or threatens to destroy the wreck, the attorney may need to seek a court order. 
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Hudson Mid-Air: NTSB's Comments Supported by Audio Recording?

Posted on September 21, 2009 by Mike Danko

NTSB Chairman Deborah Hersman's recent testimony before congress concerning the mid-air collision over the Hudson raises more questions than it answers.  She stated that  the Teterboro controller instructed the Piper pilot to switch to frequency 127.85 to contact the Newark controller.  But before leaving the Teterboro frequency, according to Hersman, the pilot read back to the controller "127.87,"  which was wrong.  Thereafter, the pilot was in contact with neither Teterboro nor Newark, and so neither facility could warn him of the impending collision. Hersman's remarks are here.

Hersman's implication is that the Teterboro controller failed to correct the pilot, and so the controller contributed to the pilot's getting "lost in the hertz" (out of radio contact) at a crucial moment.  However, the animation that the NTSB released on the same day that Hersman testified does not appear to back Hersman up.  It just doesn't sound as though the pilot read back "127.87" as Hersman states.  You can listen to the audio yourself beginning at minute 2:25. 

 

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Requiring an Aviation Insurance Company to Pay More Than the Policy Limits

Posted on September 17, 2009 by Mike Danko

An aviation insurance company must fairly compensate those injured due to the negligence of one of its policy holders.  Of course, in most cases, the insurance company's  financial responsibility is limited to the dollar limits of the insurance policy. 

But not always. 

When an insurance company unreasonably forces an aviation accident victim to take his case to trial instead of paying the policy limits to settle out of court, the rules change.  In that situation, the insurance company may be required to pay whatever amount the jury decides would fairly compensate the injured person, even if that amount is more than the limits of the policy.  That is because an insurance company who unreasonably refuses to pay its policy limits to settle a case is considered to be acting in "bad faith." 

Here's an example of how California insurance law works. Let's say that a passenger is injured in an aircraft crash, and that the crash was caused by the pilot's negligence.  Let's also say that the passenger has medical bills and lost wages or more than $250,000, but that the limit of the pilot's insurance policy is only $100,000.  If the injured passenger demands  from the pilot's insurance company $100,000 to settle out of court, the insurance company should pay it.  After all, it would be unreasonable not to pay that amount given the harm  the passenger has suffered.  But what if the insurance company decides to play "hard ball" and force the case to trial?  If a jury renders a verdict against the pilot of, say, $500,000, the insurance company may be required to pay the entire amount.  It is no defense that its policy was for only $100,000.  

This doesn't mean that the insurance company must automatically fork over the policy limits to the accident victim in every case. Rather, the insurance company must pay the limits to settle only when it would be unreasonable not to.  In short,  if the insurance company decides to play hardball with the injured party, then the insurance company can be held financially responsible for the consequences.

 

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What Family Members Are Entitled To Compensation For the Loss of A Family Member in An Airplane or Helicopter Accident?

Posted on September 9, 2009 by Mike Danko

When someone is killed in an airplane or helicopter accident, California's wrongful death law allows only certain members of the victim's family to obtain monetary compensation from those who are responsible.  The family members who are entitled to compensation are:

  • The victim's Spouse or registered Domestic Partner
  • The victim's Parents – but not where the victim left children, unless the parents were financially dependent on the victim
  • The victim's Children, including Adopted Children
  • The victim's Stepchildren – but only if they were financially dependent on the victim 
  • Unrelated children in the victim’s care – If the child lived with and was financially dependent on the victim for the 180 days before the victim’s death 
  • The victim's Brothers & Sisters – but only when the victim left no other relatives with a right to sue.  

Many aviation accidents occur over navigable waters.  When that happens, maritime law may apply and the rules can be slightly different.  For example, parents may be entitled to compensation for the loss of their son or daughter, even though the son or daughter was married with children, and though the parents were not financially dependent on him or her.

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EMS Helicopter Safety: NTSB Pushes the Envelope

Posted on September 3, 2009 by Mike Danko

There's little question that EMS helicopters are the most dangerous aircraft in the sky. EMS helicopters have a fatal accident rate 6000 times that of commercial airliners. Flying EMS helicopters is one of the most dangerous jobs in America.  In fact, according to the Washington Post, only working on a fishing boat is riskier.  And the EMS helicopter safety record is getting worse, not better.

EMS helicopterWhy, exactly, is the EMS helicopter accident record so bad?  As discussed here, one problem is that it's not clear who is ultimately responsible for overseeing the industry. State agencies, county agencies and the federal government all have a hand in oversight but no one appears to be in charge. That means that definitive industry standards cannot be established and hazards cannot be effectively managed.

This week, the NTSB recommended that the FAA take steps to address the most serious of the industry's problems. Some of the those recommendations are not particularly surprising. For example, the NTSB suggests that pilots be better trained in bad weather flying, and that helicopters be equipped with night vision equipment and autopilots.

One of the NTSB's recommendations, however, no one saw coming.  The NTSB suggests that Medicare -- which funds most of the EMS helicopter industry by paying up to $20,000 for each patient transport -- adjust its rate reimbursement structure according to the level of safety the helicopter company provides.  In plain english, the NTSB suggests that Medicare not pay air ambulance companies unless they meet certain safety standards.  NTSB board member Robert Zumwalt concedes this recommendation "pushes the envelope".  But the air ambulance record is so bad, extreme steps are necessary.

By targeting the air ambulance industry's source of funding, the NTSB is looking beyond the FAA for help in making the air ambulance industry safer.  Why not just leave it to the FAA?  For one thing, the FAA has yet to act on the EMS helicopter recommendations the NTSB made 3 years ago.  The NTSB is hoping the Department of Health and Human Services (Medicare) will be more responsive to its safety concerns than the FAA has been. 

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