New Icon A5 Purchase Contract Will Require Buyers to Sign Away Their Rights to Sue

In the face of intense market rejection, Icon says it has heard its customers and is going to revise the rather onerous purchase contract it planned to require of its buyers.  It hasn’t yet made the new contract public.  But in a statement it says that one thing the new contract will keep is the requirement that anyone buying an A5 sign away their rights to sue Icon after an accident.

Another fundamental tenet of ICON’s approach to safe flight operations, personal pilot responsibility, and product liability-cost reduction is the agreement not to sue ICON for accidents that are not determined to be our fault. Unfortunately, the overwhelming majority of product liability lawsuits are filed against manufacturers even when the manufacturer was not found to be at fault. We must address this. While there is no silver bullet for guaranteeing safety and eliminating all product liability costs, we are working hard to improve it. This is one of those steps. We invite our customers to help us set a new precedent in our industry and to improve this situation by releasing ICON from accidents deemed not to be our fault by the NTSB. Reducing product liability costs is important because it reduces the cost of aircraft and allows manufacturers to spend that money on product development instead of legal fees and lawsuit settlements.  

At first blush, all that sounds reasonable.  Why should an A5 buyer be able to sue Icon after a crash if the NTSB places the blame for an accident elsewhere? 

Well, for one thing, the NTSB is not a fair forum.  After any accident, the NTSB “invites” the aircraft’s manufacturer to participate in the investigation, relying on the manufacturer and its experts to help pinpoint the accident’s cause.  But the NTSB never allows the pilot or the pilot’s passengers to participate, nor does the NTSB allow experts hired by the pilot or the passengers anywhere near the investigation.  The pilot and passengers are entirely excluded. If that sounds like a conflict of interest, it is It’s no wonder the NTSB seldom finds the manufacturers at fault.  Nor is it surprising that courts of law, after hearing from both sides, frequently come to conclusions different than those reached by the NTSB.

And in fact, it is because the NTSB’s investigations are so one sided that NTSB’s conclusions are entirely inadmissible in any court of law anywhere in the country. 

Looks like Icon’s new contract will be as unfair as the one the market rejected back in April.  It’s hard to believe that any buyer who has done his homework would sign it. 

Related post:

April 1, 2016  Icon Aircraft A5 Purchase Agreement: Who would sign this thing? 

Sikkelee v. Precision Airmotive Corp.: Manufacturer Can Be Sued Even Though FAA Approved Design

Here’s the pre-emption argument:

Our plane’s design was approved by the FAA.  If plaintiffs think there is something wrong with it, they should take it up with the FAA. But they should leave us alone.”  

Manufacturers make this argument in just about every aviation case we bring.  We  respond that that the FAA regulations are the bare minima only, and weren’t intended to be the last word on whether an aircraft’s design is safe. Besides, the FAA is stretched so thin that it allows many manufacturers to essentially self-certify their design work.  So in many cases the FAA stamp of approval was placed on the aircraft by someone who was actually on the manufacturer’s payroll.  How safe is that?

Sikkelee v. Precision Airmotive involved the crash of a 1998 Cessna 172.  The plaintiffs alleged the crash was caused by a defective carburetur. The manufacturers asked the court to dismiss the case against them because the aircraft engine's design was FAA-approved.  

The court noted the controversy concerning the FAA’s practice of allowing manufacturers to self-certify, but held it wasn’t really relevant.  Instead, the court agreed with plaintiffs that Congress simply didn’t intend the FAA regulations to be the last word on safety. That means that the regulations did not pre-empt state law, and the plaintiffs' tort case against the manufacturers of the plane and the plane’s engine components could proceed.

The manufacturers argued that if plaintiffs were allowed to sue over products even though they comply with all FAA regulations, it would end up killing the aviation industry.  The court had an answer for that: 

On the contrary, [our holding] simply maintains the status quo that has existed since the inception of the aviation industry, preserving state tort remedies for people injured or killed in plane crashes caused by manufacturing and design defects.”

No question that aviation manufacturers will continue to make the preemption argument going forward, as they are always looking for that sympathetic ear.  They just didn’t find one in the Third Circuit.

Sikkelee v. Precision Airmotive  

Manufacturers of Military Aircraft and the Government Contractor Defense

A crew member injured by an aircraft's defective design may sue to hold the aircraft manufactuSuper Stallion Helicopterrer accountable.  At least he can when the aircraft involved in the accident was a civilian aircraft. If, however, the airplane or helicopter was a military aircraft, then the rules change.

A manufacturer who built an aircraft specifically for the military may be able to avoid liability to those injured by the aircraft's design by asserting the "government contractor defense."  That defense provides the manufacturer complete immunity from lawsuits. But the Supreme Court ruled in Boyle v.United Technologies that a manufacturer can take advantage of that defense only if it can prove all of the following things:

  1. That the US government specifically required or approved the design feature that caused the accident or injury; 
  2. That what the manufacturer built conformed to the specifications that the government approved, and
  3. That the manufacturer warned the government about any dangers in the design that the manufacturer knew about and that the government didn't.

If the manufacturer fails to prove all three of these things, then it may be sued just as a manufacturer of a civilian aircraft, and an injured crewmember is entitled to hold it accountable for any injuries the aircraft's design caused him.  

No One Should Suffer Burn Injuries in a Survivable Helicopter Crash

During the Vietnam war, hundreds of soldiers suffered serious burn injuries following otherwise survivable Huey helicopter crashes.  In 1970, Bell Helicopter responded by developing a crashworthy Huey photo by Cranefuel system and installing it in the new Hueys it produced.  The crashworthy system included stronger fuel cells, breakaway fuel lines, and cutoff valves.  

The Army kept track of the effectiveness of the new fuel system.  Over the next 39 months, 895 helicopters without the new system crashed.  Post impact fires resulted in 52 burn fatalities and 31 burn injuries.  Over the same time period, 702 helicopters with the new crashworthy fuel system went down.  Remarkably, there was not a single thermal injury or death in any of those crashes.  That was enough to convince the Army.  After that, it required all its helicopters to be manufactured with the crashworthy fuel system.   

Today, no one should be burned in an otherwise survivable helicopter accident.  The technology has long existed to almost completely eliminate post-crash helicopter fires. But while the risk has been virtually eliminated in military helicopter operations, post crash fires are still the single biggest hazard to survivors of civilian helicopter crashes. (pdf) That's because some civilian helicopter manufacturers have resisted incorporating crashworthy fuel systems into their designs.    

Helicopter manufacturers know that some of the aircraft they manufacturer will inevitably be involved in accidents.  They must take steps to make their civilian helicopters reasonably safe in the event of an accident, just as they do when building helicopters for the military.  If someone is burned in a civilian helicopter crash, then the aircraft's design may well be proven to be defective, and the manufacturer held accountable for the injuries its design has caused. 

Manufacturers' Immunity from Product Defect Suits under GARA

The General Aviation Revitalization Act, known as “GARA,” immunizes general aviation manufacturers from lawsuits for defectively designed or manufactured aircraft that are more than 18 years old. Regardless of how serious the defect, if the aircraft is more than 18 years old, an injured victim cannot sue its manufacturer.

There are exceptions.  An injured party can sue the manufacturer regardless of the defective aircraft's age if:

  • The aircraft, when first certified, seated 20 or more passengers;
  • The aircraft is engaged in “scheduled” passenger operations;
  • The victim was a passenger (not a crew member) in an air ambulance;
  • The manufacturer misrepresented important information about the aircraft’s safety to the FAA during the aircraft certification process;
  • The accident occurred as a result of a part that was replaced on the aircraft less than 18 years before the accident; or
  • The victim was not an occupant of the aircraft.