The victim’s family is seldom in the best emotional state to make important decisions right after an airplane or helicopter accident.  The stresses can be overwhelming.  Fortunately, hiring an aviation attorney is one decision that is seldom urgent.  It is a decision that, in most cases, can wait.

But how long is too long to wait?  Certainly, the attorney who the family eventually selects will want to investigate the accident, interview witnesses, collect evidence and make sure the wreckage is preserved.  He would like to begin his work while the evidence is fresh. The more time that passes, the harder it will be for the attorney  to prepare the case properly.  That said, as long as the wreckage remains secure in the custody of the NTSB, it is usually safe to wait up to 90 days after an accident before retaining an aviation lawyer.

Some families may want to wait longer than that.  In fact, some may want to wait until the NTSB has completed its work.  That’s not a good idea.  In most cases, a lawyer should have investigated the case and, if warranted, filed a lawsuit well before the NTSB’s issues its final report, for the reasons discussed here.  

In all cases, the victims must retain an aviation lawyer before the applicable statute of limitations runs.  It doesn’t matter how good the case is — if the applicable statute of limitations expires and no lawsuit is on file, the victim’s rights will be lost forever.  Some statutes of limitation may expire as soon as 6 months after the accident.  Of course, every case is different.  Though some of the statutes of limitations are discussed here, determining which statute of limitation applies is a task best left to a qualified aviation lawyer.   

Are written waivers of liability worth the paper they are written on?  The answer, of course, is that it depends.  In California, a waiver that a passenger signs before stepping into an aircraft is enforceable, as long as it meets certain rules.  For example:Waiver

  • The waiver language must be clear and conspicuous to the person signing away his rights—not buried in fine print.
  • A passenger cannot waive liability for injuries resulting from another’s recklessness. 
  • A waiver will not release an employer from liability to an employee for risks that are inherent in the employee’s job.
  • A passenger cannot waive liability for injuries resulting from an aircraft’s defective design or manufacture.  

Despite the rules, a waiver can be written in such a way that it will, in most situations, prevent a passenger from obtaining compensation for injuries received in an aviation accident caused by another’s negligence.  In fact, a well-written release can prevent not just the passenger who signed it from suing, but in the event of the passenger’s death, his heirs as well.   But the release must be properly drafted. The language used is critical.  Many releases look "official" but simply do not pass muster.

The families of Michael and Anne Harris, the American couple on board Air France Flight 447, filed suit this week in Houston federal court.  It’s the first lawsuit arising from the crash. The most frequently asked questions about this suit are:

Question:  Aren’t the families jumping the gun?  The Air France Fuselage Recoveryblack boxes haven’t yet been recovered, and may never be.  For all we know, this may have been the result of a chance encounter with a thunderstorm.  The crash may have been an unavoidable accident with no one to blame.

Answer: The Montreal Convention is the international treaty that governs all claims against airlines involving international air travel.  Under the convention, Air France is responsible even if the the crash was "just an accident."  As a result, Air France must compensate the families for their loss regardless of what the cause of the crash turns out to be.

Question: Flight 447 was from Rio de Janeiro to Paris on a French airline.  Why should the families be allowed to sue in Houston, of all places?

Answer: The Montreal Convention allows the families to sue in the country of the passenger’s "principal and permanent" residence.  The families say that, though the couple was living in Brazil, the couple maintained a permanent residence in The Woodlands, a suburb of Houston.  If that’s so, the families have a good argument tha they are entitled to sue in Houston.

Question: Why did the families file suit in federal court, rather than state court?

Answer: Many aviation lawyers believe that state courts are more favorable than federal courts for family members who have suffered a loss.  So victims’ attorneys often prefer to sue in state court.  However, a fairly new federal statute requires almost all cases arising from large air disasters to be heard in federal court.

More Air France Flight 447:

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. 

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.

 

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.

 

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.

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. 

The victim of an airplane or helicopter accident must act on his rights or lose them forever.  That means the victim must file a lawsuit by the appropriate deadline.  In some cases, the victim must first file a special claim form with the right governmental agency.  If he fails to do so on time, or files it with the wrong agency, he willl not be permitted to later sue the government agency that is responsible for his injuries.

The deadlines vary according to the type of claim as well as other factors. A victim should consult an aviation lawyer to determine which deadline applies.  Some of the more common deadlines that may apply in California cases:

  • Cases involving International Air Travel (Warsaw and Montreal Conventions)  – Lawsuit must be filed within 2 years of the aircraft’s arrival (or expected arrival) at the destination.
  • Cases against California Governmental Entities (such as those involving municipal airports) – Victim must file a special governmental Claim Form (pdf) within 6 months of accident or no lawsuit is thereafter allowed; lawsuit must be filed no later than 6 months after the governmental agency rejects the claim.
  • Cases alleging negligence or products liability (including design defect)  – Lawsuit must be filed within 2 years of accident.
  • Cases against the Federal Government (such as those involving weather reporting or air traffic control errors) – Victim must file a special Federal Tort Claims Act Claim Form (pdf)  within 2 years of accident or injury; suit must be filed no later than 6 months after government rejects the claim.
  • Cases against EMS Helicopter/Air Ambulance Operators, if MICRA applies – Lawuit must be filed within 3 years of accident; other pre-filing requirements may apply.  Otherwise, lawsuit must be filed within 2 years of accident.
  • Claims against the estate of someone who caused the accident but who has since died are often subject to shorter statutes of limitations than set forth above.  Some deadlines are as short as 6 months.

Additional deadline:

  • Cases against aircraft manufacturer – (including those alleging design defect) –  No lawsuit allowed if accident occurred more than 18 years after date of manufacturer of aircraft of part causing the injury, subject to certain exceptions set forth in the General Aviation Revitalization Act. 

Some deadlines are extended under special circumstances, such as when the victim is a child.  On the other hand, some deadlines, like the 2- year Warsaw Convention deadline, are not extended for any reason.

Maintenance manuals tell the mechanic when to perform an inspection or service, and how to perform it.  Many mechanics believe that the regulations require them to follow the book exactly.Aircraft Mechanic But in an excellent column on this murky subject, mechanic and aviation author Mike Busch sums up the regulatory requirements nicely:

The manufacturer’s “how-to” instructions are compulsory, but the manufacturer’s “when-to” instructions are not.

Let’s say, for example, that the manual requires the aircraft’s spark plugs to be removed and regapped every 100 hours. If a mechanic decides to service the aircraft’s spark plugs, he must do it exactly as instructed in the aircraft manual. The regulations, however, do not require the mechanic to follow the manufacturer’s instructions at all concerning when or how often to service the plugs, regardless of how much time the engine has accumulated. As Busch explains:

No manufacturer can mandate any maintenance requirement on a part 91 aircraft owner; only the FAA can do so.

There is another part of the story, however, that Busch’s column doesn’t address. The FAA regulations are bare minimum requirements only.  If an accident occurs because the mechanic failed to comply with the manufacturer’s recommendations, questions can arise as to whether the mechanic was negligent – that is, not reasonably careful — and thus liable to those injured as a result.  A jury may conclude that, though the regulations didn’t require him to, a reasonably careful mechanic would have followed the manufacturer’s recommendations anyway.  After all, does a reasonably careful mechanic believe he knows better than the manufacturer?