Aviation Law Monitor

Avoiding the Empty Chair Defense

mdanko@dankolaw.com (Mike Danko) — Sun, 13 Dec 2009 10:19:23 -0800

In the early stages of a lawsuit, it is often unclear which of two different defendants is responsible for an aviation accident. But as the case progresses, evidence may point to one defendant over another. When that happens, it may seem like a good idea for the victim to settle with (or dismiss from the lawsuit) the defendant whose liability appears tenuous, and to proceed to trial against the defendant who appears blameworthy. Experienced aviation lawyers think carefully, however, before following that course, for fear of creating an "empty chair" in the courtroom.

Let's say that, at the outset of the case, it is unclear whether the aircraft crash was caused by the defective design of a part (for which the aircraft manufacturer would be responsible), or negligent maintenance (for which the aviation mechanic would be responsible). But let's say that, as the suit progresses, evidence is uncovered indicating that the responsibility should rightfully lie with the manufacturer. It may seem like good sense to dismiss the mechanic from the lawsuit and proceed to trial against only the manufacturer. Doing so, however, may allow the manufacturer to argue to the jury that the one truly responsible for the accident is someone who is not present in the courtroom -- someone who should be seated in the "empty chair," but whom the victim decided not to bring into court.

This strategy is called "blaming the empty chair." Of course, the "empty chair" cannot defend itself. Thus, if allowed to employ this tactic, the wrongdoer can sometimes escape liability altogether.

New Rules To Keep Tour Helicopters Apart From Airplanes Transitioning Through Hudson River Corridor

mdanko@dankolaw.com (Mike Danko) — Sat, 12 Dec 2009 12:24:52 -0800

The FAA has instituted new rules designed to keep sightseeing helicopters from colliding with airplanes that are transitioning the Hudson River Corridor near the Statue of Liberty. The San Francisco Daily Journal, California's largest legal newspaper, published this column on how the new rules came to pass, and why they aren't enough.

FAA and NTSB Battle Over Aviation Safety

Mountain Lifeflight EMS Helicopter Crash Update

mdanko@dankolaw.com (Mike Danko) — Sun, 06 Dec 2009 22:27:16 -0800

The NTSB's preliminary report on the crash contains little more than what was in the news accounts. The report does, however, offer one bit of new information. The helicopter impacted on a magnetic heading of 230 degrees. That heading is not in line with the route from Reno to Susanville. While that might ultimately prove to be important, little can be made of that information without a careful examination of the layout of the terrain near the accident site and the roadway that the pilot might have been using to aid in his navigation.

Though the information in the NTSB's official report is sparse, an NTSB spokesman did offer his expanded comments to Mary Pat Flaherty, a reporter for the Washington Post who has been following the poor EMS safety record during the past months. The NTSB's Ted Lopatkiewicz told Flaherty that the Mountain Lifeflight helicopter didn't have certain important safety equipment. Lopatkiewicz was referring to the helicopter's lack of an autopilot, a ground proximity warning system, night vision goggles (discussed in this post), and other equipment necessary to navigate in poor weather.

But in this case the pilot was flying in good weather. He did not collide with the ground because he could not see it. Rather, as discussed here, it appears that the pilot crashed because of some type of mechanical problem with the helicopter. It's unlikely the helicopter's lack of advanced equipment played any role in the accident at all.

Mountain Lifeflight EMS Helicopter Crash at Doyle, California

EMS Helicopter Safety: NTSB Pushes the Envelope

OSC: FAA Ignoring EMS Helicopter Dangers For Fear of Negative Publicity

Running Past TBO: Smart Economics or Owner Negligence?

mdanko@dankolaw.com (Mike Danko) — Fri, 04 Dec 2009 21:44:08 -0800

Aircraft engine manufacturers recommend that owners overhaul their engines when they accumulate a certain amount of operating time, usually between 1200 and 2400 hours depending on the engine's make and model. For example, Teledyne Continental Motors suggests that owners overhaul its IO-550 model engine at 2000 hours. Textron Lycoming suggests that owners overhaul its O-235 engine, like the one pictured, at 2400 hours.

Overhauls are expensive. Some can cost $40,000 or more. An increasing number of owners opt to run their engines 200, 400 or more hours past the manufacturer's recommended "time between overhauls," or TBO. Once past TBO, they may take extra precautions by, for example, regularly sending out engine oil samples for spectrographic analysis, checking the engine’s compression, and looking inside certain parts of the engine with a boroscope to insure that things look good. They feel the manufacturer's TBO recommendations are somewhat arbitrary. By running their engines past TBO they are squeezing more life out of them, and that just makes good economic sense.

The FAA does not require private owners to comply with the manufacturer’s stated TBO interval. The manufacturer's TBO is therefore advisory only. As long as a properly certified mechanic has

within the previous twelve months certified that the engine is airworthy, then the owner is, from a regulatory standpoint, free to operate the engine as many hours as he wishes.

But if an owner does operate past TBO, and the engine fails, and a passenger is hurt as a result, could the owner be held accountable despite the fact he was in compliance with all FAA regulations?

You bet.

An owner can be held accountable for an accident after TBO if a judge or jury decides that:

1. in not complying with the manufacturer's overhaul recommendations, the owner was negligent (not "reasonably careful" under the circumstances) and

2. the negligence was a cause of the accident.

The FAA regulations are minimum standards only. Many would argue that more can and should be expected of a reasonably careful owner or operator. If a judge or jury agrees, then the operator would be held responsible for the harm resulting from running the engine past TBO, even though the regulations allowed him to.

How would the aviation attorney representing the injured passenger establish the owner's liability? Through expert testimony. Let's say that at 100 hours past TBO an exhaust valve failed, the engine lost power, and an accident resulted. It wouldn't be difficult to establish a causal link between the owner's decision to run the engine past TBO and the engine failure.

Q: Mr. Metallurgist, did you find any defect in the exhaust valve?

A: No, it was manufactured properly and was a fine example of an exhaust valve in all respects.

Q: Then why did it fail?

A: It failed in fatigue. It took all the vibration, bending, and heat that it could and then it finally quit.

Q: Would it have broken if the owner had not continued to run the engine past the manufacturer's 2000 hour overhaul interval?

A: No, sir, it would not have broken had the owner followed the manufacturer's recommendation.

Q: How do you know that?

A: Well, for one thing, it completed the manufacturer's service interval without breaking. It broke only when the owner asked more of it than the manufacturer recommended. Certainly, had the engine been overhauled at 2000 hours and a new valve installed, one would not expect it to have failed in fatigue 100 hours later. Rather, one would have expected the valve to continue in service well beyond that.

The injured passenger's attorney would next call to the stand the owner of an FBO (aircraft rental agency). The FBO owner would testify that he never runs engines beyond TBO because he doesn't assume that he is smarter than the manufacturer. He would testify that some things, like whether internal parts are worn beyond safe limits, cannot be determined without tearing down the engine. The witness might then suggest that the costs saved by running an engine beyond TBO are marginal and just aren't worth the risk to human life.

With the testimony of those two witnesses, a judge or jury could well decide that the owner was negligent in operating his engine past TBO and that the negligence caused the passenger's injuries.

Some proponents of running an aircraft engine beyond TBO downplay the risks. They argue that the manufacturer's TBO is a "made up" number, and few engine failures have actually been attributed to the owner's decision to run past it. One prominent aviation maintenance expert even suggests that there have been no cases where running past TBO resulted in an owner being held responsible for a passenger's resulting injuries.

Not so.

There may be good economic reasons to run an engine past TBO. But an owner who does so should expect to be held responsible if an accident results.

Manufacturers of Military Aircraft and the Government Contractor Defense

mdanko@dankolaw.com (Mike Danko) — Fri, 27 Nov 2009 09:35:02 -0800

A crew member injured by an aircraft's defective design may sue to hold the aircraft manufacturer 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:

That the US government specifically required or approved the design feature that caused the accident or injury;
That what the manufacturer built conformed to the specifications that the government approved, and
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.

Mike Danko Honored As 2009 California Attorney of The Year Finalist

kmeredith@dankolaw.com (Kristine Meredith) — Tue, 24 Nov 2009 13:38:06 -0800

At its annual convention in San Francisco, the California Trial Lawyers Association, known as the Consumer Attorneys of California, honored aviation accident attorney Mike Danko as a Trial Lawyer of the Year finalist for 2009 in recognition of our work in Burdett v. Teledyne Continental Motors. The Trial Lawyers Association showed this video presentation during the ceremony.

The case involved the forced landing of a Beech Bonanza after theTeledyne Continental IO-550 engine installed in the aircraft came apart in cruise flight.

Mountain Lifeflight EMS Helicopter Crash at Doyle, California

mdanko@dankolaw.com (Mike Danko) — Tue, 17 Nov 2009 14:41:48 -0800

An A-Star AS350B air ambulance helicopter crashed November 14 at Doyle, California, killing the three crew members on board. According to an article in the Reno Gazette Journal, the pilot made a distress call before the crash. That indicates that the pilot was likely experiencing a mechanical emergency. The photographs accompanying the article show that the wreckage was spread over a fairly large area. That indicates that the pilot lost control of the helicopter well before he was able to attempt an emergency landing.

Under the circumstances, the NTSB will be looking at the helicopter's hydraulic actuator system carefully. The actuators move the helicopter's rotor blades, allowing the pilot to control the flight of the aircraft. The AS350B's hydraulics -- similar to a power steering system in a car -- help move the helicopter's actuators.

The A-Star helicopter's hydraulics have a troubled history. The hydraulic system seems to fail frequently. Without hydraulic assistence, the pilot may find it hard to move the actuators and thus the helicopter can be difficult to control. In fact, one of the country's largest operators of A-Star helicopters is on record as saying that the design of the helicopter's hydraulic system is so prone to failure that it is defective and dangerous and needs to be redesigned.

While a problem with the hydraulic system can make the helicopter difficult to control, a disconnected actuator control rod will make the helicopter impossible to control. That's what happened in 2007, when an AS350B just like the one in involved in this accident crashed in Hawaii, killing four tourists.

Days after the accident in Hawaii, the A-Star helicopter's manufacturer, Eurocopter, issued a Special Airworthiness Bulletin (see below) prompted by two previous fatal accidents, warning of the consequences of loose servo control rod end fittings.

This condition could lead to flight control disconnect and subsequent loss of aircraft control. Two fatal accidents have occurred after the servo-control rod end-fitting became detached from the servo-actuator.

Of course, it's far too early to say what caused the Mountain Lifeflight accident. But the helicopter's hydraulic actuator system is certainly something that needs to be looked at very carefully.

December 6 Update: More on this accident here.

AS350BService Bulletin

Another Zodiac In-Flight Breakup Triggers an NSTB "I told you so"

mdanko@dankolaw.com (Mike Danko) — Mon, 16 Nov 2009 13:05:59 -0800

This past April, the NTSB called upon the FAA to ground the entire fleet of Zodiac aircraft because their wings tend to fall off in mid-flight. As it turns out, a defect in the Zodiac's design induces an aerodynamic phenomenon known as flutter. Flutter can destroy a wing or other control surface in a matter of seconds. This well-known, dangerous, but rare condition is shown occurring in the tail surfaces of other aircraft types here and here.

When the NTSB's issued its "urgent recommendation," a total of ten people had already been killed in Zodiacs due to flutter-induced failures. Back then, the NTSB was under heavy fire for sitting on a long list of NTSB recommendations pertaining to a number of different aviation industry sectors while lives were being lost. Because of that, I figured that this was one recommendation the FAA would act on, and fast.

The FAA will see Zodiac's manufacturer as an easy target and move against it -- if for no other reason than to quiet its critics.

I was wrong. The FAA refused to ground the aircraft. Even I was surprised.

Of course, it was just a matter of time. On November 6, another Zodiac crashed in Arkansas. It looks like another flutter-induced failure. That brings the death toll to 11. On November 13, the NTSB issued an official "I told you so."

The Safety Board's urgent recommendation to the FAA was to "prohibit further flight of the Zodiac CH-601XL, both special light sport aircraft and experimental, until such time that the FAA determines that the CH-601XL has adequate protection from flutter." The FAA replied in July that they lacked "adequate justification to take immediate certificate action to ground the entire fleet."

The NTSB's unstated question: Just how many deaths are required before the FAA finds "adequate justification" to act?

Workers Compensation as the Exclusive Remedy for an Injured Crew Member or Pilot

kmeredith@dankolaw.com (Kristine Meredith) — Sun, 15 Nov 2009 11:27:47 -0800

Generally, crew members may not sue their employers for injuries sustained on the job. Even where the crew member's injury was caused by the negligence of the employer or one of the crew member's co-employees, the crew member's sole remedy against his employer is to pursue a workers' compensation case. This is known as the "exclusive remedy rule." The trouble with the exclusive remedy rule is that worker's compensation benefits are limited and are seldom adequate to compensate a crew member or the crew member's family for the injuries suffered in an aviation accident.

Fortunately, the exclusive remedy rule does not prevent a crew member from suing third parties who caused or contributed to the injury. Therefore, a crew member injured in an aviation accident may sue the aircraft manufacturer if the accident was caused by a defect in the design or manufacture of the aircraft. Similarly, where the accident was caused by the negligence of a mechanic who worked on the aircraft, the crew member may sue the mechanic provided, of course, that the mechanic was not one of the crew member's co-employees.

There are few exceptions to the "exclusive remedy" rule. For example, a crew member can sue the employer who caused his injuries where:

The employer didn't maintain workers compensation insurance;
The injury was the result of certain types of intentional wrongdoing on the employer's part; or
The crew member was injured by a product or part that the employer manufactured.

The "exclusive remedy" rule also prevents the crew member from suing any co-worker who caused the accident. Again, there are a few exceptions for unusual situations. For example, a crew member may sue his co-worker where the co-worker’s actions were malicious and with an intent to cause injury, or when the co-worker was intoxicated.

Exosphere3d's Animation of US Airways Flight 1549: Courtroom-Ready

mdanko@dankolaw.com (Mike Danko) — Thu, 05 Nov 2009 08:54:19 -0800

I blogged about Scene Systems' animation of Flight 1549's landing in the Hudson here back in March. Great effort, but I noted that it would take hundreds more hours of work before it could be used in court. That's because it did not appear that the animation accounted for and synchronized all the available data for the flight. For example, the flight path depicted in the animation could not have been true to the information from the flight data recorder, because the flight data recorder had not yet been downloaded and made available by the NTSB. As a result, Scene System's finished product involved too much guesswork to ever be shown to a jury.

Just for fun, Kas Osterbuhr of Exosphere3d in Denver has been working on perfecting an animation ever since. He emailed me the link late last night. Kas, whose firm creates animations for use in court, explained to me that his animation is pretty much technically perfect.

Among the datasets utilized are: audio transcripts and recordings, digital flight data recorder, raw radar data, NEXRAD weather, witness statements, satellite imagery, elevation maps and several of the NTSB reports published in the docket. . .All aspects of this animation are based on actual data, whether from the NTSB docket or otherwise. The entire 3D reconstruction is built into a single environment where every piece of information can be aligned in position and on a timeline.

Tons of work went into this animation and it shows. Aviation accident animations don't get any better than this.

One question, Kas. The animation depicts flames coming from the aircraft's engines at certain times. On what data is this based and what would happen if the judge ultimately determined that that evidence for this aspect of the animation is insufficient to allow it to be shown to a jury?

November 9 Update: Kas' response is in the comments.

Should the Aviation Accident Victim Choose An Attorney Who Is Also A Pilot?

mdanko@dankolaw.com (Mike Danko) — Tue, 03 Nov 2009 09:07:56 -0800

Not necessarily.

The accident victim should retain the best aviation contingency fee attorney he can find, regardless of the attorney’s piloting credentials. Rather than asking whether the prospective attorney has a pilot’s license, the victim should ask whether the attorney has a history of successful jury verdicts in aviation cases. A record of successful verdicts is important even if the victim would prefer to settle rather than go to trial. Defendants and their insurance companies will seldom pay a fair settlement to a victim represented by an attorney who has not proven that he can take an aviation case all the way to verdict. The lack of a trial record is a weakness that a defendant or the insurance company will always exploit. It’s a weakness that no amount of piloting credentials can make up for.

Of course, many of the aviation lawyers who own the best trial records are also active pilots. That's because current piloting experience is an advantage when interviewing witnesses or taking their depositions, sifting through evidence, and working with experts.

For this reason, the manufacturers who are to blame for an accident often chose lawyers who are pilots to defend them. They feel that, all other things being equal, lawyers who are pilots have an advantage over those who aren’t.

But for the victim of an aviation accident, the prospective aviation attorney's record at trial is always more important that his flying credentials. If the aviation attorney doesn’t have a history of successful jury verdicts, that lawyer – regardless of whether he holds a pilot’s license -- is a poor choice.

Helicopter - C-130 Midair Collision is Second Crash of Military Helicopter Off San Clemente Island

mdanko@dankolaw.com (Mike Danko) — Sat, 31 Oct 2009 08:02:29 -0800

Thursday's mid-air collision involving a Coast Guard C-130 and Marine Corps AH-1H Super Cobra was the second military helicopter crash that has occurred east of San Clemente Island since 2007.

On January 26, 2007, four were killed when a Navy MH-60S Seahawk crashed just miles from the spot of Thursday's accident.

The Navy was unable to determine the cause of the 2007 crash. As reported by the Navy Times,

[Navy] investigators were unable to conclusively determine a specific cause for the mishap, unable to find fault, finding no culpability, no sign of neglect on the part of the aircrew nor the personnel responsbile for maintaining the aircraft.

When the Navy was unable to determine a cause, the family members hired their own aviation experts to investigate. But, as reported by the Aviation Internation News Network, the Navy wouldn't allow the families' experts access to the wreckage, instead requiring them to file a lawsuit so that they could conduct their own investigation.

More Zodiac Victims File Suit

mdanko@dankolaw.com (Mike Danko) — Wed, 21 Oct 2009 14:04:22 -0800

The families of the victims of the Zodiac crash near Oakdale, California, have filed suit against the aircraft's maker, Zenith Aircraft, alleging that the Zodiac's design is defective. The Zodiac is the two-seat aircraft whose wings tend to break off in flight due to a design-induced aerodynamic phenomenon known as flutter. That appears to be exactly what happened in the Oakdale crash. The design has caused at least 10 deaths so far.

According to the Modesto Bee, Zenith Aircraft is blaming the pilot and passenger for getting into the airplane it designed.

Zenith Aircraft said the crash was caused by the "negligence" of [the pilot and his passenger]. The company said both had "full appreciation" of the risks involved.

As discussed here, months ago the NTSB called upon the FAA to ground all Zodiacs. The FAA, however, has yet to do so. Unfortunately, the NTSB has no power to ground an aircraft on its own. It doesn't matter how bad the design of the aircraft is; only the FAA can ground a fleet.

The FAA refuses to act, and Zenith Aircraft won't accept responsibility for the fatal flaws in its aircraft's design. Lawsuits brought by aviation accident lawyers like the families' lawyers in this case seem to be the only way to prevent others from being killed in the Zodiac.

How Soon After An Aviation Accident Must An Aviation Attorney Be Hired?

mdanko@dankolaw.com (Mike Danko) — Sun, 18 Oct 2009 05:01:36 -0800

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.

Pre-Accident Waivers of Liability

mdanko@dankolaw.com (Mike Danko) — Sun, 11 Oct 2009 13:15:58 -0800

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:

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 properly drafted 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.

First Air France Flight 447 Lawsuit: Questions and Answers

mdanko@dankolaw.com (Mike Danko) — Sat, 03 Oct 2009 13:38:27 -0800

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 black 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 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.

Preserving the Aircraft Wreckage

mdanko@dankolaw.com (Mike Danko) — Mon, 28 Sep 2009 09:34:00 -0800

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 sure 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.

Hudson Midair: NTSB's Comments Supported by Audio Recording?

mdanko@dankolaw.com (Mike Danko) — Mon, 21 Sep 2009 10:08:48 -0800

NTSB Chairman Deborah Hersman's recent testimony before congress concerning the midair 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.

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

mdanko@dankolaw.com (Mike Danko) — Thu, 17 Sep 2009 18:59:33 -0800

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.

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

mdanko@dankolaw.com (Mike Danko) — Wed, 09 Sep 2009 21:49:30 -0800

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 a spouse or 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, and even though the parents were not financially dependent on him or her.