Order in the court: Are lawsuits — frivolous or otherwise — to blame for the high cost of flying?

A small airplane crashes in a thunderstorm. The passengers who survive the crash sue the pilot’s estate for negligence. The pilot’s family files a lawsuit against the FAA, the National Weather Service and the FBO claiming the weather briefing the pilot got from the FBO and Flight Service was not accurate as to the severity of the storm. The aircraft manufacturer is also named on the grounds its training program did not adequately prepare the pilot for flight in those conditions.

Depending on which side you are on, the situation can sound like a gold mine or a frivolous lawsuit.

There is nothing preventing either the passenger or the pilot’s family from filing lawsuits, says Phil Kolczynski, a former Marine aviator and an aviation attorney in Orange County, Calif., with more than 30 years experience. However, winning and collecting a judgment is another matter.

“Filing a lawsuit does not necessarily mean the plaintiff has a case,” he says. “The attorney has to evaluate if there is a case or not. In aviation that is difficult to do because often when clients first come to you the National Transportation Safety Board report is not complete yet.”

But is the lawsuit frivolous? It’s too early to tell at that point, he says.

“The attorney has to do some investigation,” he says.

Many times lawyers will file lawsuits to expedite fact finding in a case. “Until we file the lawsuit we do not have access to the court system, therefore we do not have the power of subpoena and free and clear access to the witnesses and defendants or the manufacturing operation or maintenance facility. By filing a lawsuit we can get access to the information. Frivolous means without rational basis or reasonable belief that someone was negligent, for example. In the course of an investigation if you find out that they were not negligent, you are supposed to dismiss the lawsuit.”

Filing a frivolous lawsuit can come back to bite an attorney, notes J. Michael Loomis, an aviation attorney from Indiana.

“There is substantial case law on what constitutes a frivolous lawsuit,” he says. “The courts always punish frivolous lawsuits and there are rules that allow judges to punish lawyers for bringing frivolous lawsuits. A lawyer can be forced to pay the other side’s fees, for example. Reputable attorneys don’t accept frivolous lawsuits because it is poor business. The job of the attorney is to identify potential theories of recovery. Filing meritless cases does nothing to help the attorney’s practice.”

According to Loomis, some people have the mistaken impression that aircraft manufacturers have very deep pockets. When there is an accident, the knee-jerk reaction is to sue the manufacturer.

The problem was so bad that in 1994 President Clinton signed the General Aviation Revitalization Act (GARA) into law. This legislation immunizes general aviation manufacturers if their airplanes manage to fly without an accident caused by a defect for 18 years from the date it was sold.

“The GARA was passed on the premise that lawsuits were driving up the cost of general aviation and putting the ownership of GA aircraft out of reach. The thought was that general aviation would be destroyed if we did not stop these frivolous lawsuits,” says Kolczynski.

Like many pilots, Kolczynski was intrigued with the idea that the enactment of the GARA legislation would reduce the cost of general aviation aircraft because it would lower product liability for manufacturers.

“It didn’t happen,” he said. “It has been 10 years since GARA was enacted, but they haven’t lowered their liabilities or the cost of airplanes. However, the number of lawsuits has gone down significantly.”

THE DOWNSIDE OF TRAINING

Many manufacturers, especially those of high performance aircraft, offer a training package. Training usually consists of several hours of ground school and airwork. Very often a pilot’s insurance carrier will demand additional training, such as 25 hours with an appropriately qualified instructor, before writing a policy. The additional training varies based on the pilot’s experience and whether he or she has an instrument rating.

You might think that since the factory provided training or contracted with someone to provide the training that the company has reduced its liability should there be an accident. Actually, it’s just the opposite, says Kolczynski.

“The aircraft manufacturers that provide the transition training take on new exposure,” he explains. “There have been instances where a pilot has gone through the factory training then after an accident filed suit against the person or school providing the training claiming that it was substandard.”

“If the victim’s family can trace the cause of the accident to substandard instruction, which is difficult to do, then theoretically training is the cause of the accident,” he continues. “The important thing to remember when it comes to tort law is that for the training to be negligent, the plaintiff has to prove that it was a training error that caused that crash, not the pilot.”

Lawsuits also are filed claiming a flaw in an aircraft’s design or a manufacturing defect contributed to the accident.

“That’s also very difficult to prove because most engineers have done their homework,” says Kolczynski.

Even after an attorney has determined that a case cannot be won there is nothing to stop a plaintiff from finding someone else to represent him or her, he adds.

Loomis sums it up this way: “Any time someone is injured or killed in an aviation accident, there will be a lawsuit.”

For more information: Philip J. Kolczynski, AviationLawCorp.com, 714-662-2995 and Michael J. Loomis, 206-490-6100

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