Priva te Aircraft Crash Cases Tom H, Dav is A us t in , Tex a s According to the Texas Aeronautics Commission, there are about 15,500
private planes based in Texas. This number has doubled in recent years, and should continue to increase during the coming years . With this number of private planes in Texas, it is not surprising that Texas ranked along with California and Pennsylvania as the states having the highest number of general aviation accidents. The Federal Aviation Agency says that " there are several general aviation accidents nearly every day of the year with an average of more than two deaths every 24 h ours ," This agency further states that at least 80 % of all fatal accidents are caused by pilot negligence . The remainder were caused by mechanical failure and structural defects which for the most part were due to faulty or inadequate maintenance and inspections. It is apparent from these statistics that claims resulting from the death or injury of persons in light plane' crashes will continue to increase and represent a greater percentage of liti路 gated cases . Since most light planes are o wned an d operated by persons in the higher income brackets, they are heavily insured . Likewise, the persons who fly in these planes as passengers are usually of substantial means. Consequently, these suits involve c o nsiderable sums of money . Although the average attorney may not handle more than one such case during his entire practice , the uniqueness and complexity of these cases require that he have some basic knowledge of the subject and the problems involved so he can properly recognize and analyze the opportunity for recovery . Insurance While practically all light planes are covered by liability insurance, this kind of insu rance is n ot regulated by the Texas State Bo ard of Insurance or any other governmental agency . Therefore, there are no " standard form " policies and each company is free to write the policy under such conditions as it sees fit in each particular instance. While competition has created some uniformity, there still remains a wide variety of forms in use. Probably the most serious problem to an attorney representing the beneficiaries of those killed or injured in a THE ARKANSAS LAWYER
light plane crash, as well as the personal attorney for the pilot or his estate , lies in the various exclusions that have been written into some of these policies . Many of these policies have a serious limitation upon liability and present a dangerous trap for the inexperienced attorney in this field .2 Some policies provide disclaimers of liability in the exclusion clauses as follows : This policy does n ot apply ; (h ) to the liability o f any insured who operates or who permits the o peration of the aircraft ; (i) in violati o n of its Federal Aviation Agency Airworthiness Certificate or operational record ; (ii) in violation of any regulation of the Federal Aviation Agency applicable to acrobatic flying , instrument flying , repairs , alterations and inspections, night flying , minimum safe altitudes and student inslruction ... (iii) for any unlawful purpose or for the purpose of crop dusting , spraying , seeding or any form of hunting . This policy does not apply (d) to liability with respect to bodily injury or damage caused by the operati o n of the aircraft with the knowledge o f the named insured ; (1) if used for any unlawful purpo se, or during flight or attempt thereat , in violation of any government regulation on civil aviation ... This policy does not apply ; (a ) ... to any insured who operates or permits the aircraft to be operated, .. . (3) Instrument Flight Rule (s) (IFR) c o nditions unless the pilot possesses a valid Instrument Rating and is proceeding in accordance with Instrument Flight Rules , It is obvious from these exclusionary clauses that some o f the language is so broad as to give the insurance company an opportunity to deny liability in most any crash . Those exclusions relating to violations of governmental regulations require a knowledge of a multitude of specific regulations covering every phase of aviation . It is apparent how easy it would be for the inexperienced to plead or prove himself into such a trap, allowing the insurance carrier to escape, leaving the insured or his estate to pay for the very liability which they thought they were protected
Tom Davis
Editor's Note : Mr. Davis is a nationally-known authority on aviation law . He was a featured speaker at the Arkansas Bar Assoc iation's 1971 Fall Legal Institute, falking on fhe " Plaintiffs Preparation of an Aviation Case." He Is Past President of fhe Texas Trial Lawyers Association ; a member of the ABA 's Aviation Committee ; Past Chairman of the American Trial Lawyers Association's Aviation Law Section; and Fello w, International Academy of Trial Lawyers. He has a Commercial Pilot License , with single, multi-engine and instrument ratings. This article. " Private Aircraft Crash Cases," will be followed in the nex t issue of The Arkansas Lawyer with a related artic le by Mr. Davis on " Sources of Information in Private Aircraft Crash Cases." against. Practically all of the older policies contained similar disclaimers of liability . However, due to the increased competition and the awareness of this problem by insureds, some of the later pOlicies are removing the more objectionable clauses . C ho ic e o f Forum In this type of case there is usually a wider choice of forums than in the average damage suit. Texas residents are killed in airplane crashes occurring outside of Texas and non-residents are killed in airplane crashes occurring in Texas. Besides the question of venue in State Courts under I. Aircraft of less than 12,500 Ibs . maximum gross take-off weight. 2. "Risks and Causes of Loss Covered and Exc luded by Aviation liability Policy," 48 A.l.R .2d 704.
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