Airline Industry Legal Defense Weak

June 20, 2002
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GRAND RAPIDS — The only apparent legal defense the airline industry could use to combat any potential litigation that may come from the Sept. 11 terrorist attacks is that the events were unforeseeable. That claim is just the opposite of what families of the victims would argue, and the evidence may be stacked against the airlines.

If lawsuits are filed, United and American airlines would be the primary defendants in a case as their flights were hijacked and then crashed into the World Trade Center, the Pentagon and a Pennsylvania field. Other airlines could be named in a suit because the industry is responsible for airport security, as airlines hire and pay the private security teams.

“I think a pretty compelling argument can be made that this was foreseeable,” said Eric Richards, a securities and aviation attorney with Mika, Meyers, Beckett & Jones PLC.

Richards pointed out that similar events have nearly happened, and a best-selling novelist drew one up. A small plane was aimed at the White House a few years ago, landing on the grounds. A jet also was reportedly planning to crash into the White House, before the plan was stopped. And Tom Clancy wrote about terrorists steering a plane into a building.

“The question then becomes, could anything have been done to prevent it? Then you get back to security in both the airplanes and the airports. So I think there is significant risk for the airline industry,” Richards added.

Reports of security lapses and breaches during tests at major airports, and the lack of secured doors on pilot cabins, which some airlines have had for years, would be two key points that the airlines would have to fight.

It isn’t certain, however, that the working relationship the security companies have with the airlines would necessarily drag these firms into a lawsuit — as the weapons that were reportedly used on the planes were legal at the time.

“It is my understanding that until Sept. 11 it wasn’t illegal to carry on a box-cutter. So even if these had been detected, (security personnel) probably wouldn’t have confiscated them,” said Richards.

“I think there is a specific FAA regulation that prohibits knives more than four inches long, and these would have been less than that. Therefore, the defense for these firms would be that they did comply with the regulations,” added Richards.

Although it’s unlikely, the FAA also could be a target for litigation. A federal law allows for exceptions to immunity if an agency was grossly negligent in its duty. A plaintiff might argue that the FAA failed to act on multiple warnings of security problems and that its regulations weren’t strong enough to protect the flying public.

“Here, I’d think you’d have a hard time getting around the Federal Tort Claims Act because the question of whether or not we should ban knives that are less than four inches is a discretionary function. Any case against the FAA saying that their regulations weren’t tight enough probably wouldn’t be able to succeed. It would probably be dismissed. But I don’t think it’s correct to say that there is blanket immunity for the FAA,” said Richards.

Another potential defendant could be the aircraft manufacturers. A case could be brought against, say, Boeing on a product liability basis that would cite the firm for not building and installing secured cabin doors on the airliners.

A political question also needs to be answered. The War Powers Act exempts insurance companies from having to pay claims if an incident is defined as an act of war, rather than an act of terrorism. After the attacks, President Bush and members of Congress labeled the actions an act of war. But Richards said when the courts have had to make this decision in the past, justices have needed a declaration of war from a sovereign government to define an event as an act of war.

“If, however, the actions are deemed acts of terrorism, then there probably would be insurance coverage.”

Because Congress passed legislation that limits suits against the airlines to compensatory damages and restricts awards to the amount of liability insurance each carries, insurers and reinsurers are on the line. The industry has said it will be years before a total cost of the damage will be known, but an early estimate places that figure at over $20 billion.

“That is really unprecedented. There have been other tort-reform acts that have limited liability and excluded punitive damages. But to my knowledge, no case, not even in the asbestos cases, has the government ever said that the industry’s liability is limited to the amount of its insurance,” said Richards, who chaired the aviation law section of the state bar association until last month.

“But I think the other thing you will see is, in addition to the outpouring of private charity aid for victims, there will also be some sort of governmental relief program.”

The shakeout that usually precedes litigation may have started two weeks ago when the director of security for Logan Airport in Boston was fired.

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