Sheer Fright Seen as Lawsuit Claim for Southwest SurvivorsBy
International passengers may not qualify for ‘fright’ claims
Passengers, crew have various remedies under the law
After the crash come the claims.
Being on an airplane more than six miles in the air when an engine blows up and sends shrapnel through a window is an experience so scary that aviation lawyers say it’s not just the family of the woman killed on a Southwest Airlines Co. flight this week who could have a case.
“All of the passengers here, and the crew, will likely have claims,” said Robert Clifford, founder of Chicago-based Clifford Law Offices, who’s been involved in every domestic commercial aviation disaster since the 1970s. “Even if these people were not physically injured,” he said, “many, many of them will experience symptoms of post-traumatic stress disorder.”
The people who were sending “videos to their families, saying, ‘These are my last words to you,’ which is something that did occur in this incident, that kind of person will live with that for the rest of their life,” he said. The plane was carrying 149 people, including 5 crew.
Days after a jet engine exploded about 32,500 feet over Pennsylvania 20 minutes into a flight, federal and corporate inspectors are examining what happened. The National Transportation Safety Board said it will take at least a year to pinpoint what caused the engine failure that led to the first fatality on a U.S.-registered airline in more than nine years.
In the meantime, several experts with knowledge of commercial airline disasters said that Southwest will likely lead the charge to work with passengers and their families.
In cases of serious injury or death, an airline will usually advance funds to help passengers with immediate needs. George Hamlin, a transportation consultant based in Fairfax, Va., who has worked with airlines and commercial aviation suppliers, said that although he’s not sure “non-physical injury” would be covered under that scenario, Southwest’s reputation suggests the company will go to some lengths to appease people who were on the flight.
Still, that may not preclude litigation down the road, though the precedent for liability based on emotional trauma or non-serious injuries is ambiguous.
Clifford is particularly attuned to what forced Flight 1380 to abort its route to Dallas and land instead in Philadelphia. He was lead counsel for survivors of a DC-10 that crashed in Sioux City, Iowa, in July 1989. One hundred twelve people died and 184 survived.
“Uncontained engine failures, in which parts of the engine burst through the protective casing called a cowling, have a special history for me in my work,” he said.
Technical experts from Boeing Co., which makes the 737 jetliner involved in the incident, and engine maker CFM International, a venture of General Electric Co. and France’s Safran SA, are gathering clues about what caused the accident.
Southwest workers, Clifford said, cannot sue their employer. They would, however, have standing to sue General Electric or the manufacturer of any faulty component of the engine. GE, Boeing and Southwest will probably pool funding for settlements and sort out reimbursements later, according to Clifford.
Every commercial plane in the sky is insured for anywhere from $1.85 billion to $2.1 billion. Each company involved has its own insurance coverage, he said.
“All of those insurance interests have already gotten together,” Clifford said, “and somebody’s on point for dealing with these cases.”
A spokesman for Boeing declined to comment beyond the company’s initial statement that its technical team’s priority is assisting the NTSB in its investigation, while a representative of General Electric declined to comment on future liability. Representatives for Southwest didn’t respond to a request for comment.
At Wisner Law Firm in Geneva, Illinois, clients who are parties in litigation related to an American Airlines Group Inc. engine that exploded on a Chicago runway in 2016 have been calling to ask how Tuesday’s incident might affect their case, according to Alexandra Wisner, a partner at the firm.
The clients are saying, “‘That’s exactly what we were afraid would happen, that this would happen in-flight, and that’s why we were all so fearful of our lives,”’ she said.
People are typically still in shock during the first few days after such an event, Wisner said. Sometimes, they’re not aware that they could have a claim. “They think, ‘Well, I didn’t have some kind of big injury,”’ she said, so they don’t realize that any remedy is available.
Under domestic law, Wisner said, “there is an argument that there is a contemporaneous injury here, a physical one. It can range from things like the inhalation of smoke, to having turbulence -- being jerked around in the plane. Depending on how exactly the evacuation went, if people were being knocked into each other -- it really depends on the facts of the case.”
Wisner has represented passengers in a number of incidents that have included in-flight turbulence or an emergency evacuation. Southwest, she said, might already be reaching out to passengers, asking if they’re all right and whether they needed any sort of treatment.
On international flights, the Montreal Convention governs liability, so any passengers who were on one leg of an international trip would be covered by those standards. But with international tickets, “fright alone” hasn’t traditionally been a recoverable claim, according to one experienced aviation lawyer who asked not to be identified because of potential involvement in future litigation.
If you have an airline that dropped 30,000 feet and all the engines went off, you couldn’t recover for the fright unless you were physically injured, he said.
There are examples of what not to do, according to Wisner. In the days after the American Airlines incident on the Chicago tarmac, she said American offered her clients frequent-flier points and vouchers.
“They were actually insulted by it,” she said, “because they felt that’s not going to compensate them for the horror that they went through on that day.”