On an unremarkable day in July 1989, Denny Fitch was a United Airlines check airman dead-heading home from Chicago to his wife and family.   He had at least two choices that day for a ride home.  His ultimate choice put him aboard United Airlines Flight 232 and on a collision course with destiny.

Shortly after he made that choice, he would be fighting for his own life and that of the other 295 souls aboard United 232.

What happened aboard that flight to this day remains one of the most compelling stories of triumph and tragedy ever to be recounted in civil aviation.

Along with Captain, Alfred C. Haynes, William Records, and  Dudley Dvorak, Denny Fitch made nothing short of heroic efforts to keep aloft and safely land a stricken McDonnell Douglas DC-10 aircraft over which the flight crew had virtually no control, save for asymmetric thrust from the Number 1 and 3 engines that were working.  The Number 2 engine had disintegrated in flight and, in the process, rendered the flight control systems useless.  

There was no training for this contingency and the event was deemed not to be survivable.

And yet, aided by Denny Fitch, the flight crew not only maintained limited control of the aircraft, but actually was able to coax the wounded airliner to Sioux City, Iowa and its airport where emergency crew were awaiting its arrival.

Because of its mechanical infirmities, United 232 touched down at 240 knots and descending at over 1800 feet per minute - well beyond the 140 knot/300 foot per minute descent rate of a normal landing.

Upon reaching the runway environment, the aircraft cartwheeled, spinning end-over-end, erupting in a shattering ball of fire, spilling its contents into an Iowa cornfield.

111 people lost their lives.   But 185 survived the accident, including Denny Fitch, and the rest of those working with Denny in the cockpit.  All were badly injured.  

None should have survived.

Denny ultimately returned home to his family and after a lengthy recovery continued flying with United Airlines.

The story of United 232 is well-told by Denny Fitch here:

http://video.google.com/videoplay?docid=6733394440052230032

On Sunday night, May 6, 2012, the hand of fate touched Denny again.  This time, it was cancer and he did not make the runway.

Still, on July 19, 1989, Denny cheated death 185 times.  His legacy is life and a finer legacy there is not.

Godspeed and blue skies Denny.

Judge Bensen Legg of the United State District Court for the District of Maryland recently issued a Memorandum Opinion in the matter of Wollard et al. v. Sheridan et al., Case No. L-10-2068.  While the opinion is far from a grand pronouncement on the appropriate place for firearms in our society, it does specifically hold that the right to possess and carry a firearm is, in fact, a fundamental right guaranteed to us all by the Second Amendment to the United States Constitution.  As such, to the extent that State law in any way burdens that right, federal courts look very closely at whether or not the law can withstand Constitutional scrutiny.  In Judge Legg's view, the Maryland requirement that its citizens must demonstrate that upon application to carry a concealed weapon they "ha[ve] a good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger" fails to withstand that scrutiny.

As Judge Legg so eloquently put it: 

"A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered "reasonably adapted" to a government interest, no matter how substantial that interest may be. Maryland's goal of minimizing the proliferation of handguns among those who do not have a demonstrated need for them is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly. Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk. States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself.  Even the most legitimate goal may not be advanced in a constitutionally impermissible manner."

In short, the Second Amendment does guarantee our citizens the right to "keep and bear arms."   Those that deny this obvious truth have used tortured logic to advance gun control laws which, of course, are applicable to the majority of us, but not so much to the apparatchiks responsible for enforcing those laws.  Many of our elected, and certainly many or our unelected, representatives have concealed carry permits and/or 24/7 police protection.  As Mr. Orwell once observed, some of us or more equal than others.

Still, the hue and cry from gun control advocates over Judge Legg's decision was and is predicable.  Already number articles have appeared in the local papers suggesting that Maryland will become the "Wild West" as a result of Judge Legg's decision.

Perhaps.   But in the Wild West, an individual had at least the chance to defend himself, his family and property and could not depend upon local law enforcement making their way there to intervene.   When seconds count, minutes mean nothing.

A law-abiding citizen without a gun remains still a law-abiding citizen when possessed with a gun despite some highly questionable opinion and "studies" to the contrary.  The only difference is that the former has a good chance of being a victim of crime while the latter has a better chance of never wearing that label.

And isn't that a wild?

VMC meteorological conditions prevailed at the time and there does not appear to have been any mechanical anomalies with the accident aircraft.  It was destroyed in the accident sequence.  By all eyewitness accounts, including that of the survivor, the event appears to have been nothing more than a classic arrival stall on the base to final turn.  That is to say, pilot error caused the accident.

The PIC had earlier reported to ATC a hot cylinder, cancelled his IFR flight plan, and advised ATC that he was proceeding to the nearest airport for a precautionary landing.  Sadly, the aircraft failed to make the runway and crashed about one quarter mile short of it.  The surviving spouse spent the next four (4) months in a trauma unit and suffers to this day from her injuries.

Ordinarily, such an incident would prompt a rather quick investigation by the aircraft's insurer and settlement of claims made by the spouse and the estate of the decedent pilot.  Not this time.

The Pilot

While the accident aircraft was a fine example of the R/V 7A design and meticulously maintained by the PIC/Owner, he took a less rigorous view of his obligations under the Federal Aviation Regulations.  Indeed, at the time of the accident, the PIC's third-class medical certificate was expired by almost two (2) months; he had not had a biannual flight review in the proceeding Twenty-Four (24) months; the accident aircraft was out of annual; and it was well over its maximum gross take-off weight.

To make matters worse, the airman had been extensively examined and treated for hypertension over the preceding ten (10) years.   Consistent with his other regulatory behavior, he had indicated "none" of this on his FAA Form 8500-8 or the Application for his Third Class Medical Certificate - then expired at the time of the accident.  In fact, the airman specifically indicated in box 18.g. of the Form that he had "no" heart or vascular trouble.  He as well indicated in box 17.b. of the Form that he was not using any medication.  Whether this was an oversight or deliberate is and will remain a mystery and reasonable minds will differ as to the appropriate conclusion.  But one thing is clear - this airman well knew that he had a troublesome heart and that he was in violation of numerous Federal Aviation Regulations at the time of the accident.

Following the accident, the local medical examiner performed an autopsy upon the deceased airman.  Although numerous blunt force injuries caused the PIC's death, the post-mortem revealed that the he suffered from advanced heart disease and noted the presence of Atenolol in his blood - a commonly prescribed hypertension medication.  Although there existed no objective evidence that the airman suffered a heart attack during the accident flight or was otherwise experiencing any heart anomalies at the time, the medical examiner made the baffling and gratuitous remark at the conclusion of his report that "acute disrhythmia or myocardial infarction may have been a contributing cause in the accident."  Needless to say, the insurer had significant reservations about paying the claim of the surviving spouse and with good reason.

The Insurance

The surviving spouse, on her own behalf and on behalf of the estate of the airman, made a claim under the policy of aviation insurance purchased by him.  The policy contained three (3) basic forms of coverage - hull insurance, liability to others, and medical expenses.  Regardless of coverage, all policies of insurance often contain "exclusions" to the coverage offered.   This airman's policy was no exception.  It specifically excluded coverage if the pilot did not have (1) a valid medical certificate; (2) a legally required flight review; (3) or if the aircraft did not have a valid and current condition inspection at the time of the accident.  In terms of behavior that would cause an insurer to invoke its exclusions, this accident pilot had achieved near-perfection.

Shortly after making her claims against the policy, the surviving spouse received a "reservation of rights" letter from the insurer.  Not surprisingly, the insurer noted the various discrepancies with the accident pilot's records and cited the numerous of policy exclusions that it believed were applicable.

The Law

An insurance policy is nothing more than a contract.  As such, its making, interpretation, and enforcement are ordinarily governed by state substantive law.  And on that point, there exists a significant split of authority on the applicability of policy exclusions.

The first view is typified by the Supreme Court of New Mexico in Security Mut. Casualty Co. v. O'Brien, 99 N.M. 638 (1983).  In O'Brien, the insurer denied coverage after its insured aircraft suffered an in-flight collision with another aircraft.  The insurer's post-accident investigation revealed that its insured aircraft was out of annual.  The policy in question excluded coverage unless the insured aircraft's "airworthiness certificate was in full force and effect" at the time of the loss.  O'Brien, 99 N.M. at 639.  The insurer took the view that an annual inspection was necessary to ensure that the aircraft's airworthiness certificate was in "full force and effect."  Because it was not, the insurer argued, the policy exclusion applied and it had no liability to the insured.

Quoting Glades Flying Club v. Americas Aviation & M. Ins. Co., 235 So.2d 18 (Fla.App.1970), the court stated that "an aircraft insurance policy may validly condition liability coverage on compliance with a governmental regulation and, while non-compliance with such a regulation continues, the insurance is suspended as if it had never been in force."  99 N.M. at 640.

The Court further observed that "the policy behind such exclusions is clear and unambiguous. The exclusions encourage aircraft owners to obtain annual inspections of their aircraft in order to be certified by the F.A.A. under current applicable Federal Aviation Regulations. These regulations prohibit an aircraft owner from flying his aircraft unless an annual safety inspection is performed. ... The subject insurance polic[y] clearly den[ies] coverage when an aircraft is not validly and currently certificated ... Because no annual inspection was performed on [the insured] aircraft, the [airworthiness] certificate lapsed and the policy exclusion was properly invoked. To hold otherwise, we would have to rewrite the regulations or the insurance policy. This we will not do."  Id. (Internal citations omitted.).  And indeed it did not, finding in favor of the insurer.

For his part, the insured in O'Brien unsuccessfully urged a different view - a view shared by jurisdictions such as South Carolina.  So called "causal connection" states, their courts take the position that in order to invoke an exclusion and avoid liability under a policy of insurance, the insurer must show that there exists a causal connection between the resulting loss and the policy exclusion claimed by the insurer.

In South Carolina Ins. Co. v. Collins, 269 S.C. 282 (1977), for example, the insured crashed his Piper aircraft killing himself and seriously injuring a passenger.  The policy of insurance in question required the accident pilot to have, among other things, a valid FAA-issued medical certificate in order for coverage to be effective.  He did not. The insured's Third Class Medical Certificate was expired at the time of the accident.  On that basis alone, the insurer denied the claims of the decedent pilot's estate and those of the injured passenger. The parties agreed, however, that the accident pilot's lack of a valid medical certificate did not in any way contribute to the loss.

After a protracted legal battle, South Carolina's highest court sided with the insured stating that "when the parties made the contract of insurance, they were not inserting a mere arbitrary provision, but that it was the purpose of the insurance company to relieve itself of liability from accidents caused by the excluded condition. And there is no more reason that the parties to the contract of insurance would arbitrarily exclude liability under a certain condition than they would arbitrarily exclude liability in the commission of a certain act."   Collins, 269 S.C. at 291. (Emphasis added.).  In other words, the Court took the view that in order for an insurer to escape liability under a given exclusion, the risk of loss contemplated by the exclusion and not assumed by the insurer must have played a role in the loss before the insurer can invoke the exclusion and escape liability. 

While the South Carolina court did not articulate any public policy reasons for its decision, the Supreme Court of Texas noted in a similar case that  "[i]t is well established that insurance policies are [to be] strictly construed in favor of the insured in order to avoid exclusion of coverage. That rule does not apply, however, when the term in question is susceptible of only one reasonable construction.  Such is the case here. The insurance policy says in plain language that "there is no coverage under the policy if the aircraft . . . airworthiness certificate is not in full force and effect." When there is no ambiguity, it is the court's duty to give the words used their plain meaning.  This policy did not require a causal connection between the breach of the policy and the accident." Puckett v. U.S. Fire Insurance Co., 678 S.W.2d 936, 938 (1984)(Internal citations omitted.).

Seemingly poised to rule against the insured, the Texas Court went on to say that "[t]he question remains, however, whether the clause as interpreted violates the public policy of this state. [The insured] contends that allowing an insurance company to avoid liability when the breach of contract in no way contributes to the loss is unconscionable and ought not be permitted. We agree.  Here, the accident was caused by something - pilot error - unquestionably covered by the policy. It would be against public policy to allow the insurance company in that situation to avoid liability by way of a breach that amounts to nothing more than a technicality. If we held otherwise it would actually be to the insurer's advantage that the insured failed to renew the airworthiness certificate. In such event, the insurer would collect a premium but would have no exposure to risk because the policy would no longer be effective."  Id. Because the insurer did  not argue that the accident pilot's lack of a valid medical certificate in any way contributed to the accident, the Court ruled in favor of the insured on the public policy grounds articulated in its opinion.

The Outcome

Did the insurer deny coverage in the case of the Christmas crash?  In light of the fact that the insured seemingly violated the Federal Aviation Regulations and the terms of his insurance policy by the numbers, one would reasonably conclude "no."  This is especially so in light of the fact that there appeared to be, at some level, a causal connection between the loss and the absence of a valid medical certificate - the latter of which was a specific prerequisite for coverage under the policy.  Recall that there was at least some evidence, albeit thin, that the insured's condition may have contributed to the accident and to the loss.

Despite a spirited, but respectful, back and forth between counsel for the insured and for the insurer, full coverage was provided and the surviving spouse received the benefits of the policy.  These were not insubstantial and quite necessary for the financial security of the insured's family.

Naturally, the question "why" is begged.  The insurer did not provide an answer and the insured did not ask.  A confidential settlement agreement ensued and the parties went their separate ways.  While the surviving spouse will continue to suffer the consequences this accident for the remainder of her life, the conduct of this insurer gave her one less hill to climb of the many she still must.

The Lessons

No aviation accident fails to teach.  As for this one, several lessons can be gleaned and most are not new.  But like many good lessons, they bear repeating from time to time.

First, airmen and airmen's counsel alike must understand aviation insurance policies, how they work and the law applicable to them.  It makes little sense to purchase and represent insurance products that you do not understand.

Second, securing annual inspections, medical certificates and the like should not be viewed as mere nuisances, but as necessities.  This accident pilot's dearth of concern for the FARs and for the most fundamental obligations of aircraft ownership and operation left his family in a financially precarious situation.  His reasons for doing so are incomprehensible and likely indefensible.

Third, counsel for the insured should not by shy about pursuing a claim with the insurer, even if certain policy exclusions seem undeniably applicable.  Sometimes the courts can give back what the policy purports takes away.   Do not assume that a claim is doomed simply because the insured has not complied with the letter of the policy.  Doing so may leave a great deal of money on the table.

Finally, contrary to all the legally justifiable reasons, the insurer may indeed pay an otherwise deniable claim.   Compassion still exists in our society.  You just have to look for it and give it an opportunity to reveal itself.  Ours is a cynical profession and can lead us to be cynical about others, affecting both our judgment and attitude to the detriment of our clients and to our souls. 

Cynicism is a disease.  Fight it.  And in so doing, you just may bear witness to a miracle.

On this day three (3) years ago, a Maryland State Medivac Helicopter carrying, among others, two critical care patients, crashed on approach to, and a few miles short of, Andrews Air Force Base.  All on board perished, save for one of those patients,  Ms. Jordon Wells.   Her injuries were grievous.   She still suffers from those injuries and will likely do so the rest of her life.  She was 19 at the time of the accident.

 
I would hazard to say that most of us take for granted - and that is a symptom of the successes, efficiency and professionalism of our medivac system - that when we must get to a trauma unit within the "golden hour," odds are, we will get there.  We will get there because the crew of one of our State Police Helicopters will come get us.  No questions asked.  They will come day or night, rain or snow, good weather or bad.  

Make no mistake about it, the work is dangerous, well managed, but fraught with risk. The crews know it; most of us don't.    These unique people are hardwired to put themselves in peril so that we may live.  Selfless does not begin to describe what they do.

On the evening of September 28, 2008, the fine crew of Maryland State Police Helicopter "Trooper 2" took off for the last time near Waldorf, Maryland and flew into eternity.  On that evening, its fine crew  gave the citizens of this State their lives.     They were:  Pilot Steven Bunker; Trooper First Class and Flight Paramedic Micky Lippy;  and Flight Nurse Tanya Mallard (a volunteer, by the way).  Ms. Ashley Younger, the other critical care patient on board, too perished.

Please take a moment out of your busy day to remember these good folks and the families that they left behind.

And give thanks that there are those who have stepped in to pick up where they left off.


Thank you.

"There are no winners here," said Sean McGill, vice president of McGill Aviation, echoing Bach's sentiments. "It's unfortunate that the city's refusal to recognize the issues at the airport had to lead to this."

According to City Finance Director Patti Clifford, the city has reserved $1 million to pay for the McGill judgment, but there has been no decision as to where the rest of the money will come from. The entire judgment amount accrues an interest rate of 6 percent annually, according to a court document.

The city previously was ordered to pay McGill more than $750,000 in damages. About $300,000 of that is a rent credit of $3,084 that McGill is to receive each month from July 2008 through the end of its lease with the city in 2018.

City of Fernandina Beach v. McGill Aviation Corp. was a complex case that originated as a property dispute between the city and its fixed-base operator at the Fernandina Beach Municipal Airport. McGill Aviation mainly handles fuel sales and light ground support.

According to Sean McGill, the troubles began in 2001 when the city decided to do construction at the airport, reducing McGill's leasehold property. After a "minor" fuel spill at the airport, according to McGill, the city "decided not to talk about the lease issue."

McGill says in the summer of 2004, the city moved to evict the company, but Nassau County Circuit Judge Davis blocked the eviction.

McGill Aviation also claimed the city was preventing the company from building T-hangars and further claimed a loss of fuel sales and that the city misappropriated funds, among other issues.

According to Bach, the lawsuit was a complicated one with many case numbers, settlement conferences in court or with an arbitrator and closed sessions over the years. It eventually included 9,000 pages of documentation and 29 days of testimony, an unusually large number according to Bach.

"There were a lot of issues and a lot of witnesses," Bach said, because the arbitrator was allowed to bring in all evidence.

The eight plaintiffs ask for $20 million in compensatory damages and $20 million in punitive damages.

A Department of Public Safety and Correctional Services spokesman said Thursday the department would not comment on active litigation.

According to the lawsuit, one woman was publicly ridiculed by the woman who searched her for not wearing underwear the day of the search. The woman who performed the search also searched another female prison employee and told coworkers what type of underwear the woman had been wearing, the lawsuit alleges.

An MCTC captain made what appear to be racially motivated statements to one of the men who was searched shortly after the search was completed, according to the lawsuit.

One of the defendants named in the suit made a reference to the size of one of the men's genitalia about a day after the search, the lawsuit alleges.

Nine people were strip searched Aug. 12, 2008, according to internal Division of Correction documents. The searches came after scans by an ION Scan counter-narcotic drug detection system indicated traces of drugs.

According to the lawsuit, an ION Scan only detects the presence of drugs on the surface of clothing or personal items. No contraband was found either on employees or in their vehicles.

Heather Braun, Joseph L. Goodrich, George Keefer, Kristi Morrow, Robert Mumma, Joseph L. Rodriguez, Jeremy Sowers and Amber Ward are listed as plaintiffs in the suit, which was filed by attorneys based in Baltimore and Bethesda, Md. The ninth person who was searched is not a plaintiff in the case, according to Neil Hyman, one of the attorneys who filed the suit.

Three of the plaintiffs are correctional officers, three are civil employees of DPSCS, one was employed by the Department of Education and one was an independent medical contractor.

An internal report shows correctional staff did not have the authority to search either the Department of Education employee or the medical contractor without their consent.

Gary Maynard, DPSCS secretary; Michael Stouffer, commissioner of corrections; James V. Peguese, assistant commissioner of security operations; and MCTC Warden D. Kenneth Horning are named as defendants in the suit.

Also named as defendants are MCTC officers Capt. Frederick Walls, Lt. Kenneth Frick and Lt. Rhonda Ralston. Lt. Tonya Leonard, who worked at DPSCS headquarters, is also a defendant.

"How do you give somebody their dignity back?" Hyman asked.

Hyman said he believes seven of his clients continue to work at MCTC. The eighth transferred to another DOC facility as a result of the strip search, he said.

A report provided to Stouffer found numerous events during the ION Scan operation that were in violation of directives.

Leonard, the defendant who was to "oversee" the ION Scan operation, was asked by investigators why she ordered the strip searches. Leonard said she made the call based on a prior ION Scan operation in Baltimore, where employees were searched if the ION Scan alarm went off at any level, according to the report.

An employee should only be searched if the alarm sounds at a threshold of 400 or above, and most of the people who were strip searched set off the alarm at a threshold much lower than 400, according to the report.

Other explanations were offered for why the alarm might have sounded.

Rodriguez worked in a lab where he conducted urinalysis on the inmate population, and just days before the search field-tested marijuana in the course of his duties, the internal report shows.

One of the women is married to a police officer, and another was engaged to a police officer. Contact with police officers could have contributed to an ION Scan alarm, the report shows.

"What is so infuriating about this situation is this entire lawsuit could have been totally avoided," said Del. Christopher B. Shank, R-Washington, who met with the employees the day after they were strip searched.

Those who had been strip searched went through a process of settlement talks with the state, Shank said. Money was not among their list of demands, he said. The employees wanted a sincere apology from Maynard, some counseling and to talk about the process and new regulations regarding the searches, Shank said.

The state "gave them the runaround," Shank said.

Hyman provided a copy of the report made after a DPSCS internal investigation into the "contraband interdiction operation" at MCTC.

Prison officials said Horning requested the operation, which was approved by Peguese, after several recent incidents during which contraband was found in the prison.

In a memo dated Aug. 11, 2008, and addressed to the MCTC Administration, an apparent drug ring is discussed. An inmate found unresponsive in his cell Aug. 8, 2008, and pronounced dead at Washington County Hospital, is mentioned in the memo.

The memo includes several inmate names and discusses who keeps drugs and where. It also identifies an inmate as "the biggest drug dealer at MCTC."

The memo also identifies a female visitor who prison investigators believe was bringing drugs, cell phones and prescription pills to an inmate. The woman left prison property rather than allow a search of her or her vehicle, according to the memo.

"They knew exactly why drugs were coming into the institution, from contact visits, they knew who was bringing them in, had them in their sights, yet took it out on the employees," said Shank, who provided a copy of the memo to The Herald-Mail.