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Comair seeks to sue airport

FRANKFORT — Lawyers for Comair asked the Kentucky Supreme Court Wednesday to rule that the Lexington-Fayette Urban County Airport Board can be sued over the Flight 5191 crash.

A Fayette County judge last year dismissed Comair's liability claims against the airport board, ruling the board is entitled to sovereign immunity.

Sovereign immunity, a common law concept that predates America's independence from England, protects certain government entities from most lawsuits.

In oral arguments before Kentucky's highest court, Comair lawyer Ed Stopher argued that the board and Urban County Airport Corp., which issues bonds, are not state entities.

The Supreme Court typically rules a few months after hearing oral arguments.

Stopher noted that taxpayers do not fund the airport; its revenues are derived from landing fees, rent from vendors, parking fees and other charges.

“There is no state money here,” Stopher said.

Stopher said the board is independent. The mayor and the Urban County Council appoint the board but cannot overrule its decisions.

Stopher argued that running an airport is not an essential government function.

Blue Grass Airport lawyer Kevin Henry noted that the board was created by the county. And the Urban County Council has the power to abolish the board.

And Henry said the airport absolutely serves an essential governmental function, one no different than providing roads for cars.

Henry acknowledged that the airport is self-sustaining and is not funded by Lexington taxpayers. But he said the user fees the airport charges are still government revenues.

Comair says the airport and Federal Aviation Administration are partly responsible for the Flight 5191 crash at Blue Grass in August 2006 that killed 49 of 50 people on board.

Families for 44 of the 47 passengers who died in the Comair crash sued the Erlanger-based airline.

The airline and families of the three crew members, including lone survivor James Polehinke, the first captain, have filed lawsuits against the federal government and airport to recoup parts of the settlements.

The airline has said the airport shares blame in the crash because of poor runway markings, bad signage, lighting problems and other issues related to a $35 million runway repaving project. Federal investigators ruled last year that the crash was caused by the mistakes of the two Comair pilots.

The airport has said that all the blame for the crash falls on Comair and Flight 5191's pilots.

In its Supreme Court brief, Comair quoted depositions, airport employee depositions and even the airport's Web site to try to show that the airport is autonomous.

In 1996, for example, a memo written by an airport lawyer advised against referring to the airport as a “public entity” of the Urban County Government in an agreement with the Kentucky Transportation Cabinet.

Stopher also pointed out that the airport has a $150 million insurance policy.

Henry said insurance is required by bond underwriters, the airport is self-sufficient because the Federal Aviation Administration requires that to receive most construction grants.

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