Crash of Flight 5191

Comair sues FAA, airport

The intense finger pointing that began in the wake of the Flight 5191 crash escalated yesterday when Comair sued the Urban County Airport Board and the federal government.

The lawsuit, filed in U.S. District Court in Lexington, asks for a “declaratory judgment” that the Federal Aviation Administration and Blue Grass Airport share responsibility for the Aug. 27 crash that killed 49 people. Comair wants them to pay part of any settlements or judgments resulting from the crash.

Comair also filed an administrative claim seeking damages from the FAA, saying that the carrier has to repay $17.3 million for the plane, a Canadair RJ100 the airline leased from a bank, and that it has made payments in excess of $1 million to “various parties and claimants and will continue to make payments in the future.”

“Comair is committed to ensuring prompt, fair and reasonable compensation for the families and all victims of this tragic accident,” Comair president Don Bornhorst, a Kentucky native, said in a statement. “We filed the lawsuit and administrative claim to help resolve in a timely manner how costs for the victims’ families are shared fairly and reasonably among all parties who share responsibility for this accident.”

The lawsuit says the airport and FAA made a litany of errors that confused the pilots of Flight 5191, which took off from the wrong runway. The National Transportation Safety Board is investigating the accident.

The suit noted that the FAA violated its own staffing policies by having only one flight controller working the airport tower. The controller, working with only two hours of sleep, had his back turned when the plane turned onto a 3,500-foot runway instead of the larger, primary runway that is twice as long.

Comair also faulted the airport for supplying inaccurate information for diagrams published for pilots. The airport had undergone a major runway repaving project the week before, which altered its taxiways.

The lawsuit also said that signs, lighting and markings were inadequate. The FAA failed to ensure the airport was up to standards, Comair said.

The FAA declined to comment yesterday evening because it had not yet received the lawsuit.

But the airport, which has come under increased scrutiny since the accident, shot back in a statement saying it is “disappointed Comair has chosen to make ill-founded claims against the Airport Board, its members and employees.”

“Blue Grass Airport has provided, provides and will continue to provide a safe environment for the arrival and departure of aircraft,” the statement said.

Some trial lawyers representing families of the victims say the lawsuit intensifies a high-stakes legal chess game that will become increasingly complex. They offered several theories for what drove Comair’s lawsuit.

“This was done more out of strategy,” Chicago trial lawyer Robert Clifford said. “They are gaming the system.”

The first theory, and most obvious, is an effort to shift as much of the blame -- and therefore as much of the damages -- away from the struggling, bankrupt carrier.

“It’s an open statement from Comair that it intends to blame any other party that it possibly can for the cause of this crash and to get as much financial contribution from any other party when faced with paying financial claims,” Michigan trial lawyer David Katzman said.

Katzman said the Northern Kentucky-based carrier, a wholly owned subsidiary of Delta, will have a two-pronged strategy: On defense, it will fight for lower damages in the families’ lawsuits; on offense, it will try to get the airport and federal government to foot as much of the bill as possible.

Katzman also offered another, more complicated theory. He said Comair had two alternatives: Settle the claims, or admit fault and allow trials to determine damages for each family. In each instance, Katzman said, the carrier could have later sought contributions from the airport and federal government.

“Comair has the option of doing a mea culpa, saying ‘we’ll accept the blame for this’ and later get a contribution,” said Katzman, who said the statute of limitations for Comair to get contributions does not start running until claims are paid.

By filing suit now, Comair complicates and prolongs the legal process to the financial benefit of its insurer, he said. “It’s the plaintiff lawyer’s job not to play that game,” he said.

Comair said that it is trying to expedite the claims and is not engaging in delay tactics.

“It is already apparent that many factors played a role in this tragedy,” the airline said.

Clifford said Comair’s lawsuit is part of a strategy to keep the case in the federal courts, which are considered to be more business-friendly and less likely to award large damage awards. Clifford said he wants the families’ lawsuits moved back to Fayette Circuit Court. It’s up to Comair to duke it out with the FAA and airport, he said.

He said he is not in favor of suing the FAA, but plans to sue the airport.

But Comair said aviation lawsuits are typically consolidated in federal court for the sake of efficiency.

“It makes it more manageable for everyone,” spokeswoman Tressie Long said. “It has nothing to do with whether the federal courts will be more favorable to either party.”

The next question is whether the airport board is immune from lawsuits, as it is sure to argue, Katzman said.

At least 13 lawsuits have been filed because of the crash. None of them has been settled, Long said.

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