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15

Oct,2015

“Pilot-In-Command” Insurance Exclusions

 

Most prudent pilots know that accidents happen. Despite expensive training and exercising an abundance of caution, the unexpected can happen…which is one reason why pilots purchase accidental death and dismemberment insurance. Did you know, however, that sometimes your accidental death policy will exclude coverage for accidents occurring when you are acting as a “pilot or crewmember” of an aircraft involved in an accident? This means that if at the time of an aviation accident that causes your death, you are the pilot-in-command or crewmember of an aircraft, your loved ones will be denied the coverage offered under your policy.

 

But for general aviation pilots, there can be a fine line between when you’re acting as a “pilot or crewmember” and when you are just a passenger with a pilot’s license. For instance, what is one to do in the flight instructor/instrument student situation? If an aircraft requires only one pilot and there are two licensed pilots at the controls, how can an insurance company determine who was acting as a “pilot” or “crewmember” on that particular flight? Better yet, at what point during the flight will the insurance company base its determination of whether or not the insured is acting as “pilot?” State and federal courts alike have struggled to answer this question – as nearly every court has a different stance. Perhaps one of the “better” cases for pilots, and a position which every court should adopt, comes from the Federal Court of Appeals, 11th Circuit, in Jordan v. Natl. Acc. Ins. Underwriters Inc., 922 F.2d 732 (11th Cir. 1991). The following will review the facts of this case and the court’s holding.

 

“James Jordan obtained his private pilot’s license in 1976 and his instrument rating in 1978. He accumulated over 600 hours of flight time in private aircraft and was part owner of a six-seat Cessna Centurion. This aircraft was equipped with dual controls so that it could be flown from either of the two front seats. The left front seat was designated the pilot’s seat and the right front seat the co-pilot’s or passenger’s seat. In November 1986 Jordan hired Jack Page, a professional flight instructor, to give him a refresher course in instrument flying. Page was a highly experienced pilot who had flown more than 9,000 hours in military and civilian aircraft.

 

On the day of the crash Jordan made arrangements for himself and Page to take his plane up for instrument practice. He called the FAA to obtain a weather briefing and file a flight plan. He performed a pre-flight inspection of the aircraft, taxied to the runway, and took off. As Jordan and Page flew from Birmingham to Montgomery, Jordan sat in the pilot’s seat and handled all the flight controls without assistance from Page. After landing in Montgomery the two men took off again to practice instrument approaches. Again, Jordan performed all of the pre-flight procedures, sat in the pilot’s seat, and handled all the flight controls alone. As he maneuvered the plane on the practice landing approach he wore “floggles,” which allowed him to see only the aircraft’s instruments.

 

The plane suddenly lost power while it was on final approach. Page immediately engaged his set of flight controls and took over the throttle and the control wheel. He instructed Jordan to switch fuel tanks and engage the fuel pump boost as part of the emergency procedures for a loss of power. Page attempted to guide the plane back to the Montgomery airport, but it struck power lines and crashed. Page survived the crash but Jordan was killed. Approximately 30 seconds elapsed from the time that Page took control of the aircraft until impact. Page did not operate any of the flight controls that day outside of that 30 second period.”

 

In this case, Jordan’s estate sued because accidental death and dismemberment benefits were denied based on the following exclusions in Jordan’s policy:

 

“SECTION II DESCRIPTION OF COVERAGE: Subject to the conditions, limitations and exclusions of the policy, the insurance granted hereunder shall apply to the injuries sustained by an Insured Person anywhere in the world provided that aviation coverage shall be limited to riding as a passenger (and not as a pilot or member of the crew) in any previously tried, tested and approved aircraft. (emphasis added).

SECTION IV EXCLUSIONS: The policy does not cover an Insured Person for any loss caused by, contributing to or resulting from…injury sustained while, or in consequence of, riding as a passenger or otherwise, in…any vehicle or device for aerial navigation other than as provided by Section II, Coverage.”

 

The Insurance Company advanced two principal contentions relating to interpretation of the policy on summary judgment and at trial: (1) the policy required that the status of an insured person as passenger, pilot or crew member be established at some point during the flight before the death or injury occurred (i.e. before the so-called moment of impact); and (2) even if the insured person’s status was to be determined at the moment of impact, Jordan’s actions during the flight nevertheless established that he was a pilot or crew member and therefore was not entitled to coverage.

 

The district court, applying Alabama law, rejected each of these contentions and ruled for Jordan. First, the court held that the policy was ambiguous, and, construing it against its drafter as required by Alabama law, it determined that an insured’s status must be determined at the moment of impact. Secondly, the court held that Reliable had not met its burden of proving that Jordan was a pilot or crew member at the moment of impact and that therefore the policy covered him at the time of his death.

 

Some courts in the United States have held that the determination of whether the insured was acting as a “pilot” or “crewmember” must be determined by the tasks that the insured had while on the flight. For instance, if the insured gathered weather information, talked on the radios, did the preflight check, etc., he or she may have been the “pilot” on that flight. Keyser v. Connecticut Gen. Life Ins. Co., 617 F. Supp. 1406, 1413 (N.D. Ill. 1985). In Jordan v. Natl. Acc. Ins. Underwriters Inc., however, the Court says that the insurance company could have limited coverage by defining the key terms in the policy so as to expressly rule out the moment of impact test. It could have defined “pilot” as “any person who operates any flight control at any time during the flight in question,” but it did not. As a result, the Court etched out the moment-of-impact rule, where the insurance company must determine “pilot” or “crewmember” status at the time of the accident.

 

What does all this mean for you? First, know what your accidental death and dismemberment policy says. What are the exclusions? How does it define “pilot” or “crewmember?” Secondly, know what the state of the law is on this issue in your state. An aviation accident is a very unfortunate occurrence; however, it can be much worse for your family if they have to wrestle with insurance companies after you are gone. If you have any questions, feel free to contact an aviation attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

 

05

Oct,2015

PRIA: FAA Enforcement Actions And Your Aviation Career

Did you ever fall off your bike as a child and scrape your knee? If so, what did your mom do when she saw your “boo boo?” Did she pull out the Morton salt and pour it on the raw flesh? If she did, we’re sorry to hear that…but, if your mom is anything like ours, she probably just put a Band-Aid on it and sent you on your way. As an aviator, you might know by now that the FAA can sometimes be the mom that pours salt on that fresh, flesh wound. In that, when it comes to the Pilot Records Improvement Act (PRIA) the FAA is pouring salt in our wounds all the time. The following will walk you through how PRIA works and make some suggestions as to how to avoid the FAA’s wrath.

 

PRIA requires that all air carriers operating under 14 CFR parts 121, 125, and 135, request, receive, and evaluate certain information concerning a pilot/applicant’s training, experience, qualification, and safety background, before allowing that individual to begin service as a pilot with their company. Of course, this is a good idea…we don’t need Bozo the Clown being hired to fly a 737 for Southwest just because his resume says he has 20,000 hours. Essentially, PRIA provides potential employers with confirmation from the FAA and one’s previous employers that an applicant’s qualifications are credible and accurate.

 

An airmen’s PRIA records will include files from the FAA, previous employers, and the National Driving Registry. The FAA’s file will include records containing information on your airmen certificates, current medical certificates, and type ratings. However, the frustrating part about PRIA is that the FAA’s file on you can contain career-crushing data. In that, the FAA records required to be reviewed by the hiring airline include your Enforcement Information Subsystem (EIS):

Enforcement Information Subsystem (EIS)

  • Computerized database of enforcement actions
  • Information may be accessed without pilot’s permission
  • Maintained by Flight Standards’ Information Management Section (AFS-624) in Oklahoma City

So, what’s the big deal? Well, everything is hunky-dory until the FAA decides to bring an enforcement action against you or you have an accident. Prior to 2010, records of action brought against your certificate would be expunged after 5 years. However, The Airline Safety and Federal Aviation Administration Extension Act of 2010, signed August 1, 2010, changes how PRIA works. Now, the new law requires the FAA to retain certain legal enforcement records until the agency is notified that a pilot has died. The FAA won’t be happy until we are all dead. As a result, if you are hit with a certificate suspension, your potential employers will know about it…which probably won’t make your application go straight to the top.

 

So what can you do in an effort to keep your PRIA record looking pristine? The obvious first step is to avoid doing anything that would warrant the FAA bringing an enforcement action against your certificate. Unfortunately, that’s easier said than done. The FAA can essentially investigate whatever they feel like investigating. Luckily, the FAA will still expunge letters warning notices and letters of correction after 2 years. Furthermore, open cases are not reported by PRIA. Once fully adjudicated and closed, both suspensions, other formal enforcement events, and revocations will become permanent entries on an airman’s EIS record, and are required to be reported by PRIA. These EIS records will remain on the PRIA report, even in cases where the airman has re-qualified, and has been issued another current and valid airman certificate.

 

Beyond that, PRIA will retain records of civil penalties. A civil penalty is basically a monetary fine issued either to an individual airman or to an air carrier. When it comes to civil penalties, air carriers are held to a higher standard. An air carrier can be subject to a penalty of up to $11,000 for a single violation. Other certificate holders such as repair stations, pilots or mechanics, can receive a penalty of up to $1,100 for each violation. Civil penalties have also become a permanent entry on an airman’s EIS record and subsequently on their PRIA report.

 

Should the FAA bring legal action against you (either in the form of a certificate action or civil penalty), the ideal modus operandi would be to adjudicate the action to its fullest. This way you can attempt to have your name cleared and your PRIA record remaining faultless. In the event of winning your enforcement action case, the “legal action” notice on your PRIA record will be expunged between 30 and 90 days. The relationship between of PRIA and enforcement actions is frustrating for airmen…such that it feels like the FAA is continuously pouring salt in the proverbial “wound.”

 

If you are the subject of an enforcement action and want to speak with an aviation attorney, call your friends at The Ison Law Group. Let us vector you through your legal turbulence… call us today with your questions at 1-855-LAW-1215.

24

Aug,2015

FAA Ramp Checks: A Survival Guide

You’ve landed, taxied to the ramp, and are tying your Cessna 172 down for the night. But who is that guy walking across the ramp toward your plane…oh no, it’s the FAA! When you see the badge clipped to his shirt that says “FAA” in big letters, you’ll probably want to climb into the baggage compartment and hide, but don’t. If you understand the “Ramp Check” process and are properly prepared for an unexpected chat with the inspector, the chances are you will survive.

 

Remember back to when your flight instructor briefly mentioned “Ramp Checks.” It is likely he or she did not spend too much time going over the process of a “Ramp Check” because they seem fairly rare. If you are a flight instructor, it may be a smart idea to have a mock “Ramp Check” with your students before sending them off to solo. Nonetheless, what is a “Ramp Check?” Essentially, these checks are conducted to ensure that a licensed pilot or student pilot are conducting flight operations safely and within the parameters prescribed by the Federal Aviation Regulations. While most checks end with the inspector shaking your hand and saying “everything looks good,” it is possible for the check to result in an enforcement action. If the FAA initiates an enforcement action as a result of a ramp check, it is possible that your pilot’s license could be suspended or revoked, and/or you could face a civil fine. The stakes are high.

 

When will a “Ramp Check” occur? A ramp check is not scheduled and is unpredictable. A check will commonly occur when an inspector observes an unsafe operation in the traffic pattern or on the ramp, is notified by ATC of an unsafe operation, or just feels like checking out your operation to make sure you are in compliance with the rules. If you are approached by someone claiming to be an FAA inspector, make sure you ask for identification before proceeding with the check, as the inspector is required to present identification prior to initiating a check. If the inspector does not present identification, make note, as that may become part of your defense if the check proceeds to an enforcement action. Furthermore, the inspector may not detain you if it means you will miss a flight or an appointment; he or she may only detain you long enough to check your records.

 

Once the “Ramp Check” is initiated, however, what can you do to ensure you keep your nose clean with the FAA? Most checks will include an inspection of the pilot’s airman and medical certificates, the aircraft paperwork, and an exterior inspection of an aircraft. Your pilot certificate will be inspected to make sure that you are licensed for the operations that you a conducting. For instance, if the inspector witnesses you landing in IFR conditions, he or she will look at your certificate to make sure that you are an instrument rated pilot. Furthermore, your medical certificate will be checked to make sure you are conducting operations within your class medical. Again, the inspector is making sure that for instance you aren’t conducting commercial operations with a third class medical. And if you are a student, your logbook will be checked for records of currency, solo endorsement, etc.

 

As to your aircraft, the inspector will want to make sure you have certain documentation/equipment onboard. Do you remember ARROW from your training – now is the time to use it! The inspector will want to see that you have with you your aircraft’s airworthiness certificate, aircraft registration, weight and balance information, and operating handbook. Beyond that, the inspector is authorized to inspect: the aircraft’s minimum equipment list (if applicable), Aeronautical charts (if applicable), the general airworthiness of the aircraft, the ELT battery, the seats/safety belts. Furthermore, the inspector can conduct a VOR check. It is important to remember, however, that the inspector is not authorized to board your aircraft without the knowledge of the entire crew; however, the inspector may inspect the exterior and look through the windows. Again, if the inspector boards your aircraft without the knowledge of the crew, note that, as it may become part of your defense if the check leads to an enforcement action.

 

Always remember to prepare for an unexpected FAA “Ramp Check,” as preparation is your only chance to survive one of these checks. Furthermore, if the check is in response to a possible violation, anything you say can be used against you. If you have questions about “Ramp Checks” or are the subject of a check, contact your team at The Ison Law Firm. We are standing-by 24/7 to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

06

May,2015

Sue Your Criminal Defense Attorney for Legal Malpractice

The need for an attorney that handles legal malpractice cases may not be readily apparent – until you realize that you need to sue your criminal defense attorney for negligently handling your criminal case. Perhaps your criminal defense attorney failed to properly investigate your case, allowing you to remain in jail when you should have been set free. Perhaps your criminal defense lawyer failed to have the prosecution drop the charges against you when you should not have been arrested in the first place. In these certain types of cases, you may be entitled to sue your criminal defense attorney for legal malpractice.
 
Our Forefather’s built America upon certain fundamental principles that were groundbreaking and revolutionary for their time. These fundamental, Constitutional principles are no less important today than they were when they were first inked in 1787.
 
One of the most important rights that Americans enjoy stems from the Fifth Amendment guarantee that no person “shall be deprived of life, liberty, or property, without due process of law.” This Constitutional Amendment is often taken for granted – that is, until you find yourself on the wrong side of the law, sitting in a jail cell for a crime you did not commit. And while the American justice system is the finest in the world, negligent mistakes happen – mistakes that could be avoided if your criminal defense attorney properly investigated your criminal case.
 
Criminal defense lawyers in Florida can be held liable for legal malpractice if they fail to properly investigate a criminal charge. For example, in Rowell v. Holt, 850 So.2d 474 (Fla. 2003), John Rowell sued his Public Defender for legal malpractice after his attorney failed to provide evidence to the State Attorney’s Office that would have secured his immediate release from custody. Mr. Rowell spent two weeks in jail before his lawyer submitted the proper documentation to the prosecutor, which proved that Mr. Rowell should not have been arrested. The criminal defense attorney committed legal malpractice because he had been in possession of this documentation for nearly two weeks, but failed to do anything – leaving Mr. Rowell to sit in jail.
 
A Florida jury found that the criminal attorney for Mr. Rowell was negligent in committing legal malpractice which caused Mr. Rowell to suffer damages for mental anguish, pain and suffering. After all, his attorney’s failure to do his job caused Mr. Rowell to sit in jail for two weeks – clearly an infringement upon Mr. Rowell’s pursuit of life, liberty, and property. As such, a jury awarded Mr. Rowell $16,500.00 for the brief period of time that he wrongfully remained in custody.
 
If you want to sue your criminal defense attorney for failing to properly investigate your case, call the Florida legal malpractice attorneys at The Ison Law Group at 863-712-9475 or 855-LAW-1215.

03

May,2015

How to Get a Section 333 Exemption From the FAA

If you want to use an unmanned aerial system for your business or other commercial purpose, you will need to know how to get a Section 333 exemption from the FAA. The FAA requires that any aircraft operation (including UAS operations) in the national airspace (NAS) acquire pilot licensure and operational approval. Section 333 of the FAA Modernization and Reform Act of 2012 (FMRA) grants the Secretary of Transportation the authority to determine whether an airworthiness certificate is required for a UAS to operate safely in the National Airspace System (NAS).
 
This authority is being used to grant authorization for certain UAS to perform commercial operations prior to the finalization of Congress’ Small UAS Rule. The Section 333 exemption process provides operators a competitive advantage in the NAS to use UAS in the marketplace, thus discouraging illegal operations and improving safety. Once you know how to get a Section 333 exemption, you can obtain your Section 333 exemption and begin taking advantage of the economic benefits.
 
As recently as April 2015, the FAA announced that it had begun to use a “summary grant” process to speed up Section 333 approvals. With these procedures in place, the FAA continues to review each individual application, but will issue a summary grant where it finds that it has already granted a previous exemption similar to the new request.
 
It is important, however, that your application for Section 333 exemption be properly drafted. Contact your aviation attorneys at The Ison Law Group and we will discuss drafting an application for you. Call us toll-free at 855-LAW-1215.

28

Apr,2015

Temporary Resident Permits for Pilots: How Can I Enter Canada With a DUI on My Record?

If you are a pilot and have received a DUI in the United States, one question you may be asking is “how can I enter Canada with a DUI on my record?” Without a Canadian temporary resident permit, it may be close to impossible to enter Canada with a criminal record. Ever since September 11th, the Canadian government has become more stringent on who gets to cross their border. As a result, when you attempt to cross the Canadian border, you will be subject to a criminal background check. The question that will be asked of you by Canadian border officials will be “have you ever been convicted of a crime?” If the answer is “yes,” you will be prohibited from entering the country. As a pilot, this could heavily affect your ability to get employment with an airline or maintain employment with the airline you already work for.
 
Entering Canada with a DUI on your record does not necessarily have to put the skids on your career as a pilot. However, in order to regain eligibility for entry to Canada, you must understand the process of overcoming criminal inadmissibility. First, the wrong assumption a lot of pilots make is that they are free to cross the Canadian border in their capacity as a crew member because neither the FAA nor their employing airline took action in response to their DUI or other criminal conviction. Again, this assumption is wrong. What happens in the United States is of no concern to the Canadian border officials. Nonetheless, what does matter to the Canadians is whether your criminal record can be rehabilitated for admission to the country. Unfortunately, this can be a very long process if you don’t take affirmative actions, such as obtaining a temporary resident permit.
 
In order to apply for “deemed rehabilitation,” the following criteria must be met:

  • You have a minimum of one misdemeanor conviction;
  • At least five or as many as ten years have elapsed since you completed the sentences for the conviction; and
  • The conviction would not be considered a serious crime in Canada.
    In evaluating each case, Canada officials use Canadian definitions of what constitutes a misdemeanor or a serious offense. In Canada, serious offenses include theft, assault, manslaughter, dangerous driving and driving while under the influence of drugs or alcohol.

 
If more than 5 years have elapsed since all sentences related to the conviction(s) were completed, but you are not eligible for rehabilitation at a port of entry because of the nature or number of convictions, you may apply for rehabilitation through a Canadian Consulate in the United States. This process is expensive, time consuming, and will likely require you to hire an attorney.
 
Nonetheless, as a pilot, you may have the option of obtaining a temporary resident permit in Canada. If you are otherwise inadmissible but have a reason to travel to Canada that is justified in the circumstances, you may be issued a temporary resident permit. To be eligible for a temporary resident permit, your need to enter or stay in Canada must outweigh the health or safety risks to Canadian society, as determined by an immigration or border services officer. Even if the reason you are inadmissible seems minor, you must demonstrate that your visit is justified. One downside is that there is no guarantee that you will be issued a temporary resident permit.
 
For a pilot, being charged with a DUI or any other crime can be disastrous. Protect your career or potential career and contact your aviation attorney if you are ever charged with a DUI or other crime. Let us take on the Canadian border officers for you. Let us vector your through your legal turbulence. Call The Ison Law Group today, toll-free at 1-855-LAW-1215.

08

Apr,2015

ADD/ADHD Diagnosis…Your Roadblock in the Sky

If you have ever been diagnosed with ADD/ADHD and/or have taken medications such as Ritalin, Focalin, Concerta, or Adderall, you could have a difficult time being granted a FAA medical. The FAA requires a special decision by the FAA Aerospace Medical Certification Division before granting a medical to any applicant that has been diagnosed ADD/ADHD at any point. While denial of a medical may be appropriate in some situations, those applicants that no longer require treatment for ADD/ADHD will likely face an uphill battle in obtaining an otherwise deserved medical.
 
Nevertheless, if you have a history of ADD/ADHD, you must fight the temptation to be dishonest regarding your diagnosis on a medical application. Failure to disclose carries serious civil and criminal penalties; it also voids the exam and any certificate issued. A surprising number of airmen who discover that a medical condition is disqualifying find another AME and omit the relevant information on the physical, which is almost automatically revealed when two exams of the same (or near) date are found.
 
If you have been diagnosed with ADD/ADHD or have been medicated with drugs such as Ritalin, Focalin, Concerta, or Adderall, contact the aviation attorneys at The Ison Law Group. We can help you coordinate the necessary paperwork, medical appointments, and legal/medical jargon that is required to earn your FAA medical. As your liaison between you and the FAA, we can help mitigate unnecessary medical appointments and expensive diagnostic testing. Let us take on the FAA for you. Let us vector your through your legal turbulence. Call us today, toll-free at 1-855-LAW-1215.

08

Apr,2015

FAA Letter of Investigation …The FAA’s Secret Weapon

Nothing can ruin your day quite like receiving a dreaded FAA letter of investigation in the mail. If handled improperly, the FAA letter of investigation could lead to an enforcement action and possibly threaten your livelihood or FAA certificated privileges. Understanding why you received your letter of investigation and what you should do in response is critical to thwarting a possible enforcement action.
 
If the FAA has reason to believe that you (as a certificated pilot, air carrier, mechanic, repair station, etc) violated a Federal Aviation Regulation (FAR), you will likely receive a letter of investigation from a local FAA aviation safety inspector. The FAA letter of investigation can relate to the approval, denial, suspension, modification, or revocation of your certificate. The overall purpose of this letter is to give you access to information as required by the Pilot’s Bill of Rights. A letter of investigation will give you information on the nature of the investigation and that you are entitled to applicable air traffic data.
 
The two most important things to remember about your letter of investigation are that: 1) you are not required to respond to your letter of your investigation and 2) any response you submit to your letter of investigation may be used against you in an FAA enforcement action.
 
The wording of a letter of investigation tends to make you believe that you must respond within 10 days of receiving the letter. This is not true; no response is required. It is easy to want to respond to a letter of investigation, especially if you feel you’ve done nothing wrong. This is a temptation you must try and avoid. Information you give to the FAA inspector could incriminate you in a possible FAA enforcement action. Sometimes assertions made by the FAA are completely incorrect and a properly worded response can assist in making allegations disappear.
 
The best thing to do if you receive an FAA letter of investigation is to call your aviation attorneys at the Ison Law Group right away. If a response is deemed appropriate, we can help you address and explain any allegations brought against you. Your team at the Ison Law Group can help mitigate damage, minimize investigation, and help you avoid providing admissions or other evidence that could later be used against you. Let us vector your through your legal turbulence. Call us today, toll-free at 1-855-LAW-1215.

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