Frivolous Lawsuits: How to protect yourself

The lawsuit

The call came to me from a very upset mechanic in an eastern state. He said that a customer sued him and others for an engine failure shortly after his shop had changed the oil and filter. It was two weeks or so and some 10 hours after the oil was changed when the engine failed and caused a forced landing. A passenger was killed but the pilot owner survived the crash. The ship was a Cessna 182RG with the Lycoming 0-540-J3C5D, 235-hp engine.

Keeping in mind that the pilot had insurance coverage on his aircraft, the death of his passenger would ordinarily be charged against him, since his passenger was not a pilot and could not have been flying the plane. Furthermore, the insurance company would immediately be looking around for some way to recover any monies it would have to pay out to the survivors of the deceased passenger and the property damage suffered by the owner. This process is called subrogation and means that the company can go after anybody it feels is responsible, in the name of the owner. The pilot would of course state that he did nothing wrong and therefore some one else had to be responsible for the engine failure and the accident.

In order for that to happen there has to be a theory of responsibility for the lawsuit. Here, our mechanic (not a repair station) only changed the oil and filter. A simple logbook entry was made something like this:

Date xxx N# xxx TT xxxxx Tach: xxx Drained oil, changed filter, added 11 quarts SAE 100. Engine runup, check for oil leaks . . . none noted. Approved for return to service. Joe Blow A&P xxx?.

We all know that this statement complies with FAR 43.9 and 43.13 (a)(b). Oil changes are routine preventive maintenance and are performed hundreds of times by shops all around the country.

FAR 43.9 states that you need a description of the work performed, the date, the name of the person performing the work, and type of certificate held. Following, this is the important part in my judgment.

"The signature constitutes the approval for return to service only for the work performed."

The theory

It seems that the people (or their lawyer) at the pilot's insurance company decided that since the mechanic had changed the oil he became responsible by failing to inspect for an AD note compliance on the filter adapter that required a new style gasket installed. They asserted in their complaint that the mechanic should have discovered that this particular AD note had not been accomplished. And, oh yes, the accident was attributed to all the engine oil leaking out because of the absence of a newer style of gasket. The AD was published in September of 2000. This oil change was done in December 2003, more than three years later! As we all know AD notes are generally not checked when we change oil. That's the responsibility of the owner.

FAR 91.403(a): "The owner or operator of an aircraft is primarily responsible for maintaining that aircraft in an airworthy condition, including compliance with Part 39 of this chapter."

This of course puts the responsibility on the owner for failure to comply with the AD note which is required by Part 39. AD notes are law, and must be complied with.

The oil change mechanic could hardly be expected to disassemble the oil filter adapter plate, converter, and installation stud to determine if the gasket was serviceable and or had been replaced by the new style gasket. Common sense dictates that there is no responsibility for mechanics to disassemble and inspect components not involved with their work in order to determine airworthiness.

How about the previous annual inspections? Of course, they had direct responsibility to check for AD note compliance and apparently failed to do so. At least two annual inspections were performed on this aircraft after Sept. 5, 2000, the date of Emergency AD 2000-18-53 calling for replacement of the filter converter plate gasket, before further flight!

What can be done?

Get hold of the lawyer, (the mechanic did have insurance protection for completed operations) and tell him to tender the defense of this case to the people who performed the last annual inspection of the aircraft. Everyone knows that they are responsible for AD note review and compliance status along with the owner, during their inspection. If the AD was missed they could very well be held responsible for approving the return of this aircraft to service without complying with the AD. AD compliance review is mandatory during annual inspection. Indeed, this AD was classified emergency and should have been complied with by the owner on receipt of notice. (Usually by U.S. mail to the registered owner.)

If they refuse to defend the case then you have to cross complain against them for what's called indemnity. That is, you want them to reimburse you for any expenses and any judgment against you that may be lodged because of the lawsuit. This is commonly called a complaint for indemnity.

In addition, because the law is so clear in this case, I would consider a cross complaint for abuse of process, defamation, and any medical and general damages against the owner. You may have some difficulty with these causes of action, however, remember you must attack the frivolous lawsuit with a vigorous response. The threat of a judgment against a plaintiff can be a strong incentive to have him and his insurance company back off.

Our man did not perform any inspection on this aircraft and certainly was not instructed to, nor paid for such work. If the owner had specifically instructed him to review AD note compliance then the story would be different. But he did not!

The airworthiness directive

The AD concerned is Lycoming 2002-18-53. (September 2000). The note applied to a large number of engines, new, rebuilt, overhauled, or had the oil filter converter plate or gasket replaced. Lycoming Mandatory Service Instruction 543B dated Aug. 30, 2000, and Service Instruction 1453 dated May 9, 1991 are both referenced in the AD. Compliance with this emergency AD should have been completed long before the accident in this case.

One can easily get caught by the failure of the owner to comply with this AD. After speaking with numerous shops and individual mechanics who routinely change oil and filters on Lycoming engines it is apparent that none of them feel they have responsibility to check for compliance with this AD during an oil and filter change. The converter plate and associated stud is required to have a installation torque of 50 to 60 ft.-lbs. Removal and replacement of the filter involves a torque of less than 20 ft.-lbs. Hardly sufficient to have any effect on the converter plate and attached gasket.

Other steps you can take

I have always been concerned about mechanics' poor handling of paperwork. The matter of attending to detailed signed repair orders, logbooks, and maintenance records is always a pain in the neck for the average small shop. It would be nice to have one person in the shop take care of this but it is not always possible.

Remember, in the event you have a hard time with a customer, the repair order, signed by the customer, is your best defense. You can write (or have printed) anything you want on the form.

In my opinion, you must clearly spell out what you are going to do and what you are not going to do, where it seems appropriate.

You might think that the more detail you put into the maintenance record the more likely somebody can find something wrong with it or the work. This is partly true. But keep in mind that if you happen to have performed maintenance on an aircraft before an accident, you probably are going to find yourself in a lawsuit anyway. No doubt about it, even if you have insurance coverage. In fact, probably because you have coverage! The old adage . . . no insurance no lawsuit still stands to a certain extent.

Disclaimer

How about being more explicit in the maintenance record about what you did not do while performing maintenance? Your stamp or printed statement can easily use some of the language of FAR 43.9 and give emphasis to the narrow scope of your work if appropriate:

"My signature constitutes approval for return to service of this aircraft ONLY FOR THE WORK I HAVE PERFORMED. I have not performed nor been authorized to perform any inspection of this aircraft nor have I reviewed or been authorized to review the maintenance records, including Part 39 compliance."

What I would like to see are various forms of a disclaimer for different situations reduced to a stick on and have the owner acknowledge (sign) the statement in the record or on the repair order or both. He should be required to sign a repair order to authorize any work. The more the owner understands the scope of your work the less he will be interested in chasing you for his problems. It won't guarantee it, however. If you have had any experience or difficulties with this particular AD (or any others) please forward your thoughts by email to aerolaw@att.net.

Remember, additional language in the record won't necessarily prevent insurance company lawyers and owners from laying a lawsuit on you, but it will sure make them think a little bit before they make their decision. That's all you can hope for.

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