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CFI Rating and Liability
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KennyFlys
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Ahhhh... operated by DNC standards? I had my suspicions about you!It's a non-poll poll in Flight Following called Your Aviation Life.
Vote early, vote often
flyingcheesehead
Touchdown! Greaser!
A-freakin'-men, Lance.
I'm pretty sure that if I ran around afraid of my own tail (or afraid someone was going to sue it right off of me) I'd someday be sitting in a bed dying, thinking of all the things I wish I'd done.
Heck, that's why I fly. I can tell you how many times I've heard that I should save my money, fly when I'm retired or something silly like that. I just know too many people who have saved up their entire lives so they can "enjoy their retirement" and then they drop dead in their early 60's. Not me. No way.
Carpe Diem.
Dave Siciliano
Final Approach
I looked into this quite a bit am still on the fence. I see both sides and one must go with their conscience. What brought it up to me is all the waivers, indemnifications and named insured stuff that's going on. People are listening to attorneys that are trying to protect them and it's getting pretty nasty. Many folks are scared and not directing their attorneys; just following their instructions.
Let's look at one case. I was going to take a very well know proficiency course in my Baron. Was ready to go until I got the info packet. Here's what was required: waiver of subrogation against the course provider (not the instructor); named insured on my policy (because my limit is higher than many-this effectively gives them more coverage I'm paying for and could dilute my coverage if jointly responsible) and they had an unbelievable waiver prepared (I later found out by a non-attorney).
Now, add to this that I have a Texas aircraft and ownership entity, the training was in Virginia and the waiver said litigation would be handled in a third state. It could get very messy. So, I sent it to my attorney to figure you what I should do.
He said it was probably not enforceable, but it could be expensive to prove that in another state. Of course, I would need out-of-state counsel to take it to task. Where I have another named insured and there is an accident with joint responsibility, my coverage could be diluted 50%.
On the CFI stuff; same thing. Most cases are settled--it's not worth paying for the litigation. The insurance folks will do that whether I want to fight or not. So, it's complex, out-of-control and downright expensive to get named in one of these.
In my case, I have to do a lot of bank borrowings. If I'm a named party in any litigation it can get complicated and create contingent liabilities for me. That could cause a lender to hesitate when I need financing and could even cause me to be in violation of an existing covenant in one of my current loan documents. So, on the advise of counsel, I should not participate.
Long story short, the system isn't working correctly when one can be brought into a suit when there are no reasonable grounds. I know, the attorneys on here will say you will eventually be released. But, I've gone through being named when there were no grounds. There was mediation that didn't work but took a lot of time, I became a defendant instead of running my business each day and it was expensive. There was discovery which drove us nuts producing records and documents and opened many sensitive corporate documents. Then there was just the aggravation. One attorney was nice enough to point out if there was an incorrect decision, this is normally corrected at the appellate level; how nice---for the attorneys.
There is something we can do; refuse to participate in courses and with instructors that require unreasonable stuff. I don't mind some reasonable protections, but the stuff this course required and one instructor with which I refused to fly needs to get back in balance. I was really incensed when at another course, an attorney there had attended this proficiency program and signed all those docs. I asked why he had; he said he didn't think the documents would hold up in court! Great! But I don't want to take the time effort and money to prove that. Was really mad he knew it was wrong and signed anyway.
Rant over.
Best,
Dave
Let's look at one case. I was going to take a very well know proficiency course in my Baron. Was ready to go until I got the info packet. Here's what was required: waiver of subrogation against the course provider (not the instructor); named insured on my policy (because my limit is higher than many-this effectively gives them more coverage I'm paying for and could dilute my coverage if jointly responsible) and they had an unbelievable waiver prepared (I later found out by a non-attorney).
Now, add to this that I have a Texas aircraft and ownership entity, the training was in Virginia and the waiver said litigation would be handled in a third state. It could get very messy. So, I sent it to my attorney to figure you what I should do.
He said it was probably not enforceable, but it could be expensive to prove that in another state. Of course, I would need out-of-state counsel to take it to task. Where I have another named insured and there is an accident with joint responsibility, my coverage could be diluted 50%.
On the CFI stuff; same thing. Most cases are settled--it's not worth paying for the litigation. The insurance folks will do that whether I want to fight or not. So, it's complex, out-of-control and downright expensive to get named in one of these.
In my case, I have to do a lot of bank borrowings. If I'm a named party in any litigation it can get complicated and create contingent liabilities for me. That could cause a lender to hesitate when I need financing and could even cause me to be in violation of an existing covenant in one of my current loan documents. So, on the advise of counsel, I should not participate.
Long story short, the system isn't working correctly when one can be brought into a suit when there are no reasonable grounds. I know, the attorneys on here will say you will eventually be released. But, I've gone through being named when there were no grounds. There was mediation that didn't work but took a lot of time, I became a defendant instead of running my business each day and it was expensive. There was discovery which drove us nuts producing records and documents and opened many sensitive corporate documents. Then there was just the aggravation. One attorney was nice enough to point out if there was an incorrect decision, this is normally corrected at the appellate level; how nice---for the attorneys.
There is something we can do; refuse to participate in courses and with instructors that require unreasonable stuff. I don't mind some reasonable protections, but the stuff this course required and one instructor with which I refused to fly needs to get back in balance. I was really incensed when at another course, an attorney there had attended this proficiency program and signed all those docs. I asked why he had; he said he didn't think the documents would hold up in court! Great! But I don't want to take the time effort and money to prove that. Was really mad he knew it was wrong and signed anyway.
Rant over.
Best,
Dave
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docmirror
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Cowboy - yeehah!
Well presented Dave. I miss the ABS convention this year for a similar, but not exact situation. I also sent a pretty nasty email to the manager of the ABS convention as to why I wouldn't be attending. It's sad, because the ABS and other aviation events are things I'd like to be involved in. But having to jump through everyone else's hoops to participate takes the enjoyment out of it.
It's becoming worse with the FAA paperwork every year. Insurance is just as bad.
It's becoming worse with the FAA paperwork every year. Insurance is just as bad.
flyinhood
Pre-Flight
Big Bump!
I am new here and found this thread. Great Read. I have started an LLC, got the most expensive CFI insurance from Avemco (about 1,000/ year), and drawn up a release form for everyone I fly with. I document everything I do with every student and am going to start having them sign them (2 are minors so I don't know if that matters). Is there anything else I can do to give my wife and I peace at night?
I enjoyed reading about the risk scale each of us go through. It is more popular for pro pilots to put instruction in their rear view mirror, but it is something I really enjoy and would like to stay with.
I am also curious on the FAA slant on a CFI riding in an owners airplane and something happens. Is the CFI always at fault no matter what? Does the FAA just go after the person with the highest ratings? (ATP in left seat, CFI in the right and you blow airspace or hold short line)?
Any words appreciated. Thx
I am new here and found this thread. Great Read. I have started an LLC, got the most expensive CFI insurance from Avemco (about 1,000/ year), and drawn up a release form for everyone I fly with. I document everything I do with every student and am going to start having them sign them (2 are minors so I don't know if that matters). Is there anything else I can do to give my wife and I peace at night?
I enjoyed reading about the risk scale each of us go through. It is more popular for pro pilots to put instruction in their rear view mirror, but it is something I really enjoy and would like to stay with.
I am also curious on the FAA slant on a CFI riding in an owners airplane and something happens. Is the CFI always at fault no matter what? Does the FAA just go after the person with the highest ratings? (ATP in left seat, CFI in the right and you blow airspace or hold short line)?
Any words appreciated. Thx
Depends. How much peace of mind do you need (BTW, the LLC does zero for your liability picture - #1 on the list of things most people don't understand about LLCs).
"The FAA will go after the highest certificate" is a myth. It's not that black and white. The FAA will look at the event, the pilots' status with respect to the flight, and what the pilots did or did not do, and assign blame to one of them or both of them.
Yes, the FAA will hold a CFI to the same standard as a PIC, but that does not mean the owner of an aircraft cannot be the "real" PIC in an instructional situation.
As a start (other than my signature block
) for case that says "a CFI is always PIC on an instructional flight" and then says the PIC was not at fault for an accident, you can read FAA v. StroebelAnd for one where the NTSB says you can be held responsible whether you are PIC or not, there's FAA v. Blum.
flyinhood
Pre-Flight
Good to know. Any other words of advice for those interested in protecting themselves and families during contract CFI ops?
OkieAviator
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OkieAviator
Also can't sign away negligence on a waiver... In a typical liability case that's what they're going to chase you with.
flyinhood
Pre-Flight
So. Does the flow chart look like this:
Accident, lawyers chase CFI for negligence, CFI' Insurance lawyers defend CFI, Insurance settles out of court...
If I understand many of the previous posters, rare is a case against a CFI that goes to court?
Is my fear somewhat self manufactured and unsubstantiated?
Accident, lawyers chase CFI for negligence, CFI' Insurance lawyers defend CFI, Insurance settles out of court...
If I understand many of the previous posters, rare is a case against a CFI that goes to court?
Is my fear somewhat self manufactured and unsubstantiated?
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Fearless Tower
Touchdown! Greaser!
I suspect it depends a lot on the limits of the policy and the personal assets of the CFI.
Lawyers tend to go after the deepest pockets. So, if the CFI is 20 years old and living paycheck to paycheck and has a $1M CFI policy, but works for a flight school/FBO with a larger liability limit and assets say around $2M, then the lawyers will likely go after the school vs the CFI.
flyinhood
Pre-Flight
So that's pretty much the question. Is there a history of someone successfully suing and receiving an award beyond the CFI insurance and getting into the individual CFI' personal assets?
I have dozens of friends who fly professionally. Many want nothing to do with giving back to GA in the way of instructing or helping youth out of fear of liability.
I'm trying to determine the true risk of a CFI who tries to do a good job but finds himself on the receiving end of litigation for what ever reason?
I have dozens of friends who fly professionally. Many want nothing to do with giving back to GA in the way of instructing or helping youth out of fear of liability.
I'm trying to determine the true risk of a CFI who tries to do a good job but finds himself on the receiving end of litigation for what ever reason?
James331
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James331
And of something happens, someone gets hurt and has the money for lawyers they'll still take you to court just the same, the insurance company will try to minimize paying out, the lawyers will maximize their take, just like the rest of the use happy parties.
Everskyward
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Everskyward
I think I would look to Mark (midlifeflyer) for a good perspective on that answer. He is both a lawyer and a CFI. We have others who also do both. LDJones (Loren) who has made the switch to regional pilot comes to mind.
Not universally true. That is state law dependent. Your results may vary.
For the minors, have the parents sign on their own behalf as parents and natural guardians, and on behalf of the children. I don't know if that works in your state, but it might.
Also, ditto on the LLC. An LLC won't insulate you from tort liability for your own personal actions.
Oh yeah, I forgot. You can also include a provision that requires the student (or the parents in case of a minor) to indemnify and hold you harmless. Again, I don't know if it will work in your state, but it might.
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They're difficult cases to make. There are basically two type of such claims: claims by the student against the CFI, and claims by innocent third parties (passengers, and those on the ground). Each have their issues in successfully bringing. I have a memorandum someone wrote on this issue I got from the SMU Aviation Law conference a few years back. When I get some time at the office, I'll see if I can find it and send it to you.
Dr. O
Pattern Altitude
Normally I don't jump in on a 4 page flog of speculation over something that has not happened. But in this case the topic is not limited to being a CFI.
Let us assume you have a car, normally insured for a million or two, and feel pretty safe. Now let's assume you enter an unmarked intersection and collide with a school bus loaded with children and the crash kills a half dozen. Regardless of fault or lack thereof under traffic regulations, do you think that million dollars is going to save your money, cars, and property from being seized by the court?
What I always recommend is that everyone - including a CFI with a zero net worth - create an LLC for each piece of real estate, one for each vehicle, and one for each/any other valuable possession.
Now, will this stop you from being held financially liable?
Heck no - B U T - the court cannot take those items owned by the LLC(s).
You will be in debt for the court judgement - but able to retain your LLC(s)
And last I checked they cannot force you to work.
Let us assume you have a car, normally insured for a million or two, and feel pretty safe. Now let's assume you enter an unmarked intersection and collide with a school bus loaded with children and the crash kills a half dozen. Regardless of fault or lack thereof under traffic regulations, do you think that million dollars is going to save your money, cars, and property from being seized by the court?
What I always recommend is that everyone - including a CFI with a zero net worth - create an LLC for each piece of real estate, one for each vehicle, and one for each/any other valuable possession.
Now, will this stop you from being held financially liable?
Heck no - B U T - the court cannot take those items owned by the LLC(s).
You will be in debt for the court judgement - but able to retain your LLC(s)
And last I checked they cannot force you to work.
gov98
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Gov98
There's a really interesting case out of California about horse instruction and a signed release re:a minor and her parents signing the release, it is Eriksson v. Nunnink (2015) 233 Cal.App.4th 708 for those who are interested in the power of google.
When I got my license a few short years ago, I was pretty amazed that my instructor did not have me sign a release...it seems fairly basic.
LLCs are weird vehicles, for business they make sense, but my suspicion is putting all one's personal property into various LLCs is a quick way to make a judge think one is a scammer.
Why do you think that they can't just take the LLC?
I think you may be better off to own your home jointly with your spouse. State law will vary, of course, but many states protect your residence from collection, at least up to a certain amount, and won't allow jointly held assets to be seized to satisfy the debts of just one spouse. So if you negligently injur another, and their is no claim your spouse contributed, they probably can't take your home to satisfy that debt. Of course, opinions may differ, and each situation must be evaluated independently.
Two more things you can add:
A limitation of liability clause: often service providers will limit their liability to just return of the payment for the service. It might work in your state, it might not. (Sensing a pattern here?)
A choice of law and forum selection clause. This may allow you to choose a state's law that would allow you to limit your liability contractually. The forum selection clause would require them to sue you where its convenient for you, not them. Again, it might or might not work in your state.
I can't really help too much with specifics since I don't do accident injury work.
Whether it has ever actually happened in terms of a claim against an instructor or not I don't know but my impression is that it can and will happen in the "right" case.
What's the "right" case?
What we tend to forget (ignore?) is that an aviation accident claim is not the same as a car accident. Although car accidents sometimes require accident reconstruction, they are typically easy enough from an evidence standpoint. Not quite the same for aviation. Look at the number of times we argue about the cause of an accident, and we kind of know what we are talking about. So it usually costs a lot of up front money for the plaintiff's side to build a case. On top of that, even without good asset protection planning, judgments are not easy to collect. State laws and federal Bankruptcy rules protect some assets, there are survivorship rights for spouses and children, etc. And, while we enjoy screaming about runaway juries, the opposite also takes place - juries that significantly undervalue a case. The pros on both sides can have a decent idea what a case is worth but, it's pretty much a crap shoot.
One of the purposes of insurance is to have enough available to make settlement attractive to the Plaintiff. The old "bird in the hand" concept. That's why about 90% of cases that make it to court settle. And why it's generally only a small percentage of cases that even get to court to begin with.
Of course, there are going to be horrific injuries with long-term disabilities or the death of a major wage-earner with events that are egregious. But those tend to be a very small percentage of a very small percent age of a very small percentage.
The article linked below contains an interesting discussion of the doctrine of "Educational malpractice." In short, many states do not recognize a cause of action for educational malpractice, and there are a number of cases saying as much as it relates to flight instruction. This is probably most relavant to those giving BFRs, IPCs, checkouts, etc. where there is a fear someone will come back later and say you should have done a better job, etc. The article indicates that basically every state to consider the issue has decline to recognize such a cause of action. Of course, accidents that occur while the CFI is IN the airplane are another matter entirely.
http://www.rbs2.com/edumal3.pdf
http://www.rbs2.com/edumal3.pdf
wilkersk
Pattern Altitude
This whole topic of CFI "liability" just sounds kinda scary. But, how many CFI's have been successfully sued for a negligent act while instructing? I've found 2 because I was looking for them. But, other than those, I don't know of any CFI's who've been sued. Is this really a problem? Don't get me wrong, I'm not naive enough not to realize that CFI's should have some form of liability coverage. But, if you've really got the kind of personal assets that you need to be extra concerned about protecting from frivolous litigation, shouldn't you have an estate plan that does that, as well as liability insurance?
By the way, here's a really good article on CFI liability from an aviation law group:
http://www.aviationattorney.com/publications/primer-aircraft-flight-instructor-liability
By the way, here's a really good article on CFI liability from an aviation law group:
http://www.aviationattorney.com/publications/primer-aircraft-flight-instructor-liability
bflynn
Final Approach
Someone asked earlier about cases of flight instructors getting sued. There's a simple way to do that, here's an example: http://lmgtfy.com/?q="flight+instructor"+sued
From that, I was able to identify these cases in just a couple of minutes. It appears to be a real thing. Actual liability is irrelevant, if someone you trained crashed and there is a death involved, there's a chance you'll get sued over inadequate instruction. This is the world of tort in the United States.
http://articles.mcall.com/1994-03-15/news/2958492_1_flight-instructor-training-flight-flight-school
http://qz.com/381008/a-man-says-his-flight-instructor-was-facetiming-when-their-helicopter-crashed/
http://charlesorourke.com/articles/suicide-by-airplane
http://articles.orlandosentinel.com/keyword/flight-instructor/featured/5
From that, I was able to identify these cases in just a couple of minutes. It appears to be a real thing. Actual liability is irrelevant, if someone you trained crashed and there is a death involved, there's a chance you'll get sued over inadequate instruction. This is the world of tort in the United States.
http://articles.mcall.com/1994-03-15/news/2958492_1_flight-instructor-training-flight-flight-school
http://qz.com/381008/a-man-says-his-flight-instructor-was-facetiming-when-their-helicopter-crashed/
http://charlesorourke.com/articles/suicide-by-airplane
http://articles.orlandosentinel.com/keyword/flight-instructor/featured/5
This is probably one of the most important points in the entire thread. While most authority indicates that CFIs have little to no true liability for negligent instruction, you can pretty well expect to get sued if someone you recently gave instruction to augers it in. The cost of getting dismissed from the suit can be extraordinary. Even with a cheap lawyer you can expect to lots of money (5 figures) just to hopefully get dismissed early on.
Basically, it makes little to no difference what you do to "protect" yourself because you can't stop someone from suing you.
beestforwardspeed
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And that's exactly why you should have insurance. The cost of your legal defense is covered 100%, and is not deducted from your policy limit.
wilkersk
Pattern Altitude
I don't know about any of you. But, I don't plan on doing any of these things.
I still believe that an appropriate amount of professionalism, caution, insurance, and estate planning is all that is necessary. If you're so rich you can't risk your fortune to liability from being a flight instructor, then perhaps you shouldn't!
jnmeade
Cleared for Takeoff
My net worth is reasonably high, based on farm land I've finally paid off, but I don't have a lot of cash. And, I'm way too old to recover a big loss. It's the common story of farmers, "live poor, die rich".
A 5 figure cost of defending a suit that ends up not going against me would not be easy money to dig up. If it went to six figures, I'd almost certainly have to sell some land. The prospect of having to dismantle part of my estate to fight a suit is not attractive.
To me, I don't have to lose to lose.
This is only my own personal sense. I'm not suggesting it is applicable to others, but it informs how I view and approach flight instructing.
flyinhood
Pre-Flight
I really enjoyed reading this link posted and would highly recommend any other CFI read it also. The article gave me some peace about how to enjoy what I do with some caution and the statistical unlikelihood of a case going so far as to eat through my CFI insurance and than on to my personal assets. Anything could happen but as others have said, with insurance, a liability waiver, documentation, and some professionalism, flight instructing can be fun again.
The right case is a Cirrus with two bread-earners flying VFR into a hillside under a a 1000ft overcast at night.
UND foundation (along with Cirrus Designs) got sued under a product liability theory for failing to teach the pilot on how to use the autopilot. He had finished the transition course and was issued an endorsement for VFR flight only. The case bounced between state and federal courts for 8 years. At one point, there was a verdict of 15mil against UND and Cirrus. The MN supreme court nixed it when they decided that it was not an issue of product liability but rather instruction and that instruction is protected from liability under the MN constitution.
Capt. Geoffrey Thorpe
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Light and Sporty Guy
"March 5, 2007 — Bedford, Indiana
Eric Johnson, a 47-year-old student pilot, crashed a Cessna 150M (N66513) into the home of his mother-in-law, Vivian Pace. Also on board was his 8-year-old daughter, Emily Johnson. Pace was home but uninjured. Emily’s parents had divorced the previous November and a custody dispute was still ongoing. Emily spent the previous week with her father and was reported missing when he didn’t bring her to school on Monday. Johnson called his ex-wife, Beth, from the plane, called her a whore, and told her, “I’ve got her, and you’re not going to get her.” The aircraft was destroyed when it impacted the house, killing its two occupants. Police Sergeant Dave Bursten commented, “It is just gut-wrenching to think about what was happening for that child just prior to the crash.” Beth later unsuccessfully sued the airport, the aircraft’s owners, Eric’s flight instructor, and the county aviation board for damages. (Sources: NTSB, WTHR, MSNBC.com, Indiana Court of Appeals)"
Most of the cases go the same way, so there is probably a pretty minimal amount of true exposure for a CFI. But, can you even imagine how much was spent to get through those 8 years of litigation? This is where a cheap CFI insurance policy can pay off in spades, as that's how you get your attorneys' fees paid.
beestforwardspeed
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Eggggggzactly!!
That is what I keep trying to emphasize is that 100% of ones legal defense is automatically paid by ones insurance!!
THAT is 95% of the battle.
The only reason that travesty went on so long is because the targets were a foundation with millions in endowment and a midsize manufacturer. For the 1mil available in CFI insurance and maybe a couple $$ in accessible non-homesteaded home equity, no litigator is going to go that far.