Frequently Asked Questions
Below are answers to some of the questions frequently encountered by the attorneys at Magaña, Cathcart & McCarthy as they represent clients in claims involving aviation accidents in California, nationwide, and internationally. If you have other questions or need advice on a specific matter, contact the attorneys at Magaña, Cathcart & McCarthy for immediate assistance.
Q. What is the difference between a statute of limitations and a statute of repose?
A. A statute of limitations is the amount of time in which you have to file a lawsuit. The law varies from state to state, but in most jurisdictions, you have up two years from the date of the accident in which to file a lawsuit in court. A statute of repose also establishes a timeframe in which a lawsuit may be filed based on the age of an airplane or its component parts. For instance, the General Aviation Revitalization Act (GARA) provides a defense to liability for small, private planes covered under the act which were manufactured 18 years ago or longer. Therefore, even if the accident happened only a month ago and you are well within the statute of limitations, if the aircraft is beyond the applicable statute of repose, you may not be able to recover. An experienced aviation accident attorney will be able to determine whether a statute of repose applies, but is important to consult an attorney soon after the accident to ensure the applicable statute of limitations is complied with as well.
Q. Are private planes regulated by the FAA?
A. The Federal Aviation Administration (FAA) does regulate private planes as well as commercial carriers, although the regulations for commercial carriers are much more complex. FAA regulations for commercial carriers require extensive maintenance and inspection routines and place strict limits on duty time and crew training requirements. Violation of FAA regulations may provide helpful evidence of negligence on the part of the defendant in litigation.
It is possible for even the owner of a small, private plane to be considered a commercial carrier subject to the stricter FAA regulations. Charging a third party a fee for a flight, utilizing the plane for business purposes and then charging back the operating costs of the flight, or even asking friends to contribute toward the cost of fuel, can expose the owner to the stricter FAA regulations. If you have been involved in a private plane accident, it is worthwhile to investigate whether the plane may nevertheless be considered a commercial carrier by the FAA.
Q. Is it true that you are limited to recovering $75,000 for injuries sustained in an accident on an international flight?
A. No. This was the case under the Warsaw Convention for accident victims from the United States. However, this treaty was replaced in 1997 by the Intercarrier Agreement on Passenger Liability, which allows accident victims to recover whatever amount would be available if the flight had been a domestic flight. However, claims for emotional damages, such as pain and suffering, are not allowed unless accompanied by physical injury as well.
Under another treaty, the Montreal Convention of 1999, air carriers can be held strictly liable for damages up to approximately $160,000 without having to show negligence or fault on the part of the airline. If negligence can be proven, higher damages may be recovered in accordance with the Intercarrier Agreement mentioned above.
Q. If the accident occurred in another state, do I have to travel there in order to file a lawsuit? What if it happened in another country?
A. There are several different places, known as forums or venues, where a lawsuit may be filed. In the case of an aviation accident, a lawsuit may be filed in the jurisdiction where the accident occurred, in the court of the plaintiff’s residence, or where the defendant resides. Where there are multiple defendants, or where the defendant is a corporation, there may be several forums that count as the defendant’s residence.
As a plaintiff filing a lawsuit, you are entitled to file a lawsuit in the forum which is most convenient to you or which you believe would be most favorable to your case. For instance, you may feel more comfortable getting justice in your home country than a foreign country. However, the defendant is often able to change the venue. For instance, the defendant may remove a case from state court to federal court if the federal court also has jurisdiction. Also, under the doctrine of forum non conveniens, the defendant may move to have the case dismissed on the grounds that another court is the better forum in which to hear the case.
The initial decision of where to file a lawsuit involves many different considerations and could seriously impact how the case is handled. Your attorney should be able to advise you on the best forum to hear the case, and should also be prepared to vigorously oppose attempts to change the venue or have the case dismissed on the grounds of forum non conveniens.
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