Introduction
There are about 87,000 flight instructors in the United States. It is estimated that only about 11,000 of them are active. Of the active instructors, most are under age 30 and building time to go on to other aspects of piloting. But, there are a substantial number of flight instructors in the age 30 to 65 bracket who enjoy instructing and do it either as a hobby or as a means of supplementing their income. Whatever the case, flight instructors don’t make huge sums of money. For this reason, flight instructors have traditionally not been targeted in lawsuits. Their pockets have not been considered deep enough to warrant the cost of suing them. That is unfortunately changing. In the litigious society of today, law firms representing clients injured in aircraft accidents frequently take a shotgun approach in their suits. They just name as a defendant, everyone who was remotely involved in the accident. That fact, coupled with the steeply rising insurance costs faced by flight schools causing many of them to decrease their insurance coverage, has put the flight instructor at risk more than ever. In the past, the flight instructor was almost always covered by the flight school’s insurance policy. Today, with most flight instructors working as independent contractors rather than employees, that is no longer the case. Flight instructors need to understand the liability risks that they face so that they can make intelligent decisions regarding their personal risk management.
Liability Exposure from Occurrences while Onboard
Each year there are a number of accidents and incidents that occur while a flight instructor is providing training. The result is aircraft damage and, less frequently, student injury or death. Almost by definition, the flight instructor is considered to be responsible for the accident or incident since the CFI is the pilot-in-command. A lawsuit might be filed in an attempt to recover monetary damages from the instructor because he or she failed to act appropriately or in a timely manner so as to prevent the accident or incident.
This is where the “non-owned” liability policy comes into effect. But, the standard non-owned or commonly referred to as “renters” policy won’t cover a CFI while he or she is providing flight instruction unless it is specifically endorsed to do so. There are flight instructors who routinely instruct in airplanes owned by others who falsely believe that they are protected by their basic non-owned liability policy that protects them when they rent an airplane for personal use. This simply isn’t true.
Unfortunately, the exposure to this kind of liability goes beyond instructing in an airplane owned by the student. Today, most flight instructors work as independent contractors. They are self-employed and they have absolutely no insurance protection.
There are two possible areas of liability exposure here. First, if someone is injured, the CFI might be named in the lawsuit if the attorney for the injured party takes a “shotgun” approach and simply names everyone involved as a defendant. Here, in a best-case scenario, many thousands of dollars will be required to pay for the legal defense to win the suit. In the worst case, the suit is lost and the instructor is responsible for hundreds of thousands of dollars to compensate the injured party in addition to the legal fees.
The second area of liability here is through the concept of “subrogation.” The flight school’s insurance company might settle the claim to the satisfaction of the injured parties, including paying for the damage to the airplane. Then, that insurance company might attempt to “subrogate”, or recover their loss from the flight instructor who was actually pilot-in-command of the airplane. It is very easy for an attorney to find an “expert witness” to testify that the flight instructor, under Federal Aviation Regulations, is the pilot-in-command of the aircraft and that while acting in that capacity has ultimate responsibility for and final authority to the operation of the aircraft.
Negligent Instruction
The second kind of liability exposure for the flight instructor is that of negligent instruction. In this case, an accident or incident occurs while a pilot who has been instructed by the CFI has been involved in an accident, and the accident has been caused by pilot error. A lawsuit might be filed in an attempt to recover monetary damages from the instructor because he or she was negligent in providing the instruction to the accident pilot. This kind of liability exposure is similar to the malpractice lawsuits commonly filed against physicians.
In this case, the non-owned liability is useless, since the CFI was not in the aircraft when the accident occurred. Only a special negligent instruction policy will protect the flight instructor in this case.
Negligent instruction lawsuits against flight instructors are becoming more common. Attorneys are more frequently taking a “shotgun” approach and naming everyone who could have possibly had involvement with the accident. Certainly the logbook of a deceased or seriously injured pilot can be very incriminating when introduced into evidence in court. There is most certainly an endorsement stating that the flight instructor found the pilot to be competent. Since the accident was clearly the result of pilot error, the attorney for the plaintiff will argue, the flight instructor was negligent in his or her responsibility to make sure that the pilot was competent prior to providing the endorsement.
This liability exposure is present when a flight instructor provides an endorsement for a certificate or rating as well as when a flight review or instrument proficiency check is performed.
Some instructors have a false sense of security because they become friends with their students or provide flight reviews only to people they know. They have the belief that none these people will ever file a suit against them. They might be right. But it is not only the injured pilot who can file a suit. In the event of a fatal accident, the estate of the deceased pilot may file a lawsuit claiming that the pilot had many years of earning potential of which the estate will now be deprived. In a recent case, an HMO has filed a suit against a flight instructor in an attempt to recover the cost of a student pilot’s medical expenses after an accident. The student was flying solo at the time of the accident and the lawsuit charges that the CFI provided negligent instruction that resulted in the accident.
Many people are quick to point out that there have been very few successful cases in which a flight instructor has been successfully sued for negligent instruction. This has been true in the past, but the trend is clearly changing and many more such suits will be filed in the future.
Summary
The best way for an instructor, or any pilot, to avoid ending up on the wrong end of a lawsuit is to maintain proficiency and leave nothing to chance. That being said, accidents will continue to happen. Flight instructors have more exposure to liability claims than other pilots do simply because they are at risk every time a pilot who has received their endorsement takes to the air. Clearly insurance is the key. All flight instructors would be well advised to consult a reputable aviation insurance broker. If the broker isn’t able to provide the coverage necessary, NAFI and AOPA offer some limited coverage |
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