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Thursday, February 3, 2000 - Page updated at 12:00 AM

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Alaska Airlines crash will likely be heard in court

Seattle Times staff reporter

Virtually every air disaster winds up in the courts. The crash of Alaska Airlines Flight 261 will most likely be no different as grief becomes anger for some and many relatives of the victims turn to the courts for compensation.

But the fate of Flight 261 - an international flight that went down in the ocean - poses some particularly sticky legal questions.

International treaties and antiquated laws - including one passed as a result of the sinking of the Titanic - often are successfully invoked by airlines to severely limit damage payments.

Moreover, 35 of those killed were Alaska Airlines employees or their family members flying on reduced-priced or free tickets. Their ability to sue the company at all could be circumvented by worker's compensation laws.

"This will be a very controversial case, I can almost assure it," said Phillip Kolczynski, an aviation-law attorney who practices in Santa Ana, Calif.

Because the plane went down more than nine miles off the California coast, the accident could fall under the "Death on the High Seas Act" passed by Congress in 1920. The law allows damages only for the death of a breadwinner, someone who provides financial support.

Claims involving the deaths of children and other non-wage earning family members, such as aged parents or grandparents, are barred. The act also prohibits claims for pain and suffering. "If invoked, it can easily cut damages in half," said Kolczynski.

Whether the act applies to Flight 261 will be determined by where the crash occurred.

Traditionally, any accident outside a 3-mile territorial perimeter would fall under the act. That has been challenged, however, by relatives of the victims of the 1996 crash of TWA Flight 800 off Long Island, who are attempting to invoke a 1988 presidential proclamation extending the U.S. coastal-waters territory to 12 miles.

Among the defendants fighting that interpretation is Boeing, which is almost certain to be a defendant in any lawsuit filed over Flight 261. Boeing bought McDonnell-Douglas, the manufacturer of the MD-83 that crashed.

Flight 261 was an international flight, so the Warsaw Convention - a treaty enacted in 1929 to protect the fledgling transAtlantic airline industry against excessive damages - will likely come into play.

The treaty was amended recently to make it less onerous to victims - it now provides for an almost automatic $135,000 cash payout by an airline in the event of an accident. But it still limits jurisdiction in some cases and can preclude punitive damages.

Attorneys skilled in personal injury and wrongful death litigation have plenty of advice for survivors of Flight 261, much of it admittedly self-serving: seek qualified counsel and, above all, don't sign anything the airline presents until you do.

"What these people should be doing first and foremost is grieving and not making these kinds of decisions," said Jan Peterson, president of the Washington State Bar Association and a personal-injury lawyer who has represented airline disaster clients.

Peterson also warned the surviving families to be wary of attorneys who flock to the potential large payoffs that often arise from plane crashes.

"These cases are often perceived as slam dunks because, the truth is, everybody is going to get something," said Kristen Houser, an attorney who litigates wrongful death and personal injury cases at the Seattle law firm of Schroeter Goldmark & Bender.

"But the issues are complex and individual to each case. Don't make hasty decisions."

Houser and Peterson also urge the survivors not to sign anything presented by the airline until they've had a chance to review it with a lawyer. "I'm sorry, but the airline is not your friend," Houser said.

There is no rush. The statute of limitations in this type of case is generally three years. People should shop around for an attorney and be accompanied by a relative or friend when they do. They should be suspicious of people who recommend specific lawyers; they could be agents who receive a substantial finder's fee.

Making such decisions can be overwhelming for a family in grief. Experts say people often act hastily, trying to put the event behind them.

"A lot of people put into this situation simply have no idea," said Ray Navis, a Santa Barbara, Calif., businessman who lost his parents when Aeromexico Flight 498 collided in midair with a light plane over Cerittos, Calif., in 1986, killing all 82 people on board.

He described his experience as "really distasteful." Within days of the crash, he was besieged by supposedly well-meaning friends - "some of them were my golf buddies" - suggesting a specific lawyer to hire.

When he went with another lawyer who specialized in airline disaster litigation, Navis said it got so uncomfortable he had to drop his membership in the golf club where the rejected lawyer was also a member.

Following the crash of TWA Flight 800 in 1996 off Long Island, a few unscrupulous attorneys pursued grieving families at hotels and solicited clients at funerals. Outrage over their actions prompted Congress to prohibit lawyers from contacting families for a month after an accident.

On Monday, the California State Bar Association handed out pamphlets at the Alaska Airlines ticket counter warning families about potentially unethical actions by attorneys. So far, there's no indication that has happened. The families and the airline, still in shock, are grieving together.

The subject of lawsuits or damage settlements never came up yesterday during a closed briefing by Alaska Airlines and federal officials for 175 relatives of the victims, said Fred Ost, a Skokie, Ill., programmer who lost an aunt and a cousin on Flight 261.

Relatives have praised the airline for its compassion and sensitivity.

John Kelly, Alaska Airlines' chairman and chief executive officer, said yesterday that the company would provide the survivors' families with money to tide them over.

"We're not talking about settlements or legal or anything like that," he said. "Our intention is to deal with this as up-front as possible and provide money for them to make this transition work . . . It's not appropriate for us to go down on Day 1 and say, `let's talk about money.' "

Still, there's no reason to believe this airline disaster will be any different from others, which routinely generate dozens, and sometimes, hundreds of lawsuits.

USA Today reported that the families of 84 of the 132 people killed when USAir Flight 427 plunged from the sky outside Pittsburgh in 1994 filed lawsuits. The survivors of the other 48 victims settled claims without going to court.

On average, the newspaper reported, most families received between $1.25 million and $2 million.

Attorneys who take these cases on a contingency basis generally collect up to a quarter of any settlement.

Navis, the man who lost his parents in the Aeromexico crash, has another piece of advice - one he acknowledges survivors might not want to hear, considering Alaska Airlines' benevolence so far.

"There is a lot of goodwill attempts by the airlines," he said. "That will last about two weeks. After that, it's adversarial. People should not be naive about that."

Mike Carter's phone message number is 206-464-3706. His e-mail address is mcarter@seattletimes.com

Copyright (c) 2000 Seattle Times Company, All Rights Reserved.

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