Monday, August 17, 2015

Authority, Triad Engineering answer Yeager Airport (KCRW) landslide complaint

CHARLESTON – Central Regional West Virginia Airport Authority and Triad Engineering have filed answers to a complaint filed against it because of the March landslide, while two other defendants filed motions to dismiss themselves from the lawsuit.

 Meanwhile, airport officials want to keep the case in Kanawha Circuit Court rather than having it removed to federal court.

Yeager officials say removing the case to federal court could delay work on the runway in wake of the March 12 landslide.

The airport authority will push to have the case heard by Kanawha Circuit Judge Jim Stucky, but that decision now lies in the hands of federal District Judge John Copenhaver. 

In its answer, the airport authority denies it knew that the EMAS or the mechanically stabilized earth retention structure had shifted several feet a year before March 12, but admits that a portion of the mechanically stabilized earth retention structure failed on March 12. 

The airport authority also denies that Yeager Airport's inspection reports foreshadowed a looming catastrophe or that the airport authority had knowledge of any looming catastrophe. 

The airport authority admits that a board meeting was called to discuss concerns relating to the mechanically stabilized earth retention structure, however, the airport authority denies that it had knowledge of any impending catastrophe since at the board meeting, Triad informed the board that there was only a "slight" chance of any catastrophic failure of the mechanically stabilized earth retention structure, according to the answer. 

The plaintiffs are comparatively negligent and their negligence proximately caused or contributed to the damages they allegedly sustained and any damages awarded to them should be reduced in proportion to their negligence, the answer states.

The plaintiffs' damages, if any, were the result of a superseding or intervening event that was unrelated to any alleged act or omission of the airport authority. 

The alleged incident or damages were caused by conditions beyond the control of the airport authority and, therefore, the plaintiffs are precluded from recovery for alleged damages. 

The airport authority was not aware and could not have been reasonably been aware of the alleged dangerous condition prior to the alleged incident and/or could not have reasonably altered the alleged condition prior to the alleged incident. Triad admits that it surveyed, measured and assessed the cracks in the airport in 2013 and compared its finding with a previous survey and admits that it recommended additional monitoring of the cracks, according to its answer. 

Triad also admitted that in July 2014, it installed 28 monitoring points along the surface and sides of the embankment. 

"Triad admits that it made certain preliminary slope repair recommendations for the area between the toe of the reinforced slope and Keystone Drive to the airport in September 2014," the answer states. Triad claims the plaintiffs fail to join an indispensable party and their complaint must be dismissed pursuant to West Virginia Rules of Civil Procedure. "To the extent plaintiffs suffered any of the damages or losses of which plaintiffs complain, which allegations are not admitted, it is averred that such were not in any manner caused or contributed to be any alleged wrongful act or omission on the part of Triad," the answer states. Cast & Baker filed a motion to dismiss on July 8, stating that the plaintiffs failed to state a claim.

Nationwide Mutual Fire Insurance Company filed a motion to dismiss on July 7, stating that it did not act in bad faith by filing the federal declaratory judgment action when a bona fide dispute existed as to coverage of the plaintiffs' loss. 

Nationwide also stated that it did not breach the homeowners' insurance policy because the loss is excluded from coverage. Airport employees first noticed a problem with the safety area on Runway 5 in June or July 2013, when cracks began to appear, according to the plaintiffs' complaint, which was filed June 1 in Kanawha Circuit Court.

Theodore Carter and Rebecca Carter claim after the airport noticed the cracks, its officials contacted Triad and both the airport and Triad identified that there were cracks in the engineered material arresting system and that it would only worsen if not repaired.

In 2013, Triad surveyed the area, measuring and assessing the cracks and comparing its findings with a survey that had been done in 2009, after paving of the safety-overrun area was completed.

Triad recommended additional monitoring of the area and in July 2014, a year after the cracks first appeared, Triad installed 28 monitoring points along the surface and sides of the embankment. 

Every one of the points showed movement between July and August 2014, indicating worsening problems, according to the suit.

The plaintiffs claim the cracks were not announced publicly, thus keeping the public uninformed about the catastrophe that was about to occur because of the inaction of the airport and Triad.

 In September, Triad made recommendations to the airport that involved performing work on the EMAS fill itself, but the airport did not follow the recommendations, according to the suit. 

The plaintiffs claim the EMAS inspection reports identified the worsening problems and on Jan. 13, Terry Sayre, the assistant airport director, spoke with a representative of Keystone Apostolic Church, and the representative of the church told Sayre they were concerned about the slip and its stability. 

On March 8, Triad began a "subsurface" investigation to evaluate the fill movement, but neither Triad nor the Airport ever did anything to fix the worsening problems, according to the suit.

The plaintiffs claim on March 10, settlement of the southernmost corner of the fill became more pronounced and Triad immediately notified airport officials.

 On March 11, Airport Director Rick Atkinson called an emergency board meeting because of the impending catastrophe, according to the suit. 

The plaintiffs claim on March 12, the EMAS collapsed and a landslide occurred, causing them, to lose most of their "worldly possessions as a result of the 'failure of the mechanically stabilized earth retention structure.'" Rebecca Carter was raised in the home on Keystone Drive and had many fond memories of the home, according to the suit. 

The defendants are liable for the damages suffered by the plaintiffs, according to the suit. The plaintiffs claim the defendants were negligent and violated their duties of reasonable care. Nationwide breached its contract with the plaintiffs by its refusal to pay the Carters' claim, according to the suit. 

The plaintiffs are seeking compensatory and punitive damages with pre- and post-judgment interest.   They are being represented by Christopher J. Heavens of Heavens Law Firm PLLC. 

The airport authority is being represented by Matthew A. Nelson and Patricia M. Bello of Lewis Brisbois Bisgaard and Smith LLP.

 Triad is represented by Teresa J. Dumire and John D. "Jack" Hohlitzell of Kay Casto & Chaney PLLC; Kevin A. Nelson and Kelby Thomas Gray of Dinsmore & Shohl LLP; and John C. Palmer of Robinson & McElwee PLLC. 

Cast & Baker is represented by Michael Markins and Jennifer A. Lynch of Mannion Gray Uhl & Hill Co. LPA. 

Nationwide is represented by Ronda L. Harvey, Ashley Hardesty Odell and Lara K. Omps-Botteicher of Bowles Rice LLP.

On March 12, 130 homes were evacuated after a large portion of the hillside slip into Two Mile Creek. One home and Keystone Apostolic Church were destroyed, while many other houses were damaged by flooding. 

Residents were given hotel vouchers and stayed in hotels for some time after the landslide. 

On May 22, Yeager Airport filed a lawsuit against 20 companies involved with the design and construction of its runway extension project, alleging negligence and breach of contract.

Triad and Cast & Baker were also named as defendants in that lawsuit as well. 

The airport claims the runway extension and the man-made hillside that supported it were improperly designed, improperly tested, not properly inspected and not properly monitored. 

The airport hired lawyers from three local firms, Scott Segal, Timothy Bailey and Anthony Majestro, to file the lawsuit jointly on its behalf. 

The case is assigned to Circuit Judge Tod J. Kaufman. Kanawha Circuit Court case number: 15-C-1074 

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Failed propeller leads Cal Fire to ground fleet of air attack planes statewide

CDF Air Tactical Pilot Rick Haagenson exits the cockpit of an OV-10A Bronco as he returns to the CAL FIRE Sonoma Air Attack Base, after fighting the Rocky Fire in Lake County, on Monday, August 3, 2015.

Cal Fire grounded a fleet of planes Monday that help direct other aircraft where to dump retardant on wildland blazes, as a record-breaking heat wave across California continues to keep firefighters busy and fuels fears of new fires breaking out.

Cal Fire ordered its fleet of 15 OV-10 A Broncos not to fly Monday after a propeller on one of the planes failed while the aircraft was still on the ground, according to Cal Fire Battalion Chief Scott McLean.

He said mechanics had been dispatched to check on all of the fleet. The plane in question was based in Southern California, McLean said.

“They are a very vital tool. It’s critical these aircraft get back in the air,” McLean said.

Air attack planes — often referred to as Cal Fire’s “eyes in the sky” — are used by crews to manage aerial assaults on fires and direct air tanker pilots where to unload payloads of retardant.

McLean said air tankers are not currently necessary for battling the Jerusalem fire in Lake County or for other blazes around the state. But concerns about flare-ups and new blazes breaking out lent urgency to getting the air attack planes cleared to fly again.

McLean did not have an estimate for when the work might be completed.

“We’re on it hot and heavy,” he said.

A few hours later, McLean said five of the aircraft were cleared for flights after passing safety inspections.

He said Cal Fire has two other aircraft — one each in Northern and Southern California — that can temporarily fill in to help manage air attacks. The agency also can seek assistance from the U.S. Department of Forestry.


Piper J3C-65, N70455: Accident occurred July 12, 2009 in Porter, Texas

A lawsuit over a 2009 aviation accident ended in a settlement, according to Galveston County court records. 

League City resident Farida Hill sued Thomas Craig Hill in the Galveston County 56th District Court in August, accusing the defendant of flying a 1946 Piper Cub J3 aircraft on July 12, 2009 that crashed. The original petition asserted the crash injured the pilot’s younger passenger, on whose behalf the plaintiff pursued legal action.

Thomas Craig Hill formally refuted the claims the same day the litigation began.

The parties on Oct. 12 entered into a Compromise, Settlement, Indemnity and Release Agreement. Under the terms of the agreement, they consented to settle the two-month-old case for $100,000, with $55,307 earmarked for the unnamed child and $30,693 set aside for medical expenses.

Galveston County 56th District Court Judge Lonnie Cox issued an order approving the settlement on behalf of the minor child.

Attorney Shawn R. Casey of the Law Offices of Shawn R. Casey in Houston represented Farida Hill while attorney Guy Hubert Riddle of the law firm Anderson & Riddle LLP in Fort Worth served as Thomas Craig Hill’s counsel.

Galveston County 56th District Court Case No. 15-CV-844

NTSB Identification: CEN09CA431
14 CFR Part 91: General Aviation
Accident occurred Sunday, July 12, 2009 in Porter, TX
Probable Cause Approval Date: 11/09/2009
Aircraft: PIPER J3C-65, registration: N70455
Injuries: 2 Minor.

NTSB investigators used data provided by various entities, including, but not limited to, the Federal Aviation Administration and/or the operator and did not travel in support of this investigation to prepare this aircraft accident report.

The pilot noticed a significant loss of engine power while maneuvering on a local area flight. The pilot began looking for a suitable place to land and noticed a sandbar along a river. As he approached the river he applied carburetor heat and the engine power began to recover. At this time the airplane was at tree top level along the river when the pilot noticed wires crossing the river. The pilot was unable to reestablish a climb and avoid the wires. The airplane struck the wires and impacted inverted on the sandbar. The pilot and passenger received minor injuries. Weather conditions at the time of the accident were conducive to carburetor icing at cruise and glide power settings with a temperature of 34 degrees Celsius and dew point of 23 degrees Celsius. According to a Federal Aviation Administration inspector on scene, there were no pre-impact anomalies noted.

The National Transportation Safety Board determines the probable cause(s) of this accident as follows:
The partial loss of engine power due to carburetor icing resulting in the pilot's inability to clear the wires.

A League City woman has pursued legal action in response to a plane crash five years ago that injured a younger relative, according to recent Galveston County District Court records. 

Farida Hill’s lawsuit, filed Aug. 14 in the Galveston County 56th District Court, shows Thomas Craig Hill piloted a 1946 Piper Cub J3 aircraft with Z.H. as his passenger on July 12, 2009. 

The suit says the Piper’s engine experienced “a catastrophic failure which resulted in the loss of engine power and ultimately a crash landing.”

“(Thomas Craig Hill) attempted an emergency landing, but struck a power line which caused the aircraft to immediately lose control and impact the ground,” the original petition states. 

It adds Z.H. sustained injuries and damages as a result of the crash in question. Farida Hill says she amassed medical bills on behalf of the minor.

The defendant is faulted for failing to maintain the aircraft in an airworthy condition in order to ensure the safety of its passengers.

Consequently, Farida Hill seeks unspecified monetary damages.

She is represented by attorney Shawn R. Casey of the Law Offices of Shawn R. Casey in Houston.

Galveston County 56th District Court Case No. 15-CV-844

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Federal Aviation Administration Proposes $325,000 Civil Penalty Against Southwest Airlines

WASHINGTON, D.C. (CBSDFW.COM) – The Federal Aviation Administration (FAA) proposes a $325,000 civil penalty against Southwest Airlines for allegedly operating a Boeing 737 that was not in compliance with federal aviation regulations.

On July 9, 2014, an FAA inspector performed an aging aircraft inspection on the Boeing 737 while it was at a maintenance facility in San Salvador, El Salvador.

The inspector discovered Southwest improperly recorded a temporary repair to an approximately nine-inch crease in the aluminum skin of the jetliner’s rear cargo door as a permanent repair.

The inspector discovered this fuselage damage had first been reported in Southwest Airlines’ maintenance records on May 2, 2002, which is when the airline made the temporary repair.

The airline was required to inspect the temporary repair every 4,000 flights and complete a permanent repair within 24,000 flights.

However, the FAA alleges the airline operated the aircraft on 24,831 flights without performing  the periodic inspections required for the temporary repair. 

The agency further alleges the airline operated the plane on 4,831 flights beyond the flight threshold by which it was required to have performed the permanent repair. The final repair was completed on July 24, 2014.

Southwest has asked to meet with the FAA to discuss the case. 


Prince Edward Island court dismisses fight over Colombian police airplane engines

A supreme court judge has dismissed an application by a Canadian aircraft manufacturer for a declaration of ownership of two aircraft engines sent to P.E.I. for repairs by police in Colombia.

Supreme Court Justice Gordon Campbell ruled the actions of a sovereign state, legitimately taken with its territory, are to be shown deference and respect by another sovereign state.

"Prince Edward Island has no jurisdiction to interfere with the actions and legal determination of a foreign state unless such actions offend Canadian public policy and violate our 'essential morality' or 'fundamental values,' " Campbell wrote in his decision. "Such was not the situation in this case."

The engines in question, which were installed in a Haviland Dash 8, were delivered to Vector Aerospace Engine Services in Summerside on behalf of the National Police of Colombia (NPC) for overhaul and repair work.

While the engines were undergoing that work, Dash 224, LCC (Dash), filed a motion seeking an interim preservation order requiring the two engines remain in the possession of Vector in P.E.I.

That interim order was granted to Dash on May 27, 2013 for 30 days without any notice being given to NPC.

On June 24 of that year the court extended the preservation order for a further 30 days on the condition that Vector's storage fees would be paid by Dash.

Dash and Vector subsequently consented to extend the preservation order to Aug. 5 and then to Aug. 15.

Dash subsequently amended its original application to request a declaration of ownership of the Haviland Dash 8-311 aircraft, including its two Pratt and Whitney Canada engines.

Colombian Police, on learning what had transpired in Canada, asked to be added to the court proceedings to argue a single issue, the validity of the original May 27 order and the extensions to that order.

The aircraft at the center of this case had been seized by authorities in Colombia because it was illegally imported into the country.

In 2011 the aircraft was subsequently forfeited to the Colombian tax agency. 

The Colombian government then donated it to the NPC to be used solely for public purposes, with a prohibition on using it for any commercial purpose.

When the engines were in need of maintenance, they were sent to Prince Edward Island for service.

It was upon learning that the engines were shipped to P.E.I. that Dash applied for a preservation order and declaration of ownership in their favor.


Published on July 31, 2014:    National Police of Colombia win payment for possible legal fees involving aircraft engines now in storage on P.E.I.

A company that is in a legal battle with Colombian police over airplane engines that were undergoing an overhaul in Summerside will have to pay a $500,000 bond while the case is before the courts.

In a recent unanimous decision, the P.E.I. Court of Appeal ordered Dash 224 pay the bond to cover the National Police of Colombia’s (NPC) costs in the event NPC wins.

The issue revolves around two engines worth $1 million each from a De Havilland Dash 8 airplane the Colombian government seized in 2011 and sent to Vector Aerospace in Summerside for an overhaul.

A company called Regional One Inc. owned the plane and was leasing it to Aerovias de Avacion Regional Aires when it entered Colombia in 2010 without the proper paperwork.

Regional One has since transferred its interest in the plane to Dash 224, which is an affiliated business and trying to get the engines back.

Dash 224 successfully sought a temporary order through the P.E.I. Supreme Court to keep the engines in the province.

In the appeal decision written by Justice John Mitchell, he wrote that it will probably be at least another six months before the matter gets to trial, but if the NPC wins the onus will be on it to prove its legal costs and losses.

The judges allowed an amendment request from Dash 224 that will continue the legal proceedings.

Although Mitchell said Dash 224 was largely the victor, he awarded the NPC $11,130 in costs and disbursements because of the timing of Dash 224’s amendment, which Mitchell said was sprung on the Colombian police at the last minute.


Air Traffic Controller Accused of Public Intoxication Skips Court Date

SPRINGDALE (KFSM) — The air traffic controller who is facing charges of being drunk on the job skipped his court date scheduled for Monday (August 17).

Philip Maschek, 50, had an arraignment scheduled for Monday, said Sherri Curry, chief court clerk of the Springdale District Court. He was arrested July 16 on suspicion of public intoxication at the Springdale Municipal Airport.

If Maschek doesn’t check in with the court soon, Curry said a warrant will be issued for his arrest.


SPRINGDALE (KFSM) – An air traffic controller at Springdale Municipal Airport (ASG) was arrested Thursday morning (July 16) on suspicion of public intoxication, according to an arrest report from the Springdale Police Department. 

According to Springdale Director of Finance and Administration Wyman Morgan, a plane was waiting to take off and there was no response from the tower on the radio. After repeated radio attempts, the pilot notified the city.

He said a maintenance employee found Philip Maschek, 50, shirtless and unconscious on the floor. When officers arrived on scene and entered the tower, they noticed Maschek swaying back and forth. Maschek denied being intoxicated on multiple occasions, according to the police report.

Springdale police officers administered sobriety tests on scene and then arrested Maschek. 

The arrest report states Maschek interrupted multiple tests by not following proper instructions. After officers led him down the stairs of the tower, Maschek attempted to climb back into the control tower but was restrained by police, according to the report. Maschek also raised his voice and screamed vulgarities at officers while he was interrogated and eventually placed behind bars at the jail.

Maschek was booked at the Springdale City Jail with a $350 bond.

Morgan said Maschek is a contract employee who works for Robinson Van Associates, a contractor that is hired by the Federal Aviation Administration to operate some air traffic control towers. He said he reported Maschek to his supervisor and the Federal Aviation Administration and is confident they will take the right steps to deal with the situation.