By Tally One Contributing Instructor Pilot: Wolf Emonds, CFI
The following day after the crash I filled out a report and sent it to the NTSB and to my insurance company, thus opening a claim. Next I met with the FAA investigator at the airport. He was serious in nature. He wanted first and foremost to see how much fuel was on board and if there was fuel in the carburetors. After he was satisfied that I had not pulled a bozo move and simply taken off without fuel on board, his next order of business was to go through my logbook, pilot certificates, and Medical looking for some reason, any reason that I should not have been operating that aircraft. He found none. I was totally legal and current.
After that he wanted to view the accident scene. This was easy because obviously I’d barely made it past the end of the runway. So we walked over to the farm field. Upon arriving there we found the farmer and his crew repairing the short section of fence that was damaged. The investigator asked if anyone present had witnessed the event.
“Yes, sir,” said a man down on his knees twisting fence wire with a pair of pliers. “I saw the whole thing, I was standing right over there,” pointing with his finger in the direction from which he witnessed the crash. “That kid came over those there trees and the engine just quit. He glided down there towards those trees at the far end and I thought I was going to see a guy die. But he turned that airplane around and made the prettiest landing you could imagine right there,” pointing to the wheel marks in the grass. “Then the plane rolled to the end of the field and he ended up in this fence right here. We almost got it fixed as you can see.”
With that the investigator said he’d heard enough and we could head back to the airport. At the end of it he shook my hand and said, “Well, Mr. Emonds, that’s the most we could ask from any pilot. I’m not pulling your certificate and I’m glad you and your passenger are okay because it just doesn’t usually work out that way in these cases.”
The next thing that happened was the NTSB requested we keep the aircraft in secure storage so they could come and investigate the mechanicals. This was quite interesting. Because the Skyboy is a pusher configured airplane, the powerplant (engine, gear reduction, and propeller) all were undamaged in this event. So the NTSB guy was able to chain down the wreckage and run the engine. (More about this in a moment.)
During the time period we were waiting for the NTSB investigator to show up I received notification from my insurance company that they would be denying the claim. They denied the claim based on the fact that there was no pilot error and therefore no liability. They sighted FAR part 91.403 (page 201 of the ASA 2012 FAR/AIM) (a) “The owner or operator of an aircraft is primarily responsible for maintaining that aircraft in an airworthy condition. “
This didn’t set well with me as in my mind I had borrowed a working aircraft from my friend and had returned a broken heap of twisted aluminum and fabric. Furthermore, I did, in fact, have Renter’s / Borrower’s insurance to cover just exactly this type of incident.
I had purchased my policy through AOPA so I called my AOPA representative right away. I explained the situation while cursing myself for not having purchased the legal services product when I had last renewed my AOPA membership. (Note to self: always buy it from now on!) My representative gave me the phone numbers of three aviation attorneys in my area. I called each one in turn and explained this entire ordeal. Each one said, “Yes, sadly your insurance company is correct in this case. They insure you for any mistakes you make, not for the mistakes the owner makes or the mistakes his mechanic may have made. If the owner had hull damage insurance on the aircraft your policy would have paid his deductible.”
At this point my friend Dave is understandably upset. His airplane is destroyed and my insurance refuses to pay. We sat down together in a hangar to talk about this. I explained that I was doing everything I could. Dave reminded me that we have a standing verbal contract: “Borrow my airplane, but if you break it you buy it.” I answered my friend with, “I absolutely agree Dave. I wouldn’t have borrowed anyone’s airplane if A) I didn’t feel I had the skill to fly the airplane and B) if I wasn’t properly insured to cover the cost if things didn’t go as planned. The problem we are having now is agreeing on a definition to the word “you”. “ I certainly did not crash the airplane, the airplane’s engine quit running and I saved two lives by landing it safely with the best outcome possible given the extremely few choices I had available.
I came up with this solution, “Dave how much money do you have in this airplane?” $14,000 was his reply. “Ok, and this airplane was just four hours out of annual?” Right was Dave’s reply. Ok so my insurance won’t help us and the attorneys say it’s all your responsibility as the owner and furthermore had anyone been injured that would have been your problem also. I feel like there are three people involved in this. There’s you as the owner, myself as the borrower/ pilot in command, and Paul the mechanic who had just done the annual inspection and did not discover whatever it is that brought this airplane down. $14,000 is a messy number so let’s say the value was $15,000. I’ll pay you $5,000 cash, Paul your mechanic pays you $5,000 and you eat $5,000 for your side of things?
Dave said “NO! I want you to pay $10,000 and I’ll keep the salvage. Besides Wolf, it was your fault because you failed to run the electric boost pump.”
“That’s not true Dave. I ran the pump and have a passenger witness who actively participated in the run up and read back each item on the checklist,” I declared. Then I said, “Ok Dave here’s the thing, if you don’t want to work this out between us and truly feel you are right please take me to court so the judge can force my insurance to pay.”
Dave said, “Well, Wolf, the problem is I don’t think you actually made a mistake I just think I don’t have insurance and I know Paul’s little business doesn’t have any insurance so you have to pay.”
Then he says, “How about I take you to binding arbitration instead of real court?” I replied, “Dave I don’t know anything about that or if my insurance will be compelled to pay should the outcome go your way. But I will check into it and if we can I will agree to that.”
Now back to the NTSB investigation. The investigator chains the wreckage down and starts the engine. The first thing he does is warm it up to operating temperature, and then he goes through the normal preflight run up checklist and the engine runs perfectly. Then he goes through the list again but with the electric booster pump off. And guess what? The engine cannot maintain takeoff RPM for any length of time. This proved that I did in fact have the boost pump turned on; otherwise the airplane would never have been able to take off. This also proved that something was amiss in the system and a normal run up would not have uncovered it as the run up is conducted with the pump on.
The next thing they did was turn the pump back on and open the throttle to take off RPM and let it just sit there. Guess what? At one minute and some seconds the RPM suddenly dropped from 6,400 RPM to about 2,200 RPM for no apparent reason. This test could be duplicated over and over again. Something was definitely wrong with the engine or the fuel system.
After checking with my insurance company they agreed to enter the binding arbitration, however they would not supply me with an attorney. I’d have to prepare the case and defend myself. I guess they felt strongly enough that I wasn’t liable or they simply didn’t actually care. Probably the latter since they handle multi million dollar cases and this little $14,000 airplane just didn’t count. But I assure you it was counting in my book right about then and it made a difference to Dave. Also in the back of my mind I was contemplating, “What if someone had been hurt or killed?” I make my living flying experimental airplanes and this could happen again, what if???