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RV/Homebuilt-savvy attorney practicing in CA

John Courte

Well Known Member
At long last, N313TD has a potential new owner.

Can anyone recommend an attorney practicing in CA who can draft a purchase contract and a liability release waiver for the transaction?

Thanks!
-John
 
The EAA bill of sale is where I'd like to start, but after reading a few detailed threads on here, as well as the 6-part series eaa articles about liability, I want to get a liability waiver that passes the sniff test and stands out clearly on its own.

I understand that a liability waiver has about as much effect as a rabbit's foot in the face of a determined plaintiff, but I don't want to be completely naked either.

For the purchase agreement, the EAA doc is pretty good, although there are some twists, like he had a pre-buy done a couple of months ago, which should still be good. He's already paid for it and is unlikely to want another.
 
As I "understand" it, a big problem is that while the buyer can sign something promising not to sue, that's not binding on his heirs.

Advice worth twice what you paid for it (not counting annual dues to this site).
 
Have there been any actual cases of homebuilts being a liability issue?

My experience with the legal world and its gatekeepers suggests fear mongering to drum up business would not be out of the question...
 
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Have there been any actual cases of homebuilts being a liability issue?
..

After the John Denver fatal accident in an EAB, his heirs sued everyone in sight, including all former owners and the builder. Even though most (but not all) defendants ?won?, they all lost thousands to tens of thousands in legal fees.
 
After the John Denver fatal accident in an EAB, his heirs sued everyone in sight, including all former owners and the builder. Even though most (but not all) defendants ?won?, they all lost thousands to tens of thousands in legal fees.

Hmm...
* RV-4. I was the third owner. Next owner destroyed the aircraft logs when he sold it, but I supplied the logs that I had to the fifth owner;
* RV-10. Completed by somebody else and subsequently wrecked;
* AirCam. Wrecked by subsequent owner;
* RV-8A. Did no work on it, sold it as I got it. The buyer's agent, turns out, was an old friend of mine who had done the most recent condition inspection on that plane;
* RV-8. Sold to England;
* RV-9A. Still enjoying it, doing all kinds of flight test and maneuver evaluations in it.
 
This is why I'm looking for a CA airplane lawyer. :) They know about this stuff, I don't.

Consensus is that no homebuilder has been successfully sued for building a bad airplane, but I'm just not 100% comfortable in having the only thing between me and considerable expense be something I downloaded off the Internet.
 
After the John Denver fatal accident in an EAB, his heirs sued everyone in sight, including all former owners and the builder. Even though most (but not all) defendants ?won?, they all lost thousands to tens of thousands in legal fees.

Annnd spending money on a lawyer to draft a document to "enhance" the two most important words in a sale.. AS IS, would have helped this how?
 
Annnd spending money on a lawyer to draft a document to "enhance" the two most important words in a sale.. AS IS, would have helped this how?

IMO, you are far less likely to get sued when a pilot/owner crashes and survives. The real risk is if the accident is fatal. In these cases, there is simply no real protection. Anything the pilot/owner signed is completely irrelevant, as no state allows someone to sign away rights for another; In this case it is the deceased's estate that is suing and they are not bound by anything that the deceased signed.

The key here is negligence, so anything that you can do to avoid a negligence claim is to your advantage.

Larry
 
If you're really worried about liability, you could always do this. :eek:

...

Very sad though.
If the value of the aircraft is significant to you, then you probably don't have deep enough pockets for a reasonable person to come after you. If you are very wealthy, then not selling something for 100k will probably not bother you too much. Looking at what he stripped from the aircraft he probably recovered 40k of the 100k - not too bad, even if it's sad to see this happen.
 
IMO, you are far less likely to get sued when a pilot/owner crashes and survives. The real risk is if the accident is fatal. In these cases, there is simply no real protection. Anything the pilot/owner signed is completely irrelevant, as no state allows someone to sign away rights for another; In this case it is the deceased's estate that is suing and they are not bound by anything that the deceased signed.

The key here is negligence, so anything that you can do to avoid a negligence claim is to your advantage.

Larry

I am a neophyte on this particular subject, but the bolded part seems a very broad statement. For example, the deceased?s estate is bound by the terms of the will or trust...I have served as an executor. So Im wondering if I could include some verbiage in at least my own estate docs to forbid my estate from suing prior owners of my plane?
 
Of course you could--------but would it be honored ??

More to the point, the widow, the kids, etc., can sue on their own, outside of the estate, for whatever reason they can think up.
The only interesting thing I?ve seen is a clause ?indemifying? the seller. e.g., the buyer promised that he or his estate would pay the seller for any loses he might have due to the buyer owning the airplane. I?m not a lawyer, don?t know if this actually works or not.
 
More to the point, the widow, the kids, etc., can sue on their own, outside of the estate, for whatever reason they can think up.
The only interesting thing I?ve seen is a clause ?indemifying? the seller. e.g., the buyer promised that he or his estate would pay the seller for any loses he might have due to the buyer owning the airplane. I?m not a lawyer, don?t know if this actually works or not.

Interesting. Looks like I need some legal advice myself. Beneficiaries can sure get weird and contentious....BTDT.
 
Do you guys carry Umbrella Insurance that does not have an aviation exclusion? Last time I checked it was cheaper than pizza and can protect you from this kind of stuff. Or if your spouse runs over a drunk guy on their way home from working at night and the family sues you guys....stuff like that.
 
I am a neophyte on this particular subject, but the bolded part seems a very broad statement. For example, the deceased’s estate is bound by the terms of the will or trust...I have served as an executor. So Im wondering if I could include some verbiage in at least my own estate docs to forbid my estate from suing prior owners of my plane?

sorry, I was being too general. As I stated earlier in that post, one person may not release or sign away legal rights for another. If I sign a liability release or hold harmless agreement, it applies only to me and not to my estate or my family.

not a lawyer, but precedence prohibits anyone from signing away rights for another. When I die, any liability release that I signed died with me and cannot be enforced upon anyone else. Not sure how instructions to your estate could circumvent that. Instructions in a will or trust are pretty limited to the allocation, disbursement or management of your assets upon your death or incapacitation. There can be many restriction tied to those dispursements. One potential angle would be to limit dispursements to any party that sued the builder of your airplane. However, he could simply change the trust to eliminate that clause the day after he takes delivery of your plane.

Even if I don't die, my liability release does not prevent my family from suing. Don't forget that many families are dependent upon one member of that family and incapacitation due to negligence can result in a significant judgement for the plaintiff.
 
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Do you guys carry Umbrella Insurance that does not have an aviation exclusion? Last time I checked it was cheaper than pizza and can protect you from this kind of stuff. Or if your spouse runs over a drunk guy on their way home from working at night and the family sues you guys....stuff like that.

Mine has an exclusion. I think you would be VERY hard pressed to find one that didn't.

Larry
 
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Lawyer Said

I'm the guy who dismantled the RV-9A in SoCal a few years back. It was a tough job, kind of like killing a friendly puppy. An attorney wandered into the hangar to buy the upholstery. He told me the couple who were destroying this perfectly serviceable RV-9A got good advice from their attorney when he told them to destroy the airplane rather than sell it and thereby remove any liability. I asked him how many times lawsuits had gone forward on experimental airplanes. "Happens all the time." he told me. Then he took off before I could ask about any specific case law. I'm told there ARE lawsuits, but they settle out of court before anybody "wins" or "loses."
If you get the AOPA magazine, take a peek at Mike Busch's column this month about a twin engine Cessna that crashed after losing an engine. Mike was an expert witness on the case and had a lot to say about the process. Short version, the people responsible for the engine failure and crash were dropped off the lawsuit and Continental was blamed even though there was demonstrably no problem with their engine that was caused by them. The jury found Continental 100% responsible for the accident and awarded 5 million of Continental's dollars to the pilot's family. What I'm learning is that doing everything right is no shield in court. Making a big mistake that results in a fatal accident does not necessarily mean you'll be punished. The system is pretty messed up, and I don't see any easy way to protect ourselves.
I'm a retired A&P and my wife wants me to stop working on other people's airplanes because we're vulnerable to lawsuits if just about anything happens. Liability insurance is out of reach for me and I'm too aware that if anything at all happens on an airplane with my name in the logbooks, I'll be named as a defendant, whether I had any real responsibility or not. Even if I did everything right, I could be found responsible. Even if I win, I'll have to defend myself at great cost.
I've had owners promise they wouldn't sue me, but as has been pointed out before, their family can sue, and so can whoever the airplane hits. And as that same attorney told me, if there's an accident there is no longer any question of whether there will be a lawsuit. There will certainly be a lawsuit, maybe several. If that owner who promised not to sue survives, their attorney will get him to sue anyway. Count on it. I've been sued by someone who said there would be no suit. Main reason for that... easy: that attorney will get between a third and a half of whatever $ changes hands. It's a great system the attorneys have set up for themselves. Oops...I mean to make sure victims are compensated.
Ya gotta pay your dime and take your chances, and you gotta decide how much of a chance you're willing to take.
Ah, it was all so simple when I had my own shop and owned only a box of tools, a nice guitar and a crappy car. I have assets to protect now.
 
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I was giving the benefit of the doubt that such a drastic measure might have actually been evidence-based. I'm beginning to think I was mistaken.
 
At long last, N313TD has a potential new owner.

Can anyone recommend an attorney practicing in CA who can draft a purchase contract and a liability release waiver for the transaction?

Thanks!
-John

I wonder how much protection one could get by having the bill of sale stating you sold " miscellaneous airplane parts", and have the sales contract state that the buyer promises to never fly the plane again. Of course after notarizing that agreement, the buyer could then jump in his recently purchased "parts" and fly them home:)......

Wouldn't that keep the heirs from getting anything in a law suit?
Just curious.
 
I was giving the benefit of the doubt that such a drastic measure might have actually been evidence-based. I'm beginning to think I was mistaken.

The lack of of lawsuit "wins" does not not constitute a lack of evidence of financial loss from defendants (settlements or legal fees). That data is usually protected by confidentiality and very difficult to obtain. All you have to go on is the experience of those involved (defendants and attorneys). The previous posters recount of an active attorneys advice is likely the best input you will find on the subject. I wouldn't be so quick to dismiss it.

Just because the details are hidden or not obvious does not mean it is a conspiracy theory.

The good news for many is that attorneys typically don't aggressively pursue folks without substantial assets beyond their home.

Larry
 
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The lack of of lawsuit "wins" does not not constitute a lack of evidence of financial loss from defendants (settlements or legal fees). That data is usually protected by confidentiality and very difficult to obtain. All you have to go on is the experience of those involved (defendants and attorneys). The previous posters recount of an active attorneys advice is likely the best input you will find on the subject. I wouldn't be so quick to dismiss it.

Just because the details are hidden or not obvious does not mean it is a conspiracy theory.

The good news for many is that attorneys typically don't aggressively pursue folks without substantial assets beyond their home.

Larry

Court records are public and lawsuits are visible even if they don't go to trial.

So again, where's the evidence? Some attorney said something in a hangar? And you call that "the best input you will find on the subject"... really?
 
warning-slight thread creep

Does anyone worry about carrying passengers and lawsuits? Seems same problem or worse if there is an accident and it is deemed "pilot error".
 
Does anyone worry about carrying passengers and lawsuits? Seems same problem or worse if there is an accident and it is deemed "pilot error".

Yes, but you can, and most do, get insurance up to $1,000,000 for this risk. as someone else pointed out most, if not all, umbrella liability policies specifically exclude aviation. So seller would be on the hook for the full liability and lawyer fees.
 
Time out !

So,... was the attorney in the hangar buying upholstery for two lawn chairs, or buying it for an airplane?

Where is the Paul Harvey moment?
 
II asked him how many times lawsuits had gone forward on experimental airplanes. "Happens all the time." he told me. Then he took off before I could ask about any specific case law.

I call bulls**t. If this were some sort of a major concern and "happening all the time" in the E-AB community, don't you think that the Van's contingent (far and away the largest number of homebuilts out there) would have heard of this plague by now?

Maybe in the certified world, where there are deep pockets to go after, but it sure seems like everybody has "heard of cases", but nobody ever provides an actual case involving a homebuilt (other than John Denver :) ).
 
In regard to the builder who decided to scrap his RV:

We didn't question his personal decision to build his RV....why do we criticize his decision to retire it?

In both cases, it was his decision to make.
 
Spoke with my insurer today. They advise that depending on your state of residence, certain assets may be shielded from such lawsuits including funds in a retirement account, your primary residence and a number of other things. This is the case in FL, which is my state of residence. Most of my assets happen to be in a retirement account, so it appears I'm essentially good to go.

Check your state laws on this.
 
Depressing isn't it

The sorry part of all of this is it seems like we're all being held hostage by fear of being targeted by the ambulance chasers. Well that shouldn't be such a surprise when they can sue without any skin in the game so to speak " You'll owe us nothing unless we collect for you" . I believe that this is the cause of the problematic situation that has been cultivated by the bottom feeders of the legal profession, not all of them but quite enough!

What did Shakespeare all those years ago?
 
John Thorp was the first suit that I recall. The builder was flying with two before released for passengers and the rumor/explanation was the battery was improperly secured and moved back in the tail cone. The aircraft spun and hit SGE power lines. Both the heirs and SGE sued John for alleged negligent design. The case never went to judgment.

Lawsuits survive on deep pockets. Placing the bird in a trust is helpful insulation.
FWIW
 
What did Shakespeare all those years ago?

Having taken a course on Shakespeare way back in my college days, I'm reminded that this is one of the most misunderstood quotes from any of his works (the other being "Wherefor art thou, Romeo?").

The implication was that if you want tyranny and injustice to rule, the first thing to do is kill all the lawyers...

But back to the point here...how many homebuilts have been sold, crashed and the original builder sued? I surmise the number is vanishingly small and thus the risk is negligible.
 
Court records are public and lawsuits are visible even if they don't go to trial.

So again, where's the evidence? Some attorney said something in a hangar? And you call that "the best input you will find on the subject"... really?

Out of court settlements are NOT public record, as they occur "out of court" directly between the plaintiff and defendant. Settlement agreements in civil cases are NOT filled with the court. Our court system doesn't support a settlement process in most case (you either proceed to verdict or drop it), so pretty much all settlements are done out of court. Further, most settlement agreements include a non-disclosure component, restricting the parties from publicly divulging the details of the agreement.

The majority of civil cases are ended via settlement. The whole court process is utilized to establish the positions of both parties to build leverage for the settlement, based upon each parties gut on where the verdict and damages will end up in that particular case.

Further, settlements are far more common when the defendant doesn't' have deep pockets. Juries are far more likely to give large judgements against perceived large and evil corporations and therefore more attorneys will take their chances with the jury.

My only point is that your only meaningful data point here will be from people, usually attorneys, that have experience with these types of cases and their settlement behavior, as they are the only ones exposed to the details.

Larry
 
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Out of court settlements are NOT public record, as they occur "out of court" directly between the plaintiff and defendant. Settlement agreements in civil cases are NOT filled with the court. Our court system doesn't support a settlement process in most case (you either proceed to verdict or drop it), so pretty much all settlements are done out of court. Further, most settlement agreements include a non-disclosure component, restricting the parties from publicly divulging the details of the agreement.

The majority of civil cases are ended via settlement. The whole court process is utilized to establish the positions of both parties to build leverage for the settlement, based upon each parties gut on where the verdict and damages will end up in that particular case.

Further, settlements are far more common when the defendant doesn't' have deep pockets. Juries are far more likely to give large judgements against perceived large and evil corporations and therefore more attorneys will take their chances with the jury.

My only point is that your only meaningful data point here will be from people, usually attorneys, that have experience with these types of cases and their settlement behavior, as they are the only ones exposed to the details.

Larry

No you're missing the point. I'm not talking settlements, I'm talking about lawsuits brought against builders. If someone was sued there will be a record of it. Where's the evidence that builders are being sued? That is absolutely meaningful data that can be looked up. No need to rely on the fear mongering of gatekeepers with a monetary interest in convincing us laymen of the value of their services...

"Our court system doesn't support a settlement process in most case" So what about settlement conferences and mandatory arbitration required by many jurisdictions? The courts very much encourage settlement outside of adjudication.
 
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No you're missing the point. I'm not talking settlements, I'm talking about lawsuits brought against builders. If someone was sued there will be a record of it. Where's the evidence that builders are being sued? That is absolutely meaningful data that can be looked up.

Ok, look it up and let us know. Where is your evidence that is NOT occurring? Have you spent the days or weeks necessary scouring Lexis Nexis? You are correct that any settlement would have started with a lawsuit filing and the details of that suit would be public record, with the exception of any settlement details. THe word from EAA is that no lawsuit involving an experimental builder has been won, not that they haven't occurred.


No need to rely on the fear mongering of gatekeepers with a monetary interest in convincing us laymen of the value of their services...

"Our court system doesn't support a settlement process in most case" So what about settlement conferences and mandatory arbitration required by many jurisdictions? The courts very much encourage settlement outside of adjudication.

Of course they encourage settlements. I only stated that the details of those settlements is not a part of the court documentation. They are not public record. Requiring a settlement conference is not the same as making the details of a settlement agreeement public record. Aribitration is a whole different animal and has no relevance for this type of civil activity. It is typically only applicable in certain types of cases or where both parties agreed to abitration in advance.

No fear mongering here. Just pointing out opinions contrary to the generally held belief that "no experimental builder has been sued." I believe the risk exists and that several have suffered financial hardship from those suits, even if they didn't result in an official loss and judgement. The key here is that most builders do not have large asset pools and therefore the amount of case activity will be relatively small for that reason (lawyers won't take contigency work if the defendant doesn't have the means to pay the judgement or settlement and as mentioned IRAs and homes are no longer fair game). The small percentage doesn't reduce the risk fo those that do have significant assets.

Larry
 
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How about this...we have, what, 25,000 users on this forum? Ask 'em.

Anybody here built an airplane, sold it, and then got sued when it crashed?
 
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I watched Scaled Composites (owned by Beech at the time) drive a D9 CAT over and over...and over... the prototype Starship ...on the ramp for same liability concerns :eek:
 
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If I decide to scrap my RV-6...and I might one of these days....I'll do it regardless of whether the internet experts think it is justified or not. I will have my own reasons....and that is the only rationale I'll need.
 
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If I decide to scrap my RV-6...and I might one of these days....I'll do it regardless of whether the internet experts think it is justified or not. I will have my own reasons....and that is the only rationale I'll need.

Yep. Only you can decide what course of action will give you the best chance of a good night?s sleep.
But if you (anyone) wants to sell, I suggest selling to a Canadian. Canada bans contingency fees, which seems to have limited baseless lawsuits.
 
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