“It is most difficult to intrude into your life at this time, but you do need help, not only spiritual, but legal as well,” wrote the Cleveland firm of Miller, Stillman, and Bartel. The letter promised the firm would “only accept five families from any one disaster, as each family is entitled to our utmost time and individual attention.” Included was an ad that listed the death and injury cases the firm had handled—planes, trains, automobiles, even “slips and falls.”
Brett received mailings from about thirty lawyers. He piled them on his office floor in a two-foot stack. A few were downright tacky. One lawyer sent a refrigerator magnet. Another sent a videotape.
“First I want to offer my sincere condolences,” Houston lawyer John O’Quinn said on the five-minute tape. “I realize that sudden losses such as this are very difficult to deal with, and unfortunately at this time your mind is probably not prepared to make certain important decisions which unfortunately must be made.” The tape apparently had been recorded specifically for families of the Flight 427 victims. “I assure you that USAir already has its attorneys working on the case… in the best interests of USAir and not necessarily in your best interests.” Newspaper headlines flashed on the screen showing examples of his firm’s victories, followed by a toll-free phone number that families could call.
For a trial lawyer, a plane crash case is a sure thing. It’s not a question of whether a plaintiff such as Brett will win, but how much he’ll win. As in other types of personal injury cases, the lawyers usually work on contingency, getting paid only when their clients win. (Which means that, in airline cases, the lawyers always get paid.) The contingency fees are typically 15 to 25 percent, although some lawyers get as much as 35 percent.
The settlements are based on the odd practice of determining the price of a human life. To people outside the legal system, it seems cold and insensitive to try to translate a human life into dollars and cents. How could USAir and Boeing possibly repay Brett for the love he shared with Joan? How could they put a dollar value on her life? But by filing a lawsuit against them, Brett was seeking money as compensation for her death, which meant the court would have to determine what Joan was worth.
Much of the money came not from the airlines and aircraft manufacturers but from their insurance companies, which meant that lawsuits from a crash had little direct effect on an airline’s bottom line. USAir had $850 million in coverage spread among seven companies in the United States, England, and France. The largest, Associated Aviation Underwriters of Short Hills, New Jersey, had 30 percent of the coverage and would be the lead insurer to handle claims on the policy and negotiations with the victims’ lawyers. It’s likely that those seven companies had gone to the insurance markets in London and gotten “reinsurance” on the policy, which spread the risk among more investors. USAir has never disclosed how much it paid for this coverage, but the trade journal National Underwriter reported that insurers canceled and renegotiated USAir’s coverage after the Charlotte crash—one month before the Hopewell accident—to raise rates or extend the payment schedule. The journal referred to USAir as the “hapless carrier.”
Boeing had its own coverage, probably with some of the same companies that USAir did, but Boeing did not publicly discuss details of its insurance and, unlike USAir, it was not required to file a statement of coverage with the government. USAir and Boeing also would not say how they would divide their liability for the crash. In previous cases, airlines and aircraft manufacturers have often started with a certain split, say fifty-fifty, and then revised the proportion as it became clear which company was more at fault.
Although many people criticized lawyers for soliciting clients after a disaster, Brett found that the mailings were helpful in that they explained the process of a wrongful death case. He didn’t know much about the legal system, and the information that he received answered many questions. But ultimately he decided to go with Corboy Demetrio Clifford, a Chicago firm that had not sent him a single piece of mail. The firm, which had been recommended by his father’s lawyer, was so well known for aviation cases that it did not need to solicit clients. Its offices took up two floors in a tower at 33 North Dearborn Street, across from the Cook County court building. The walls and cabinets in the law firm were polished mahogany, the desks were marble. The firm won so much for its aviation cases that it could afford a lot of mahogany.
The firm was headed by one of the city’s most famous trial lawyers, a white-haired legend named Philip Corboy. He was famous for winning millions for clients—$25 million for the family of a passenger killed in the 1989 United Airlines crash in Sioux City, Iowa, and nearly three hundred other verdicts and settlements for $1 million or more. A competitor called him “the Hoover vacuum of the personal injury business.” Brett met Corboy briefly, but ended up dealing primarily with partners Robert Clifford and Michael Demetrio.
They didn’t waste a minute filing Brett’s suit. Within hours after he signed the contract to hire them on October 12, his suit was hand-carried across Dearborn Street to the clerk’s office in Cook County Circuit Court. The decision to file there was a strategic one. Cook County juries were famous for giving big awards, and Corboy Demetrio Clifford had considerable clout there. The Chicago court was sure to be a better venue than Pittsburgh, where USAir was a major employer and was regarded as the hometown airline.
Brett said his decision to sue USAir and Boeing was more about justice than about money. He wasn’t looking to get rich. He would get plenty of money from life insurance policies and workmen’s compensation for Joan. What he wanted was to get revenge against the companies he believed had killed her.
And so Brett’s revenge became Case No. 94 L 12916, Van Bortel v. USAir Inc., the Boeing Company and Gerald E. Fox. By naming Fox, the airline’s Chicago maintenance foreman, Brett stood a better chance of keeping the case in Cook County rather than having it transferred to Pittsburgh, where many other cases were being filed. The lawsuit mentioned a host of possibilities that could have caused the crash: inadequate maintenance, the thrust reversers, the rudder system, the electrical control system. It said the airline “allowed USAir Flight 427 to crash into the ground.” In the complaints against Boeing, the suit said the 737 was “unreasonably dangerous” because its rudder system or thrust reverser did not respond properly or because it had a faulty anti-collision warning device or had an engine that fell off. The suit said Fox “carelessly and negligently failed to properly conduct the preflight maintenance and/or inspection of Flight 427.” The scattershot nature of the complaint was standard practice for trial lawyers. It was too early to know the cause of the crash, so they made a broad range of accusations. The suit said Brett “has sustained pecuniary loss and damage, including loss of society and companionship, love and affection, as a result of her death.”
The accident record for 737s was better than those of many other jets. But the record carried a disturbing asterisk that haunted the NTSB investigators: the Colorado Springs crash. It was one of only four cases that the NTSB had never solved.
United Airlines Flight 585 was supposed to be a twenty-minute hop from Denver to Colorado Springs. Skies were clear, but the Colorado Springs airport was having gusty winds.
“Nice lookin’ day,” Captain Hal Green said to First Officer Trish Eidson as the plane taxied away from the gate. “Hard to believe the skies are unfriendly.” As they headed toward the runway, one of the pilots whistled.
The two pilots talked about the danger of rotors, the spiraling winds that came off the mountains. Green said he knew a pilot who had flown through one. Eidson said she knew they were dangerous and that they “could tear a wing off.”