Court confirms $22.6M award in Illinois GIV crash

 - January 25, 2008, 5:49 AM

The fatal crash of the Alberto-Culver Gulfstream IV at Palwaukee Municipal Airport on Oct. 30, 1996, has spawned one of the most lengthy, and very likely one of the most costly, litigation processes in the history of business aviation.

In the most recent court decision, delivered March 6, the Illinois Appellate Court upheld a Cook County jury award of $18.9 million to the family of copilot Robert Whitener. The appellate court’s decision included statutory annual interest at the rate of $1.705 million a year, bringing the total award to approximately $22.6 million.

But the Whitener decision was one of more than a half-dozen suits in a process
of litigation complicated by an interchange agreement that allowed operation of the Alberto-Culver aircraft on behalf of Aon.

And it did not help matters that the pilot-in-command, Martin Larry Koppie, worked for Aon, while copilot Whitener was employed by Alberto-Culver. In the cabin was Arthur Quern, chairman and CEO of Aon Risk Management, and Catherine Anderson, a contract corporate flight attendant.

USAIG was the insurer for Aon and contended that insofar as claims following an accident, “insurance follows the paint,” which meant Alberto-Culver’s insurer, AAU (now Global Aerospace), was responsible. Alberto-Culver and AAU were of the opinion that since the pilot was from Aon, USAIG was the responsible insurer. That matter was finally resolved last November when a Cook County judge ruled that Global Aerospace/AAU was the responsible insurer.

An additional issue was the legal status of the airport with regard to responsibility. That appeared to be settled when a circuit court judge dismissed the Palwaukee Municipal Airport Commission as a defendant. However, during the initial trial to decide the Whitener family’s claim against Aon, the appellate court reversed that dismissal.

Before the initial Whitener and Koppie jury trial, claims by the families of Quern and Anderson against Alberto-Culver had been settled out of court. So what remains now at trial is Quern’s case against Palwaukee Airport, and Koppie’s case against Alberto-
Culver and Palwaukee Airport. And within those, a “contribution” counterclaim by Alberto-Culver against Aon.

There is also something of a mystery, according to Jerry Latherow of the Chicago law firm of Latherow & Porretta, representing the Whitener family. He told AIN that in the initial Whitener and Koppie case, Aon attorneys had claimed that the accident was caused by a malfunctioning rudder actuator. Aon further contended that based on simulator tests and the abilities of the two very experienced pilots, something had also gone wrong with the steering mechanism. The NTSB report, said Latherow, shows a photograph of the rudder actuator in question, and the nosewheel steering-select switch was tested by NTSB and found to have been functioning. The nosewheel steering-select switch was allegedly shipped to Alberto-Culver by the NTSB. But the company said the switch was never received and is now missing, as is the rudder actuator in question.

“As a lawyer,” said Latherow, “it’s interesting to me that Aon didn’t come up with that as a defense until just two months before the trial, and on retrial they are dropping that as a defense.”

There are also three appeals directly involving questions of insurer responsibility. A fourth appeal is associated with the Alberto-Culver suit against Palwaukee Airport. But as all four of these are related, they are likely to be consolidated. “The appeals now pending,” Latherow added, “could have been settled many years ago, but there is too much acrimony between the insurance companies.

“All that was needed was a person calling the shots from each of the two insurance companies to sit down and come to an agreement. Instead, they’ve cost themselves six-and-a-half years of litigation, attorneys’ fees and expenses, and they’ll probably keep it going another few years.”

As for the Whitener case, even that may not be over. According to attorney Charles Porretta, there remains the possibility that Aon might appeal to the Illinois Supreme Court. But he added, “They may choose not to hear it, and I think that’s what will happen.”

Insofar as the decision on March 6 in favor of Whitener’s family for $22.6 million, Latherow was emphatic. “The tragedy is that it took a fatal crash to focus national scrutiny on the hazards of corporate planes,” he said. “There is always pressure to get the boss to his or her meeting on time [and] if pilots don’t do that, their jobs are at stake.”

Since the accident, Aon has moved its flight department to Chicago Midway Airport. Alberto-Culver’s flight department remains at Palwaukee Municipal.