Published: August 14, 2008 08:25 am      

Ky. Supreme Court hears Comair plane crash case

Frankfort — Kentucky's highest court considered a lawsuit Wednesday stemming from the deadliest American plane crash since 2001, with lawyers clashing over whether Lexington's airport could be sued for damages.

Comair, based near Cincinnati, asked the Supreme Court to overturn a Fayette County judge's ruling last August that Blue Grass Airport can't be sued because it enjoys sovereign immunity as a branch of the Lexington government.

The airline contends the airport is partly responsible for the 2006 crash that killed 49 people for not adequately notifying pilots of a construction project that diverted planes on the taxiway. The doomed Comair jet took off in the pre-dawn darkness from the wrong runway — a general aviation strip that was too short for a proper takeoff.

Kevin Henry, an attorney for Blue Grass Airport, told the justices the airport is under the control of the Fayette County government, which he called a subdivision of the state. A 1986 precedent found the airport was governmental and therefore immune from lawsuits, and the lower court judge cited that case in his decision to throw out Comair's suit.

"This airport runway is nothing more than a county road for airplanes," Henry said.

But Comair's attorney, Ed Stopher, warned the justices that if they disallowed a lawsuit against the airport, it would shelter from liability practically every organization even loosely connected to a local government.

"If an airport is granted immunity, then what about wharves, docks, depots, bus stations?" Stopher said.

Stopher argued Blue Grass Airport operates almost entirely independently, getting little government money beyond a $200,000 grant. He also said the airport has a $150 million insurance policy, which he contends is an unwise investment if an entity truly believed it couldn't be sued.

Airport board chairman Bernard Lovely, who attended the hourlong arguments, said insurance premiums are required for airports.

Henry said the airport should be immune in part because it provides a vital government function. Justice Mary Noble expressed skepticism at that, calling it "a darn hard animal to find."

Comair settled claims filed on behalf of most of the passengers killed in the crash ahead of a trial that had been scheduled to begin last week. However, the airline still has suits pending against the airport and Federal Aviation Administration, which runs the airport control tower, asking that they help pay for the multimillion-dollar settlements. Comair and the federal government have been discussing a settlement.

If a judge or jury ultimately deems the airport partly liable for the Comair crash, the ruling would be a reversal of what federal investigators found. The National Transportation Safety Board pinned most of the blame on the pilots, with lesser responsibility for the FAA.

The airport was absolved of blame by the NTSB, although it did recommend improved runway and taxiway markings at regional airports across the country. Blue Grass has already made the improvements.



Copyright 2008 The Associated Press.