Boeing amendment places burden on air passengers

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By MARTIN DYCKMAN

© St. Petersburg Times, published August 13, 2000

TALLAHASSEE -- Writing in the aftermath of the Concorde crash, Ralph Nader recommended that passengers boycott aircraft that have considerably outlasted their design lives -- typically, 20 years -- and that the government require such planes to be retired.

Nader made a good case but, surprisingly, he overlooked what could have been his clincher: Florida's misbegotten, misnamed "tort reform" act of 1999.

One provision of that law prohibits product liability claims against the manufacturers of commercial aircraft more than 20 years old or the airlines that still fly them.

Board them at your own risk, said the Legislature, because these planes are too old to hold anybody responsible when a wing falls off or a fuel tank blows up for any reason other than pilot error or shoddy maintenance.

Victims on the ground would have no right to sue either.

Exceptions apply only if the manufacturer has declared a longer design life (fat chance) or if there's evidence that someone in authority deliberately concealed a design or manufacturing defect.

Lawyers for plaintiffs will also argue, given the right case, that government-mandated or manufacturer-recommended modifications, which are common, start the clock anew.

This macabre provision is known as the Boeing amendment because it was a lobbyist for the Boeing Co., the world's largest aircraft maker, who lobbied it back into the bill after some key legislators had gotten cold feet.

As it neared passage, the bill had already revealed the Legislature to be a wholly-owned subsidiary of Associated Industries and some 40 allied business lobbies. Proposing dozens of ways to make it harder if not impossible to collect damages for personal injury or death, the bill was a milestone in the Florida Legislature's regression.

Never had the rights of so many been sacrificed to the greed of so few. Without a hint of shame, one Republican leader had publicly described the bill, in the 1998 version that Gov. Lawton Chiles would veto, as "fulfillment of a promise to the business community for its campaign contributions and sweat equity." Nobody disavowed that.

Even so, at least some legislators had second thoughts about including commercial airliners, with their enormous potential for headline-generating catastrophe, in a section establishing a 12-year statute of repose for product liability claims against automobiles and most other manufactured products. Aircraft would have 20 years.

The press pointed out that at least a third of the American domestic air fleet is older -- make that 60 percent, Nader says -- and commercial aircraft were removed from the rapidly mutating bill.

By then, it was the next to last day of the session. House negotiators, unaffected by fear or conscience, insisted on the Boeing amendment. The Senate, unwilling to quit without having obliged the lobbies, gave in.

Gov. Jeb Bush signed the bill, as everyone knew he would, though he admitted to being "troubled" by the Boeing amendment and said he hoped the next session would fix it. Even Tom Slade, a former Republican Party chairman who had raised millions of dollars in campaign contributions on the party's identification with the bill, confessed to feeling "queasy" over the Boeing amendment.

Majority Leader Jack Latvala, who had managed the legislation in the Senate, said later that airlines would still be responsible for the airworthiness of exempt planes. Not necessarily so, plaintiffs' lawyers say.

If Latvala had it right, the airlines should have lobbied frantically to kill the Boeing amendment for fear it would make them bear the entire liability for affected disasters. But the airlines welcomed Boeing's dirty work as taking them off the hook, too.

So it comes to this: Though the Legislature hasn't exactly declared the older planes unsafe, it has officially confirmed their obsolescence. This was at Boeing's own bidding, mind you. If that doesn't make Nader's case for mandatory retirement, I don't know what would. But he didn't mention it, perhaps because Florida's provision remains unique. No other legislature has been dumb or venal enough to enact it. Perhaps even Boeing has had second thoughts about the wisdom of it.

The 2000 session did not take up the Boeing amendment, which is probably a good thing. To repeal the bill would not necessarily erase the exemption for the estimated 3,000 U.S. aircraft that have already been in service more than 20 years. Only a finding of unconstitutionality would assure that.

The Boeing amendment is one of the issues over which the Academy of Florida Trial lawyers and 12 other plaintiffs are suing to have the law declared unconstitutional. The suit, filed last December, is slogging along slowly in Leon County Circuit Court, far short of its eventual destiny in the Florida Supreme Court, largely because Associated Industries and 20 other parties that supported the law have moved successfully to be intervening defendants. Their lawyers include two former Supreme Court justices. The greatest business relief legislation of all time is, as predicted, on its way to being one of the grandest lawyers' relief acts as well.

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