Four years have passed since the Flight 3407 crash and most of the families who lost loved ones have settled their lawsuits and, as much as possible, moved on with their lives.
But for a dozen or more who have not, the opportunity to resume their legal fight over the Clarence Center crash is finally arriving after a year of waiting.
A federal bankruptcy judge in Manhattan cleared the way for families of Continental Connection Flight 3407 to continue their wrongful death lawsuits when he approved a reorganization plan this week that makes Pinnacle Airlines a unit of Delta Air Lines.
The judge’s ruling means his court-ordered stay against the suits can be lifted next month when Pinnacle, which owned the twin-engine turboprop that crashed Feb. 12, 2009, expects to emerge from bankruptcy.
“Obviously, it allows the families to resume the prosecution of their wrongful death suits,” said Hugh M. Russ III, an attorney for several families. “But more importantly, it enables the families to move toward the closure that has eluded them. Nothing is worse than waiting without action.”
Lawyers say the stay, which was enacted as part of Pinnacle’s bankruptcy protection, caused the families’ lawsuits to grind to a halt.
Most of the families in the Flight 3407 case have settled their claims – sources say the settlements are in the area of seven figures – but about 15 of the original 49 suits remain unresolved.
“The frustration of the bankruptcy shield has delayed but not deterred the families from seeking justice for the loved ones who were lost in this avoidable catastrophe,” said Terrence M. Connors, a lawyer for several families.
Unlike the bankruptcy case, the wrongful-death suits are being handled here in Buffalo by Chief U.S. District Judge William M. Skretny.
The suits stem, in large part, from a federal investigation that blamed the crash on pilot error. The families have tried to make the case that Pinnacle’s pilots were not well-trained and that the airline required pilots to fly despite illness and fatigue.
While Russ welcomes an end to the stay, he expects one of its consequences to be a delay in the trial scheduled for later this year.
“I don’t envision a trial in 2013,” he said. “We’re not starting over again, but we haven’t done anything in a year.”
Pinnacle filed for Chapter 11 bankruptcy protection in April of last year after indicating that it was having cash-flow problems.
Unfortunately for the families, the bankruptcy filing meant a mandatory stay on their pending lawsuits in Buffalo.
Twice over the next year, the families asked the bankruptcy court to lift its stay and argued that Pinnacle’s insurance company, not the airline, ultimately would be responsible for any damages awarded in the lawsuits.
The court rejected those requests but, as part of its ruling this week, indicated Pinnacle’s insurer – the company has a $1.7 billion policy – ultimately may be responsible for any and all claims, including punitive damage claims, made by the families.
Next month, when Pinnacle emerges from bankruptcy, the families will finally get their wish and ultimately their day in court.
“The Bankruptcy Court’s approval of our plan of reorganization represents an important milestone in our restructuring," Pinnacle said in a statement.
The airline said it expects to leave its bankruptcy protection on May 1 as a wholly-owned subsidiary of Delta.
The plane that crashed in Clarence was owned and operated by Colgan Air, which was part of Pinnacle, and flew under the Continental Connection banner.
Continental, which has since merged with United Airlines, contracted with Colgan to operate Flight 3407.
email: pfairbanks@buffnews.com