A Hurricane’s Contentious Collateral Damage

Hurricane Irma
Hurricane Irma at 5:45 a.m. UTC on Sept. 6, 2017.
Credit: National Hurricane Center

“What part of ‘No’ don’t you understand?”

Lorrie Morgan’s hit country single of long ago might well have served as mood music this past December during jury deliberations at the Boone County (Kentucky) Courthouse. Under consideration were the particulars of a job termination that occurred four years earlier.

Although retired as a Delta Air Lines pilot, Ray Justinic was not done aviating. And in January 2017 he accepted an offer from a small outfit that managed  a Challenger 604 owned by an affiliate of Columbia Sussex, a Kentucky-based hotel operator.

Since Capt. Justinic  had no CL-604 rating, the company said it would underwrite his training with the proviso that he’d reimburse it on a pro rata basis if he left for another job within two years. He agreed, completed the training and went about his flying duties as expected. Then came Irma.

A deadly Category 5 hurricane, Irma wreaked havoc as it made its way through the Leeward and Virgin Islands, Puerto Rico, Cuba and into the U.S. mainland. With winds reaching 180 mph, the tropical cyclone essentially leveled St. Martin on Sept. 6, 2017, severely damaging a company hotel there, and forcing the airport’s closure.

Justinic was told Columbia Sussex wanted him to fly to the island as soon as possible, transporting insurance adjusters and relief supplies and possibly evacuating some employees.

On Sept. 9 the company directed him to fly to San Juan, Puerto Rico, and await clearance for entry into St. Martin. After helping load supplies onto the Challenger, he reviewed the conditions around the islands. Aside from closures, alternates and fuel availability were questionable and, notably, another hurricane was bearing down on the region.

Consequently, he left a voicemail for his boss saying that night’s flight would have to be delayed, but he’d recheck the situation in the morning. Immediately upon learning of the message, the plane’s owner ordered Justinic’s supervisor to find another pilot who would fly the mission without delay, and he did.

Unaware that he’d been scrubbed, Justinic arose at 5 a.m. the following morning to assess conditions and determined he could proceed. He never got the go-ahead.

Days later, he was informed that his refusal to fly had been unjustified and constituted job abandonment. As a result, he was being terminated and the company wanted more than $20,000 back for the type training. He refused; they sued. So, Justinic countersued for wrongful termination.

The regs may invest the pilot in command with final authority, but professional pilots generally work for others. And as Justinic’s attorney, Anthony Bucher, a specialist in employment issues, observed, many of those who can afford to own business jets “are not really accustomed to “No!’”

Justice can be slow moving, and pandemics further protract such plodding. Anyway, just prior to the long-delayed trial, the company dropped the repayment demand. But wanting to clear his name and reputation, the pilot pressed on.

And the jury ultimately provided that clarity, deciding in Justinic’s favor and awarding him a judgment of $1,990,833$1.3 million of that in punitive damages. Naturally, shortly after that blow, the defendant filed post-verdict motions, so the legal issue has yet to be fully resolved. But not the pilot’s call.

James Albright, a veteran military and business jet pilot, author of the pilot-popular www.Code7700.com, and a regular contributor to sister publication Business & Commercial Aviation (BCA), suggests when a no-go is a must that the pilot should provide his superiors with a sound explanation. If despite that, dismissal results, he counsels, “unemployed while alive with your license intact is better than as a subject in an aviation accident report.”

Indeed, Kent Jackson, a Washington-based aviation attorney and highly experienced aviator, who’s also a BCA regular, notes that FAA has little sympathy for pilots who succumb to pressure to launch against their better judgment. He says the agency’s response is, “You have the certificate; it’s your job to say, ‘No!’”

But he’s observed that with today’s pilot shortages and commensurate high salaries, more and more business aircraft owners “feel the weight of their wrongdoing in pressuring” their pilots to fly despite real concerns. Why?

“In the past,” Jackson explains, “professional aviators weren’t paid what they’re paid now. So, today they go and get attorneys.”

And those attorneys help the employers understand the meaning of “No!”

William Garvey

Bill was Editor-in-Chief of Business & Commercial Aviation from 2000 to 2020. During his stewardship, the monthly magazine received scores of awards for editorial excellence.


"Who help the employers understand the meaning of “No!”" A few more well publicized, multimillion dollar judgments against the employers would probably do the trick.
It would have been more contentious if the resulting flight with another pilot had a "flight anomaly". Glad Mr. Justinic won his case.
If anything were to have gone wrong with the flight which was refused, it would have been blamed on "pilot error". The company would have testified in court that the pilot was operating the aircraft in an unsafe manner and in violation of its OPSPECs. It would contend that the pilot was therefore solely responsible for the outcome.

The FARs are clear, the PIC has the final word on whether a flight can be operated safely.
The same for pilots who apply TOGO to save a plane, then blamed for burning lots of hours on the engines, and then unable to prove the plane (and lives) would have been lost without TOGO.
If the pilot is going to be blamed for an accident, then the pilot should always have the final authority of Go / No Go.
Even if the pilot was able to make the flight to St Martin the night before, the aircraft could have also been damaged while overnighting on St Martin if the 2nd hurricane came through.
A "win" for the good guys!