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Thursday, December 23, 2021

Boone County Jury Awards Nearly $2 million to Pilot Fired for Refusing to Fly in Unsafe Conditions

A Boone County jury awarded nearly $2 million in a wrongful termination suit for a client represented by Attorneys Anthony Bucher (pictured) and Rachel Wilhite of Gatlin Voelker.

by Robin Gee

A pilot who flew a private plane for Columbia Sussex in Crestview Hills was awarded $1,990,833 in damages by a Boone County jury after he was fired for refusing to fly to the Caribbean as a hurricane threatened. The award includes $1.3 million in punitive damages.

Anthony Bucher, an attorney with Gatlin Voelker in Covington, said the facts of the case were persuasive. 

"Everybody’s been on a plane; everybody’s experienced unpredictable weather so in that respect this was a compelling case," Bucher said. "I never dreamt we’d get the kind of verdict we got, but I’m certainly pleased with it...I’ll be honest, in closing I asked the jury for $1 million in punitive. They came back with $1.3 million, so they were obviously moved." 
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According to his client, pilot Ray Justinic, the weather conditions made it unsafe to fly on that day. He informed his employers he would check conditions on the following day and, if they were safe, he would fly then. When he called in the next day to discuss the situation, he was told that the company had hired a temporary pilot to make the trip the night before. A few days later, he was informed he no longer worked for the company
Editor's note for clarity: Justinic was an employee of Airtech, which was hired by Columbia Sussex to manage its planes and pilots. Fort Mitchell Construction is an affiliated company of Columbia Sussex which operates the planes. All three entities are defendants in Justinic's lawsuit.

The story unfolds

Justinic had close to 50 years of experience flying, first for law enforcement and then for Delta Airlines. According to FAA rules, pilots who reach age 65 can no longer fly large commercial airline jets, but they can continue to fly for private companies if their medical requirements are kept up-to-date. In January 2017, after retiring from Delta, he took a position flying a private plane for Columbia Sussex.

The company operates about 40 hotels including the Westin Dawn Beach Resort and Spa on Saint Martin. The hotel incurred damage when the island was hit by Irma, a Category 4 hurricane, on September 6, 2017. The company later filed for $175 million in insurance claims.

According to the complaint filed by Justinic, on Saturday, September 9, while Irma had moved toward Florida, the owners asked him to load the plane and fly relief supplies and insurance adjusters to the site to assess damages. He would also transport employees of the hotel off the island. The plan was for him to first fly to San Juan in Puerto Rico and wait there until he could continue on to Saint Martin.

Bucher said his client came in on that Saturday and helped to load the plane with shovels, rakes and cleaning supplies but said he was concerned about weather conditions and where he might stop to fuel up or if he encountered mechanical issues or other concerns during the flight. After checking weather conditions, he informed his company contact that it was unsafe to fly that day and offered to keep an eye on the weather with the hope that the next day conditions would be more favorable.

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High winds and another hurricane

Bucher, the attorney, explained that his client believed that the weather did not look good. "He gets home about 4 p.m. and starts looking at some weather information. His position was 'I’m 69 years old, I’ve been loading a plane for four hours with 2,000 pounds worth of stuff. I’m not in the position to fly three-and-a-half hours in any kind of weather.'"

At that point, another hurricane, Jose, was approaching the area, and winds had been picking up, Bucher said.

Justinic told Bucher he called in Saturday night and said he was not flying anywhere that night, and it was looking iffy for the next day as well, but that he would get up early and check. Instead, the  company hired another pilot through a temporary agency, and the flight was completed.

"The next morning, my client, not knowing they had made that decision, got up at five in the morning and put together a flight plan. He said he was prepared to go but couldn’t get any information back from his employers...It was going to be a dicey flight on Sunday, but one he was prepared to make. The hurricane [Jose] had turned north and so he said he was going to try to circle down and come under it," explained Bucher.

Once he did reach the company, Justinic was told someone else had made the trip and a few days later, on September 20, he was informed he was out of a job.

Company files first

What Bucher said he finds amazing about all this is what the company did next.

He explained that, no matter how much experience a pilot has, they must train and be rated to fly specific types of planes. When Justinic was hired, he did not have the rating he needed, but the company agreed to pay for him to get the training.

The cost of the training was $34,000. The owner had an addendum placed on the job offer to Justinic that said if he left the company within two years for another job, he would have to pay back a prorated portion of the training expense. The pilot agreed to the deal and signed on.

Only a few weeks after he was let go, Justinic received a letter from the company stating that he would be sued if he did not return $20,000 of the training cost. 

According to the termination letter from his direct employer, Airtech, Justinic's refusal to fly to San Juan was unjustified and constituted abandonment of his job. When the pilot refused to reimburse the company, his employers filed a lawsuit alleging breach of contract, as well as promissary estoppel (going back on one's promise in the contract) and unjust enrichment.
"At the end of the day, I don’t know if my client would have pursued a claim against them had they not initiated that," said Bucher. 

It was clear from Justinic's actions, he did not abandon his job and had full intention of flying the plane as soon as conditions allowed, said Bucher. Texts presented in the case show the pilot and his contact at the company discussing ideas and alternatives for several days with the pilot providing wind and weather updates, he said. 

Complexities and complications

One issue complicating the case in the beginning, said Bucher, was the number of different, yet interrelated companies involved. Columbia Sussex has different companies who operate their different hotels. The company’s private plane is owned by another of their companies, Fort Mitchell Construction. Another company, Columbia Sussex Management, handles most of the employees.

A separate company, Airtech, was hired by Columbia Sussex to maintain and manage the plane. This was the company listed as Justinic’s employer, although Bucher argued that this was basically a pass-through expense for Columbia Sussex.

Because of the situation, Bucher said he and his client initially sued Airtech but filed against Columbia Sussex for interfering in Airtech’s relationship with the pilot.

"Then, right when the trial was starting, [Columbia Sussex] agreed to dismiss their claims for the $20,000 realizing that would have made them look horrible," said Bucher. "We then stipulated that all three companies were his joint employers."

With this, all other claims were dropped allowing Bucher and his client to focus on the wrongful termination claim.

The arrival of the COVID-19 pandemic disrupted the justice system, and the trial was delayed. 
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Relief at last

Bucher said his client’s biggest concern was the damage done to his reputation. Having to explain his firing and a pending lawsuit for training expenses, he said, would ruin his chances of being hired anywhere else.

The award was a welcome end to a long drawn-out case, said Bucher.

"I am really proud of Ray," he said. "He stuck with this. It took a lot of time and a lot of patience to finally get his day in court. He was patient, he was persistent. I think at the end of the day, what he was most happy with was there was some validation that he was in fact making the right decision as a pilot."

Fort Thomas Matters reached out to Columbia Sussex for comment but calls were not returned.

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