By Nathan Hale
Law360 (July 27, 2020, 9:40 PM EDT) — A Florida state judge said during a hearing Monday in Miami that he would enter final judgments to enforce an $844 million settlement for 43 victims of a deadly 2016 crash of a plane chartered by the professional Brazilian soccer club Chapecoense.
Entry of the judgments by Miami-Dade County Circuit Judge Martin Zilber will end the 2018 negligence and wrongful death suit against the owners and operators of the plane, but counsel for the plaintiffs said there is still much litigation to come, as they plan to seek collection from either the defendants’ insurers or insurance broker through assignments of rights included in the deal.
“Unfortunately, these families still have a long road to actually obtain any monetary relief which they so desperately need,” attorney Steven C. Marks of Podhurst Orseck PA told Law360 after the hearing. “And hopefully justice will prevail, and we will obtain some compensation for these victims.”
None of the defendants — Linea Aerea Merida Internacional de Aviacion, which operated the charter flight as LaMia Corp.; company owner and managing partner Marco Antonio Rocha Venegas; Kite Air Corp., the plane’s owner; or Kite owner Ricardo Alberto Albacete Vidal — made appearances at Monday’s hearing.
The victims argued Monday and in their motion for enforcement of the settlement that although the defendants never signed the agreement after breaking up with their counsel, it is “beyond dispute” that the parties memorialized an agreement in writing in February following a year of negotiation and that under Florida law, that is sufficient to make the deal a binding contract.
The settlement awards judgments of between $5 million to $30 million to the plaintiffs, who include six passengers who survived the crash and a portion of the 71 total passengers killed. The largest award is to Jakson Ragnar Follmann, Chapecoense’s former goalkeeper, who survived the crash but lost a leg to amputation, according to the victims’ filings.
Judge Zilber asked the victims’ counsel during the hearing how enforceable — or collectible — of an agreement they believe the settlement to be.
Podhurst attorney Kristina M. Infante explained that in the settlement, they agreed not to attempt to collect against the four defendants in exchange for receiving an assignment of rights so they could pursue claims against LaMia’s insurance broker, AON Risk Services; Bisa Seguros y Reaseguros SA, the local insurer in Bolivia, where LaMia was incorporated; and reinsurer Tokio Re.
The victims can either amend this suit to join those other entities or file an independent case, which may or may not end up in the state court in Miami, Marks said. He explained that the victims’ position is that either AON did not obtain the proper coverage for the defendants or the insurers improperly denied coverage.
Tokio Re, which Marks said carries full responsibility for the coverage, took the unusual step of refusing to provide a defense even though the defendants tendered one. Marks describes that peculiar strategy as the first of many instances of bad faith by the company.
“The brokerage made a terrible error or there was coverage and the insurers failed to indemnify or provide coverage [to the defendants],” Marks said. “Either way, we should obtain recovery of most, if not all, of the judgments.”
The complaint alleged that pilots for the LaMia Corp. charter flying the team from Bolivia to Rionegro, Colombia, for a soccer match opted to skip a planned refueling stop and failed to alert air traffic controllers of their dangerously low fuel levels until they had been placed into a third holding pattern due to traffic at the destination. At that point, the plane experienced a complete electrical failure and crashed in a mountainous region.
The crew’s decision to skip the refueling stop was a regular practice of LaMia crews, according to the suit, which cites at least three other instances in the three months leading up to the crash. The complaint also contended that the pilots on the Chapecoense flight failed to alert the cabin crew so they could prepare passengers for the emergency descent and that they lacked the valid English language proficiency licenses required for international flights.
The defendants could not be reached for comment.
The plaintiffs are represented by Steven C. Marks, Kristina M. Infante and Pablos Rojas of Podhurst Orseck PA.
Counsel information for the defendants was not available.
The case is De Souza Lima et al. v. Linea Aerea Merida Internacional de Aviacion et al., case number 2018-39581-CA-01, in the Circuit Court for the Eleventh Judicial Circuit of Florida.
–Editing by Steven Edelstone.
