Month: April 2009

The Future – Regulation of Roadable Airplanes?

April 28, 2009 /

Over the past year or so I’ve been following the progression of a couple roadable airplanes – fly and drive, you might say.  The Transition by Terrafugia (http://www.terrafugia.com/index.html), a car/plane, and the SkyBike (http://www.samsonmotorworks.com/), a motorcycle/plane.  The Transition is further along in development, already completing several test flights (videos available on the company’s website), while the SkyBike is still in the design phase (although Samson Motorworks intends to have a some form of prototype at Airventure 2009).  Both are being built under the FAA’s Light Sport Airplane (“LSA”) regulations.

We all know that myriad regulations will apply to these hybrid machines: FAA LSA regulations, FAA operational regulations for both plane and pilot, State motorvehicle codes, National Highway Traffic Safety Adminstration regulations, and more.  I find myself wondering if the various regulatory agencies will hold these machines to the same regulatory standard as the single-function vehicles the agencies already regulate.  Will those regulations be amended/adapted to make any exceptions?  Will a new entity be created to regulate these machines?  Will I one day need to research the Federal Roadable Aviation Regulations (my own inventiveness on the title)?

I surmise that the answers to these questions will, in large part, depend on whether and to what extent the machines become commercially successful.  I’m curious to know what others think on this topic so please share your thoughts.

FAA’s Most Recent View on Flight Into Known Icing

April 14, 2009 /

On January 16, 2009, the FAA released a letter explaining its view on Flight Into Known Icing (FIKI).  As a VFR-only pilot, I don’t deal too much with FIKI – its presence anywhere in the vicinity of my flight path would mean I would not be flying anyway.  However, the letter provides some guidance on what has become an ephemeral ideal – one that has left many pilots wondering whether or not FIKI would be cause for a certificate action against them.

As stated in the letter, FIKI is not directly referenced in part 91 and the only reference to known icing conditions (subpart F) applies to large and turbine-powered multiengine airplanes and fractional ownership progam aircraft – so what about us single-engine and small multi-engine folk?  Let’s read on.

The letter points to the usual Federal Aviation Regulations (FARs )suspects for the basis for an enforcement action: 91.9 (compliance with the POH), 91.13 (careless and reckless operation), and 91.103 (flight planning responsibilities).  The definition of “known ice” in 7-1-22 of the Aeronautical Information Manual (AIM) references actual ice visually observed on the aircraft.  Note that it does not reference conditions as a determinitive factor – only ACTUAL ice present on the aircraft itself.  The letter specifically excludes the commonly held belief that the presence of visible moisture (clouds) at below-freezing temperatures constitutes known icing conditions (I can hear the collective sigh of relief from here!).

It appears that the general rule going forward is that the FAA will consider the facts and circumstances surrounding an incident or accident in determining whether enforcement action is warranted – a more “holistic” approach, if you will.  Common facts considered will include: available weather information, pre-flight planning, alternative pilot actions, actual ice formation, the pilot’s steps to exit such conditions, etc.).

Although the FAA left itself some “wiggle room,” I am encouraged by its move to a  more practical approach to these situations.  Only time (and enforcement actions) will tell how FIKI will develop in light of this letter.

Shareholder Oppression – 2006 Amendment Not Retroactive

April 14, 2009 /

On March 31, 2009, the Michigan Court of Appeals (in an unpublished opinion) held that a 2006 legislative amendment to MCL 450.1489 (commonly referred to as the shareholder oppression section) did not apply retroactively.

The basic facts are these: husband and wife formed a corporation while married; they divorced in February 2005, and both continued to work for the company; in February 2006, ex-husband (as company President) fired ex-wife from her administrative position with the company.  Wife sued claiming, among other things, that this action constituted sharholder oppression and was actionable under MCL 450.1489 – targeting the “willfully unfair and 0ppressive” language as the basis for her claim.

At the time of ex-wife’s termination, Michigan law was that 450.1489 only proteted a shareholder’s interest as a shareholder.  Because terminating a shareholder’s employment does not affect the shareholder’s interest as a shareholder, the section does not allow recovery for harm suffered as an employee.  Franchino v Franchino, 263 Mich App 172, 173-174, 185-186 (2004).  In March 2006 (the month after the ex-wife’s termination), the legislature amended 450.1489(3) such that willfully unfair and oppressive conduct included employment terminatioon or limiting employment benefits to the extent that it disproportionately interferes with the shareholder’s distributions or other interests.  Clearly a change that would have helped ex-wife’s case IF it applied retroactively to her situation.

The court reiterated the general rule that statutes are presumed to operate prospectively unless a contrary intent was manifested.  Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 583 (2001).  Numerous times the legislature has shown that it knows how to make clear its intention to apply a statute retroactively.  The court found nothing in the amendment’s language suggesting such retroactive legislative intent.  Therefore, the amendment only applied prospectively.

Although it seems that this problem will only be had by those bringing shareholder oppresion claims based on actions prior to the 2006 amendment, it is important to note the continued support for only applying legislative amendments prospectively unless the legislature clearly intended otherwise.