In the last couple of years, the headlines have been relentless: the catastrophic Jeju Air 7C2216 crash in South Korea, killing nearly everyone on board; fatal regional accidents in Brazil and elsewhere; a string of military and civilian helicopter mishaps that have doubled the Army’s recent mishap rate; and a December week in 2024 that saw seven serious aviation incidents across six countries in just a few days. Closer to home, the U.S. system itself is under stress. Chronic air traffic controller shortages—magnified by a prolonged federal government shutdown—have left thousands of controllers working without pay, with staffing-related delays jumping from a historical 5% of all delays to more than half on some days, jeopardizing safety. In that environment, the uncomfortable reality is that more accidents and near-misses are likely, and with them will come catastrophic insurance claims and waves of complex, high-dollar subrogation questions that insurers and their recovery partners cannot afford to ignore.
Subrogating aviation disasters is some of the most challenging, messy work in our world. When an airplane or helicopter goes down, losses are catastrophic, investigations are slow and technical, and the legal landscape is littered with federal statutes, international treaties, and contractual landmines. For every dollar you spend investigating and pursuing aviation subrogation, the defendants are spending ten. Yet the claim dollars paid by workers’ compensation carriers, property insurers, and hull underwriters are enormous, and in many cases, there are viable, if difficult, paths to recovery. Aviation subrogation is where high-dollar opportunity collides with high-friction reality—and it has to be pursued cost-effectively.
Unlike a typical auto or premises case, an aviation loss almost never involves a single, obvious tortfeasor. Potentially responsible parties can include the aircraft owner and operator, a non-owner pilot, the employer of an injured worker, the manufacturer of the airframe or component parts, the maintenance provider, the fixed-base operator, the airport authority, and, often, the United States itself through the FAA or military operations. The Department of Justice’s Aviation and Admiralty Section routinely defends aviation suits alleging negligence in air traffic control, military flight operations, navigation aids, weather dissemination, and certification decisions. Sorting out who did what, under what standard of care, and under which body of law is the first and sometimes most exhausting step in building a subrogation case.
When the federal government is in the frame, the Federal Tort Claims Act (FTCA) sets the rules of engagement. The FTCA waives sovereign immunity only to a limited extent, allowing suits against the United States for injury, death, or property damage caused by the negligence of federal employees acting within the scope of employment, under the law of the place where the act or omission occurred. Before a lawsuit can even be filed, a claimant must timely present an administrative claim—often on a Standard Form 95—and give the government an opportunity to investigate and respond. Discretionary-function defenses, combat or military exceptions, and the FTCA’s ban on punitive damages and prejudgment interest all operate as a drag on subrogation. In aviation, FTCA cases frequently center on air traffic control errors, negligent approach or separation instructions, or failures in charting obstacles and disseminating weather, all of which must be framed carefully to fit within the FTCA’s waiver rather than its exceptions.
Manufacturers represent another major target, but here too, Congress has stacked the deck. The General Aviation Revitalization Act (GARA) is an 18-year statute of repose for most general aviation aircraft with fewer than 20 passenger seats and their component parts. After 18 years from the date of delivery—or from installation of a replacement part—most product liability claims against the manufacturer are barred, regardless of when the crash occurs or when the defect is discovered. There are narrow exceptions for fraudulent withholding of information from the FAA, some ground-victim claims, med-evac flights, and written warranty suits, but for the bulk of the aging general aviation fleet, GARA means the manufacturer is simply off the table. For subrogation professionals, that often feels counterintuitive: a carrier has paid millions on what appears to be a defect case, only to learn that the airframe is 30 years old and GARA slams the courthouse door.
All of this plays out against the backdrop of a highly technical investigative process largely controlled, at least at the outset, by the federal government. Not to mention that the instrumentalities of the loss are almost always within the exclusive control of the airline and/or the government. The National Transportation Safety Board (NTSB) leads civil aviation accident investigations in the United States and for U.S. aircraft in international waters. NTSB investigators secure wreckage, recover and download flight data and cockpit voice recorders, examine engines and control systems, and assemble a “party system” of participants that can include manufacturers, operators, and sometimes insurers. Their procedures are codified in 49 C.F.R. Part 831, which also governs what parties can and cannot do with information and how proposed findings are submitted. For subrogation counsel, access to the physical evidence, the timing of wreckage release, and the ability to have qualified experts on scene early can make or break a case. Yet NTSB reports and probable-cause findings are often inadmissible or tightly controlled in later civil litigation, forcing us to use the investigative work as a roadmap, not a shortcut.
The expert side of aviation subrogation is neither cheap nor simple. Effective crash reconstruction requires pilots, human factors specialists, aeronautical engineers, metallurgists, maintenance experts, and sometimes ATC consultants who understand radar data and controller handbooks. The pool of truly credible aviation experts is relatively small; many have prior NTSB or FAA backgrounds, and they are in constant demand. The Daubert standard gives trial judges wide latitude to decide whether complex technical testimony is admissible, and aviation defendants will often mount aggressive challenges to strike or limit a plaintiff’s experts. Each of these fights consumes time and money—often long before anyone knows whether the recovery will justify the investment.
On top of the liability and proof issues are the conflicts that can arise between insurers and their insureds. In a catastrophic crash, hull and property insurers, workers’ compensation carriers, and liability insurers may all be involved, while the aircraft owner, employer, or operator has its own uncovered losses and reputational concerns. When the third-party recovery is insufficient to make everyone whole, Texas-style “first money” rules don’t always apply; state law, federal law, and contract language will dictate who gets paid first and whether the insured must be made whole before the carrier recovers. Alliances must sometimes be formed. Additionally, subrogation waivers buried in loan agreements, lease documents, or hangar contracts can surprise everyone by undercutting rights the insurance policy assumed would exist. And because aviation equipment is frequently leased or financed, risk can be spread among multiple entities with different insurers and inconsistent waiver and indemnity schemes.
Renter-pilot situations add yet another layer. Many insurers understandably want to pursue non-owner pilots who wreck rented aircraft, but the legal and practical barriers can be significant. Rental agreements may or may not contain clear indemnity and waiver language; the pilot may have minimal personal assets or inadequate non-owned aircraft coverage; and public perception concerns often arise when a pilot has been killed or seriously injured in the same crash that generated the subrogated hull loss. A careful review of the rental contract, the pilot’s insurance (if any), and applicable state anti-subrogation doctrines is essential before chasing what may turn out to be a paper judgment.
International components can complicate aviation subrogation even further. International carriage may be governed by the Montreal Convention or Warsaw Convention regime, which imposes liability limits and specific jurisdictional and procedural rules for passenger claims. Cargo losses may trigger entirely different regimes. Foreign manufacturers, overseas maintenance facilities, and crashes in other countries raise choice-of-law, forum non conveniens, and enforcement issues that can dwarf the underlying negligence questions. Insurers hoping for a straightforward recovery often find themselves navigating treaties and foreign law experts instead.
All of this requires hundreds of hours of work. Even when liability is clear, aviation subrogation is rarely fast. FTCA claims require administrative presentment and often years of negotiation and litigation, with the Department of Justice and FAA attorneys defending air traffic controllers, military personnel, and federal certification decisions. GARA fights over dates of manufacture and part installation can become mini-trials in themselves. Coordinating with NTSB timetables, wreckage release schedules, and foreign authorities’ investigations is not something that can be rushed. For carriers and subrogation vendors, that means reserving for legal and expert costs over a long horizon and resisting the temptation to abandon a promising recovery simply because it does not fit neatly within a one- or two-year evaluation window.
The sobering realities above raise a fair question: given the labor-intensive, frustrating nature of aviation subrogation, when is it worth the effort? The answer lies in disciplined front-end screening and early technical triage. Claims professionals and subrogation counsel need to quickly identify whether the accident likely implicates a viable defendant not shielded by GARA or sovereign immunity; whether the facts suggest systemic negligence (for example, repeated ATC issues in a particular airspace, or a known maintenance pattern) rather than a one-off pilot error; whether contractual waivers have gutted key targets; and whether the expected recovery range justifies the expert and litigation spend. That assessment is both art and science, and it is best done with lawyers who routinely interface with FAA and NTSB investigators, understand FTCA and GARA inside and out, and know from experience which theories tend to gain traction and which do not.
At the same time, it is important to remember that not every aviation investigation leads to a subrogation action, and that is a feature, not a bug. Carriers and third-party subrogation vendors increasingly ask subrogation counsel to conduct full-scale investigations simply to answer the question: “Is there anything here?” Doing that thoroughly and candidly—sometimes concluding that the loss is not recoverable because of GARA, FTCA limitations, lack of provable negligence, or unfixable waiver language—is part of the value we provide. The credibility earned by giving a hard “no” when the law and facts demand it makes it easier for clients to trust us when we say “this one is worth the fight.”
In the end, subrogating aviation disasters is about embracing complexity rather than wishing it away. It requires comfort with highly technical evidence, patience with government processes and international rules, and a clear-eyed view of the economic realities. For insurers and vendors willing to invest in the right cases—and to partner closely with aviation-savvy subrogation counsel—there is significant recovery potential even in the most daunting crashes. But it is not assembly-line work. It is messy, it is demanding, and it rewards only those prepared to dig deep into both the aeronautical and legal turbulence that follows every serious aviation accident.
