Ten Years for Closure

Ten years after eight Army National Guardsmen died when their C-12F aircraft slammed into an Alaska mountain, five families will receive compensation for the senseless tragedy.

Judge John Reese of the Superior Court of the State of Alaska, Third Judicial District at Anchorage, is expected to approve a settlement agreement reached in January between the plaintiffs and the State.

On Nov. 12, 1992, Alaska Army National Guard (AANG) Flight 261 (Guard 261) was flying from Anchorage to Juneau when it crashed into a mountain about 20 miles from the Juneau airport. Killed were two pilots and six Guardsmen.

Mike Slack and Rusty Allman, along with co-counsel Matt Rubin of Houston, Robert Merle Cowan of Kenai, Alaska, and Frank England of Martinez, Georgia, represented the families of Maj. Gen. Kenneth W. Himsel, Col. Wilfried Wood and Sgt. FC Richard E. Brink.

Lawsuit filed in 1994

On Nov. 9, 1994, five passengers’ families filed the original lawsuit. After almost four years of litigation, the State obtained a favorable trial court ruling in March 1998, dismissing the case. Three years later in November 2001, the Alaska Supreme Court reversed that decision and remanded the case for trial.

“The Court refused to recognize the often-criticized federal doctrine that prohibits lawsuits among persons in military service who negligently kill or injure their own. Seven years after the original lawsuit was filed, we finally got our chance. We were able to negotiate a settlement agreement within 13 months,” Slack said.

With a January 2003 trial date approaching, Slack and Allman flew repeated “red-eyes” between Austin and Anchorage to take depositions. After extensive mediation sessions in October and late December 2002, the case was settled early in January 2003.

Pilots Lost!

Evidence was overwhelming that there was no explanation for the crash except egregious pilot error. In short, the pilots ignored instruments and prepared for landing in Juneau. Tragically, they were nowhere near the airport.

The key legal argument in the case was over federal vs. state liability. Slack & Davis argued that the flight of Guard 261 had been ordered by Thomas Carroll, Asst. Adj. General, Army, Department of Military and Veteran Affairs, State of Alaska, a state employee. Pilot Thomas Clark was State Army Aviation Officer for the State of Alaska, and co-pilot Pospisil was in active guard reserve status in the Alaska Army National Guard and also a state employee.

“None of the individuals responsible for arranging this flight or the passengers on board were on active federal duty or serving in any federal military capacity,” Slack said. “This flight was requested, arranged and conducted at the request of Carroll, acting as an Alaska state employee.”

“Ironically, it was an unnecessary flight arranged so that one of the passengers, a general officer with the Indiana National Guard, could see an AANG facility in Juneau, then catch a commercial flight back to Indiana,” Allman said.

“When the plane crashed into the mountain, the aircraft was in a landing configuration, with wheels and flaps down,” Slack said. “Eight men died needlessly as a result.”