Agape Flights, Inc. v. Covington Aircraft Engines, Inc. et al
ORDER by Judge Frank H. Seay granting 127 Motion for Summary Judgment. ; granting 128 Motion for Summary Judgment as to all claims asserted by Agape against defts., Pratt & Whitney Canada and Sundstrand and said claims are dismissed (trl, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
AGAPE FLIGHTS, INC.,
COVINGTON AIRCRAFT ENGINES,INC.;
PRATT & WHITNEY CANADA
CORPORATION; HAMILTON SUNDSTRAND
CORPORATION; KANSAS AVIATION OF
INDEPENDENCE, LLC; and JOHN DOE
PRATT & WHITNEY CANADA
CORPORATION and HAMILTON
Third Party Plaintiffs,
KANSAS AVIATION OF INDEPENDENCE,
Third Party Defendant.
OPINION AND ORDER
This matter is before the Court on the Motions for Summary
Judgment filed by Pratt & Whitney Canada Corporation (“Pratt &
Whitney Canada”) and Hamilton Sundstrand Corporation (“Sundstrand”)
with respect to the claims asserted against them by Plaintiff,
Agape Flights, Inc. (“Agape”), for negligence, strict products
liability, and breach of warranty arising out of a December 20,
2007, airplane crash.
In their motions, both Pratt & Whitney
Canada and Sundstrand contend Agape’s claims are barred by the
General Aviation Revitalization Act of 1994 (“GARA”), 49 U.S.C. §
In the alternative, Pratt & Whitney Canada and
Sundstrand contend Agape’s tort claims are barred by Oklahoma’s
economic loss doctrine and that Agape’s breach of warranty claim is
barred by Oklahoma law.
Agape has responded to the motions for
summary judgment and the parties were granted an additional period
of time to conduct discovery limited to the GARA defense and to
file supplemental briefs.
The supplemental briefs have been filed
and the motions for summary judgment are ripe for ruling.
fully reviewed the materials submitted by the parties, the Court
finds Pratt & Whitney Canada’s Motion for Summary Judgment (Dkt.
No. 127) and Sundstrand’s Motion for Summary Judgment (Dkt. No.
128) should be granted for the reasons set forth below.
On December 20, 2007, a Cessna Grand Caravan Model 208B
aircraft, serial number 208B0556, U.S. Registration No. N954PA (the
“Aircraft”) crashed in the ocean waters near the Bahamas.
result of the crash, the Aircraft was destroyed.
The Aircraft was
owned and operated by Agape and it was being powered by a PT6A-114A
engine, Serial No. PCE-17014 (the “Engine”), which Agape had rented
from Covington Aircraft Engines, Inc. (“Covington”) pursuant to a
November 7, 2007, Engine Rental Agreement (“Rental Agreement”).
Pratt & Whitney Canada is the manufacturer of the Aircraft’s Engine
and Sundstrand is the manufacturer of the Fuel Pump, Part No.
025323-150, Serial No. 839 (“Fuel Pump”), which was part of the
In its Amended Complaint, Agape contends the
crash and resultant destruction of the Aircraft were caused by the
“defective and unserviceable condition of the Engine, including the
fuel pump installed in the Engine.”
Amended Complaint (Dkt. No.
60), ¶ 13.
In particular, Agape’s investigation has led it to
conclude that the crash occurred as a result of an in-flight power
loss resulting from the Fuel Pump drive shaft splines being
Agape seeks to recover from Covington, Pratt &
Whitney Canada, Sundstrand, and Kansas Aviation of Independence,
LLC (“Kansas Aviation”) for the loss of the Aircraft under theories
of negligence, strict products liability, breach of contract, and
breach of warranties.1
In turn, Pratt & Whitney Canada and
Sundstrand have asserted third-party claims against Kansas Aviation
The Engine was installed on Cessna Aircraft 208,
serial 108-00001, which was subsequently sold to Air Med (Air
Mediterranee) on May 26, 1986.
The Fuel Pump manufactured by
Sundstrand was initially installed on engine PCE 17131, which was
a model PT6A-114 sold to Cessna on October 21, 1986.
installed on Cessna Model 208, serial number 20800110 with assigned
US Registration No. N9642F.
This aircraft, Cessna Model 208,
Airworthiness Certificate by the Federal Aviation Administration
(“FAA”) on March 20, 1987, and it was sold to Cessna Finance on
March 26, 1987.
Cessna Finance leased the aircraft, Cessna Model
208, serial number 20800110, N9642F, to California Air Charter on
On or about February 10, 2006, Kansas Aviation overhauled
the Fuel Pump for Covington. The Fuel Pump was placed on the
Engine and maintained in Covington’s rental pool until the
Engine, with the refurbished Fuel Pump, was placed in the
Aircraft for Agape’s use pursuant to the Rental Agreement between
Agape and Covington. Agape’s claims against Kansas Aviation are
limited to negligence and breach of warranties.
February 20, 1987.
There are no records indicating that Pratt &
Whitney Canada provided repair and/or overhaul services on the Fuel
Pump since it was first installed on engine PCE 17131 in 1986.
Nearly twenty-three (23) years after the Engine was sold and
delivered to Cessna, and more than twenty (20) years after the
first sale of the aircraft/engine on which the Fuel Pump was
installed, the Engine, with the Fuel Pump, was rented by Agape from
Covington pursuant to the November 7, 2007, Rental Agreement.
Following the December 7, 2007, crash the Engine was inspected and
the Engine’s fuel pump was identified by serial number 839, with
manufactured by Sundstrand in 1986.
At the time of the crash, the
operations. The Aircraft was a certified general aviation aircraft
with a seating capacity of eleven (11) seats and the FAA had issued
a Standard Airworthiness Certificate for the Aircraft on July 19,
The parties to the Engine Rental Agreement were Agape and
Pratt & Whitney Canada was not a party to the Engine
Rental Agreement and had no role in drafting or approving the
language contained in the document.
Pratt & Whitney did not make
including the Engine placed in Agape’s Aircraft, and it has no
obligations or responsibilities to Covington or its lessee, Agape,
to repair the Engine or its component parts.
The inclusion of
language in the Rental Agreement suggesting Pratt & Whitney is
responsible for repairs or replacement of parts of the Engine was
made in error and without the approval or assent of Pratt & Whitney
In 1994, Congress enacted GARA in order to address problems
enormous product liability costs that our tort system had imposed
upon manufacturers of general aviation aircraft.”
S.P.A, 252 F.3d 1078, 1084 (9th Cir. 2001).
Lyon v. Augusta
Part of Congress’s
concern was that aircraft “manufacturers were being driven to the
wall because, among other things, of the long tail of liability
attached to those aircraft which could be used for decades after
they were first manufactured and sold.”
Id. (citing H.R.Rep. No.
103-525, pt I, at 1-4 (1994), reprinted in 1994 U.S.C.C.A.N. 1638,
Thus, GARA established an 18-year statute of repose for
a civil action against an aircraft manufacturer or the manufacturer
of any component, system, or other part of the aircraft.
(Wash.Ct.App. 2009)(“GARA is a mandatory statute of repose that
bars lawsuits against the manufacturer of the aircraft or the
manufacturer of any new component or, system, or other part of the
aircraft from accidents that occurred more than 18 years after the
initial transfer of the aircraft.”).
GARA’s statute of repose
Except as provided in subsection (b), no civil action for
damages for death or injury to persons or damages to
property arising out of an accident involving a general
The second sentence of paragraph 8 of the Engine Rental
Agreement provides “P&WC shall be responsible for repairs or
replacement of the engine in case of damage resulting from normal
operation and in accordance with applicable manuals and operating
instructions, and without fault or negligence of the customer.”
aviation aircraft may be brought against the manufacturer
of the aircraft or the manufacturer of any new component,
system, subassembly, or other part of the aircraft, in
its capacity as a manufacturer if the accident occurred(1) after the applicable limitations period beginning on(A) the date of delivery of the aircraft to its first
purchaser or lessee, if delivered directly from the
(B) the date of first delivery of the aircraft to a
person engaged in the business of selling or leasing such
aircraft . . .
GARA § 2(a).
The term “general aviation aircraft” is defeined
under GARA as:
Any aircraft for which a type certificate or an
airworthiness certificate has been issued by the
Administrator of the Federal Aviation Administration
(“FAA”), which, at the time such certificate was
originally issued, had a maximum seating capacity of
fewer than 20 passengers, and which was not, at the time
of the accident, engaged in scheduled passenger-carrying
operations as defined under regulations in effect under
Part A of subtitle VII of title 49, United States Code
[49 U.S.C.A. § 40101 et seq.], at the time of the
GARA § 2(c).
The “applicable limitation period” set forth under
section 2(a) is defined as “18 years with respect to general
aviation aircraft and the components, systems, subassemblies, and
other parts of the such aircraft.”
GARA § 3(3).
“supersedes any State law to the extent that such law permits a
civil action . . . to be brought after the applicable limitation
period . . . .”
GARA § 2(d).
application of GARA’s 18-year statute of repose bars all claims
asserted against them by Agape.
The burden of proof rests with
Pratt & Whitney Canada and Sundstrand to show that an affirmative
defense such as GARA’s statute of repose applies to the facts at
hand. South Side Trust and Sav. Bank of Peoria v. Mitsubishi Heavy
Indust., Ltd., 927 N.E.2d 179, 193 (Ill.Ct.App. 2010)(a defendant
has the burden of showing that the affirmative defense of the
statute of repose under GARA applies and, if the showing is made,
“then the plaintiff has the burden to show facts that operate to
toll or create an exception to the repose period.”); see also Koch
v. Shell Oil Co., 52 F.3d 878, 880 (10th Cir. 1995)(defendants in
product liability action under Kansas law have the burden of proof
on the affirmative defense of the statute of repose and “plaintiff
has the burden of showing that his action falls within one of the
exceptions to the statute.”).
From a review of the undisputed
facts, it is clear that GARA applies in this action with respect to
the claims against both Pratt & Whitney Canada and Sundstrand.
First, it is undisputed that the Aircraft qualifies as a “general
aviation aircraft” under GARA as it was certified by the FAA to
carry a maximum of 11 passengers and, at the time of the accident,
it was not being used for scheduled passenger-carrying operations.
Second, it is undisputed that Sundstrand, as the manufacturer of
the Fuel Pump on the Aircraft, and Pratt & Whitney Canada, as the
manufacturer of the Engine on the Aircraft, are entitled to the
protections afforded under GARA.3
Finally, it is undisputed that
Pratt & Whitney Canada sold and delivered the Engine to Cessna on
Agape had initially argued in its Response to
Sundstrand’s Motion for Summary Judgment (Dkt. No. 142) that
Sundstrand was not entitled to rely on the 18-year statute of
repose because it had not established that it was a “successor
manufacturer” to the predecessor manufacturer of the fuel pump,
Sundstrand Corporation. In its Supplemental Response (Dkt. No.
197), however, Agape has abandoned this position and states that
Sundstrand is the successor manufacturer to Sundstrand
December 17, 1984, more than 23 years prior to the December 20,
The Engine was then installed on Cessna Aircraft
208, serial 108-00001, which was subsequently sold to Air Med on
May 26, 1986, more than 21 years prior to the accident.
respect to Sundstrand, the undisputed evidence establishes that the
aircraft on which the Fuel Pump was installed was sold to Cessna
Finance, a company in the business of leasing aircraft, on March
26, 1987, more than 20 years prior to the accident.
undisputed evidence establishes that the 18-year statute of repose
under GARA applies to the claims asserted by Agape against Pratt &
Whitney Canada and Sundstrand.
Rather than contesting the application of GARA’s 18-year
statute of repose, Agape contends its claims against Pratt &
Whitney Canada and Sundstrand should be allowed to go forward
because this case falls within GARA’s “warranty exception” and
As to the “warranty exception,” GARA’s
statute of repose would not apply “to an action brought under a
written warranty enforceable under law.”
GARA § 2(b)(4).
asserting this exception, Agape bears the burden of proving the
Bianco v. Cessna Aircraft Co., 2004 WL 3185847
*3 (Ariz. Ct. App. 2004).
Agape has failed to satisfy its burden
of establishing a written warranty made by either Pratt & Whitney
Canada or Sundstrand.
There is simply no evidence of any written
warranty having been made to Agape by either Pratt & Whitney Canada
or Sundstrand with respect to the Engine or Fuel Pump.
reliance on the warranty language of the Rental Agreement is
The Rental Agreement between Agape and Covington
WARRANTY: [Covington] warrants that at the time of
delivery the rental engine will in flight-worthy
condition and conform to applicable Pratt & Whitney
Canada Corporation specifications.
Pratt & Whitney
Canada Corporation shall be responsible for repairs or
replacement of the engine in case of damage resulting
from normal operation and accordance with applicable
manuals and operating instructions, and without fault or
negligence of the customer [Agape].
Rental Agreement, ¶ 8. Agape combines this language and Oklahoma’s
Okla.Stat.tit. 12A, § 2A-5314, to conclude that it has a breach of
warranty claim against both Pratt & Whitney Canada and Sundstrand
This section of Oklahoma law reads:
(1) If a third party so deals with goods that
have been identified to a lease contract as
to cause actionable injury to a party to a
(a) the lessor has a right of action against
the third party, and
(b) the lessee also has the right of action
against the third party if the lessee;
(i) has a security interest in the
(ii) has a insurable interest in
the goods; or
(iii) bears the risk of loss under
the lease contract or has since the
injury assumed that risk as against
the lessor and the goods have been
converted or destroyed.
(2) If at the time of the injury the
party/plaintiff did not bear the risk of loss
as against the other party to the lease
contract and there is no arrangement between
them for disposing of the recovery, his suit
or settlement, subject to his own interest,
is as a fiduciary for the other party to the
(3) Either party without consent of the other
party may sue for the benefit of which it may
for the failure of the Engine.
The Court disagrees.
provisions do not establish the required written warranty for the
application of the GARA warranty exception.
The warranty language
of the Rental Agreement does not constitute a written warranty
issued by Pratt & Whitney Canada as the parties to such agreement
are Agape and Covington - Pratt & Whitney Canada is simply not a
party to the lease agreement.
It is undisputed that the warranty
language of the Rental Agreement suggesting some obligation on the
part of Pratt & Whitney Canada was included in error and without
the approval or assent of Pratt & Whitney Canada.
To the extent
this language can be interpreted to infer a warranty running from
Pratt & Whitney Canada to Agape, it falls well short of the
required written warranty between the affected parties to trigger
GARA’s warranty exception under § 2(d). Moreover, Agape’s reliance
on the application of section 2A-531 does not establish the
necessary written warranty. Even assuming such state law provision
creates a right of action against both Pratt & Whitney Canada and
Sundstrand for breach of warranty, any inferred warranty claim
against a third party under Oklahoma law is not a written warranty
claim necessary for the application of the GARA warranty exception.
GARA “supersedes any State law to the extent that such law permits
a civil action,” GARA § 2(d), and in the absence of any written
warranty running between Agape and either Pratt & Whitney Canada
In sum, the Court finds that Agape has failed to
sustain its burden of establishing the existence of GARA’s warranty
Agape also attempts to rely on GARA’s “rolling provision” that
restarts the 18-year statute of repose against the manufacturer of
any new or replacement part.
GARA’s “rolling provision” provides:
with respect to any new component, system, subassembly,
or other part which replaced another component, system,
subassembly, or other part originally in, or which was
added to the aircraft, and which is alleged to have
caused such death, injury, or damage, after the
applicable limitation period beginning on the date of
completion of the replacement or addition.
Sundstrand bear the burden of proof with regard to this “rolling
provision.” The Court disagrees. While Pratt & Whitney Canada and
Sundstrand do indeed bear the burden of proof on the affirmative
defense of GARA’s statute of repose, see South Side Trust, 927
N.E.2d at 193; Koch, 52 F.3d at 880, Agape ultimately bears the
restarting of the limitation period.
Willett v. Cessna Aircraft
Co., 851 N.E.2d 626, 636 (Ill.Ct.App. 2006)(“We find it to be a
reasonable interpretation of [GARA] that plaintiff herein had the
burden of showing that the general repose period for the aircraft
as a whole was tolled or reset by the installation of a new
replacement wye, triggering the part-specific repose period.”).
Thus, this “rolling provision” applies if Agape “can show that a
new item replaced an item either originally in the aircraft or
added to the aircraft and the new item was also a cause of the
South Side Trust, 927 N.E.2d at 193.
the record before it, the Court concludes Agape has not sustained
its burden in this respect.
With respect to Sundstrand, Agape argues that there is a
significant issue of material fact as to whether the Fuel Pump’s
drive gear has been installed within 18 years of the November 20,
This argument rests on Agape’s contention that
Sundstrand has not established that the drive gear is the same
drive gear that was originally installed in the Fuel Pump.
following facts in support of its position: the Fuel Pump is a
power driven rotary pump with a drive gear, that includes splines;
Sundstrand is the only company that makes the gear set for the fuel
pump model in question; Sundstrand was concerned about the splines
on the drive gear being returned for service with excessive wear;
intermittent or lack of operation of the fuel pump; Sundstrand
recommends overhauls of the fuel pump every 3600 hours and the Fuel
Sundstrand placed wear tolerances for the fuel pump’s drive gear
splines in its overhaul manuals; the Fuel Pump was overhauled by
Kansas Aviation on or about February 9, 2006, in accordance with
Sundstrand’s Overhaul Manual 73-10-02, Revision No. 12, dated June
1, 1997; neither Sundstrand nor Pratt & Whitney Canada knows if the
drive gear on the Fuel Pump had been replaced; no separate log
books are kept for fuel pumps and records for fuel pumps are kept
in the engine log books; the Fuel Pump did not operate at the time
of the crash because of wear on the splines of the drive gear;
Covington does not know if the drive gear was ever replaced and it
does not know the history of the Fuel Pump from 1987 to February
2006; and Pratt & Whitney Canada was not able to identify the
driveshaft serial number on the Fuel Pump after the crash. None of
these facts, however, establish that the drive gear on the Fuel
Pump was actually replaced at any point within 18 years of the
November 20, 2007, crash.
Agape’s factual assertions are framed
Sundstrand to prove that the gear drive is the same as the original
gear drive placed on the Fuel Pump in 1986.
At best, Agape’s facts
suggest that the drive gear might have been replaced or should have
been replaced given historical data of wearing of the drive gear
splines. There is no maintenance record or other similar document,
however, establishing that the drive gear was indeed replaced with
the 18-year period before the date of the crash.5
The burden to
come forward with such evidence rests with Agape.
evidence, the Court must conclude that Agape has failed to sustain
its burden of establishing that GARA’s “rolling provision” applies
to reset the statute of repose herein as to Sundstrand.
Turning to Pratt & Whitney Canada and Agape’s argument for the
resetting of GARA’s statute of repose, the Court likewise finds
Agape has failed to sustain its burden of proof with respect to the
“rolling provision” as to Pratt & Whitney Canada.
that a 2006 revision to Pratt & Whitney Canada’s maintenance manual
and a similar 2005 Service Bulletin No. 1645 constitute a “part”
Pratt & Whitney Canada’s maintenance manual was
originally published October 1, 1989, and provided for a procedure
for fuel pump coupling in-situ inspection.
In a change dated June
16, 2006, Pratt & Whitney Canada issued a revised manual with a
more detailed procedure for the in-situ fuel pump inspection.
Pratt & Whitney Canada also issued Service Bulletin No. 1645 on
December 23, 2005, dealing with the inspection of the fuel pump
The document submitted in support of Kansas Aviation’s
February 9, 2006, overhaul of the Fuel Pump is entitled an
Authorized Release Certificate and it is attached to the
affidavit of Peter T. Kirchen (Exhibit 2 of Agape’s Response
Brief (Dkt. No. 142)). This document only reflects an overhaul
of the Fuel Pump in accordance with Sundstrand’s 1997 version of
its overhaul manual. No details are provided in this document,
or any other document, as to the replacement of any parts.
Indeed, Agape acknowledges this lack of specificity when its
states in its response brief that “[t]here is no evidence in the
record as to whether the overhaul would have included replacement
of the coupling shaft for the engine driven fuel pump.” Agape’s
Response Brief (Dkt. No. 142), p. 8.
maintenance manual revision, as well as Service Bulletin No. 1645,
constitute a “part” for purposes of GARA’s “rolling provision” and,
as a consequence, the limitation period was started within 18 years
of the November 20, 2007, crash.
The Court disagrees and finds
neither the maintenance manual nor Service Bulletin No. 1645
constitute a “part” under GARA’s “rolling provision.”
In Burton, the court concluded that a service bulletin calling
for a one-time close visual inspection of the rudder cap, top
rudder rib, and forward rudder spar of a twin engine airplane did
not constitute a “part” for purposes of the application of GARA’s
“rolling provision.” Burton, 221 P.3d at 295-97. In reaching this
conclusion, the Burton court distinguished service bulletins, which
could be considered parts of maintenance manuals and are not
required to operate the aircraft, from flight manuals, which are
required to be onboard aircraft.
Id. at 296.
The Burton court
rejected the plaintiff’s attempt to avoid the GARA statute of
repose by arguing that the service bulletin, which amended the
maintenance manual, was a “part” of the aircraft and it cited with
approval the following language:
To hold that [the defendant] should be liable because its
manuals issued within the period of repose did not
provide an adequate means of correcting the design flaw
of the critical component, would be to circumvent the
statute of repose by providing a back door to sue for the
design flaw ostensibly not for the design flaw itself;
but for the failure of the manuals to adequately correct
the flaw. The result would be the evisceration of the
statute of repose.
Butchkosky v. Enstrom Helicopter Corp., 855 F.Supp. 1251, 1257
(S.D. Fla. 1993); see also Moyer v. Teledyne Cont’l Motors, Inc.,
979 A.2d 336, 344 (Pa.Super.Ct. 2009)(“given the continual issuance
of service bulletins pertaining to a variety of topics, if the
statute of repose were triggered every time a service bulletin was
issued, the intent of GARA would be eviscerated.”).
accept Agape’s argument herein that the 2006 maintenance manual
revision and Service Bulletin No. 1645 are new “parts” that restart
GARA’s limitation period would be to eviscerate the intent of GARA
in providing protection to general aviation industry manufacturers,
such as Pratt & Whitney Canada, from the long tail of liability
associated with products liability actions.
Agape’s assertion of
fault associated with the revised procedures for inspection of the
Fuel Pump’s drive gear is merely an attempt to circumvent GARA’s
statute of repose by bringing suit not for the alleged design flaw
inherent in the Fuel Pump, but rather, for a failure of the revised
maintenance manual and Service Bulletin No. 1645 to adequately
address the defect.
The Court therefore concludes that Pratt &
Whitey Canada’s revised maintenance manual and its Service Bulletin
Thus, Agape has not sustained its burden of proving
that GARA’s statute or repose was restarted as to Pratt & Whitney
Canada so as to bring this action within the 18-year statute of
Based on the foregoing reasons, the Pratt & Whitney Canada’s
Motion for Summary Judgment (Dkt. No. 127) and Sundstrand’s Motion
for Summary Judgment (Dkt. No. 128) are granted6 and all claims
asserted by Agape against Pratt & Whitney Canada and Sundstrand are
Having found that GARA bars all claims asserted by Agape,
the Court need not address the alternative arguments by Pratt &
Whitney Canada and Sundstrand that Agape’s tort claims are barred
by Oklahoma’s economic loss doctrine and that Agape’s breach of
warranty claims are barred by Oklahoma law.
It is so ordered this 28th day of June, 2011.
Pratt & Whitney Canada and Sundstrand have filed a Third
Party Complaint (Dkt. No. 50) against Kansas Aviation for
contribution. The Court presumes this third party complaint is
rendered moot based on the dismissals herein; consequently, Pratt
& Whitney Canada and Sundstrand are given until July 7, 2011, to
either dismiss the third party complaint or submit a document to
the Court explaining why such third party complaint should remain
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