JetEx, LLC

Filing 77

ORDER AND OPINION that Plaintiff's 60 Motion for Summary Judgment is denied. Signed by Judge John W Sedwick on 12/15/10.(ESL)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B ef o re the Court is Plaintiffs' Motion for Summary Judgment. (Doc. 60.) The Court w ill deny the motion. P la in tif f JetEx, LLC, owns a Cessna Citation 560 airplane, FAA registration number N 9 9 0 J H , and Plaintiff Arch Insurance Company insured this airplane. The Court will refer to JetEx and Arch Insurance collectively as "JetEx." D e f e n d a n t Scottsdale Air Center ("SAC") is a business operating at the Scottsdale M u n ic ip a l Airport. Among other things, SAC provides a hangar, staging area, and parking f o r private jets. (Doc. 61 at 6.) This lawsuit is about damage to the airplane allegedly in f lic te d while it was in SAC's care. T h e parties agree that, on November 7, 2008, a man named Jake Harouny flew JetEx's a irp la n e from Salt Lake City to the Scottsdale Municipal Airport. Before that flight, Harouny Je tE x , LLC, a Wyoming limited liability) c o m p a n y; Arch Insurance Company, a ) M is s o u ri corporation, ) ) Plaintiffs, ) ) vs. ) ) ) R o ss Scottsdale, LLC d/b/a Scottsdale Air) C e n ter , a Delaware limited liability) c o m p a n y, ) ) Defendant. ) ) ) N o . CV09-1561-PHX-NVW O R D E R AND OPINION [R e : Motion at Docket 60] IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF ARIZONA

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h a d arranged for SAC to take care of the airplane during his stay in Arizona. Therefore, w h e n Harouny arrived in Scottsdale, he taxied to SAC's facilities, shut off the engine, and tu rn e d the airplane over to SAC. Certain SAC personnel then visually inspected the airplane f o r damage. According to the inspection record, the only problem noted was a paint chip on th e left wing. S o m e tim e after this inspection, SAC towed the airplane to a parking location some d is ta n c e away from its main facilities. The next day, SAC towed the airplane to a hangar for c le a n in g . Members of the cleaning crew found noticeable damage on the airplane's left w in g . Photographs submitted by JetEx (the authenticity of which SAC does not dispute for p u rp o s e s of this motion) show that the left wing suffered two substantial scratches, running p a ra lle l to each other from the wing's leading edge along the underside. One scratch runs all the way to the trailing edge and aileron. The other scratch does not seem to run that far, b u t it appears to have left a noticeable gash about midway through its course. (See Docs. 663 , 66-4.) This damage rendered the plane no longer airworthy, requiring repairs paid for by A rc h Insurance. J e tE x claims that Harouny and others inspected the airplane before it left Salt Lake C ity and noticed no damage at that time. Harouny also claims that he encountered nothing a t the Salt Lake City airport, in flight, or at the Scottsdale airport that could have caused such d a m a g e . JetEx therefore sued SAC for negligent property damage (including through a res ip s a loquitur theory) and for breach of an implied bailment-for-hire contract. JetEx has now m o v e d for summary judgment, seeking to e sta b lis h [ ] as a matter of law based on the uncontested evidence that a contract o f bailment for hire existed between plaintiff and defendant, that the aircraft w a s damaged while in the care, custody and control of the defendant pursuant to the bailment, and that the defendant is legally liable for the plaintiffs' d a m a g e s because it cannot produce any evidence to meet its burden of showing th a t the damage was caused by something that occurred in spite of the d e f en d a n t's reasonable care. (D o c . 61 at 3.) In response, SAC conceded for purposes of the motion that it and JetEx entered into -2-

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a bailment-for-hire relationship during the relevant time. SAC, however, offered evidence th a t, a few weeks before Harouny flew the airplane to Scottsdale, he flew the airplane to an a irp o rt in Mount Pleasant, Utah. That airport allegedly has a small parking ramp requiring a tight turn, and surrounding the parking ramp are green-colored steel fence posts. A c c o rd in g to SAC, [a] chemical analysis has established that the green paint on these fence posts m a tc h e s the green paint that was transferred to the damaged area on the a irc ra f t. Furthermore, two of these fence posts lean at an angle consistent with a collision with the left wing as the aircraft moved in a parallel direction. F in a lly, and perhaps most important, the damage to the left wing area fits the p ro f ile of the fence posts (i.e., the imprint on a grill on the underside of the left w in g area matches the size and shape of the fence posts). (D o c . 71 at 2 (citations omitted).) SAC also argued that, even absent this evidence, it had raised a triable issue of fact through the testimony of its employees who were "`very a d a m a n t ' that they `didn't damage this aircraft,'" mostly because they did not believe that a n yth in g they did or any structures at the Scottsdale airport could have caused such damage. (Id . at 3.) In reply, JetEx conceded that SAC's evidence from Mount Pleasant, Utah, raised a tria b le issue of fact, but JetEx nonetheless asked this court to "streamline the trial" by a d d re ss in g whether there existed a bailment-for-hire between JetEx and SAC,1 and whether S A C had met the degree of care required by the nature of the bailment. (Doc. 75 at 1.) F o cu sin g on the degree of care question, Plaintiffs argued that if a bailee returns the bailor's g o o d s with damage that did not exist at the beginning of the bailment, the bailee must rebut a strong presumption that its negligence caused the damage. JetEx then asserted, for e x a m p le, "All the evidence taken in the case shows that Harouny delivered the aircraft to S A C in good condition and that the damage must have occurred during the bailment" (id. at 3 ), and "SAC has not provided a scintilla of evidence to show that the damage to the aircraft

A s stated above, SAC conceded this issue for purposes of summary judgment, but P la in t if f s apparently want the Court to rule on it for all purposes. -3-

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w a s due to some cause other than its own negligence" (id. at 4). T h e problem with JetEx's reply argument is that (as JetEx conceded earlier in its brief) S A C has provided more than "a scintilla of evidence to show that the damage to the aircraft w a s due to some cause other than its own negligence." Assuming SAC's evidence shows w h a t SAC says it does -- e.g., that Harouny visited the Mount Pleasant airport, that the M o u n t Pleasant fence posts' paint and profile match the damage on the airplane, and that n o th in g at the Scottsdale airport fits the profile of the airplane damage -- a reasonable jury c o u ld believe it and conclude that the damage at issue happened before the airplane arrived in Scottsdale. There would still be countervailing evidence -- e.g., Harouney's testimony th a t he thoroughly inspected the airplane before the trip to Scottsdale, SAC's arrival in s p e c tio n records showing no more than a paint chip on the left wing -- but resolving that c o n f lic t is the jury's role. And if the jury resolves it in favor of SAC, then the entire question o f SAC's duties as a bailee becomes moot. Therefore, the Court sees no usefulness in d ec id in g now, as a matter of law, whether SAC and JetEx had a bailment-for-hire re latio n sh ip , and if so, whether SAC has sufficient evidence to show that it fulfilled its duty o f care. IT IS THEREFORE ORDERED that Plaintiffs' Motion for Summary Judgment (Doc. 6 0 ) is DENIED. D A T E D this 15th day of December 2010.

/S/ JOHN W. SEDWICK U N IT E D STATES DISTRICT JUDGE

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