Starr Indemnity & Liability Company et al v. Rolls-Royce Corporation et al

Filing 108

ORDERED that Defendant Rolls-Royce Corporation's 90 Motion for Summary Judgment is granted. Ordered that Plaintiffs' 106 Motion to Strike Defendant Rolls-Royce Corporation's Supplemental Statement of Facts in Support of its Repl y in Support of its Motion for Summary Judgment is denied. It is further ordered that this matter is dismissed with prejudice. The Clerk of the Court shall enter judgment and close the case. Signed by Magistrate Judge Bruce G Macdonald on 3/25/2019. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Starr Indemnity and Liability Company, as
Subrogee of Med-Trans, a corporation; and
Med-Trans Corporation,

No. CV-14-02100-TUC-BGM
ORDER

Plaintiffs,

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v.

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Rolls-Royce Corporation; Rolls-Royce
North America, Inc.; John Does I-X; ABC
Corporations I-X; and Black and White
Partnerships I-X,

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Defendants.

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Currently pending before the Court is Defendant Rolls-Royce Corporation’s

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Motion for Summary Judgment (Doc. 90). Defendant has also filed a Separate Statement

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of Facts in Support of Motion for Summary Judgment (“SOF”) (Doc. 91). Plaintiff has

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responded (“Response”) (Doc. 97) and filed its Controverting Statement of Facts in

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Opposition to Rolls-Royce Corporation’s Motion for Summary Judgment (“CSOF”)

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(Doc. 98). Defendant replied (Doc. 104) and filed a Supplemental Statement of Facts and

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Controverting Statement of Facts in Support of Rolls-Royce Corporation’s Reply in

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Support of its Motion for Summary Judgment (“SSOF”) (Doc. 105). Plaintiff then filed a

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Motion to Strike Defendant Rolls-Royce Corporation’s Supplemental Statement of Facts

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in Support of its Reply in Support of its Motion for Summary Judgment (Doc. 106),

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which Defendant opposed (Doc. 107). As such, the motions are fully briefed and ripe for

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adjudication.

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In its discretion, the Court finds this case suitable for decision without oral

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argument. See LRCiv. 7.2(f). The Parties have adequately presented the facts and legal

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arguments in their briefs and supporting documents, and the decisional process would not

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be significantly aided by oral argument.

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I.

MOTION TO STRIKE

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As an initial matter, Plaintiffs seek to strike Defendant’s Supplemental Statement

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of Facts and Controverting Statement of Facts (Doc. 105) because it is not allowed by the

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local rules. See Pls.’ Mot. to Strike (Doc. 106). Plaintiffs further urge that Defendant’s

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Supplemental Statement “contains objections to Plaintiffs’ evidence and is littered with

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legal arguments” also in violation of the local rules. Id. at 3. The Court is not inclined to

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strike Defendant’s submission based on a perceived technical procedural violation. The

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Court will evaluate the evidence, as necessary, in the course of its resolution of

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Defendant’s summary judgment motion.

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DENIED.

As such, Plaintiffs’ motion to strike is

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II.

FACTUAL BACKGROUND1

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A.

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The helicopter involved in the incident giving rise to the current litigation was a

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1998 Bell 407 emergency medical services helicopter, bearing serial number 53281 and

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FAA registration number N509MT (the “Aircraft”). Compl. (Doc. 1-1) at ¶ 6. On

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January 28, 2003, Med-Trans purchased the Aircraft from Augusta Aerospace that

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contained a different engine than the one involved in the incident. Def.’s SOF (Doc. 91),

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Aircraft Bill of Sale 1/28/2003 (Exh. “1”); see also Pls.’ CSOF (Doc. 98). At the time of

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the incident, the Aircraft contained a 250-C47B turbine engine, with serial number CAE-

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847656 (the “subject engine”). Compl. (Doc. 1-1) at ¶ 9. The subject engine was

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The Aircraft

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Facts are undisputed, unless otherwise noted. The Court did not include facts that it
found to be irrelevant to the determination of Defendant’s motion or otherwise improper, e.g.
legal conclusions.

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manufactured by Rolls-Royce Corporation (“RRC”) and sold to Bell Helicopter Canada,

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also known as Bell Helicopter Textron, Inc., (“Bell”) and was shipped to Bell on April

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28, 2004.2 Def.’s SOF (Doc. 91), Certificate of Conformance 4/28/2004 (Exh. “2”); see

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also Def.’s SSOF (Doc. 105), Sain Decl. 11/6/2018 (Exh. “13”) at ¶ 4. When Bell

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originally sold the subject engine, it was in a helicopter with FAA registration number

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N515MT (“originating helicopter”), which is a separate helicopter from the Aircraft at

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issue in this case. Def.’s SOF (Doc. 91), Service Record, Engine Assembly, Engine

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Serial No. 847656 (Exh. “4”); see also Pls.’ CSOF (Doc. 98), Service Record, Engine

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Assembly, Engine Serial No. 847656 (Exh. “D”). On October 6, 2004, Bell notified RRC

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to begin the warranty of the subject engine on January 15, 2005 and identified Med-Trans

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as the customer.3 Def.’s SOF (Doc. 91), Gerdes e-mail to Model 250 – Customer

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Support 2/4/2005 (Exh. “3”). On November 16, 2009, Premier Turbines replaced the

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subject engine’s Third Stage Turbine Wheel, serial number X536586, with serial number

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X589849 (the “subject Turbine Wheel”). Def.’s SOF (Doc. 91), Assembly Record,

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Turbine Assembly, Turbine Serial No. CAT-44958 (Exh. “5”). On November 28, 2009,

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the subject engine with the subject Turbine Wheel was installed in the Aircraft. Def.’s

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SOF (Doc. 91), Exh. “4.”

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B.

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All of Plaintiffs’ damages arise from an alleged “hard landing” of a Bell 407

The Hard Landing

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Plaintiffs do not dispute that the subject engine was manufactured by Rolls-Royce
Corporation; however, argues that the Certificate of Conformance “does not contain any
information as to whom [t]he engine was shipped or when.” Pls.’ CSOF (Doc. 98) at ¶ 5. The
Certificate of Conformance refers the “the Model 250 series engine shipped herewith” and is
dated April 28, 2004. Def.’s SOF (Doc. 91), Exh. “2” (emphasis added). Plaintiffs acknowledge
that the subject engine was installed in a different helicopter, which Med-Trans leased, as of July
21, 2004. Pls.’ CSOF (Doc. 98) at ¶¶ 26–27. Furthermore, Plaintiffs do not object to
Defendant’s subsequent statement regarding Bell as the seller of the subject engine. See Def.’s
SOF (Doc. 91) at ¶ 7; Pls.’ CSOF (Doc. 98) at ¶ 7.
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Plaintiffs objects to this statement because the document constitutes inadmissible
hearsay and does not support the statement made. Pls.’ CSOF (Doc. 98) at ¶ 6. The Court
agrees that the e-mail is inadmissible hearsay, not subject to any exception. This information is
also contained in Senior Airworthiness Specialist Sain’s Declaration, which is admissible
evidence. See Def.’s SSOF (Doc. 105), Sain Decl. 11/6/2018 (Exh. “13”) at ¶ 6.

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helicopter that occurred on April 14, 2012, in Aberdeen, South Dakota.4 See Compl.

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(Doc. 1-1) ¶ 8. The hard landing occurred over thirty (30) months and over a thousand

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hours after the subject Turbine Wheel was installed in the subject engine. See Def.’s

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SOF (Doc. 91), Aircraft Status Sheet 4/10/2012 (Doc. 91-1) at 6, 11 & Post-Incident

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Photo. of Hobbs Meter (collectively Exh. “6”).5

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C.

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Warranties
1. Engine Warranty

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The subject engine was warrantied as being free from defects in materials and

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workmanship for twenty-four months from the date of delivery to the aircraft

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manufacturer or one thousand hours of operation, “whichever period expires first.”6

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Def.’s SOF (Doc. 91), Rolls-Royce Model 250-C40/C47 Series New Original Equipment

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Engine Warranty and Disclaimer Summary (Exh. “7”) at 13; see also Def.’s SSOF (Doc.

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105), Sain Decl. 11/6/2018 (Exh. “13”) at ¶ 6. The warranty states in relevant part:

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(PURCHASER) ACCEPTS AND AGREES THAT THE WARRANTIES
GRANTED TO THE (PURCHASER UNDER CLAUSE 5 OF THE
PURCHASE CONTRACT AND, SO FAR AS THEY RELATE TO THE
SUPPLIES AND EQUIPMENT, THE PRODUCT ASSURANCE
GUARANTEES GRANTED TO THE (PURCHASER) UNDER CLAUSE
4 HEREOF ARE EXCLUSIVE AND ARE EXPRESSLY IN LIEU OF
AND THE (PURCHASER) HEREBY WAIVES, RELEASES AND
DISCLAIMS (I) ALL OTHER CONDITIONS AND WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS,
AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE, (II)
ALL OTHER OBLIGATIONS AND LIAGBILITIES WHATSOEVER OF
ROLLS-ROYCE WHETHER IN CONTRACT, WARRANTY OR TORT

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The Court notes that Plaintiffs’ Complaint (Doc. 1-1) states that the crash occurred on
April 12, 2012; however, Plaintiffs do not dispute Defendant’s date of April 14, 2012.
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Page references refer to the CM/ECF page number.

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Plaintiffs dispute this statement urging that the form warranty is hearsay and fails to
reference the subject engine. Mr. Sain, RRC’s Senior Airworthiness Specialist, attested to the
records as those kept in RRC’s ordinary course of business, as well as the delivery of a logbook
and warranty card with the originating helicopter. Def.’s SSOF (Doc. 105), Sain Decl.
11/6/2018 (Exh. “13”) at ¶ 6.

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(INCLUDING WITHOUT LIMITATION, NEGLIGENCE, ACTIVE,
PASSIVE OR IMPUTED LIABILITY OR STRICT LIABILITY) OR BY
STATUTE OR OTHERWISE FOR ANY NON-CONFORMANCE,
DEFECT, DEFICIENCY, FAILURE, MALFUNCTIONING, OR
FAILURE TO FUNCTION OF ANY ITEM OF THE SUPPLIES OR OF
THE EQUIPMENT REFERRED TO IN CLAUSE 5.2 OF THE
PURCHASE CONTRACT, (III) STRICT LIABILITY OR PRODUCT
LIABILITY, AND (IV) ALL DIRECT, INDIRECT, SPECIAL,
CONSEQUENTIAL AND INCIDENTAL DAMAGES OF ANY
NATURE WHATSOEVER[.]7

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Def.’s SOF (Doc. 91), Exh. “7” at 13. At the time of the hard landing, the subject

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engine’s warranty had long expired by time and hours.8 Def.’s SOF (Doc. 91), Service

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Record, Compressor Assembly, Compressor Serial No. CAC-45317 (Exh. “8”); see also

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Def.’s SSOF (Doc. 105), Exh. “13” at ¶ 7.

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2. Third Stage Turbine Wheel Warranty

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The Third Stage Turbine Wheel replacement part was subject to the Rolls-Royce

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M250 Spare Module/Part Limited Warranty (“Limited Warranty”) which was “in effect

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for twenty-four (24) months from the date of shipment from the Rolls-Royce Authorized

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Distributor or one thousand (1,000) hours of operation, whichever occurs first.”9 Def.’s

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SOF (Doc. 91), Rolls-Royce M250 Spare Module/Part Limited Warranty (Exh. “9”); see

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also Def.’s SSOF (Doc. 105), Exh. “13” at ¶ 8. At the time of the hard landing, the

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subject Turbine Wheel had operated for thirty (30) months and had 1096.3 hours.10 See

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Plaintiff acknowledges that this is the language as stated in § 6.1 of each warranty;
however, reasserts its objection that the warranty does not apply to the subject engine. As noted,
supra, the warranty was delivered with the originating helicopter and is properly admissible. See
Def.’s SSOF (Doc. 105), Sain Decl. 11/6/2018 (Exh. “13”) at ¶ 6.
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Plaintiff reasserts its objection that the warranty does not apply to the subject engine.
As noted, supra, the warranty was delivered with the originating helicopter and is properly
admissible. See Def.’s SSOF (Doc. 105), Sain Decl. 11/6/2018 (Exh. “13”) at ¶ 6.
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Plaintiffs dispute this statement urging that the form warranty is hearsay and fails to
reference the subject engine. Mr. Sain, RRC’s Senior Airworthiness Specialist, attested to the
records as those kept in RRC’s ordinary course of business, as well as the delivery of a logbook
and warranty card with the originating helicopter. Def.’s SSOF (Doc. 105), Sain Decl.
11/6/2018 (Exh. “13”) at ¶ 8.
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Plaintiff reasserts its objection that the warranty does not apply to the subject engine.

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Compl. (Doc. 1-1) at ¶ 8; see also Def.’s SOF (Doc. 91), Exh. “6.”

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D.

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Med-Trans insured the Aircraft through Plaintiff Starr Indemnity and Liability

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Company (“Starr”) under policy number SASICOM60005611-02. Compl. (Doc. 1-1) at

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¶ 13. Med-Trans submitted an insurance claim to Starr that later indemnified Med-Trans

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“in an amount of $1,317,403.35 for the damage to the Aircraft.” Id. at ¶ 14. Plaintiffs

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claim that the incident was caused by the subject Turbine Wheel that failed causing the

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hard landing. See id. at ¶¶ 10–11. Although Plaintiffs also allege that the incident caused

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injury to the pilot, they do not allege that they themselves have incurred any loss as a

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result of personal injuries.11 See Compl. (Doc. 1-1). Both Med-Trans and Starr, as its

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subrogee, filed suit against RRC alleging strict liability, negligence, and breach of

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express and/or implied warranty claims. Id. at ¶¶ 15, 17–38.

The Instant Litigation

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III.

STANDARD OF REVIEW

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Summary judgment is appropriate when, viewing the facts in the light most

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favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,

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106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986), “there is no genuine issue as to any

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material fact and [] the moving party is entitled to a judgment as a matter of law.” Fed.

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R. Civ. P. 56(c). A fact is “material” if it “might affect the outcome of the suit under the

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governing law,” and a dispute is “genuine” if “the evidence is such that a reasonable jury

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could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at

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2510. Thus, factual disputes that have no bearing on the outcome of a suit are irrelevant

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to the consideration of a motion for summary judgment. Id. In order to withstand a

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motion for summary judgment, the nonmoving party must show “specific facts showing

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that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106

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As noted, supra, the warranty was delivered with the subject Turbine Wheel and is properly
admissible. See Def.’s SSOF (Doc. 105), Sain Decl. 11/6/2018 (Exh. “13”) at ¶ 8.
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It is undisputed that the pilot was the only occupant of the subject helicopter at the time
of the hard landing.

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S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Moreover, a “mere scintilla of evidence” does

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not preclude the entry of summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at

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2512. The United States Supreme Court also recognized that “[w]hen opposing parties

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tell two different stories, one of which is blatantly contradicted by the record, so that no

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reasonable jury could believe it, a court should not adopt that version of the facts for

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purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,

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380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007).

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IV.

ANALYSIS

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A.

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Defendant asserts that under Texas law, the economic loss doctrine bars Plaintiffs’

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tort claims. Def.’s Mot. for Summ. J. (Doc. 90) at 4–12. Plaintiffs argue that their tort

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claims should not be barred, because the helicopter, as well as medical equipment was

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damaged during the hard landing, and that this “other property” entitles Plaintiffs to

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recovery of all damages under a tort theory. Pls.’ Response (Doc. 97) at 5–10.

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Negligence and Strict Liability Claims

1. Economic Loss Doctrine

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“The economic loss doctrine applies to both negligence and strict liability claims.”

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Pugh v. General Terrazzo Supplies, Inc., 243 S.W.3d 84, 90 (Tex. App. 2007) (citations

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omitted); see also Helicopter Consultants of Maui, Inc. v. Thales Avionics, Inc., 2010 WL

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11565653 (N.D. Tex. April 8, 2010). “The economic loss rule applies when losses from

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an occurrence arise from failure of a product and the damage or loss is limited to the

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product itself.” Pugh, 243 S.W.3d at 90 (citing Equistar Chems., L.P. v. Dresser-Rand

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Co., 240 S.W.3d 864, 867 (Tex. 2007)); see also Sharyland Water Supply Corp. v. City of

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Alton, 354 S.W.3d 407, 415 (Tex. 2011) (same). “In such cases, recovery is generally

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limited to remedies grounded in contract (or contract-based statutory remedies), rather

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than tort.” Sharyland, 354 S.W.3d at 415 (citations omitted). In other words, the “loss is

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merely loss of value resulting from a failure of the product to perform according to the

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contractual bargain and therefore is governed by the Uniform Commercial Code.” Mid

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Continent Aircraft Corp. v. Curry County Spraying, 572 S.W.2d 308, 311 (Tex. 1978).

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“The distinction that the law has drawn between tort recovery for physical injuries

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and warranty recovery for economic loss is not arbitrary and does not rest on the ‘luck’ of

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one plaintiff in having an accident causing physical injury.” East River S.S. Corp. v.

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Transamerica Delaval, Inc., 476 U.S. 858, 871, 106 S.Ct. 2295, 2302, 90 L.Ed.2d 865

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(1986) (citations omitted). “The distinction rests, rather on an understanding of the

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nature of the responsibility a manufacturer must undertake in distributing his products.”

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Id. (citations omitted). “When a product injures only itself the reasons for imposing a tort

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duty are weak and those for leaving the party to its contractual remedies are strong.” Id.

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2. Lack of Privity
Plaintiffs urge that because there was no privity of contract between Med-Trans
and RRC, the economic loss rule does not apply. The Court disagrees.

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“Texas courts have applied the economic loss rule to preclude tort claims between

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parties who are not in contractual privity.” Sterling Chemicals, Inc. v. Texaco, Inc., 259

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S.W.3d 793, 797 (Tex. App. 2007) (listing cases). Indeed, over forty (40) years ago, the

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Texas Supreme Court held “that privity is not a requirement for a Uniform Commercial

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Code implied warranty action for economic loss.” Nobility Homes of Texas, Inc. v.

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Shivers, 557 S.W.2d 77, 81 (Tex. 1977). The Nobility Homes court went on to observe,

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“by holding that implied warranty remedies apply to economic injuries, we are consistent

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with, the well developed notion that the law of contract should control actions for purely

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economic losses and that the law of tort should control actions for personal injuries.” Id.,

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557 S.W.2d at 82 (quotations and citations omitted). More recently, the Texas Supreme

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Court reiterated its belief that parties’ economic losses in cases of defective products or

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failure to perform a contract “were more appropriately addressed through statutory

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warranty actions or common law breach of contract suits than tort claims[,]” and

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recognized that it had applied the economic loss rule “even to parties not in privity[.]”

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Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 418 (Tex. 2011). In

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light of this authority, the Court finds Plaintiffs’ argument that the lack of “commercial

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relationship between Med-Trans and RRC” does not bar application of the economic loss

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rule.

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3. “Other Property”

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Defendant argues that the helicopter is a single integrated product, and Plaintiffs

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have not suffered damage to “other property.” Def.’s Mot. for Summ. J. (Doc. 90) at 6–

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9. Plaintiffs counter that the failure of the subject engine resulted in damage to the

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helicopter, which is “other property.” Pls.’ Response (Doc. 97) at 7–10. Plaintiffs

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further assert that the medical equipment installed on the helicopter also represents “other

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property,” the loss of which is recoverable in tort. Id. at 7–8.

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a. Component parts

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“Distinguished from personal injury and injury to other property, damage to the

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product itself is essentially a loss to the purchaser of the benefit of the bargain with the

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seller.”

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S.W.2d 308, 312–13 (Tex. 1978). “In regard to application of the economic loss doctrine

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to losses arising out of a defective product when there is no occurrence of ‘personal

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injury’ or damage to ‘other property,’ Texas courts have rejected the argument that

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damage to a finished product caused by a defective component part constitutes damage to

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‘other property,’ so as to permit tort recovery for damage to the finished product.” Pugh

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v. General Terrazzo Supplies, Inc., 243 S.W.3d 84, 92 (Tex. App. 2007) (citing Murray

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v. Ford Motor Co., 97 S.W.3d 888, 891 (Tex. App. 2003)).

Mid Continent Aircraft Corp. v. Curry County Spraying Service, Inc., 572

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The Court finds Grizzly Mountain Aviation, Inc. v. Honeywell Int’l, Inc., 2013 WL

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5676069 (Tex. App. Oct. 17, 2013) instructive. In that case, “Grizzly filed a suit in Texas

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against Honeywell for products liability and warranty violations in connection with a

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helicopter crash that occurred in Oregon.” Id. at *1. “Honeywell manufactured the

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engine and various engine replacement components that had been installed in the accident

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helicopter.” Id. The Grizzly court described a situation similar to the instant case, as

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follows:

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Grizzly purchased the accident helicopter from its manufacturer, Kaman

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Aerospace Corporation (“Kamen”) in June 2004. According to Grizzly, it
also purchased a second helicopter from Kaman with a registration number
of N133KA. Grizzly alleges that at some point, prior to the accident, it
transferred the Honeywell-manufactured engine from the N133KA
helicopter to the accident helicopter.

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Id.

The court concluded that “Grizzly’s replacement of the original engine in the

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accident helicopter with another engine purchased from the same manufacturer did not

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make the helicopter “other property.”

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Transamerica Delaval, Inc., 476 U.S. 858, 867, 106 S.Ct. 2295, 2300, 90 L.Ed.2d 865

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(1986)). Moreover, the court found “no distinction between a replacement and original

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component part and conclude[d] that the engine constituted a component of the

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helicopter[.]” Grizzly Mountain, 2010 WL 5676069 at *7 (citing East River, 476 U.S. at

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867, 106 S.Ct. at 2300).

Id. at *7 (citing East River S.S. Corp. v.

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Plaintiffs suggest that Helicopter Consultants of Maui, Inc. v. Thales, Inc., 2010

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WL 11565653 (N.D. Tex. April 8, 2010) dictates the opposite result. The Court finds

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Thales distinguishable. In Thales, “Blue Hawaiian d[id] not claim that the replacement

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part (here, the engine) damaged the finished product (here, the helicopter), but rather vice

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versa.” Id. at *8. “Thus, Blue Hawaiian [wa]s not seeking to recover in tort against a

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component part manufacturer, but rather s[ought] the value of the replacement part from

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the manufacturer of the whole product.” Id.

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Here, Plaintiffs seek recovery for the finished product, the Aircraft, because of

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damage allegedly caused by the subject engine. This situation mirrors that of Grizzly,

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and the Court finds that the Aircraft is not “other property.” See also American Eagle

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Ins. Co. v. United Technologies Corp., 48 F.3d 142, 145 (5th Cir. 1995) (holding that

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“the aircraft hull did not qualify as ‘other property’ damaged by the defective engine

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component.”); Mid Continent Aircraft Corp., 572 S.W.2d 308 (plane crash caused by a

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failure to attach a gear bolt lock plate during an engine overhaul, cost of plane as a whole

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considered purely economic loss). The economic loss rule reflects a policy decision to

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base recovery for purely economic losses in contract. “Since all but the very simplest of

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machines have component parts, [a contrary] holding would require a finding of

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‘property damage’ in virtually every case where a product damages itself[,] . . . [and]

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would eliminate the distinction between warranty and strict products liability.” East

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River, 476 U.S. at 867, 106 S.Ct. at 2300 (citations omitted) (alterations in original).

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b. Medical equipment

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Plaintiffs assert that even if “the Helicopter is not considered ‘other property,’ the

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medical equipment installed thereon unquestionably does constitute ‘other property.’”

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Pls.’ Response (Doc. 97) at 8. In support of this argument, Plaintiffs refer to their

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controverting statement of facts which state that the hard landing “rendered the

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Helicopter and all components installed on the helicopter after purchase a total loss,

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including various emergency medical services equipment installed after the Helicopter

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was manufactured and sold.” Pls.’ CSOF (Doc. 98) at ¶ 34. Specifically, Plaintiffs refer

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to “Exhibit K” which is purported to be an “Executive Air Modification Invoice.” Id.

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The exhibit states that “[t]he estimate for the EMS system, avionics equipment,

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modification kits and paint for a Bell Helicopter Model 407 N515MT is as follows[.]”

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Pls.’ CSOF (Doc. 98), Executive Air Taxi Corp. Estimate 6/21/2004 (Exh. “K”)

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(emphasis added).

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Kilgore Expl., Inc. v. Apache Corp., No. 01-13-00347-CV, 2015 WL 505275, at *7 (Tex.

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App. Feb. 5, 2015) (citing Oxford English Dictionary, 867 (Oxford Univ. Press, 6th ed.,

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2007)). Plaintiffs have failed to provide any competent evidence that the installation was

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performed. See Fed. R. Civ. P. 56(e). As such, Plaintiffs cannot establish that “other

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property” was damaged. Accordingly, the Court finds that Plaintiffs’ tort claims are

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barred by the economic loss doctrine.

“An ‘estimate’ is ‘an approximate judgment’ or ‘calculation.’”

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B.

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Defendant urges that Plaintiffs claim for “Breach of Express and/or Implied

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Warranty” must fail, because (1) the express manufacturer’s warranty disclaims all other

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warranties and has expired; (2) the statute of limitations for any express or implied

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warranty under the Texas UCC has expired; (3) Plaintiffs failed to provide the required

Warranty Claims

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notice regarding any warranty claims; and (4) Plaintiffs are not consumers under the

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Texas Deceptive Trade Practices Act (“DPTA”). Def.’s Mot. for Summ. J. (Doc. 90) at

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12. Plaintiffs argue that RRC failed to provide evidence that the subject engine or

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“Turbine Wheel at issue in this case [were] subject to either form warranty, or that any

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such warranty was provided with the Turbine Wheel when it was purchased[.]” Pls’

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Response (Doc. 97) at 11. Plaintiffs further assert that RRC expressly denied providing

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the warranty to Med-Trans. Id.

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The Court has rejected Plaintiffs claims that the form warranties were
unauthenticated.

See Section II.C., supra.

Moreover, RRC’s Senior Airworthiness

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Specialist confirmed that the express manufacturer’s warranty card and logbook for the

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subject engine were delivered to Med-Trans.

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11/6/2018 (Exh. “13”) at ¶ 6. Mr. Sain further confirmed that the limited warranty was

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provided with the Third Stage Turbine Wheel. Id., Exh. “13” at ¶ 8. Each warranty

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contained an expiration term of twenty-four (24) months from the date of shipment from

15

the Rolls-Royce Authorized Distributor or one thousand (1,000) hours of operation,

16

whichever occurred first. Def.’s SOF (Doc. 91), Rolls-Royce Model 250-C40/C47 Series

17

New Original Equipment Engine Warranty and Disclaimer Summary (Exh. “7”) at 13 &

18

Rolls-Royce M250 Spare Module/Part Limited Warranty (Exh. “9”); see also Def.’s

19

SSOF (Doc. 105), Exh. “13” at ¶¶ 6, 8. The warranty for the subject engine also

20

disclaims “all other conditions and warranties, express or implied[.]” Def.’s SOF (Doc.

21

91), Exh. “7” at 13. Similarly, the subject Turbine Wheel warranty unequivocally stated

22

that it was “given expressly and in place of all other warranties, express or implied[.]”

23

Def.’s SOF (Doc. 91), Exh. “9” at 16. The warranty for the subject engine began on

24

January 15, 2005, more than seven (7) years prior to the hard landing. Def.’s SSOF

25

(Doc. 105), Exh. “13” at ¶ 6. Furthermore, the incident occurred over thirty (30) months

26

and over a thousand hours after the subject Turbine Wheel was installed in the subject

27

engine. See Def.’s SOF (Doc. 91), Aircraft Status Sheet 4/10/2012 (Doc. 91-1) at 6, 11 &

28

Post-Incident Photo. of Hobbs Meter (collectively Exh. “6”). Additionally, the Court

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Def.’s SSOF (Doc. 105), Sain Decl.

1

finds that Defendant’s Answer (Doc. 7) does not conflict with this evidence.12 The Court

2

further finds that the express warranties were expired at the time of the hard landing, and

3

any implied warranties were disclaimed. In light of this finding, the Court does not reach

4

the other arguments raised in the motion for summary judgment.13

5
6

V.

CONCLUSION

7

Based upon the foregoing, the Court finds that the economic loss doctrine

8

precludes Plaintiffs’ tort claims. The Court further finds that the express warranties

9

provided with the Aircraft and subject Turbine Wheel by their terms disclaimed any

10

implied warranties and were expired at the time of the hard landing. Accordingly, IT IS

11

HEREBY ORDERED that Plaintiffs’ Motion to Strike Defendant Rolls-Royce

12

Corporation’s Supplemental Statement of Facts in Support of its Reply in Support of its

13

Motion for Summary Judgment (Doc. 106) is DENIED.

14
15
16
17
18

IT IS FURTHER ORDERED that Defendant Rolls-Royce Corporation’s Motion
for Summary Judgment (Doc. 90) is GRANTED.
IT IS FURTHER ORDERED that this matter is DISMISSED WITH PREJUDICE.
The Clerk of the Court shall enter judgment and close the case.
Dated this 25th day of March, 2019.

19
20
21
22
23
24
25
26
27
28

12

Defendant’s Answer states in relevant part: “Denies that RRC or RRNA provided any
warranties for the Engine, except those that were delivered in writing at the time of first sale by
RRC, and alleges that any such warranties excluded any other express or implied warranties.”
Answer (Doc. 7) at ¶ 18. RRC’s Senior Airworthiness Specialist confirmed that the express
manufacturer’s warranty card and logbook for the subject engine were delivered to Med-Trans.
Def.’s SSOF (Doc. 105), Sain Decl. 11/6/2018 (Exh. “13”) at ¶ 6.
13

Plaintiffs seek relief pursuant to Rule 56(d), Federal Rule of Civil Procedure, “to
conduct further discovery as to RRC’s unpled affirmative defenses.” Pls.’ Response (Doc. 97) at
15. Because the Court does not reach the issue of the statute of limitations, Rule 56(d) relief is
not warranted, and Plaintiffs’ request is denied.

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