Escobar v. European Aeronautic Defence and Space Company et al
Filing
172
ORDER GRANTING DEFENDANT NEVADA HELICOPTER LEASING LLC'S MOTION FOR SUMMARY JUDGMENT (ECF No. 127 ) - Signed by JUDGE HELEN GILLMOR on 7/21/2016. " Defendant Nevada Helicopter Leasing LLC's Motion for Summary Judgment (ECF No. 127) is GRANTED. Defendant Nevada Helicopter Leasing LLC is TERMINATED from the case. Airbus Helicopters SAS is the only remaining defendant in this case." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
VIOLETA ESCOBAR, also known as
VIOLETA ESCOBAR CLINE,
Individually and as Personal
Representative for the ESTATE
OF NATHAN CLINE, Deceased,
Plaintiff,
vs.
NEVADA HELICOPTER LEASING LLC;
AIRBUS HELICOPTERS SAS,
formerly known as Eurocopter
Deutschland GmbH and
Eurocopter, S.A.S.,
Defendants.
______________________________
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NEVADA HELICOPTER LEASING LLC,
Cross-Claimant,
vs.
AIRBUS HELICOPTERS SAS,
formerly known as Eurocopter
Deutschland GmbH and
Eurocopter, S.A.S.,
CrossDefendant.
______________________________
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NEVADA HELICOPTER LEASING LLC,
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1
Civ. No. 13-00598 HG-RLP
Third-Party
Plaintiff,
vs.
AIRBUS HELICOPTERS, INC.,
formerly known as American
Eurocopter Corporation,
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Third-Party
Defendant.
______________________________
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ORDER GRANTING DEFENDANT NEVADA HELICOPTER LEASING LLC’S
MOTION FOR SUMMARY JUDGMENT (ECF No. 127)
On November 10, 2011, a 2010 Eurocopter France model
EC130 B4 helicopter, which was piloted by Nathan Cline,
crashed on the island of Molokai.
Cline and the four
passengers onboard the helicopter died as a result of the
crash.
Plaintiff Violeta Escobar, the widow of Nathan Cline, has
filed a First Amended Complaint against Airbus Helicopters
SAS, and Nevada Helicopter Leasing LLC, on behalf of herself
and as personal representative for the Estate of Nathan Cline.
Plaintiff’s Complaint asserts state law claims for
negligence and strict products liability against both
Defendant Airbus Helicopters SAS, the manufacturer of the
helicopter, and Defendant Nevada Helicopter Leasing LLC, the
owner of the helicopter.
2
Defendant Nevada Helicopter Leasing LLC owned the
helicopter at issue and leased it to Maui Helicopter
Consultants, doing business as Blue Hawaiian Helicopters.
Blue Hawaiian Helicopters was the employer of Nathan
Cline.
Blue Hawaiian Helicopters is not a party to the
lawsuit.
Defendant Nevada Helicopter Leasing LLC has filed a
Motion for Summary Judgment asserting that Plaintiff’s state
law causes of action are preempted by federal law.
Defendant
Nevada Helicopter Leasing LLC argues that pursuant to
preemptive federal law, it is immune from liability because it
did not have actual possession or control of the helicopter,
but merely leased it to Blue Hawaiian Helicopters.
Defendant Nevada Helicopter Leasing LLC’s Motion for
Summary Judgment (ECF No. 127) is GRANTED.
THE PARTIES
Airbus Group, S.E.,1 is a parent company that coordinates
a number of business involving aviation and is headquartered
in the Netherlands.
Airbus Group, S.E. was never served with
the First Amended Complaint and was dismissed from the case.
1
Airbus Group, S.E. is formerly known as European
Aeronautic Defence and Space Company (EADS, N.V), and Airbus
Group, N.V.
3
Defendant Airbus Helicopters SAS2 is primarily owned by
Airbus Group, S.E., and is responsible for manufacturing of
its helicopters.
Defendant Airbus Helicopters SAS has its
principal place of business in France.
Defendant Airbus Helicopters SAS designed, manufactured,
and tested the EC130 B4 model helicopter at issue in this
case.
(Defendant Airbus Helicopters SAS’s Answer at ¶¶ 14-15,
ECF No. 60).
Defendant Airbus Helicopters SAS sold the
helicopter at issue in this case to Airbus Helicopters, Inc.
in early 2010.
(Id. at ¶¶ 15-16; Airbus Helicopters, Inc.’s
Answer at ¶ 9-10, ECF No. 63).
Third-Party Defendant Airbus Helicopters, Inc.3 is a
Delaware corporation with two industrial sites in the United
States and its principal place of business in Texas.
Airbus
Helicopters, Inc. is wholly-owned by Airbus Group, Inc., which
is a subsidiary of Airbus Group, S.E.
(Airbus Helicopters
Inc.’s Corporate Disclosure Statement, ECF No. 65).
2
Airbus Helicopters SAS is formerly known as Eurocopter,
S.A.S., and as Eurocopter Deutschland GmbH.
3
Airbus Helicopters, Inc. is formerly known as American
Eurocopter Corporation.
4
Airbus Helicopters, Inc., in this instance, is the entity
responsible for the sale and distribution of Airbus
helicopters in the United States.
Airbus Helicopters, Inc.
bought the EC130 B4 helicopter at issue in this case from
Airbus Helicopters SAS in early 2010.
Inc.’s Answer at ¶ 10, ECF No. 63).
(Airbus Helicopters,
On or about March 29,
2010, Airbus Helicopters, Inc. sold the EC130 B4 helicopter to
Nevada Leasing LLC.
(Id. at ¶ 11; Nevada Helicopter Leasing
LLC’s Answer at ¶ 9, ECF No. 39).
Defendant Nevada Helicopter Leasing LLC (“Nevada
Leasing”) is a limited liability company registered in the
State of Nevada.
Nevada Leasing is wholly owned by Blue
Hawaiian Holdings, LLC.
(Nevada Leasing’s Corporate
Disclosure Statement, ECF No. 29).
Nevada Leasing was formed to take advantage of federal
and state tax incentives for entities established to purchase
and lease aircrafts.
(Woods Aff. at ¶¶ 7, 9, ECF No. 128-2;
Chevalier Depo. at p. 49, attached as Ex. 5 to Pla.’s CSF, ECF
No. 142-7).
On or about March 29, 2010, Nevada Leasing purchased the
EC130 B4 helicopter at issue in this case from Airbus
Helicopters, Inc.
(Airbus Helicopters, Inc.’s Answer at ¶ 11,
5
ECF No. 63;
Nevada Leasing’s Answer at ¶ 9, ECF No. 39).
Nevada Leasing leased the helicopter at issue to Helicopter
Consultants of Maui, Inc., doing business as Blue Hawaiian
Helicopters.
Helicopter Consultants of Maui, Inc. doing business as
Blue Hawaiian Helicopters (“Blue Hawaiian”) is a business
licensed in the State of Hawaii to conduct helicopter tour
operations.
Blue Hawaiian leased the helicopter at issue from
Nevada Leasing pursuant to a long-term lease agreement.
Blue Hawaiian employed Nathan Cline as a commercial
helicopter pilot to conduct helicopters tours of Hawaii.
On November 10, 2011, Nathan Cline was fatally injured
when he piloted the EC130 B4 helicopter at issue when it
crashed in mountainous terrain on the island of Molokai.
Plaintiff Violeta Escobar, also known as Violeta Escobar
Cline, is the widow of Nathan Cline. She has filed suit on
behalf of herself individually and as the personal
representative for the estate of Nathan Cline.
PROCEDURAL HISTORY
6
On November 6, 2013, Plaintiff filed a Complaint.
(ECF
No. 1).
On July 17, 2015, Plaintiff filed a FIRST AMENDED
COMPLAINT against three entities:
(1)
Airbus Group, S.E., the parent company;
(2)
Airbus Helicopters SAS, the manufacturer of the
helicopter; and
(3)
Nevada Helicopter Leasing LLC, the owner and lessor
of the helicopter at issue.
(ECF No. 32).
On October 27, 2015, Nevada Helicopter Leasing LLC filed
a THIRD PARTY COMPLAINT against Airbus Helicopters, Inc., the
seller of the helicopter.
(ECF No. 56).
On November 10, 2015, Nevada Helicopter Leasing LLC filed
a CROSSCLAIM against the co-defendant Airbus Helicopters SAS,
the helicopter manufacturer.
(ECF No. 68).
On March 10, 2016, Plaintiff filed a NOTICE OF DISMISSAL
as to her claims against Airbus Group, S.E., the parent
company headquartered in the Netherlands, who was never served
with the First Amended Complaint.
(ECF No. 103).
Plaintiff’s First Amended Complaint remained against
Defendant Airbus Helicopters SAS, the helicopter manufacturer,
and Defendant Nevada Helicopter Leasing LLC, the owner/lessor
of the helicopter.
7
On April 29, 2016, Defendant Nevada Helicopter Leasing
LLC filed a MOTION FOR SUMMARY JUDGMENT against Plaintiff
along with a CONCISE STATEMENT OF FACTS.
(ECF Nos. 127, 128).
On May 12, 2016, Plaintiff requested an extension of time
to file her Opposition to Defendant Nevada Helicopter Leasing
LLC’s Motion for Summary Judgment.
(ECF No. 131).
On the same date, the Court issued a Minute Order
granting Plaintiff’s request for an extension of time and also
provided Defendant Nevada Helicopter Leasing LLC with an
extension of time to file its Reply.
(ECF No. 132).
On May 23, 2016, Plaintiff filed her Memorandum in
Opposition and Plaintiff’s Concise Statement of Material Facts
in Opposition.
(ECF Nos. 136, 137).
On May 25, 2016, Plaintiff filed her Corrected Memorandum
in Opposition and her Concise Statement of Material Facts in
Opposition.
(ECF Nos. 142, 143).
incorrectly filed submissions.
Plaintiff withdrew her
(ECF No. 147).
Also on May 25, 2016, both Defendant Airbus Helicopters
SAS and Third-Party Defendant Airbus Helicopters, Inc. filed a
STATEMENT OF NO POSITION as to Nevada Helicopter Leasing LLC’s
Motion for Summary Judgment.
(ECF No. 141).
On June 6, 2016, Defendant Nevada Helicopter Leasing LLC
filed its REPLY.
(ECF No. 149).
8
On June 20, 2016, the Court held a hearing on Defendant
Nevada Helicopter Leasing LLC’s Motion for Summary Judgment.
BACKGROUND
On April 2, 2001, Defendant Nevada Helicopter Leasing LLC
(“Nevada Leasing”) was formed by its original two Members and
Managers David J. Chevalier and David B. Griffin as a limited
liability company in the State of Nevada.
(Affidavit of R.
Glen Woods (“Woods Aff.”) at ¶¶ 1-4, attached as Ex. 1 to
Def.’s Concise Statement of Fact (“CSF”), ECF No. 128-2).
David J. Chevalier was the majority owner of Defendant
Nevada Leasing and David B. Griffin was the minority owner.
(Operating Agreement for Nevada Leasing, attached as Ex. 2 to
Pla.’s CSF, ECF No. 142-4).
Defendant Nevada Leasing did not have any employees.
(Woods Aff. at ¶ 10, ECF No. 128-2).
Defendant Nevada Leasing purchased helicopters that were
leased to Helicopter Consultants of Maui, Inc., doing business
as Blue Hawaiian Helicopters (“Blue Hawaiian”).
(Woods Aff.
at ¶ 8, ECF No. 128-2; see Checks from Nevada Leasing to
American Eurocopters, attached as Ex. 19 to Pla.’s CSF, ECF
No. 142-21).
9
David J. Chevalier, the majority owner of Defendant
Nevada Leasing, was also a majority owner of Blue Hawaiian and
served as Blue Hawaiian’s Chief Executive Officer.
(Deposition of David. J. Chevalier (“Chevalier Depo.”) at p.
53, attached as Ex. 5 to Pla.’s CSF, ECF No. 142-7).
David B. Griffin, the minority owner of Defendant Nevada
Leasing, owned the remaining percentages of Blue Hawaiian and
served as Blue Hawaiian’s Chief Operating Officer.
(Id.)
On March 17, 2010, Defendant Nevada Leasing purchased the
Subject Helicopter, a Eurocopter EC 130 B4 with Serial Number
4909 and Federal Aviation Administration Registration No.
N11QV (“Subject Helicopter”) from Third-Party Defendant Airbus
Helicopters, Inc., formerly known as American Eurocopter
Corporation.
(Invoice Number 88101401 from American
Eurocopter Corporation to Nevada Helicopter dated March 17,
2010, attached as Ex. 4 to Def.’s CSF, ECF No. 128-5).
Defendant Nevada Leasing was listed as the registered
owner of the Subject Helicopter on the Federal Aviation
Administration Registration Certificate.
(Federal Aviation
Administration Certification issued on April 16, 2010, for
Eurocopter EC130B4 with Registration Number 11QV, attached as
Ex. 3 to Def.’s CSF, ECF No. 128-4).
10
Defendant Nevada Leasing leased the Subject Helicopter to
Blue Hawaiian pursuant to a Master Helicopter Lease Agreement
with an effective date of March 29, 2010, and an expiration
date of March 29, 2015.
(Master Helicopter Lease Agreement
and Master Lease Schedule, attached as Ex. 5 to Def.’s CSF,
ECF No. 128-6).
The Master Lease Agreement was Amended on
June 1, 2011 with an effective date of June 1, 2011 and an
expiration date of June 1, 2016.
(Amended and Restated Master
Helicopter Lease Agreement, attached as Ex. 6 to Def.’s CSF,
ECF No. 128-7).
The Lease Agreement contained a provision stating that
the Subject Helicopter “will at all times be and remain in the
possession and control of” Blue Hawaiian.
(Id. at ¶ 10, ECF
No. 128-7).
The Lease Agreement also provided that Blue Hawaiian
would be responsible for all maintenance, repairs, and
inspections for the Subject Helicopter.
(Id. at ¶ 11).
David J. Chevalier and David B. Griffin owned both
Defendant Nevada Leasing and Blue Hawaiian at the time of the
Master and Amended Master Lease Agreements.
(Master
Helicopter Lease Agreement at p. 1, ¶ E., ECF No. 128-6;
Amended and Restated Mater Helicopter Lease Agreement at p. 1,
¶ F., attached as Ex. 6 to Def.’s CSF, ECF No. 128-7).
11
Nevada Leasing was formed to take advantage of federal
and state tax incentives for entities established to purchase
and lease aircrafts.
(Woods Aff. at ¶¶ 7, 9, ECF No. 128-2;
Chevalier Depo. at p. 49, attached as Ex. 5 to Pla.’s CSF, ECF
No. 142-7).
Nathan Cline was a commercial helicopter pilot and was
hired by Blue Hawaiian on July 1, 2011.
(National
Transportation Safety Board Factual Report Aviation,, NTSB ID:
WPR12MA034, attached as Ex. 8 to Def.’s CSF at p. 1a, ECF No.
128-9).
Approximately four months later, on the morning of
November 10, 2011, Cline piloted the Subject Helicopter.
at p. 1).
(Id.
The Subject Helicopter departed from Kahului
Airport, on the island of Maui, with Cline as the pilot and
four passengers, for a scheduled 1 hour and ten minute
roundtrip sightseeing flight.
(Id.)
At approximately 12:14 p.m., the Subject Helicopter
“collided with mountainous terrain near Pukoo, Hawaii, on the
island of Molokai.”
fatally injured.
(Id.)
Cline and the four passengers were
(Id.)
STANDARD OF REVIEW
12
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
To
defeat summary judgment there must be sufficient evidence that
a reasonable jury could return a verdict for the nonmoving
party. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916
(9th Cir. 1997).
The moving party has the initial burden of “identifying
for the court the portions of the materials on file that it
believes demonstrate the absence of any genuine issue of
material fact.” T.W. Elec. Serv., Inc. v. Pacific Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The
moving party, however, has no burden to negate or disprove
matters on which the opponent will have the burden of proof at
trial.
The moving party need not produce any evidence at all
on matters for which it does not have the burden of proof.
Celotex, 477 U.S. at 325.
The moving party must show,
however, that there is no genuine issue of material fact and
that he or she is entitled to judgment as a matter of law.
That burden is met by pointing out to the district court that
there is an absence of evidence to support the non-moving
party’s case.
Id.
13
If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the
absence of probative evidence tending to support its legal
theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d
270, 282 (9th Cir. 1979).
The opposing party must present
admissible evidence showing that there is a genuine issue for
trial. Fed. R. Civ. P. 56(e); Brinson v. Linda Rose Joint
Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).
“If the evidence
is merely colorable, or is not significantly probative,
summary judgment may be granted.” Nidds, 113 F.3d at 916
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986)).
The court views the facts in the light most favorable to
the non-moving party.
State Farm Fire & Casualty Co. v.
Martin, 872 F.2d 319, 320 (9th Cir. 1989).
Opposition
evidence may consist of declarations, admissions, evidence
obtained through discovery, and matters judicially noticed.
Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324.
The opposing
party cannot, however, stand on its pleadings or simply assert
that it will be able to discredit the movant's evidence at
trial.
630.
Fed. R. Civ. P. 56(e); T.W. Elec. Serv., 809 F.2d at
The opposing party cannot rest on mere allegations or
denials.
Fed. R. Civ. P. 56(e); Gasaway v. Northwestern Mut.
14
Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994).
When the
non-moving party relies only on its own affidavits to oppose
summary judgment, it cannot rely on conclusory allegations
unsupported by factual data to create an issue of material
fact.
Hansen v. United States, 7 F.3d 137, 138 (9th Cir.
1993); see also National Steel Corp. v. Golden Eagle Ins. Co.,
121 F.3d 496, 502 (9th Cir. 1997).
ANALYSIS
On November 10, 2011, Nathan Cline was fatally injured
when the helicopter he piloted, Eurocopter EC 130 B4 with
Serial Number 4909 and Federal Aviation Administration
Registration No. N11QV (“Subject Helicopter”), crashed in
mountainous terrain on the island of Molokai.
Plaintiff Violeta Escobar, also known as Violeta Escobar
Cline, on behalf of herself individually, and on behalf of the
Estate of her deceased husband Nathan Cline (“Plaintiff”)
filed the First Amended Complaint as a result of the accident.
Plaintiff’s First Amended Complaint asserts state law
tort claims against Defendant Nevada Helicopter Leasing LLC
(“Nevada Leasing”) which was the owner and lessor of the
Subject Helicopter.
15
Defendant Nevada Leasing asserts that Plaintiff’s state
law tort claims are preempted by a provision of the Federal
Aviation Act entitled “Limitation of Liability,” codified at
49 U.S.C. § 44112.
I.
Preemption
The preemption doctrine is rooted in the Supremacy Clause
of the United States Constitution.
2.
U.S. CONST. ART. VI., cl.
Pursuant to the Supremacy Clause, the United States
Congress has the power to preempt state law.
Montalvo v.
Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007).
Federal preemption may be express or implied.
Whistler
Invs., Inc. v. Depository Trust & Clearing Corp., 539 F.3d
1159, 1164 (9th Cir. 2008).
Congress’ intent may be
explicitly stated, or expressed, in the statute’s language or
implicitly contained in its structure and purpose.
Cipollone
v. Liggett Group, Inc., 505 U.S. 504, 516 (1992).
A.
Express Preemption
There is no express preemption in this case.
Aviation Act has no express preemption clause.
The Federal
Martin v.
Midwest Exp. Holdings, Inc., 555 F.3d 806, 808 (9th Cir.
2009).
16
Even without an express provision for preemption, state
law must yield to federal law if preemption is implied.
B.
Implied Preemption
Implied preemption exists in two different circumstances:
field preemption and conflict preemption.
Indus. Truck Ass’n,
Inc. v. Henry, 125 F.3d 1305, 1309 (9th Cir. 1997).
1.
Field Preemption
Field preemption is not at issue in this case.
Field
preemption occurs when federal law so thoroughly occupies the
legislative field so as to indicate that it was Congress’
intent to occupy a given field to the exclusion of state law.
Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141,
153 (1982).
The Ninth Circuit Court of Appeals has found in
several instances that the Federal Aviation Act and its
regulations do not completely preempt the field to exclude
state law claims for injuries relating to air travel.4
4
See
In her Opposition to the Motion for Summary Judgment,
Plaintiff argues that her causes of action are not subject to
field preemption pursuant to Sikkelee v. Precision Airmotive
Corp., 822 F.3d 680, 693 (3d Cir. 2016). Field preemption is
not an issue in this case and Sikkelee does not apply.
(Def.’s Reply at p. 10, ECF No. 149).
17
Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1004 (9th
Cir. 2013); Martin, 555 F.3d at 808.
2.
Conflict Preemption
Conflict preemption arises when compliance with both
federal and state law is impossible or when a state law stands
as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress in enacting the federal
law.
Wyeth v. Levine, 555 U.S. 555, 563 (2009);
see Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149,
1152 (9th Cir. 2000).
Conflict preemption exists in this case.
Plaintiff’s
common law tort causes of action interfere with the intent of
Congress in enacting 49 U.S.C. § 44112 of the Federal Aviation
Act.
The legislative history of the statute established that
the federal law’s purpose and objective is to protect
financiers, owners, and long-term lessors of aircraft from
liability when they were not in actual possession or control
of the aircraft.
II.
Cipollone, 505 U.S. at 516.
The Intent and Purpose of the Limitations of Liability
Provision of the Federal Aviation Act, 49 U.S.C. § 44112
18
The Court must examine the federal statute as a whole and
identify its purpose and intended effects when determining if
the state law stands as an obstacle to the intent of the
federal law.
Crosby v. Nat’l Foreign Trade Council, 530 U.S.
363, 373 (2000).
49 U.S.C. § 44112 is a section of the Federal Aviation
Act entitled “Limitation of Liability.”
49 U.S.C. § 44112.
The statute, codified at, 49 U.S.C. § 44112, provides as
follows:
§ 44112.
Limitation of liability
(a) Definitions.–In this section–
(1)
“lessor” means a person leasing for at
least 30 days a civil aircraft,
aircraft engine, or propeller.
(2)
“owner” means a person that owns a
civil aircraft, aircraft engine, or
propeller.
(3)
“secured party” means a person having
a security interest in, or security
title to, a civil aircraft, aircraft
engine, or propeller under a
conditional sales contract, equipment
trust contract, chattel or corporate
mortgage, or similar instrument.
(b) Liability.–A lessor, owner, or secured party
is liable for personal injury, death, or property
loss or damage on land or water only when a civil
aircraft, aircraft engine, or propeller is in the
actual possession or control of the lessor, owner,
or secured party, and the personal injury, death, or
property loss or damage occurs because of–
19
(1)
the aircraft, engine, or propeller; or
(2)
the flight of, or an object falling
from, the aircraft, engine, or
propeller.
49 U.S.C. § 44112 (emphasis added).
The plain language of the “Limitation of Liability”
provision of the Federal Aviation Act states that owners and
lessors of aircraft cannot be held liable for personal injury,
death, and property damages unless the secured party, owner,
or lessor was “in the actual possession or control” of the
aircraft.
A.
49 U.S.C. § 44112(b).
Legislative History of 49 U.S.C. § 44112
The current statute, 49 U.S.C. § 44112, was first enacted
in 1948 as Section 504 of the Civil Aeronautics Act (1948),
which stated:
No person having a security interest in, or security
title to, any civil aircraft ..., and no lessor of
any such aircraft under a bona fide lease of thirty
days or more, shall be liable by reason of such
interest or title, or by reason of his interest as
lessor or owner of the aircraft so leased, for any
injury to or death of persons, or damage to or loss
of property, on the surface of the earth (whether on
land or water) caused by such aircraft or by the
dropping or falling of an object therefrom, unless
such aircraft is in the actual possession or control
of such person at the time of such injury, death,
damage, or loss.
Pub. L. No. 482-656, 62 Stat. 470 (1948).
20
The 1948 House Report for the Bill explained the
intention for the law was to facilitate the financing for
aircraft purchases in order to allow owners and lessors of
aircraft to be shielded from liability when they were not in
actual possession or control of the aircraft.
H.R. Rep. No.
80-2091, at 1 (1948), reprinted in 1948 U.S.C.C.A.N. 1836.
The 1948 House Report stated that the federal law was a
direct response to the Uniform Aeronautics Act, which was in
force in ten states and in Hawaii in 1948.
The Uniform
Aeronautics Act had declared that the owner of every aircraft
was “absolutely liable” for injuries caused by the flight of
the aircraft, regardless of the owner’s degree of control of
the aircraft.
H.R. Rep. No. 80-2091, at 1 (1948), reprinted
in 1948 U.S.C.C.A.N. 1836.
The House Report explained that the new federal law was
intended to make it clear that an owner or lessor of an
aircraft would not be liable unless it had actual possession
or control over the aircraft.
The House Report explained the
intent of the Bill as follows:
Provisions of present Federal and State law might be
construed to impose upon persons who are owners of
aircraft for security purposes only, or who are
lessors of aircraft, liability for damages caused by
the operation of such aircraft even though they have
no control over the operation of the aircraft. This
bill would remove this doubt by providing clearly
21
that such persons have no liability under such
circumstances.
H.R. Rep. No. 80-2091, at 1 (1948), reprinted in 1948
U.S.C.C.A.N. 1836 (emphasis added).
In 1958, the Civil Aeronautics Act was reenacted as the
Federal Aviation Act, which created the Federal Aviation
Agency. Federal Aviation Act of 1958, Pub. L. 85-726, § 504,
72 Stat. 731 (1958); S. Rep. No. 85-1811 (1958); H.R. Rep. No.
85-2556 (1958).
Section 504 of the Civil Aeronautics Act was
unchanged and it was codified as part of the Federal Aviation
Act at 49 U.S.C. § 1404.
Pub. L. 85-726, § 504, 72 Stat. 731
(1958).
The following year Section 504 of the Federal Aviation
Act was modified to add the terms “aircraft engine, or
propeller” to limit the liability for owners and lessors of an
aircraft’s engine and propellers in addition to owners of
civil aircraft.
Pub. L. No. 86-81 § 2, 73 Stat. 180; 49
U.S.C. § 1404 (1959).
The Senate Report for the Bill explained that there was
an “extreme shortage of available capital” for aircraft and
aircraft parts and that the purpose of the bill was to
facilitate the financing for aircrafts, as well as aircraft
engines and propellers, by expanding the full protection given
to lessors of the aircrafts.
S. Rep. No. 86-221 (1959); see
22
also H.R. Rep. No. 86-445 (1959); 86 Cong. Rec. S. 1368
(1959).
On March 23, 1959, J. Donald Durand, Assistant General
Counsel for the Air Transportation Association testified at a
hearing before the United States Senate Subcommittee of the
Committee on Interstate and Foreign Commerce regarding the
Limitation on Liability provision of the Federal Aviation Act.
(See Financing of New Jet and Turboprop Aircraft: Hearing on
S. 1368 Before the Subcomm. On Interstate and Foreign
Commerce, Mar. 23, 1959, 86th Cong. 1 (1959)).
Durand
testified that it was the intention for the Federal Aviation
Act’s Limitation on Liability provision to preempt state law.
(Id. at p. 15).
At the hearing, Senator Morton asked if an
injured party could seek relief in state court pursuant to a
state law that imposes absolute liability on owners, and
Durand testified: “The liability provisions of section 504
apply–they apply whether you are in a State or Federal court.
They are the supreme law of the land on this point.”
(Id.)
In 1994, the statute was restructured to provide
definitions for “lessor”, “owner” and “secured party” as part
of a revision to Title 49 of the U.S. Code and recodified in
its present form as 49 U.S.C. § 44112(b).
23
The definitions provide that financiers, owners, and
lessors of aircraft with leases of more than 30 days are
shielded from liability when the lessor, owner, or secured
party was not in actual possession or control of the aircraft.
B.
49 U.S.C. § 44112 Preempts Plaintiff’s State Law
Claims Against the Defendant Nevada Leasing as the
Owner/Lessor of the Subject Helicopter
1.
Plaintiff’s State Law Causes of Action
Plaintiff’s First Amended Complaint alleges strict
product liability and negligence causes of action against
Defendant Nevada Leasing as a result of the November 10, 2011
crash of the Subject Helicopter.
(First Amended Complaint at
¶¶ 49-77, ECF No. 32).5
Plaintiff’s state law causes of action are preempted by
49 U.S.C. § 44112 of the Federal Aviation Act.
The United
States Supreme Court has explained that a federal law preempts
state law based on conflict preemption where “under the
circumstances of [a] particular case, [the state law] stands
5
Plaintiff also asserts a state law claim pursuant to the
doctrine of res ipsa loquitur. (First Amended Complaint at ¶¶
78-79, ECF No. 32). The doctrine of res ipsa loquitur is a
manner in which negligence and strict liability may be proven,
but it is not an independent cause of action. Windward
Aviation, Inc. v. Rolls-Royce Corp., Civ. No. 10-00542 ACKBMK, 2011 WL 2670180, *20 (D. Haw. July 6, 2011) (citing
Rodriguez v. Gen. Dynamics Armament and Tech. Prods., Inc.,
696 F.Supp.2d 1163, 1182 (D. Haw. 2010)).
24
as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.”
312 U.S. 52, 67 (1941).
Hines v. Davidowitz,
Plaintiff’s claims stand as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress in enacting the
Limitations on Liability Provision of the Federal Aviation
Act, 49 U.S.C. § 44112, that limits liability for financiers,
owners, and long-term lessors of aircrafts.
Under Hawaii law, a successful negligence claim must
satisfy the following four elements:
(1)
a duty, or obligation, recognized by the law,
requiring the actor to conform to a certain standard
of conduct, for the protection of others against
unreasonable risks;
(2)
a failure on the actor’s part to conform to the
standard required;
(3)
a reasonably close causal connection between the
conduct and the resulting injury; and,
(4)
actual loss or damage resulting to the interests of
another.
Ono v. Applegate, 612 P.2d 533, 538-39 (Haw. 1980).
There is a question if Hawaii state law would impose
liability on the lessor of an aircraft pursuant to the holding
in Stewart v. Budget Rent-a-Car Corp., 470 P.2d 240 (Haw.
1970).
The holding in Stewart provided that there may be
liability on a lessor for harm caused by a defective product
25
even if the lessor was not in actual possession or control of
the product at the time of the accident.
Id. at 243.
The
facts of the Stewart case are distinguishable as protections
for the financing for aircraft and the nature of the leases
for aircraft is not similar to the nature of car rental
agencies.
Car rental agencies are generally in charge of the
maintenance and care of the vehicles.
The facts of this case
establish that Nevada Leasing was not in charge of the
maintenance and care of the helicopter, Blue Hawaiian was
responsible for such actions.
There is also a question if Hawaii state law would impose
liability pursuant to the holding of the Hawaii Supreme Court
in Acoba v. Gen. Tire, Inc., 986 P.2d 288, 305 (Haw. 1999).
In Acoba, the Hawaii Supreme Court held an owner or lessor may
be liable for negligence as a result of a product that it did
not manufacture if the owner or possessor knew or had reason
to know that the product was defective or there was a
foreseeable risk of harm.
Id.
Imposing liability on a financier, owner, or a lessor of
an aircraft in such circumstances would interfere with the
objectives and intentions of Congress.
at 373.
See Crosby, 530 U.S.
The plain language of the statute establishes that 49
U.S.C. § 44112 was enacted to limit the liability of a secured
26
party, owner, or lessor of aircraft pursuant to state law.
See Hines, 312 U.S. at 67; Wyeth, 555 U.S. at 563.
2.
Plaintiff’s State Law Causes of Action Interfere
with the Full Purpose and Objectives of the Federal
Aviation Act’s Limitation of Liability Provision, 49
U.S.C. § 44112
The legislative history of the Limitations on Liability
provision in the Federal Aviation Act is clear.
It was
intended to preempt state laws that impose liability on the
financiers, owners, and lessors of aircraft who were not in
actual possession or control of the aircraft.
Interpretation of 49 U.S.C. § 44112(b) can be found in Lu
v. Star Marianas Air, Inc., 2015 WL 2265464, *4 (D. N.M.I. May
12, 2015).
In Lu, the court held that federal law preempts
common law negligence claims against an aircraft lessor.
Other courts considering the issue have agreed and found
conflict preemption applies to preclude a plaintiff from
bringing similar state law causes of action.
In In re
Lawrence W. Inlow Accident Litigation, an individual was
killed when a helicopter rotor blade hit him after he
disembarked from the helicopter.
Ind. Feb. 7, 2001).
2001 WL 331625, *1 (S.D.
The victim’s estate brought negligence
27
claims against the lessor of the helicopter who did not have
control of the helicopter.
Id. at *2.
The federal district
court in Indiana found that 49 U.S.C. § 44112 preempted the
negligence claims against the lessor of the helicopter.
Id.
at *14.
The federal district court in In re Lawrence Inlow
explained that the plain language of 49 U.S.C. § 44112 along
with its legislative history demonstrated that it “was plainly
intended, and plainly written, to preempt such state statutes
and parallel common law claims” that impose liability on
aircraft owners and lessors who were not in actual possession
or control of the aircraft.
2001 WL 331625, *14-*15 (S.D.
Ind. Feb. 7, 2001).
In Matei v. Cessna Aircraft Co., 1990 WL 43351, *5 (N.D.
Ill. Mar. 30, 1990), the federal district court in Illinois
held that 49 U.S.C. § 1404, the predecessor to 49 U.S.C. §
44112, preempted conflicting state law and granted summary
judgment in favor of an owner/lessor of an aircraft who did
not have possession and control of the aircraft pursuant to
the terms of its lease.
Id.
The district court relied, in
part, on dicta from the Fifth Circuit Court of Appeals’
decision in Rogers v. Ray Gardner Flying Service Inc., 435
F.2d 1389, 1394 (5th Cir. 1970), which stated that 49 U.S.C. §
28
1404 “appears clearly and forthrightly to preempt any contrary
state law which might subject holders of security interests to
liability for injuries so incurred.”
The Seventh Circuit Court of Appeals affirmed the
Illinois district court’s decision granting summary judgment
in favor of the owner/lessor of the aircraft in Matei v.
Cessna Aircraft Co., 35 F.3d 1142, 1144-45 (7th Cir. 1994).
The appeals court did not address the district court’s
preemption finding, but it ruled on an alternative finding
under state law that the owner/lessor of the aircraft could
not be held liable for the accident because the lessee had the
exclusive possession and control of the aircraft.
Id.
The Superior Court of Connecticut has also found that 49
U.S.C. § 44112 preempts state law.
Mangini v. Cessna Aircraft
Co., 40 Conn. L. Rptr. 470, *5 (Conn. Super. Ct. Dec. 7,
2005).
The Superior Court of Connecticut relied on several
federal courts’ interpretations of 49 U.S.C. § 44112,
explaining that “no federal court had held, as of 2001, that
49 U.S.C. § 44112 or its predecessor failed to preempt
contrary state law.”
Mangini, 40 Conn. L. Reprt. 470 at *5.
A review of the legislative history of the federal
statute along with the decisions in Lu, In re Lawrence Inlow,
Rogers, Matei, and Mangini demonstrates that Plaintiff
29
Escobar’s state law causes of action are subject to conflict
preemption.
A minority of state law courts have found that conflict
preemption may not apply to some state law causes of action.
Vreeland v. Ferrer, 71 So.3d 70, 83-84 (Fla. 2011); Storie v.
Southfield, 282 N.W.2d 417, 418 (Mich. App. 1979)).
The
dissent in Vreeland recognized that the Florida court’s
decision was the minority view and stated that the Florida
court’s interpretation of the federal statute “defies reality”
and found that the majority’s view was inconsistent with the
plain meaning of the statute.
Id. at 85-86 (Ploston, J.,
dissenting).
The minority view expressed in Vreeland is unpersuasive.
It is inconsistent with the legislative history of 49 U.S.C. §
44112 and contrary to the holdings of the majority of courts
who have considered the issue.
Plaintiff’s state law causes of action stand as an
obstacle to the purpose and objectives of Congress in the
Limitation of Liability provision of the Federal Aviation Act
and are preempted.
III.
See Crosby, 530 U.S. at 373.
The Federal Aviation Act’s Limitation of Liability
Provision, 49 U.S.C. § 44112, Bars Plaintiff’s
Claims Against Nevada Helicopter Leasing LLC
30
Pursuant to 49 U.S.C. § 44112, Defendant Nevada Leasing
cannot be liable for the accident involving the Subject
Helicopter on November 10, 2011, unless it was in the “actual
possession or control” of the Subject Helicopter at the time
the injury was sustained.
49 U.S.C. § 44112; In re Hudson
River Mid-Air Collision, 2012 WL 646005, *3 (D.N.J. Feb. 28,
2012); Esheva v. Siberia Airlines, 499 F.Supp.2d 493, 499 n.4
(S.D.N.Y. 2007) (stating that a lessor is “absolutely immune”
from liability unless the aircraft was in the actual
possession or control of the lessor at the time of the
injury).
The Parties agree that Defendant Nevada Leasing was the
owner and lessor of the Subject Helicopter.
On March 17,
2010, Defendant Nevada Leasing purchased the Subject
Helicopter.
(Invoice from American Eurocopter Corporation to
Nevada Leasing dated March 17, 2010, attached as Ex. 4 to
Def.’s CSF, ECF No. 128-5).
Defendant Nevada Leasing was the
registered owner of the Subject Helicopter.
(Federal Aviation
Administration Certification issued on April 16, 2010, for
Eurocopter EC130B4 with Registration Number 11QV, attached as
Ex. 3 to Def.’s CSF, ECF No. 128-4).
Defendant Nevada Leasing entered into a long-term lease
with Blue Hawaiian.
(Master Helicopter Lease Agreement and
31
Master Lease Schedule, attached as Ex. 5 to Def.’s CSF, ECF
No. 128-6).
The Amended and Restated Master Helicopter Lease
Agreement was in effect at the time of the November 10, 2011
accident.
(Amended and Restated Master Helicopter Lease
Agreement, effective between June 1, 2011 until June 1, 2016,
at p. 14, attached as Ex. 6 to Def.’s CSF, ECF No. 128-7).
Defendant Nevada Leasing was identified in the Lease as
“Lessor” and Blue Hawaiian was identified as the “Lessee.”
(Id. at p. 1).
The terms of the Lease between Defendant Nevada Leasing
and Blue Hawaiian provided that Blue Hawaiian would possess
and control the Subject Helicopter at all times following
delivery.
The Lease explained the terms regarding the use,
possession, and control of the Subject Helicopter, as follows:
10.
Use of Helicopter. Lessee6 agrees that the
Helicopter will be used solely in the
ordinary conduct of Lessee’s business and
in compliance with any and all statutes,
laws, ordinances and regulations of any
governmental agency applicable to the use
of the Helicopter, and that the Helicopter
will at all times be and remain in the
possession and control of Lessee. Lessee
shall permit the Helicopter to be operated
6
The Lease provided that Nevada Leasing was the Lessor
and Blue Hawaiian was the Lessee. (Amended and Restated
Master Helicopter Lease Agreement, at p. 1, attached as Ex. 6
to Def.’s CSF, ECF No. 128-7)
32
only by pilots who are employed by Lessee
and who have in effect all current
licenses, certificates and ratings
necessary or appropriate for the operations
of the Helicopter, and who have completed
the training requirements of Lessee’s
operations manuals, which shall comply with
all applicable requirements of the FAA and
all other governmental or regulatory
agencies having jurisdiction.
(Amended and Restated Master Helicopter Lease Agreement,
at ¶ 10, attached as Ex. 6 to Def.’s CSF, ECF No. 128-7)
(emphasis added).
The Lease also provided that Blue Hawaiian would be
responsible for the maintenance, repairs, and inspections for
the Subject Helicopter.
(Id. at ¶ 11).
The Amended Lease
Agreement stated:
11.
Maintenance; Repairs; Reports; Inspections.
(a)
Inspection upon Delivery. Lessee shall
inspect each Helicopter prior to
delivery by Lessor. Unless otherwise
agreed in writing between the Lessor
and the Lessee at the time of
delivery, Lessee shall be responsible
for all repairs and maintenance of the
Helicopter upon delivery. Lessee’s
failure to inspect a Helicopter upon
delivery shall constitute a waiver of
any right Lessee might otherwise have
to raise an objection concerning the
condition of the Helicopter upon
delivery.
(b)
Lessee shall, at its own cost and
expense, cause to be performed all
inspections and required repair and
maintenance of the Helicopter as may
33
be required under any applicable law
or regulations related to aviation or
airworthiness of Helicopter, ordinary
wear and tear excepted including
without limitation (to the extent
applicable) the requirements of Part
135 of the Federal Aviation
Regulations. Lessee shall further
cause the Helicopter to comply at all
times with all applicable
manufacturers’ directives,
airworthiness directives or mandatory
service bulletins.
(Amended and Restated Master Helicopter Lease Agreement,
at ¶ 11(a)-(b), attached as Ex. 6 to Def.’s CSF, ECF No. 1287) (emphasis added).
There is no evidence in the record that Defendant Nevada
Leasing had actual possession or control of the Subject
Helicopter following its delivery to Blue Hawaiian on March
29, 2010.
The Director of Maintenance for Blue Hawaiian stated in
his affidavit that after the Subject Helicopter was delivered
to Blue Hawaiian on March 29, 2010, it remained in Blue
Hawaiian’s possession and control until the crash on November
10, 2011.
(Affidavit of W. Troy Atkinson, Director of
Maintenance for Blue Hawaiian (“Atkinson Aff.”) at ¶ 4-5, ECF
No. 128-8).
There is evidence in the record that Blue
Hawaiian performed maintenance and inspections of the Subject
Helicopter on July 5, 2010, June 30, 2011, July 20, 2011,
34
August 4, 2011, September 14, 2011, October 10, 2011, November
8, 2011.
(See Blue Hawaiian Maintenance and Inspection
Records, attached as Exs. A-G to the Atkinson Aff., ECF No.
128-8).
The National Transportation Safety Board conducted a
Factual Report regarding the November 10, 2011 accident.
(NTSB Factual Report Aviation, NTSB ID: WPR12MA034, attached
as Ex. 8 to Def.’s CSF, ECF No. 128-9).
The National
Transportation Safety Board’s Report determined that the
Subject Helicopter was operated on the day of the crash by
Blue Hawaiian pursuant to the Federal Aviation Regulations, 14
C.F.R. § 135.
(Id. at p. 1).
49 U.S.C. § 44112 requires that the owner/lessor be in
“actual possession or control” of the aircraft in order to be
liable.
In re Lawrence Inlow, 2001 WL 331625 at *18.
The
district court in In re Lawrence Inlow addressed the term
“actual possession or control” and determined that the
owner/lessor must be “engaged in some concrete fashion in the
operation of the aircraft” in order to be liable.
Id.
Plaintiff has not provided any evidence to demonstrate
that Defendant Nevada Leasing had actual possession or control
over the Subject Helicopter after its delivery of the Subject
Helicopter to Blue Hawaiian on March 29, 2010.
35
There is no
evidence that Nevada Leasing was engaged in any concrete
manner with the actual physical possession or the actual
operational control over the Subject Helicopter after its
delivery.
Plaintiff looks to the fact that Defendant Nevada Leasing
and Blue Hawaiian had the same owners and similar management.
Defendant Nevada Leasing and Blue Hawaiian were separate legal
entities with separate purposes and responsibilities.
Plaintiff is seeking to have the Court ignore the
corporate structures of Nevada Leasing and Blue Hawaiian.
Nothing in the record supports ignoring the corporate
structure of the two separate entities.
The record indicates that Nevada Leasing had no employees
and was established in the State of Nevada for tax incentives.
(Woods Aff. at ¶¶ 7, 10, attached as Ex. 1 to Def.’s CSF, ECF
No. 128-2; Chevalier Depo. at pp. 49-51, attached as Ex. 5 to
Pla.’s CSF, ECF No. 142-7).
There is no evidence that Nevada
Leasing was engaged in the business of operating, maintaining,
inspecting, or flying any aircraft.
(See Operating Agreement
for Nevada Helicopter Leasing LLC at ¶ 1.6, attached as Ex. 2
to Pla.’s CSF, ECF No. 142-4).
Plaintiff asserts that the Lease afforded Defendant
Nevada Leasing the right to control some aspects of the
36
Subject Helicopter because the Lease required permission from
Defendant Nevada Leasing to add accessories to the Subject
Helicopter.
(Amended and Restated Master Helicopter Lease
Agreement at ¶ 11(c), attached as Ex. 6 to Def.’s CSF, ECF No.
128-7).
Plaintiff also cites to provisions of the Lease that
required Blue Hawaiian to abide by the terms of the Lease and
to provide Defendant Nevada Leasing with reports and records
for the Subject Helicopter.
(Id. at ¶ 11(e), 11(f), 17).
Nothing in these provisions cited by the Plaintiff
demonstrates that Defendant Nevada Leasing had “actual
possession or control” of the Subject Helicopter.
The
provisions cited by Plaintiff demonstrate that Defendant
Nevada Leasing maintained its ownership and lessor interest in
the Subject Helicopter but did not have actual possession or
control of the Subject Helicopter.
Plaintiff further argues that Defendant Nevada Leasing
could have chosen to operate the Subject Helicopter because
the managers were given the authority to operate company
property.
(Operating Agreement for Nevada Helicopter Leasing
LLC at ¶ 1.6, attached as Ex. 2 to Pla.’s CSF, ECF No. 142-4).
This argument is not persuasive.
49 U.S.C. § 44112 limits
liability unless the owner/lessor was in “actual possession or
control” of the aircraft, and it does not include the
37
possibility of future possession or control.
Plaintiff has
not pointed to any evidence where the Subject Helicopter was
actually controlled or operated by Defendant Nevada Leasing.
Defendant Nevada Leasing has provided evidence that the
Subject Helicopter was never in its actual possession or
control following March 29, 2010.
Plaintiff has not provided
any evidence to the contrary.
Pursuant to 49 U.S.C. § 44112, Defendant Nevada Leasing
is immune from liability as the owner/lessor of the Subject
Helicopter as it was not in actual possession or control of
the aircraft.
CONCLUSION
Defendant Nevada Helicopter Leasing LLC’s Motion for
Summary Judgment (ECF No. 127) is GRANTED.
Defendant Nevada Helicopter Leasing LLC is TERMINATED
from the case.
//
//
//
38
Airbus Helicopters SAS is the only remaining defendant in
this case.
IT IS SO ORDERED.
DATED:
July 21, 2016, Honolulu, Hawaii.
_________________________________
__
Helen Gillmor
United States District Judge
Violeta Escobar, also known as Violeta Escobar Cline,
Individually, and as Personal Representative for the Estate of
Nathan Cline, Deceased v. Nevada Helicopter Leasing LLC;
Airbus Helicopters SAS; Cross-Claimant Nevada Helicopter
Leasing LLC v. Cross-Defendant Airbus Helicopters SAS; ThirdParty Plaintiff Nevada Helicopter Leasing LLC v. Third-Party
Defendant Airbus Helicopters, Inc.; Civ. No. 13-00598HG-RLP;
ORDER GRANTING DEFENDANT NEVADA HELICOPTER LEASING LLC’S
MOTION FOR SUMMARY JUDGMENT (ECF No. 127)
39
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