Sky Jet M.G. Inc. v. Elliott Aviation, Inc. et al

Filing 60

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 2/24/2017:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SKY JET, M.G., INC.,
Plaintiff,
Case No. 15 C 8113
v.
Judge Harry D. Leinenweber
ELLIOTT AVIATION, INC. and
ELLIOTT AVIATION OF THE
QUAD CITIES, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff Sky Jet M.G., Inc. (“Sky Jet”) sued Defendants,
Elliott Aviation, Inc. (“Elliott”) and Elliott Aviation of the
Quad

Cities,

Inc.

(“Quad

Cities”)

(collectively,

the

“Defendants”), alleging negligence and breach of contract against
Elliott (Counts I and III, respectively) and negligence against
Quad

Cities

(Count

II).

After

several

months

of

discovery,

Defendants moved for summary judgment on Count III and partial
summary judgment on Counts I and II [ECF No. 39].
Defendants’

Motion

for

Summary

granted in part and denied in part.
time-barred,

but

it

may

pursue

a

Judgment

on

Count

III

is

Sky Jet’s warranty claim is
breach-of-contract

claim

for

damages in excess of the repair or replacement value of the left
landing gear.

Defendants’ Motion for Partial Summary Judgment on

Count I based on the Contract’s negligence disclaimer is granted

in part and denied in part.

The Contract limits liability for

negligence but the facts do not establish, as a matter of law,
that Sky Jet’s recovery is limited to repair or replacement of the
left

landing

gear.

The

Court

denies

Defendants’

Motion

for

Partial Summary Judgment on Counts I and II to the extent it is
based on the absence of extra-contractual duties to Sky Jet.

The

undisputed facts do not show that Quad Cities was a party to the
Contract

or

disclaimer.

is

otherwise

Nor

do

entitled

the

facts

to

speak

its

negligence

clearly

as

to

liability
Elliott’s

freedom from extra-contractual liability for Quad Cities’ or its
own potentially tortious conduct.
I.

BACKGROUND

Sky Jet offers private aircraft charters throughout Quebec,
Ontario, and the United States.

(ECF No. 41 (“Defs.’ SOF”) ¶ 2.)

Elliott and its subsidiary company, Quad Cities, offer aviationrelated

services

such

as

inspection,

servicing,

repair,

and

maintenance of aircraft and aviation components. (Id. ¶¶ 5-6.)
Sky Jet entered into a contract with Elliott for maintenance of
its Beech King Air 200 (“the Subject Aircraft”).
(“Pl.’s Resp.”) ¶ 11-12.)
quotation;

Elliott

prepared

(ECF No. 48

That contract was in the form of a
it

on

May

31,

2013,

and

Sky

Jet

accepted the terms by signing on June 4, 2013 (“the Contract”).
(Id. ¶ 13.)

Under the Contract, Sky Jet agreed to pay $15,000 in
- 2 -

exchange for maintenance “overhaul” of its left and right landing
gears,

including

removal

and

disassembly

of

the

landing

gear

components, their actuators, and the gear box. (Pl.’s Resp., Ex.
A, p.3.)

The Contract either incorporates or expressly includes

the following six (6) salient provisions:
In Flight Responsibilities
Customer
agrees
and
understands
that
Customer
is
responsible for all claims, demands, suits, judgments,
losses, damages, costs and expenses arising out of the
inflight operation of the Aircraft, except to the extent
that such claims, demands, suits, judgments, losses,
damages, costs and expenses arise out of Elliott
Aviation’s
negligence
in
performing
Services,
(as
defined in the Proposal) on the Aircraft.
Customer
agrees that Elliott Aviation is not responsible for the
pilots who operate the Aircraft regardless of who
provides the pilot(s). Customer represents and warrants
that it has procured insurance for the hull of the
Aircraft and acknowledges that Customer is responsible
for all damages to the hull of the Aircraft regardless
of which party causes the damage to the hull.
Upon
request, Customer shall provide evidence of hull and
liability insurance in a form satisfactory to Elliott
Aviation.
Limitations of Liability
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOSS OF USE
OF THE AIRCRAFT OR LOSS OF PROFITS, DIMUNITION IN VALUE
OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR
LOSSES, INCLUDING WITHOUT LIMITATION, ANY LOSS OR DAMAGE
TO THE AIRCRAFT RESULTING FROM ANY FAILURE OR REFUSAL TO
PERFORM CUSTOMARY RECOMMENDED OR REQUIRED STORAGE AND
MAINTENANCE PROCEDURES ON ANY AIRCRAFT REMAINING OR HELD
ON THE COMPANY’S PREMISES, UNLESS SPECIFICALLY AGREED IN
WRITING.
IN NO EVENT SHALL ANY ACTION BE COMMENCED
AGAINST COMPANY MORE THAN ONE YEAR AFTER THE CAUSE OF
ACTION WITH RESPECT TO WHICH THE CLAIM IS MADE HAS
ACCRUED.
In the event Elliott Aviation physically
damages
Customer’s
property,
Customer’s
sole
and
- 3 -

exclusive remedy, and Elliott Aviation’s sole and
exclusive liability, is limited to the repair or
replacement (at Elliott Aviation’s option) of the
damaged portion of the property.
Warranty and Disclaimers
The “Statement of Warranty” of the Company in effect as
of the date of this Work Authorization shall govern the
work. A copy has been provided to Customer, or will be
provided to Customer, upon request.
THE STATEMENT OF
WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS
AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. Any repair or
replacement shall be performed at an Elliott Aviation
facility
and
Customer
shall
be
responsible
for
transportation costs.
Scope of Warranty
This warranty and the liability of Elliott Aviation for
breach of warranty shall be limited to correcting or
repairing such portions of the Work that is [sic] not in
accordance with the Aircraft Work Authorization or
Specifications. Elliott Aviation warrants only that the
Work shall be free from defects under normal aircraft
use.
Elliott
Aviation’s
obligations
under
this
Warranty, and Owner’s exclusive remedy, shall be limited
solely to the repair, or replacement, at Seller’s
election, of any workmanship which is determined to be
defective under normal use and service within the
earliest to occur of three hundred (300) hours of
aircraft operation or one (1) year after completion of
the Work (the “Warranty Period”).
Right to Subcontract. Elliott Aviation has the right to
subcontract any Service to any subcontractor properly
certified and rated by the Approved Aviation Authority.
Assignment.
This Agreement may not be assigned without
the prior written consent of the other party, except
that your consent will not be required for an assignment
by us to one of our affiliates.
(Pl.’s Resp. ¶¶ 17-20 & Ex. A, p.5.)
- 4 -

Quad

Cities,

Elliott,

on

certified

not
19,

2013

June

performed

that

the

the

Subject

maintenance
Aircraft

and

was

in

airworthy condition and that all work was performed in conformance
with applicable manufacturing maintenance manuals. (ECF No. 50,
“Defs.’

Resp.,”

¶

4.)

Only

Quad

Cities

provided

testing, or services on the Subject Aircraft.

any

work,

(Id. ¶ 3.)

On September 22, 2014, the Subject Aircraft’s left landing
gear malfunctioned in flight, forcing the pilots to land it with
only partial landing gear assistance.

(Pl.’s Resp. ¶ 16.)

In

addition to that affecting the landing gears, the Subject Aircraft
sustained other damage upon landing.

(Id.)

Sky Jet filed suit against Defendants on September 15, 2015,
claiming that Elliott and Quad Cities “breached the duty owed to
Sky

Jet

to

repairing,

use
and

reasonable
maintenance

care
of

in
the

component parts and assemblies.”
21.)

the

inspection,

Subject

Aircraft

servicing,
and

its

(ECF No. 1, “Compl.,” ¶¶ 17,

Specifically, Sky Jet alleged that Defendants negligently

and carelessly inspected, serviced, repaired, and maintained the
Subject
gearbox,
Subject

Aircraft’s
and

motor;

Aircraft

regulations,
manufacturer’s

landing

the

as

gear

systems,

assemblies,

actuators,

negligently

and

carelessly

certified

the

airworthy;

and

negligently

violated

FAA

instructions

maintenance

provided

manual,
- 5 -

and

with

other

the

aircraft

industry

standards

and customs.

(See, id.)

Sky Jet’s breach of contract claim

against Elliott includes similar allegations plus an additional
assertion

that

warranties.”

Elliott

failed

to

“comply

with

other

express

(Id. ¶ 27.)

In terms of damages, Sky Jet seeks recovery for “property
damage to the Subject Aircraft, to a cargo pod affixed to the
Subject Aircraft, and to other property in or near the Subject
Aircraft;
revenues

diminished
and

profits;

value
loss

of

the

of

good

Subject
will;

Aircraft;
damage

to

loss

of

business

reputation; loss of the use of the Subject Aircraft and other
aircraft;

investigation,

maintenance,

other damages as allowed by law.”
28.)

and

recovery

costs;

and

(Compl. ¶ 18; see, id. ¶¶ 22,

Sky Jet does not distinguish among its counts with respect

to the types of damages sought.
II.

LEGAL STANDARD

Summary judgment must be granted “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a).

A genuine issue of material fact exists if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.”
(1986).
the

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

248

In evaluating summary judgment motions, courts must view

facts

and

draw

reasonable

inferences

- 6 -

in

the

light

most

favorable to the non-moving party.
378 (2007).

Scott v. Harris, 550 U.S. 372,

The Court does not make credibility determinations as

to whose story is more believable.

Omnicare, Inc. v. UnitedHealth

Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011).

It must consider

only evidence that can be “presented in a form that would be
admissible in evidence.”

FED. R. CIV. P. 56(c)(2).

The party seeking summary judgment bears the initial burden
of

showing

that

there

is

no

genuine

dispute

entitled to judgment as a matter of law.

and

that

it

is

Carmichael v. Vill. of

Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see, also, Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If this burden is

met, then the adverse party must “set forth specific facts showing
that there is a genuine issue for trial.”

Anderson, 477 U.S. at

256.
III.
In

their

memorandum

of

ANALYSIS
law,

Defendants

argued

that

(i)

Elliott is entitled to summary judgment on Count III because Sky
Jet’s breach of contract and warranty claims are time-barred; (ii)
they are entitled to partial summary judgment on the negligence
counts because the Contract limits Sky Jet’s recoverable damages
to repair or replacement of the left landing gear; and (iii) they
are entitled to partial summary judgment on the negligence counts

- 7 -

because

they

sound

in

contract

and

do

not

allege

any

extra-

contractual duty owed to Sky Jet.
In

response,

Plaintiff

contended

that

(i)

the

breach

of

contract cause of action is timely because, under the discovery
rule, it accrued when the aircraft crashed, not when the work was
performed;
Elliott’s

(ii)
own

the

limitation

negligence;

and

of

liability

(iii)

it

does

apply

agreed

never

not

to

to
any

limitation of the liability of Quad Cities.
Defendants then filed a reply, arguing that (i) Sky Jet’s
contractual agreement to a one-year limitations period dooms its
breach

of

contract

claim,

and

Sky

Jet’s

failure

to

plead

the

discovery rule bars its application; (ii) the Contract limits Sky
Jet’s recoverable damages because Elliott assigned the contract to
Quad Cities; and (iii) the limitation of liability provision of
the Contract applies to both of Sky Jet’s negligence claims, and
Defendants did not owe any extra-contractual duties to Sky Jet
anyway.
The

Court

granted

address these arguments.
argued

that

(i)

Sky

Jet

leave

to

file

a

sur-reply

to

In its sur-reply [ECF No. 55], Sky Jet

Defendants

have

not

carried

their

burden

of

showing that the Contract was in fact assigned to Quad Cities; and
(ii) if indeed Elliott established an assignment of the Contract

- 8 -

to Quad Cities, then Elliott is not entitled to summary judgment
on Sky Jet’s claims against it.
A.

The Limitations Periods
1.

Breach of Warranty

The Court grants Defendants’ Motion as to Sky Jet’s claim for
breach of warranty.

Although Brown v. Ellison, 304 N.W.2d 197

(Iowa 1981), rev’d on other grounds, Franzen v. Deere and Co., 334
N.W.2d 730 (Iowa 1983), establishes that the discovery rule may
apply

to

causes

of

action

arising

from

express

warranties, its application is not unbounded.
agree

by

contract

to

a

limited

express

and

implied

The parties may

warranty

whose

terms

otherwise preclude application of the rule.
Here, the Scope of Warranty provision incorporated into the
Contract

explicitly

replacement

of

grants

“any

Sky

Jet

workmanship

the

remedy

which

defective” within the Warranty Period.

is

of

repair

determined

to

or
be

It defines the “Warranty

Period” as “the earliest to occur of three hundred (300) hours of
aircraft operation or one (1) year after completion of the Work.”
(Defs.’
provision

SOF,
“is

Ex.

1,

exclusive

implied warranties.”
unambiguously

¶

and

2
and

(emphasis
in

lieu

added).)
of

all

This

other

warranty

express

and

(Pl.’s SOAF, Ex. A, p.5.) Thus, the parties

explicitly

agreed

that

Sky

Jet

would

have

recourse only to a limited express warranty whose term is defined
- 9 -

in relevant part by “completion of the Work.” The parties do not
dispute that the landing gear was “determined to be defective”
more than one year after completion of the maintenance.

Because

Sky Jet only asserts a claim under “other express warranties,” the
question is whether the discovery rule should effectively extend
the “Warranty Period” beyond the term delimited by its express
language.
The cases Sky Jet cites do not support applying the discovery
rule to the Contract’s express limited written warranty.

First,

Brown concerned an oral contract and an implied warranty arising
therefrom.
warranty,

Brown, 304 N.W.2d at 201. Here, there is no implied
but

rather

a

written

contract

containing

an

express

limitation on its warranty’s term to one year from completion of
the work.

Contracting around what may have otherwise been the

Brown default rule is of a piece with Brown’s caveat that the
discovery rule, even in cases arising from express and implied
warranties,

“does

not

apply

to

situations

in

which

statutes

expressly provide that a cause of action accrues when the breach
occurs, regardless of the aggrieved party’s lack of knowledge of
the breach.”

Brown, 304 N.W.2d at 201.

The Court is unwilling to

recognize the ability of statutes to abrogate the discovery rule
while simultaneously finding that commercial parties may not.

- 10 -

Similarly, Speight v. Walters Develop. Co., Ltd., 744 N.W.2d
108

(Iowa

2008),

construction.

involved

the

implied

warranty

of

workmanlike

Applying the discovery rule to determine when the

cause of action accrued, the court in that case stressed that “the
implied

warranty

of

workmanlike

construction

is

a

judicial

creation and does not, in itself, arise from the language of any
contract between the builder-vendor and the original purchaser.”
Id. at 114.

The Court does not understand how this rationale

supports extending the rule to an express warranty arising from
term-limiting

language

parties.

In

fact,

warranty

claim

the

against

in

a

contract

court
the

in

between

Speight

backdrop

of

two

analyzed
the

commercial
the

implied

applicable

repose

statute, which “terminate[d] any right of action after a specified
time has elapsed, regardless of whether or not there has as yet
been

an

omitted).

injury.”

See,

id.

at

115

(internal

quotation

marks

Just as such statutes exempt a warranty claim from the

discovery rule – making them “begin[] to run on the date of the
act or omission causing the injury” - so too can parties condition
an express warranty’s term on the passage of a set amount of time.
Consider a relevant airplane maintenance case.

In Crowley v.

New Piper Aircraft Corp., No. LALA002464, 2006 WL 3059914 (Iowa
Dist. Ct. Aug. 23, 2006), the parties contracted on the basis of
term-limited express written warranties.
- 11 -

The court formulated the

cause of action for breach of an express warranty as follows:

the

plaintiff “must prove that (1) an express warranty was created;
(2) the Aircraft did not conform to the warranty; (3) the defects
appeared before the warranties’ expiration. . . .”
It

was

undisputed

that

the

contract

expressly

Id. at *17.
“warranted

the

repair of the Aircraft’s engines for a time period of no more than
two years.” Id.

The court held for the defendants, noting that

“even if the Aircraft was found not to conform to Defendants’
warranties, the warranties have expired.”

Id. at *18.

While it

was “undisputed that the Aircraft leaks oil, there is no evidence
that said oil leaks occurred during the warranty period.”
(emphasis added).

Id.

As such, the court held that there was no

genuine issue of material fact that the warranties expired prior
to manifestation of the problems.

See, id.

Such is the case

here.
Therefore, the discovery rule in Iowa does not necessarily
apply to every warranty claim, particularly where the terms of an
express warranty clearly provide otherwise.

Likewise for implied

warranties, statutes of repose such as the one at issue in Speight
can

link

the

date

on

which

a

cause

of

action

accrues

to

the

wrongful conduct giving rise to the claim for breach. And, as with
other

contractual

provisions,

the

parties

“may

agree

to

a

modification” of what otherwise would constitute a default rule
- 12 -

such that recovery turns on defects manifesting within an agreed
period of time.

Robinson v. Allied Prop. & Cas. Ins. Co., 816

N.W.2d

(Iowa

398,

indicates

402

that

such

2012).

was

the

The
case

language

here.

of

The

the

parties

warranty
–

both

sophisticated commercial entities - entered into a contract with
their eyes open and effectively set an explicit warranty “repose”
period

keyed,

as

relevant,

to

the

passage

of

one

year

from

completion of the work.
Because

it

is

undisputed

that

the

landing

gear

did

not

malfunction until more than one year after Quad Cities completed
and

certified

entitled

to

the

landing

summary

gear

judgment

on

maintenance

work,

Plaintiff’s

Count

Elliott
III

to

is
the

extent it invokes the Contract’s limited express warranty.
2.

Breach of Contract

That the landing gear malfunctioned over one year after Quad
Cities completed the maintenance work does not, however, dispose
of Sky Jet’s breach of contract claim.

Determining whether the

discovery rule applies to Sky Jet’s breach of contract claim is a
different animal, because the parties do not appear in this case
to have contracted around the relevant default rule.

Rather, the

limitations period in the Contract commences when the cause of
action “has accrued.”

(Defs.’ SOF, Ex. 1, p.5 (emphasis added).)

Without defining that term for themselves, the parties and the
- 13 -

Contract rely on state law to determine when a cause of action
accrues.
a.

Accrual of the Cause of Action

Under Iowa law, the general rule is that “a cause of action
accrues and the limitations period begins to run when the contract
is

breached,

not

when

the

damage

results

or

Brown, 304 N.W.2d at 200 (citation omitted).

is

ascertained.”

If the discovery

rule applies, however, the cause of action does not accrue until
the alleged breach was discovered or reasonably should have been
discovered. Id.
discovery
contract.

As explored above, Iowa courts have applied the

rule

to

But

certain

it

does

warranty

not

appear

claims
that

based
they

on

have

breach

of

explicitly

extended the discovery rule to a written contract where the nonbreaching

party

was

unable

to

ensure

satisfactory

performance

within a limitations period linked to the timing of the wrongful
conduct.
First, it is worth noting that the rationale in Brown for
extending

the

discovery

rule

to

certain

warranty

cases

favors

applying it to contracts such as the one at issue here.

Sky Jet

had

whether

no

ability

to

know

or

even

a

reason

to

inquire

maintenance was improperly performed until the accident occurred.
See, Brown, 304 N.W.2d at 201 (“[T]he buyer is in a position of
inferior

knowledge

similar

to
- 14 -

that

of

a

client

or

patient. . . .”).

Nor does the record indicate that Sky Jet, as a

charter

company,

airplane

had

particular

expertise

in

proper

landing gear maintenance.
Second, other states have applied the discovery rule to such
“inherently unknowable” breaches.

See, e.g., Int’l Mobiles Corp.

v. Corroon & Black/Fairfield & Ellis, Inc., 560 N.E.2d 122, 126
(Mass. App. 1990); Bacon and Asscs., Inc. v. Rolly Tasker Sails
(Thailand) Co., Ltd., 841 A.2d 53, 64-65 & n.13 (Md. App. 2004)
(“[T]he Legislature, in employing the word ‘accrues’ . . . never
intended to close our courts to plaintiffs inculpably unaware of
their injuries.”) (citation omitted). Indeed, “the reasons behind
the discovery rule may support [its] application regardless of how
an

action

is

characterized.”

Hermitage

Corp.

v.

Contractors

Adjustment Co., 651 N.E.2d 1132, 1136 (Ill. 1995) (summarizing
application of the discovery rule to actions arising from contract
that could be characterized as torts).

An injured party may be

unaware of an injury and its wrongful cause “whether the action is
deemed

to

involve

tort,

tort

breach of contractual duty.”

arising

from

contract,

or

other

Id. (citations omitted).

The Court credits the case-sensitive approach of the Illinois
Supreme Court as best harmonizing with extant Iowa law. It allows
for

an

evaluation

involve

inherently

of

whether

unknowable

the

facts

injuries

- 15 -

of
for

a

particular

which

redress

case
was

otherwise

diligently

pursued.

This

seems

to

alleviate

the

specter, invoked by courts declining to apply the discovery rule
in contract cases, of “stale and fraudulent claims.”

CLL Assocs.

Ltd. Partnership v. Arrowhead Pac. Corp., 497 N.W.2d 115, 117, 122
(Wis. 1993) (stressing the need to protect defendants).

And the

flexibility of the Illinois approach is consistent with Brown’s
rationale for tolling the limitations period on certain contract
and

warranty

claims

where

plaintiffs

possess

asymmetric

information or reasonably rely on a service provider.
In this case, the Court does not believe that Sky Jet is
pursuing Defendants on the basis of stale or fraudulent claims.
Rather,

the

facts

of

this

case

involve

inherently

unknowable

injuries arising from breach of a contract that Sky Jet entered
into precisely because it did not possess relevant subject-matter
expertise.

Sky Jet had no practicable means of detecting a breach

of contract within one year from the date the work was performed –
when,

under

Defendants’

limitations period expired.

interpretation,

the

contractual

It was just three months later that

the crash occurred, and Sky Jet then filed its Complaint within
one year.

These undisputed facts suggest that Sky Jet was not

trying to mulct Defendants in damages but was instead hewing to a
colorable reading of the Contract’s limitation of liability to
causes of action brought within one year of their “accrual.”
- 16 -

Therefore,

the

Court

finds

that

Iowa

courts

would

likely

apply the discovery rule to Sky Jet’s breach of contract claim.
b.

Pleading the Discovery Rule

Citing a hodgepodge of cases, Defendants argue that Sky Jet
has waived its right to invoke the discovery rule because “it did
not claim application of the discovery rule in its complaint.”
(Defs.’ Reply at 2.)

Defendants appear to fault Sky Jet for not

pleading to the effect that it did “not reasonably discover[]” the
defect until the crash. (Id. at 2-3.) Defendants do not point to
any resulting prejudice flowing from Sky Jet’s oversight, and Sky
Jet does not directly confront this argument.
There is some authority for Defendants’ general proposition
that the party pleading an exception to the normal limitations
period has the burden both to plead and prove the exception. See,
e.g., Cornell v. State, 529 N.W.2d 606, 610 (Iowa 1994) (holding
in a criminal proceeding that a party claiming an exception to the
normal limitations period must by “general pleading” invoke the
exception, “and it must be accepted as true when challenged by a
motion to dismiss”); Franzen, 334 N.W.2d at 732 (holding on appeal
of the defendant’s motion to dismiss that “[t]he party pleading an
exception to the normal limitations period has the burden to plead
and

prove

the

exceptions”)

(citing

Brown,

304

N.W.3d

at

200);

Brown, 304 N.W.2d at 200 (noting that the trial court applied the
- 17 -

discovery
evidence

rule
that

as

an

the

exception

Browns

waited

but
too

held

after

long

from

presentation
the

time

of

they

discovered their injury to file their claim).
Yet,

as

these

cases

themselves

suggest,

the

pleading

and

proving requirements are typically not applied in tandem. Instead,
Iowa courts tend to analyze the “pleading” prong upon a motion to
dismiss

and

the

“proving”

presentation of evidence.

prong

at

summary

judgment

or

after

After discovery and/or presentation of

evidence, the focus is not on the form of the complaint but on
whether the plaintiff has proven facts supporting an exception to
the normal limitations rule.

See, e.g., Beeck v. Aquaslide ‘N’

Dive Corp., 350 N.W.2d 149, 1 (Iowa 1984) (“A party asserting an
exception to the expiration of a limitations period has the burden
of proving the exception.”) (appeal after judgment) (citing Brown,
304 N.W.2d at 200); Jacobson v. Union Story Trust and Sav. Bank,
338 N.W.2d 161, 164 (Iowa 1983) (“Since the plaintiffs failed to
support their relation back claim with any facts . . . , the trial
court correctly granted the defendant bank summary judgment on the
ground

that

suit

was

barred

by

the

statute

of

limitations.”)

(citing Brown, 304 N.W.2d at 200); Bennett v. Johnson, 485 N.W.2d
481, 483 (Iowa App. 1992) (“A party asserting an exception to the
expiration of a limitation period has the burden of proving the
exception.”) (appeal from summary judgment).
- 18 -

Interpreting Iowa law, the Eighth Circuit adopted a similar
approach, focusing not on the technical language of the pleadings
but on whether the undisputed facts support summary judgment. See,
Kraciun v. Owens-Corning Fiberglas Corp., 895 F.2d 444, 446 (8th
Cir. 1990) (“In responding to defendants’ summary judgment motion,
plaintiffs are thus required to point to specific facts showing
there is a genuine issue for trial concerning when their causes of
action accrued.”) (citations omitted).

The court went on to hold

that summary judgment is appropriate “if a reasonable jury could
only conclude, viewing the facts in the light most favorable to
the

plaintiffs,

that

plaintiffs

knew

or

through

reasonable

investigation should have known they were suffering” the injury
prior to the end of the normal limitations period.

Id. at 447.

Thus, a Rule 12(b)(6) motion would have been a more proper
vehicle

for

challenging

Sky

reasonable discovery language.

Jet’s

technical

failure

to

plead

(The Court does not opine on the

prospects for success of such a motion.)

Moreover, there is no

evidence before the Court suggesting that Defendants have been
prejudiced by Sky Jet’s technical failure to plead discovery rule
language.

As such, the Court finds that, irrespective of how Sky

Jet worded its Complaint, the record evidence does not compel a
finding in favor of Defendants that Sky Jet could have discovered
the alleged maintenance defects with reasonable diligence.
- 19 -

*

*

*

Because all reasonable inferences are drawn in favor of Sky
Jet (the non-movant), the undisputed facts support a finding that
Sky Jet did not discover and could not reasonably have discovered
the

defect

therefore

until

tolls

the

the

day

of

one-year

the

crash.

limitations

The
period

discovery
such

that

rule
the

action, filed within one year of the crash, is timely. Defendants’
Motion for Summary Judgment as to the contract claim in Count III
is denied.
B.
The

first

The Limitation of Contractual Liability
provision

of

the

Contract’s

Limitations

of

Liability section states that “in no event shall Company be liable
for . . . consequential damages.”

The second relevant piece is

its last sentence, which provides that “[i]n the event Elliott
Aviation physically damages Customer’s property, Customer’s sole
and exclusive remedy, and Elliott Aviation’s sole and exclusive
liability, is limited to the repair or replacement (at Elliott
Aviation’s

option)

of

the

damaged

portion

of

the

property.”

Defendants allege that Sky Jet’s recovery under the Contract is
accordingly

limited

to

“repair

or

replacement

of

the

portion of the property, here, the left landing gear.”
Mem. at 6-7.)

- 20 -

damaged
(Defs.’

In Gosiger, Inc. v. Elliott Aviation, Inc., 823 F.3d 497 (8th
Cir. 2016), the Eighth Circuit considered this exact language in a
factual setting somewhat distinct from the one here.

There, the

plaintiff sued because, “[w]hile servicing Gosiger’s aircraft on
the ground, Elliott Aviation cut the right wing,” Elliott then
repaired it, and “Gosiger wanted compensation for diminution in
value of the aircraft.”

Id. at 500.

The court held that the

Limitations of Liability section “immediately limits the remedies
available, specifically limiting Elliott’s liability to ‘repair or
replacement’

and

expressly

disallowing

damages or losses.” Id. at 501.
dooms

Sky

Jet’s

claim

for

‘DIMINUTION

IN

VALUE’

Defendants argue that Gosiger

damages

beyond

the

scope

of

the

Contract, which includes, inter alia, a plea for recovery of the
“diminished value of the Subject Aircraft.”
The

Court

agrees

with

Defendants

that

the

Limitations

of

Liability section forecloses Sky Jet from recovering under the
Contract diminution in value of the Subject Aircraft and other
special, consequential, incidental, and loss-of-use damages. This
is of a piece not only with Gosiger but also with Boone Val. Co-op
Processing Ass’n v. French Oil Mill Mach. Co., 383 F.Supp. 606,
609-612 (N.D. Iowa 1974).
However, Defendants have not shown as a matter of law that
the Contract precludes Sky Jet from recovering all expectation or
- 21 -

compensatory damages in excess of repair or replacement of the
left landing gear.
limitation

on

The provision integral to Defendants’ desired

Sky

Jet’s

contractual

recovery

is

the

final

provision of the Limitations of Liability section, which limits a
customer’s
portion

recovery

of

the

to

repair

property,”

or

but

replacement

only

“[i]n

of

damaged

event

Elliott

the

“the

Aviation physically damages Customer’s property.”
Ex. A, p.5 (emphasis added).)

(Pl.’s SOAF,

It is not clear as a matter of law

that the provision covers the rather attenuated “damage” here,
which

according

swapping

left

Cities’

to

and

Sky
right

certification

Jet

traces

landing

of

the

to

gear

work

Quad

Cities

components.

suggests

that

improperly

Indeed,
it

Quad

did

not

consider the maintenance to have produced any physical damage, and
any

damage

lengthy

to

the

incubation

left

landing

period

gear

manifested
scores

including

only

takeoffs

of

after

a

and

landings.
Further,

whenever

Sky

Jet

used

the

word

“damage”

in

its

complaint, it was to stress that the crash “cause[d] extensive
damages.”

(See,

consistent

with

e.g.,
Sky

Compl.

Jet’s

¶¶

14,

persistent

18,

22,

28.)

This

characterization

in

is
the

summary judgment briefs that various aspects of its property “were
damaged

during

the

crash.”

(See,

e.g.,

Pl.’s

SOAF

¶

7.)

Of

course, Defendants’ negligence and Elliott’s breach of contract
- 22 -

are alleged to be the proximate cause of the crash.

But the facts

before the Court are not amenable to a reading that faults either
Elliott or Quad Cities for “physically damaging” the landing gear
or the other impacted parts of the Subject Aircraft.

Further, the

parties seem to agree that the damages to the Subject Aircraft
arose “out of [its] in-flight operation,” as their invocations of
the

Contract’s

“In

Flight

Responsibilities”

section

suggest.

Gosiger, on the other hand, exclusively concerned the “On Ground
Responsibilities” provision, which conceptually is more compatible
with “physically damaging” property during maintenance.

See, 823

F.3d at 500-01; Gosiger, Inc. v. Elliott Aviation, Inc., No. 4:13cv-477, 2015 WL 11070982, at *4 (S.D. Iowa Mar. 17, 2015).
Put another way, it is not clear as a matter of law that the
“physically

damages”

provision

is

co-extensive

proximate cause (i.e., legal damages).

with

notions

of

To the extent the Eight

Circuit found that provision unambiguous as applied to Elliott’s
“cutting” of the plane’s wing on the ground, its application to
the inchoate and more remote damage here is uncertain.
Thus, the Court grants in part Defendants’ Motion for Partial
Summary Judgment on Count III as to Elliott’s non-liability for
the damages defined in the first sentence of the Limitations of
Liability provision.

However, it denies partial summary judgment

- 23 -

on the issue of limiting Sky Jet’s contractual recovery to repair
or replacement of the left landing gear.
C.

Assignment

Defendants argue in their Reply brief that Sky Jet’s claim
for

negligence,

presumably

against

Elliott,

is

limited

because

Elliott assigned the Contract to Quad Cities.

(See, Defs.’ Reply

at

Quad

4.)

Based

on

the

undisputed

subsidiary

of

Elliott

and

certified

the

Subject

Aircraft,

facts

solely

that

performed
“it

is

Cities

is

a

the

work

on

and

evident

that

Elliott

Aviation, Inc. assigned the Contract to Elliott Aviation of the
Quad Cities, Inc.” (Id.)

Sky Jet argues, on the other hand, that

Quad Cities was not a party to the Contract and should not be
entitled to any of its benefits, such as limited liability, that
are expressly conferred on Elliott.

(See, Pl.’s Resp. at 9.)

The Contract reserves to Elliott the right to subcontract the
work to “any subcontractor properly certified and rated by the
Approved Aviation Authority.”

(Pl.’s SOAF, Ex. A, p.5.)

It also

grants Elliott the right to assign the Contract “to one of our
affiliates” without Sky Jet’s consent. (Id.)

“When there is an

effective assignment, the assignee assumes the rights, remedies,
and benefits of the assignor, and the assignment transfers the
entire rights under a contract from the assignor to the assignee
so

that

the

assignee

assumes

not

- 24 -

only

the

benefits

of

the

contract, but also the rights and remedies.” Pillsbury Co., Inc.
v. Wells Dairy, Inc., 752 N.W.2d 430, 435 (Iowa 2008) (emphasis in
original) (internal citations and quotation marks omitted).
Defendants
they

have

have

not

shown

introduced

evidencing

that

the

an

effective

neither

Contract

assignment

documentation
was

because

nor
The

assigned.

testimony
court

in

Pillsbury, for example, “analyze[d] the relevant portions of the
Contribution

and

Assumption

Agreement . . . to

determine

whether . . . Pillsbury assigned its interest in this action.” Id.
at

436.

Here,

however,

Defendants

nakedly

assert

that

the

contract was assigned purely based on Quad Cities’ singular role
in

performing

airworthy.

the

work

and

certifying

the

Subject

Aircraft

as

Yet these facts are equivocal, just as consistent with

Elliott merely subcontracting the work to Quad Cities rather than
assigning the entire Contract.
The Court denies Defendants’ Motion to the extent it seeks to
invoke assignment to limit Sky Jet’s recovery on any count.
D.
Defendants
Liability
recover

contend

section
for

alternatively

The Negligence Claims
that

similarly

Defendants’
argue

that,

the

Contract’s

constrains
alleged

even

if

Sky

Limitations

Jet’s

negligence.
the

Contract

ability

of
to

Defendants
does

not

limit

recovery for negligence, Sky Jet was owed no extra-contractual
- 25 -

duty

of

care,

and

thus

“the

acts

complained

of

stem

from

Defendants’ performance of the Contract” such that tort recovery
is precluded. (Defs.’ Mem. at 9.)

In response, Sky Jet claims

that the asserted provision of the Contract does not exculpate
Defendants from liability for their own negligence, particularly
when

read

Contract.
respond

against
(Pl.’s

to

the

“In-Air

Resp.

at

Defendants’

Responsibilities”

5-8.)

Sky

argument

Jet

that

does

they

clause
not

owed

of

the

appear
no

to

extra-

contractual duties whose breach would trigger tort liability.
1.

Construction of the Disclaimer

It is permissible under Iowa law for a contractual disclaimer
to limit liability for negligence.

See, e.g., Northern Nat. Gas

Co. v. Roth Packing Co., 323 F.2d 922, 928 (8th Cir. 1963).

When

interpreting a provision exculpating one party from liability for
damages,

such

as

the

Limitations

of

Liability

section

of

the

Contract, courts do not include within its sweep “negligence by
the

offending

party

unless

such

intent

is

clearly

disclosed.”

Connor v. Thompson Const. & Dev. Co., 166 N.W.2d 109, 112 (Iowa
1969) (citation omitted); see, also, Baker v. Stewarts’ Inc., 433
N.W.2d 706, 709 (Iowa 1988); Evans v. Howard R. Green Co., 231
N.W.2d 907 (Iowa 1975).

A contract is read and interpreted as an

entirety rather than seriatim by clauses.

- 26 -

Connor, 166 N.W.2d at

112; Archibald v. Midwest Paper Stock Co., 148 N.W.2d 460, 463
(Iowa 1967).
In

contrast

to

disclaimers

held

to

be

mute

on

negligence

liability, the Limitations of Liability section does not include
language confining its application to claims under the Contract.
See, e.g., Berwind Corp. v. Litton Indus., Inc., 532 F.2d 1, 6-7
(7th Cir. 1976) (emphasizing that the limiting language appeared
under the heading “Warranty” and recited that “liability under
this contract is limited”) (emphasis added); Boone, 383 F.Supp. at
613 (“The Court’s conclusion [that the contractual limitation of
consequential damages does not apply to independent tort actions]
is buttressed by the fact that the contract language in issue
merely

purports

to

waive

defendant’s

liability

‘under

contract’ for consequential damages.”) (emphasis added).
the

immediately

outlines

prior

Elliott’s

Services”:

as

section

culpability

relevant,

of

the

for

Elliott

Contract

“negligence
is

this

Rather,

unequivocally
in

responsible

performing
for

damages

arising out of the in-flight operation of the Subject Aircraft to
the extent they “arise out of Elliott Aviation’s negligence in
performing Services.”

The Limitations of Liability section simply

fixes the magnitude of negligence liability.
Further language in the Contract’s damages disclaimer makes
clear

that

it

embraces

claims
- 27 -

based

on

negligence.

The

categorical

prefatory

language

of

the

Limitations

of

Liability

section – that “in no event” shall Elliott be liable for certain
types of damages - suggests the broadest possible application.
Iowa courts agree.

For example, in Iowa Elec. Light & Power Co.

v. Allis-Chambers Mfg. Co., 360 F.Supp. 25, 33 (N.D. Iowa 1973),
the

contract

at

issue

excluded

the

drafter’s

liability

for

consequential damages “in any event” and referred to liability in
contract or tort.

Similarly, in Fire Ass’n of Philadelphia v.

Allis-Chambers Mfg. Co., 129 F.Supp. 335, 352-56 (N.D. Iowa 1955),
the contract excluded consequential damages “in any event,” and
the court found that this clearly encompassed negligence claims.
“[I]t is not necessary that the parties make use of the word
‘negligence’

in

a

provision

in

order

applicable to a party’s own negligence.”
“sufficient
negligence”).

if

the

parties

by

‘apt

to

make

the

provision

Id. at 355 (finding it
language’

include

such

The thumb on the scale of the non-drafter cannot

overcome the clear weight of case law authorizing disclaimers of
liability of the sort at issue here – where the drafter used allembracing “in no event” language immediately after stating the
circumstances

under

which

it

would

bear

responsibility

for

negligence.
Besides, the Court is not writing on a blank slate.

The

district court in Gosiger, interpreting identical language, held
- 28 -

that “Elliott Aviation is responsible for damages caused by their
negligence, however the remedy provided to Plaintiff is limited.”
2015 WL 11070982 at *4.

Thus, “[t]he ‘Limitations of Liability’

provision limits the amount of damages that can be claimed due to
the negligent actions of Defendant.” Id. at *6.
Eighth

Circuit,

affirming

“Responsibilities”
responsibilities.

the

section

district

But

the

court,

“describe[s]
‘Limitations

of

Similarly, the
noted
the

The

Contract

expressly

disclaims

the

parties’

Liability’

immediately limits the remedies available. . . .”
501.

that

section

certain

823 F.3d at
remedies

for

contract and negligence claims: loss-of-use damages, lost profits,
losses due to diminution in value, and any “special, incidental or
consequential damages” (to the extent these terms have force in a
tort action).

(For the same reasons discussed above, however, the

Court is unwilling to find as a matter of law that Sky Jet’s
recovery in negligence is limited to repair or replacement of the
left landing gear.
reasoning
Gosiger,

of
but

both

The Court’s holding is consistent with the
the

lower

nonetheless

court

permits

and

Sky

the

Jet

at

Eighth
trial

Circuit
to

in

adduce

evidence of damages that fall outside the proscribed categories to
the extent it can make out an independent tort claim.)
The Court rejects Defendants’ attempt to advocate for their
desired

repair-or-replacement

remedy
- 29 -

by

pointing

to

the

hull

insurance

requirement

contained

in

the

Responsibilities” clause of the Contract.

“In

Flight

The Court draws all

inferences at summary judgment in favor of the non-moving party,
and, without more, it will not read the Contract’s requirement for
hull

insurance

as

sufficient

undisputed

“eviden[ce]

that

the

parties contemplated limiting both Defendant’s liability, and Sky
Jet’s remedies in their contract negotiations.”
9.)

(Defs.’ Mem. at

Neither party submitted a hull insurance policy to the Court,

making it impossible to determine whether the contemplated policy
– or even a typical policy - covers the damages Sky Jet seeks.
Any inferences from the hull insurance requirement are drawn in
favor of Sky Jet (the non-movant), and so the Court finds the
asserted

language

in

the

Contract

insufficient

to

preclude

a

genuine issue of material fact on the remedy afforded Sky Jet.
Finally,

specific

to

Count

II,

Defendants

have

made

no

showing that Quad Cities may invoke the Contract’s limitation of
negligence liability.

They have not introduced facts showing an

effective assignment of the Contract to Quad Cities (see, supra,
Section

III.C),

nor

have

they

shown

that

the

terms

“Elliott

Aviation” or “Company” unambiguously include Quad Cities.

The

inferences from the undisputed facts clearly support a reasonable
jury finding in favor of Sky Jet as to the alleged negligence of
Quad Cities.
- 30 -

Therefore,

the

Court

grants

in

part

Defendants’

Partial

Summary Judgment Motion on Count I, finding that the Contract, as
relevant, effectively limited liability for tort damages to the
same extent as contract damages.

It denies the analogous Partial

Summary Judgment Motion as to Count II, because there is no record
evidence showing that Quad Cities is covered by or entitled to –
via assignment or otherwise - the Contract’s liability disclaimer.
The Court feels compelled to make an additional observation.
The

parties

do

not

dispute

that

only

Quad

Cities

performed

maintenance work on the Subject Aircraft and that only Quad Cities
certified it as airworthy.

The negligence allegations in Count I

of Sky Jet’s Complaint charge Elliott with negligence in, inter
alia, inspecting, maintaining, and certifying the Subject Aircraft
and with negligence in failing to comply with FAA regulations and
other

industry

standards.

Therefore,

had

Defendants

moved

for

summary judgment on Count I (rather than partial summary judgment)
on the basis of Elliott’s lack of participation in any actual
maintenance services, the Court might well have obliged.

However,

absent briefing from the parties directed to this issue, the Court
will

not

sua

sponte

grant

summary

judgment

on

Count

I.

The

parties may separately argue this issue or introduce admissible
evidence directed to this issue at trial.

- 31 -

2.

Extra-Contractual Duties Supporting a Tort Action

The question remains whether evidence in the record allows
Sky Jet to survive summary judgment on whether Defendants owed and
breached an extra-contractual duty.

Sky Jet does not directly

respond to Defendants’ argument that all the acts of which it
complains derive from breach of the Contract.

“Only where a duty

recognized by the law of torts exists between the plaintiff and
defendant distinct from a duty imposed by the contract will a tort
action lie for conduct in breach of the contract.”

Preferred

Marketing Asscs. Co. v. Hawkeye Nat. Life Ins. Co., 452 N.W.2d
389, 397 (Iowa 1990); see, Haupt v. Miller, 514 N.W.2d 905, 910
(Iowa 1994).

Thus, the question is whether, in light of the facts

presented, a reasonable jury could find that Defendants breached
any duties that would give rise to an independent tort claim.
Although

Defendants

existence
record

of

any

have

spilled

considerable

extra-contractual

insufficiently

developed

duty,

to

the

support

ink

denying

Court

finds

the
the

granting

partial

partial

summary

summary judgment on this basis.
This

argument

cannot

judgment to Quad Cities.

support

a

grant

of

Defendants have not shown that Quad

Cities was ever in privity with Sky Jet or contemplated by the
defined term “Company,” was a party to an effective assignment, or
is otherwise entitled to the Contract’s limitation of negligence
- 32 -

liability.

(See,

supra,

Section

III.D.1.)

Thus,

there

is

no

evidence that Quad Cities owed any contractual duties directly to
Sky Jet. Further, instead of arguing that Sky Jet was a thirdparty beneficiary of an agreement between Elliott and Quad Cities
(such that contractual duties running from Quad Cities to Elliott
could somehow straitjacket Sky Jet into a contract-based remedy),
Defendants
assigned

conclusorily
the

entire

subcontracting

and

unpersuasively

Contract

agreement

to

Quad

governed

the

state

that

Cities.

Even

relationship

Elliott
if

a

between

Defendants, contractual duties running from Quad Cities to Elliott
do not necessarily affect Sky Jet’s ability to recover from Quad
Cities for negligence.
622

(4th

ed.

1971)

See, e.g., W. PROSSER, LAW
(“[T]he

absence

of

TORTS § 93, at

OF

‘privity’

between

the

parties makes it difficult to found any duty to the plaintiff upon
the contract itself.

But by entering into a contract with A, the

defendant may place himself in such a relation toward B that the
law will impose upon him an obligation, sounding in tort and not
in contract, to act in such a way that B will not be injured.”).
Simply put, drawing inferences in favor of Sky Jet on the summary
judgment record supports characterizing each and every duty Quad
Cities

owed

to

Sky

Jet

as,

in

contractual.”

- 33 -

Defendants’

cant,

“extra-

With respect to Elliott, the Court is similarly unprepared to
grant

partial

summary

judgment.

As

explored

above,

the

only

“evidence” Defendants have marshaled in support of a contractual
assignment is just as consistent with Elliott’s subcontracting the
work to Quad Cities.

And the record is insufficiently developed

for the Court to find as a matter of law that Elliott bore no
vicarious responsibility for the negligent acts of Quad Cities.
Nothing in the record speaks to whether Quad Cities was a bona
fide

independent

contractor

to

whom

Elliott

subcontracted

the

maintenance work – a question best left for the jury’s resolution
after

full

presentation

of

relevant

evidence.

See,

e.g.,

Criterion 508 Sol’ns, Inc. v. Lockheed Martin Servs., Inc., 806
F.Supp.2d 1078, 1090 (S.D. Iowa 2009) (citing Pippert v. Gunderson
Clinic, Ltd., 300 F.Supp.2d 870, 877 (N.D. Iowa 2004)).

The key

factors are control over work, payroll arrangements, the type of
contract at issue, and other considerations such as third-party
representations. See, Criterion, 806 F.Supp.2d at 1090-92.

Here,

neither Sky Jet nor Defendants have introduced evidence directed
to these factors. Only where all evidence points to one side and
“there is no rational basis for reasonable minds to differ as to
[the] status of [the] servant,” is the issue open “for the court
to resolve.” Watland v. Walton, 410 F.2d 1, 3-4 (8th Cir. 1969).
Such is clearly not the case here.
- 34 -

Further, and equally applicable in the event Quad Cities can
invoke the Contract to govern its relationship with Sky Jet, the
record at this stage permits a finding that Defendants breached an
independent, extra-contractual duty to Sky Jet.

For example, a

reasonable jury drawing inferences in Sky Jet’s favor could infer
a relationship between (a) Sky Jet’s unrebutted allegations that
Defendants violated FAA regulations and (b) the undisputed fact
that the Subject Aircraft’s landing gear malfunctioned in flight,
necessitating
assistance.

a

touchdown

with

only

partial

landing

gear

Because Iowa courts have not squarely addressed this

precise variant of negligence per se, the Court arrives at this
determination by analyzing relevant Iowa precedent and persuasive
authority.
First, a word about the general framework of negligence per
se

is

in

order.

Violation

of

a

federal

statute

regulation is generally deemed negligence per se.

or

safety

Grable & Sons

Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 318-319
(2005); Gas Service Co. v. Helmers, 179 F.2d 101 (8th Cir. 1950).
According to the Iowa Supreme Court, “‘[th]e unexcused violation
of a legislative enactment or an administrative regulation which
is adopted by the court as defining the standard of conduct of a
reasonable man, is negligence in itself.’”

- 35 -

Jorgensen v. Horton,

206

N.W.2d

100,

102

(Iowa

1973)

(quoting

RST (2D)

OF

TORTS

§

288(B)(1) at 37) (citations omitted).
In the more specific realm of airplane safety regulations,
Iowa

courts

have

only

thinly

treated

negligence

per

se.

The

clearest case on point is Lamasters v. Snodgrass, 85 N.W.2d 622
(Iowa 1957).

There, an airplane passenger injured in a crash

arising from the pilot’s reckless flying sued the plane’s owner,
who had authorized the pilot to operate the aircraft.
623.

See, id. at

The Court noted that certain state laws “establishe[d] a

standard

of

care

in

the

operation

of

aircraft”

and

that

“[a]

breach of this standard unexplained is of course negligence.” Id.
at 625-26.

“As the operator of an aircraft being operated in a

careless or reckless manner and in violation of the care required
[by the statute], [the owner] would be negligent per se and must
be held liable to anyone damaged as a natural consequence of such
conduct.” Id.
aircraft

Although it did not concern violation of a federal

regulation

via

shoddy

maintenance,

Lamasters

clearly

establishes that violations of public aircraft safety codes can
constitute negligence per se under Iowa law.
how

the

regulation

defines

the

class

of

And, depending on
persons

potentially

liable, even those with a passive role in the regulatory violation
can

be

aircraft

subject
who

to

negligence

authorized

the

per

se

pilot’s
- 36 -

(i.e.,
use).

the
See,

owner

of

the

id.

at

626

(crediting the plaintiff’s reading of the statutory language that
“the owner is, for liability purposes, identified with and treated
as the operator”).
Broader principles of Iowa law are in accord.

Generally, if

a law “lays down a rule or regulation of conduct specifically
designed for the safety and protection of persons or property,
injuries
under

proximately

the

resulting

circumstances

of

. . . would be actionable.”

from

the

its

case,

violation
is

within

to
its

one

who,

purview,

Adam v. State, 380 N.W.2d 716, 724

(Iowa 1986) (internal quotation marks omitted); accord Wiersgalla
v. Garrett, 486 N.W.2d 290, 292-93 (Iowa 1992) (noting also that
harm, to be actionable, must be of a kind the statute was intended
to prevent).

Further, Iowa courts have indicated a willingness to

apply the doctrine of negligence per se without regard to whether
a particular regulation is municipal, statewide, or federal in
origin.

See, e.g., Winger v. CM Holdings, LLC, 881 N.W.2d 433,

445-449 (Iowa 2016) (holding that negligence per se is not limited
to violations of statewide laws); Koll v. Manatt’s Transp. Co.,
253 N.W.2d 265, 270 (Iowa 1977) (finding that an employer’s OSHA
violation was negligence per se as to employees, whom the law was
designed to protect).
Cases from other jurisdictions support the proposition that
undertaking

actions

covered

by
- 37 -

federal

aviation

regulations

subjects one to a duty of reasonable care, violation of which
constitutes negligence per se.
582

F.3d

57,

67

(1st

See, e.g., Wojciechowicz v. U.S.,

Cir.

2009)

(“The

Violation

of

FAA

regulations, which have the force and effect of law, is negligence
per se.”) (citation omitted); Gatenby v. Altoona Aviation Corp.,
407 F.2d 443, 446 (3d Cir. 1968) (“As the pilot of a single engine
aircraft, Riguette was required to fly according to FAA visual
flight regulations (VFR).
conclusion

on

this

Reasonable men could come to no other

record

regulations were violated.

but

that

certain

visual

flight

The appellant is, of course, liable

for any injuries which were proximately caused by this negligence
per se.”) (citation omitted); Bibler v. Young, 492 F.2d 1351, 1359
(6th Cir. 1974); Rudelson v. U.S., 431 F.Supp. 1101, 1107 (C.D.
Cal.

1977)

(“A

violation

negligence per se.
that

violation

of

of

Federal

Aviation

Regulations

is

This rule is consistent with California law
a

safety

regulation

is

negligence

per

se.”)

(internal citations omitted). In one particularly salient case, a
district court denied the defendants’ motion for summary judgment
where the plaintiff alleged breach of contract “for failing to
provide overhauled or component parts that were ‘airworthy’ as
required by the contracts” coupled with negligence per se “based
on [a defendant’s] failure to follow required FAA regulations in
performing the overhaul of the gearbox.”
- 38 -

Indemnity Ins. Co. of

North Am. v. Am. Eurocopter LLC, No. 3-cv-949, 2005 WL 1610653, at
*2, 16-17 (M.D.N.C. July 8, 2005).
When

other

negligence
typically

per
a

states,
se

to

broader

such

as

violations

state

Nebraska,
of

policy

at

FAA

refuse

regulations,

play.

See,

to

extend

there

e.g.,

In

is
re

Derailment Cases, 416 F.3d 787, 795 (8th Cir. 2005) (“We agree
with

the

district

court’s

conclusion

that

the

violation

of

a

regulation or statute is generally not recognized as negligence
per se under Nebraska law.”) (citing Goodenow v. Dept. of Corr.
Servs., 610 N.W.2d 19, 22 (Neb. 2000) (“[A] violation of a statute
or regulation ordinarily is not negligence per se, but is only
evidence of negligence.”); Tank v. Peterson, 363 N.W.2d 530, 537
(Neb. 1985) (finding that violations of FAA regulations did not
constitute negligence per se)) (citation omitted).

Such a broad

refusal to treat any safety code violation as negligence per se is
anathema to the jurisprudence of the Iowa Supreme Court.

See,

e.g., Wiersgalla, 486 N.W.2d at 292-93; Koll, 253 N.W.2d at 270;
Jorgensen, 206 N.W.2d at 102.
Finally,
unexcused

and

Iowa

courts

unrebutted

have

held

allegations

at
of

summary
a

judgment

safety

that

regulation

violation, coupled with undisputed evidence of an injury falling
within the regulation’s ambit, create an inference of negligence
per

se

that

is

actionable

separate
- 39 -

from

a

breach-of-contract

claim.

In Boone, for example, the court found that “one of the

particulars of plaintiff’s negligence count is based on a safety
regulation of the Iowa Safety Code Rules and Regulations, Section
88.9.”

Boone,

383

F.Supp.

at

613.

Thus,

“at

least

this

particular of negligence may be one which arises independently of
the contractual duty.” Id.
similar

claim

“negligently

in
and

its

The Court finds that Sky Jet makes a
Complaint,

carelessly

violat[ed]

Regulations.” (Compl. ¶¶ 17, 21.)
this

case

–

aircraft

alleging

damage

that

the

EASA

Defendants
and

FAA

Doubtless the harm at issue in

flowing

from

a

crash

allegedly

attributable to improper maintenance - is of a type the asserted
FAA regulations are intended to prevent.

The Court finds that Sky

Jet’s allegation, albeit more general, sufficiently approximates
the safety code violation claimed in Boone.
In sum, the Court finds ample support for denying Defendants’
Motion for Partial Summary Judgment to the extent it turns on a
lack of extra-contractual duties owed to Sky Jet. There are no
facts before the Court concerning why Elliott, even if it did not
perform the maintenance, is free from vicarious liability for Quad
Cities’ alleged negligence or was incapable of otherwise violating
FAA regulations.
of

conformance

Similarly, Defendants have not adduced evidence
with

FAA

regulations,

conformance, or a lack of causation.
- 40 -

an

excuse

for

non-

In light of the equivocal

record and inferences drawn in favor of Sky Jet, Elliott could
have

retained

vicarious

liability

negligence of Quad Cities.

for

the

(extra-contractual)

Further, a reasonable jury could find

that both Defendants owed and breached duties, grounded not in the
Contract but in FAA regulations, to ensure with reasonable care
that

adequate

Aircraft.

replacement

As

things

parts

stand,

were

however,

installed
the

Court

on

the

Subject

denies

summary

judgment to Quad Cities on the antecedent ground that the record
fails to establish any contractual relationship with Sky Jet.
E.

Recoverable Damages

Although Sky Jet’s recovery is not limited as a matter of law
to repair or replacement of the left landing gear, the Court’s
findings

on

summary

judgment

constrain

Sky

Jet’s

recoverable

damages as follows.
Under Count I, Sky Jet may not recover from Elliott any tort
damages precluded by the unambiguous language of the Limitations
of Liability section.

The relevant clause provides that “in no

event shall Company be liable” in negligence for “loss of use of
the aircraft or loss of profits, diminution in value or special,
incidental or consequential damages or losses.”

Thus, Sky Jet may

not recover from Elliott in tort for loss of use of the Subject
Aircraft, lost profits, diminution in value, or special damages.
However, the terms “incidental” and “consequential” damages are
- 41 -

creatures of contract law.
some

of

the

other

investigation,

forms

They do not seem to map neatly onto
of

maintenance,

damages
and

Sky

recovery

Jet

seeks,

costs

as

such
well

as
as

“property damage to the Subject Aircraft, to a cargo pod affixed
to the Subject Aircraft, and to other property in or near the
Subject Aircraft.” (Compl. ¶ 18.)

Accordingly, the Court invites

further briefing on the extent to which these terms of contract
law foreclose or permit recovery of the other damages Sky Jet
seeks in tort.
Under Count II, of course, Sky Jet may seek recovery from
Quad

Cities

for

each

category

of

tort

damages,

because

the

evidence does not establish as a matter of law that Quad Cities is
entitled to the Contract’s negligence disclaimer.
Under Count III, Sky Jet may not recover from Elliott any of
the damages proscribed by the Limitations of Liability section,
including “special, incidental or consequential damages.”

Sky Jet

is, therefore, foreclosed from recovering for the diminished value
of the Subject Aircraft and for lost profits, loss of good will,
business reputation, and loss of use damages.
may

still

required

recover

to

give

certain
it

what

expectation
it

bargained

or

However, Sky Jet

compensatory

for,

so

long

damages
as

these

damages flow “directly and immediately from an injurious act” of
Elliott.

BLACK’S LAW DICTIONARY 416 (8th ed. 2004).
- 42 -

Such damages

include investigation, maintenance, and recovery costs as well as
the costs to repair the damage to the Subject Aircraft and to the
affixed cargo pod.

The Court invites further briefing on whether

damage to “other property in or near the Subject Aircraft” was
sufficiently

immediate

under

the

circumstances

to

avoid

the

consequential proscription. (Compl. ¶ 28.)
The caveat to the foregoing analysis, of course, flows from
that summary judgment deus ex machina:

assignment.

If evidence

at trial shows a valid assignment of the Contract to Quad Cities
such

that

Elliott

cannot

clothe

itself

with

the

negligence

disclaimer, then Elliott – to the extent Sky Jet proves that some
negligence on Elliott’s part proximately caused its injury –

may

well be subject to liability in tort for any and all of Sky Jet’s
asserted damages.

In that instance, the above damages analysis

relative to Counts I and II would simply invert.

On the other

hand, if such an assignment is established, then Sky Jet’s breachof-contract claim against Elliott fails ab initio.
IV.

CONCLUSION

For the reasons stated herein, the Court rules as follows:
1.
granted
warranty

Defendants’ Motion for Summary Judgment on Count III is
in

part

claim

and

under

denied
the

in

part.

Contract

- 43 -

but

Sky
may

Jet

has

pursue

a

no

viable

breach-of-

contract claim for damages in excess of the repair or replacement
value of the left landing gear.
2.

Similarly,

Defendants’

Motion

for

Partial

Summary

Judgment on Count I based on the Contract’s negligence disclaimer
is

granted

in

part

and

denied

in

part.

The

Contract

limits

liability for negligence but the facts do not establish, as a
matter of law, that Sky Jet’s recovery is limited to repair or
replacement of the left landing gear.
3. Defendants’ Motion for Partial Summary Judgment on Counts
I

and

II

duties.

is

denied

based

on

the

absence

of

extra-contractual

First, undisputed facts do not establish Quad Cities’

entitlement

to

claim

a

contractual

relationship

with

Sky

Jet.

Second, the record is insufficiently developed for the Court to
hold

as

a

matter

independently

of

tortious

law

that

Elliott

negligence,

such

cannot
as

be

liable

negligence

per

arising from alleged FAA regulatory violations.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: February 24, 2017
- 44 -

for
se