Crouch et al v. Honeywell International, Inc. et al

Filing 273

MEMORANDUM AND OPINION by Judge Charles R. Simpson, III on 4/27/12; re 263 MOTION for Leave to File Third Party Complaint; motion to file a third-party complaint will be granted by separate order.cc:counsel (MLG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

LARRY DALE CROUCH, et al.

PLAINTIFFS

v.

CIVIL ACTION NO. 3:07-CV-00638

HONEYWELL INTERNATIONAL, INC., et al.

DEFENDANTS

MEMORANDUM OPINION

This matter is before the court on a motion by defendant John Jewell Aircraft, Inc., (“John
Jewell”) to file a third-party complaint (DN 263). For the reasons stated herein, that motion will be
granted.
BACKGROUND
The dispute in this case arises from a 2006 plane crash near Bardstown, Kentucky. Pilot
Larry Dale Crouch and his passenger, Teddy Lee Hudson, suffered injuries when Crouch was
forced to crash-land his Piper aircraft due to engine failure. In a complaint filed in November of
2007, the plaintiffs brought a claim for negligence against various defendants, including John
Jewell. Although the complaint did not provide much factual detail as to the cause of the crash,
the plaintiff’s March 3, 2010, response to defendant AVCO’s motion for summary judgment set
forth the plaintiff’s apparent theory of the case. Specifically, the plaintiffs contended that the
engine failure was caused by the separation of a magneto, which provides power to the engine’s
spark plugs, from the engine. The magneto was manufactured by the predecessor company of
defendant Teledyne Continental Motors, Inc.,while the engine was manufactured by the
predecessor company of AVCO. Under this theory, John Jewell was allegedly liable for the crash

because it overhauled the engine in 2005, at which time it replaced the magneto with a rebuilt
magneto that it had purchased from Teledyne.
In a November 17, 2008, memorandum of the Rule 16 scheduling conference and order,
Magistrate Judge James D. Moyer set June 1, 2009, as the final date to file motions for joinder of
parties or amendment of pleadings.
In early 2010, this court held that it did not have personal jurisdiction over Teledyne, and
thus transferred the plaintiffs’ claims against Teledyne to the United States District Court for the
Southern District of Alabama.
On December 30, 2011, John Jewell filed a motion to file a third-party complaint against
Kosola and Associates, Inc., and LoPresti Aircraft Engineering Company d/b/a LoPresti
Aviation. In the proposed third-party complaint, John Jewell alleges that Kosola had performed
engine mount repairs on the airplane and that LoPresti had designed an engine cowling for the
plane. The proposed complaint further alleges that Kosola breached its duty to repair the engine
mount in a reasonably safe manner and that LoPresti breached its duty to design a cowling that
fit and performed properly, and that those breaches proximately contributed to the accident.
Thus, the proposed complaint claims that if John Jewell is found to be liable for the plaintiffs’
alleged injuries, Kosola and LoPresti would be liable to John Jewell under common law
indemnity. Alternatively, John Jewell’s proposed complaint asserted that any fault found by the
jury should be apportioned between John Jewell, Kosola, and LoPresti.
The plaintiffs oppose John Jewell’s motion to file a third-party complaint on the ground
that the motion was filed more than two years after the deadline to join parties had passed, more
than three years after John Jewell had initially inspected the aircraft, and more than four years

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after the original complaint was filed. The plaintiffs complain that adding third-party defendants
will cause inordinate delay of the resolution of the plaintiffs’ claims by requiring depositions of
new parties, new depositions of previously-deposed parties, new evaluations of the aircraft, and
new consultations with experts. Finally, the plaintiffs assert that John Jewell is not entitled to
indemnity from Kosola and LoPresti under Kentucky law and that impleading parties solely for
the sake of apportionment of damages is inappropriate under Kentucky law.
In reply, John Jewell explains that its motion to file a third-party complaint was made in
response to the plaintiffs’ November 2011 revelation that they would pursue a previously
undisclosed theory of liability against John Jewell: that John Jewell was liable for defects in the
Kosola engine mount and LoPresti engine cowling. John Jewell asserted that, up until November
2011, the plaintiffs had consistently pressed only the magneto theory, and thus there was no
reason for John Jewell to seek to implead Kosola and LoPresti. However, the plaintiffs had
proceeded to trial against Teledyne in the Southern District of Alabama on the magneto theory,
but Teledyne had prevailed at that trial after presenting evidence that the accident was caused by
defects in the engine mount weld and engine cowling rather than the magneto. Thereafter, in a
telephone conversation that took place on November 3, 2011, the plaintiffs’ attorney told John
Jewell’s attorney that if John Jewell attempted to make that same argument, the plaintiffs would
put forth evidence that John Jewell’s actions in repairing the engine had exacerbated any
problems caused by the engine mount and engine cowling.1 In its reply papers, John Jewell also
disputed the notion that the plaintiffs would suffer prejudice, noting that a trial date had not yet
been set and discovery had not yet been completed. John Jewell further argued that it was the
1

John Jewell provided an affidavit from its attorney, James L. Burt, relating the details of
the phone call between himself and the plaintiffs’ attorney.
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plaintiffs that were injecting new issues into the trial, while John Jewell was simply attempting
to apportion fault.
ANALYSIS
Under Rule 14(a)(1) of the Federal Rules of Civil Procedure, a defendant may implead a
third party “who is or may be liable to it for all or part of the claim against it.” However, the
defendant must obtain leave of the court to file a third-party complaint more than 14 days after
serving its original answer. FED. R. CIV. P. 14(a)(1). “The purpose of Rule 14 is to permit
additional parties whose rights may be affected by the decision in the original action to be joined
so as to expedite the final determination of the rights and liabilities of all the interested parties in
one suit.” American Zurich Ins. Co. v. Cooper Tire & Rubber Co., 512 F.3d 800, 805 (6th Cir.
2008).
Timeliness is undoubtedly a large concern in this case. See Gen. Elec. Co. v. Irvin, 274
F.2d 175, 178 (1980) (noting that the timeliness of a motion to implead a third-party defendant
“is an urgent factor governing the exercise of such discretion”). The deadline to join parties
passed long ago. However, this is not a situation where there is an impending trial date. And,
more to the point, John Jewell has put forth a reasonable explanation for its delay in seeking to
implead Kosola and LoPresti. As John Jewell notes, the plaintiffs had been advancing the
magneto theory, including in motion papers filed in this court. John Jewell submitted with its
reply papers an affidavit from its attorney stating that the first time the plaintiffs had indicated
they might advance a theory other than the magneto theory was during a November 3, 2011,
phone call between John Jewell’s attorney and the plaintiffs’ attorney. In light of the fact that
there was no reason for John Jewell to implead Kosola and LoPresti when the case would solely

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center on the magneto theory, this court finds that John Jewell’s delay in seeking to file the thirdparty complaint against Kosola and LoPresti was reasonable.
Additionally, in light of the fact that John Jewell sought to implead Kosola and LoPresti
only after the plaintiffs suggested that they might raise issues pertaining to the engine mount and
engine cowling, this court finds persuasive John Jewell’s argument that the third-party complaint
will not inject new issues into the lawsuit. If the plaintiffs are going to present evidence of John
Jewell’s liability for the engine mount and engine cowling, they will be required to conduct
discovery on that issue, regardless of whether Kosola and LoPresti are named parties or not. To
be sure, some additional discovery may be required in order to appropriately apportion fault
between John Jewell, Kosola, and LoPresti. However, if issues surrounding the alleged
malfunctioning of the engine cowling and mount are to be litigated in this trial, then it is surely
more efficient to apportion fault in that same action rather than requiring John Jewell to bring a
separate action against Kosola and LoPresti. Indeed, the efficiency of making a final
determination of the liability of all interested parties in a single suit is the whole purpose of
allowing third-party complaints under Rule 14. American Zurich Ins. Co. v. Cooper Tire &
Rubber Co., 512 F.3d at 805. And, to the extent that the plaintiffs are concerned about discovery
and expert disclosure deadlines, those have been suspended and can be reset as needed.
The plaintiffs contend that “impleading parties merely for the sake of apportionment is
not supported by Kentucky law.” Courts have disagreed on whether apportionment constitutes a
cause of action under Kentucky law for the purpose of impleading a third-party defendant.
Compare Burton v. HO Sports Co., Inc., 2009 WL 1390832 (W.D.Ky May 14, 2009) (holding
that apportionment was not a valid claim), with Perry v. Parks, 2006 WL 658578, at *1-*2 (Ky.

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Ct. App. Mar. 17, 2006) (holding that third-party apportionment was a valid claim, and thus trial
court erred in dismissing third-party complaint). However, even assuming that apportionment is
not, by itself, a valid claim for which a third-party may be impleaded, John Jewell’s proposed
third-party complaint also presents another claim–for indemnity–against both third-party
defendants.
To that, the plaintiffs argue that the proposed complaint does not contain sufficient
grounds to entitle John Jewell to indemnity. The plaintiffs contend that the allegations are
insufficient because they do not set forth a breach of duty owed by the third-party defendants to
John Jewell. However, the plaintiffs cite no Kentucky law concerning indemnity claims to
support their position that John Jewell’s indemnity claims would be futile. And, in fact,
Kentucky law does not support their argument. A claim for indemnity under Kentucky law does
not require that the party claiming indemnity have been owed a duty by the party against whom
the indemnity claim is asserted. Rather, indemnity is appropriate in the following two situations:
(1) Where the party claiming indemnity has not been guilty of any fault, except
technically, or constructively, as where an innocent master was held to respond
for the tort of his servant acting within the scope of his employment; or (2) where
both parties have been in fault, but not in the same fault, towards the party
injured, and the fault of the party from whom indemnity is claimed was the
primary and efficient cause of the injury.
Degener v. Hall Contracting Corp., 27 S.W.3d 775, 780 (Ky. 2000) (quoting Louisville Ry. Co.
v. Louisville Taxicab & Transfer Co., 77 S.W.2d 36, 39 (1934)). John Jewell’s proposed
complaint alleges that Kosola and LoPresti breached duties owed to the plaintiffs, and those
breaches were the primary and active causes of the plaintiffs’ injuries. Thus, John Jewell’s
proposed complaint would, at least on the surface, seem to state a claim for indemnity from
Kosola and LoPresti under the second of the two listed situations.
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In sum, John Jewell has presented a reasonable explanation for its delay in seeking to
implead Kosola and LoPresti, and it appears that issues surrounding Kosola’s and LoPresti’s
alleged negligence will be the subject of discovery and will be litigated at trial in any event.
Thus, this court will grant John Jewell’s motion to file a third-party complaint against Kosola
and LoPresti.
CONCLUSION
John Jewell’s motion to file a third-party complaint will be granted. A separate order will
issue in accordance with this opinion.

April 27, 2012

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