Clark v PHI, Inc et al

Filing 44

ORDER & REASONS dismissing with prejudice 30 Motion for Summary Judgment; denying as moot 34 Motion to Continue Hearing on Motion for Summary Judgment. Signed by Judge Helen G. Berrigan on 07/27/2012. (kac, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FERRIS CLARK SR.

CIVIL ACTION

VERSUS

NO. 12-411

PHI, INC., BELL HELICOPTER
TEXTRON INC., and ALLIANZ
GLOBAL CORPORATE & SPECIALTY AG

JUDGE HELEN G. BERRIGAN

ORDER AND REASONS1

Plaintiff Ferris Clark Sr. brings this suit regarding a helicopter crash against PHI Inc.
(“PHI”), Bell Helicopter Textron Inc. (“Bell”), and Allianz Global Corporate & Specialty AG
(“Allianz”). PHI is the owner and operator of the helicopter. (Rec. Doc. 1 at 2). Bell is the
manufacturer and distributor of the helicopter. Id. at 3. Allianz is PHI’s insurance provider.
(Rec. Doc. 1 at 5).
Before the Court are two Motions. First, Defendant Bell’s Motion for Summary
Judgment. (Rec. Doc. 30). Plaintiff opposes this Motion. (Rec. Doc. 31). Second, Defendants
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Rachael McMillan, a second-year law student at Tulane University Law School, assisted in the preparation of this
order.
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PHI and Allianz’s Motion to Continue Hearing. (Rec. Doc. 34). Defendant Bell opposes this
Motion. (Rec. Doc. 43). Having reviewed the record, memoranda of counsel, and the law,
Defendant Bell’s Motion for Summary Judgment is DISMISSED WITHOUT PREJUDICE and
Defendants PHI and Allianz’s Motion to Continue Hearing is DENIED AS MOOT for the
following reasons.

I.

FACTUAL AND PROCEDURAL BACKGROUND
On March 24, 2011, Plaintiff Ferris Clark Sr. boarded a Bell manufactured 206-L

helicopter that was owned and operated by PHI with the intent to depart from offshore platform
Main Pass 61A, located in Plaquemines Parish, Louisiana. (Rec. Doc. 1 at 2). The helicopter
began to lose altitude and spin shortly after takeoff, ultimately crashing into the Gulf of Mexico.
Id. Plaintiff contends that the helicopter landed upside down in the water, making his escape
from the waterlogged helicopter cabin very difficult. Id. at 3. As a result, Plaintiff claims to
suffer extensive bodily injuries, post-traumatic stress disorder, and “severe psychological trauma
and injury.” Id. at 5.
Plaintiff sued Bell under several causes of action, including unreasonably dangerous
design and construction, creating and/or allowing an unreasonable risk of harm, failure to have
adequate warnings for helicopter operation, manufacturing and/or distributing a product that
does not conform to the manufacturer's express warranty, and "other acts and omissions creating
liability which will be more fully shown at the trial of this matter." (Rec. Doc. 1 at 4).
Defendant Bell now moves for summary judgment, arguing that the General Aviation and
Revitalization Act's 18-year statute of repose bars Plaintiff's recovery for any of his alleged
injuries. (Rec. Doc. 30-1 at 3).
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II.

STANDARD OF REVIEW
A district court can grant a motion for summary judgment only when the “‘pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.”’ Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district
court “will review the facts drawing all inferences most favorable to the party opposing the
motion.” Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court
must find “[a] factual dispute ... [to be] ‘genuine’ if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party ... [and a] fact ... [to be] ‘material’ if it might
affect the outcome of the suit under the governing substantive law.” Beck v. Somerset Techs.,
Inc., 882 F.2d 993, 996 (5th Cir.1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
“If the moving party meets the initial burden of showing that there is no genuine issue of
material fact, the burden shifts to the non-moving party to produce evidence or designate specific
facts showing the existence of a genuine issue for trial.” Engstrom v. First Nat'l Bank of Eagle
Lake, 47 F.3d 1459, 1462 (5th Cir.1995) (citing Celotex, 477 U.S. at 322-24, and Fed. R. Civ. P.
56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly
supported motion. See Anderson, 477 U.S. at 248. “If the evidence is merely colorable, or is not
significantly probative,” summary judgment is appropriate. Id. at 249-50 (citations omitted).

III.

LAW AND ANALYSIS

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A.

The General Aviation Revitalization Act of 1994
Congress enacted the General Aviation Revitalization Act of 1994 ("GARA") in response

to “the enormous product liability costs that our tort system had imposed upon manufacturers of
general aviation aircraft.” Lyon v. Agusta S.P.A., 252 F.3d 1078, 1084 (9th Cir. 2001). GARA
provides a statute of repose to guard manufacturers from these costs by barring civil actions for
death, injury, or property damage against the manufacturers of aircrafts with a maximum seating
capacity of 20 passengers if the accident occurred after an 18-year limitation period. Id.; 49
U.S.C. § 40101(2)(a)-(c). The statute of repose begins to accrue on "(A) the date of delivery of
the aircraft to its first purchaser or lessee, if delivered directly from the manufacturer; or (B) the
date of first delivery of the aircraft to a person engaged in the business of selling or leasing such
aircraft." 49 U.S.C. § 40101(2)(a). Additionally, the statute of repose may begin to accrue on
the date of the “completion of the replacement or addition” of “any new component, system,
subassembly or other part which replaced another component system, subassembly, or other part
originally in, or which was added to the aircraft and which is alleged to have caused such death,
injury, or damage.” Id.
Summary judgment is often appropriate when the statute of repose has run in favor of the
manufacturer. For example, in Altseimer v. Bell, the defendant helicopter manufacturer
successfully moved for summary judgment upon providing evidence that 18 years had elapsed
since the date of purchase when its equipment failure allegedly caused the plaintiff’s injuries.
Altseimer v. Bell Helicopter Textron, Inc., 919 F. Supp. 340, 342 (E.D.Ca. 1996). Finding that
the plaintiff’s claims were preempted by GARA, the court explained that “while harsh, such a
result is consistent with the purpose of GARA to [protect aircraft manufacturers from long-term
liability costs].” Id. Similarly, in Alter v. Bell, the defendant won a summary judgment motion
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for the same reason as in Altseimer. Alter v. Bell Helicopter Textron, Inc., 944 F.Supp 531, 54142 (S.D.Tex. 1996). The court in Alter concluded that the 18 year statute of repose lapsed by the
time the plaintiffs brought suit, thus preempting plaintiffs’ claims against the defendant for
injuries sustained in a plane crash. Id. at 536-37. The party seeking to invoke an exception has
the burden to demonstrate that the exception applies. Bianco v. Cessna Aircraft Co., No. 1 CACV 03-0647, 2004 WL 3185847, at *3 (Ariz. App. Div. Oct. 19, 2004). Thus, unless the
plaintiff meets the requirements of an exception to GARA’s statute of repose, summary
judgment is appropriate for when 18 years have elapsed under the statute’s guidelines.
GARA’s statute of repose is not absolute. Four narrow exceptions to the statute of repose
apply:
(1) if the claimant pleads with specificity the facts necessary to prove, and proves,
that the manufacturer with respect to a type of certificate or airworthiness certificate
for, or obligations with respect to continuing airworthiness of, an aircraft or
component, system, subassembly, or other part of an aircraft knowingly
misrepresented to the Federal Aviation Administration, required information that is
material and relevant to the performance or the maintenance or operation of such
aircraft, or the component, system, subassembly, or other part, that is causally related
to the harm which the claimant allegedly suffered; (2) if the person for whose injury
or death the claim is being made is a passenger for purposes of receiving treatment
for a medical or other emergency, (3) if the person for whose injury or death the
claim is being made was not aboard the aircraft at the time of the accident; or (4) to
an action brought under a written warranty enforceable under law but for the
operation of this Act."
49 U.S.C. § 40101(b) (emphasis added).
Defendant moves for summary judgment, arguing that GARA’s statute of repose bars
Plaintiff’s claims. (Rec. Doc. 30-1 at 4). Defendant provides the affidavit of Bruce Taylor,
Litigation Manager of Bell, and a signed invoice of sale both attesting to the fact that Defendant
sold the helicopter in question to PHI on December 20, 1991. (Rec. Doc. 35-4 at 1-5).
Defendant argues that Plaintiff’s injury occurred on March 24, 2011, over 19 years after Bell’s
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December 20, 1991 sale to PHI. (Rec. Doc. 30-1 at 1-2, 5). Thus, Defendant concludes,
GARA’s 18-year statute of repose has expired and Plaintiff’s claims against Defendant are
barred, consistent with the purpose of GARA. (Rec. Doc. 30-1 at 2, 5).
In response, Plaintiff seeks to invoke two exceptions to GARA: knowing
misrepresentation and written warranty. (Rec. Doc. 31 at 4-5). Plaintiff also argues that
Defendant’s Motion is premature because Plaintiff has not been afforded enough time to conduct
discovery on the exception issues. (Rec. Doc. 31 at 3). Specifically, Plaintiff argues that it has
not yet received discovery answers and documents from Bell which may provide a basis for
liability under one of GARA’s exceptions. (Rec. Doc. 31 at 5-6).
The parties do not dispute that GARA applies to Plaintiff’s claims. Therefore, the Court
will examine whether each exception to GARA’s statute of repose invoked by Plaintiff applies
and thus warrants additional time for discovery.

B.

Knowing Misrepresentation Exception

1.

Applicable Law

A plaintiff may overcome GARA’s statute of repose if the knowing misrepresentation
exception applies. 49 U.S.C. § 40101(2)(b). GARA requires that “the claimant pleads [knowing
misrepresentation] with specificity.” Id. One court explained that “the pleading standard is an
obvious analog to Federal Rule of Civil Procedure 9(b), which requires that parties plead fraud
‘with particularity.’” Rickert v. Mitsubishi Heavy Industs., Ltd., 923 F.Supp. 1453, 1456 (D.Wyo.
1996). In the Fifth Circuit, pleading fraud with particularity requires the “time, place, and
contents of the false representations, as well as the identity of the person and what [that person]
obtained thereby.” Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1068 (5th Cir.1994).
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Furthermore, the Fifth Circuit explains that “directly put, the who, what, when, and where must
be laid out before access to the discovery process is granted…We remind that this bite of Rule
9(b) was part of the pleading revolution of 1938. In short, we apply the rule with force, without
apology.” Williams v. WMX Technologies, Inc., 112 F.3d 175, 178 (5th Cir. 1997). Thus,
GARA’s pleading standard has a high bar for its requirements and timeliness.
Four elements of this exception must be pled with specificity for a knowing
misrepresentation defense to GARA’s statute of repose: “(1) knowledge; (2) misrepresentation,
concealment, or withhold of required information to the FAA; (3) materiality and relevance; and
(4) a causal relationship between the harm and the accident.” Rickert, 923 F.Supp. at 1456.
Conclusory statements, beliefs, and opinions absent proof of “materially fraudulent statements or
omissions” are not acceptable to meet the pleading standard of GARA’s knowing
misrepresentation exception. Bianco, 2004 WL 3185847 at *7. Furthermore, any documents used
to prove knowing misrepresentation must reference “any statement or submission by [the
defendant] to the FAA that was material, relevant, required, and knowingly false.” Id. at *6. For
example, in Bianco v. Cessna Aircraft Company, the court determined that a plaintiff did not meet
the requirements of this exception when the plaintiff claimed that the defendant withheld
information about its fuel system. Id. The plaintiff submitted affidavits which provided only
speculative conclusions about the defendant’s alleged concealment; thus, the plaintiff did not
meet the requirement to specifically plead knowing misrepresentation. Id.
A plaintiff may not plead the knowing misrepresentation exception if raised late in the
course of litigation without good cause. In Croman Corporation v. General Electric Company,
the court did not allow a plaintiff’s knowing misrepresentation claim when it was pled for the first
time in response to the defendant’s motion for summary judgment. Croman Corp. v. Gen.
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Electric. Co., No. 2:05-cv-0575-GEB-JFM, 2006 WL 3201099 at *6 (E.D.Cal. Nov. 2, 2006).
The court explained that the plaintiff never specifically pled the exception in its complaint or
amended complaint, the latter for which it was on notice from the defendant’s answer that the
defendant planned to use the GARA defense. Id. The plaintiff was unable to show good cause
for why it invoked the knowing misrepresentation in an untimely manner; hence, specifically
pleading this exception is unacceptable when the plaintiff had notice of the defendant’s GARA
defense but did not specifically plead knowing misrepresentation until a summary judgment
motion. Id.

2. Analysis
Defendant takes issue with Plaintiff’s tardy argument that this GARA exception may
apply. (Rec. Doc. 35-3 at 2, 5). Defendant asserts that Plaintiff never pled the knowing
misrepresentation exception with the specificity that GARA requires because Plaintiff raised this
defense in its opposition to Defendant’s Motion for Summary Judgment rather than its initial or
supplemental complaints. Id. at 2 Plaintiff responds that it needs additional time to determine if
the knowing misrepresentation exception may apply to its case. (Rec. Doc. 31 at 6). The Court
finds that Plaintiff has not met the requirement of pleading knowing misrepresentation with
specificity in order to successfully invoke this exception to overcome GARA’s statute of repose.
49 U.S.C. § 40101(2)(b).
Under the precedent set out by Rickert, where GARA requires a plaintiff to plead the four
necessary elements of knowing misrepresentation with specificity, Plaintiff in this case falls short
of GARA’s pleading standard for this exception. Rickert, 923 F.Supp. at 1456. Plaintiff argues in
its opposition to Defendant’s Motion that it needs more time to determine if “any of the
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exceptions to GARA apply.” (Rec. Doc. 31 at 5). This argument does not excuse Plaintiff’s
neglect of GARA’s pleading standard for the knowing misrepresentation exception. Following
Rickert’s conclusion that GARA’s pleading standard is analogous to Federal Rule of Civil
Procedure 9(b) for pleading fraud, Fifth Circuit jurisprudence does not take kindly upon
Plaintiff’s omission. Rickert, 923 F.Supp. 1456; See Williams, 112 F.3d at 178.
Plaintiff’s attempt to invoke the knowing misrepresentation exception also comes too late
in the course of litigation. Just as in Croman where a plaintiff was unsuccessful in raising the
knowing misrepresentation exception because the defense was raised for the first time in its
response to the defendant’s summary judgment motion, this case presents a similar set of
circumstances. Croman, 2006 WL 3201099 at *6. In this case, Plaintiff never specifically pled
knowing misrepresentation in its complaint or supplemental and amending complaint; indeed, a
review of the record shows that this defense is raised for the first time in its opposition to
Defendant’s Motion for Summary Judgment. (See Rec. Docs. 1, 8, 31). The Croman court
further explained that the plaintiff had fair notice that it should plead the elements of knowing
misrepresentation because the defendant listed GARA as an affirmative defense in its answer to
the plaintiff’s complaint. Croman, 2006 WL 3201099 at *6. Similarly, in this case Plaintiff was
on notice that it could plead GARA exceptions because Defendant listed GARA as an affirmative
defense in its Answer and Affirmative Defenses. (Rec. Doc. 10 at 8). Similar to the plaintiff in
Croman, Plaintiff here raised no exceptions to GARA until its opposition to Defendant’s Motion
for Summary Judgment. (Rec. Doc. 31). Plaintiff does not meet the pleading standard required
for this exception to GARA both in time and substance.

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C. Written Warranty Exception
1. Applicable Law
The written warranty exception to GARA’s statute of repose requires an express written
warranty; implied or unwritten warranties do not suffice under the statute. Bianco, 2004 WL
3185847 at *7. The Arizona Court of Appeals rejected a plaintiff’s argument that the written
warranty exception applied in a GARA case when the plaintiff presented implied warranties and
“a laundry list of amorphous warranties” regarding the aircraft’s airworthiness. Id. at *8. The
only written warranty the plaintiff presented had expired well before the accident. Id. at *7. The
court explained that if non-express written warranties could so easily overcome the statute of
repose, “we could effectively hold that the GARA never applies...the GARA repose provision
would never bar a claim. This cannot be the law.” Id. at *8. Hence, in order to invoke the
written warranty exception, a plaintiff must produce a current express written warranty. Id.
The plaintiff has the burden of producing a written warranty that clearly demonstrates a
warranty made to the plaintiff or owner and operator of the aircraft by the manufacturer of the
part allegedly causing the injury. Agape Flights, Inc. v. Covington Aircraft Engines, Inc., No.
CIV-09-492-FHS, 2011 WL 2560281 at *4 (E.D.Okla. June 28, 2011). For example, in Agape
Flights, Inc. v. Covington Aircraft, Inc., the plaintiff, the owner and operator of an airplane, was
unable to invoke the written warranty exception because it failed to meet the burden of proof of a
written warranty between itself and the defendant manufacturer. The court found that the
language in the aircraft’s rental agreement coupled with Oklahoma state statutes constituted
“simply no evidence” of a written warranty for a few reasons. Id. First, the warranty was
between two defendants, not the plaintiff. Second, even if the rental agreement could be
construed to apply to the plaintiff, the agreement’s language “[fell] well short of the required
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written warranty…to trigger GARA’s warranty exception.” Id. Third, the state law offers no
relief to the plaintiff because GARA explicitly “supersedes any State law to the extent that such
law permits any civil action.” Id. (citing GARA § 2(d)). Thus, an explicit written warranty must
clearly identify the plaintiff or owner and operator of the aircraft and the defendant manufacturer
as parties to the agreement.

2. Analysis
Plaintiff explains that Defendant’s Motion for Summary Judgment is premature because
it has not obtained discovery documents and answers which could reveal a written warranty.
(Rec. Doc. 31 at 5). Defendant argues that Plaintiff cannot prove the written warranty exception
because “there is no evidence of any written warranty having been made to plaintiff nor will any
such evidence be found in discovery.” (Rec. Doc. 35-5 at 4) (emphasis in original).
Furthermore, Defendant contends that Plaintiff never explained why additional discovery would
create a genuine dispute of fact to overcome summary judgment under Federal Rule of Civil
Procedure Rule 56(d). (Rec. Doc. 35-3 at 3).
The Court finds that Plaintiff may be able to make the case for successful written
warranty exception at the close of discovery. Unlike the knowing misrepresentation exception,
this exception has no pleading requirement. See 49 U.S.C. § 40101(2)(b)(4). Rather, Plaintiff
bears the burden of proof to show that an applicable written warranty exists. Bianco, 2004 WL
3185847 at *7-*8. Defendant argues that Plaintiff cannot meet this burden by providing a
written warranty, but Plaintiff states that it has not received many discovery documents that it
requested which may include a written warranty. (Rec. Doc. 31 at 5). Unlike Agape and Bianco
where the written warranty exception did not apply because the plaintiffs in each case provided
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implied, unwritten, or irrelevant warranties, in this case plaintiff has not yet discovered a
warranty and asks for more time to determine if an express written warranty exists. Agape, 2011
WL 2560281 at *4; Bianco, 2004 WL 3185847 at *7-*8. Thus, summary judgment is premature
with regard to the written warranty exception because there is a chance that discovery will yield
an applicable written warranty which Plaintiff could use to invoke an exception to GARA’s
statute of repose.

CONCLUSION
Accordingly,
IT IS ORDERED that Defendant Bell’s Motion for Summary Judgment is DISMISSED
WITHOUT PREJUDICE. (Rec. Doc. 30).
IT IS FURTHER ORDERED that Defendants PHI and Allianz’s Motion to Continue
Hearing is DENIED AS MOOT. (Rec. Doc. 34).

New Orleans, Louisiana, this 27th day of July, 2012.

_____________________
HELEN G. BERRIGAN
DISTRICT COURT JUDGE

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