Insurance Company of Pennsylvania v. Delta Air Lines, Inc

Filing 44

Judge Richard G. Stearns: ORDER entered granting 16 Motion to Dismiss (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-11989 RGS
JAMES EASLER,
MICHELLE STONE-EASLER, and
INSURANCE COMPANY OF
STATE OF PENNSYLVANIA,
v.
DELTA AIR LINES, INC.,
FREEDOM AIRLINES, INC.,
MESA AIR GROUP, INC., and
COMAIR, INC.,
MEMORANDUM AND ORDER ON DEFENDANT
DELTA AIRLINE’S MOTION TO DISMISS
October 21, 2011
STEARNS, D. J.
After service was made, defendant Delta Airlines (Delta) moved to dismiss itself
from Count I of Insurance Company of Pennsylvania’s Amended Complaint and Counts
I and II of James Easler’s and Michelle Stone-Easler’s Amended Complaint, on
grounds that it owed no duty to any party involved in the litigation. On May 26, 2011,
the court converted Delta’s motion to dismiss to one for summary judgment. The court
then ordered Delta to produce “all evidence that it is not directly or indirectly liable for
James Easler’s injuries,” and allotted an additional period of time for plaintiffs to
marshal facts “to refute Delta’s evidence or otherwise concede the issue.” After

discovery on this issue, plaintiffs jointly assert that there is a dispute of fact as to
whether Delta had de facto “operational control” over the Freedom Airlines/Mesa
Group aircraft that was undergoing repairs at the time of Easler’s alleged accident.
The parties now agree that discovery establishes that the mechanic making the
repairs to the aircraft (Edwin Vilchez) is and was at all times an employee of Freedom
and not Delta. Plaintiffs nonetheless maintain that the work on the plane had begun in
a Delta hangar and that Delta later directed Vilchez and his local escort (Orr Jones, an
employee of defendant Comair) to move the plane to another area of the airport to
finish their work. On October 12, 2011, the court held a hearing on Delta’s motion for
summary judgment.
Based upon the representations of Delta’s counsel, Vilchez’s deposition
testimony, and Delta’s Third Supplemental Memorandum furnishing the court with its
answers to plaintiffs’ interrogatories, the court is satisfied that Delta should be
dismissed from the case. Delta’s role, such as it was, did not as a matter of law rise to
the level of “meaningful control [over the repair], however minimal” – the “critical
factor” in determining whether Delta owed a duty of care to Easler. In Corsetti v.
Stone, 396 Mass. 1 (1985), the Supreme Judicial Court explicitly adopted § 414 of
Restatement (Second) of Torts (1985), as the test govern the liability of an employer
for the negligence of an independent contractor. Id. at 9-10. Section 414 states: “One
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who entrusts work to an independent contractor, but who retains the control of any
part of the work, is subject to liability for physical harm to others whose safety the
employer owes a duty to exercise reasonable care, which is caused by his failure to
exercise his control with reasonable care.” Id. at 10 (emphasis added). See also
Dilaveris v. W. T. Rich Co., 424 Mass. 9, 12 (1996) (general contractor liable where
it was required by the language of the contract to “supervise and direct the work,”
including all safety aspects). Compare Lyon v. Morphew, 424 Mass. 828, 835 (1997)
(“[A] general right to order the work stopped or resumed, to inspect its progress, or to
receive reports, to make suggestions or recommendations which need not necessarily
be followed, or to prescribe alterations and deviations,” is not sufficient control to
trigger liability, quoting Restatement § 414).1
Delta attests that, from 2005 to 2010, Delta Connection planes were operated
and maintained by agents of Freedom Airlines, Inc., and Mesa Group, Inc., under the
contractual provisions of the Delta Connection Agreement (previously been produced
to plaintiffs). The Delta Connection lease at issue required Mesa to “inspect, maintain,
service, repair, and overhaul (or cause to be inspected, maintained, serviced, repaired,

1

Plaintiffs’ arguments repeatedly confuse the issue of whether Delta retained
control over its hangar and runway space at Logan Airport with control over the work
to be done on the plane itself, which is the test under § 414.
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and overhauled) the Aircraft.” It further specified that Freedom was to operate and
maintain the Aircraft “in strict compliance” with Freedom’s Operations Manual and any
applicable government regulations. Vilchez testified that he was a maintenance lead
mechanic employed by Freedom and Mesa in December of 2007 when he came to
Boston to “troubleshoot the maintenance issue” on an aircraft “where somebody got
hurt.” Vilchez Dep. at 41, 54.

Vilchez candidly testified to being “primarily

responsible” for operations of the aircraft; agreed that he held the “non-delegable
responsibility for ensuring that the aircraft” was ready to operate when he engaged the
engines; that he was “in total response – responsibility” at the time the alleged accident
occurred; and that he was “fully responsible” for whatever ensued. Id. at 78-81. On
its facts, this case is indistinguishable from Foley v. Rust Int’l, 901 F.2d 183, 184-185
(1st Cir. 1990), cited by the Supreme Judicial Court in Dilaveris, supra at 12, as a case
where a subcontractor’s agreement to take responsibility for all aspects of safety on the
jobsite absolved the general contractor of liability.2
ORDER
For the foregoing reasons, Delta Airline’s motion for summary judgment is

2

Also significant on the meaningful control issue is Delta’s sworn statement that
the first it was aware that any alleged accident had occurred was when it was served
with the plaintiffs’ Complaints.
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ALLOWED and Delta is DISMISSED as a defendant in the case. The dismissal will
enter without prejudice to permit plaintiffs to revisit the control issue in the unlikely
eventuality that evidence should develop that Delta has in some material respect
misrepresented the nature of its contractual relationship with defendants Freedom and
Mesa.
SO ORDERED.
/s/ Richard G. Stearns
________________________________
UNITED STATES DISTRICT JUDGE

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