Agape Flights, Inc. v. Covington Aircraft Engines, Inc. et al
OPINION AND ORDER by Judge Frank H. Seay granting 253 Motion for Summary Judgment ; denying 269 Motion to Reconsider (trl, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
AGAPE FLIGHTS, INC.,
) No. CIV-09-492-FHS
KANSAS AVIATION OF
OPINION AND ORDER
This matter is before the Court on the Motion for Summary
Judgment (Dkt. No. 253) filed by Defendant, Kansas Aviation of
Independence, LLC (“Kansas Aviation”) with respect to the breach of
(“Agape”) and the Motion to Revise the Order Dismissing Agape’s
Negligence Claim Against Kansas Aviation (Dkt. No. 269) filed by
For the reasons stated below, the Court finds Kansas
Aviation is entitled to summary judgment on Agape’s breach of
warranty claims and that the no justification exists for the
reversal of the Court’s
dismissal of Agape’s negligence claim.
Agape instituted this action on December 21, 2009, by filing
its Original Complaint to recover damages resulting from a December
20, 2007, crash of its plane in the ocean waters near the Bahamas.
The Defendants named in the Original Complaint were Covington
(“Sundstrand”), and John Doe Defendants 1-25.
Kansas Aviation was
not named as a defendant in the Original Complaint.
On April 16,
2010, Agape filed an Amended Complaint which added Kansas Aviation
as a defendant and asserted claims for negligence and breach of
warranties against Kansas Aviation based on its activities related
installed on the plane’s engine.1
Agape contends the crash and
resultant destruction of the aircraft were caused by the “defective
and unserviceable condition of the Engine, including the fuel pump
installed in the Engine.”
Amended Complaint (Dkt. No. 60), ¶ 13.
In particular, Agape’s investigation has led it to conclude that
the crash occurred as a result of an in-flight power loss resulting
from the fuel pump drive shaft splines being severely worn.
On September 27, 2011, the Court entered an Opinion and Order
(Dkt. No. 217) dismissing Agape’s negligence claim against Kansas
Aviation as barred by the application of Oklahoma’s two-year
statute limitation period, 12 O.S. § 95(A)(3).
As part of that
ruling, the Court determined that Agape’s Amended Complaint did not
15(c)(1)(C)(ii) of the Federal Rules of Civil Procedure. The Court
held that Agape had failed to identify any “mistake concerning the
identity of the proper party” sufficient to invoke the relation
back doctrine of Rule 15(c)(1)(C)(ii).
Agape filed its initial
Motion to Revise (Dkt. No. 218) asking the Court to apply the
recent United States Supreme Court ruling in Krupski v. Costa
Crociere, S.p.A., 130 S.Ct. 2485 (2010), to the facts at hand and
reinstate its negligence claim. In Krupski, the Supreme Court held
“Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or
Covington, P&W, and Sundstrand were again named as
defendants in the Amended Complaint. The “John Doe Defendants 125" in the Original Complaint were replaced by “John Doe
Defendants 2-25" in the Amended Complaint.
should have known during the Rule 4(m) period, not what the
plaintiff knew or should have known at the time of filing her
Id. at 2493.
Following a hearing on the
initial Motion to Revise, the Court directed Agape to refile its
Motion to Revise following the completion of discovery on the issue
of whether Kansas Aviation knew or should have known within the
Rule 4(m) 120-day time period for service of the Original Complaint
that, absent some mistake, the Original Complaint would have been
brought against it by Agape.
On September 5, 2012, Agape refiled
its Motion to Revise (Dkt. No. 269).
The standards relevant to the disposition of a case on summary
judgment are well established.
Having moved for summary judgment
in its favor under Rule 56 of the Federal Rules of Civil Procedure,
Kansas Aviation’s initial burden is to show the absence of evidence
to support Agape’s breach of warranty claims.
477 U.S. 317, 325 (1986).
Celotex v. Catrett,
Kansas Aviation must identify those
affidavits, if any," which establish the absence of any genuine
issue of material fact.
Universal Money Centers v. AT&T, 22 F.3d
1527, 1529 (10th Cir.), cert. denied, 115 S.Ct. 655 (1994) (quoting
Fed. R. Civ. P. 56©).
Kansas Aviation need not negate Agape’s
breach of warranty claims or disprove Agape’s evidence, but rather,
its burden is to show that there is no evidence in the record to
support Agape’s breach of warranty claims.
Celotex, 477 U.S. at
Agape, as the nonmoving party, must go beyond the pleadings
and "must set forth specific facts showing that there is a genuine
issue for trial as to those dispositive matters for which [it]
carries the burden of proof." Applied Genetics v. First Affiliated
Securities, 912 F.2d 1238, 1241 (10th Cir. 1990).
Summary judgment is not appropriate if there exists a genuine
material factual issue.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-51 (1986). "A fact is 'material' only if it 'might affect
the outcome of the suit under the governing law,' and a dispute
about a material fact is 'genuine' only 'if the evidence is such
that a reasonable jury could return a verdict for the non-moving
party.'" Thomas v. IBM, 48 F.3d 478, 486 (10th Cir. 1995) (quoting
Anderson, 477 U.S. at 248). In this regard, the court examines the
factual record and reasonable inferences therefrom in the light
most favorable to Agape.
Deepwater Invs. Ltd. v. Jackson Hole Ski
Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). This Court's function
is not "to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial."
Anderson, 477 U.S. at 249.
A motion to reconsider is appropriate under circumstances
“where the court has misapprehended the facts, a party’s position,
or the controlling law.”
1005, 1012 (10
Servants of Paraclete v. Does, 204 F.3d
Reconsideration “is not appropriate
to revisit issues already addressed or advance arguments that could
have been raised in prior briefing.”
BREACH OF WARRANTY CLAIMS
Kansas Aviation contends Agape’s breach of warranty claims are
subject to dismissal based on the language of the limited warranty
issued by Kansas Aviation upon the sale of the fuel pump to
Covington on August 21, 2006.
Kansas Aviation contends that as
part of this sale it issued an Overhaul and Repair Services
Warranty (“O&R Warranty”), which provides in relevant part:
Kansas Aviation of Independence represents and warrants
that its overhaul and repair services shall be free from
defect in workmanship under normal operating conditions
for twelve (12) months of 1,000 flight hours, whichever
comes first. However, Kansas Aviation of Independence
does not warrant its workmanship against damage or loss
misapplication of any part or engine.
Aviation of Independence liability for breach of its
warranty hereunder is limited to the repair or
replacement of defective parts and the customer expressly
waives any right it might have to special or
THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES OF
KANSAS AVIATION OF INDEPENDENCE WHETHER EXPRESSED OR
IMPLIED, NOR ARE THERE ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
THERE ARE NO WARRANTIES WHICH
DESCRIPTION ON THE FACE HEREOF.
O&R Warranty, attached as Exhibit 3 to Kansas Aviation’s Motion for
Summary Judgment (Dkt. No. 253). Relying on the 12-month provision
of the O&R Warranty2, Kansas Aviation contends Agape’s breach of
warranty claims are barred as the subject crash on December 20,
2007, was more than 12 months after the August 21, 2006, sale of
the fuel pump to Covington.
In response, Agape contends there is
no evidence in the record to establish that this O&R Warranty was
given to Covington as part of the sale on August 21, 2006.
Agape’s position that the O&R Warranty, with its limitations and
Kansas Aviation does not contend the 1,000 flight hours
limitation is implicated in this case.
exclusions, was not included within the sales documents provided
Covington; consequently, no written warranty exists and the implied
warranties of merchantability and fitness for a particular purpose
Aviation’s sale of the fuel pump to Covington.
While the undisputed record establishes that the O&R Warranty
was not included in the documentation attendant to the August 21,
2006, sale transaction between Kansas Aviation and Covington, the
Court finds the record conclusively establishes that the O&R
Warranty was nonetheless applicable to such transaction by the
(“Caldwell”), Sales Manager for Kansas Aviation, establishes that
Kansas Aviation overhauled fuel pumps for Covington on a regular
basis and that the O&R Warranty was made part of a negotiated
pricing agreement which was entered into on a yearly basis and was
applicable to all fuel pumps sold by Kansas Aviation to Covington
for that particular year.
Caldwell Affidavit, ¶ 10.
states that the sale of the subject fuel pump to Covington on
August 21, 2006, included the O&R Warranty and that a copy of such
was provided to Covington as part of the yearly pricing agreement.
Id. at ¶ 11.
Caldwell further states that the yearly pricing
agreement and the O&R Warranty resulted from direct negotiations
between himself and Robert Ramirez (“Ramirez”), on behalf of
During his deposition, Ramirez, Covington’s Parts Room
Manager, testified that he is the most knowledgeable person at
Covington regarding the O&R Warranty issue and that Kansas Aviation
and Covington had agreed to the O&R Warranty (and its 12-month
agreement for the sale of all fuel pumps sold by Kansas Aviation to
Covington, including the August 21, 2006, sale of the subject fuel
Agape’s submission of the deposition testimony of Ronald
Hollis (“Hollis”), a Covington employee working in customer support
and investigations, establishes only that the O&R Warranty was not
included in the documentation evidencing the August 21, 2006, sale
of the fuel pump to Covington.
Hollis’s testimony does not refute
the statements of Caldwell and Ramirez that the 12-month warranty
was created and issued as part of the yearly pricing agreement
between Covington and Kansas Aviation.
Indeed, Hollis stated in
his deposition that Kansas Aviation offered a 12-month warranty
with the sale of its fuel pumps.
Hollis Deposition, Exhibit 1 to
Kansas Aviation’s Reply to Motion for Summary Judgment (Dkt. No.
258), p. 187, lines 2-5 and p. 188, lines 6-7.
undisputed evidence before the Court establishes the issuance of
the O&R Warranty by Kansas Aviation to Covington, and that such
warranty was applicable to the sale of the subject fuel pump on
August 21, 2006.
See 12A O.S. § 2-313(1)(a) (Express warranties
are created by “[a]ny affirmation of fact or promise made by the
seller to the buyer which relates to the goods and becomes part of
the basis of the bargain”).
The language of the O&R Warranty
conspicuously excludes any warranties of merchantability or fitness
for a particular purpose.
See 12A O.S. § 2-316(1) (“[T]o exclude
or modify the implied warranty of merchantability or any part of it
the language must mention merchantability and in case of a writing
must be conspicuous, and to exclude or modify any implied warranty
of fitness the exclusion must be by a writing and conspicuous.
Language to exclude all implied warranties of fitness is sufficient
Ramirez testified that the O&R Warranty was not “a
significant factor in any pricing,” but he did acknowledge that
it was a part of the negotiated pricing agreement. Ramirez
Deposition (Dkt. No. 284), p. 34, lines 2-10 and p. 39, lines 1619.
if it states, for example, that ‘There are no warranties which
extend beyond the description on the face hereof.’”).
breach of warranty claims are therefore barred as the 12-month
warranty period expired before the December 20, 2007, crash of
In its Motion to Revise (Dkt. No. 269), Agape asks this Court
to reverse the dismissal of its negligence claim based on a
misapprehension of existing law. Agape argues that in light of the
Supreme Court’s recent ruling in Krupski, its knowledge concerning
the identity of Kansas Aviation as a defendant is not the proper
relevant inquiry is “whether [Kansas Aviation] knew or should have
known that it would have been named as a defendant but for an
Krupski, 130 S.Ct. at 2493.
In support of its position
that Kansas Aviation knew or should have known that it would have
been sued, Agape submits emails from 2008 between Covington, Pratt
& Whitney, and Kansas Aviation addressing Kansas Aviation’s fuel
pump overhaul in the context of an investigation of the plane
Included within these emails is a request from David
Hamilton, Covington’s Vice-President and Operations Manager, to
Ramirez that he, Ramirez, notify Kansas Aviation “that they may
want to notify their insurance company regarding the [fuel pump]
Based on these emails, Agape contends the Krupski
analysis has been satisfied because such evidence proves that
Kansas Aviation knew or should have known that it would have been
sued but for a mistake as to its identity.
The Court disagrees.
The Court concludes that the evidence does not establish that
Kansas Aviation knew or should have known that within the 120-day
time period for service of the original complaint that, absent some
mistake, the action would have been brought against it by Agape.4
Kansas Aviation’s knowledge, via 2008 emails, of a pre-litigation,
governmental investigation of the plane crash, along with an
internal Covington request to notify Kansas Aviation that they may
want to notify their insurance company, do not establish notice of
any litigation involving the subject fuel pump, nor does it suggest
that Kansas Aviation knew or should have known that Agape’s
Original Complaint would have been brought against it but for a
mistake concerning its identity.
The Court will not infer that
Kansas Aviation knew or should have known that it would have been
sued based on its knowledge of the plane crash, a request by
Covington for information on its overhaul of the subject fuel pump
pursuant to a governmental investigation, and
an internal request
by Covington to inform Kansas Aviation that it should contact its
At the point in the investigation when this
information was presented to Kansas Aviation, no litigation had
been commenced and, rather than “feigning ignorance in light of the
circumstances” as suggested by Agape, Kansas Aviation had nothing
before it to place it on notice that litigation was imminent, or
The record reflects that the first documented notice of
this lawsuit to Kansas Aviation occurred after the 120-day time
period of Rule 4(m). On May 4, 2010 - one hundred and forty-four
(144) days after the filing of the Original Complaint - Kansas
Aviation was served with summons on the Third-Party Complaint
filed by P&W and Sundstrand. See Dkt. No. 73. On May 14, 2010 one hundred and fifty-four days after the filing of the Original
Complaint - Kansas Aviation was served with summons on Agape’s
Amended Complaint. Summons on an April 12, 2010, Cross-Claim
(Dkt. No. 58) asserted by Covington against Kansas Aviation was
issued on October 14, 2010, but the record does not reflect
actual service of the Cross-Claim. Kansas Aviation nonetheless
filed its Answer to the Cross-Claim on November 8, 2010.
even contemplated by Agape.5
Consequently, the Court finds that
even after application of the Krupski standard, the record does not
establish that Kansas Aviation “knew or should have known that it
would have been named as a defendant but for an error.”
130 S.Ct. at 2493.
Judgment (Dkt. No. 253) filed by Kansas Aviation with respect to
Agape’s breach of warranty claims is granted. The Motion to Revise
Aviation (Dkt. No. 269) filed by Agape is denied.
It is so ordered this 26th day of October, 2012.
In its September 27, 2011, Opinion and Order, the Court
rejected the argument that there is an identity of interest
between Covington and Kansas Aviation sufficient to satisfy the
“mistake” proviso. Nothing presented in this second Motion to
Revise (Dkt. No. 269) causes the Court to reassess that finding.
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