Wetherilt v. Moore ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
KEVIN WETHERILT, et al., Plaintiffs/Appellants,
v.
PATRICK H. MOORE, et al., Defendants/Appellees.
No. 1 CA-CV 15-0143
FILED 4-6-2017
Appeal from the Superior Court in Maricopa County
No. CV2011-014464
The Honorable John Rea, Judge
AFFIRMED
COUNSEL
Curry, Pearson & Wooten, P.L.C., Phoenix
By Michael W. Pearson, Kyle B. Sherman
Counsel for Plaintiffs/Appellants
Warner Angle Hallam Jackson & Formanek, P.L.C., Phoenix
By J. Brent Welker, Jerome K. Elwell
Co-Counsel for Defendants/Appellees
Jerome A. Moore, St. Clair Shores, Michigan
By Jerome A. Moore
Co-Counsel for Defendants/Appellees appearing Pro Hac Vice
WETHERILT, et al. v. MOORE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Kenton D. Jones joined.
W I N T H R O P, Presiding Judge:
¶1 This lawsuit arises from a crash landing on January 28, 2011,
during the flight of an experimental kit aircraft—a RANS S-6ES—from
Sedona to Buckeye, Arizona. The plane was piloted by Kevin Wetherilt,
who was the only person onboard the plane at the time of the crash, and
owned by Patten Harvey (collectively, “Plaintiffs”). The aircraft’s elevator
control bracket assembly apparently became inoperative during flight,
severely limiting Wetherilt’s ability to maneuver and land the plane, and
Plaintiffs sought to show that the defendant, Patrick H. Moore—a licensed
airframe and power plant (“A&P”) mechanic, who had conducted annual
inspections of the aircraft, including most recently on November 15, 2010—
was the only person to have inspected or otherwise handled the hardware
of the elevator control system before the accident and had been negligent
in doing so. Plaintiffs, however, were unable to present direct evidence that
a defect in the elevator control system existed when Moore completed his
annual inspection, and at the conclusion of the trial in this matter, the jury
rendered a defense verdict. Plaintiffs appeal the jury’s verdict and the trial
court’s denial of their motion for a new trial, arguing that evidentiary errors
occurred during trial that require reversal. Finding no error necessitating a
new trial, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 After the accident, Plaintiffs filed a complaint alleging
negligence, negligence per se, breach of contract, breach of implied
1 In general, we view the facts and inferences therefrom in the light
most favorable to affirming the verdict. See Paul Schoonover, Inc. v. Ram
Constr., Inc., 129 Ariz. 204, 205, 630 P.2d 27, 28 (1981).
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warranty of fitness, and breach of implied warranty of workmanship
against Moore and others.2
¶3 Before trial, the parties filed several motions involving the
aircraft’s “airworthiness certificate” issued by the Federal Aviation
Administration (“FAA”), and numerous motions for full or partial
summary judgment that the trial court mostly denied.3 The court’s pretrial
minute entries include the following rulings and analyses:
[T]he [National Transportation Safety Board (“NTSB”)] report
states that the probable cause of the accident is “[a]
disconnection of the elevator control linkage due to incorrect
installation or maintenance, which was due to the retaining
nut backing off the belt and allowing the bolt to fall out.”
. . . . Based on the NTSB report, there is a question of
fact as to the cause of the accident and if the cause was the
disconnection and whether the disconnection occurred as a
result of improper assembly or improper maintenance.
....
There is a question of fact as to whether the control
linkage was secure when inspected by Defendant Patrick
Moore. The facts of the accident and the evidence secured at
the scene are evidence from which a jury could conclude that
Defendant failed to properly conduct the annual inspection,
2 In addition to Moore (and his wife), the First Amended Complaint
also named as defendants Edward Snyder and his wife, Patricia; the
Snyders’ business, Sport Planes Unlimited; and an employee of the Snyders,
Robert Tolbert. Plaintiffs alleged Snyder, Tolbert, and Sport Planes
Unlimited negligently built or fully assembled the aircraft before its sale to
Harvey in 2007. Snyder acknowledged that he or his business built the
major portion of the aircraft, but the Snyders sought bankruptcy protection,
and were eventually dismissed without prejudice from the lawsuit. This
appeal involves only Moore.
3 The trial court granted Plaintiffs’ motion for partial summary
judgment as to the affirmative defenses of quasi-estoppel, assumption of
the risk, and “airworthiness,” but noted that “Plaintiff[s] must still prove
that Defendant Patrick Moore was negligent and that his negligence was a
cause of the accident.”
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but are not conclusive as to any of Plaintiff’s claims.
Defendant Patrick Moore contends that he inspected the
aircraft and the cotter pins, nuts and bolts in the elevator and
contends that the control stick mechanism was in place and
secure. The case is rife with questions of fact.
....
Defendants seek summary judgment on the theory that
the subject aircraft was not “airworthy” because the
airworthiness certificate Plaintiff obtained from [the] FAA
was obtained under the false pretense that Mr. Harvey was
the “builder[.]” Neither Plaintiffs nor Defendants, however,
are claiming that the cause of this crash was the alleged
falsified claim by Mr. Harvey in his “Eligibility Statement
Amateur–Built Aircraft” form submitted to the FAA that he
was the builder. Rather Defendants concede that the cause of
the crash was the failure of the “bolts, nuts, washers and
cotter pins that held the aircraft’s elevator control bracket
together” to stay assembled. That Mr. Harvey may have
submitted false information to the FAA about who built the aircraft
to obtain eligibility for experimental amateur built aircraft status
with the FAA for purposes of an airworthy determination may go to
[]his credibility, but not to the agreed upon cause of this accident.
....
Defendants Moore seek summary judgment arguing
that there is no issue of material fact as to how the crash
occurred, and that Plaintiffs have no physical evidence that
Defendant Pat Moore caused the elevator control bracket
assembly to come apart. However, Plaintiffs’ burden of proof
is not proof with absolute certainty or even beyond a
reasonable doubt. Plaintiffs’ burden of proof is by a
preponderance of evidence. Although there is no direct
evidence that Defendant Moore caused the bracket assembly
to come apart, there is circumstantial evidence. Defendant
Moore, according to Plaintiffs, was the last person to have
inspected the aircraft. The crash occurred 24 flight hours after
the inspection. That circumstantial evidence is sufficient to
create a question of fact as to whether Defendant Moore was
negligent in his inspection and whether his negligence caused
the crash.
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....
Defendants may bring out information about whether or not the
airplane can be certified as to its airworthiness for the purposes of
evaluating its market value.
(Emphasis added.) As the trial court’s pretrial rulings made clear, Moore
could broach the subject of the aircraft’s airworthiness certificate for the
purposes of impeaching Harvey and evaluating market value/damages,
but not as a causation defense.
¶4 At trial, Wetherilt testified he provided flying lessons to
others, including Harvey. According to Wetherilt, his log indicated that,
after the November 15, 2010 inspection, he used Harvey’s plane for flight
instruction on November 18, 19, and 30, and December 1, 7, 8, 9, 19, 20, and
21, 2010. During that time, he experienced no difficulty with the elevator
control system. The next time he flew the plane was slightly more than one
month later—on January 28, 2011.
¶5 Wetherilt had obtained permission from Harvey to use the
airplane to fly to Buckeye and attend a January 29 “fly-in” at an airstrip
south of Phoenix. On January 28, Wetherilt drove to Sedona—where
Harvey’s plane was kept—and inspected the plane, including its flight
control systems, finding no problems. His inspection included manually
moving the horizontal elevator panel, which felt normal.
¶6 After completing his pre-flight inspection, Wetherilt taxied to
the runway, conducted a pre-flight engine test, and began his flight toward
Buckeye. Approximately ten minutes into his flight, he reached 8,500 feet
and pushed the elevator stick forward to level off, but nothing happened.
He increased altitude and tried the co-pilot’s stick, without success, then
ripped off the console between the seats, exposing the elevator control rod.
He pushed the stick again and the control rod moved, but nothing else did,
indicating to him the elevator control system had come apart somewhere
else.
¶7 Knowing his cell phone worked better near Cottonwood, he
tried to turn in that direction, but that maneuver caused the plane to go into
a downward spiral, which he could not control. After losing approximately
1,000 feet of altitude, the plane leveled off on its own. Wetherilt texted a
friend who was an aircraft mechanic experienced with RANS aircraft, but
the friend’s suggestions provided no solution, and they concluded
Wetherilt could not get to the area of the plane in need of repair while the
plane was in flight.
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¶8 Wetherilt decided to continue to Buckeye, which had a long
runway and would not involve flying over a city or into a busy airport.
During the flight, Wetherilt could control the plane somewhat in making it
go up or down, but turns were next to impossible.
¶9 Approximately twelve miles outside his destination,
Wetherilt radioed the Buckeye airport.4 He contacted a Lufthansa Airlines
training plane occupied by three pilots, who informed him several planes
were in the landing pattern. Wetherilt explained he could not enter the
landing pattern, but needed to fly straight in, and asked that other planes
be kept away. The pilot of the training plane agreed to assist him and follow
him in.
¶10 As Wetherilt’s plane approached the runway—with an
altitude of approximately fifty feet—a sudden down-draft forced the
plane’s nose down. Wetherilt tried applying more power, but without
effect, and the plane hit the ground nose down while traveling
approximately one hundred miles per hour. The nose landing gear was
ripped off, and the plane skidded to a stop a few feet to the left of the
runway. As the plane came to rest, Wetherilt became aware of sparks,
smoke, and the smell of gasoline. He quickly crawled out of the plane, and
the three Lufthansa pilots helped him shut off electrical circuits and a
gasoline valve.
¶11 Wetherilt called Terry Brandt, a “flying guru” in the Buckeye
area, who advised Wetherilt to call the Scottsdale FSDO, the FAA agency to
be contacted in the event of an aircraft accident. Wetherilt made that call,
and FAA safety inspector Jeff Miller arrived at the Buckeye airport
approximately two hours later. Meanwhile, Brandt arrived approximately
thirty minutes after Wetherilt’s call. According to Wetherilt, other than
turning off the electrical circuits and the gasoline valve, neither he nor
anyone else touched or moved the plane until Miller’s arrival. The three
Lufthansa pilots and Brandt stayed with Wetherilt while awaiting Miller.
¶12 When Miller arrived, he spoke with Wetherilt, who informed
Miller that he had not been physically injured. Over the next two hours,
Miller—followed by Wetherilt—inspected the aircraft, taking pictures and
opening the fuselage, which exposed where the rod in the elevator control
4 The Buckeye airport, like the Sedona airport, is an uncontrolled
airport, meaning that it does not have a control tower.
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Decision of the Court
system was disconnected.5 The following day, Wetherilt called Harvey,
who was vacationing in Hawaii, to inform him of what had happened.6
¶13 Miller, the FAA investigator, testified by deposition
regarding his investigation. After arriving at the crash site, he interviewed
Wetherilt, who stated he was not physically injured. Miller prepared field
notes, which disclosed the bolt connecting the aft elevator push-pull control
tube to the control stick was missing and not to be found, and the bolt
connecting the forward push-pull tube to the control stick was ready to fall
out. These were AN drilled shank bolts,7 requiring a washer, castellated
nut, and cotter pin for safety; however, the hardware was all missing, and
Miller found neither the missing hardware nor any opening in the bottom
of the aircraft that would permit hardware from the elevator control system
to fall out of the plane’s fuselage.
¶14 Miller’s testimony differed from that of Wetherilt on
numerous points: For example, Wetherilt testified the Lufthansa pilots
remained at the scene; however, Miller testified Wetherilt was the only
witness to the accident present when he arrived. Wetherilt and Miller also
disagreed as to who cut the aircraft’s fuselage fabric and opened the
5 Wetherilt made a report for the FAA approximately one week after
the crash. His report described the elevator control bracket assembly
having come apart. Two of the three nuts had come off, one bolt was
completely out, and another had almost come out. None of the bolts had
cotter pins inserted in them. He had no knowledge about who caused the
elevator control system’s condition.
6 At trial, Harvey testified that after acquiring his plane, he hired
Moore to do annual inspections in 2008, 2009, and 2010. Harvey claimed he
“never saw a checklist,” but relied on Moore’s expertise as a mechanic to
perform these inspections competently and certify his plane as fit for flight.
Harvey also testified he had spent slightly more than $70,000 to purchase
the aircraft, and presumably wished to recover approximately that amount,
but conceded that the current value of the plane “as is” was approximately
$45,000.
7 AN, or “Army-Navy,” is a designation meaning the bolt is designed
and manufactured according to military specifications, and is the industry
standard for aircraft bolts. AN bolts are generally far superior to common
hardware bolts.
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underside of the plane to initially disclose the elevator control failing;
whether Brandt had found the missing bolt on the runway; and whether
Miller had even spoken with Brandt during his investigation.8
¶15 Miller did not further speak with Wetherilt after the day of
the accident, but interviewed Harvey and Moore. Harvey stated Moore
was the only person who had worked on the aircraft, but acknowledged he
also had a repairman’s certificate.9 Miller reviewed Moore’s aircraft
maintenance log books, including the engine and propeller log books, and
noted there was no indication Moore had disassembled the elevator control
bracket assembly. Miller could not recall in his deposition whether the
elevator control bracket assembly had received maintenance, although he
asserted most A&P mechanics “would look at” that. Although Moore
received a warning letter advising him to more fully describe his work in
his log books, Miller did not find anything indicating Moore was at fault.
¶16 As part of his defense, Moore sought to show Wetherilt,
Harvey, and other persons had access to the aircraft after he conducted the
annual inspection on November 15, 2010, and could have performed
maintenance on the aircraft and/or otherwise meddled with it by
disassembling the elevator control bracket system. Moore also testified
regarding his extensive experience as an A&P mechanic and licensed pilot,
8 In a supplemental disclosure statement, Wetherilt stated a bolt was
found by Brandt on the ground at the Buckeye airport the day of the crash
and shown to Wetherilt and Miller. Miller, however, testified he looked for
the missing hardware that day, but did not find it, and stated if someone
had presented hardware found on the runway believed to be from the
plane, he would have photographed the items and referenced them in his
report.
9 See 14 C.F.R. § 65.104. Under subsection (a)(2) of 14 C.F.R. § 65.104,
“[t]o be eligible for a repairman certificate (experimental aircraft builder),
an individual must . . . [b]e the primary builder of the aircraft to which the
privileges of the certificate are applicable.” At his April 16, 2013 deposition
in this case, Harvey testified he had not participated in assembling or
fabricating the aircraft, and had “not done anything on the airplane but
change the oil and help a guy change the spark plugs.” Harvey surrendered
his repairman’s and airworthiness certificates to the FAA shortly before his
deposition.
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noting that, for periods exceeding fifty years as a mechanic and pilot, he
had never had a violation.
¶17 Moore had performed annual inspections of Harvey’s aircraft
in 2008, 2009, and 2010, using a check sheet covering all areas to be
examined. In the 2008 inspection, the nuts, bolts, and cotter pins were
found to be properly secured on the elevator control bracket. Moore further
testified his November 15, 2010 inspection was carefully and properly
done10; the plane was safe for flight when he signed Harvey’s logbook; his
certification stopped at the point of signing the logbook and did not cover
changes after that time; if the cotter pins were not in place, and the nuts
worked their way off the bolts, causing one of the bolts to fall off the
elevator control assembly, the hardware should have been found on the
floor of the aircraft; pictures of the disconnected elevator control system
after the crash were inconsistent with the condition of that system as
observed by him on November 15, 2010; and the only explanation for the
disconnected system was that someone disassembled it after his annual
inspection. Moore did not touch Harvey’s plane between November 15,
2010, and January 28, 2011, with the exception of minor servicing events on
November 19, 2010 (when he reconnected the cylinder head temperature
device) and January 6, 2011 (when he replaced the tires).
¶18 After four days of trial, the jury returned a unanimous
defense verdict. The trial court entered a judgment in favor of Moore,
ordering Plaintiffs to pay costs and Harvey to pay attorneys’ fees. In a
minute entry filed January 9, 2015, the trial court summarily denied
Plaintiffs’ motion for a new trial.
¶19 We have jurisdiction over Plaintiffs’ appeal. See Ariz. Rev.
Stat. (“A.R.S.”) § 12-2101(A)(1), (5)(a) (2016).
ANALYSIS
I. Standard of Review
¶20 We will affirm the trial court’s rulings on the admission of
evidence absent an abuse of discretion or legal error and resultant
prejudice. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506, 917 P.2d
222, 235 (1996); Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 88, ¶ 7, 977 P.2d
10 Moore testified he told Miller he did not recall the direction of the
cotter pins in the 2010 inspection; however, Miller’s field notes indicated
Moore said he remembered seeing the nuts on the bolts, but could not
remember seeing the cotter pins.
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807, 810 (App. 1998) (citing Gasiorowski v. Hose, 182 Ariz. 376, 382, 897 P.2d
678, 684 (App. 1994)). Thus, we will not reverse if the jury would have
reached the same verdict without the admitted evidence. See Brown, 194
Ariz. at 88, ¶ 7, 977 P.2d at 810. We review legal questions and the
interpretation of statutes de novo. See, e.g., Open Primary Elections Now v.
Bayless, 193 Ariz. 43, 46, ¶ 9, 969 P.2d 649, 652 (1998).
II. Defense Counsel’s Alleged Misconduct and Airworthiness
¶21 As we have noted, before trial, the parties disputed whether
the circumstances surrounding the FAA’s issuance of the special
airworthiness certificate for Harvey’s aircraft could be used as a defense to
Plaintiffs’ claims.11 The trial court ruled the subject of the airworthiness
certificate could not be used for causation purposes, but could be used for
impeachment and damages purposes. As we discuss later, the record fully
supports the court’s pretrial rulings, and we find no abuse of discretion
regarding those rulings. See Gemstar, 185 Ariz. at 506, 917 P.2d at 235.
11 An airworthiness certificate for a plane such as Harvey’s requires
compliance with the provisions of 14 C.F.R. § 21.191, which addresses
experimental certificates and provides in part as follows:
Experimental certificates are issued for the following
purposes:
(a) Research and development. Testing new aircraft design
concepts, new aircraft equipment, new aircraft installations,
new aircraft operating techniques, or new uses for aircraft.
....
(g) Operating amateur-built aircraft. Operating an aircraft the
major portion of which has been fabricated and assembled by persons
who undertook the construction project solely for their own
education or recreation.
(Emphasis added.) Harvey’s certificate of eligibility, signed and submitted
by him to the FAA, stated he had complied with the requirement of
subsection (g) by fabricating and assembling the major portion of his
aircraft. As Harvey conceded, however, although he had fully paid for the
building of the plane, Snyder/Sport Planes Unlimited fabricated and
assembled the plane before its delivery to Harvey.
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¶22 Plaintiffs argue Moore’s defense counsel committed
misconduct throughout his opening statement, questioning of witnesses,
and closing argument. A verdict or judgment may be vacated and a new
trial granted if misconduct of the prevailing party materially affected the
rights of the aggrieved party. Ariz. R. Civ. P. 59(a)(2). “Misconduct
materially affects an aggrieved party’s rights where it appears probable the
misconduct actually influenced the verdict.” Maxwell v. Aetna Life Ins. Co.,
143 Ariz. 205, 215, 693 P.2d 348, 358 (App. 1984). “The introduction of
evidence or pursuit of a line of argument which has no bearing on the
alleged wrong but which serves only to prejudice the jury is grounds for
reversal.” Elledge v. Brand, 102 Ariz. 338, 339, 429 P.2d 450, 451 (1967)
(citations omitted). Statements made to a jury not supported by facts or
reasonable inference that result in prejudice may also constitute reversible
misconduct. See, e.g., Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 450-51, 652
P.2d 507, 523-24 (1982); Sisk v. Ball, 91 Ariz. 239, 245, 371 P.2d 594, 598 (1962).
A. Alleged Misconduct in Opening Statement
¶23 Even assuming Plaintiffs fully preserved each of their
arguments through timely objections, we find no error requiring reversal.
Plaintiffs generally assert without elaboration that various comments made
by defense counsel in his opening statement were “inadmissible.” As a
plain assertion, we agree. The trial court addressed this issue in its
preliminary instructions when it cautioned the jury that the lawyers’
statements and arguments were not evidence: “It is important that you
distinguish in determining what the facts are between the testimony that
you hear under oath and what the lawyers say. Only the testimony is
evidence. What the lawyers say is not evidence.” The court reiterated this
instruction during trial. We presume the jury followed the court’s
instructions. See State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996).
¶24 Plaintiffs also assert defense counsel attempted to use the
subject of airworthiness for causation purposes in his opening statement.
The portion of the record they cite reveals the following: At trial, defense
counsel began his opening statement by broaching the subject of
airworthiness and Harvey’s credibility. Plaintiffs’ counsel objected and,
outside the presence of the jury, argued that although the court had ruled
Moore could bring the subject of airworthiness in for damages or
impeachment purposes, the subject of airworthiness could not be used for
causation purposes. The trial court noted the objection, but denied it,
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concluding that, although defense counsel had come “pretty close,” counsel
had not yet “crossed the line.” We find no error in the court’s ruling.12
¶25 In his opening statement, defense counsel also stated that
“[f]or reasons we may get into in this trial, this particular aircraft no longer
has an airworthiness certificate.” (Emphasis added.) The court overruled
Plaintiffs’ unspecified objection to this statement, and Plaintiffs argue that
misconduct occurred because defense counsel knew the aircraft had a valid
airworthiness certificate at the time of the accident. Contrary to Plaintiffs’
suggestion, defense counsel’s statement was not improper or a
misstatement of the facts. We find no error.
¶26 Plaintiffs also argue defense counsel improperly suggested
Moore would only be liable to Plaintiffs if Moore took apart the elevator
control bracket. The court instructed the jury, however, that Moore could
be liable for negligence if he failed to “use reasonable care,” which “may
consist of action or inaction.” We presume the jury followed the court’s
instructions. See LeBlanc, 186 Ariz. at 439, 924 P.2d at 443. Although
Plaintiffs suggest other statements of defense counsel may have constituted
misconduct, their contentions are not fully developed, with supporting
reasons and citation to the record, see ARCAP 13(a)(7)(A)-(B), and in our
review of the record, we have found no misconduct requiring reversal
related to the remainder of defense counsel’s opening statement.
12 Plaintiffs further argue the trial court should have presented the jury
with “a limiting or curative instruction on the relationship between the
Airworthiness Certificate and the other elements of Plaintiffs’ claims.”
Although Plaintiffs did file an “Objection to Defendants’ Supplemental
Proposed Jury Instructions and Motion for Curative Instructions” after
defense counsel’s opening statement, they do not in their opening brief cite
to a portion of the record where they proposed a specific instruction.
Moreover, when presented with the court’s proposed final instructions and
specifically asked whether there was “anything you want to put on the
record about the instructions that were given or not given or modified,”
Plaintiffs’ counsel stated that, other than an instruction regarding insurance
(which we later address), he was “fine with it.” Accordingly, to the extent
Plaintiffs challenge the trial court’s final instructions, including the lack of
a limiting or curative instruction, they have waived that argument.
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B. Other Alleged Misconduct
¶27 Plaintiffs’ primary argument supporting a finding of
misconduct is that defense counsel unfairly sought to impeach Harvey’s
credibility by improperly and repetitiously calling the jury’s attention to
circumstances surrounding the FAA’s issuance of the airworthiness
certificate for Harvey’s aircraft, as well as Harvey’s voluntary
relinquishment of the airworthiness certificate to the FAA more than two
years after the accident.13 Plaintiffs maintain defense counsel committed
misconduct in questioning several witnesses about the airworthiness
certificate, including asking Harvey about his lack of involvement in
building the aircraft and prior “misrepresentation” to the FAA that he was
the aircraft’s “builder”14; questioning Plaintiffs’ expert witness, Charles
Hicks, about the requirements for an airworthiness certificate and Harvey’s
alleged misrepresentation to the FAA; questioning Gary Towner, a retired
FAA safety inspector and designated airworthiness representative who had
previously certified Harvey’s aircraft for airworthiness15; and questioning
James Woods, a retired FAA inspector and investigator, who acted as an
expert witness pertaining to experimental aircraft for Moore.
¶28 In this case, even though his aircraft had a valid airworthiness
certificate issued by the FAA before the crash—and had therefore in his
13 Throughout the trial, Plaintiffs’ counsel made no objection on the
basis that any evidence was cumulative and only once objected on the basis
that a question had been “asked and answered,” during defense counsel’s
cross-examination of Harvey. The court overruled that single objection.
14 Plaintiffs argue that Harvey’s statements contained “no
inconsistencies” and “there was nothing for the Defense to impeach”
because “Harvey consistently testified that he did indeed sign as the
‘builder’ on relevant forms and that he did not assist in the building of the
aircraft.”
15 Towner, who accepted Harvey’s certificate of eligibility at “face
value” and issued the airworthiness certificate, testified the requirement in
14 C.F.R. § 21.191(g) that an amateur builder of an experimental aircraft
participate in more than fifty percent of the plane’s fabrication and
assembly had remained unchanged from at least 2003 through the time
Harvey sought the airworthiness certification. Towner stated that, had he
known Harvey had no participation in building the aircraft, he would not
have certified it.
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words been “exonerated” by the FAA—Harvey’s veracity in obtaining the
certificate by representing he was the “builder” who had fabricated and
assembled the aircraft—and thus his credibility—could be fairly explored
and attacked because he provided verification inconsistent with his
subsequent representations and testimony. See Ariz. R. Evid. 607. Further,
the documents referred to by defense counsel on cross-examination of
Harvey had been admitted upon stipulation of counsel at the onset of trial,
and could be fairly “inquired into” as “probative of [Harvey’s] character for
truthfulness or untruthfulness.” Ariz. R. Evid. 608(b)(1). Additionally, the
witnesses questioned by defense counsel testified that an aircraft cannot be
operated without a valid airworthiness certificate, and whether Harvey
could qualify as the “builder” was legally significant to the issue of whether
his aircraft could be repaired, recertified with a valid airworthiness
certificate, and then sold. Defense counsel properly solicited information
about whether the aircraft could be recertified as to its airworthiness for the
purpose of evaluating its market value and Harvey’s claim for damages.16
¶29 Moreover, we reject Plaintiffs’ reliance on one juror’s question
to Harvey concerning his understanding of the meaning of the term
“builder” as evidence that defense counsel’s questioning unfairly
influenced the jury’s verdict. Defense counsel objected to the question,
arguing that 14 C.F.R. § 21.191(g) “says that a builder means major portion
must fabricate or assemble a major portion of the aircraft.” The following
colloquy occurred:
THE COURT: Well, the – you’ve raised this issue to his
credibility, and this goes directly to whether it should effect
[sic] his credibility or not.
[PLAINTIFFS’ COUNSEL]: I agree, Your Honor.
THE COURT: Doesn’t go to whether it’s airworthy or not. It
goes to his credibility.
[PLAINTIFFS’ COUNSEL]: That’s exactly right.
Shortly thereafter, the court addressed Harvey as follows: “The next
question deals with the line of questioning about whether you built the
plane or not and what you signed. Did you misinterpret what, quote,
16 As the trial court noted in its October 15, 2014 minute entry awarding
Moore attorneys’ fees, costs, and Rule 68(g) sanctions, “The issue of
airworthiness was relevant to the value of the aircraft and therefore central
to the amount of Harvey’s damages.”
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builder of plane, close quote, means; that is, whether it was physical
building versus financing and ordering the plane to be built?” Harvey
answered, “It never occurred to me in the whole circumstances whether this
airplane was illegal or not. I was not going to put $70,000 in an illegal
airplane.”
¶30 Plaintiffs’ counsel’s affirmation that the juror’s question went
to Harvey’s credibility, and Harvey’s answer—which addressed his
credibility and the plane’s market value—provide no indication that
defense counsel’s prior questioning unfairly influenced the jury’s verdict
by arousing passion or prejudice on the part of the jury.
III. Airworthiness
¶31 Plaintiffs argue that, even if defense counsel’s conduct did not
rise to the level of reversible misconduct, the trial court’s pretrial rulings
allowing testimony on the subject of the airworthiness certificate for
damages and impeachment purposes nonetheless constituted error because
they had the effect of allowing a debate on airworthiness despite the fact
that the FAA has exclusive authority to determine whether an aircraft is fit
for flight and has certified the aircraft airworthy.
¶32 The trial court did not err in allowing Moore to present
evidence of circumstances that might diminish the value of Harvey’s claim.
Harvey himself acknowledged an experimental aircraft cannot be flown
without an airworthiness certificate, and Plaintiffs’ witness, Charles Hicks,
affirmed that if an experimental aircraft is sold without such a certificate,
its value would be diminished.
¶33 Moore’s witness, Towner, the designated airworthiness
representative, testified that for a plane such as Harvey’s to receive an
airworthiness certificate, there must be both a certification by a qualified
person that the plane has been inspected for safe operation and an affidavit
from the amateur builder that he or she fabricated and assembled at least
fifty-one percent of the experimental aircraft. Because experimental aircraft
are not subject to all the maintenance regulations that apply to other
aircraft, the designated airworthiness representative prepares a list of
operating limitations that apply to the plane being certified, and annual
inspections are required. The annual inspections are to be done by a
certified airframe mechanic or a person possessing a repairman’s certificate.
The only person eligible to receive a repairman’s certificate would be the
plane’s builder.
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¶34 Moore’s other witness, Woods, explained why major
participation by the builder in the fabrication and assembly of a self-built
experimental plane is required when he testified that a repairman’s
certificate is “a certificate that allows the builder of the amateur-built
aircraft to perform maintenance on his own aircraft. The presumption
being he built it, who better to know how to work on it.” Woods also
testified that the requirement of requiring a “major portion builder” for
certification had not changed, and the FAA was required to follow the
applicable regulations. Additionally, if an airworthiness certificate is
surrendered, it can be recertified by the owner; however, if the owner had
not actually done the major portion of the original fabrication and
assembly, the owner would have to disassemble the aircraft, reconstruct it,
and submit an eligibility statement affirming the owner had done not less
than fifty-one percent of the fabrication and assembly. Further, if the
aircraft were sold in its un-airworthy condition, its market value would
presumably be impacted because the buyer would have to go through the
same process of disassembling the plane, reconstructing it, and applying
for an airworthiness certificate by affirming he had built at least fifty-one
percent of the aircraft, or seek to go through a different classification,
designated as “experimental airshow, experimental exhibition.”
¶35 The preceding testimony on airworthiness was at least
marginally relevant in that it directly impacted considerations of the plane’s
market value and Harvey’s damages claim. We find no abuse of discretion
regarding the trial court’s decision to allow testimony regarding the subject
of airworthiness as related to Harvey’s damages. See Gemstar, 185 Ariz. at
506, 917 P.2d at 235.
IV. The Scope of James Woods’ Testimony
¶36 Plaintiffs assert that Woods testified regarding a multitude of
topics outside the scope of Moore’s Rule 26.1 disclosure statement—and
presumably Woods’ scope of expertise—including the possible causes of
the accident, the steps to recertify Harvey’s aircraft, and the impact of
certification on the value of the aircraft.
¶37 A summary of Woods’ testimony reveals the following:
Woods is a retired FAA principal maintenance inspector for airworthiness.
His responsibilities included oversight of the aircraft maintenance industry;
certification of repair facilities, mechanics, and aircraft; aviation safety
inspections; and accident investigation. His experience included
experimental aircraft. He has known Moore for approximately fourteen
years, and verified Moore had no violations as an A&P mechanic.
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¶38 Woods conducted over thirty aircraft accident investigations.
While with the FAA, he was trained in administrative law and regulations,
conducting accident investigations, and amateur-built certification. He also
conducted seminars on experimental aircraft and procedures for certifying
such planes. Woods explained that, in accident investigations, FAA
investigators look for witnesses, obtain statements, look for evidence from
traffic control tower tapes and people who took pictures or videos, and
review any text messages a pilot may have sent requesting help. If an
emergency is declared, a tape will be kept until it is determined whether
the investigating office wants it.
¶39 Woods testified that, after the crash, he personally inspected
Harvey’s plane and various documents related to the crash, including
Miller’s field notes and report. Before the next question, however,
Plaintiffs’ counsel objected “[b]ased on that line of questioning as far as
disclosure” because Woods “was never disclosed as an accident
investigation expert.” Defense counsel countered that Plaintiffs’ counsel’s
allegation was “not true,” and after a brief discussion, Plaintiffs’ counsel
withdrew the objection, stating, “I’ll just cross him on it.”
¶40 Woods continued to testify, stating he agreed with the
probable cause determination of the NTSB. He then testified that, if an
experimental aircraft’s airworthiness certificate were surrendered,
rescinded, or revoked, the aircraft could still be recertified, and he
explained the need and process for doing so. He also stated that, in his
opinion, Harvey’s airworthiness certificate should not be considered valid
because Harvey had “misrepresented his involvement in the building of the
aircraft when he submitted the original paperwork.” Plaintiffs’ counsel did
not object to this testimony.
¶41 Based on crash site photos, Woods concluded it did not
appear the collapsing of the nose gear caused the bottom of the fuselage to
burst open. The opening in the fuselage bottom, as shown by the
photographs, had an even line, consistent with being cut, as opposed to the
jagged, uneven line of a tear that would have been made when the crash
occurred. Further, if the crash had caused the fuselage to burst, followed
by the plane sliding off the runway and into the dirt, one would expect to
find dirt and debris in the fuselage.
¶42 Plaintiffs’ counsel again objected on the basis that Woods had
not been disclosed as an accident reconstruction expert. After another
discussion, in which the parties disagreed whether the subject had been
broached and fully explored during Woods’ deposition and whether the
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defense’s disclosure statement had encompassed Woods “testifying as an
accident investigation expert,” the trial court sustained the objection.
¶43 Woods then testified without objection about the general
impact of certification on the market value of the aircraft. He also testified
that his review of the maintenance logs did not indicate that Moore’s annual
inspections had been deficient or that Moore had ever disassembled the
elevator control bracket assembly. Woods also stated that his on-site
inspection of the aircraft’s elevator control bracket system did not reveal
significant wear.
¶44 During cross-examination, Plaintiffs’ counsel inquired about
Woods’ training and experience in accident investigation and his
evaluation of Miller’s field notes and the cause of the accident, leading to
the court ruling the door had been opened for Woods to testify regarding
accident investigation. During further cross-examination, Plaintiffs’
counsel questioned Woods about the accident investigation.
¶45 On redirect examination, Woods stated that if the elevator
control system’s hardware had simply fallen off, one would expect to find
it in the fuselage. He also testified that, from his experience as a pilot, a pre-
flight inspection would typically involve manually moving the elevator,
and observing whether the control column moves. A pilot would also pull
the control column and observe whether the elevator responds properly.
An elevator control bracket disassembled as this one was would probably
be detected in the pre-flight inspection. He further affirmed that, if there
were no problem with the elevator assembly and the landing were simply
botched, an inspector would expect to find the hardware still intact, and if
Moore had correctly observed the nuts, bolts, washers, and cotter pins in
the elevator control system to be properly installed and secured during his
November 15, 2010 inspection, the only way for that system to appear as it
does in the post-crash pictures is for someone to have removed those
components. With the correct tools, someone could remove those
components in approximately ten to fifteen minutes, although no one had
ever stepped forward and admitted pulling the cotter pin or otherwise
removing the hardware.
¶46 The court then sustained Plaintiffs’ counsel’s objection to
defense counsel’s hypothetical asking whether a pilot (presumably
Wetherilt) could remove the cotter pins and bolts from the elevator control
linkages in an effort to cover up a botched landing. We presume the jury
followed the court’s preliminary instructions to not consider questions or
testimony from which an objection has been sustained. See LeBlanc, 186
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Ariz. at 439, 924 P.2d at 443. In response to jury questions, Woods testified
that sometimes parts cannot be found after a crash, such as those with a fire,
or a mid-air disintegration, but when the entire plane comes to the scene of
the impact, he has never been unable to find the hardware.
¶47 We find no error requiring reversal. Our review of the
transcript containing Woods’ testimony leads us to conclude the
complained-of testimony was either cumulative to other testimony, was un-
objected to, or the door was opened by Plaintiffs’ counsel on cross-
examination. Further, Plaintiffs do not demonstrate that Woods’ testimony
fell outside the scope of his expertise or that they were unfairly surprised
or prejudiced by his testimony.17 Moreover, to the extent Plaintiffs simply
challenge Woods’ credibility, it was within the jury’s province to determine
his credibility. See Logerquist v. McVey, 196 Ariz. 470, 488, ¶ 52, 1 P.3d 113,
131 (2000). The trial court did not abuse its discretion.
V. Moore’s Mention of Insurance
¶48 Plaintiffs argue reversible error occurred when Moore
mentioned insurance, a statement they contend was intentionally
misleading and prejudicial because it indicated to the jury that Harvey’s
plane was insured when it was not.
¶49 “Evidence that a person was or was not insured against
liability is not admissible to prove whether the person acted negligently or
otherwise wrongfully.” Ariz. R. Evid. 411.18 The reason behind the
prohibition is that admitting evidence of a defendant’s liability insurance
creates an unacceptable risk that the jury, either in finding liability or in
determining the amount of the award to make, will be influenced by the
fact that an insurance policy is available to pay any award made. See
generally Muehlebach v. Mercer Mortuary & Chapel, Inc., 93 Ariz. 60, 62, 378
P.2d 741, 742 (1963). However, the mere mention of insurance will not
require declaration of a mistrial or a new trial, unless prejudice resulting
17 In his 8th Supplemental Rule 26.1 Disclosure Statement, Moore
disclosed that Woods would “testify about all issues involved in this case,”
and all issues testified by Woods were explored in Woods’ deposition,
including the possible reasons for the accident, which were explored
extensively.
18 The court, however, “may admit this evidence for another purpose,
such as proving a witness’s bias or prejudice or proving agency, ownership,
or control.” Ariz. R. Evid. 411.
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from it is shown. Id. at 64, 378 P.2d at 743; accord Michael v. Cole, 122 Ariz.
450, 452, 595 P.2d 995, 997 (1979); Sheppard v. Crow-Barker Paul No. 1 Ltd.
P’ship, 192 Ariz. 539, 547, ¶ 43, 968 P.2d 612, 620 (App. 1998).
¶50 In this case, the issue of insurance was first mentioned to the
jury on the first day of trial by Wetherilt. In discussing the training he
provided Harvey for the aircraft, Wetherilt stated, “Usually for most people
that are stepping down from private pilot, they have a requirement of five
or six hours with an instructor in order to qualify for the insurance for the
plane.“ Harvey testified on the second and third days of trial, and at the
conclusion of his testimony, a juror submitted a question asking why
Harvey apparently did not have aircraft insurance. The court did not ask
the question, but instructed the jury as follows:
There was another question about whether there was
aircraft insurance. And actually I was just going through our
final jury instructions. One of the instructions I’m going to
give you at the end of the case is that in reaching your verdict
you should not consider or discuss whether any party was or
was not covered by insurance. Whether any party had
insurance or didn’t have insurance is not relevant to the facts
that you have to determine in this case. So it’s a question that
doesn’t come up in these kinds of cases, insurance.
¶51 On the fourth and final day of trial, insurance was mentioned
again—this time by Moore. When asked on direct examination whether he
had an opportunity to see Harvey’s plane after the crash, Moore affirmed
he had. When asked “how that came about,” Moore responded as follows:
Mr. Harvey called me up and said the insurance
company was starting to get concerned about the airplane out
uncovered and he had to get it back up to Sedona. And I told
him I’ll go down with a buddy of mine. He said he had a
trailer but he didn’t have a truck. I said I got a buddy and I
got a buddy with a truck. So we went down and picked it up.
We folded the wings back and tied everything down, put it
on Mr. Patten—Mr. Harvey’s trailer and we pulled it back up.
¶52 Plaintiffs’ counsel objected, and after approaching the bench,
stated outside the presence of the jury, “I know he did it inadvertently, but
he mentioned insurance.” Counsel for Moore avowed, “I told him please
don’t mention it.” The court began to state it would “tell the jury,” and
Plaintiffs’ counsel interjected, “I understand. I understand. I’m giving you
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Decision of the Court
a heads up. I want to let you know.” Plaintiffs’ counsel did not move to
strike the testimony.
¶53 Later, before the trial court read final instructions to the jury,
Plaintiffs’ counsel again brought the issue of insurance to the court’s
attention, stating in part, “I’m not saying it’s malicious. I’m not saying it
was intentional. I think it was inadvertent. But it still has the same effect[.]”
Plaintiffs’ counsel then requested “a curative instruction that Mr. Harvey
did not have insurance on [the airplane], because he didn’t.” The trial court
denied the request “because we’re giving the standard instruction that they
should not consider at all insurance, either party.” The court later
instructed the jury with regard to insurance as follows:
I told you this earlier but it’s important to repeat. In
reaching your verdict you should not consider or discuss
whether any party was or was not covered by insurance. You
need to determine the facts of the case regarding liability and
damages and whether any party had or did not have
insurance has no bearing on your decisions on those issues.
The subject of insurance was not further mentioned at trial.
¶54 Plaintiffs argue that Moore’s mention of insurance was
inaccurate because it conflicts with Harvey’s declaration filed in support of
his motion for new trial that the reason he wanted to move the airplane to
Sedona was due to concern that the airplane might be broken into or
vandalized, and that a conversation with Moore regarding insurance never
occurred. Plaintiffs maintain Moore’s mention of insurance misled jurors
to believe the airplane was insured when, in truth, it was only insured while
on the ground and not in relation to flight or the accident.
¶55 No reversible error resulted from the inadvertent mention of
insurance by Moore. In this case, the insurance mentioned was apparently
Harvey’s, not Moore’s, and the context of the testimony by Moore suggests
the insurance involved was not liability insurance.19 Moreover, Plaintiffs’
19 See Ariz. R. Evid. 411. Even assuming the language of Rule 411
applies to prohibit Moore from testifying about Harvey’s insurance, “Rule
411 specifically applies to ‘insurance against liability,’ and does not mention
[property or other] insurance.” Cervantes v. Rijlaarsdam, 190 Ariz. 396, 398,
949 P.2d 56, 58 (App. 1997). Moreover, even when mentioned in the context
of liability insurance, the mere mention of insurance is not necessarily
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arguments ignore the context of the statement made by Moore and
overstate Moore’s testimony in saying Moore “claimed the plane was
insured.” Moore only related what he believed Harvey said to him, and the
jury had ample opportunity to assess Moore’s credibility. See, e.g.,
Logerquist, 196 Ariz. at 488, ¶ 52, 1 P.3d at 131. Additionally, Plaintiffs’ trial
counsel, being present and observing the questions and answers, is the
more reliable source for assessing whether Moore’s mention of insurance
was inaccurate or made with a bad intention. Most importantly, the trial
court adequately and correctly addressed the inadvertent mention of
insurance in its instructions to the jury. We presume the jury followed the
instructions given it. See LeBlanc, 186 Ariz. at 439, 924 P.2d at 443. On this
record, Plaintiffs have shown no prejudice.
VI. Denial of Plaintiffs’ Motion for New Trial
¶56 Plaintiffs claim the trial court abused its discretion in denying
their motion for new trial because, based on Plaintiffs’ previous claims of
error, the verdict must have been the result of passion or prejudice.
¶57 We review the denial of a motion for new trial for an abuse of
discretion. Larsen v. Decker, 196 Ariz. 239, 244, ¶ 27, 995 P.2d 281, 286 (App.
2000). If it appears clear the jury was actuated by prejudice or passion, its
verdict may not stand. Mayo v. Ephrom, 84 Ariz. 169, 174, 325 P.2d 814, 817
(1958) (citation omitted). Nevertheless, “[c]ourts are not free to reweigh the
evidence and set aside the jury verdict merely because the jury could have
drawn different inferences or conclusions or because judges feel that other
results are more reasonable.” Hutcherson v. City of Phoenix, 192 Ariz. 51, 56,
¶ 27, 961 P.2d 449, 454 (1998) (quoting Tennant v. Peoria & Pekin Union Ry.
Co., 321 U.S. 29, 35 (1944)). We generally afford the trial court wide
deference because “[t]he judge sees the witnesses, hears the testimony, and
has a special perspective of the relationship between the evidence and the
verdict which cannot be recreated by a reviewing court from the printed
record.” Id. at 53, ¶ 12, 961 P.2d at 451 (quoting Reeves v. Markle, 119 Ariz.
159, 163, 579 P.2d 1382, 1386 (1978)).
¶58 After thoroughly reviewing the applicable record, we find no
abuse of the trial court’s discretion in denying a new trial. The trial court,
having observed first-hand the witnesses and evidence presented, was best
qualified to determine whether a new trial was warranted on the basis the
jury acted out of passion or prejudice. On this record, Plaintiffs’ generalized
grounds for a mistrial, and we will not presume prejudice from the
improper admission of insurance-related evidence. Id.
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claim that the jury’s verdict resulted from passion or prejudice is
unsupported, and we have found no errors requiring reversal of the verdict.
VII. Attorneys’ Fees on Appeal
¶59 Noting that this case arises in part out of a contract claim,
Moore requests an award of costs and attorneys’ fees incurred upon appeal
pursuant to A.R.S. § 12-341.01(A) (2016). In our discretion, we decline to
award attorneys’ fees. We do, however, award an amount of taxable costs
to Moore contingent upon his compliance with Rule 21, ARCAP.
CONCLUSION
¶60 The trial court’s judgment and denial of Plaintiffs’ motion for
new trial are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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