South Side Trust and Savings Bank of Peoria v. Mitsubishi Heavy Industries ( 2010 )

SECOND DIVISION
March 31, 2010
No. 1-09-0148
SOUTH SIDE TRUST AND SAVINGS BANK OF ) Appeal from the
PEORIA, as personal representative of the Estates of ) Circuit Court of
Christine Marie White, deceased, and John Michel ) Cook County
White, deceased, )
)
Plaintiff-Appellant, )
)
v. )
)
MITSUBISHI HEAVY INDUSTRIES, LTD, a )
Corporation, MITSUBISHI HEAVY INDUSTRIES )
AMERICA, INC., a Corporation, HONEYWELL )
INTERNATIONAL, INC., a Corporation, )
WOODWARD GOVERNOR COMPANY, a )
Corporation, and AIR 1ST AVIATION COMPANIES, a )
Corporation, )
)
Defendants-Appellees )
)
)
(Stan Blaylock and Wayne Bates, ) Honorable
) Dennis J. Burke,
Defendants). ) Judge Presiding.
JUSTICE KARNEZIS delivered the opinion of the court:
Plaintiff, South Side Trust and Savings Bank of Peoria, is the personal
representative of the estates of Christine Marie White (Christine) and John Michael
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White (Michael). Christine and John were killed when the small plane owned and
piloted by Michael crashed in New Mexico. Plaintiff filed an action in the circuit court of
Cook County asserting product liability and negligence claims against the
manufacturers and sellers of the plane and its component parts, Mitsubishi Heavy
Industries, Ltd. (Mitsubishi), Mitsubishi Heavy Industries America, Inc. (Mitsubishi
America), Honeywell International, Inc. (Honeywell), Woodward Governor Company
(Woodward) and Air 1st Aviation Companies (Air 1st) (collectively defendants), and
breach of warranty claims against Air 1st.1 The court dismissed plaintiff’s product
liability claims against Air 1st and granted summary judgment to defendants on all
remaining claims. On appeal, plaintiff argues the court erred in dismissing plaintiff’s
claims and/or granting summary judgment to defendants. It asserts the court erred in
(1) misapplying section 2-621 of the Illinois Code of Civil Procedure (735 ILCS 5/2-621
(West 1994))2, Federal Aviation Administration section 91.403(a) (14 C.F.R. §91.403(a)
1
Plaintiff also filed negligence claims against flight instructors Stan Blaylock
and Wayne Bates but those claims are not at issue here.
2
Public Act 89-7 amended section 2-621 (Pub. Act 89-7, eff. March 9, 1995
(amending 735 ILCS 5/2-621 (West 1994)). However, in Best v. Taylor Machine
Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997), our supreme court, held the act
unconstitutional in its entirety. Accordingly, the version of section 2-621 that was in
effect before the 1995 amendment is applicable to this case.
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(2006)) and the facts to plaintiff’s claims against Air 1st and (2) finding the 18-year
statute of repose provided by the General Aviation Revitalization Act of 1994 (49
U.S.C. §40101 note (2000)) (GARA) applicable to its claims against the other
defendants. We affirm in part, reverse in part and dismiss in part.
BACKGROUND
Michael and Christine were killed on June 10, 2001, when their plane, a model
MU-2B-20 passenger aircraft piloted by Michael, crashed in New Mexico. Mitsubishi, a
Japanese corporation, manufactured the fuselage and frame of the plane. In 1969, it
delivered those components to its subsidiary, Mitsubishi Aircraft International (MAI), in
Texas so that the plane could be assembled and the other components of the plane,
such as the engines and the interior, could be installed. In 1970, MAI sold the plane to
its first purchaser. In 1988, fuel control units and propellor governors manufactured by
Woodward were installed in the plane, replacing existing parts. In October 1994,
Honeywell, the successor to the manufacturer of the plane’s engines and parts of the
power plant control system in the plane, revised the engine maintenance manual and
distributed the revisions.
Air 1st bought the plane in 1998 and registered it with the Federal Aviation
Administration (FAA). Because Air 1st is not a maintenance facility, it contracted with
Epps Aviation (Epps) to update the planes records, to do a logbook search and
determine maintenance or certification issues. Once Epps finished, Air 1st ferried the
plane to Intercontinental Jet (Intercontinental) in order that Intercontinental could
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perform the work necessary to obtain a U.S. certificate of airworthiness.
Intercontinental was to make sure the plane met all the requirements of the
manufacturer’s service bulletins, research all the logbooks and perform inspections to
verify the plane met the specifications in the type certificate for the aircraft.
Intercontinental returned the plane to Air 1st in January 1999, having certified the plane
as meeting the FAA’s airworthiness requirements. The plane was recertified in January
2000. Air 1st sold the plane but subsequently regained title. Air 1st sold the plane to
Michael in April 2000. The crash occurred two months later.
In February 2003, plaintiffs filed a wrongful death and survival action in Cook
County against Mitsubishi; Mitsubishi America, the company which provides customer
support for operators of MU-2 type aircraft in the United States; Honeywell; and
Woodward. Plaintiff subsequently added Air 1st as a defendant. Plaintiff’s fourth
amended complaint charged that defendants manufactured and sold a defective and
unreasonably dangerous product containing defective and unreasonably dangerous
parts and they failed to provide adequate warnings and instructions regarding the
plane's fuel control unit, the idiosyncracies of which allegedly led to the crash.
The court dismissed the two product liability counts against Air 1st pursuant to
section 2-621 of the Code and granted summary judgment to Air 1st on the negligence
and breach of warranty claims against it. The court granted summary judgment to
Mitsubishi, Mitsubishi America, Honeywell and Woodward pursuant to GARA’s 18-year
statute of repose. GARA is an 18-year statute of repose that protects manufacturers of
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“general aviation aircraft” 3 and of new components, parts or systems of such aircraft
from liability for accidents that arise more than 18 years after the date a new aircraft is
delivered to its first purchaser. 49 U.S.C. §40101 note, §2(a)(1)(A) (2006). The 18-
year period of repose restarts with regard to the manufacturer of a new component, part
or system when that component, part or system is installed in a general aviation
aircraft. 49 U.S.C. §40101 note, §2(a)(2) (2006). The statute of repose does not apply
if a plaintiff can plead and prove that a manufacturer “knowingly misrepresented to the
[FAA], or concealed or withheld from the [FAA], required information that is material
and relevant” to the performance and maintenance of a general aviation aircraft or part
thereof and the information “is causally related” to the harm plaintiff allegedly suffered.
49 U.S.C. §40101 note, §2(b) (2006).
The court found the plane was a “general aviation aircraft” within the meaning of
GARA. Pursuant to GARA, the statute of repose on liability would expire in 1988, 18
years after the plane was delivered to its first purchaser in 1970. Plaintiff’s suit was for
an accident that happened in 2001, more than 13 years after the end of the repose
3
A “general aviation aircraft” is any aircraft for which the FAA has issued a type
or airworthiness certificate; has a maximum seating capacity of 20 passengers at the
time the FAA issues the certificate; and is not engaged in “scheduled” passenger
carrying activity at the time of the accident. General Aviation Revitalization Act of
1994, Pub. L. 105-102, §3(e), 111 Stat. 2216 (amended 1997).
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period and, accordingly, the end of the manufacturers’ liability. The court, therefore,
granted summary judgment to Mitsubishi, the plane’s Japanese manufacturer, finding
that GARA applies to a foreign manufacturer and plaintiff presented no evidence that
Mitsubishi knowingly misrepresented to or concealed material information from the FAA
such that the “knowing misrepresentation exception” to the repose period applied.
The court granted summary judgment to Mitsubishi America, finding that
Mitsubishi America qualified as a manufacturer under GARA and was, therefore,
entitled to its protections. The court granted summary judgment to Woodward, finding
the 1988 installation of the parts manufactured by Woodward did not restart the 18-
year repose period because plaintiff failed to present any evidence that those parts
caused the accident. Lastly, the court granted summary judgment to Honeywell, finding
that the revised engine maintenance manual distributed by Honeywell in 1994 did not
constitute a new “part of the aircraft” such that its distribution caused the statute of
repose to restart at that time. Plaintiff timely appealed the court’s order.
Analysis
Air 1st Aviation
a. Dismissal Pursuant to Section 2-621
The court granted dismissal of plaintiff’s strict liability claims against Air 1st
pursuant to section 2-621 of the Code. Section 2-621, also known as the Illinois
distributor statute or the “seller’s exception,” provides that a nonmanufacturer
defendant, usually a distributor or retailer, in a strict product liability action may be
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dismissed from the action if it certifies the correct identity of the manufacturer of the
product which allegedly caused the injury. 735 ILCS 5/2-621 (West 1994); Murphy v.
Mancari’s Chrysler Plymouth, Inc., 381 Ill. App. 3d 768, 770, 887 N.E.2d 569, 573
(2008). As soon as the plaintiff has filed against the product manufacturer and the
manufacturer has answered or otherwise pleaded, the court must dismiss the strict
liability claim against the certifying defendant(s), except where the plaintiff shows the
defendant participated in the design and manufacturer of the allegedly defective
product, had actual knowledge of the defect in the product or created the defect.
Murphy, 381 Ill. App. 3d at 770-71, 887 N.E.2d at 573; 735 ILCS 5/2-621(b), (c) (West
1994).
Pursuant to section 2-621(b), a plaintiff may move at any time for reinstatement
of a defendant previously dismissed pursuant to section 2-621 if an action against the
product manufacturer would be impossible or unavailing. 735 ILCS 5/2-621(b) (West
1994); Murphy, 381 Ill. App. 3d at 771, 887 N.E.2d at 573. Section 2-621(b) provides
in relevant part:
“The plaintiff may at any time subsequent to the dismissal move to vacate
the order of dismissal and reinstate the certifying defendant or defendants,
provided plaintiff can show one or more of the following:
(1) That the applicable period of statute of limitation or statute of repose
bars the assertion of a strict liability in tort cause of action against the
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manufacturer or manufacturers of the product allegedly causing the injury, death
or damage.” 735 ILCS 5/2-621(b)(1) (West 1994).
Air 1st moved to dismiss plaintiff’s strict liability claims pursuant to section 2-621
on the basis that it was not the manufacturer or designer of the plane or its parts, the
manufacturers had been identified and plaintiff had filed suit against the manufacturers.
There is no question that Air 1st complied with the requirements of section 2-621.
Plaintiff opposed the motion pursuant to sections 2-621(c)(2) and (c)(3), asserting that
Air 1st had knowledge or created the defect which caused the Whites’ deaths. Plaintiff
also raised the section 2-621(b)(1) reinstatement provision, asserting that, if the court
granted summary judgment to the manufacturer defendants (Mitsubishi, Mitsubishi
America, Woodward and Honeywell) pursuant to GARA, a statute of repose, its strict
liability claims against Air 1st could be vacated and the claims reinstated pursuant to
section 2-621(b). The court’s written order granted Air 1st’s motion to dismiss “with
prejudice pursuant to section 2-621.” The court stated it “did not consider the
applicability of section 2-621 in light of the rulings on the manufacturers’ motions.”
Plaintiff appealed the court’s order.
We have no jurisdiction to consider the court’s order dismissing plaintiff’s strict
liability claims against Air 1st pursuant to section 2-621. Dismissal of a defendant
pursuant to section 2-621 is not a final appealable order because “[a] dismissal under
section 2-621 does not dispose of the rights of the parties.” Kellerman v. Crowe, 119
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Ill. 2d 111, 115-16, 518 N.E.2d 116, 118 (1987). As the provisions of section 2-621(b)
show, the statute “clearly contemplates the possibility of further action.” Kellerman, 119
Ill. 2d at 116, 518 N.E.2d at 118. Under the circumstances prescribed in section 2-
621(b), a plaintiff may move at any time for the reinstatement of a defendant who was
previously dismissed under the statute. Kellerman, 119 Ill. 2d at 116, 518 N.E.2d at
118. Accordingly, until such occurs, and the motion is decided by the court, a dismissal
pursuant to section 2-621 is not final and appealable.
Here, after the court barred plaintiff’s strict liability claims against the
manufacturers pursuant to the GARA statute of repose, plaintiff did not move to vacate
the dismissal of its claims against Air 1st and seek reinstatement of those claims.
Granted, plaintiff raised the possible reinstatement of its claims pursuant to section 2-
621(b)(1) in its responses to Air 1st’s motion to dismiss. But it did so prior to the court’s
decision on its claims against the manufacturers; the court’s order specifically stated
the court did not consider whether section 2-621 applied in light of its rulings on the
manufacturers’ motions; and plaintiff did not move pursuant to section 2-621(b)(1) or
renew its previous argument after the court did enter judgment for the manufacturers.
Until plaintiff files and the court rules on a motion for vacation of the order dismissing
plaintiff’s strict liability claims against Air 1st and reinstatement of those claims
pursuant to section 2-621(b), we have no jurisdiction to consider the court’s dismissal
of those claims.
b. Summary Judgment on Negligence Count
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The court granted summary judgment to Air 1st on plaintiff’s negligence counts.
Plaintiff had charged Air 1st was a corporation, sold the accident aircraft to Michael
and, upon the sale, “it then and there became and was the duty of [Air 1st] to exercise
reasonable care in its conduct so as not to cause injury to *** plaintiff’s decedents.”
Plaintiff asserted Air 1st breached that duty when it negligently and carelessly sold the
aircraft (1) without “proper and adequate” instructions and warnings regarding the
“proper setting of the engine flight idle fuel flow settings” and “proper propellor rigging”;
(2) “when said aircraft had not been properly maintained, repaired and/or overhauled”;
(3) “without current and proper manuals (e.g. instructions in use)”; and (4) in a
defective and unreasonably dangerous condition.” Air 1st moved for summary
judgment, arguing that, as a prior owner of the aircraft, it owed no duty to plaintiff or its
decedents to maintain the plane in airworthy condition at the time of the accident. It
also asserted, in the alternative, that pursuant to FAA sections 91.403(a) and 91.405
(14 C.F.R. §§91.403(a), 91.405 (2006)), it was not liable for negligence because it
delegated its duty to ensure the airworthiness of the aircraft to FAA-qualified
mechanics at Epps and Intercontinental.
The FAA promulgates regulations imposing certain duties on owners of aircraft
to endure the safety of others. Jarmuth v. Aldridge, 321 Ill. App. 3d 690, 692, 747
N.E.2d 1014, 1017 (2001). To that end, section 91.403(a) provides:
“The owner or operator of an aircraft is primarily responsible for
maintaining that aircraft in airworthy condition, including compliance with part 39
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[airworthiness directives] of this chapter.” 14 C.F.R. § 91.403(a) (2006).
Similarly, section 91.405 provides:
“Each owner or operator of an aircraft --
(a) Shall have that aircraft inspected as prescribed in subpart E of this
part and shall between required inspections, except as provided in paragraph (c)
of this section, have discrepancies repaired as prescribed in part 43 of this
chapter.” 14 C.F.R. § 91.405(a) (2006).
Pursuant to sections 91.403 and 91.405, a “non commercial aircraft owner[]” may
delegate its “duty to ensure the safety of a privately owned aircraft” to FAA-qualified
mechanics and inspectors and cannot be held liable for breach of that duty unless it
knew or should have known of a problem or defect left unrepaired. Jarmuth, 321 Ill.
App. 3d at 693-94, 747 N.E.2d at 1018-19.
Applying sections 91.403(a) and 91.405 to the undisputed facts, the court held
that Air 1st had a duty to maintain the accident aircraft in an airworthy condition and
had delegated that duty to Intercontinental Jet in compliance with section 91.403, thus
discharging its duty; and, given the lack of evidence that Air 1st knew or should have
known of a defect or deficiency left unrepaired, was not liable for any violation of its
maintenance duty. It granted summary judgment to Air 1st. Plaintiff argues the court
erred in applying sections 91.403 and 91.405 because its claims are not negligent
maintenance claims against the previous owner of an aircraft but, instead, are product
liability negligence claims against a previous owner who happens to be a commercial
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refurbisher and reseller of planes and that it sued Air 1st as a seller, not as an owner.
Summary judgment is appropriate if “the pleadings, depositions, and admissions
on file, 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.” 735 ILCS
5/2-1005(c) (West 2008); Willett v. Cessna Aircraft Co., 366 Ill. App. 3d 360, 368, 851
N.E.2d 626, 633 (2006). It should only be granted if, after construing the pleadings,
depositions, admissions, and affidavits strictly against the movant and liberally in favor
of the opponent, no genuine issue as to any material fact is found and the right of the
moving party is clear and free from doubt. Willett, 366 Ill. App. 3d at 368, 851 N.E.2d at
633. Reviewing the court’s grant of summary judgment de novo (Willett, 366 Ill. App. 3d
at 368, 851 N.E.2d at 633), we find the court erred in granting summary judgment to Air
1st on the basis of sections 91.403 and 91.405.
It is uncontested that Air 1st is a corporation in the business of buying and
selling planes; advertises that it specializes in the Model MU-2; buys planes for its own
account; has the planes inspected, refurbished and maintained in order to meet the
requirements of service bulletins and federal airworthiness directives; sells the planes
once they have passed inspection and are airworthy; is not a maintenance facility;
delegates the inspection and maintenance of the planes to assorted maintenance
facilities; searched out and bought the accident aircraft in 1998 for the purpose of
resale; delegated the inspection and maintenance of the accident aircraft to
Intercontinental; sold the accident aircraft in 1999; reacquired it in 2000; and sold it to
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Michael in 2001. As we found in our previous opinion in this case (Commerce Trust
Co. v. Air 1st Aviation Cos., 366 Ill. App. 3d 135, 851 N.E.2d 133 (2006) (in the context
of Air 1st’s motion to dismiss for lack of personal jurisdiction)), plaintiff’s cause of action
lies in the wake of Air 1st’s commercial activities. There is no question that plaintiff’s
negligence claims are directed to Air 1st as the commercial seller of the aircraft, not
against it as an owner, whether past or present.
Sections 91.403(a) and 91.4054 have no application in the context of plaintiff’s
claims against Air 1st. As the clear language of the sections shows, the responsibility
for maintaining the airworthiness of an aircraft lies with the “owner” of the aircraft, i.e.,
the current owner rather than the past owner. See Tanner v. Rebel Aviation, Inc., 146
Ga. App. 110, 113, 245 S.E.2d 463, 465 (1978) (court held section 91.403(a), formerly
4
“When considering [section 91.403(a), formerly known as 14 CFR § 91.163],
together with all of the other regulations pertaining to the maintenance of aircraft it
appears that the purpose of the regulations is to ‘ . . . promote air safety and protect the
lives of pilots, passengers, and persons on the ground.’ [Citation.] Thus, it is obvious
that the Federal Aviation Regulations do not establish commercial warranties, but seek
to protect the safety of the general public. *** [A] subsequent owner of [an] aircraft[ ] is
not within the class of people protected by this rule.” Tanner v. Rebel Aviation, Inc.,
146 Ga. App. 110, 113, 245 S.E.2d 463, 465 (1978), quoting French v. C. A. B., 378
F.2d 468, 471 (10th Cir. 1967).
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14 C.F.R. §91.163, did not provide current owner of aircraft with cause of action against
past owner of aircraft for failure to maintain aircraft in airworthy condition pursuant to
section 91.403(a) duty). Further, the sections contain no indication that they impose a
continuing duty to maintain on past owners of the aircraft.
At the time of the accident, Michael was the owner of the aircraft. Air 1st was the
previous owner. Air 1st’s duty to maintain the plane pursuant to sections 91.403(a) and
91.405, if any, ceased when it sold the plane to Michael, when it gave up its ownership.
As of the date Michael became the owner of the aircraft, he had the duty to maintain
the plane, not Air 1st. In addition, plaintiff is claiming against Air 1st as the seller of the
plane, not as the owner of the plane. Granted, Air 1st fills both the role of commercial
seller and former owner of the plane, but plaintiff’s claims are solely directed to Air 1st’s
actions as a seller. Sections 91.403(a) and 91.405 have no place in an action filed
against anyone other than the then-current owner of an aircraft. The court erred in
finding otherwise here and in granting summary judgment to Air 1st on that basis.
Further, although we may affirm the court on any basis found in the record (Fabiano v.
City of Palos Hills, 336 Ill. App. 3d 635, 641, 784 N.E.2d 258, 265 (2002)), we find no
other basis here for a grant of summary judgment to Air 1st on plaintiff’s negligence
claims.
In order to establish a cause of action for negligence, a plaintiff must show the
following elements: the existence of a legal duty owed by the defendant to the plaintiff;
breach of that duty; a resulting compensable injury to the plaintiff; and the breach was
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the proximate cause of the injury. Miller v. Dvornik, 149 Ill. App. 3d 883, 891, 501
N.E.2d 160, 166 (1986). To that end, plaintiff’s complaint charged that when Air 1st
sold the plane to Michael, “it then and there became and was the duty of [Air 1st] to
exercise reasonable care in its conduct so as not to cause injury to the person of the
plaintiff’s decedents, and each of them.” Plaintiff asserted Air 1st breached “its duty of
care to the plaintiff’s decedents” when it negligently and carelessly sold the aircraft
without “proper and adequate” instructions and warnings regarding certain
components, proper maintenance and repair, current manuals and “in a defective and
unreasonably dangerous condition.”
Plaintiff’s complaint clearly conveys that Air 1st’s duty of care arose from its
actions as the seller of the plane. There is no question that liability for a defective
product can be imposed on a seller in the business of placing products in the stream of
commerce, especially where, as here, a contract for the sale of goods exists. The
majority of Air 1st’s argument below, however, was directed to asserting it had no duty
as a past owner pursuant to sections 91.403(a) and 91.405 rather than asserting it had
no duty as a seller, i.e., addressing the argument plaintiff actually made. The only
other basis for summary judgment presented by Air 1st was its cursory assertion that
plaintiff’s complaint presented insufficient facts from which the court could infer that Air
1st had a legal duty of care toward the Whites or what the scope of that duty was. As
noted, the complaint was more than sufficient to show Air 1st’s alleged duty of care
toward plaintiff and its decedents arose from Air 1st’s actions as a seller in the
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business of placing products in the stream of commerce. Defendant presented no
evidence showing it had no duty as a seller or that it complied with its duty as a seller.
Defendant did not support its motion for summary judgment with evidentiary facts and
plaintiff may, therefore, rely on its complaint to establish a genuine issue of fact.
Kielbasa v. St. Mary of Nazareth Hospital, 209 Ill. App. 3d 401, 406, 568 N.E.2d 208,
211 (1991). We reverse the grant of summary judgment to Air 1st on plaintiff’s
negligence counts.
c. Summary Judgment on Breach of Implied Warranty Count
The court granted summary judgment to Air 1st on plaintiff’s breach of implied
warranty claims against Air 1st. Plaintiff alleged Air 1st “expressly and/or impliedly
warranted and represented that the subject aircraft, including its instructions and
warnings, was airworthy, of merchantable quality, fit and safe for the purpose for which
it was designed, *** sold, serviced, *** intended and used, and *** was free from
defects” and that Air 1st breached said warranties for assorted reasons as previously
set forth. Air 1st moved for summary judgment, asserting there was no evidence to
show the aircraft was not airworthy when Air 1st sold it to Michael and that the
deposition of Zipper Robbins, Air 1st’s president in 1998, shows he/Air 1st made no
promises or warranties to Michael about the airworthiness of the aircraft when he sold it
to Michael. Finding no evidence that Air 1st “expressly and/or impliedly warranted and
represented that the subject aircraft, including its instructions and warnings, was
airworthy,” and noting its previous finding that Air 1st properly delegated any and all of
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its duties to maintain the aircraft to Intercontinental, the court granted summary
judgment to Air 1st.
Plaintiff argues the court erred in considering the fact that Air 1st delegated its
maintenance duties to Intercontinental and in failing to find the existence of an implied
warranty of fitness for a particular purpose. Given our previous conclusion that the
court erred in applying sections 91.403(a) and 91.405, we agree that the court should
not have considered the fact that Air 1st delegated its duty to maintain the
airworthiness of the aircraft to another party. Indeed, we do not see how the delegation
of this duty is relevant to whether there existed an implied warranty between Air 1st and
Michael and whether Air 1st breached that warranty.
Further, it was not plaintiff’s burden at the summary judgment stage to prove its
assertions where Air 1st did not provide evidentiary support for its motion for summary
judgment. Kielbasa, 209 Ill. App. 3d at 406, 568 N.E.2d at 211. It is uncontested that
there was a contract between Air 1st and Michael for the sale of the plane and that the
contract provided no express warranty for the plane. Plaintiff, however, pled the
existence of an implied warranty of fitness for a particular purpose arising from the sale.
In order to show the existence and breach of an implied warranty of fitness for
particular purpose, a plaintiff must show “(1) a sale of goods, (2) that the seller had
reason to know of any particular purpose for which the goods are required, (3) that
plaintiff, as buyer of the goods, was relying upon seller's skills or judgment to select
suitable goods, and (4) that the goods were not fit for the particular purpose for which
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they were used.” Maldonado v. Creative Woodworking Concepts, Inc., 342 Ill. App. 3d
1028, 1034, 796 N.E.2d 662, 666 (2003).
Plaintiff showed a sale of the aircraft and Michael’s particular purpose for the
aircraft is obvious: to fly it and travel safely in it. The aircraft arguably was not fit for
that purpose because it crashed. Air 1st moved for summary judgment on the basis
that Robbins’ testimony shows he made Michael no promises regarding the
airworthiness of the aircraft and plaintiff failed to show the plane was not airworthy
when sold to Michael. This evidence, Robbins’ testimony that he made no promises to
Michael, was solely directed to negating the existence of an express warranty. But
plaintiff had asserted the existence of both an express warranty and of an implied
warranty. Air 1st presented no evidence negating the existence of an implied warranty,
such as testimony that the plane was airworthy when sold to Michael or that Michael
did not rely on Air 1st’s judgment in selecting the plane. Air 1st contested the
existence of an implied warranty by asserting that plaintiff’s presented no evidence that
the plane was not airworthy. That is not plaintiff’s burden at this stage. Only in the
face of evidence negating the existence of an implied warranty of fitness for a particular
purpose would plaintiff be required to provide evidentiary material in support of its
complaint. The burden was on Air 1st to support its argument that there was no implied
warranty of fitness for a particular purpose with evidentiary facts. It failed to do so.
The court erred in granting summary judgment to Air 1st on plaintiff’s breach of implied
warranty of fitness for a particular purpose counts.
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Woodward Governor
The court granted summary judgment to Woodward, finding that the 18-year
statute of repose provided by GARA protected Woodward from liability in plaintiff’s suit.
There being only one case in Illinois addressing the application of GARA5, we will refer
to other jurisdictions for guidance.
GARA provides, in relevant part, as follows:
“(a) *** Except as provided in subsection (b), no civil action for damages
for death or injury to persons or damage to property arising out of an accident
involving a general aviation aircraft may be brought against the manufacturer of
the aircraft or the manufacturer of any new component, system, subassembly, or
other part of the aircraft, in its capacity as a manufacturer if the accident
occurred –
(1) after the applicable limitation period beginning 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; or
(2) with respect to any new component, system, subassembly, or other
5
Willett v. Cessna Aircraft Co., 366 Ill. App. 3d 360, 851 N.E.2d 626 (2006).
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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, after the applicable
limitation period beginning on the date of completion of the replacement
or addition.” 49 U.S.C. §40101 note, §2(a) (2006).
The GARA statute of repose does not apply for the following exceptions: (1) where the
plaintiff proves the manufacturer knowingly misrepresented to the FAA or concealed or
withheld from the FAA required information material to the performance or maintenance
of the aircraft or part that is causally related to the injury; (2) for injury to a passenger
traveling on the plane for purposes of medical treatment or other emergency; (3) for
injury to a person who was not on board the plane at the time of the accident; and (4)
for a claim brought under a written warranty enforceable under the law except for the
operation of GARA. 49 U.S.C. §40101 note, §2(b) (2006).
The applicable “limitation period” is “18 years with respect to general aviation
aircraft and the components, systems, subassemblies, and other parts of such aircraft.”
49 U.S.C. §40101 note, §3(3) (2006). Pursuant to GARA section 2(a)(2), referred to as
the “rolling provision,” the 18-year repose period can restart when a new part or
component is installed in a general aviation aircraft as against the manufacturer of that
replacement part. Moyer v. Teledyne Continental Motors, 2009 Pa. Super. 124, ¶ 7.
The rolling provision applies if the plaintiff can show that a new item replaced an item
either originally in the aircraft or added to the aircraft and the new item was also a
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cause of the claimed damages. Hiser v. Bell Helicopter Textron Inc., 111 Cal. App. 4th
640, 650, 4 Cal. Rptr. 3d 249, 257 (2003). The repose period restarts only for the
newly installed part. Hiser, 111 Cal. App. 4th at 650, 4 Cal. Rptr. 3d at 257.
A defendant has the burden of proof in showing that an affirmative defense such
as a statute of repose applies. Willett, 366 Ill. App. 3d at 371, 851 N.E.2d at 635. If a
defendant makes a showing that the statute of repose applies, then the plaintiff has the
burden to show facts that operate to toll or create an exception to the repose period.
Willett, 366 Ill. App. 3d at 371, 851 N.E.2d at 635-36. It is uncontested that: Michael’s
plane was the type of general aviation aircraft covered by GARA; the plane was sold to
its first user in 1970; the 18-year GARA repose period would start at the time of that
sale and expire in 1988; and the accident occurred in 2001, more than 30 years after
the plane was first sold and well beyond the 18-year repose period. Accordingly, a
manufacturer of the plane or a part thereof would be protected from plaintiff’s suit
unless it manufactured new parts which were installed in the plane within 18 years of
the accident or one of the four exceptions applied. 49 U.S.C. §40101 note,
§§2(a)(1)(A), (a)(2), (b) (2006). Woodward was the manufacturer of two fuel control
units and two propeller governors in the plane when it crashed. Arguably, therefore, it
would be protected from plaintiff’s suit under GARA.
Plaintiff’s first amended complaint stated strict liability and negligence counts
against Woodward. The complaint asserted the plane contained fuel control units and
a “propellor synchrophaser” manufactured by Woodward; one of the fuel control units
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and/or the synchrophaser was a cause of the crash; and the action was not subject to
GARA because the two components were manufactured and installed within the GARA
repose period.
Woodward moved for summary judgment, asserting that GARA barred any
claims against it because “[a]ll the Woodward components alleged to have caused the
accident were manufactured more than eighteen years prior to the accident.” It
asserted that it had manufactured and delivered the two fuel control units to the
manufacturer of the engine in the plane in 1968 and 1969 and, at the time of the crash,
those components had been in operation over 30 years. Woodward pointed out that,
contrary to the assertion in plaintiff’s complaint, the plane did not contain a
“synchrophaser” system. Instead it contained two propellor governors corresponding to
a “synchronizer” system. Woodward asserted it had manufactured and delivered “the
last synchronizers” in 1979.6 Woodward attached the affidavit of Steven Krugler, a
senior engineer at Woodward responsible for accident investigation. Krugler stated he
had examined the wreckage, identified the Woodward parts therein, traced available
serial numbers and determined the fuel control units were delivered and manufactured
in 1968 and 1969 and the last propellor governor/synchronizer system was
6
Plaintiff corrected its allegations to show the Woodward parts at issue
included propellor governors and not propellor synchrophasers in its fourth amended
complaint.
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manufactured and delivered in 1979.
Plaintiff responded to the motion for summary judgment by arguing that the 18-
year repose period pertaining to Woodward restarted in 1988 for the fuel control units
and in 1999 for the propellor governors because the fuel control units in the plane were
reconditioned with new parts in 1988 and the propellor governors were newly installed
in 1999; the parts were either new or refurbished with new parts when installed; and the
parts were alleged to be a proximate cause of the crash. As a result, the 2001 accident
would fall within the restarted period running from 1988 to 2006 for the fuel control units
and 1999 to 2017 for the propellor governors and plaintiff’s suit against Woodward
would not be barred.
Plaintiff supported its assertion that the parts were new and/or refurbished when
installed in 1988 and 1999 with the affidavit of its expert, William Mermelstein, an FAA-
licensed mechanic with airframe and powerplants ratings and qualified by the FAA as a
designated maintenance examiner and manufacturers inspection representative.
Mermelstein testified that in 1988 the fuel control unit had been repaired and parts
therein replaced with new parts. He also stated the propellor governor had been
assembled in January 1999; it could not, therefore, have been put into the plane before
1999; and it was probably installed in the plane by Intercontinental in 1999.
Plaintiff’s response stated that its complaints had consistently charged that the
defective condition of Woodward’s parts caused the crash. It noted that, from the then-
current pleadings, it appeared “Woodward seeks judgment based solely on the
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passage of GARA’s initial 18-year from date of sale repose period.” Plaintiff stated:
“Whether Woodward will contest causation based on plaintiff’s charges is
undetermined on the papers presently before this Court. In response, plaintiff
refers the Court to the testimony of Woodward’s Krugler who testified ‘you would
have to have both a fuel control and a prop governor failure for it to affect the
NTS system,’ NTS referring to negative torque sensing mode. NTS has been
acknowledged by [Mitsubishi] as a condition which can ‘result in unsafe flight
characteristics.’ “
It then concluded that “the question of causation is adequately established for
purposes of this motion.”
In Woodward’s reply to plaintiff’s response, it did not contest plaintiff’s allegation
that the parts were new or refurbished with new parts or Mermelstein’s support of those
allegations. It agreed there was no doubt the propellor governors was installed in 1999
and the fuel control units were reconditioned in 1988. Instead, Woodward asserted
plaintiff’s “problem” was that Mermelstein’s affidavit did not say “what is required by the
exception to the GARA repose period -- the GARA-exempt parts caused the crash,”
that plaintiff’s expert “refused to back up” plaintiff’s theory of the case with his opinions
as to causation.
The court granted summary judgment to Woodward. Although it found plaintiff
sufficiently showed the relevant fuel control unit and propellor governor were “new”
parts, it held that plaintiff failed to present evidence to support its allegation that the
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fuel control unit and/or propeller governor caused the accident because Mermelstein’s
affidavit was insufficient to support plaintiff’s allegation that the right fuel control unit
and propeller governor caused the accident. The court, therefore, determined that the
18-year statute of repose did not restart when the fuel control unit and propellor
governor were installed in the plane and plaintiff was barred from seeking recovery
from Woodward.
Neither party contests the court’s finding that the fuel control unit and propellor
governor were “new” when installed in the plane. The issue is whether plaintiff
sufficiently supported its allegation that the fuel control unit and propellor governor
caused the accident to survive the motion for summary judgment. Plaintiff asserts the
court erred in (1) considering Woodward’s argument regarding plaintiff’s failure to show
proximate cause because Woodward did not raise that argument in its motion for
summary judgment, only in its reply to plaintiff’s response to the motion for summary
judgment and (2) finding that Mermelstein’s affidavit was insufficient, in direct disregard
of plaintiff’s allegations in its complaint and Mermelstein’s statement in his affidavit that
the term “powerplant control system components” (which caused the crash) includes
Woodward’s fuel control units and propeller governors.
Plaintiff is correct that Woodward only raised a single issue in its motion for
summary judgment: that GARA did not restart because the fuel control units and
propellor governors had been in service more than 18 years before the crash and,
therefore, not new when installed in the plane. Plaintiff states it, therefore, conducted
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discovery directed to the issue of whether the parts were new when installed and
specifically replied to the argument by providing evidence that the parts were new when
installed. Although plaintiff made a brief mention of proximate cause in its response, it
did not directly respond to any argument by Woodward contesting proximate cause
because Woodward had not made such an argument. Only after plaintiff filed its
response to the motion for summary judgment showing that the parts were new when
installed during the 18-year repose period did Woodward raise the issue of proximate
cause in its reply. Plaintiff argues it had no opportunity to address the issue of
proximate cause because the issue was not at bar when it filed its response. It had
presented Mermelstein’s affidavit for the sole purpose of combating Woodward’s single
contention that new parts were not inserted into the plane.
Woodward having asserted the affirmative defense of the GARA statute of
repose, it was plaintiff’s burden to show facts tolling or creating an exception to GARA.
To that end, plaintiff asserted the 18-year period restarted because the Woodward
parts were installed during the repose period. In order to show GARA restarted,
plaintiff would have to show the parts were (1) new when installed and (2) alleged to
have caused the crash. Plaintiff, as the burdened party, presented evidence to support
both those elements. Granted, because Woodward did not contest causation in its
motion for summary judgment, plaintiff presented only a bare minimum of evidence
supporting its allegation that Woodward’s parts caused the accident, but it did present
some support.
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Woodward, in its response, did not present any evidence to show that the parts
did not cause the crash, i.e., rebut plaintiff’s allegation and evidence that the parts did
cause the crash. It did not present an expert saying the parts were not at fault.
Instead, it argued that Mermelstein’s affidavit was insufficient to show causation.
Plaintiff did not have to prove its case at the summary judgment stage. Where a
defendant does not support its motion for summary judgment with evidentiary facts, the
plaintiff may rely on its complaint to establish a genuine issue of fact. Kielbasa v. St.
Mary of Nazareth Hospital, 209 Ill. App. 3d 401, 406, 568 N.E.2d 208, 211 (1991).
In the absence of evidentiary material from Woodward that the parts did not cause the
crash, plaintiff did not have to present an expert saying that the parts did cause the
crash to oppose the motion for summary judgment. Kielbasa, 209 Ill. App. 3d at 406,
568 N.E.2d at 211. The court erred in granting summary judgment to Woodward
because a question of fact existed regarding whether the Woodward parts caused the
accident.
Honeywell
The court granted summary judgment to Honeywell, finding the GARA statute of
repose applied to bar plaintiff’s suit against Honeywell. It is uncontested that
Honeywell is the successor manufacturer of the plane’s engines, originally installed in
the plane in 1980, and that none of the GARA exceptions apply to Honeywell.
Honeywell is, therefore, protected from plaintiff’s suit unless it manufactured new parts
which were installed in the plane within 18 years of the accident. Plaintiff asserts that
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Honeywell did install such new parts when it issued a revised engine maintenance
manual in October 1994 and that the statute of repose restarted at that time. Plaintiff’s
argument is that an aircraft maintenance manual is a “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” under section 2(a)(2).
Plaintiff is correct that a flight manual has been considered a “part” of a general
aviation aircraft for GARA purposes. See Caldwell v. Enstrom Helicopter Corp., 230
F.3d 1155 (9th Cir. 2000); Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1220-21
(10th Cir. 1991). A flight manual is an integral part of every general aviation aircraft
product that a manufacturer sells. Caldwell, 230 F.3d at 1157. It is not a separate,
general instructional guide but a guide specific to the type of aircraft, required by
federal regulation to be on board every aircraft and containing the instructions
necessary to operate the aircraft and used by the pilot. Caldwell, 230 F.3d at 1157. A
flight manual “fits comfortably within the terminology and scope” of GARA section
2(a)(2). Caldwell, 230 F.3d at 1157.
A maintenance manual is not comparable to a flight manual and does not fit
within the scope of GARA section 2(a)(2). Moyer, 2009 Pa. Super. 123 ¶14.; Burton v.
Twin Commander Aircraft, LLC., 148 Wash. App. 606, ___ P.3d ___ (2009).7 Unlike a
7
See also the following cases rejecting the argument that an aircraft
maintenance manual is a “part” of an aircraft for GARA purposes: Robinson v. Hartzell
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flight manual, a maintenance manual is not necessary to operate a plane. Burton, 148
Wash. App. at ___, 221 P.3d at 295, following Colgan Air, Inc. v. Raytheon Aircraft Co.,
507 F.3d 270 (4th Cir. 2007) (determining whether a maintenance manual is “part” of
an aircraft for purposes of warranty claims). It outlines procedures for servicing,
troubleshooting and repairing aircraft and is used by a mechanic on the ground to
service a plane, not by a pilot in the air to fly a plane. Colgan Air, Inc., 507 F.3d at 276.
Unlike a flight manual, a maintenance manual is not integral to safe operation of an
aircraft. Colgan Air, Inc., 507 F.3d at 277. It is not the sole means by which an aircraft
operator can obtain airworthiness. Colgan Air, Inc., 507 F.3d at 277.
Granted, federal regulations require that complete instructions for airworthiness
be furnished to the owner of each type of aircraft and that those instructions must
include an airplane maintenance manual describing the plane’s features “to the extent
Propeller Inc., 326 F. Supp. 2d 631 (E.D. Pa. 2004); Alter v. Bell Helicopter Textron,
Inc., 944 F. Supp. 531 (S.D. Tex. 1996); Carolina Industrial Products, Inc. v. Learjet,
Inc., 189 F. Supp. 2d 1147 (D. Kan. 2001). All were decided in the context of “failure to
warn” claims, finding that the plaintiffs were attempting to circumvent the GARA statute
of repose by arguing that a manual or service bulletin issued within 18 years of an
aircraft accident was defective, i.e., the manual or bulletin failed to warn of or correct a
design flaw, because the plaintiffs were precluded from suing for the flaw itself by
expiration of the period of repose.
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necessary for maintenance or preventive maintenance.” 14 C.F.R. §§21.50(b),
23.1529, §23.2(a) (2006). But there is no federal regulation requiring that a
maintenance manual be on board every plane or that a mechanic use only the methods
prescribed in the current manufacturer’s maintenance manual. Colgan Air, Inc., 507
F.3d at 277. Instead, a mechanic may use the maintenance manual or instructions for
continued airworthiness prepared by the manufacturer or “ ‘other methods, techniques
and practices acceptable to the [FAA].’ ” (Emphasis omitted.) Colgan Air, Inc., 507
F.3d at 277, quoting 14 C.F.R. §43.13 (2006). Because we do not consider a
maintenance manual integral to the aircraft, a maintenance manual is not a “part” within
the scope of GARA section 2(a)(2).
Our decision is reinforced by the fact that, if we did find that the statute of repose
is triggered every time a manufacturer issues a service bulletin or an update to a
maintenance manual, the intent of GARA would be eviscerated. Moyer, 2009 Pa.
Super. 124, ¶ 9. GARA, a product liability statute of repose, was created
“ ‘ “to protect general aviation manufacturers from long-term liability in those
instances where a particular aircraft has been in operation for a considerable
number of years. A statute of repose is a legal recognition that, after an
extended period of time, a product has demonstrated its safety and quality, and
that it is not reasonable to hold a manufacturer legally responsible for an
accident or injury occurring after that much time has elapsed.” ’ ” Burroughs v.
Precision Airmotive Corp., 78 Cal. App. 4th 681, 689, 93 Cal. Rptr. 2d 124, 130
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(2000), quoting Altseimer v. Bell Helicopter Textron, Inc., 919 F. Supp. 340, 342
(E.D.Cal. 1996), quoting 140 Cong. Rec. H4998, H4999 (daily ed. June 27,
1994)(Statement of Representative Fish).
Congress determined that general aviation aircraft manufacturers and aircraft
component manufacturers in the United States were facing a “ ‘precipitous’ ” decline
because of the costs associated with defending product liability suits for alleged
design and manufacturing defects. Burroughs, 78 Cal. App. 4th at 690, 93 Cal. Rptr.
2d at 131. The American manufacturers were subject to “long tail” tort liability, liability
from the time an aircraft was sold until it was taken out of service many years later and
concomitantly high product liability insurance rates and legal costs. Burroughs, 78 Cal.
App. 4th at 690, 93 Cal. Rptr. 2d at 131. Congress determined that setting a time limit
on liability was reasonable and necessary to free the manufacturers from the burdens
imposed by the “long tail” liability while at the same time “ ‘affording fair treatment to
persons injured in general aviation aircraft accidents.’ ” Burroughs, 78 Cal. App. 4th at
690, 93 Cal. Rptr. 2d at 131, quoting H.R. Rep. No. 103-525(I), at 1 (1994), as
reprinted in 1994 U.S.C.C.A.N. 1638, 1638.
Congress’s intent was that liability be cut off when a general aviation aircraft or
component of such an aircraft is more than 18 years old. If we interpret GARA as
requiring that the statute of repose restarts every time a new service bulletin or
maintenance manual is issued for an aircraft or component that is more than 18 years
old, that intent will be thwarted. Congress intended that liability start anew upon
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installation of a new part affecting the safety of the aircraft (GARA section 2(a)(2)), not
upon each issuance of an updated service guide for mechanics. The court did not err
in granting summary judgment to Honeywell.
Mitsubishi Heavy Industries
The court granted summary judgment to Mitsubishi. Mitsubishi, the
manufacturer of the major structural components of the plane, showed that it is
protected from plaintiff’s suit by GARA because the 2001 accident occurred more than
18 years after the plane it manufactured was sold to its first purchaser. Plaintiff
asserts, however, that the court erred in granting summary judgment to Mitsubishi
because (1) GARA does not apply to Mitsubishi because Mitsubishi is a Japanese
manufacturer and Congress intended that GARA apply to only American manufacturers
and (2) questions of fact exist regarding whether Mitsubishi knowingly misrepresented
to the FAA or concealed or withheld from the FAA material information regarding
improper fuel flow settings and propellor rigging which affected the controllability of the
plane and led to the accident such that the exception to the statute of repose stated in
GARA section 2(b)(1) applies to allow plaintiff’s suit against Mitsubishi.
a. Foreign Manufacturers
The first question is whether GARA applies to a foreign manufacturer. The
circuit court’s interpretation of GARA is subject to de novo review. County of Du Page
v. Illinois Labor Relations Board, 231 Ill. 2d 593, 603-04, 900 N.E.2d 1095, 1101
(2008). Our main objective in interpreting a statute is to determine and give effect to
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the intent of the legislature in enacting it. County of Du Page, 231 Ill. 2d at 604, 900
N.E.2d at 1101. The best indicator of that intent is the statutory language, which
should to be given its plain and ordinary meaning. County of Du Page, 231 Ill. 2d at
604, 900 N.E.2d at 1101. Words and phrases must be interpreted in light of other
relevant provisions and the statute as a whole. County of Du Page, 231 Ill. 2d at 604,
900 N.E.2d at 1101. We may also consider the purpose behind the law, “the evils
sought to be remedied,” and the consequences of construing the statute one way or the
other. County of Du Page, 231 Ill. 2d at 604, 900 N.E.2d at 1101. If a statute is capable
of more than one reasonable interpretation, it is deemed ambiguous and we may
consider extrinsic aids such as legislative history in our construction of the statute.
County of Du Page, 231 Ill. 2d at 604, 900 N.E.2d at 1101.
Looking to the GARA language, nowhere does it specifically state that it is only
to be applied to American manufacturers or that foreign manufacturers should be
excluded from its protections and plaintiff does not assert otherwise. Instead, plaintiff
asserts that a congressional intent to limit GARA’s benefits to American manufacturers
can be inferred from GARA’s legislative history. There is no question that GARA was
intended to reinvigorate the American general aviation aircraft industry. As plaintiff
points out, the “purpose of the bill” introducing GARA states the bill “has been
developed in response to a serious decline in the manufacture and sale of general
aviation aircraft by Unites States companies.” H.R. Rep. No. 103-525(I), at 1 (1994),
as reprinted in 1994 U.S.C.C.A.N. 1638, 1638. Further, as plaintiff’s citations to
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assorted congressional proclamations in favor of the bill show, the congressmen
considered that their intent in passing the legislation was to “let us help American
industry win” (140 Cong. Rec. S2452-02, S2464 (daily ed. March 8, 1994 (statement of
Senator Dorgan)); “level the playing field between U.S. manufacturers of light aircraft
versus our foreign competition” (140 Cong. Rec. S2995-01, S2996 (daily ed. March 8,
1994) (statement of Senator Simpson)); and offset the “phenomenal competitive
advantage” foreign manufacturers of small aircraft enjoy over American manufacturers
because of the “excessively burdensome liability laws” imposed upon American
manufacturers (140 Cong. Rec. S2452-02, S2465 (daily ed. March 8, 1999) (statement
of Senator Simpson)). But just because Congress intended GARA to reinvigorate the
American small aircraft industry does not mean that Congress intended to do so to the
detriment of foreign manufacturers.
Looking to GARA’s plain language, it refers only to a “manufacturer” of “general
aviation aircraft” and components. It does not define “manufacturer,” let alone limit the
term to cover only American manufacturers. It does define “general aviation aircraft,”
providing that a general aviation aircraft means “any aircraft” awarded a type certificate
or certificate of airworthiness by the FAA, with a maximum seating capacity of 20
passenger and not engaged in scheduled passenger service at the time the accident.
(Emphasis added.) 49 U.S.C. §40101 note, §2(c) (2006). So, a manufacturer of “any”
aircraft or of a component of “any” aircraft meeting those requirements, i.e., all the FAA
requirements for issuance of a type certificate or airworthiness certificate as well as the
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passenger and scheduling requirements of the GARA definition, is covered by GARA.
This would necessarily mean that foreign manufacturers meeting those requirements
are also protected by GARA. See, cited for its persuasive value, LaHaye v. Galvin
Flying Service, Inc., 144 Fed. Appx. 631 (9th Cir. 2005) (rejecting argument that GARA
statute of repose does not apply to foreign manufacturers of general aviation aircraft),
following Lyon v. Agusta S.P.A., 252 F.3d 1078 (9th Cir. 2001) (applying the statute of
repose to bar an action against an Italian aircraft manufacturer without discussing
whether GARA applies to foreign manufacturers).
The fact that we read GARA to protect both domestic and foreign manufacturers
does not mean the term “manufacturer” or GARA itself is ambiguous. In fact, GARA’s
language is very clear: a manufacturer of any aircraft or component of any aircraft
meeting the FAA and GARA requirements is protected by the statute of repose. In
other words, GARA’s statute of repose concerns lawsuits against manufacturers filed in
the United States, not suits filed against United States’ (American) manufacturers.
Reading GARA to include foreign manufacturers does not dilute the congressional
intent to help American manufacturers nor lead to an absurd result such that this
interpretation cannot stand. American manufacturers reap benefits from the statute of
repose, as intended, and, whether by design or accident, foreign manufacturers do as
well. The court did not err in finding as a matter of law that GARA applies to a foreign
manufacturer.
b. Knowing Misrepresentation Exception
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Before a manufacturer can put a new model aircraft into production it must
obtain a type certificate for that model from the FAA. United States v. S.A. Empresa de
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 804-05, 81 L. Ed. 2d 660,
669, 104 S. Ct. 2755, 2760 (1984). The FAA issues a “type” certificate for a new model
of aircraft upon its approval of the plane’s basic design and analysis of data from
ground and flight tests performed on a prototype of the new aircraft to show the plane
meets minimum safety criteria set out in federal regulations. United States v. S.A.
Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. at 805-06, 81 L.
Ed. 2d at 669-70, 104 S. Ct. at 2760-61. The type certificate freezes the design of the
aircraft as of the date the FAA issues the certificate. Robinson Helicopter Co. v. Dana
Corp., 34 Cal. 4th 979, 985, 102 P.3d 268, 270, 22 Cal. Rptr. 3d 352, 355 (2004). FAA
regulations provide that “ ‘the holder of a type certificate ... shall report any failure,
malfunction, or defect in any product or part manufactured by it that it determines has
resulted in any [occurrences].’ “ Robinson v. Hartzell Propeller Inc., 326 F. Supp. 2d
631, 657 (E.D. Pa. 2004), quoting 14 C.F.R. §21.3(a) (2004).
If a manufacturer does not fulfill this obligation to report known defects or other
safety information to the FAA, GARA provides an exception to the statute of repose.
Burroughs, 78 Cal. App. 4th at 691, 93 Cal. Rptr. 2d at 131. GARA section 2(b)(1),
referred to as the “knowing misrepresentation” exception, provides that GARA offers no
repose
“if the claimant pleads with specificity the facts necessary to prove, and
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proves, that the manufacturer with respect to a type certificate or airworthiness
certificate for, or obligations with respect to continuing airworthiness of, an
aircraft or a component, system, subassembly, or other part of an aircraft
knowingly misrepresented to the Federal Aviation Administration, or concealed or
withheld from 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.” (Emphasis
added.) 49 U.S.C. §40101 note, §2(b)(1) (2006).
Mitsubishi having shown that the statute of repose applied to protect it from
plaintiff’s suit, plaintiff has the burden of proving the existence of facts that would
constitute an exception to the statute of repose. Willett, 366 Ill. App. 3d at 371, 851
N.E.2d at 635-36. To that end, plaintiff asserted that the knowing misrepresentation
exception applied to Mitsubishi. To take advantage of the knowing misrepresentation
exception, a plaintiff “must prove: (1) knowing misrepresentation, or concealment, or
withholding; (2) of required information that is material and relevant; (3) that is causally
related to the harm [the plaintiff] suffered.” Robinson, 326 F. Supp. 2d at 647, citing
Rickert v. Mitsubishi Heavy Industries, Ltd., 923 F. Supp. 1453, 1456 (D. Wyo. 1996).
Plaintiff charged that Mitsubishi knowingly misrepresented to the FAA or concealed or
withheld from the FAA material information regarding the unsafe condition of the
aircraft created by improper flight idle fuel flow setting and propellor rigging, set by the
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plane’s last mechanic or servicer. The improper settings could, under certain
conditions, lead to a negative torque sensing mode during a landing approach and loss
of control of the aircraft such as caused the accident here. Plaintiff asserted that
Mitsubishi, although aware of these problems, informed the FAA that the basic
procedures and tolerances for those components could remain as they had been. The
court found plaintiff did not present sufficient evidence to prove the elements of the
GARA exception.
Plaintiff argues the court erred in granting summary judgment to Mitsubishi
because there exist questions of material fact regarding whether Mitsubishi knowingly
misrepresented or concealed or withheld material information from the FAA and,
further, the question of whether a defendant “knowingly” misrepresented is a question
for a jury. But for a question to go to the jury, that question must be supported by
evidence. Here, there is not sufficient evidence to present a question of fact to a jury
regarding whether Mitsubishi withheld, concealed or knowingly misrepresented material
information to the FAA.
To support its allegation that Mitsubishi withheld, concealed or knowingly
misrepresented information, plaintiff presented service bulletin 234, issued by
Mitsubishi in October 1998 with the approval of the FAA. The bulletin required flight
checks of the fuel flow setting be performed at various altitudes in order to prevent
“potential degraded flight handling qualities” and stated that improper settings could
cause a negative torque sensing mode, which could result in “unsafe flight
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characteristics.” In contrast, as evidence of what Mitsubishi should have disclosed to
the FAA, plaintiff presented airworthiness directives issued by the Australian and
Japanese governments showing those governments were aware that the matters in
service bulletin 234 were necessary to prevent loss of control of the aircraft and
explaining that incorrect fuel flow setting and propellor rigging were the cause of the
problem. To show that Mitsubishi did “finally” inform the FAA of the severity of the
problem, plaintiff presented an airworthiness directive issued by the FAA five years
after the accident stating that the improper setting and rigging condition could result in
“consequent loss of control of the airplane in certain conditions.”
It is uncontested that Mitsubishi was fully aware of the problem with the fuel flow
setting and propellor rigging. The upshot of plaintiff’s argument appears to be that the
Japanese and Australian directives, which contain a slightly more detailed description
than the service bulletin of the problem with the fuel flow setting and propellor rigging
and possible outcome if the problem occurs, shows that Mitsubishi kept information
from the FAA. Having compared the wording of service bulletin 234 with the wording of
the Japanese and Australian directives, we find little difference between them and the
few differences in the language describing the problem in no way indicates that the
FAA was unaware of the extent of the problem. Service bulletins 234 and 097/73-001
were disseminated in order to “assure the engine and propellor rigging is adjusted
within the manufacturer’s specifications and to prevent potential degraded flight
handling qualitites associated with flight idle power being set asymmetrically low.” The
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bulletins explained that incorrectly positioning the power levers, i.e., where an aircraft
mechanic or operator fails to position the levers in accordance with the instructions in
the service bulletins and maintenance manuals for the aircraft, could result in “loss of
control” or “loss of engine power.” The FAA approved those bulletins and thus was
clearly aware of the problem.
This determination is reinforced by the affidavit of Lawrence Timmons, an
aeronautical engineer retained by Mitsubishi America on behalf of Mitsubishi to provide
engineering support for the model MU-2 aircraft type certificate and to coordinate
issuance of the service bulletin regarding the flight check of the fuel flow settings with
the FAA. Timmons testified that on July 16, 1998, he performed a flight test on the
same model of aircraft as the accident aircraft here in order to verify that, if the fuel flow
settings in the craft are set to the specifications specified by the manufacturer, the
plane will perform correctly. His testing showed that if the fuel flow setting was set too
low, the plane could encounter negative torque but that, if the settings were corrected
pursuant to the maintenance manual for the plane, the problem would not occur.
Timmons stated he was responsible for creating service bulletin 234, at the
FAA’s request, as an advisory that an aircraft’s safety could be negatively affected by
improper setting of the idle fuel flow. He stated he was in constant contact with
employees of the FAA, kept the FAA fully apprised of the extent of the problem created
if fuel settings were not properly set and worked closely with the FAA to create a
service bulletin addressing the problem. The flight checks required by the service
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bulletin were designed to diagnose whether the flight idle fuel flow in a plane was set
too low in order that an improper setting could be adjusted to the correct level.
Timmons’ account of his constant contact with the FAA and the FAA’s
knowledge of the problem is corroborated by the affidavit of Ralph Sorrells, the deputy
general manager of Mitsubishi America’s aircraft product support division. Sorrells
stated that the FAA had requested issuance of a service bulletin to inform the
maintenance community that changes to the fuel control can affect a plane’s low speed
handling characteristics, “which affects safety.” The FAA had discovered during its
review of the propulsion system for the aircraft that some operators of the aircraft
modified the fuel flow setting. Mitsubishi America hired Timmons to coordinate with the
FAA to develop the service bulletin based on the FAA’s recommendation about
minimum fuel flow settings. Sorrells stated Timmons tested a model aircraft in support
of the service bulletin, apprised the FAA of the results of the testing and coordinated
the bulletin with the FAA. Sorrells himself met with the FAA to discuss the bulletin. He
stated the 1998 Japanese and 1999 Australian directives were based on the same
information he and Timmons had provided to the FAA. In 1999, Sorrells sent a letter to
the FAA inquiring whether the FAA intended to issue an airworthiness directive warning
of the problems with the fuel flow setting similar to the Japanese directive. Thereafter,
during each meeting between Mitsubishi America and the FAA, as shown by minutes
from those meetings, Sorrells continued to inquire whether the FAA would issue a
similar airworthiness directive. The FAA issued such an airworthiness directive in
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2006.
Plaintiff presented another affidavit by Mermelstein in support of its assertion
that Mitsubishi withheld or misrepresented information to the FAA but the affidavit is
insufficient to support the assertion. Mermelstein stated that a representation made by
Mitsubishi in a July 9, 1998, letter to the FAA was not true and that Mitsubishi knew it
was not true. In the letter, Mitsubishi informed the FAA that, “given all the variations
that can occur, the flight idle fuel flow settings result in power settings that provide
positive engine/propellor thrust throughout the flight envelope.” He stated that the July
16, 1998, flight test performed in support of proposed service bulletin 234 showed that,
if the rigging and settings were set per the maintenance manual and verified as such,
the test plane still experienced negative torque, a condition caused by lack of positive
engine/propellor thrust, within the flight envelope for the plane. He stated that, in
service bulletin 234, issued on October 7, 1998, Mitsubishi continued to represent to
the FAA that an unsafe condition resulting in negative torque could only occur within
the flight envelope as a result of improper maintenance.
Mitsubishi did send the FAA a letter on July 9, 1998, informing the FAA that the
flight idle fuel setting could remain as they were. This letter was sent before Mitsubishi
was fully aware of the extent of the problems caused by a low flight idle fuel flow
setting. Not until July 16, 1998, did Mitsubishi perform a flight test on a model of the
aircraft. The report of the testing shows the results of a flight idle fuel flow check
conducted on a model MU-2B-20 aircraft in accordance with the latest proposed
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service bulletin, bulletin 234. Although Mitsubishi/Mitsubishi America was aware that
mechanics and operators sometimes set the fuel flow setting lower than the
recommended level, not until the testing did it know that negative torque and loss of
control could result. Mitsubishi’s knowledge of the problem did not occur until seven
days after its letter to the FAA. Therefore, we do not find the test report evidence that
Mitsubishi withheld information from the FAA.
Moreover, the testing showed that, if the fuel flow was reset in accordance with
the specifications in the maintenance manual for the plane, the problem would not
occur, which is precisely what the FAA intended the service bulletin to convey to the
mechanics and owners servicing the plane. Mitsubishi did not misinform the FAA when
it stated that the settings could remain as they were, i.e., as specified in the
maintenance manual for the aircraft. The settings as specified in the manual were
correct. Only if an operator or mechanic lowered the setting beyond the recommended
level would a problem occur, and the service bulletin was designed by Mitsubishi and
the FAA to avert that problem. Based on the evidence presented, we find nothing to
support plaintiff’s assertion that Mitsubishi withheld, concealed or knowingly
misrepresented material information to the FAA regarding the claimed cause of
plaintiff’s injuries. There being no question of fact created on this issue, the court did
not err in granting summary judgment to Mitsubishi.
Mitsubishi Heavy Industries America
Given its decision that Mitsubishi was protected by GARA, the court also granted
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summary judgment to Mitsubishi America, finding that Mitsubishi America was the
successor manufacturer to Mitsubishi and, therefore, the 18-year limitations period
applied to protect Mitsubishi America as well. Plaintiff argues Mitsubishi America is not
a successor manufacturer to Mitsubishi and GARA, therefore does not apply to
Mitsubishi America.
GARA protects “the manufacturer of the aircraft or the manufacturer of any new
component, system, subassembly, or other part of the aircraft, in its capacity as a
manufacturer.” (Emphasis added.) 49 U.S.C. §40101 note, §2(a) (2006). GARA does
not define “manufacturer,” and the statute does not identify whether successor
manufacturers are included within its protections. Burroughs, 78 Cal. App. 4th at 692,
93 Cal. Rptr. 2d at 132. Courts have found, however, that a successor to the original
manufacturer of a general aviation aircraft or component of such an aircraft and the
type certificate holder and/or designer of a general aviation aircraft or part can be
considered a “manufacturer” for purposes of GARA’s statute of repose, even though
the successor did not manufacture the plane or part. Burroughs, 78 Cal. App. 4th 681,
93 Cal. Rptr. 2d 124; Mason v. Schweizer Aircraft Corp., 653 N.W.2d 543 (Iowa 2002);
Pridgen v. Parker Hannifin Corp., 588 Pa. 405, 905 A.2d 422 (2006).
In Burroughs and Mason, the court found the successor to a product line of
aircraft or aircraft parts to be a “manufacturer” covered by GARA because, as the
holder of either the type certificate or the Parts Manufacturer Approval for the particular
aircraft or part involved in the suits, the successor had taken on the duties and
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obligations of the original manufacturer of the plane or part to report problems to the
FAA and disseminate instructions for continued airworthiness of the aircraft or part.
Burroughs, 78 Cal. App. 4th at 692-93, 93 Cal. Rptr. 2d at 132; Mason, 653 N.W.2d at
548-49. We find that Mitsubishi America has similarly stepped into the shoes of
Mitsubishi with regard to fulfilling Mitsubishi’s duties and obligations regarding the
model MU-2B-20 aircraft and is a “manufacturer” under GARA.
Mitsubishi America is not a “manufacturer” in the standard sense of the word. It
does not manufacture anything, let alone general aviation aircraft or parts of such
aircraft. Further, Mitsubishi America does not hold a type certificate for the Model MU-
2B-20 aircraft at issue here. Mitsubishi continues to hold the type certificate. The
holder of the type certificate or PMA for an aircraft has an affirmative duty to report to
the FAA any problems with an aircraft or part and to issue instructions for continued
airworthiness of the aircraft or part. Bain v. Honeywell International, Inc., 167 F. Supp.
2d 932, 939 (E.D. Tex. 2001); Butler v. Bell Helicopter Textron, Inc., 109 Cal. App. 4th
1073, 1082, 135 Cal. Rptr. 2d 762, 770 (2003). On the basis of these duties, the
holder is considered to be the “manufacturer” of the aircraft for GARA purposes. See
Burroughs, Mason. Therefore, Mitsubishi was and continues to be the “manufacturer”
entitled to GARA protection. Mitsubishi has, however, pursuant to a licensing
agreement and a product support agreement with Mitsubishi America, delegated the
performance of those duties to Mitsubishi America. The question is whether Mitsubishi
America’s assumption of and performance of Mitsubishi’s duties under the type
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certificate is enough to qualify Mitsubishi America as a “manufacturer” under GARA.
We find that it is.
Pursuant to the licensing agreement between Mitsubishi and Mitsubishi America,
as of March 1, 1998, Mitsubishi sought to provide for the “continued field product
support and maintenance” of any planes manufactured under two type certificates and
assorted supplemental type certificates it held, including the Model MU-2B-20 at issue
here, by licensing those certificates to Mitsubishi America. In exchange for Mitsubishi
America’s performance of “all obligations relating to the maintenance of” the
certificates, Mitsubishi America would obtain the FAA production certificate for spare
parts manufactured in the United States for any planes covered by the type certificates
and/or a PMA to produce and/or purchase modification or replacement parts for any of
the planes. Mitsubishi America accepted “full authority and responsibility to act on
behalf of Mitsubishi as the holder of [the certificates] in all matters involving the FAA.”
Mitsubishi America and Mitsubishi agreed “that the FAA may view Mitsubishi America
and not Mitsubishi as the responsible party in all matters relating to the airworthiness of
airplanes covered by [the certificates].” The agreement provides that, although
Mitsubishi has the authority to approve any changes to the covered aircraft or type
design required by the FAA, Mitsubishi America had the “ultimate authority and
responsibility to the FAA for approval of such changes and that Mitsubishi shall comply
with Mitsubishi America’s directions in such cases, as may be necessary to enable
Mitsubishi America to comply with such requirements of the FAA.”
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Mitsubishi America agreed to be responsible for all communication with the FAA
and obtaining approval from the FAA as necessary in order to maintain the aircraft type
design. It agreed to maintain all FAA approved manuals and service documents
applicable to the covered aircraft; coordinate with and obtain approval from the FAA for
changes to those documents; review, print and distribute the approved manuals and
service documents; coordinate compliance with airworthiness directives; report failures,
problems or malfunctions of the aircraft to the FAA; coordinate corrective action for
those problems with the FAA; coordinate with other manufacturers to supply
components for the aircraft; and assist the FAA and National Transportation Safety
Board with investigation of accidents or incidents involving the aircraft.
Pursuant to the services agreement between Mitsubishi and Mitsubishi America,
Mitsubishi America agreed, as an independent contractor, to provide product services
relating to assorted models of aircraft, including the MU-2 model. Among the many
services Mitsubishi America agreed to provide is “type certificate maintenance and
engineering support,” which includes acting as liaison with “government entities”
regarding the type certificate, coordinating with and obtaining approval from the FAA
and “airworthiness authorities” for design changes and revisions of service documents
and providing engineering and service documents to the FAA and/or airworthiness
authorities as needed. It also agreed to provide “accident/incident investigation,” which
encompasses investigating accidents involving the aircraft worldwide, except in Japan,
and coordinating with government entities regarding the investigations. It would
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coordinate service centers for the aircraft, manufacture of spare parts, field technical
support, training support and printing and distribution of publications related to the
covered aircraft.
Like the defendants in Burroughs and Mason, Mitsubishi America took on the
obligations of a general aviation aircraft manufacturer under a type certificate.
Granted, unlike in Burroughs and Mason, Mitsubishi America is not a product line
successor to the original manufacturer. However, pursuant to the licensing and
services agreements, Mitsubishi America took on Mitsubishi’s duties under the type
certificates, including reporting problems with the aircraft to the FAA, obtaining
approval of any changes in design from the FAA and maintaining the airworthiness of
the aircraft by disseminating maintenance manuals and service bulletins. As an entity
which has stepped into the shoes of the original manufacturer by taking on the
manufacturer’s obligations pursuant to a type certificate or PMA, Mitsubishi America is
entitled to the protection that would have been accorded Mitsubishi.
Instead of paying employees to perform its obligations, Mitsubishi is paying an
independent contractor/licensee to do so. If Mitsubishi’s obligations under the type
certificate were being performed by an in-house department at Mitsubishi, there would
be no question that the department would be covered by the protections of GARA
because the department is a part of Mitsubishi. We reach the same conclusion where,
as here, an independent contractor is performing those obligations and is being sued
on the basis of those obligations. Plaintiff charged that Mitsubishi America negligently
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failed to (1) advise owners and operators of the aircraft that the engine flight idle
control settings and propellor rigging could result in loss of control of the aircraft; (2)
communicate with the FAA regarding failures and defects in the aircraft; (3) properly
issue service bulletins on behalf of Mitsubishi and/or verify compliance with mandatory
service bulletins; and (4) otherwise provide proper and adequate advice and support to
aircraft owners and operators. In other words, plaintiff is suing Mitsubishi America for
its failure to perform the duties owed by a manufacturer under a type certificate or PMA.
Plaintiff sued Mitsubishi America in its capacity as a manufacturer. Burroughs, 78 Cal.
App. 4th at 695, 93 Cal. Rptr. 2d at 131; Mason, 653 N.W.2d at 550. We find the
protection of GARA extends to an independent contractor performing the duties of the
manufacturer, where, as here, the plaintiff’s claims against the independent contractor
are based on its performance of those duties, i.e., on the contractor’s acting as a
“manufacturer”. The court did not err in granting summary judgment to Mitsubishi
America.
For the reasons stated above, we affirm the circuit court’s grant of summary
judgment to Mitsubishi, Mitsubishi America and Honeywell on all counts; reverse the
court’s grant of summary judgment to Air 1st on plaintiff’s negligence and breach of
implied warranty counts; affirm the court’s grant of summary judgment to Air 1st on the
express warranty allegations; reverse the court’s grant of summary judgment to
Woodward on all counts; and dismiss plaintiff’s appeal from the court’s order
dismissing plaintiff’s strict liability counts against Air 1st.
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Affirmed in part, reversed in part and dismissed in part; cause remanded.
CUNNINGHAM, P.J., and HOFFMAN, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each case)
SOUTH SIDE TRUST AND SAVINGS BANK OF PEORIA, as personal representative
of the Estates of Christine Marie White, deceased, and John Michel White, deceased,
Plaintiff-Appellant,
v.
MITSUBISHI HEAVY INDUSTRIES, LTD, a Corporation, MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC., a Corporation, HONEYWELL INTERNATIONAL, INC., a
Corporation, WOODWARD GOVERNOR COMPANY, a Corporation, and AIR 1ST
AVIATION COMPANIES, a Corporation,
Defendants-Appellees
(Stan Blaylock and Wayne Bates,
Defendants).
No. 1-09-0148
Appellate Court of Illinois
First District, Second Division
March 31, 2010
JUSTICE KARNEZIS delivered the opinion of the court.
CUNNINGHAM, P.J., and HOFFMAN, J., concur.
Appeal from the Circuit Court of Cook County.
The Honorable Dennis J. Burke, Judge Presiding.
For APPELLANT: Nolan Law Group, of Chicago (Donald J. Nolan and William J. Jovan,
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Page 52 of 2
of counsel)
For APPELLEES MITSUBISHI HEAVY INDUSTRIES, LTD. and MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC.: O’Hagan Spencer LLC, of Chicago (Patrick J. Keating
and Elizabeth M. Dillon, of counsel) and Condon & Forsyth LLP, of New York, New
York (Marshall S. Turner, John D. Horenstein and Timothy H. Eskridge, Jr., of counsel)
For APPELLEE HONEYWELL INTERNATIONAL INC.: Perkins Coie LLP, of Chicago
(Bates McIntyre Larson and Charles W. Mulaney, of counsel)
For APPELLEE WOODWARD GOVERNOR: Rothschild, Barry & Myers, LLP, of
Chicago (Daniel Cummings and Robin K. Powers, of counsel)
FOR APPELLEE AIR 1ST AVIATION COMPANIES, INC.: McCullough, Campbell &
Lane, LLP, of Chicago (Patrick M. Graber and Stephen D. Koslow, of counsel)
52