Opinion
CASE NO. Ol-CV-74579-DT
August 16, 2002
OPINION AND ORDER
At a session of said Court, held in the U.S. District Courthouse, City of Detroit, County of Wayne, State of Michigan, on August 16, 2002
Plaintiffs filed their Complaint in this Court on December 4, 2001. On January 10, 2002, Plaintiffs filed their Amended Complaint. Plaintiffs' Amended Complaint alleges four counts: 1) Breach of Contract against Defendant County of Wayne, Michigan (Wayne County); 2) Breach of Contract against Jack Anglin Company, Van Waters Rogers and/or Vopak, Cryotech Deicing, Old World Industries, Inc., Barrett Paving Materials, Inc., and/or Ashland Chemical; 3) Tort allegations against the Defendants in count II; 4) Breach of express and implied warranties against all Defendants. Plaintiffs' allegations arise out of damage to its aircraft engines while its aircraft used the Detroit Metropolitan Wayne County Airport (DTW).
The matter is currently before the Court on Defendant Wayne County's Motion to Dismiss Plaintiffs' claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, Wayne County's Motion shall be granted.
STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal for "failure to state a claim upon which relief can be granted . . . ." Fed.R.Civ.P. 12(b)(6). Under Rule 12(b)(6), the Court "must construe the complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief." Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995) (citations omitted).
BACKGROUND
Wayne County contends that Plaintiffs' claims against it must be dismissed because a contract does not and could not exist between the two parties due to Wayne County's legal obligations to perform the services that form the basis for the alleged agreement between the parties. Plaintiffs assert two claims against Wayne County: 1) breach of contract (Count I) and 2) breach of warranty (Count IV).
Plaintiffs allege that Lufthansa Cargo A.G. (Lufthansa) and Wayne County entered into a "Landing Rights Agreement" (Agreement) "whereby Lufthansa Cargo agreed to compensate Wayne County at a rate of $2.22 per 1,000 pounds in exchange for the right to operate cargo flights into and out of DTW." (Am. Compl. at ¶ 25). Plaintiffs allege that under the "terms" of the Agreement, Wayne County had "certain express and implied contractual obligations," (Am. Compl. at ¶ 47); that "Wayne County materially breached each of its aforesaid duties . . ." under the terms of the Agreement, (id. at ¶ 48 ); and that as a result of such breach Lufthansa sustained damages. (See Id. at ¶ 49).
At the hearing held on this matter on June 6, 2002, Plaintiffs' counsel acknowledged that there is no signed agreement.
For their breach of warranty claim, Plaintiffs allege that Wayne County, along with the other Defendants, "impliedly or expressly warranted that said runways, taxiways, aprons, other service areas, runway clearing procedures and Surface Treatment Materials were of merchantable quality, clean and fit for the purpose and use of which they were intended." (Id. at ¶ 65). Plaintiffs allege that the runways, taxiways, etc., were "dangerous, defective and unsafe and not reasonably fit for the purpose for which they were intended to be used." (Id. at ¶ 67). Plaintiffs claim they "performed all the terms and conditions to be fulfilled with reference to the aforesaid warranties made by the Defendants, their agents, servants and/or employees and did not cause the aforesaid facilities to be used in a manner other than that in which they were intended to be used." (Id. at ¶ 68). As a result of Defendants' breach of these warranties, Plaintiffs claim they were injured. (See Id. at ¶ 69).
DISCUSSION
Wayne County argues that the landing fees and other "duties" of Wayne County as alleged by Plaintiffs arise under statute or regulations, not out of contractual obligations express or implied.
Defendant also argues that Plaintiffs' claims are brought as contract claims because these claims cannot be brought against Wayne County as tort claims due to Michigan's governmental immunity statute. See Michigan Compiled Laws § 691.1407. This argument, however, is irrelevant because Plaintiffs chose to bring their claims as contract claims.
I. Landing Fee:
Wayne County contends that because the landing fee is charged pursuant to legal authority, there can be no contract between the parties. In support of this contention, Wayne County relies on Borg-Warner v. Department of State, 433 Mich. 16 (1989).
In Borg-Warner, the Supreme Court of Michigan quoted Professor Williston:
If a promisee is already bound by official duty to render a service, it is no detriment to him, and no benefit to the promisor beyond what the law requires the promisee to suffer or to give, for him to do or agree to do the service on request. Though the previous legal duty does not run to the promisor under the later agreement, it runs to the public of which the promisor is a member, and as such he has a right, even if not one enforceable at law, to the performance in question. Therefore, no contract can be based on such consideration.
Id. at 21 (quoting 1 Williston, Contracts (3d ed), § 132, p. 577). Defendant also cites to the Michigan Aeronautics Code, M.C.L. § 259.1 et seq., 49 U.S.C. § 40116(e)(2), and 14 C.F.R. § 139.131(c).
Defendant cites Borg-Warner and 49 U.S.C. § 40116(e)(2) for the proposition that the landing fees charged Lufthansa were statutory fees and were not arrived at through mutuality of assent. In Borg-Warner, the court held:
the fee assessed against and paid by the plaintiff, said to have "induced" the performance of the filing search, was itself not bargained-for-consideration; the statute required the Secretary of State to demand, and the plaintiff to pay, a certain fee, no more and no less, for the performance of the search (which in turn was required to be undertaken upon request). We thus reject the plaintiffs claim that the obligatory payment of a nominal fee for specific and mandatory acts by the governmental agents is sufficient to convert the transaction at issue here into a contract.
Borg-Warner, 433 Mich. at 21-22. 49 U.S.C. § 40116(e)(2) provides:
(e) Other allowable taxes and charges. Except as provided in subsection (d) of this section, a State or a political subdivision of a State may levy or collect — —
(2) reasonable rental charges, landing fees, and other service charges from aircraft operators for using airport facilities of an airport owned or operated by that State or subdivision.49 U.S.C. § 40116(e)(2)(2002).
Unlike the statute in Borg-Warner, however, 49 U.S.C. § 40116(e)(2) does not require Defendant to charge a landing fee and does not set the landing fee. Because there is no statute requiring or setting the landing fee at issue in this case, the statutorily set fee part of Borg-Warner does not apply to this case.
Although the statutorily set fee part of the holding in Borg-Warner does not apply, the fee still cannot be consideration for the Agreement. The parties admit that DTW is a "public use facility." Michigan law defines a "public use facility" as "an airport, landing field, or other aeronautical facility that is available for use by the general public without prior approval of the owner or operator." M.C.L. § 259.24b (emphasis added). Pursuant to § 259.24b, DTW was "available for use" by Lufthansa without prior approval from Wayne County. Any landing fee it paid Wayne County could not have been in consideration of landing rights at DTW. Therefore, the landing fee cannot be consideration to support the validity of the Agreement. See Borg-Warner, 433 Mich. at 21.
II. Duties:
Defendant contends that the "duties" Plaintiffs allege were part of the Agreement cannot be the basis for a contract because they are duties to which Defendant was already obligated under federal law. In support of this argument, Defendant cites 14 C.F.R. § 139.313. 14 C.F.R. § 139.313 provides:
(a) Each certificate holder whose airport is located where snow and icing conditions regularly occur shall prepare, maintain, and carry out a snow and ice control plan.
(b) The snow and ice control plan required by this section shall include instructions and procedures for — —
(1) Prompt removal or control, as completely as practical, of snow, ice, and slush on each movement area;
(2) Positioning snow off of movement area surfaces so that all air carrier aircraft propellers, engine pods, rotors, and wingtips will clear any snowdrift and snow bank as the aircraft's landing gear traverses any full strength portion of the movement area;
(3) Selection and application of approved materials for snow and ice control to ensure that they adhere to snow and ice sufficiently to minimize engine ingestion;
(4) Timely commencement of snow and ice control operations; and
(5) Prompt notification, in accordance with § 139.339, of all air carriers using the airport when any portion of the movement area normally available to them is less than satisfactorily cleared for safe operation by their aircraft.
(c) FAA Advisory Circulars in the 150 series contain standards for snow and ice control equipment, materials, and procedures for snow and ice control which are acceptable to the Administrator.14 C.F.R. § 139.313 (emphasis added). Furthermore, 14 C.F.R. § 139.305 provides:
(a) Each certificate holder shall maintain, and promptly repair the pavement of, each runway, taxiway, loading ramp, and parking area on the airport which is available for air carrier use as follows:
* * *
(4) Except as provided in paragraph (b) of this section, mud, dirt, sand, loose aggregate, debris, foreign objects, rubber deposits, and other contaminants shall be removed promptly and as completely as practicable.
(5) Except as provided in paragraph (b) of this section, any chemical solvent that is used to clean any pavement area shall be removed as soon as possible, consistent with the instructions of the manufacturer of the solvent.
* * *
(c) FAA Advisory Circulars in the 150 series contain standards and procedures for the maintenance and configuration of paved areas which are acceptable to the Administrator.14 C.F.R. § 139.305.
Plaintiffs allege that under the "Agreement," Wayne County had certain express and implied contractual obligations, including but not limited to a duty;
a. To allow Lufthansa Cargo to use DTW for flight services;
b. To provide Lufthansa Cargo with facilities, including runways, taxiways, aprons, and other service areas, fit for their intended purpose;
c. To provide Lufthansa Cargo with facilities, including runways, taxiways, aprons, and other service areas, free from obstruction, including but not limited to the clearing and removal of snow, ice, vegetation, stones and other foreign matter as may be reasonably necessary for the safe, convenient, and proper use of DTW by Lufthansa Cargo;
d. To maintain and operate DTW in all respects in a manner at least equal to the highest standards or ratings issued by the Federal Aviation Administration for airports of similar size and character and in accordance with all rules and regulations of the Federal Aviation Administration;
e. To provide its operations and services in a manner that is safe, thorough and at least equal to the highest quality of service rendered at other major hub airports in the United States; and
f. To use snow removal and related services at DTW only material and equipment in compliance with all rules and regulations of the Federal Aviation Administration and in a manner consistent with those rules and regulations.
g. To provide notices, warnings, directives and instructions concerning the hazardous and dangerous condition of its facilities incompliance [sic] with the Landing Rights Agreement, and the rules and regulations of the Federal Aviation Administration and the State of Michigan.
((Am. Compl. at ¶¶ 47(a)-(g)). (Emphasis added). There is no indication, other than Plaintiffs' allegation that all of these duties were breached, that any breach of the "duty" contained in Paragraph 47(a) could have led to the damage to Plaintiffs' aircraft. The "duty" contained in Paragraph 47(b) is basically Plaintiffs' warranty claim. This warranty claim and the "duties" in Paragraphs 47(c)-(g) are "duties" which the Federal Aviation Regulations quoted above, 14 C.F.R. § 139.313 and 139.305, require Defendant to perform even without any "agreement" with another party. These are "duties" imposed on Defendant by law.
In a breach of contract case involving a written lease, the Michigan Court of Appeals affirmed the trial court's grant of summary judgment because the clause in the lease which the plaintiff claimed was breached attempted to create a duty which the defendant already owed under Michigan law. See General Aviation, Inc. v. Capital Region Airport Authority, 224 Mich. App. 710, 714-15 (1997).
Similarly, in the case at bar, accepting Plaintiffs' allegations in the Complaint as true, even if Plaintiffs had a written, signed agreement with Defendant regarding the duties listed in the Complaint, Plaintiffs would not be able to prevail on their breach of contract claim because Defendant had a preexisting legal obligation under the Federal Aviation Regulations to perform these duties. The General Aviation Court stated "[a] pledge to undertake a preexisting statutory duty is not supported by adequate consideration." Id. at 715 (citations omitted). In the context of a Rule 12(b)(6) motion, accepting Plaintiffs' claims as true, it is clear that Plaintiffs "undoubtedly can prove no set of facts in support of [their] claims that would entitle [them] to relief." Columbia Natural Resources, 58 F.3d at 1109. Therefore, Plaintiffs' contract claim against Defendant must be dismissed.
As stated above, Plaintiffs' counsel acknowledged at the hearing that Plaintiffs do not have a written agreement with Defendant.
III. Breach of Warranty:
Although not fully addressed by Defendant in its Motion, Plaintiffs' claim for breach of implied warranty fails as a matter of law. A breach of implied warranty claim cannot be alleged in the context of a "contract" for services, such as the contract at issue in the case at bar. See Allmand Assoc. v. Hercules, Inc., 960 F. Supp. 1216, 1230 (E.D.Mich. 1997)("warranties of . . . fitness for a particular purpose are, by their nature, inapposite to a contract for services. . . ." quoting DeValerio v. Vic Tanny Int'l, 140 Mich. App. 176, 180 (1984)). Therefore, Plaintiffs' breach of implied warranty claim also must be dismissed.
Accordingly,
IT IS ORDERED that Defendant Wayne County's Motion to Dismiss be GRANTED, and Count I of Plaintiffs' Amended Complaint is hereby DISMISSED; and
IT IS FURTHER ORDERED that Count IV of Plaintiffs' Amended Complaint is hereby DISMISSED as to Defendant Wayne County.