Mangini v. Cessna Aircraft Co.

Full title: SUSAN F. MANGINI, ADMINISTRATRIX OF THE ESTATE OF DEBORAH MORAWSKI v…

Court: Connecticut Superior Court Judicial District of Tolland Complex Litigation Docket at Tolland

Date published: Dec 7, 2005

2005 Ct. Sup. 15670 (Conn. Super. Ct. 2005)

40 CLR 470

Opinion

No. X07-CV04-4001467-S

December 7, 2005

MEMORANDUM OF DECISION

SAMUEL J. SFERRAZZA, JUDGE.

As permitted by practice book § 10-39(a)(5), the plaintiffs in these two matters move to strike the special defense of a defendant, First Talon, LLC. The plaintiff in case d.n. X07-CV04-4001467 is Susan Mangini, administratrix of the estate of Deborah Morawski, and the plaintiff in case d.n. X07-CV04-4003418 is Helen Johnson, administratrix of the estate of Gregg J. Morawski. There are several other defendants in these cases who are unrelated to this motion to strike.

A motion to strike "admits all the facts well pleaded; it does not admit conclusions or the truth or accuracy of opinions stated in the pleadings." Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985).

Both plaintiffs allege that First Talon owned an aircraft that sustained a fuel leak or engine fire while in flight. The plane made an emergency landing and burst into flames. This crash and/or fire killed the plaintiffs' decedents. Johnson sues First Talon on the basis of common-law negligence, and Mangini sues under common-law negligence, statutory liability under General Statutes §§ 15-34 and 15-72, and respondeat superior.

First Talon has filed, in both cases, a special defense of nonliabiity as conferred by federal statute 49 U.S.C. § 44112. The plaintiffs move to strike this defense on three grounds, viz, that the nonliabiity statute is inapplicable to owners of aircraft; that this federal law fails to preempt state causes of action; and that, even if 49 U.S.C. § 44112 preempts state law, the type of accident in this case falls outside of the purview of that statute.

I

The court first addresses whether 49 U.S.C. § 44112 extends its reach to owners of aircraft generally.

The statute states as follows:

49 U.S.C. § 44112. Limitation of Liability.

(a) Definitions — In this section —

(1) "lessor" means a person leasing for at least 30 days a civil aircraft, aircraft engine, or propeller.

(2) "owner" means a person that owns a civil aircraft, aircraft engine, or propeller.

(3) "secured party" means a person having a security interest in, or security title to, a civil aircraft, aircraft engine, or propeller under a conditional sales contract, equipment trust contract, chattel or corporate mortgage, or similar instrument.

(b) Liability — A lessor, owner, or secured party is liable for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft engine, or propeller is in the actual possession or control of the lessor, owner, or secured party, and the personal injury, death, or property loss or damage occurs because of —

(1) the aircraft engine, or propeller; or

(2) the flight of, or an object falling from, the aircraft, engine, or propeller.

As recited above, this statute explicitly limits civil liability for personal injury or death arising from certain types of aircraft accidents with respect to lessors, owners, and secured parties. "Owner" is expressly defined as anyone who "owns a civil aircraft, aircraft engine, or propeller."

The plaintiffs concede that, on its face, this federal statute seems to exempt all owners of aircraft if the accident fits the other necessary criteria. The plaintiffs contend, however, that 49 U.S.C. § 44112 was simply a recodification or restatement of a predecessor statute, 49 U.S.C. § 1404, and that the new version was never intended to modify and enlarge the class of persons to whom exemption from liability might be available.

The former statute, 49 U.S.C. § 1404 states as follows:

No person having a security interest in, or security title to, any civil aircraft under a contract of conditional sale, equipment trust, chattel or corporate mortgage, or other instrument of similar nature, and no lessor of any such aircraft under a bona fide lease of thirty days or more, shall be liable by reason of such interest or title, or by reason of his interest as lessor or owner of the aircraft so leased, for any injury to or death of persons, or damage to or loss of property, on the surface of the earth (whether on land or water) caused by such aircraft or by the ascent, descent, or flight of such aircraft or by the dropping or falling of an object therefrom, unless such aircraft is in the actual possession or control of such person at the time of such injury, death, damage or loss.

The plaintiffs point out that the transition from 49 U.S.C. § 1404 to 49 U.S.C. § 44112 was part of a broad revision and recodification of Title 49 which recodification was enacted in 1994 and denoted as P.L. 103-272. Subsection 1.(a) of P.L. 103-272 states that "[c]ertain general and permanent laws of the United States, related to transportation, are revised, codified and enacted by subsections (c)-(e) of this section without substantive change . . ." (emphasis added). Statute 49 U.S.C. § 44112 replaced 49 U.S.C. § 1404 by virtue of Section 1.(e) of P.L. 103-272. Also, Section 6.(a) of P.L. 103-272 provides that Sections (1) through (4), including Section 1.(e), "restate, without substantive change, laws enacted before July 1, 1993, that were replaced by these sections. These sections may not be construed as making a substantive change in the laws replaced."

The plaintiffs assert that the predecessor statute, 49 U.S.C. § 1404, enacted in 1948, afforded limited liability protection only to those holding a security interest or to long-term lessors and not to owners in general. They then argue that the legislative admonitions against substantive change require 49 U.S.C. § 4412 to be similarly restricted, despite its express language to the contrary.

The defendant counters that the plaintiffs are wrong in their assertion that the predecessor statute, 49 U.S.C. § .1404, failed to cover owners. Thus, the adding of the definitions of "lessor," "owner," and "secured party" in 49 U.S.C. § 44112 clarified the ambiguity previously existing in 49 U.S.C. § 1404 and did not change the law substantively.

The court concludes that, whether 49 U.S.C. § 44112 is viewed as a clarifying revision of 49 U.S.C. § 1404 or a substantive enlargement of that statute, the result is the same, i.e. owners of aircraft can take advantage of the limitation on liability prescribed by 49 U.S.C. § 44112.

A.

It is unclear whether the former statute, 49 U.S.C. § 1404, was inapplicable to owners of aircraft. The text of 49 U.S.C. § 1404 is imprecise and awkward. The statute was entitled "Limitation of Security Owners' Liability," but the law indisputably applied to lessors who held no security interest. The first part of the statute referred to those with security interests and long-term lessors, but the middle portion exempted liability "by reason of his interest as lessor or owner of the aircraft so leased." (Emphasis added.) Indeed, the last-quoted phrase was preceded by the exemption "by reason of such [security] interest or title." It would appear superfluous and repetitious to employ in the latter clause the word "owner" if its meaning was the same as one holding a security interest. Whether the exemption under the erstwhile 49 U.S.C. § 1404 covered owners generally is ambiguous.

It is true that the House and Senate Reports accompanying the enactment of 49 U.S.C. § 1404 promoted passage by stressing the need to eliminate the risk that those holding security interests or lessors might be found liable for accidents over which they had no control, Senate Report No. 1363 (May 20, 1948); House Report No. 2091 (June 1, 1948). The announced purpose of the proposed law was "to encourage such persons to participate in the financing of aircraft purchases," Id. "Such persons" refers to both those retaining a security interest and lessors, i.e. both the financier and financed. The absence of reference to "owners" in general in these reports does not necessarily imply that owners were excluded from the protection afforded by 49 U.S.C. § 1404.

In Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d 1389 (5th Cir. 1970) and McCord v. Dixie Aviation Corporation, 450 F.2d 1129 (10th Cir. 1971), federal appeals courts rejected the plaintiffs' claims that 49 U.S.C. § 1404 imposed liability on those not expressly exempted from liability thereunder. These decisions held that 49 U.S.C. § 1404 limited liability rather than created it. Rogers v. Ray Gardner Flying Service, Inc., supra, 1394; McCord v. Dixie Aviation Corporation, supra, 1131. In dicta, these cases assumed that 49 U.S.C. § 1404 applied only to security holders and not owners generally without actually addressing that question.

Repealing 49 U.S.C. § 1404 and replacing it with 49 U.S.C. § 44112 may be seen as a response to the confusion and ambiguity created by the language of the former statute. In this sense, 49 U.S.C. § 44112 simply clarifies that the word "owner" in 49 U.S.C. § 1404 was meant literally and was not confined to mean holders of security interests only. The clarification accomplished this by listing three classes of exempt persons in series with equal grammatical position and stature, viz. "lessor, owner, or secured party," and by specifically defining each class, including a definition of "owner" which omits any connection to security interest and instead declares an owner to be one who "owns a civil aircraft, engine, or propellor."

Viewed from this perspective, the revision of 49 U.S.C. § 1404, as embodied in 49 U.S.C. § 44112, is in harmony with the purpose and construction directives of P.L. 103-272. By taking hold of the legislative admonitions that no substantive change was intended, one can infer that 49 U.S.C. § 1404 was always designed to include the owners that 49 U.S.C. § 44112 so clearly and definitely describes. This approach effectuates the plain text of 49 U.S.C. § 44112 while comporting with the legislative statements surrounding its enactment.

B.

Even if 49 U.S.C. § 44112 is construed as a substantive departure from previous law, as set forth in 49 U.S.C. § 1404, the plaintiffs' argument fails.

The plaintiffs correctly note that where Congress has stated that new legislation is a codification or restatement of existing law, it must be presumed that changes in phraseology or organization produce no change in the meaning of statutes so modified. United States v. Ryder, 110 U.S. 729, 740 (1884); Logan v. United States, 144 U.S. 263, 302 (1892). This presumption negates the inference which might otherwise be drawn that when a legislative body alters a statute it must have intended to alter its import. In the case of recodification, the latter inference is improper when the change merely rearranges words or the order of sections and subsections. Anderson v. Pacific Coast S.S. Co., 225 U.S. 187, 199 (1912). For example, combining multiple provisions into one section "cannot be held to have altered the scope and purpose of these enactments." Logan v. United States, supra. A similar rule pertains when dividing one provision into two. Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 227 (1957).

This presumption is rebuttable, however. If the alteration clearly expresses an intention to change the law, then the fact that the revision occurs in the midst of recodification does not render the expressed change a nullity. United States v. Sischo, 262 U.S. 165, 169 (1923). "[A] codification of the general statutes then in force . . . is not lightly to be read as making a change, although of course it may do so." Id. (Emphasis added.) The presumption of no substantive change cannot be used to create an "artificial" meaning contrary to "what [the statute] says to a plain mind." Id. The replacement text must still be read "in the natural way." Id.

In the context of recodification, any such substantive change must be clearly expressed. Fourco Glass Co. v. Transmirra Corp., supra, 227-28; Anderson v. Pacific Coast S.S. Co., supra, 199; United States v. Ryder, supra, 740; Logan v. United States, supra, 302. Parenthetically, this also appears to be the rule under Connecticut law. Sigal v. Wise, 114 Conn. 297, 306 (1932). The presumption against substantive change is overcome when "there is a change too clearly apparent to disregard." Id.

The repeal of 49 U.S.C. § 1404 and substitution of 49 U.S.C. § 44112 is such an exceptional case if one construes the earlier statute to have excluded owners from coverage. As described above, 49 U.S.C. § 44112 does not simply reorder "security interest," "lessor, and owner." The new statute adopts three new definitional subsections, 49 U.S.C. § 44112(a)(1) through (3), which subsections explicitly define "lessor," "owner," and "secured party," individually and distinctly. An "owner" is a "person that owns a civil aircraft, aircraft engine, or propeller." 49 U.S.C. § 44112(a)(2). A "secured party" is one "having a security interest in, or security title to" the same. 49 U.S.C. § 44112(a)(3).

The inclusion of all owners of aircraft within the list of entities entitled to liability protection under 49 U.S.C. § 44112 "is a change too clearly apparent to disregard." Assuming, arguendo, that the earlier version, 49 U.S.C. § 1404, excluded owners from its protection, then 49 U.S.C. § 44112 clearly expresses a substantive change sufficient to rebut the presumptions against such construction.

The plaintiffs rely on a trial court decision from Rhode Island which has accepted the argument that 49 U.S.C. § 44112 is merely a nonsubstantive recasting of the text of 49 U.S.C. § 1404, and that the limitation on liability is inapplicable to owners. Coleman v. Windham Aviation, Inc., Kent Superior Court, d.n. K.C. 2004-0985 (July 18, 2005). This court finds the ruling in that case unpersuasive. The Rhode Island trial court decision is based solely on the presumption that recodification results in no substantive change. That reasoning ignores the impact of the additional subsections which expressly and clearly define "owner" as a class separate and distant from "secured party." The holding in that opinion is that 49 U.S.C. § 44112 means the opposite of what its text plainly states. That conclusion defies common sense and renders the explicit words of Congress nugatory.

It is true that the congressional reports and the general provisions of P.L. 103-272 repeatedly remark that no substantive changes were intended. But it is far more likely that Congress overstated this general purpose of recodification than Congress inadvertently inserted a precise and unequivocal definition of "owner" and specifically stated that the limitation on liability extended to such well-defined owners.

C.

The court concludes that either 49 U.S.C. § 44112 clarified the ambiguous use of "owner" in 49 U.S.C. § 1404 to remove any doubt that its protection from liability covered all owners of aircraft or it expanded this coverage to include owners by its enactment. Under either scenario, the court holds that the exemption from liability in 49 U.S.C. § 44112 applies to owners generally as long as all the other requirements of that statute are satisfied.

II

Next, the plaintiffs claim that 49 U.S.C. § 44112 fails to preempt state law. The court disagrees.

There exists "a strong presumption against federal preemption of state or local legislation." Dowling v. Slotnik, 244 Conn. 781, 794 (1998). Only when the federal government has shown a "clear and manifest" purpose to supersede state and local authority does preemption apply. Id., 795.

Consequently, it is assumed that a federal agency had no intent to preempt the exercise of local police power unless (1) the federal law or regulation expressly directs the ouster of local authority; (2) such intent should be inferred because the federal government has legislated comprehensively so as to occupy the entire field in question, leaving no room for local regulation in the area; or (3) the local regulation under scrutiny conflicts with federal rules because it is impossible to comply with both provisions or because the local law creates an obstacle to the accomplishment or execution of federal objectives. Commission on Human Rights v. Sullivan Associates, 250 Conn. 763, 772-73 (1999).

Two state appellate courts have addressed this issue and determined that 49 U.S.C. § 44112 and its predecessor, 49 U.S.C. § 1404, do not preempt state law. Retzler v. Pratt Whitney, 309 Ill.App.3d 906 (1999); and Storie v. Southfield Leasing, Inc. 90 Mich.App. 612 (1979). However, most federal courts considering this question have found that these federal exemptions from liability statutes bar state claims. Abdullah v. American Airlines, Inc., 181 F.3d 363, 365 (3rd Cir. 1999); Rogers v. Ray Gardiner Flying Service Inc., supra, 1394; In Re Inlow Accident Litigation, United States District Court, d.n. IP99-0830-C H/K (S.D. Indiana December 13, 2001); Rosdail v. Western Aviation, Inc., 297 F.Sup. 681, 685 (D.C. Col. 1969); Matei v. Cessna Aircraft Co., 35 F.3d 1142, 1144 (7th Cir. 1994).

In In Re Inlow Accident Litigation, supra, the District Court noted that no federal court had held, as of 2001, that 49 U.S.C. § 44112 or its predecessor failed to preempt contrary state law. The District Court specifically rejected the state court holdings of Retzler and Storie, supra. The Court of Appeals stated, in dicta, in Rogers v. Ray Gardner Flying Service, Inc., supra, that 49 U.S.C. § 1404 "appears clearly and forthrightly to preempt any contrary state law." Id., 1394. The Court of Appeals in Abdullah v. American Airlines, Inc., supra, found that "the entire field of aviation safety" was preempted by federal law. Id., 365.

The most compelling argument for preemption are the House and Senate Reports concerning the passage of 49 U.S.C. § 1404 in 1948. "Provisions of present Federal and State law might be construed to impose upon persons . . . liability . . ." Rosdail v. Western Aviation, Inc., supra, 685. (Emphasis added.) "This bill would remove this doubt by providing clearly that such persons have no liability . . ." Id. Thus, Congress announced that it intended 49 U.S.C. § 1404 and its present version, 49 U.S.C. § 44112, to preempt state law and to exempt from liability those persons who met the other criteria of those statutes.

III

The final issue for the court to decide is whether the specific allegations of the present case fit the circumstances to which 49 U.S.C. § 44112 applies. Practice Book § 10-50 mandates that a defendant specially plead those facts which show that the plaintiff has no cause of action. First Talon's special defense is devoid of any factual allegations and merely states that the plaintiffs' claims are preempted by 49 U.S.C. § 44112.

Under Practice Book § 10-52, First Talon's admission, regarding the allegations of the plaintiffs' complaints are deemed incorporated into its special defense. However, First Talon denies the plaintiffs' allegations with respect to the nature and location of the accident and cause of death. Also missing is any allegation regarding the absence of actual possession or control of the aircraft which is necessary to take advantage of 49 U.S.C. § 44112. Therefore, the special defense, as presently stated, is legally insufficient, and the plaintiffs' motions to strike are granted on this basis.