Opinion
No. 1-09-0148
December 29, 2009.
Appeal from the Circuit Court of Cook County, Dennis J. Burke, Judge, presiding.
Plaintiff, Southside Trust and Savings Bank of Peoria, is the personal representative of the estates of Christine Marie White (Christine) and John Michael 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. The court dismissed plaintiffs 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 plaintiffs 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 2006)), Federal Aviation Administration Regulation 91.403(a) ( 14 C.F.R. § 91.403(a)) and the facts to plaintiffs 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.
Plaintiff also filed negligence claims against flight instructors Stan Blaylock and Wayne Bates but those claims are not at issue here.
Public Act 89-7 amended section 2-621 ( 735 ILCS 5/2-621) effective March 9, 1995. However, in Best v. Taylor Machine Works, 179 III. 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.
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). Air 1st sold the plane to Michael in April 2001 and 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 the Illinois Distributor Statute, 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 "general aviation aircraft" 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). 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). 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).
A "general aviation aircraft" is any aircraft for which the Federal Aviation Administration (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. Revitalization Act of 1994, amendments of 1997, sec. 2(c), Pub.L. 105-102, § 3(e), 111 Stat. 2216.
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. Plaintiffs suit was for an accident that happened in 2001, more than 13 years after the end of the repose 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
1. Dismissal pursuant to section 2-621
The court granted dismissal of plaintiffs strict liability claims against Air 1st pursuant to section 2-621 of the Code. Also known as the "seller's exception," section 2-621 provides that a nonmanufacturer defendant, usually a distributor or retailer, in a strict product liability action may be 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 2006); Murphy v. Mancari's Chrysler Plymouth, Inc., 381 III. 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 III. App. 3d at 770-71, 887 N.E.2d at 573; 735 ILCS 5/2-621 (b) (West 2006); 735 ILCS 5/2-621 (c) (West 2006).
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 2006); Murphy, 381 III. App. 3d at 771, 887 N.E.2d at 573. Section 2-621(b) provides in relevant part, that:
"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 manufacturer or manufacturers of the product allegedly causing the injury, death or damage." 735 ILCS 5/2-621 (b)(1) (West 2006).
Air 1st moved to dismiss plaintiffs 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 (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 plaintiffs strict liability claims against Air 1 st 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 III. 2d 111, 115, 518N.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 III. 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 III. 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 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 its 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 plaintiffs 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.
2. Summary Judgment on Negligence Count
The court granted summary judgment to Air 1st on plaintiffs 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 *** plaintiffs 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 regulations 91.403(a) and 91.405 ( 14 C.F.R. § 91.403(a), 91.405), 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 III. App. 3d 690, 692, 747 N.E.2d 1014, 1017 (2001). To that end, regulation 91.403(a) provides that:
"[t]he owner or operator of [a noncommercial] aircraft is primarily responsible for maintaining that aircraft in airworthy condition, including compliance with part 39 [airworthiness directives] of this chapter." 14 C.F.R. § 91.403(a).
Similarly, regulation 91.405 provides that:
"Each owner or operator of an aircraft —
(a) Shall have that [noncommercial] 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.
The owner of a privately owned noncommercial aircraft may delegate its duty to ensure the safety of the aircraft to FAA-qualified mechanics and inspectors and cannot be held liable for breach of that duty unless he knew or should have known of a problem or defect left unrepaired. Jarmuth, 321 III. App. 3d at 693-94, 747 N.E.2d at 1018-19.
Applying regulations 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 regulation 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 regulations 91.403 and 91.405 because its claims are not negligent maintenance claims against the previous owner of a noncommercial aircraft but, instead, are product liability negligence claims against a previous owner who is a commercial refurbisher and reseller of planes, 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 III. App. 3d at 368, 851 N.E.2d at 633. Reviewing the court grant of summary judgment de novo (Willett, 366 III. 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 regulations 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 Michael in 2001. As we found in our previous opinion in this case ( Commerce Trust Co. v. Air 1st Aviation Companies, Inc., 366 III. App. 3d 135, 851 N.E.2d 133 (2006) (in the context of Air 1st's motion to dismiss for lack of personal jurisdiction)), plaintiffs cause of action lies in the wake of Air 1st's commercial activities. There is no question that plaintiffs negligence claims are directed to Air 1st as the commercial seller of the aircraft.
Regulations 91.403(a) and 91.405 have no application in the context of plaintiff's claims against Air 1st. As the clear language of the regulations shows, the responsibility for maintaining the airworthiness of a noncommercial aircraft lies with the current owner of the aircraft, not with a past owner. See Tanner v. Rebel Aviation, Inc., 146 Ga.App. 110, 113, 245 S.E.2d 463, 465 (Ga.App., 1978) (court held section 91.403(a), formerly 14 C.F.R. § 91.163, did not provide current owner of noncommercial 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 regulations contain no indication that they impose a continuing duty to maintain on past owners of the aircraft.
"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.'" Tanner v. Rebel Aviation, Inc., 146Ga.App. 110, 113, 245 S.E.2d 463, 465 (Ga.App.,1978), quoting French v. C. A. B., 378 F.2d 468, 471 (10 Cir., 1967).
At the time of the accident, Michael was the owner of the accident aircraft. Air 1st was the previous owner. Air 1st's duty to maintain the plane pursuant to regulations 91.403(a) and 91.405 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 plaintiffs claims are solely directed to Air 1st's actions as a seller. Regulations 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 plaintiffs 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 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 plaintiffs decedents, and each of them." Plaintiff asserted Air 1st breached "its duty of care to the plaintiffs 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 regulations 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 plaintiffs 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 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 III. 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.
3. 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 Robbins' deposition 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 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 regulations 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 III. 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 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 accident aircraft arguably was not fit for that purpose: 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 craft and plaintiff failed to show the plane was not airworthy when sold to Michael. Plaintiff does not argue the existence of only an express warranty but of an implied warranty as well. Air 1st only presented evidence, Robbins testimony, supporting its assertion that an express warranty does not exist. It did not present evidence showing an implied warranty did not exist, that the plane was airworthy when sold to Michael or that Michael did not rely on Air 1st's judgment in selecting the plane. Only in the face of such evidence would plaintiff be required to provide evidentiary material in support of its complaint. The burden was on Air 1st to present evidence negating the existence of an implied warranty of fitness for a particular purpose. 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.
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 GARA, we will refer to other jurisdictions for guidance.
Willett v. Cessna Aircraft Co., 366 III. App. 3d 360, 851 N.E.2d 626 (2006).
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 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).
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 onboard 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).
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). Pursuant to GARA section 2(a)(2), referred to as the "rolling provision," the 18-year repose period restarts 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, 979 A.2d 336, 343 (S.Ct. Pa. 2009). The rolling provision applies only if the plaintiff can show that a new item replaced an original item in the aircraft, or was added to the aircraft, and the new item was also a cause of the claimed damages. Hiser v. Bell Helicopter Textron, Inc., 111 Cal. App. 4th 640, 650, 4 Cal. Rptr. 3d 249, 257 (4th Dist. 2003).
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 III. App. 3d at 371, 851 N.E.2d at 635-36. Here, 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 plaintiffs suit [GARA section 2(a)(1)(A] unless it manufactured new parts which were installed in the plane within 18 years of the accident [GARA section 2(a)(2] or one of the four exceptions applies [GARA section 2(b] .
Woodward was the manufacturer of two fuel control units and two propeller governors which were installed in the plane in 1988 and 1999, respectively. As a manufacturer of some of the plane's parts, Woodward was arguably covered by the repose period and it moved for summary judgment on that basis. Plaintiff responded that the Woodward parts were new when installed in the plane and, therefore, the rolling provision applied to restart the 18-year repose period pertaining to Woodward in 1988 for the fuel control unit and in 1999 for the propellor governor. As a result, the 2001 accident would fall within the restarted period running from 1988 to 2006 for the fuel control unit and 1999 to 2017 for the propellor governor and plaintiffs suit against Woodward would not be barred. Woodward responded that the fuel control units and propeller governors were not new parts when installed and the repose period had, therefore, expired when plaintiff filed its claim.
The court granted summary judgment to Woodward. Although it found plaintiff sufficiently showed the fuel control unit and propellor governor were "new" parts, it held that plaintiff failed to present evidence to support its allegation that the fuel control units or the propeller governors 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.
To support its allegation that the fuel control unit and propellor governor manufactured by Woodward caused the accident, plaintiff presented the affidavit of 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. There is no question regarding Mermelstein's credentials. With regard to the proximate cause of the accident, Mermelstein stated as follows:
"The only possible cause of the accident *** was the right-hand powerplant going into the beta range of operation while in flight with consequent loss of control of the airplane.
Had the powerplant control system *** been in an airworthy, proper and safe condition, it would have been impossible for the right-hand powerplant to have achieved beta range during the accident flight, including by way of any combination of pilot inputs.
The right-hand powerplant went into beta operation *** as a result of the combination of the rigging and settings of the powerplant control system components."
The court found that Mermelstein's use of the term "powerplant control system components" was insufficient to support plaintiffs allegation that the right fuel control unit and propeller governor caused the accident.
While a plaintiff is not usually required to prove his case at the summary judgment stage, it must present some evidentiary facts to support the elements of its claim and where a claim is not further supported by evidentiary facts through affidavits or such, summary judgment is proper. Ralston v. Casanova, 129 III. App. 3d 1050, 1059, 473 N.E.2d 444, 451 (1984). Accordingly, even though plaintiff is not required at the summary judgment stage to prove its allegations that the fuel control unit and propellor governor were (a) new when installed and (b) caused the accident, it must present some evidence to support these allegations.
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 that the court's finding that Mermelstein's affidavit was insufficient is in direct disregard of plaintiff's allegations in its complaint and Mermelstein's statement in his affidavit that the term "powerplant control system components" includes Woodward's fuel control units and propeller governors.
Mermelstein did indeed state that "[t]he basic powerplant control system components located on the wing consist of the fuel control unit ("FCU"), the propellor pitch control ("PPC") and the propeller governor ("PG")." He also identifies the fuel control unit and propellor governor in the accident airplane as being manufactured by Woodward; discusses when the fuel control unit and propellor governor were installed in the plane and whether they were new or reconditioned; and opines that, after installation of new powerplant control system components, "operational checks must be performed to ensure proper rigging and settings of all powerplant control system components." Mermelstein does not, however, state that the fuel control unit and propellor governor caused the accident or even that they contributed to the accident. Even taking Mermelstein's opinions in the light most favorable to plaintiff, we cannot read such into his affidavit. Just because the fuel control unit and propellor governor are components of the powerplant control system which caused the accident does not, without more, mean that the fuel control unit and propellor governor caused the accident. As the diagrams of the plane show, the fuel control unit and propellor governor are but two of many parts in a powerplant control system.
Further, Mermelstein also stated, "[t]he right-hand powerplant went into beta operation [which resulted in loss of control over the plane and caused the accident] *** as a result of the combination of the rigging and settings of the powerplant control system components." From this statement, it would appear that there may have been nothing wrong with any of the components and that the cause of the accident lay with the connection, configuration and/or installation of the various components of the powerplant control system and the levels at which those components had been set, not with the components individually. The court did not err in finding plaintiff presented no evidence to support its allegation that the fuel control unit or the propellor governor caused the accident. Accordingly, without such evidence, there is no question of fact regarding whether Woodward's replacement parts caused the accident. Plaintiff argues that proximate cause is a question of fact that should not have been decided by the court at the summary judgment stage of the proceedings. Plaintiff is correct that a question of fact should not be decided by summary judgment. However, for a question of fact to reach the jury, there must be some evidence to support the question of fact. No such evidence exists here. Accordingly, the court did not err in granting summary judgment to Woodward.
Plaintiff also asserts the court erred in considering Woodward's argument regarding proximate cause because Woodward raised the argument for the first time in its reply brief to plaintiffs motion in opposition to Woodward's motion for summary judgment. The court did not err in sua sponte striking Woodward's argument. Woodward properly raised the issue of lack of proximate cause for the first time in its reply brief because only then did it need to address Mermelstein's affidavit, submitted by plaintiff with its response to the motion for summary judgment in support of its allegation that the fuel control unit and Propellor governor caused the accident.
Honeywell
The court granted summary judgment to Honeywell finding the GARA statute of repose applied to bar plaintiffs 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 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. Plaintiffs 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, 979 A.2d at 345-46; Burton v. Twin Commander Aircraft, LLC., 148 Wash. App. 606 (unpublished opinion Feb. 9, 2009).
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 Propellor, Inc., 326 F. Supp. 2d 631 (E.D.Pa. 2004); Alter v. Bell Helicopter Textron, Inc., 944 F.Sup. 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.
Unlike a flight manual, a maintenance manual is not necessary to operate a plane. Burton, 148 Wash. App. at 346, 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 necessary for maintenance or preventive maintenance." 14 C.F.R. §§ 21.50(b), 23.1529. But there is no federal regulation requiring that a maintenance manual be onboard 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].'" Colgan Air, Inc., 507 F.3d at 277, quoting 14 C.F.R. § 43.13 (2007). 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, 979 A.2d at 344. 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 (6th Dist., 2000), quoting Altseimer v. Bell Helicopter Textron, Inc., 919 F.Supp. 340, 342 (1996), quoting 140 Cong. Rec. H4998, H4999 (Daily ed. July 27, 1994).
Congress determined that general aviation aircraft manufacturers and aircraft component manufacturers in the U.S. 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 GARA, H.R. No. 103-525(I), 103rd Cong., 2d sess., p. 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 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 plaintiffs 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 Bd, 231 III. 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 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 III. 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 III. 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 III. 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." 140 Cong. Rec. S2348-02 at S2443. Further, as plaintiff's citations to 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 at S2464); "level the playing field for U.S. manufacturers of light airplanes versus their foreign competition" (140 Cong. Rec. S2995-01 at S2996); 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 at S2465). 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). 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 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 LaHaye v. Galvin Flying Service, Inc., 144 Fed. Appx. 631 (Wash. App. 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 U.S., not suits filed against U.S. 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
Before a manufacturer can put a new model aircraft into production it must obtain a type certificate for that model from the FAA. U.S. v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 804-05, 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. U.S. v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. at 805-06, 81 L.Ed. 2d 660, 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., 102 P. 3d 268, 270 (Cal. 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 Propellor Inc., 326 F. Supp. 2d 631, 657 (E.D. Pa. 2004), citing 14 C.F.R. § 21.3(a); 14 C.F.R. § 21.3(c).
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 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).
Mitsubishi having shown that the statute of repose applied to protect it from plaintiffs 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 646-47, 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. 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 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 bulletins explained that incorrectly positioning the power levers, i.e., failing to position the levers in accordance with the instructions in 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 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. Th FAA issued such an airworthiness directive in 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 service bulletin, bulletin 234. Although Mitsubishi/Mitsubishi America was aware that 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 specified settings were correct. Only if an operator 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 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). 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 (S.Ct. IA 2002); Pridgen v. Parker Hannifin Corp., 588 Pa. 405, 905 A. 2d 422 (S.Ct. Pa. 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 PMA for the particular aircraft or part involved in the suits, the successor had taken on the duties and 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 Int'l, Inc., 167 F. Supp. 2d 932, 939 (E.D. Tex. 2001); Butler v. Bell Helicopter Textron, Inc., 109 Cal. App. 4th 1073, 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 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."
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 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 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; 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 plaintiffs 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, Woodward 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; and dismiss plaintiff's appeal from the court's order dismissing plaintiff's strict liability counts against Air 1st.
Affirmed in part; reversed in part; dismissed in part.
HOFFMAN, J., and CUNNINGHAM, P.J., concur.