Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

Document 74

Filed 12/06/2005

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I. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-K-2056

UNITED STATES AVIATION UNDERWRITERS, INC. a New York corporation; PAUL LEADABRAND, an Idaho resident; and JEFLYN AVIATION, INC. dba ACCESS AIR, an Idaho corporation, Plaintiffs, Vs.

PILATUS BUSINESS AIRCRAFT, LTD, a Colorado corporation; PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT, a Swiss corporation, PILATUS AIRCRAFT, LTD, A Swiss corporation; PRATT & WHITNEY CANADA, INC., a Canadian corporation; and DOES 1 through 500, Inclusive, Defendants.

REPLY TO PLAINTIFFS' RESPONSE TO PARTIAL SUMMARY JUDGMENT MOTION BY PILATUS DEFENDANTS RE NEGLIGENCE AS A MATTER OF LAW

I. Reply Concerning Undisputed Facts Of the six undisputed material facts upon which this motion is based, plaintiffs dispute only two; "3. Access Air's operations were limited to the U.S., Mexico and Canada" and "6. The incident occurred while the aircraft was flying beyond gliding distance of land." In their response to Fact "3", they concede that Access Air's Part 135 operations are limited to the U.S., Mexico and Canada. Therefore, if this court concludes that the subject flight should have been conducted under part 135 than Fact "3" is not in dispute.

Reply To Plaintiffs' Response To Partial Summary Judgment Motion By Pilatus Defendants Re Negligence As A Matter Of Law

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Case 1:01-cv-02056-JLK

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Plaintiffs' dispute of Fact "6" is frivolous. There has never been any dispute in this litigation that the aircraft was beyond gliding distance of land at the time of the incident. In his deposition, Barry Schiff, a world renowned aviation expert said, "if we look at the distance at which the aircraft was out to sea, it's rather obvious from a glance of the performance of the aircraft that it could not glide to land from its position where the mayday was broadcast to land, period." Schiff p. 18 l. 4 (Ex. A-6 CV identified on p. 6 of Schiff depo, part of Schiff depo. Ex 206 attached hereto as Ex A-7) Greg Feith, a retired Senior NTSB investigator said, "when you take a single-engine airplane and you take it 180 miles over the water, that really precludes the possibility of any kind of option in the event of an emergency." Feith p. 97 (Ex. A-8, CV identified on p. 59 of Feith depo, part of Feith depo. Ex 230 attached hereto as EX A-9). With no facts seriously in dispute, the only issue is whether Access Air violated the law - an issue that only the court can determine. II. Summary of Defendant's Reply The plain language of FAR Part 135 applies to Access Air because it applies to both common carriers and non-common or private carriers. Moreover, which regulations apply depends on the facts, not the operator's decision. Defendants need not prove causation because this partial summary judgment motion seeks only an order that certain federal aviation regulations apply, that they were violated and that such violation constitutes negligence per se, not that Access Air's negligence caused the damages alleged. The last step is up to the jury to decide.

Reply To Plaintiffs' Response To Partial Summary Judgment Motion By Pilatus Defendants Re Negligence As A Matter Of Law

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Defendants are in the class of persons the Federal Aviation Regulations were designed to protect because plaintiffs seek to recover damages caused at least in part by the violation of those regulations. Finally, contrary to plaintiffs' contention, defendants do not ask the court to enforce the FARs, only interpret them. III. Argument A. FAR Part 135 Applies to Access Air Because it Applies to Both Common Carriers and NonCommon or Private Carriers. "The language of a regulation is the starting point for its interpretation. ... [T]he plain meaning of language in a regulation governs unless that meaning would lead to absurd results. Dyer v. U.S., 832 F.2d 1062, 1066 (9th Cir.1987) (citing Bechtel Const., Inc. v. United Brotherhood of Carpenters, 812 F.2d 1220, 1225 (9th Cir.1987)." Reno v. NTSB 45 F.3d 1375, 1379 (9th Cir. 1994) Plaintiffs do not dispute that this around the world flight light was for compensation or hire but argue instead that Part 135 does not apply because it was note conducted as a common carriage. They do not deny that Part 119.23(b) (14 CFR §119.23(b)) applies to Access Air which states that, "[e]ach person who conducts noncommon carriage ... or private carriage operations for compensation or hire with airplanes having a passenger-seat configuration of less than 20 seats, ...shall ... [c]onduct those operations in accordance with the requirements of Part 135 of this chapter." Therefore, FAR Part 135 does apply to the around the world flight ­ regardless of whether or not Access Air conducted the flight as a common carrier.

Reply To Plaintiffs' Response To Partial Summary Judgment Motion By Pilatus Defendants Re Negligence As A Matter Of Law

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Faced with the plain language of these regulations, plaintiffs only cite authority to the effect that Part 135 applies to common carriers. They did not cite a single regulation or authority to the effect that Part 135 does not also apply to non-common or private carriers that carry passengers for compensation or hire. Therefore Part 135 applies. B. Whether a Particular Flight is Regulated by the Lower Standards of Part 91 or the Higher Standards of Part 135 Depends on the Facts, Not on the Operator's Decision. Plaintiffs' argument that this court is bound by Access Air's determination that they could legally conduct the around the world flight under the lower safety standards of Part 91 is incredible. Operators cannot simply decide what laws, duties and standards of conduct apply to themselves. Only the court can make that ultimate determination. Thus, even if Access Air's President and Vice President and their FAA Operations Inspector honestly thought Access Air could operate this flight legally, those opinions are irrelevant to this Court's inquiry. C. Defendants Need Not Prove Causation Because their Partial Summary Judgment Motion Seeks Only an Order That Certain Federal Aviation Regulations Apply, That They Were Violated and That Such Violation Constitutes Negligence Per Se. It's Up to the Jury to Decide Whether or Not Such Negligence Caused the Damages Alleged. Plaintiffs argue that defendants failed to prove an essential element, causation. But before a jury can even reach the issue of causation, it must decide whether defendants', or this case the plaintiff's, conduct was negligent. That is clear from the Colorado Jury Instruction regarding negligence per se which instructs the jury that violation of a certain statute constitutes negligence. But the jury is further instructed that "[i]f you find such a violation, you may only

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consider it if you also find that it was a cause of the claimed damages." (CO Jury Instr. 9:14 Negligence Per Se -- Violation Of Statute Or Ordinance) This is a partial summary judgment motion that seeks only a determination of the legal standard applicable to the flight and whether or not that standard was violated. As stated in the opening brief, the relief sight is "subject only to a jury finding of comparative fault." Indeed, in Lyons v. Nasby, a case cited by plaintiffs, the court said, "The respondent's violation of the statute, if proved, is conclusive evidence of negligence per se." 770 P.2d 1250, 1258 (1989). And in a case involving negligence per se in violation of the FARs, this Circuit said, "While a negligence per se instruction establishes that a party is negligent as a matter of law, Reed v. Barlow, 153 Colo. 451, 386 P.2d 979 (1963), under Colorado's comparative negligence statute, C.R.S. 13-21-111, the finder of fact must nonetheless apportion the parties' relative fault. McCormick v. United States, 539 F.Supp. 1179, 1182 (D.Colo.1982)." . Mullan v. Quickie Aircraft Corp. 797 F.2d 845, 847, (10th Cir. 1986). Notwithstanding the foregoing, it would not be unreasonable for a jury to find that at least one cause of the loss of the aircraft at sea was operation beyond gliding distance of land ­ the very peril that the FAA determined to be illegal. And it also would not be unreasonable for a jury to find that at least one cause of the loss of the aircraft at sea was Access Air's illegal decision to operate the charter beyond the geographical area in which the FAA found it was safe to operate. D. Defendants are in the Class of Persons the Regulations Were Designed to Protect. The stated purpose of the Federal Aviation Act (Act) is to requirements "promote safe flight of civil aircraft in air commerce by prescribing ... (5) regulations and minimum standards
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for other practices, methods, and procedure the Administrator finds necessary for safety in air commerce and national security." 49 USC §44701(a). FAR Part 119 and 135 were promulgated by the Administrator for the purpose of promoting safe flight. Therefore, those regulations were intended to protect anyone who might otherwise suffer damages directly or indirectly as a result of a failure to comply with those regulations and minimum standards. That includes the passengers and any persons who might suffer, or have suffered damages as a result of injuries to the passengers. Having paid settlements to the passengers, defendants are in that class as well. The aircraft owner is also in the class of persons whom the Act and the FARs were intended to protect. And since the plaintiffs would have defendants compensate the insurance company which allegedly stands in the owner's shoe, defendants are also in the class of persons protected by the FARs. The class of persons the FARs were intended to protect is broad enough even the encompass the U.S. Government as in Colorado Flying Academy, Inc. v. U.S., 506 F.Supp. 1221 (D. Colo., 1981). In that case a flying school and its insurers brought an action against the United States for losses arising from a midair crash that occurred while plane was controlled by a radar approach controller employed by the FAA. Judge Kane held that the pilots' violations of Federal Aviation Regulations and of good operating practice were proximate causes of the midair collision, thus precluding recovery by owner of one aircraft and by its insurer for claimed negligence of the FAA. He said "Colorado law provides that the violation of a statute or ordinance by one whom the statute or ordinance was designed to protect constitutes negligence as a matter of law." This example illustrates the breadth of the class of persons the FARs were intended to protect which certainly includes the defendants.
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E. Defendants Do Not Ask the Court to Enforce the Subject Regulations. Defendants argue only that plaintiffs' violation of FARs can be the basis for negligence per se in a comparative fault defense. Indeed, this very court reached the same conclusion in Colorado Flying Academy, supra. IV. CONCLUSION For the reasons stated herein, Pilatus asks the Court to enter an order that Access Air: (1) was negligent as a matter of law in violating 14 CFR 119.5(j) by operating outside the geographical limits of its Operations Specification. (2) was negligent as a matter of law in violating 14 CFR 135.183 by operating beyond gliding distance of land. RESPECTFULLY SUBMITTED this 6th day of December 2005 By__/s Robert Schultz_______________________ Robert Schultz Law Office of Robert B. Schultz 9710 W. 82nd Ave. Arvada, CO 80005 Tel (303) 456-5565 Fax (303) 456-5575 E-mail [email protected] Attorney For Defendants Pilatus Business Aircraft, Ltd And Pilatus Flugzeugwerke Aktiengesellschaft/ Pilatus Aircraft, Ltd

Reply To Plaintiffs' Response To Partial Summary Judgment Motion By Pilatus Defendants Re Negligence As A Matter Of Law

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Case 1:01-cv-02056-JLK

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of December 2005, I caused the forgoing REPLY TO PLAINTIFFS' RESPONSE TO PARTIAL SUMMARY JUDGMENT MOTION BY DEFENDANTS PILATUS BUSINESS AIRCRAFT, LTD, PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT AND PILATUS AIRCRAFT, LTD to be served by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following addresses:

Jon A. Kodani Jeff Williams Law Offices of Jon A. Kodani [email protected] Thomas Byrne Byrne, Kiely & White LLP [email protected]

s/ Robert Schultz Law Offices of Robert B. Schultz [email protected]

Reply To Plaintiffs' Response To Partial Summary Judgment Motion By Pilatus Defendants Re Negligence As A Matter Of Law

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