Free Motion for Partial Summary Judgment - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

Document 55-2

Filed 10/17/2005

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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PILATUS DEFENDANTS'PARTIAL SUMMARY JUDGMENT MOTION RE NELIGENCE AS A MATTER OF LAW Undisputed Material Fact 1. The subject around the world flight carried three passengers. 2. Jeflyn Aviation, dba Access Air is certified by the Federal Aviation Administration (FAA) as an Air Carrier. Supporting Evidence Complaint section 10.3 The Crash.

Jeflyn Aviation's Air Carrier Certificate excerpted from its Operations Manual Exhibit 15 attached as Exhibit A-1. Excerpts from Deposition of James Hutchens (Access Air President) Vol. I attached as Exhibit A-2. Certificate identified on pg 14.

3. Access Air's operations Deposition Exhibit 17 attached as Exhibit A-5 Q. (BY MR. SCHULTZ) Could you identify that Exhibit 17? were limited to the U.S., A. It's a page from our op specs. Mexico and Canada. Q. What does that page do or provide for? A. This is authorized operations. Q. So this authorizes operations in Canada, Mexico and the U.S; correct? A. And Alaska. Yes. Q. And Alaska. I didn't find an authorization in the operating specifications for an around-the-world trip in the PC-12. Was there such an authorization? A. Not in writing, no. Deposition of James Hutchens Vol. I attached as Exhibit A-2 pg 42

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PILATUS DEFENDANTS' PARTIAL SUMMARY JUDGMENT MOTION RE NELIGENCE AS A MATTER OF LAW

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Case 1:01-cv-02056-JLK

Document 55-2

Filed 10/17/2005

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4. The passengers contracted with Access Air to furnish an airplane and pilot for the flight, and paid Access Air accordingly. The contract rate was Access Air's normal charter rate.

Q. I'd like you to turn to Exhibit 7 now. A. Okay. Q. That's a February 23rd, 2001 letter. Looks like it's on Access Air letterhead. Subject: Memorandum of understanding; is that correct? Is that what you're looking at? A. Yes. Q. And that's your signature? A. One of them is mine, yes. Q. One that says -- above the typed "James N. Hutchens" is your signature? A. Correct. Q. Is this the contract under which this around-the-world flight was undertaken? A. It is what it says. It's a memorandum of understanding. I think contracts are a little more formal than this. Q. Was there a more formal contract than this? A. No. Q. Were these the final terms that were agreed upon for the flight? A. Yes. Deposition of James Hutchens Vol. II attached as Exhibit A-3 pg 121 Q. So your normal rate for your Part 135 charter work is $825. You reduced that by $50 because they were paying Mike Smith? A. The pilot was being paid separately. Correct. Q. So presumably that $775 included your profit as well? A. Yes. Q. Do you know -- well, I guess we can ask Mike Smith. But do you know if he was paid his 250 a day? A. Yes. He was paid. Deposition of James Hutchens Vol. I attached as Exhibit A-2 pg 48. Q. (BY MR. SCHULTZ) Well, it says here they were going to pay half of the estimated flight time in advance. Was that ever paid? A. They paid somewhere around $23,000 in advance. Deposition of James Hutchens Vol. II attached as Exhibit A-3 pg 134.

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PILATUS DEFENDANTS' PARTIAL SUMMARY JUDGMENT MOTION RE NELIGENCE AS A MATTER OF LAW

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Case 1:01-cv-02056-JLK

Document 55-2

Filed 10/17/2005

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5. The pilot was at all times during the around-theworld flight, an Access Air employee, compensated by Access Air.

6. The incident occurred while the aircraft was flying beyond gliding distance of land.

Q. During the time you were employed by Access Air starting around the end of 1999 or in 2000 were you always an employee of Access Air? A. Yes. Q. Did Access Air withhold taxes from the monies that they paid to you? A. Yes. Q. Would you take a look at Exhibit 18 which we have here somewhere and tell us if you recognize the exhibit? A. I do recognize Exhibit 18. It is my W2 wage and status form from Jeflyn Aviation, d/b/a Access Air. Q. And that is for the year 2000? A. '01. 2001. Q. I'm sorry. 2001? A. Yes. Q. Would this include the compensation paid to you for the services you performed as a pilot on the trip around the world in the PC-12? A. Yes. Deposition of Michael Smith (pilot) Vol. I attached as Exhibit A-4 pg 18. The court may take judicial notice of the easily verifiable fact that at time of the incident, the aircraft was operating beyond gliding distance of land. If there is any dispute, the calculations can be provided.

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PILATUS DEFENDANTS' PARTIAL SUMMARY JUDGMENT MOTION RE NELIGENCE AS A MATTER OF LAW

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