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

Case 1:01-cv-02056-JLK

Document 55

Filed 10/17/2005

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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.

PARTIAL SUMMARY JUDGMENT MOTION BY PILATUS DEFENDANTS RE NELIGENCE AS A MATTER OF LAW

Defendants Pilatus Business Aircraft, Ltd, Pilatus Flugzeugwerke Aktiengesellschaft and Pilatus Aircraft, Ltd (collectively "Pilatus") hereby move the court for Partial Summary Judgment that, with respect to the subject flight, plaintiff Jeflyn Aviation, inc. dba Access Air (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 Specifications.

PARTIAL SUMMARY JUDGMENT MOTION BY PILATUS DEFENDANTS

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(2) was negligent as a matter of law in violating 14 CFR 135.183 by operating beyond gliding distance of land. As grounds for its motion, Pilatus asserts that: (1) the flight carried passengers who paid for the flight, (2) Access Air, was certified under 14 CFR 119.5(a) as an Air Carrier by the Federal Aviation Administration (FAA), (3) Access Air's FAA approved Operations Specifications issued under 14 CFR 119.7 limited its operations to the U.S., Mexico and Canada. (4) The subject incident occurred outside the Access Air's geographic limitations and beyond gliding distance of land (extended over water flight). (5) The purpose of the geographic limitations on carriage of passengers for hire is to insure that air carriers are safe to operate in the approved areas. (6) The purpose of the limitation on extended over water flight is to insure that air carriers can reach land in case of an engine failure. (7) The aforesaid regulations are intended to protect the safety of fare paying passengers. (8) Pilatus, by reason of this and similar lawsuits, stands in the shoes of fare-paying passengers and accordingly is also within the class of defendants intended to be protected.

PARTIAL SUMMARY JUDGMENT MOTION BY PILATUS DEFENDANTS

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This motion shall be supported by the attached Memorandum, and documents.

DATED this 17th day of October 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

PARTIAL SUMMARY JUDGMENT MOTION BY PILATUS DEFENDANTS

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Case 1:01-cv-02056-JLK

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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.

PILATUS DEFENDANTS' MEMORANDUM IN SUPPORT OF PARTIAL SUMMARY JUDGMENT MOTION RE NELIGENCE AS A MATTER OF LAW

I. Introduction This subrogation action by insurer United States Aviation Underwriters (USAU) arises out of the loss of their insured's (Access Air) Pilatus PC-12 aircraft (Aircraft) in the Sea of Okhotsk between Japan and Russia while on an around-the-world flight. Federal Aviation Regulations intended to protect the safety of fare-paying passengers and others prescribed geographical limits on Access Air's operations and restricted extended over water flights. Access violated both of these regulations operating outside the area in which they were found competent to fly and flying beyond gliding distance of land resulting in the loss of the aircraft.

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This motion will show that these violations constitute negligence as a matter of law subject only to a jury finding of comparative fault. II. Undisputed Facts The following facts are undisputed (Separate Statement of Undisputed Material Facts): 1. 2. The subject around the world flight carried three passengers. Jeflyn Aviation, dba Access Air is certified by the Federal Aviation Administration

(FAA) as an Air Carrier. 3. 4. Access Air's operations were limited to the U.S., Mexico and Canada. 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. 5. The pilot was at all times during the around-the-world flight, an Access Air employee,

compensated by Access Air. 6. The incident occurred while the aircraft was flying beyond gliding distance of land.

III. Argument Under The Federal Aviation Act 49 USC 440101 Et. Seq. The FAA Prescribed Rules To Promote Safe Commercial Operations. Among These Are Rules Requiring Commercial Operators To Restrict Operations To Certain Geographical Limits And To Not Fly Beyond Gliding Distance Of Land. Under 49 USC § 44701. "The Administrator [of the Federal Aviation Administration] may prescribe minimum safety standards for an air carrier to whom a certificate is issued under section 44705 of this title." Section 44705. states:

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"The Administrator of the Federal Aviation Administration shall issue an air carrier operating certificate to a person desiring to operate as an air carrier when the Administrator finds, after investigation, that the person properly and adequately is equipped and able to operate safely under this part and regulations and standards prescribed under this part. An air carrier operating certificate shall (1) contain terms necessary to ensure safety in air transportation; and (2) specify the places to and from which, and the airways of the United States over which, a person may operate as an air carrier." The regulations prescribed by the FAA under authority of the above statute are contained in 14 CFR (Federal Aviation Regulations). Part 119 prescribes rules for air carriers and commercial operators (14 CFR 119.1(a)(1)). A commercial operator is one who "for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property." (14 CFR 1.1 General Definitions). Section 119.5(j) states "A certificate holder under this part may not operate aircraft under part 121 or part 135 of this chapter in a geographical area unless its operations specifications specifically authorize the certificate holder to operate in that area." Part 135 applies to the subject around the world flight. "Each 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 ... Conduct those operations in accordance with the requirements of Part 135 of this chapter. (14 CFR §119.23(b)). Section §135.183 states "No person may operate a land aircraft carrying passengers over water unless ... It is operated at an altitude that allows it to reach land in the case of engine failure."

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Since Plaintiff Access Air Violated Federal Aviation Regulations By Flying Passengers For Compensation Or Hire Outside Their Geographic Limitations And Beyond Gliding Distance Of Land, it is Negligent as a matter of law. The undisputed material facts set forth above establish that Access Air violated these two regulations. "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." Colorado Flying Academy, Inc. v. The United States of America, 506 F.Supp. 1221, 1227 (USDC Col. 1981) citing Reed v. Barlow, 153 Colo. 451, 386 P.2d 979, 981 (1963). Accordingly Access Air is negligent as a matter of law. 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 17th day of October 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

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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of October 2005, I caused the forgoing 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]

PARTIAL SUMMARY JUDGMENT MOTION BY PILATUS DEFENDANTS

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