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

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-cv-02056-JLK

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 RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE IDAHO LAW

I.

INTRODUCTION A true conflict exists in this case only if the jury finds that plaintiffs are 51% at fault. If

not, there is no difference between Colorado and Idaho law. Therefore, in considering which law to apply to comparative fault, the court must assume that the jury has found plaintiffs to be 51% at fault. Under these circumstances, under Idaho law, plaintiffs Access Air, an Idaho company and New York insurance company, United States Aviation Underwriters, Inc, standing in Access Air's shoes, would get nothing. Under Colorado law, plaintiffs would recover 49% of their loss from a Pilatus, a Swiss Company and/or Pratt & Whitney, a Canadian company. While there is a

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Case 1:01-cv-02056-JLK

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Colorado defendant, Pilatus Business Aircraft (PilBal), the evidence indicates it only installed and painted the interior and sold the aircraft. As a seller, Colorado law includes PilBal among the class of persons potentially liable for product defects, but none of its conduct, which Colorado might want to influence by its laws, is at issue. Moreover, as a wholly owned subsidiary of Pilatus Switzerland, any impact that Colorado law would want to have by imposition of liability would be felt in Switzerland, not Colorado. Therefore, assuming plaintiffs are found to be 51% at fault, the only affected or interested jurisdictions are Idaho, Canada, Switzerland and New York. II. A. ARGUMENTS Pilatus Never Urged the Application of Colorado Law to the Issue of Comparative Fault. Contrary to Plaintiffs' assertion that Pilatus previously urged the court to apply Colorado's comparative fault statute, Pilatus never said that. The actual quote was "under Colorado's comparative negligence statute, C.R.S. 13-21-111, the finder of fact must nonetheless apportion the parties' relative fault" (Doc. 74, p.5). It cites Colorado's negligence comparative fault statute which is identical to the Idaho product liability comparative fault statute urged by Pilatus herein. Moreover, the quote merely cites the holding of McCormick v. United States, 539 F.Supp. 1179, 1182 (D.Colo.1982)." and Mullan v. Quickie Aircraft Corp. 797 F.2d 845, 847, (10th Cir. 1986). It was not an argument to apply Colorado law. B. The Disputed Conduct Occurred in Idaho Where Plaintiffs Began a Chain of Causation

That Finally Resulted in the Loss of the Airplane. Plaintiffs claim that "none of the disputed conduct occurred in Idaho" is patently false. The chain of causation leading to the crash began in Idaho where Access Air illegally agreed to contract for the around the world flight in violation of the geographic limits of its Operating

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Specifications and where Access Air and Pilot Smith negligently planned the flight. The chain ended when the pilot ditched the airplane at sea because decisions made in Idaho placed the aircraft at a point in space which made landing impossible. C. Application of Idaho Law to Comparative Fault Would Not Result in Any Delay or

Prejudice. It is also false that application of Idaho law "would result in substantial delays and significant prejudice because a change in the applicable law of comparative fault would require wholesale changes to the pre-trial order, jury instructions and verdict form." All of the proposed changes are already contained in those documents. The pre-trial order contains Pilatus' contention that Idaho law applies to comparative fault and alternate comparative fault jury instructions and verdict forms are already contained in the jury instructions. The purpose of this motion is to ask the court to select one proposed instruction and verdict form instead of another ­ hardly a substantial delay or wholesale change! D. Colorado Has No Interest in the Issue of Comparative Fault. Any interest a state might have in the application of its laws derives from the influence its laws might have on conduct within in the state or the financial impact its laws might have on state residents. Application of Colorado in this case would accomplish neither. Assuming that plaintiffs are found 51% at fault, application of Colorado law would result in approximately $1.6 million (about 49% of the stipulated $3.2 million loss) being paid by a Swiss and/or a Canadian company to an Idaho and a New York Company. None of that money would even pass through Colorado let alone impact a Colorado company. Therefore, if Colorado has any interest in the financial impact of its comparative fault law, it has no application to the facts of this case.

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Similarly, if Colorado's comparative fault law is intended to influence conduct in the state, Colorado has no interest in the outcome because none of the alleged conduct occurred here. That is, the only Colorado party, PilBal, did not design or manufacture the airplane. Its presence in the lawsuit is based solely on Colorado law that places it within the class of persons subject to liability for product defects that cause injury. Indeed, the sole reason for PilBal's presence is to provide jurisdiction here. E. The Expectations of the Idaho and New York Parties Favor Application of Idaho Law. The expectations of the peripheral parties whom plaintiffs' argue expected Colorado law to apply, are irrelevant to this lawsuit. The purchase agreement, Plaintiffs' Exhibit 1, is between Western Aircraft, a Pilatus distributor which is not a party, and PilBal. Accordingly, this transfer did not result in the aircraft entering the stream of commerce. The aircraft entered the stream of commerce when it was sold to DJS Aviation, an Idaho company by Western Aircraft, an Idaho company, delivered in Idaho to be operated by Access Air in Idaho. See Exhibits A, B and C. Thus it is reasonable and justified that DJS Aviation, Access Air and Western Aircraft would expect Idaho law, not Colorado law, to apply. More to the point, however, this is a subrogation action by a New York insurer that chose to insure an Idaho company for operations in Idaho. Among other things, it insured Access Air for losses caused by its own negligence. Exhibit D. In calculating its premium, it applied or should have applied Idaho comparative fault law, not Colorado. When it suffered this property damage loss, it expected that it could not recover for that loss if its insured was more than 50% at fault. 1 Thus the justified expectations of DJS Aviation, Access Air and USAU all favor the application of Idaho law.

Plaintiffs miss the point when they say there is no evidence in the record that USAU used Idaho law to calculate its premiums. The standard is justified or reasonable expectations. In other words, they should have considered Idaho law when they calculated their premiums for Idaho property damage coverage. Whether or not they actually did use Idaho law is irrelevant.

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F.

The Application of Idaho Law to the Issue of Comparative Fault is only a Matter of

Selecting Defendants' Comparative Fault Jury Instructions and Verdict Forms Instead of Plaintiffs'. The proposed jury instructions, which have already been submitted to the court (Exhibit J, Doc. 95, p. 96, 126-127, 137-140, and 145-148) are slightly modified from the standard product liability comparative fault instructions by inserting Colorado's mixed comparative fault instruction. This court is very familiar with the mixed comparative fault instruction which is used for pure negligence actions. Therefore, there is no additional burden in applying Idaho law to this one issue. III. CONCLUSION For the foregoing reasons, this court must find that Idaho law applies to the issue of comparative fault and that Idaho's modified comparative fault law applies to the issue of damages. DATED this 12th day of February 2007. By__/s Robert Schultz_______________________ Robert Schultz Schultz & Associates 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 12th day of February 2007, I caused the forgoing REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE IDAHO LAW 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]

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