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-2056-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.

PLAINTIFFS' REPLY TO DEFENDANTS' RESPONSE TO MOTION IN LIMINE (Doc. 107) RE EXCLUSION OF INADMISSIBLE EVIDENCE OF ALLEGED VIOLATIONS OF FEDERAL AVIATION REGULATIONS WITHOUT PROOF THAT DEFENDANTS ARE WITHIN THE CLASS OF PERSONS PROTECTED BY THOSE REGULATIONS

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USAU v. Pilatus

Plaintiffs' Reply Brief, Motion in Limine re Protected Class
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1.0

PLAINTIFFS' MOTION IN LIMINE SHOULD BE GRANTED. Regardless of whether it is the plaintiffs or the defendants who must be within the

class of protected persons, the FARs that were allegedly violated here do nothing more than protect the general public at large, and they do not confer any particular benefits or rights on a specific targeted class of individuals. Such generalized regulations cannot be used as a basis for applying negligence per se principles. (See, e.g., Bittle v. Brunetti, supra, 750 P.2d at p. 55 [absent express contrary legislative intent, purpose of statute will be deemed to benefit public at large]; Dunlap v. Colorado Springs Cablevision, Inc., 799 P.2d 416, 417-418 (Colo.App. 1990), rev'd on other grounds, 829 P.2d 1286 (Colo. 1992) ["If the exclusive purpose of a legislative enactment is to secure rights or privileges to the public at large, not citizens in their individual capacity, no basis exists for a claim of negligence per se."]; Scott v. Matlack, Inc., supra, 39 P.3d at p. 1166 [even if a statute was "adopted for the public's safety," the party asserting negligence per se must also prove that he "is a member of the group of persons the statute was intended to protect."]) Congress has expressly authorized the Administrator of the Federal Aviation Administration (FAA) to enforce the FARs that were allegedly violated by the plaintiffs. (44 U.S.C. § 44709(b)(1)(A) ["The Administrator may issue an order amending, modifying, suspending, or revoking ...any part of a certificate issued under this chapter if ... the Administrator decides after conducting a reinspection, reexamination, or other investigation that safety in air commerce or air transportation and the public interest require that action."]; Bonano v. East Caribbean Airline Corp., 365 F.3d 81, 86 (1st Cir. (D.P.R.) 2004) ["[I]t is abundantly clear that Congress, in crafting the [Federal Aviation] Act, intended public, not private, enforcement. Consequently, we join a long list of other

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courts that have concluded that neither the Act nor the regulations create implied private rights of action."]) Thus, the distinction made by the defendants in their opposition brief is of no significance here. It does not matter whether it is the defendants who must be within the class of persons protected by the FARs, or if it is the plaintiffs who must be within that protected class. The FARs that were allegedly violated by the plaintiffs simply do not confer any benefits on a particularized class of persons (plaintiffs or defendants), so the defendants' negligence per se claims must fail as a matter of law.

2.0 CONCLUSION. Based on the foregoing, the plaintiffs respectfully request an in limine order barring the defendants and their attorneys from offering any evidence or arguments regarding alleged violations of 14 C.F.R. § 119.5(j) and 14 C.F.R. § 135.183(a).

Respectfully Submitted, Dated: February 9 , 2007 s/ Jeffrey J. Williams Jon A. Kodani, Esq. Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc. et al. 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel: (310) 453-6762 Fax: (310) 829-3340 Email: [email protected]

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CERTIFICATE OF SERVICE U.S. Aviation Underwriters et al. v. Pilatus Business Aircraft etc. et al. D.Colorado Case No. 01-K-2056 [XXXXX] I hereby certify that on February 9, 2007 , I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: For Defendant Pratt & Whitney Thomas J. Byrne, Esq. Byrne, Kiely & White 1120 Lincoln Street, Suite 1300 Denver, CO 80203 Tel. (303) 861-5511 Fax (303) 861-0304 Email: [email protected] [email protected]

For Pilatus Defendants Robert B. Schultz, Esq. Law Offices of Robert B. Schultz 9710 W. 82nd Avenue Arvada, CO 80005 Tel. (303)456-5565 Fax (303)456-5575 Email: [email protected]

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I hereby certify that on , I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: s/ Jeffrey J. Williams Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc. et al. 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel: (310) 453-6762 Fax: (310) 829-3340 Email: [email protected]

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