Free Brief in Opposition 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' OPPOSITION TO "DEFENDANT PRATT & WHITNEY CANADA'S MOTION FOR APPLICATION OF ADMIRALTY LAW" (Doc. 114)

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TABLE OF CONTENTS

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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE DEFENDANTS' ACTIVITIES AND THE TRIP HAD NOTHING TO DO WITH "TRADITIONAL MARITIME ACTIVITIES" . . . . . . . . . . . . . . CHANGING THE APPLICABLE LAW ON THE EVE OF TRIAL WOULD RESULT IN SIGNIFICANT WASTE, SUBSTANTIAL DELAY, AND UNFAIR PREJUDICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE COURT HAS ALREADY TWICE DECLINED THE DEFENDANTS' INVITATION TO APPLY ADMIRALTY LAW TO THE FACTS OF THIS CASE . . . . . . . CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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TABLE OF AUTHORITIES Cases Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 270 [93 S.Ct. 493, 505, 34 L.Ed.2d 454] (1972) . . . . . . . . . . . . . Isla Nena Air Services, Inc. v. Cessna Aircraft Co., 380 F.Supp.2d 74, 80 (D.P.R. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Company, 513 U.S. 527, 534 [115 S.Ct. 1043, 1048, 130 L.Ed.2d 1024] (1995) . . . . . . . . U.S. Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., 358 F.Supp.2d 1021 (D.Colo. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.S. Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., ­­ F.Supp.2d ­­, 2006 WL 2844173 (D.Colo. 2006) . . . . . . . . . . . . . . . . . . . . .

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INTRODUCTION. This is the third time the defendants have demanded the application of admiralty

law. Like the defendants' first two motions, this third motion should also be denied. Admiralty law does not apply here, because this trip for aviation enthusiasts began and was supposed to end (but for the engine malfunction) in landlocked Boise, Idaho. The airplane trip had absolutely nothing to do with "traditional maritime

activities." Without an airplane, the trip would not have occurred at all, and the trip definitely would not have occurred in a boat. To change the applicable law on the eve of trial would also result in waste, delay, and substantial prejudice. The trial would have to be continued to allow the parties' an opportunity to study the nuances of arcane admiralty law as they might apply to the facts of this case, and then the pretrial order and jury instructions would all have to be completely rewritten and resubmitted to the Court for approval. Finally, the defendants have failed to identify any compelling reasons that would support a change in the law applicable to this case on the eve of trial. The Court has subject matter jurisdiction based on diversity of citizenship, so there is no need to obtain alternative jurisdiction based on admiralty. Nor have the defendants identified any

"particular issue" that calls for the application of admiralty law, even though the identification of such a "particular issue" is a necessary prerequisite of Colorado's choice of law principles. The defendants have not asked the Court to instruct the jury based on admiralty law, and the defendants have not explained how the application of admiralty law will make any significant difference in the outcome of this case. Based on the foregoing, the plaintiffs respectfully submit that the defendants' motion in limine (Doc. 114) should be denied. -2Access Air 0NR/PO/WO Lg24186/20070123

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BACKGROUND. An almost brand-new airplane was ditched in the ocean after the pilot reported

unusual noises and sounds coming from the airplane's only engine. The plaintiffs in this lawsuit seek to recover $3.1 million in stipulated damages for the loss of the airplane, which has never been recovered. (See, Pretrial Order [Doc. 98, ¶ III(A)(2)(b), pp. 5-6].) Additional facts are set forth in the Pretrial Order, and in this Court's previous orders. (U.S. Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., 358 F.Supp.2d 1021 (D.Colo. 2005), and U.S. Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., ­ ­ F.Supp.2d ­­, 2006 WL 2844173 (D.Colo. 2006).)

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THE DEFENDANTS' ACTIVITIES AND THE TRIP HAD NOTHING TO DO WITH "TRADITIONAL MARITIME ACTIVITIES." Admiralty jurisdiction (and corresponding admiralty law) cannot be invoked

unless the defendants prove that "the general character" of the trip shows a "substantial relationship to traditional maritime activity." (Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Company, 513 U.S. 527, 534 [115 S.Ct. 1043, 1048, 130 L.Ed.2d 1024] (1995).) To answer this question, "[w]e ask whether a tortfeasor's activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in the suit at hand." (Id. at p. 539-540 [115 S.Ct. at p. 1051].) Here, the tortfeasors are alleged to be: (1) Pratt & Whitney (the manufacturer of airplane engines), and (2) the Pilatus defendants (manufacturers and sellers of airplanes.) The "activities" of these tortfeasors have absolutely no connection at all with "activity traditionally subject to admiralty law." -3Access Air 0NR/PO/WO Lg24186/20070123

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Likewise, the trip itself was also not "substantially related to traditional maritime activity."

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The charter flight had nothing to do with any maritime or boating activities. (Doc. 29, Smith Decl., ¶ 9.0.)

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The airplane was a land-based airplane, and it was not a "sea plane" designed to land on the water. (Doc. 29, Smith Decl., ¶ 9.0.)

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All of the destinations visited during the flight were on land, and the airplane did not stop at any destinations on water. (Doc. 29, Smith Decl., ¶ 9.0.)

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Whenever possible during the flight, the airplane flew over land, or as close to land as possible. (Doc. 29, Smith Decl., ¶ 10.0.)

The defendants' motion says that "today virtually every court considering the issue has found that aircraft crashes during overseas or inter-island flights involve a traditional maritime activity." (Def. Mtn., p. 7 (citing Isla Nena Air Services, Inc. v. Cessna Aircraft Co., 380 F.Supp.2d 74, 80 (D.P.R. 2005).) But the particular trip in this case proves to be the exception to the rule. This trip was not an ordinary transoceanic flight between, say, New York and London, that in the absence of an airplane might otherwise have been undertaken in a passenger ship. Instead, this particular trip was undertaken by Japanese aviation enthusiasts for the sole purpose of flying an airplane around the world (Pretrial Order, Doc. 98, p. 16.)

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Indeed, the defendants insist that this trip was governed by U.S. Federal Aviation Regulations. (Ibid.) The defendant's arguments in favor of applying traditional admiralty law are wholly inconsistent with the defendant's oft-stated view that this particular trip was governed by stringent requirements of Part 135 of the U.S. Federal Aviation Regulations. The defendants have cited no authorities where admiralty law has been applied in a case where the standard of care is so closely linked with aviation regulations. The only link between this case and maritime activities is the fact that the airplane was ditched in the ocean. "[N]either the fact that a plane goes down on navigable waters nor the fact that the negligence 'occurs' while a plane is flying over such waters is enough to ... justify the invocation of admiralty jurisdiction." (Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 270 [93 S.Ct. 493, 505, 34 L.Ed.2d 454] (1972).)

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CHANGING THE APPLICABLE LAW ON THE EVE OF TRIAL WOULD RESULT IN SIGNIFICANT WASTE, SUBSTANTIAL DELAY, AND UNFAIR PREJUDICE. The defendants' motion is untimely. To change the applicable law (from ordinary

familiar state law to admiralty) on the eve of trial will result in waste, delay, and substantial prejudice. No one (not even the defendants who now champion the application of admiralty law) has made any mention of admiralty law in the Pretrial Order, Jury Instructions or Verdict Forms. If Colorado law is ousted in favor of admiralty law on the eve of trial, then the current Pretrial Order, Jury Instructions, and Verdict Forms will all have to be scrapped and rewritten after the parties have been allowed to research what effect (if any)

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the application of admiralty law might have on the facts of this case. This, of course, would lead to a continuance of the already long-delayed trial.

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THE COURT HAS ALREADY TWICE DECLINED THE DEFENDANTS' INVITATION TO APPLY ADMIRALTY LAW TO THE FACTS OF THIS CASE. This is the third time the defendants have asked the Court to apply admiralty law

in this case. The defendants first raised the issue of admiralty law in a motion for summary judgment based on the "economic loss rule." (Doc. 26 and 30.) This Court denied the defendants' motion, holding that regardless of whether admiralty or Colorado law is applied, the plaintiffs' tort claims would still not be barred by the economic loss rule. (U.S. Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., 358 F.Supp.2d

1021, 1023 (D.Colo. 2005) ["I conclude that under the circumstances of this case, Colorado courts would recognize a claim for strict products liability and negligence and I disagree with Pratt & Whitney and Pilatus that East River would compel a different conclusion were I to apply admiralty, rather than Colorado, law."]) The defendants again raised the issue of admiralty law in a motion for reconsideration. (Doc. 60.) That motion was also denied by the Court. (Doc. 78.) The defendants' current (third) motion in support of admiralty law includes no new facts and no new authorities that were not previously included in the two previous motions that were denied by the Court. In the absence of any new facts or authorities, the defendants' third motion in support of admiralty law should be summarily rejected.
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CONCLUSION. Based on the foregoing, the plaintiffs respectfully request that the defendants'

motion in limine (Doc. 114) be denied. Respectfully Submitted, Dated: January 25 , 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 January 25, 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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