Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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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 "MOTION IN LIMINE BY PILATUS DEFENDANTS RE PILATUS PARTIES" (Doc. 111)

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TABLE OF CONTENTS

1.0 2.0 3.0

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE PILATUS DEFENDANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Each Pilatus Defendant Is Strictly Liable Even If Did Not Engage In Culpable Conduct . . . . . . . . . . . . . . Pilatus Colorado Is Liable Even If It Did Nothing More Than Sell A Defective Product . . . . . . . . . .

2 2 2

3

3.2

4

4.0

PILATUS COLORADO IS NOT AN "INNOCENT SELLER" OF A DEFECTIVE PRODUCT . . . . . . . . . . . . . . . . . . 4

5.0

COLORADO LAW REQUIRES THE JURY TO ASSIGN FAULT TO EACH INDIVIDUAL DEFENDANT, NOT TO THE PILATUS DEFENDANTS AS A SINGLE COMBINED ENTITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

6.0

THE JURY WILL NOT BE CONFUSED IF IT IS ASKED TO ASSIGN FAULT TO BOTH PILATUS DEFENDANTS AS REQUIRED BY COLORADO LAW . . . . . 7 8

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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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TABLE OF AUTHORITIES Cases

Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240 (Colo. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lui v. Barnhart, 987 P.2d 942 (Colo.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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) . . . . . . . . . . . . . . . . . . Statutes COLO.REV.ST.ANN. § 13-21-401(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COLO.REV.ST.ANN. § 13-21-402(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COLO.REV.ST.ANN. § 13-21-406(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COLO.REV.ST.ANN. § 13-21-406(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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3

2

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4 4-6 6-7 6-7

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1.0

INTRODUCTION. With absolutely no citations to any legal authorities, the defendants ask the Court

to issue "an order treating all Pilatus defendants as one for all purposes and referring to them collectively as 'Pilatus.'" (Def. Mtn., p. 2.) Such an order would effectively dismiss all claims against one of the two separate Pilatus defendants, contrary to Colorado law. The defendants' motion in limine (Doc. 111) should be denied.

2.0

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).)

3.0

THE PILATUS DEFENDANTS. There are two (2) separate Pilatus defendants in this case.

1.

Defendant Pilatus Aircraft, Ltd. (Pilatus Switzerland) is the entity that designed and manufactured the airplane in Switzerland. (Pretrial Order, Doc. 98, p. 20, item 2.)

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2.

Pilatus Switzerland sold the airplane and engine to its wholly-owned U.S. subsidiary, defendant Pilatus Business Aircraft, Ltd. (Pilatus Colorado). (Pretrial Order, Doc. 98, p. 21, items 6 and 7.) Pilatus Colorado then re-sold the airplane to a third party. (Pretrial Order, Doc. 98, p. 21, items 6 and 7.)

The defendants want this Court to "treat" Pilatus Switzerland and Pilatus Colorado as a single combined entity. (Def. Mtn., p. 1.) According to the defendants' motion, this relief is warranted because the plaintiffs "do not allege any independent liability" against Pilatus Colorado. (Ibid.) The defendants are wrong.

3.1 Each Pilatus Defendant Is Strictly Liable Even If Did Not Engage In Culpable Conduct. The defendants' motion suggests that the two Pilatus entities should be "treated" as a single entity, because Pilatus Colorado engaged in no culpable conduct other than selling the defective airplane. This argument simply ignores the applicable law. Pilatus Colorado is strictly liable for placing the defective airplane and engine in the stream of commerce, even if its conduct was not culpable or negligent. "Strict liability in tort arises not from conduct proscribed or prescribed under a common law or statutory duty of care, but from circumstances that may exist independent of and regardless of the conduct of the tortfeasor." (Lui v. Barnhart, 987 P.2d 942, 945 (Colo.App. 1999).)

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3.2 Pilatus Colorado Is Liable Even If It Did Nothing More Than Sell A Defective Product. "In the final analysis, the principle of products liability contemplated by section 402A is premised upon the concept of enterprise liability for casting defective products into the stream of commerce. [Citation omitted.] The primary focus must remain upon the nature of the product under all relevant circumstances rather than upon the conduct of either the consumer or the manufacturer." (Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240, 1246 (Colo. 1987).)

4.0

PILATUS COLORADO IS NOT AN "INNOCENT SELLER" OF A DEFECTIVE PRODUCT. Pilatus Colorado sold the defective airplane, which was manufactured by Pilatus

Switzerland. (Pretrial Order, Doc. 98, p. 20, item 2, and p. 21, item 8.) Colorado's Product Liability Act includes a provision that protects "innocent sellers" from being exposed to liability for doing nothing more than selling a defective product. (1) No product liability action based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless said seller is also the manufacturer of said product or the manufacturer of the part thereof claimed to be defective. ... (COLO.REV.ST.ANN. § 13-21-402(1))

Pilatus Colorado has stipulated that it satisfies the statutory definition of a "manufacturer" of the airplane (COLO.REV.ST.ANN. § 13-21-401(1); Def., Mtn., p. 2 ["Pilatus does not dispute that Pilatus Business Aircraft is legally considered a manufacturer under -4Access Air 0NR/PO/WO Lg24186/20070123

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Colorado law."]) Based on this stipulation, Pilatus Colorado cannot avoid liability by seeking shelter under the "innocent seller" provisions of the Product Liability Act.

1.

The relief sought by the defendants would allow Pilatus Colorado to escape liability, even though it is undisputed that Pilatus Colorado does not fall within the scope of the "innocent seller" statute. If Pilatus Colorado and Pilatus Switzerland are "treated" as a single entity during the trial, as the defendants have demanded, then there is a strong likelihood that the jury will mistakenly believe they cannot assign fault to Pilatus Colorado. The Colorado legislature has carefully described the circumstances under which an "innocent seller" can escape liability. (See, COLO.REV.ST.ANN. § 13-21-402(1).) It is undisputed that those circumstances do not apply to Pilatus Colorado, and this Court is not free to rewrite the statute to include circumstances not contemplated by the legislature.

2.

The defendants argue that the "purpose" of the "innocent seller" statute (COLO. REV.ST.ANN. § 13-21-402(1)) "is to provide a defendant in a product liability case where the court may not have jurisdiction over the actual manufacturer." (Def. Mtn., p. 2.) The defendants cite no authority for this claim, which is a misstatement of the law. The "innocent seller" statute is found in subsection (1) of section 13-21-402. The jurisdictional issues described by the defendants are addressed in subsection (2) of that same statute. Subsection (2) ­ not subsection (1) ­ is designed "to provide a defendant in a product liability case where the court may not have jurisdiction over the actual manufacturer." Subsection (1) (the "innocent seller" statute) applies regardless of whether the court may also exercise -5Access Air 0NR/PO/WO Lg24186/20070123

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jurisdiction over the manufacturer. There is nothing in the language of subsection (1) to suggest that if the court has jurisdiction over the manufacturer, then the seller is relieved of all responsibility.

3.

Similarly, there is also no support in the statutes for defendants' argument that because the court has jurisdiction over Pilatus Switzerland, then Pilatus Colorado becomes an unnecessary party. Indeed, it would have been easy enough for the Colorado legislature to have included such a provision in section 13-21-402(1), but it did not do so.

5.0

COLORADO LAW REQUIRES THE JURY TO ASSIGN FAULT TO EACH INDIVIDUAL DEFENDANT, NOT TO THE PILATUS DEFENDANTS AS A SINGLE COMBINED ENTITY. Applicable Colorado law clearly prohibits the jury from being instructed to treat

both of the Pilatus defendants as a single entity: (1) In any product liability action, the fault of the person suffering the harm, as well as the fault of all others who are parties to the action for causing the harm, shall be compared by the trier of fact in accordance with this section. (COLO.REV.ST.ANN. § 13-21-406(1) [emphasis added]) (2) Where comparative fault in any such action is an issue, the jury shall return special verdicts, or, in the absence of a jury, the court shall make special findings determining the percentage of fault attributable to each of the persons to whom some fault is attributed and determining the total amount of damages sustained by each of the claimants. (COLO.REV.ST.ANN. § 13-21-406(2) [emphasis added])

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6.0

THE JURY WILL NOT BE CONFUSED IF IT IS ASKED TO ASSIGN FAULT TO BOTH PILATUS DEFENDANTS AS REQUIRED BY COLORADO LAW. With nothing more than ipse dixit, the defendants posit that the jury will be

"confused" unless Pilatus Colorado and Pilatus Switzerland are "treated" as a single entity. (Def. Mtn., p. 2.) This argument is frivolous.

1.

First, unless all claims are formally dismissed against one of the two Pilatus defendants (relief that has not been requested), the jury will still have to calculate the relative fault of each Pilatus defendant separately, regardless of whether those two entities are "treated" as one during the trial. (COLO.REV.ST.ANN. § 13-21406(1) and (2).) Accordingly, an order requiring the jury to "treat" the defendants as a single entity will not resolve any confusion, and it may actually lead to greater confusion.

2.

Second, even if it may be difficult for the jury to calculate the fault of the two Pilatus defendants, that potential difficulty is not a basis for ignoring the clear mandate of Colorado law, which imposes separate liability against each defendant, and which requires the jury to separately assess the fault of the two Pilatus defendants.

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CONCLUSION. Based on the foregoing, the plaintiffs respectfully request that the defendants'

motion in limine (Doc. 111) 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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