United States District Court, S.D. Florida
HEATHER THEOBALD, Individually And as the Executrix of the Estate of EVELYN AMEROSA, Deceased; JAMES OKEY; JAMIE SHEEHY and CYNTHIA L. BICK, Individually and as Co-Administratrices of the Estate of FRANK AMEROSA, Deceased; and BARBARA POST CAMPBELL, Individually and as Executrix of the Estate of JOHN NEWMAN CAMPBELL, Deceased, Plaintiffs,
PIPER AIRCRAFT, INC., and PIPER AIRCRAFT CORPORATION c/o THE PIPER AIRCRAFT CORPORATION IRREVOCABLE TRUST c/o HOWARD BERLIN TRUSTEE FOR THE PIPER AIRCRAFT CORPORATION IRREVOCABLE TRUST and S-TEC CORPORATION, Defendants.
ORDER GRANTING DEFENDANT PIPER AIRCRAFT INC.'S
MOTION FOR SUMMARY JUDGMENT
L. ROSENBERG UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on Defendant Piper
Aircraft, Inc.'s (“Piper”) Motion for Summary
Judgment. See DE 98. Plaintiffs responded,
DE 111, and Piper replied, DE 128. The Court held a hearing
on March 21, 2018. Having considered all relevant filings in
this matter, Piper's Motion for Summary Judgment [DE 98]
case arises from the crash of an aircraft manufactured by
Piper Aircraft Corporation (“PAC”) for which
Piper is the type certificate holder. According to the
Plaintiffs, the aircraft crashed because the stabilator, a
part of the aircraft, was defective.
1978, PAC manufactured a PA-34-200 Seneca aircraft,
Registration No. N31743. DE 98-1 ¶ 1. PAC sold and
shipped the aircraft to Melridge Aviation Company in
Washington in 1978. Id. ¶ 9. According to
By way of general background, the wings of the Seneca II
create an upward lift as the engines propel the aircraft
forward. The aircraft's tail provides a downward lift to
keep the aircraft balanced over its center of gravity.
Without the downward lift provided by the tail, the weight of
the aircraft's nose would cause it to pitch nose
downward. The horizontal tail of the Seneca II is a moveable
stabilator that uses a moveable servo trim tab. The trim tab
works to decrease the amount of force a pilot needs to exert
on the yoke to move the stabilator to pitch the aircraft up
and down. The trim tab provides additional stability between
the pilot's input and the aircraft's reaction. One of
the many design considerations of an aircraft is to make it
immune from aerodynamic flutter within its flight envelope.
See e.g. 14 C.F.R. 23.629. Aerodynamic flutter is
the instability in an aircraft control surface caused by
rapid cyclic movements that increase in intensity. At all
times relevant to the design and certification of the Seneca,
Piper was to design against aerodynamic flutter is to
reinforce the strength of the tail. . . . It lacks internal
support ribs and structure, and this “limited
rigidity” allows divergence and bending causing
DE 111 at 8-9. According to a report by Plaintiffs'
expert Allen J. Fiedler, the stabilator trim bushings were
replaced in 2000, DE 111-16 at 10, and the stabilator
bushings and bearings were replaced as part of the annual
inspection on January 1, 2010, id. at 18. By 2013,
the aircraft was owned by Campbell Associates at Curtiss Aero
Inc. of Stamford, Connecticut. DE 98-1 ¶ 16. John
Campbell was the principal of Campbell Associates and was the
sole operator of the aircraft. DE 111-1 ¶ 16.
2012, Frank Amerosa was diagnosed with brain cancer. DE 98-1
¶ 17. Mr. Amerosa lived in New York with his wife,
Evelyn Amerosa, and was receiving cancer treatments in
Boston, Massachusetts. Id. ¶ 18. The Amerosas
would sometimes drive from New York to Boston for Mr.
Amerosa's treatments; sometimes they would fly through
Angel Flight, which provides flights for patients needing
medical treatment. Id. On May 24, 2013, Mr. Campbell
was piloting the plane from Massachusetts to New York with
the Amerosas as passenger, id. ¶ 19-20, after
Mr. Amerosa had received medical treatment in Boston,
id. ¶ 21. The aircraft crashed near Johnstown,
New York, id. ¶ 22, and all three individuals
on board perished in the crash, id. ¶ 23.
Plaintiffs allege that the crash was caused by a flutter
event and a failure of the tail and stabilator of the
aircraft. DE 111 at 11-12. According to Plaintiffs, this
crash has similarities to other crashes involving Piper
aircrafts. Id. at 10. Plaintiffs explain the cause
of this crash and others by stating that “once the
vibration, rotation and bending starts, there is insufficient
damping and stiffness to stop it and within microseconds the
Seneca stabilator bends due to lack of adequate structure
comes off the airplane causing the nose to suddenly pitch
down, the wings tear off and the airplane plummets to the
1991, PAC filed a voluntary petition for relief under Chapter
11 of the United States Bankruptcy Code in the United States
District Court for the Southern District of Florida. DE 98-1
¶ 10. The bankruptcy was resolved in 1995. Id.
¶ 11. As part of the resolution, Piper was created and
the type certificate for the Seneca aircraft was later
transferred to Piper. Id.
allege that, “[t]hroughout the period of time in which
Piper was the type certificate holder for the Seneca, as well
as the related stabilator-equipped aircraft, it became aware
of the dangerous defects which caused a rate of in-flight
breakups which was far greater than any other and which
presented common signs of flutter.” DE 111 at 18.
Plaintiffs present expert reports by Douglas Herlihy and
Colin Sommer that state that, due to the other accidents,
Piper was put on notice of the susceptibility of its
stabilator equipped aircraft to suffer from inflight
breakups. See DE 111 at 18. Plaintiffs also present
the report of their expert Erwin Tescher who critiques the
manner in which Piper performed some its studies on the
impact of flutter on its aircrafts. DE 111-6. According to
Plaintiffs, Piper did not disclose to the FAA that these
accidents were occurring due to flutter. Id.
are the survivors of the Amerosas and Mr. Campbell and are
suing on behalf of themselves and as the administrators of
the estates. They filed their Amended Complaint on November
17, 2016, alleging the following counts against Piper: strict
liability in tort (Count V); negligence (Count VI); breach of
express and implied warranties (Count VII); and fraud,
misrepresentation, concealment (Count VIII). Defendant Piper
has moved for summary judgment. DE 98.
SUMMARY JUDGMENT STANDARD
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The existence of a factual dispute is not
by itself sufficient grounds to defeat a motion for summary
judgment; rather, “the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). A dispute is genuine if “a reasonable
trier of fact could return judgment for the non-moving
party.” Miccosukee Tribe of Indians of Fla. v.
United States, 516 F.3d 1235, 1243 (11th Cir. 2008)
(citing Anderson, 477 U.S. at 247-48). A fact is
material if “it would affect the outcome of the suit
under the governing law.” Id. (citing
Anderson, 477 U.S. at 247-48).
deciding a summary judgment motion, the Court views the facts
in the light most favorable to the non-moving party and draws
all reasonable inferences in that party's favor. See
Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).
The Court does not weigh conflicting evidence. See Skop
v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir.
2007). Thus, upon discovering a genuine dispute of material
fact, the Court must deny summary judgment. See id.
moving party bears the initial burden of showing the absence
of a genuine dispute of material fact. See Shiver v.
Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the
moving party satisfies this burden, “the nonmoving
party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.'”
Ray v. Equifax Info. Servs., LLC, 327 Fed.Appx. 819,
825 (11th Cir. 2009) (quoting Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). Instead, “[t]he non-moving party must make a
sufficient showing on each essential element of the case for
which he has the burden of proof.” Id. (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
Accordingly, the non-moving party must produce evidence,
going beyond the pleadings, to show that a reasonable jury
could find in favor of that party. See Shiver, 549
F.3d at 1343.
argues that both Florida's statute of repose and the
General Aviation Revitalization Act (“GARA”), a
federal statute of repose, bar the Plaintiffs' claims.
The Court will first address the Florida statute of repose
and then address the General Aviation Revitalization
The Florida Statute of Repose
has a statute of repose which provides that “[u]nder no
circumstances may a claimant commence an action for products
liability, including a wrongful death action or any other
claim arising from personal injury or property damage caused
by a product, to recover for harm allegedly caused by a
product with an expected useful life of 10 years or less, if
the harm was caused by exposure to or use of the product more
than 12 years after delivery of the product to its first
purchaser or lessee who was not engaged in the business of
selling or leasing the product or of using the product as a
component in the manufacture of another product.” Fla.
Stat. § 95.031(2)(b). For “[a]ircraft used in
commercial or contract carrying of passengers or
freight” the Florida statute of repose states that
“no action for products liability may be brought more
than 20 years after delivery of the product to its first
purchaser or lessee who was not engaged in the business of
selling or leasing the product or of using the product in the
component in the manufacture of another product.” Fla.
Stat. § 95.031(2)(b)(3). Thus, the repose period is
either 12 years or 20 years. Under either repose period, more
time than the repose period has elapsed since the original
sale of the aircraft to bar Plaintiffs' claims. The
aircraft was sold in 1978, DE 98-1 ¶ 9, and Plaintiffs
brought this action in 2016, see DE 1.
repose period, however, “is tolled for any period
during which the manufacturer through its officers,
directors, partners, or managing agents had actual knowledge
that the product was defective in the manner alleged by the
claimant and took affirmative steps to conceal the defect.
Any claim of concealment under this section shall be made
with specificity and must be based upon substantial factual
and legal support.” Fla. Stat. § 95.031(2)(d).
argues that Plaintiffs cannot offer any evidence that Piper
had actual knowledge of the defect and took affirmative steps
to conceal it. DE 98 at 23. Piper argues that Plaintiffs, at
most, “allege that the design of the stabilator was
defective and should have been improved, but this is
insufficient to meet their burden.” Id.
Plaintiffs respond that the Florida statute of repose should
be tolled. They argue that
[t]hroughout the period of time in which Piper was the type
certificate holder for the Seneca, as well as the related
stabilator-equipped aircraft, it became aware of the
dangerous defects which caused a rate of in-flight breakups
which was far greater than any other and which presented
common signs of flutter. (See Ex. I at p. 13-16; Ex. G at
22-23). Instead of disclosing to the FAA and the public that
these accidents were occurring due to flutter, it
misrepresented to the FAA and public information. Rather than
correct the problems, it shifted blame to pilots who could
not defend themselves. (See Id.). It further failed
to provide this information to pilots in accordance with its
obligations as the type certificate holder and pursuant to
Federal law's requirements for continuing airworthiness.
Its withholding of this information is a factual question for
DE 111 at 18. The only evidence Plaintiffs cite is the
reports of their experts, Douglas Herlihy and Colin Sommer.
See Id. The Herlihy report states that there have
been other accidents of stabilator-equipped Piper aircrafts.
See DE 111-10 at 13-17. Similarly, the Sommer report
lists other accidents involving Piper aircrafts and concludes
that “[b]ased upon our review of the above accidents
and the subject accident, Piper was put on notice of the
susceptibility of its stabilator equipped aircraft to suffer
from inflight breakups, even when the aircraft is operating
within the flight envelope. Piper has not ...