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Theobald v. Piper Aircraft, Inc

United States District Court, S.D. Florida

March 30, 2018

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,
v.
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

          ROBIN L. ROSENBERG UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on Defendant Piper Aircraft, Inc.'s (“Piper”) Motion for Summary Judgment.[1] 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] is GRANTED.

         I. BACKGROUND [2]

         This 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.

         In 1978, PAC manufactured a PA-34-200 Seneca aircraft, Registration No. N31743. DE 98-1 ¶ 1.[3] PAC sold and shipped the aircraft to Melridge Aviation Company in Washington in 1978. Id. ¶ 9. According to Plaintiffs:

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 flutter.

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.

         In 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 earth.” Id.

         In 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.

         Plaintiffs 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.

         Plaintiffs 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.

         II. SUMMARY JUDGMENT STANDARD

         Summary 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).

         In 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.

         The 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.

         III. ANALYSIS

         Piper 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 Act.[4]

         I. The Florida Statute of Repose

         Florida 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.

         The 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).

         Piper 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.[5] 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 a jury.

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 ...


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