236 F.3d 1137 (9th Cir. 2001), 99-15961, Lueck v. Sundstrand Corp.

Docket Nº:99-15961
Citation:236 F.3d 1137
Party Name:KLAUS LUECK; MARTIN G.ALEXANDER; MAREE GRAY; IAN GRAY; PETRA GRAY; ELLE GRAY; PETER ROBERTS; WILLIAM MCGRORY; MURRAY BROWN; DEAN L. MASON; JOHN AUSTIN; SHAYNE A. BLAKE; DAVID S. GREEN; ROBYN KEALL, individually and as special representative of the Estate of Jonathan P. Keall; JILL DIXON, individually and as special representative of the Estate of R
Case Date:January 08, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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236 F.3d 1137 (9th Cir. 2001)

KLAUS LUECK; MARTIN G.ALEXANDER; MAREE GRAY; IAN GRAY; PETRA GRAY; ELLE GRAY; PETER ROBERTS; WILLIAM MCGRORY; MURRAY BROWN; DEAN L. MASON; JOHN AUSTIN; SHAYNE A. BLAKE; DAVID S. GREEN; ROBYN KEALL, individually and as special representative of the Estate of Jonathan P. Keall; JILL DIXON, individually and as special representative of the Estate of Reginald Dixon; BARBARA WHITE, individually and as special representative of the Estate of David John White; LUCILLE WHITE; MAXWELL WHITE; PAUL JOHN CAMERON, Plaintiffs-Appellants,



No. 99-15961

United States Court of Appeals, Ninth Circuit

January 8, 2001

Argued and Submitted October 6, 2000

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Steven D. Copple, Copple, Chamberlin, Boehm, & Murphy, Phoenix, Arizona, for the plaintiffs-appellants.

Terry O'Reilly and Gary L. Simms, O'Reilly, Collins & Danko, Menlo Park, California, for the plaintiffs-appellants.

James H. Marburger, Gust Rosenfeld, Phoenix, Arizona, for defendant-appellee Sundstrand Corporation.

James A. Teilborg, Teilborg, Sanders & Park, Phoenix, Arizona for defendants-appellees Hydraulic Units, Inc., and Messier-Dowty International.

Thad A. Demeris, Vinson & Elkins, Houston, Texas, for defendant-appellee Messier-Dowty International.

James W. Hunt and Alan H. Collier, Mendez & Mount, Los Angeles, California, for defendant-appellee de Havilland, Inc.

Edward R. Glady, Goodwin Raup, Phoenix, Arizona, for defendant-appellee deHavilland, Inc.

Richard Clark Coyle and Kevin C. Osborn, Perkins Coie, Seattle, Washington, for defendant-appellee deHavilland, Inc.

Appeal from the United States District Court for the District of Arizona Roger G. Strand, District Judge, Presiding. D.C. No.CV-97-2223-RGS

Before: Mary M. Schroeder, Chief Judge, Robert R. Beezer and Richard A. Paez, Circuit Judges.

PAEZ, Circuit Judge:

Plaintiffs appeal the district court's dismissal of their suit on the basis of forum non conveniens. Plaintiffs, citizens of New Zealand, are victims of an airplane crash in New Zealand, on a New Zealand carrier. Plaintiffs allege that the radio altimeter of the Ground Proximity Warning System ("GPWS") malfunctioned during flight and was a causal factor of the accident. Defendants, the Canadian manufacturer of the aircraft and the American manufacturers of the GPWS and the radio altimeter, argued that New Zealand was an adequate alternative forum and that the public and private factors weighed in favor of dismissal. The district court agreed with Defendants. We have jurisdiction under 28 U.S.C.S 1291, and we affirm.


A. Flight 703 and the Ensuing Investigation

On June 5, 1995, Ansett New Zealand ("Ansett") Flight 703 took off from Auckland with an intended destination of Palmerson North, New Zealand. The commuter flight carried 21 persons--three crew members and 18 passengers. All of the passengers were citizens of New Zealand,

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except for one who was a citizen of the United States. As the flight approached Palmerston North, the flight crew prepared for landing. The landing gear of the aircraft failed to lower hydraulically, so the pilot and co-pilot were forced to lower the landing gear manually. While the flight crew focused on lowering the landing gear, the aircraft flew toward the hilly terrain leading into Palmerston North. Although the aircraft's GPWS emitted an alarm four seconds before the aircraft hit the ground, the crew was unable to avoid the accident. The aircraft crashed into the ground, killing one member of the flight crew and three passengers and injuring all others on board.

The aircraft, a de Havilland DHC-8, was manufactured in Canada by defendant de Havilland, a Canadian corporation and a division of Boeing of Canada, Ltd., a subsidiary of The Boeing Company. The GPWS was manufactured by defendant Sundstrand Corporation in Washington State. 1 The GPWS was purchased by Ansett and installed on the aircraft by de Havilland. The GPWS operated through the use of a radio altimeter, which was manufactured by defendant Honeywell in Arizona.

New Zealand's Transport Accident Investigation Commission (the "Commission") investigated the causes and circumstances of the accident. The Commission Report ultimately identified the following causal factors of the accident:

the Captain not ensuring the aircraft intercepted and maintained the approach profile during the conduct of the non-precision instrument approach, the Cap tain's perseverance with his decision to get the undercarriage lowered without discontinuing the instrument approach, the Captain's distraction from the primary task of flying the aircraft safely during the First Officer's endeavours to correct an undercarriage malfunction, the First Officer not executing a Quick Reference Handbook procedure in the correct sequence, and the shortness of the [GPWS] warning.

The Commission evaluated the aircraft's radio altimeter and GPWS. Factory simulations on the GPWS indicated that at least 12 additional seconds of warning should have been provided by the system. The Commission found that the GPWS had been maintained properly by Ansett and that the radio altimeter retrieved from the crash site was operating normally. However, the Commission concluded that the "GPWS warning was insufficient for the aircraft to be extricated from its perilous position." The Commission could not establish the cause of the failure of the GPWS to give an earlier warning, but speculated that the "only reliable scenario . . . was related to a loss of radio altimeter tracking." The Commission asked Canada's transportation ministry to look into the performance of the GPWS and radio altimeter. Because the GPWS and radio altimeter were manufactured in the United States, Canada then asked the FAA to examine the performance of these components. The FAA investigation was conducted in Washington and Arizona.

B. New Zealand's Accident Compensation System

In 1972, the New Zealand legislature passed the Accident Compensation Act (the "Act"), amended in 1982, 1992, and 1998, which provides coverage, on a no-fault basis, for those who suffer personal injury arising from accidents. 2 The Act bars civil claims for damages, Accident Compensation Act, 1972, § 5 (N.Z.), Accident Compensation Act, 1982, § 27 (N.Z.), Accident Rehabilitation and Compensation Insurance Act, 1992, § 14 (N.Z.), and instead

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provides for benefits from the Accident Rehabilitation and Compensation Insurance Corporation ("ACC"). Under the 1972 Act, those benefits "include[ ] [all] medical and rehabilitative expenses, compensation for eighty percent of lost earnings as long as disability continued, and lump-sum payments of up to $27,000 (N.Z.) for non-economic losses. . . ." Richard S. Miller, An Analysis and Critique of the 1992 Changes to New Zealand's Accident Compensation Scheme, 52 Md. L. Rev. 1070, 1070 (1993) (citing 1982 Act, Parts V VII). Under the 1992 Act, the compensation for lost earnings remains at 80 percent of the claimant's former salary, but is capped at $1,179 (N.Z.) per week. Id. at 1074 (citing 1992 Act, §§ 39(1), 48, 70). But the 1992 amendments eliminated the lump-sum payments for non-economic losses. Id. at 1074-75. Instead, the Act now provides for a quarterly allowance based on the degree of the claimant's disability. Id. at 1075 (citing 1992 Act, § 54). Medical expenses continue to be covered.

Under the 1992 Act, plaintiffs may sue for damages for mental distress not resulting from physical injury. Id. at 1072 (citing 1992 Act, §§ 4(1), 8(3)). The Act also permits suits for punitive or exemplary damages. Id. at 1072 n.15 (citing Auckland City Council v. Blundell, 1 N.Z.L.R. 732, 739 (1986); Donselaar v. Donselaar, 1 N.Z.L.R. 97, 104-07 (1982)).

C. Plaintiffs' Efforts to Be Compensated for Their Losses

Plaintiffs Lueck, Alexander, Maree Gray, Ian Gray, Petra Gray, Elle Gray, Roberts, McGrory, Brown, Mason, Austin, Blake, Green, and Cameron were all injured in the crash. The families of those who were killed, Keall, Dixon, and White, are also plaintiffs. All but two of the plaintiffs filed claims with the ACC and have received compensation, alleging negligence and requesting exemplary damages. Plaintiffs are also pursuing a lawsuit against Ansett in New Zealand. Their claims against Ansett for compensatory damages were dismissed by the court as statutorily barred by New Zealand's accident compensation scheme, see McGrory v. Ansett New Zealand Ltd., 2 N.Z.L.R. 328 (1998), but their claims against Ansett for exemplary damages were allowed to go forward, as these claims are not barred by the Act, see id. The trial court judge's decision was affirmed by the New Zealand Court of Appeal in McGrory.

The defendants in this case are each responsible for manufacturing parts of the landing gear or the GPWS of the deHavilland aircraft. With the exception of defendant de Havilland, all are American corporations. Plaintiffs brought suit against Defendants in federal district court for the District of Arizona, alleging strict liability, negligence, and breach of warranty. They did not allege gross negligence or seek punitive damages. Defendants moved to dismiss the action, arguing that New Zealand provides a remedy for Plaintiffs' injuries and is a more convenient location for the suit. The district court granted the motion and dismissed the action. The only American citizen onboard the flight, who was the only American plaintiff in this suit, settled his claims after Plaintiffs filed their notice of appeal to this Court. Thus, all of the remaining plaintiffs are New Zealand citizens.


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