579 F.2d 465 (8th Cir. 1978), 77-1907, Bazzano v. Rockwell Intern. Corp.

Docket Nº:77-1907.
Citation:579 F.2d 465
Party Name:Gail L. BAZZANO, Individually and as surviving spouse of Gaetano Bazzano, Deceased, Plaintiff, Appellant, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant, Appellee.
Case Date:June 28, 1978
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 465

579 F.2d 465 (8th Cir. 1978)

Gail L. BAZZANO, Individually and as surviving spouse of

Gaetano Bazzano, Deceased, Plaintiff, Appellant,

v.

ROCKWELL INTERNATIONAL CORPORATION, Defendant, Appellee.

No. 77-1907.

United States Court of Appeals, Eighth Circuit

June 28, 1978

Submitted April 12, 1978.

Rehearing and Rehearing En Banc Denied July 25, 1978.

Jerry Murphy, Clayton, Mo., for plaintiff, appellant.

John C. Shepherd (on brief) of Coburn, Croft, Shepherd, Herzog & Putzell, St. Louis, Mo., argued, for defendant, appellee; Joseph A. Kral, III, St. Louis, Mo., on brief.

Page 466

Before GIBSON, Chief Judge, HEANEY, Circuit Judge, and MacLAUGHLIN, District Judge. [*]

MacLAUGHLIN, District Judge.

Gaetano Bazzano died in the crash of a private aircraft in Missouri on December 29, 1975. His wife, Gail, and his children and parents survived him. Gail Bazzano brought this action to recover as surviving spouse for her husband's wrongful death and for his pain and suffering, and for property damage for the loss of the airplane. Recovery is premised on strict liability and negligence; plaintiff attributes the cause of the crash to an allegedly defective flight director system manufactured by Collins Radio Company in 1961. Jurisdiction is founded on diversity of citizenship. The United States District Court for the Eastern District of Missouri granted summary judgment for defendant, and plaintiff appeals. After careful consideration of the applicable law, we reverse.

On November 14, 1973, Collins Radio Co., the manufacturer of the flight director system in question, merged into Rockwell International Corporation (Rockwell). Rockwell assumed all the debts and liabilities of Collins Radio Co. Meanwhile, Collins International, Inc. had been incorporated in Iowa by one J. P. Riley on May 23, 1973. Two weeks after the merger of Collins Radio Co. and Rockwell, Collins International, Inc. changed its name to Collins Radio Co. Besides its name, the company shared with the defunct manufacturing concern the same state of incorporation and the same address.

On November 29, 1976, Daniel Donnelly, an attorney for plaintiff, received a copy of the merger agreement between Collins Radio Co. and Rockwell through discovery in another action. Thereafter, he drafted a complaint naming Rockwell as the defendant. On December 23, 1976, Donnelly telephoned James FitzSimons, a partner in the New York law firm of Mendes & Mount, which had frequently represented Rockwell in litigation involving aircraft. His purpose was to discuss the lawsuit about to be filed. Donnelly affied:

In my telephone conversation with Mr. FitzSimons, I advised him that I represented the estate of Dr. Bazzano who had been killed in the crash of an Aero Commander in the vicinity of St. Louis, Missouri on December 29, 1975, and that the aircraft had been equipped with a Collins FD-107 flight director system which I characterized as one of the old flight director systems. I advised Mr. FitzSimons that suit was being instituted against Rockwell International Corporation arising out of this crash and that it was my preference to commence the suit in the Southern District of New York. Mr. FitzSimons replied that Rockwell International would have had nothing to do with this matter, and he then admonished me to proceed in a proper manner.

FitzSimons confirmed Donnelly's recollection in large part, with the following exception:

I advised Mr. Donnelly that neither I, nor my firm, nor Rockwell, would have anything to do with his proposal to keep the litigation in New York; and that he should proceed in accordance with the established Federal Rules of Civil Procedure.

At no time did I say to Mr. Donnelly that Rockwell, or for that matter, Collins, would have had nothing to do with the manufacture of a Collins FD-107 flight director system.

Donnelly took FitzSimons' remark, however, to indicate that the Collins Radio Co. which had merged into Rockwell was not the manufacturer of the flight director system. He redrafted the complaint, substituting Collins Radio Co. (originally incorporated as Collins International, Inc.) as the defendant...

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