Aetna Cas. & Sur. Co. v. Jeppesen & Co.

• Decision Date: 04 November 1977
• Docket Number: Civ. No. LV-1467-PMH.
• Citation: 440 F. Supp. 394
• Parties: AETNA CASUALTY AND SURETY COMPANY, a Connecticut Corporation, et al., Plaintiffs, v. JEPPESEN & COMPANY, a Colorado Corporation, Defendant.
• Court: U.S. District Court — District of Nevada

440 F. Supp. 394

AETNA CASUALTY AND SURETY COMPANY, a Connecticut Corporation, et al., Plaintiffs, v. JEPPESEN & COMPANY, a Colorado Corporation, Defendant.

Civ. No. LV-1467-PMH.

United States District Court, D. Nevada.

November 4, 1977.

COPYRIGHT MATERIAL OMITTED

Rex A. Jemison, Beckley, Singleton, DeLanoy & Jemison, Las Vegas, Nev., for plaintiff Aetna Casualty & Surety Co.

Magana, Cathcart & McCarthy, Los Angeles, Cal., for plaintiffs Schulze, Jemison, et al.

Dickerson & Miles, Las Vegas, Nev., Robert J. Popelka, Popelka, Allard, McCowan & Jones, San Jose, Cal., Cromer, Barker & Michaelson, Las Vegas, Nev., for defendant Jeppesen & Co.

MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION F.R.C.P. 56 Summary Judgment

PEIRSON M. HALL, Senior District Judge.

On May 2, 1977, the Court made an Order denying plaintiffs' Motion for Summary Judgment. Counsel then called the Court's attention to the fact that there had been no action by the Court on the defendant's second motion to dismiss the second amended complaint, which motion would, by stipulation, apply to plaintiffs' third amended complaint. Thus, the Order of May 2, 1977 was untimely and the Court vacated it by its Order of July 19, 1977, and, on August 15, 1977, made an Order denying the defendant's second motion to dismiss in part and granting it in part.¹

In considering that Order it has re-examined the points and authorities of the parties on both the motion to dismiss and the motion for summary judgment, and in light thereof, and of its own research, has now reached the conclusion that it was error for it to make the Order of May 2, 1977 denying the defendant's motion for summary judgment, and is convinced that a different result is required.

PARTIAL SUMMARY JUDGMENT

While the last sentence of F.R.C.P. 56(c)² permits an "interlocutory" judgment on the whole³issue of liability alone, "although there is a genuine issue as to the amount of damages," and, while there are no provisions in the F.R.C.P., or 28 U.S.C. § 1291 or § 1292⁴ which permit a "partial" summary judgment on the whole issue of liability in a tort case, Subdivision (d) of F.R.C.P. 56 does permit the Court to effectively find what ultimate material facts do exist, and what ultimate "material facts are actually and in good faith controverted" and make an order "specifying the facts that appear without substantial controversy, . . .⁵ and directing such further proceedings in the action as are just."

There are four ultimate facts necessary to support the "whole" issue of liability in this case.

Succinctly stated, they are:

(1) that Jeppesen produced a faulty approach plate;

(2) that its use by the pilots of Bonanza in approaching Las Vegas for a landing was a proximate cause of the air crash; and

(3) that the pilots were not guilty of any contributory negligence in the use of Jeppesen's landing Chart No. 3;

(4) that Bonanza was not guilty of any contributory negligence.⁶

The plaintiffs do not seek a summary judgment on the above stated issue of ultimate fact No. 4. And, indeed, they could not because neither the plaintiffs, nor any of them, nor Bonanza, plaintiffs' subrogor, was a party to or participated in any way in the trial resulting in the verdict of liability against Jeppesen in the prior Schulze-Fitzpatrick-Travis cases (LV 967 and 969).⁷ Humphrey v. Tann (6 Cir. 1973) 487 F.2d 666, cert. den. 416 U.S. 956, 94 S.Ct. 1970, 40 L.Ed.2d 307. Neither Bonanza nor its subrogees who take only, but neither more nor less, than the rights of Bonanza, can be bound under the Due Process Clause of the Constitutions of the United States and Nevada.

Furthermore, it is axiomatic that the parties in Cases 967 and 969 could not bind or destroy the rights of Bonanza and its subrogees by an agreement between themselves to settle a lawsuit to which neither Bonanza nor any of its subrogees were a party. That agreement redounded to the benefit of the parties in that suit only and cannot impose a burden upon or foreclose the rights of persons not a party to that suit.

The negligence of Bonanza was not tried or in any way put in issue in the trial of LV 967-969. And no conclusion on that ultimate fact is, or is intended, to be expressed in this memorandum.

HISTORY OF PRIOR LITIGATION

A brief statement of the "bare bones" facts of record leading up to the situation presented here is required before a discussion of the applicable law.

On November 16, 1964 a Bonanza Fairchild plane known as Flight No. 114 enroute from Phoenix to Las Vegas, crashed approximately ten miles from the Las Vegas VORTAC, killing all the passengers, the pilot, the co-pilot, and the stewardess.⁸

When the plane left Phoenix for Las Vegas it was given a flight plan which included a Jeppesen landing chart for Las Vegas. While enroute, the pilots were directed to scratch that landing chart and substitute for it and to use Jeppesen landing chart LV No. 3, which they did. The plane crashed, with the results above indicated.

Suits were filed by the passengers against Bonanza and the United States.⁹ All the passengers' suits were settled and the claims paid by the plaintiffs here who were the insurers of Bonanza. None of those suits included any of the plaintiffs here who are the subrogees of Bonanza.

The heirs of Schulze and Fitzpatrick, the pilots, and Travis, the hostess of the plane, brought suits LV 967 and 969 (hereinafter sometimes called the Schulze cases) against Jeppesen based on the principle of products liability, in that it was alleged that the chart which the pilots were instructed to use (and used) in landing was faulty and that the deficiencies in it were either the sole cause of the accident, or a proximate cause of the accident.

In due course, the two cases were consolidated and separated under F.R.C.P. 42(b) for discovery and for trial on the sole issue of liability. They were tried, on that issue only, to a jury which returned a verdict holding against Jeppesen and for the plaintiffs on the issue of liability. The issues given to the jury were defined by the stipulated pretrial order (Appendix A), and by the instructions.

Upon the return of the verdict, the Court indicated that it would proceed forthwith before the same jury on the question of damages. But, at the request of counsel for the defendant Jeppesen, the Court put the trial of damages over for a couple of days so that the parties could arrive at a settlement. They did arrive at a settlement wherein Jeppesen agreed to and did, pay a total of $490,000.00 to the heirs of Schulze, Fitzpatrick and Travis. As part of that settlement, the parties stipulated that the Court would make an Order, the substance of which was that the verdict be withdrawn and stricken as if a new trial had been granted and that the case would be dismissed with prejudice.

Any statement by the Judge in the course of the settlement proceedings in that case to the effect that there was some negligence on the part of Bonanza is of no binding or evidentiary effect on this case for the reason that Bonanza was not a party to that case nor were any of its subrogees; nor did they participate in any way: The case was tried solely against Jeppesen, and the verdict was returned solely against Jeppesen.

CONTRIBUTION

As indicated in the Order Denying the Motion to Dismiss, contribution, for the purposes of this motion, is not involved in this case. The plaintiffs seek only indemnity, not contribution. In 1973 Nevada added the Uniform Contribution Among Tortfeasors Act by N.R.S. 17.215 to 17.325, incl. That Act permits contribution ratably, according to the degree of fault, and provides for indemnity if there is no fault. See, however, discussion in Kohr case, post.

The parties have not briefed whether or not the principles embodied in that Act are but a declaration of existing Nevada law, or were entirely new for Nevada.

INDEMNITY

The defendants have not raised the issue of a right to recover indemnity. But it must be noted that, as pointed out in the Order Denying the Motion to Dismiss (dated August 12, 1977), the right of plaintiffs to recover arose on the date of payment by plaintiffs or their subrogor Bonanza. All of those payments were made prior to the addition in 1973 of the "Uniform Contribution Among Tortfeasors Act" by Secs. 17.215 to 17.325, inclusive, of N.R.S. The applicability of the 1973 Act to prior payments, because of the prohibition against ex-post-facto law in Art. I, Sec. 15 of the Nevada Constitution is bound up in the question as to whether or not the 1973 Act was a legislative declaration of existing law or was new law, which as above indicated need not be decided for this motion.

Suffice it to say that the indemnity involved here is not statutory.

It must also be noted that Kohr v. Allegheny Airlines, Inc. (7 Cir., 1974) 504 F.2d 400, 403, rehearing en banc denied November 26, 1974, cert. denied May 19, 1975, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470, in overruling the District Court, which had held state law governed, held that notwithstanding any state law on contribution and indemnity, "there should be a federal law of contribution and indemnity governing mid-air collisions such as the one here."

The right to recover indemnity is based on the principle, whether called equity or implied contract, which prohibits one from profiting by his own wrong or fault at the expense of one who is free from fault or wrong.

Hillman v. Wallin (1974) 298 Minn. 346, at 350-51, 215 N.W.2d 810 at 813 ". . . the essentially equitable nature of indemnity . . . precludes the use of strict standards, and . . . requires courts to examine carefully both parties' conduct in light of general notions of justice."

". . . All of these principles are merely attempts to establish guidelines leading to the ultimate goal of doing justice. So far, no one has come up with a complete answer and we will have to permit indemnity on a case-by-case basis where our sense of fundamental...