Alexander v. Beech Aircraft Corp.

• Decision Date: 26 December 1991
• Docket Number: No. 88-1749,88-1749
• Citation: 952 F.2d 1215
• Parties: Prod.Liab.Rep. (CCH) P 13,053 Prince ALEXANDER, Jr., Personal Representative of the Estate of Prince Alexander, Deceased, on behalf of said estate and on behalf of himself, Marvin A. Alexander and Tanya L. Alexander, minors; L.M. Demko; and Thomas W. Webber, Sr., Personal Representative of the Estate of R.A. Webber, Deceased, on behalf of said estate and the heirs of R.A. Webber, Plaintiffs-Appellants, v. BEECH AIRCRAFT CORPORATION, a Delaware corporation; Rupert Industries, a division of C & J Associates Inc., an Illinois corporation; and Does II through X, inclusive, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1215

952 F.2d 1215

Prod.Liab.Rep. (CCH) P 13,053

Prince ALEXANDER, Jr., Personal Representative of the Estate of Prince Alexander, Deceased, on behalf of said estate and on behalf of himself, Marvin A. Alexander and Tanya L Alexander, minors; L.M. Demko; and Thomas W. Webber, Sr. Personal Representative of the Estate of R.A. Webber Deceased, on behalf of said estate and the heirs of R.A Webber, Plaintiffs-Appellants, v. BEECH AIRCRAFT CORPORATION, a Delaware corporation; Rupert Industries, a division of C & J Associates Inc., an Illinois corporation; and Does II through X, inclusive, Defendants-Appellees.

No. 88-1749.

United States Court of Appeals, Tenth Circuit.

Dec. 26, 1991.

James F. Leggett of Leggett & Kram, Tacoma, Wash. (Charles W. Harris of Curfman, Harris, Borniger & Rose, Wichita, Kan., with him on the brief), for plaintiffs-appellants.

David S. Wooding of Martin, Pringle, Oliver, Wallace & Swartz (William L. Oliver, Jr., with him on the brief), for defendant-appellee Beech Aircraft Corp.

Michael M. Lane of McCullough, Campbell & Lane, Chicago, Ill. (Patrick M. Graber and Michael D. Hultquist of McCullough, Campbell & Lane, Chicago, Ill., and Ronald P. Williams of Morrison, Hecker, Curtis, Kuder & Parrish, Wichita, Kan., with him on the brief), for defendant-appellee Rupert Industries.

Before HOLLOWAY, SEYMOUR and EBEL, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is an appeal by plaintiffs-appellants Prince Alexander, Jr., a personal representative; by L.M. Demko; and by Thomas W. Webber, Sr., also a personal representative, from an order of the United States District Court for the District of Kansas, granting defendant-appellee Beech Aircraft Corporation's (Beech) motion for summary judgment and defendant-appellee Rupert Industries' (Rupert) motion to dismiss. These rulings were made in a wrongful death and personal injury action arising from a tragic plane crash in Indiana. The rulings were premised on the Indiana products liability statute of repose, and other Indiana statutes of limitations and wrongful death act limitations, because the air crash giving rise to the claims asserted in this suit occurred there.

I

On February 18, 1984, Prince Alexander Sr., a United States Army aviator, rented a model A23A Beechcraft Musketeer from Pat Kesler in Alabama, for a flight to Hammond, Indiana. Passengers on the flight with Alexander included R.A. Webber and L.M. Demko, also United States Army personnel. Alexander had the appropriate Federal Aviation Administration (FAA) license to operate the aircraft and he had been given a check ride in the plane by Kesler. During the flight to Indiana the aircraft ran out of gas. Alexander attempted to land the plane without engine power at a nearby airfield to which he was directed by personnel at the Evansville, Indiana, radar controller station. The plane crashed on approach to the airport, killing Alexander and front seat passenger Webber and seriously injuring rear seat passenger Demko.

The airplane was manufactured in 1967 by Beech and was sold and delivered to Wiles-Holloway, Inc. of Baton Rouge, Louisiana Beech filed a motion for summary judgment on the theory that the plaintiffs' claims were barred by the ten-year Indiana statute of repose for products liability actions, Ind.Code Ann. § 34-4-20A-5 (Burns 1986). ² Rupert filed a motion to dismiss based on the proposition that the plaintiffs' claims were barred by the two-year limitation in the Indiana personal injury statute of limitations, Ind.Code Ann. § 34-1-2-2 (Burns 1986), and the two-year Indiana condition on the bringing of wrongful death actions, Ind.Code Ann. § 34-1-1-2 (Burns 1986). The motions of Beech and Rupert were granted by the district court.

                in June of that year.   I R. Doc. 56, Ex.  A.  In December 1971 the plane was sold to Pat Kesler, who owned the aircraft at the time of the accident on February 18, 1984.   This action against Beech for wrongful deaths and for the personal injuries of Demko, asserting theories of strict liability in tort and negligence, was filed on February 13, 1986, in the United States District Court for the District of Kansas.   The original diversity complaint named Beech and Does I through X inclusive as defendants. 1  On July 10, 1986, plaintiffs were granted leave to file their first amended complaint, which added Rupert, a division of C & J Associates, Inc., manufacturer of the seatbelts on the plane, as a defendant.   The amended complaint was filed on August 26, 1986, averring strict liability and negligence claims against Beech, Rupert and Does II through X, inclusive, Rupert being substituted for Doe I.   The amended complaint also alleged a breach of warranty by Rupert with respect to the strength of the seat belts.
                

The judge held that the choice of law rules of Kansas, as the forum state, should be applied, Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); and that the law of the Kansas forum as to the limitation of actions governs, including the Kansas borrowing statute, Kan.Stat.Ann. § 60-516. That statute provides:

Actions originating in another state. Where the cause of action has arisen in another state or country and by the laws of the state or country where the cause of action arose an action cannot be maintained thereon by reason of lapse of time, no action can be maintained thereon in this state except in favor of one who is a resident of this state and who has held the cause of action from the time it accrued.

Pursuant to the borrowing statute the district judge applied the Indiana statute of repose and sustained the motion of Beech for summary judgment. Again under the borrowing statute, he applied the Indiana two-year limitation on personal injury actions and the two-year Indiana condition on the bringing of wrongful death actions and sustained the motion to dismiss of Rupert. Plaintiffs moved for reconsideration of these rulings and their motion was denied. This appeal followed, and the plaintiffs-appellants make numerous arguments challenging the correctness of the rulings in favor of Beech and Rupert. We turn now to those contentions.

II

A.

First, plaintiffs argue that the Pilot/Operator Manual or Handbook of Beech dated December 1979 was a replacement part; it was defective and misrepresented and overstated the amount of usable fuel to the pilot; ³ the handbook is considered part of the aircraft for FAA certification purposes; ⁴ the furnishing of the 1979 defective handbook recommenced the running of the ten-year Indiana statute of repose; and the proximate causation of the accident by the handbook was a fact question requiring expert testimony and one inappropriate for summary judgment, citing Black v. Henry Pratt Co., 778 F.2d 1278 (7th Cir.1985), inter alia.

In connection with their strenuous arguments about inaccurate indications of usable fuel remaining, the plaintiffs point to a portion of the record of messages transmitted between the Beechcraft plane, N3639Q, and the Indianapolis ARTCC Evansville Radar Controller, quoted in plaintiffs' memorandum in opposition to Beech's motion for summary judgment, I R. Doc. 65 at 2:

ZULU Time Source Transmission

1036:15 EVV 39Quebec the computer shows that it's going to be about 35

minutes flying time to Evansville Airport; are you going

to have enough, uh, fuel to get there.

1036:26 39Q This is 39Quebec affirmative.

1038:35 39Q 39Quebec out of gas, going down this time.

----------

Plaintiffs rely on the transmission as evidence that the misperception of remaining fuel was critical in the causation of the crash.

We agree with the district judge that plaintiffs cannot recast their allegations of Beech's failure to warn properly in the handbook into a breach of duty regarding replacement parts. The Black opinion treated seats, bearings, packing, and glue of a valve mechanism as replacement parts and reasoned that since they were furnished within the ten-year limit of the statute of repose, if they were unreasonably dangerous and were the proximate cause of the injuries complained of, then the complaint was timely. However, Black held that the replacement parts were not defective and were not related to the malfunctioning There is, of course, a different case presented here in that the allegedly defective handbook was related to the allegations of plaintiffs that the aircraft's "fuel gauges were not accurate, the fuel tanks trapped fuel, the fuel system had a propensity to dump fuel overboard...." First Amended Complaint, I R. Doc. 32 at 4. ⁵ Nevertheless, we must agree with the district judge here that plaintiffs have not explained or offered evidence that the instructions or manuals served as "replacement parts." Memorandum and Opinion at 16. In the context of products liability concepts, we are not persuaded that the handbook was a "replacement part." Instead we feel the handbook and such instructions should be viewed as part of the evidence proffered by plaintiffs which bears on a failure to warn theory against Beech.

                of the chain mechanism involved in the accident;  thus plaintiff had no cause of action as to such parts.   Moreover, any action based on the original delivery of the valves in 1967 was barred by the ten-year limitation in the statute of repose.  778 F.2d at 1283-84
                

We are persuaded by the reasoning of the Sixth Circuit in Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1134-35 (6th Cir.1986). There the court upheld a summary judgment for the defendant, a manufacturer of a personnel hoist, on the basis of a ten-year statute of repose of Tennessee, generally similar to that of Indiana. The plaintiffs there argued that their suit was not time barred because the defendants had sold TVA an instruction manual for the hoist in 1980, which was a "product" as defined in the Tennessee Act, making the suit timely. The Sixth Circuit referred to the statutory definitions in the Tennessee...