Aerospatiale Helicopter Corp. v. Universal Health Services, Inc.

• Decision Date: 25 August 1989
• Docket Number: No. 05-88-00730-CV,05-88-00730-CV
• Citation: 778 S.W.2d 492
• Parties: AEROSPATIALE HELICOPTER CORP., Appellant, v. UNIVERSAL HEALTH SERVICES, INC., Appellee.
• Court: Texas Court of Appeals

Page 492

778 S.W.2d 492

AEROSPATIALE HELICOPTER CORP., Appellant, v. UNIVERSAL HEALTH SERVICES, INC., Appellee.

No. 05-88-00730-CV.

Court of Appeals of Texas Dallas.

Aug. 25, 1989.

Rehearing Denied Oct. 4, 1989.

Michael V. Powell, Dallas, for appellant.

R. Brent Cooper, Dallas, J. Stephen Gibson, for appellee.

Before McCLUNG, BAKER and KINKEADE, JJ.

McCLUNG, Justice.

This case is a breach of contract action arising out of the crash of a Twinstar helicopter manufactured by appellant (Aerospatiale) and leased to appellee, Universal Health Services of Nevada (Universal) for use as an air ambulance. The tragic event, which killed all aboard, took place in Nevada.

Aerospatiale maintained in the trial court, and continues to maintain here, that the crash was caused by pilot error and that they are entitled to contractual indemnity from Universal under the express terms of the lease for amounts Aerospatiale expended to defend and settle the wrongful death suits brought against them by the families of the pilot and medical flight crew members.

Aerospatiale further alleges that Universal breached that portion of the lease requiring insurance coverage for damage to the helicopter because the policy actually acquired provided for a $25,000 deductible, thereby reducing the net proceeds received. Based on these allegations, Aerospatiale sought to recover the amount of the defense and settlement expenditures in the wrongful death suits, the deductible amount under the helicopter insurance policy, its attorney's fees in this suit, and contractual interest. In a trial to the court, the court determined, for a variety of reasons, that Aerospatiale was not entitled to recover under either the indemnity or insurance provisions of the lease and rendered judgment that Aerospatiale take nothing. From this judgment Aerospatiale appeals.

Summary of Facts

The fatal flight was a medical evacuation from Las Vegas, Nevada, to Needles, California, and return. The helicopter began the flight by departing a helipad at Valley Hospital in Las Vegas at approximately 12:19 p.m., December 7, 1983. Paul Kinsey, an employee of Universal, was piloting the helicopter. Two other Universal employees, a nurse and a paramedic were also aboard the helicopter.

A few seconds after take off, an eyewitness observed that the helicopter's No. 1 engine cowling was open and stationary in a horizontal position. The cowling is the cover for one of the helicopter's two engines and when opened, the cowling is held out horizontally by a metal stay rod that has a ball-shaped end that fits into a socket on the aircraft. This cowling separated from the aircraft and was later located at a place on the ground indicating that separation took place after approximately four minutes of flight.

As the cowling departed the aircraft, the stay rod snagged a coiled steel cable connected to the governor that controlled the fuel input to the helicopter's No. 1 engine. That resulted in reducing this engine to idle speed and essentially took that one engine off-line as a power source for the helicopter.

As the model name "Twinstar" implies, the helicopter is equipped with twin engines, and is designed to, and does, fly on one engine. As a safety feature the aircraft is designed so that if one engine goes off line for any reason, the other engine automatically picks up the load. As it was designed to do, this helicopter automatically shifted all power requirements to the No. 2 engine; and the helicopter flew on and continued to fly for six more minutes, for a distance of approximately ten more miles.

At some point later, the pilot apparently looked at the instruments and saw that the No. 2 engine was running at higher than normal temperature and that the torquemeter for this engine was recording higher than normal. The trial court found that the pilot failed to follow the procedure prescribed by the aircraft's Flight Manual, to diagnose his situation.

The pilot, apparently erroneously concluding that the No. 2 engine was defective, shut off the fuel to the No. 2 engine. That action killed this engine, which at the time was the only operating engine and was supplying all of the aircraft's power. When the power was removed, the helicopter descended into the mountainous terrain. The pilot was unable to negotiate a safe landing; all aboard perished in the crash and resulting fire.

Aerospatiale brings forward thirty-three points of error on appeal. We group these points of error into subject areas and address them in that fashion.

Proximate Causation

Aerospatiale contests the court's finding that the separation of the cowling from the helicopter caused the accident. Aerospatiale asserts that the cowling separation was, "as a matter of law" not a proximate cause or a producing cause of the crash. We note that Aerospatiale misnames its sufficiency argument on this point of error in that it characterizes this point as a "matter of law" point. Aerospatiale did not have the burden at trial to prove the cowling separation caused the accident. This contention was brought forward in Universal's answer and was properly characterized there as an affirmative defense. When the complaining party's opponent had the burden on the issue, the point raising legal insufficiency is properly styled "no evidence." It is only when the complaining party had the burden on the issue and it was answered adversely that the point is styled as a "matter of law" point. Cornelius, Appellate Review of Sufficiency of the Evidence Challenges in Civil and Criminal Cases, 46 Tex.B.J. 439, 440 (1983).

In reviewing legal sufficiency claims we must consider only the evidence and reasonable inferences drawn therefrom which, when viewed in their most favorable light, support the trial court's finding. This Court must disregard all evidence and inferences contrary to the fact finding. If there is more than a scintilla of evidence to support the finding, the challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987).

As found by the trial court, when the engine cowling separated from the aircraft, the stay rod, which is normally used to hold the cowling open, snagged a coiled steel anticipator cable connected to the governor that controls the fuel input to the helicopter's No. 1 engine. The resulting damage reduced the No. 1 engine to idle speed and took that engine off-line as a power source for the aircraft. The aircraft, as it was designed to, automatically shifted the power requirements to the other engine. There is no evidence to indicate that the pilot was aware that this had occurred, although it would have been reflected in the instruments. The Valley Hospital pilot continued to fly the helicopter for approximately six minutes covering a distance of approximately ten miles after the cowling separated without incident. During this six minute period the aircraft flew over numerous places where the helicopter could have safely landed, but no effort or attempt to land was undertaken. The trial court further found that the pilot did not follow the emergency procedures prescribed for such event in the flight manual of this aircraft.

We agree with Aerospatiale that there is no evidence to show that the separation of the cowling from the aircraft was a proximate cause of the accident in question. At best the cowling separation was merely a prior cause. A prior cause cannot be made the basis for an action for damages if it does nothing more than furnish a condition or give rise to the occasion which makes the injury possible, if such injury is the result of some other cause which reasonable minds would not have anticipated, even though the injury would not have occurred but for such condition. Wolf v. Friedman Steel Sales, Inc., 717 S.W.2d 669, 674 (Tex.App.--Texarkana 1986, writ ref'd n.r.e.).

In Kay v. Cessna Aircraft Co., 548 F.2d 1370 (9th Cir.1977) the United States Court of Appeals for the Ninth Circuit denied recovery to a plaintiff in circumstances similar to these. In that case the pilot of a twin engine Cessna aircraft was killed when he attempted take-off with only one engine operational. The pilot in that case also failed to follow owners manual procedures which would have alerted him to the rear engine failure and the accompanying danger. The Kay court held that the pilot's failure to follow safe operating procedures was not foreseeable by the manufacturer. Kay v. Cessna Aircraft Co., 548 F.2d at 1373. Texas law also focuses on the foreseeability of the intervening party's actions:

In applying the test of foreseeability to situations where a negligently created pre-existing condition combines with a later act of negligence causing an injury there is a distinction between a situation in which one has created a dangerous condition and a later actor observes, or by the circumstances should have observed, the existence of the dangerous condition and a situation in which the dangerous condition is not apparent and cannot be observed by the actor. In regard to the first situation, the intervening act interrupts the natural sequence of the events and cuts off the legal effect of the negligence of the initial actor. This is based upon the premise that it is not reasonable to foresee or expect that one who actually becomes cognizant of a dangerous condition in ample time to avert the injury will fail to do so.

Wolf v. Friedman Steel Sales, Inc., 717 S.W.2d at 673. It is not contested that the helicopter flew an additional six minutes and ten miles after the engine cowling separated from the craft. All the evidence at trial showed that one engine going off line was not, in itself, an emergency situation. This helicopter was designed to continue to fly on only one engine and it did so. All testimony reflects that if the pilot had followed the proper procedures this accident would not have happened.

The testimony shows that when the pilot apparently noticed that one of his engines was not...