Avco Corp. v. Neff, 1D09-5531

• Court: Court of Appeal of Florida (US)
• Citation: 30 So.3d 597
• Docket Number: 1D09-5548.,No. 1D09-5531,1D09-5531
• Parties: AVCO CORPORATION and Textron Lycoming Reciprocating Engine Division, Petitioners, v. Gregory M. NEFF and Patricia J. Neff, as Co-Personal Representatives of the Estate of Traves Neff; Glynn Lowery, Jr., as Personal Representative of the Estate of William C. Walther; Sandra A. Walther, Individually and as Co-Personal Representative of the Estate of Daniel J. Wesley; Benjamin J. Wesley, Individually and as Co-Personal Representative of the Estate of Daniel J. Wesley; Regina King, Individually and as Personal Representative of the Estate of Cristy Jo King; Precision Airmotive Corporation; Precision Airmotive LLC; Teledyne Continental Motors, Inc.; Teledyne Technologies, Inc.; TDY Industries, Inc., Allegheny Teledyne, Inc., and CJ Aviation, Inc., Respondents. Precision Airmotive Corporation, Precision Airmotive, LLC., Petitioners, v. Glyn Lowery, Jr., as Personal Representative of the Estate of William C. Walther, deceased, Sandra A. Walther, individually and as Co-Personal Representative of the Estate of Daniel J. Wesley, deceased, Benjamin J. Wesley, individually and as Co-Personal Representative of the Estate of Daniel J. Wesley, deceased, Regina King, individually and as Personal Representative of the Estate of Cristy Jo King, deceased, Gregory M. Neff and Patricia J. Neff, individually and as Co-Personal Representatives, of the Estate of Traves Neff, deceased; AVCO Corporation, Textron Lycoming Reciprocating Engine Division, Teledyne Continental Motors, Inc., Teledyne Technologies, Inc., TDY Industries, Inc., Allegheny Teledyne, Inc., and CJ Aviation, Inc., Respondents.
• Decision Date: 10 March 2010

30 So.3d 597

AVCO CORPORATION and Textron Lycoming Reciprocating Engine Division, Petitioners,
v.
Gregory M. NEFF and Patricia J. Neff, as Co-Personal Representatives of the Estate of Traves Neff; Glynn Lowery, Jr., as Personal Representative of the Estate of William C. Walther; Sandra A. Walther, Individually and as Co-Personal

[30 So.3d 598]

Representative of the Estate of Daniel J. Wesley; Benjamin J. Wesley, Individually and as Co-Personal Representative of the Estate of Daniel J. Wesley; Regina King, Individually and as Personal Representative of the Estate of Cristy Jo King; Precision Airmotive Corporation; Precision Airmotive LLC; Teledyne Continental Motors, Inc.; Teledyne Technologies, Inc.; TDY Industries, Inc., Allegheny Teledyne, Inc., and CJ Aviation, Inc., Respondents.
Precision Airmotive Corporation, Precision Airmotive, LLC., Petitioners,
v.
Glyn Lowery, Jr., as Personal Representative of the Estate of William C. Walther, deceased, Sandra A. Walther, individually and as Co-Personal Representative of the Estate of Daniel J. Wesley, deceased, Benjamin J. Wesley, individually and as Co-Personal Representative of the Estate of Daniel J. Wesley, deceased, Regina King, individually and as Personal Representative of the Estate of Cristy Jo King, deceased, Gregory M. Neff and Patricia J. Neff, individually and as Co-Personal Representatives, of the Estate of Traves Neff, deceased; AVCO Corporation, Textron Lycoming Reciprocating Engine Division, Teledyne Continental Motors, Inc., Teledyne Technologies, Inc., TDY Industries, Inc., Allegheny Teledyne, Inc., and CJ Aviation, Inc., Respondents

Nos. 1D09-5531, 1D09-5548.

District Court of Appeal of Florida, First District.

March 10, 2010.

30 So.3d 599

Charles W. Hall, Mark D. Tinker and John P. O'Flanagan, of Banker Lopez Gassler, P.A., St. Petersburg, for Petitioners, Avco Corporation and Textron Lycoming Reciprocating Engine Division; Robert M. Fulton and Landis V. Curry, III, of Hill, Ward & Henderson, P.A., Tampa, and Mary P. Gaston and Sara E. Baynard-Cooke, of Perkins Coie LLP., Seattle, Washington, for Petitioners, Precision Airmotive Corporation, Precision Airmotive, LLC.

Philip J. Ford, of The Wolk Law Firm, Philadelphia, PA; Edward P. Fleming and Belinda B. de Kozan, of McDonald, Fleming, Moorhead, Pensacola; and David I. Katzman, of Schaden, Katzman, Lampert & McClune, Troy, MI, for Respondents, Lowery, Walter, Wesley, King and Neff.

WETHERELL, J.

Petitioners, Avco Corporation and Textron Lycoming Reciprocating Engine Division (collectively "Avco") and Precision Airmotive Corporation and Precision Airmotive, LLC (collectively "Precision"), seek certiorari review of the non-final orders denying their motions for summary judgment. They argue that the trial court erred in determining that Respondents' claims are not barred by the statutes of repose in the General Aviation Revitalization Act of 1994 (GARA)¹ and section 95.031(2)(b), Florida Statutes (2004). We consolidate these cases for purposes of this opinion and deny the petitions for writ of certiorari because Petitioners fail to demonstrate that the challenged orders will result in irreparable harm that cannot be remedied on appeal.

Factual and Procedural Background

On September 23, 2004, a private Cessna R182 piloted by Traves Neff crashed in Milton shortly after takeoff. Neff and the three others on board the aircraft were killed in the crash. The National Transportation and Safety Board investigated the crash and found that the float device in the aircraft's carburetor was damaged and that some of the related parts were worn.

On September 21, 2006, Respondents filed a complaint against Petitioners (and others), alleging that the Marvel Schebler carburetor installed on the aircraft was defectively designed and caused the crash. The complaint alleged that Avco, the engine manufacturer, and Precision, the successor to the carburetor manufacturer, knew the carburetor design was subject to failures and that they failed to warn the Federal Aviation Administration (FAA) and the general public of such failures. Specifically, the complaint alleged that the carburetor had incompatible metals that caused a wearing of parts, which, in turn, caused the float to stick and resulted in the engine receiving an improper fuel/air mixture.

30 So.3d 600

The aircraft at issue was delivered to its first purchaser in 1981. The carburetor was last overhauled in October 1992 as part of a manufacturer recommended engine overhaul. The engine overhaul was completed in December 1992.

Petitioners filed motions for summary judgment, arguing that the claims were barred by the 18-year statute of repose in GARA² and the 12-year statute of repose in section 95.031(2)(b).³ Avco asserted that it did not manufacture anything for the aircraft subsequent to its original delivery in 1981. Precision asserted that it did not install any replacement parts in the engine or overhaul the carburetor, that there was no evidence regarding who manufactured the replacement parts used in the carburetor overhaul, and that there was no evidence that Precision was the successor-in-interest to this unidentified manufacturer.

Respondents countered with affidavits and other evidence indicating that carburetor parts installed in the 1992 engine and carburetor overhaul (including the new float device) were based upon design specifications mandated by Petitioners and were manufactured under Petitioners' direct supervision. The affidavits also detailed the extensive history of float-related problems with Marvel Schebler carburetors that Petitioners failed to address. The affidavits concluded based upon a review of the available documentation that Petitioners affirmatively concealed and withheld from the FAA information concerning problems with the Marvel Schebler carburetor's design despite having notice of a reportable design defect. Respondents argued based upon this evidence that the applicable repose periods as to both Petitioners were restarted in 1992 by the engine and carburetor overhaul because Petitioners were the de-facto manufacturers of the replacement parts,⁴ and that the periods were tolled based upon the fraud and concealment provisions in GARA⁵ and section 95.031(2)(d).⁶

30 So.3d 601

The trial court denied Petitioners' motions for summary judgment, finding that genuine issues of material fact existed. The court found that a genuine dispute existed as to whether the replacement parts in the overhauled carburetor were manufactured or caused to be manufactured by Petitioners. The court also found that there was a genuine dispute as to whether Petitioners had fraudulently misrepresented or concealed the design defects in the carburetor.

Petitioners timely filed petitions for writ of certiorari in this court, arguing that the trial court erred in determining that Respondents' claims were not barred by the statutes of repose. Petitioners argue that the 1992 engine overhaul did not revive claims against the original manufacturer of the engine and carburetor, but rather only applied to the actual manufacturer of the replacement parts at issue. Petitioners further argue that Respondents failed to specifically plead or present any evidence that Petitioners fraudulently misrepresented anything concerning the carburetor design so as to toll the running of the statutes of repose.

Analysis

Certiorari is the proper remedy, in limited circumstances, to review a non-final order that is not subject to appeal under Florida Rule of Appellate Procedure 9.130. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). To obtain certiorari relief, Petitioners must demonstrate (1) a departure from the essential requirements of law, (2) a resulting material injury for the remainder of the trial, and (3) the lack of an adequate remedy on appeal. Id. The court is required to first determine...