Baggott v. Piper Aircraft Corp., C-3-86-615.

• Citation: 101 F.Supp.2d 556
• Decision Date: 20 July 1999
• Docket Number: No. C-3-86-615.,C-3-86-615.
• Parties: Thomas M. BAGGOTT, Trustee, Plaintiff, v. PIPER AIRCRAFT CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Ohio

101 F.Supp.2d 556

Thomas M. BAGGOTT, Trustee, Plaintiff, v. PIPER AIRCRAFT CORPORATION, Defendant.

No. C-3-86-615.

United States District Court, S.D. Ohio, Western Division.

July 20, 1999.

Thomas McCann Baggott, Altick & Corwin, Dayton, OH, John H. Bennett, Jr., Pohl, Bennett & Mathews, Houston, TX, Benton Musslewhite, Houston, TX, for Thomas M. Baggott, trustee for Zoomaire Inc. and Skyways Inc., appellant.

James Michael Wiles, Jay Bernard Eggspuehler, Wiles, Boyle, Burkholder & Bringardner, Columbus, OH, John Talbot Ducker, Talbott & Ducker, Dayton, OH, for Piper Aircraft Corp, appellee.

OPINION ON ISSUES IDENTIFIED BY COURT IN ITS DECISION OF APRIL 8, 1991 (DOC. # 22); FURTHER PROCEDURES ESTABLISHED

RICE, District Judge.

This lawsuit arises out of the crash of a Piper Aztec airplane on March 14, 1977, near Fife, Scotland.¹ In that crash, the pilot of the plane was injured, and the three passengers were killed. The Defendant, Piper Aircraft Corporation ("Piper"), was the manufacturer of that aircraft. The Plaintiff is the Bankruptcy Trustee for Zoomaire, Inc. ("Zoomaire"), and Skyways, Inc. ("Skyways"), the companies which sold the aircraft.

On June 9, 1978, the personal representatives and next-of-kin of the passengers initiated a wrongful death and survivorship action against Piper in the United States District Court for the Middle District of Pennsylvania. William Brown, et al. v. Piper Aircraft Corp., Case No. 78-552 (M.D.Pa.) ("Pennsylvania action").² On April 10, 1979, Judge Muir of that court sustained Piper's motion for partial summary judgment, holding that the plaintiffs' wrongful death claims were barred by the applicable statute of limitations. On June 1, 1979, Judge Muir sustained the plaintiffs' motion to dismiss the Pennsylvania action with prejudice.³

On March 13, 1979, while the Pennsylvania action was pending, the pilot, as well as the personal representatives and next-of-kin, filed an action against Piper, Zoomaire and Skyways, in the Court of Common Pleas for Montgomery County, Ohio. Thomas Baggott, et al. v. Piper Aircraft Corp., et al., Case No. 79-648 (Montgomery County Common Pleas) ("Ohio action"). Piper moved to dismiss that action. Although the Ohio Judge rejected Piper's argument that it was not subject to personal jurisdiction, that judicial officer, relying upon State ex rel Phillips v. Polcar, 50 Ohio St.2d 279, 364 N.E.2d 33 (1977), did dismiss Piper as a party defendant in the Ohio action, in deference to the then pending Pennsylvania litigation. On January 10, 1983, the Ohio action proceeded to a bench trial. Zoomaire and Skyways, the two remaining defendants in that action, having ceased to be operating corporations before the plane crash occurred, did not appear. On May 4, 1984, Judge Gounaris of the Common Pleas Court issued an amended judgment, in which he held that Zoomaire and Skyways were jointly and severally liable to the Ohio action plaintiffs in the sum of $4,200,000.

Since Zoomaire and Skyways had ceased to exist long before the judgment was entered against them, the Ohio action-plaintiffs were not able to obtain satisfaction of that judgment from those corporations.⁴ As a consequence, the Ohio action-plaintiffs, as judgment creditors of Zoomaire and Skyways, filed petitions in bankruptcy against those two corporations. In re Zoomaire, Inc., Case No. C-3-84-1899 (Bankr.S.D.Ohio); In re Skyways, Inc., Case No. C-3-84-1900 (Bankr.S.D.Ohio). Subsequently, the Plaintiff was appointed as Trustee for the two bankrupt companies and initiated this litigation, by filing consolidated adversary proceedings against Piper in Bankruptcy Court. When this Court, acting in accordance with the Bankruptcy Judge's recommendation, withdrew the reference of those consolidated adversary proceedings, the consolidated proceedings became the instant litigation pending in this Court. See Doc. # 4. In this litigation, the Plaintiff alleges that Piper is liable to the bankruptcy estates of Zoomaire and Skyways, by virtue of implied contracts of indemnity between Piper and them, arising out of the relationship of Piper as manufacturer of the aircraft and Zoomaire and Skyways as its sellers.⁵

On April 8, 1991, this Court entered a Decision in which it established procedures leading to the resolution the Plaintiff's Motion for Summary Judgment (Adv.Pro.Doc. # 10).⁶ In that motion, the Plaintiff had argued that he was entitled to summary judgment, because despite having had notice of the Ohio action, Piper voluntarily chose not to defend Zoomaire and Skyways at their trial.⁷ If that motion were to be sustained, Piper would be required to indemnify Zoomaire and Skyways for the $4,200,000 judgment entered against them in the Ohio action, even though there is no indication that either of them has expended the first cent to defend the Ohio action or to satisfy that judgment. As this Court noted in its earlier Decision, the Plaintiff was relying upon common law voucher in order to impose liability upon Piper.⁸ In SCAC Transport (USA), Inc. v. S.S. Danaos, 845 F.2d 1157 (2d Cir.1988), the Second Circuit explained the practice of voucher:

Under the common-law practice of voucher, a defendant (or indemnitee) in an action who seeks indemnification from a third party (or indemnitor) serves a notice to defend on that party. This notice informs the indemnitor of the pendency of the action against the defendant and offers the indemnitor the opportunity to appear and defend the action. If the indemnitor accepts this opportunity, it becomes a party to the action and is of course bound by the result. If the indemnitor refuses to assume the defense, the defendant, if unsuccessful in the original action, may bring a separate action against the indemnitor to enforce indemnification. In this separate action, the indemnitor can dispute the existence and scope of any requirement of indemnity. See Humble Oil & Ref. Co. v. Philadelphia Ship Maintenance Co., 444 F.2d 727, 735 (3d Cir.1971) (in separate indemnification action by shipowner against stevedore, stevedore not bound by results of prior litigation where it had lesser duty to injured third party than did shipowner). The indemnitor is precluded, however, by principles of or analogous to collateral estoppel, from relitigating issues decided in the original action, notwithstanding its refusal to defend in that action.

Id. at 1161-62. See also, Universal American Barge Corp. v. J-Chem, Inc., 946 F.2d 1131 (5th Cir.1991).

In its Decision of April 8, 1991, this Court rejected the arguments raised by the Defendant in opposition to the Plaintiff's Motion for Summary Judgment.⁹ The Court did not, however, sustain the Plaintiff's Motion for Summary Judgment, because he had not established that he was entitled to judgment as a matter of law, as required by Fed.R.Civ.P. 56(c). Doc. # 22 at 14-15. The Court identified two issues which had to be resolved before it would be able to conclude that the Plaintiff was so entitled, to wit: 1) has common law voucher survived the adoption of modern third-party practice, such as Rule 14 of the Ohio Rules of Civil Procedure;¹⁰ and 2) is a party primarily liable (Piper) necessarily liable to parties secondarily liable (Zoomaire and Skyways) for the entire amount of the judgment, when there is no evidence that the parties secondarily liable have paid even one cent to satisfy that judgment. Doc. # 22 at 16-18. The Court directed the parties to file memoranda addressing these issues, Id. at 18-19, which they have done. See Docs. 26, 27, 28, 47, 48, 49 and 50. In addition, Piper argues that the Plaintiff's attempt to rely upon the preclusive effect of voucher is barred by the failure of Zoomaire and Skyways to comply with the requirements of § 1302.65(E) and, alternatively, is barred because the Ohio litigation was not fully and fairly litigated. As a means of analysis, the Court will discuss the first issue identified in its Decision of April 8, 1991, as well as the two additional arguments raised by Piper, under the general heading of "Voucher" and the second question raised in that Decision under the general heading of "Damages."¹¹

I. Voucher

Numerous courts and commentators have suggested that common law voucher has not survived the adoption of modern third-party practice, such as Rule 14 of the Ohio Rules of Civil Procedure. See e.g., SCAC Transport, 845 F.2d at 1162 ("Common law vouching is a superfluous procedure where impleader is available."); Humble Oil & Refining Co. v. Philadelphia Ship Maintenance Co., 444 F.2d 727, 733-36 (3d Cir.1971); West Indian Co. v. S.S. Empress of Canada, 277 F.Supp. 1, 23 (S.D.N.Y.1967); Hilton Oil Transport v. Oil Transport Co., 659 So.2d 1141, 1150 n. 6 (Fla.App.1995); 18 Wright, Miller & Cooper, Federal Practice and Procedure, § 4452. See also, Universal American Barge, 946 F.2d at 1138-39.¹² However, in none of those cases has a court addressed the precise question before this Court, to wit: does the adoption of Rule 14 preclude the use of voucher in an action where the party secondarily liable can obtain personal jurisdiction over the party primarily liable. Piper contends that the Court need not resolve that broad question. Rather, it asserts that even if the adoption of Rule 14 does not preclude the use of voucher in an action where the party secondarily liable can obtain personal jurisdiction over the party primarily liable, the manner in which a party secondarily liable can "vouch in" a party primarily liable was altered by the adoption of Ohio Revised Code § 1302.65(E).¹³ Since Piper's argument presents a more narrow basis for decision, this Court turns to that contention.

Section 1302.65(E) provides:

(E) Where the buyer is sued for breach of a warranty or other obligation for which his seller is answerable over:

(1) he may give his seller written notice of the litigation. If the notice states that the seller may come in and defend and that if the seller does not do...