Burton v. Twin Commander Aircraft Llc

• Decision Date: 07 April 2011
• Docket Number: No. 83030–4.,83030–4.
• Citation: 254 P.3d 778,171 Wash.2d 204
• Court: Washington Supreme Court
• Parties: Kenneth C. BURTON, as Personal Representative of the Estate of Ulises Desposorios Santiago, and on behalf of Erika Barajasa Vasquez, Virginia Desposorio Barajas, Ulises Desposorio Barajas, Teofilo Uvaldo Desposorio Cabrera, and Irene Santiago Nava, Respondents,v.TWIN COMMANDER AIRCRAFT LLC, formerly known and doing business as Twin Commander Aircraft Corporation; and Does 1–20, Petitioners.

171 Wash.2d 204

254 P.3d 778

Kenneth C. BURTON, as Personal Representative of the Estate of Ulises Desposorios Santiago, and on behalf of Erika Barajasa Vasquez, Virginia Desposorio Barajas, Ulises Desposorio Barajas, Teofilo Uvaldo Desposorio Cabrera, and Irene Santiago Nava, Respondents,

v.TWIN COMMANDER AIRCRAFT LLC, formerly known and doing business as Twin Commander Aircraft Corporation; and Does 1–20, Petitioners.

No. 83030–4.

Supreme Court of Washington, En Banc.

Argued June 8, 2010.Decided April 7, 2011.

Clark Reed Nichols, Perkins Coie LLP, Bellevue, WA, Mary Pedersen Gaston, Rebecca S. Engrav, Paul Spencer Graves, Perkins Coie LLP, Seattle, WA, for Petitioners.Thomas William Bingham, Jeffrey Carl Jones, Kerry Vincent Kovarik, Krutch Lindell, Seattle, WA, Gene Hagood, Hagood & Neumann, LLP, Alvin, TX, for Respondents.MADSEN, C.J.

[171 Wash.2d 208] ¶ 1 This action arises out of an airplane crash near Aguascalientes, Mexico, in which seven people died. The personal representative of the decedents' estates brought wrongful death actions against Twin Commander Aircraft LLC (Twin Commander). The trial court granted summary judgment in favor of Twin Commander on the ground that the statute of repose set forth in the General Aviation Revitalization Act of 1994 (GARA) ¹ bars the actions. The Court of Appeals reversed.

¶ 2 GARA's statute of repose bars a suit against a manufacturer of general aviation aircraft if the accident occurred 18 years or more after delivery of the aircraft to its first purchaser. Twin Commander, as a type certificate holder (explained below), is a “manufacturer” within the contemplation of GARA as a matter of law. Twin Commander is therefore entitled to GARA's statute of repose, since the plane crash in this case occurred more than 18 years after delivery of the aircraft to the first purchaser, unless an exception to the statutory bar applies.

¶ 3 The personal representative of the decedents' estates relies on the “fraud exception” to GARA's statute of repose. However, to obtain the benefit of this exception, a claimant must plead and prove with specificity facts that establish that the defendant manufacturer knowingly misrepresented, concealed, or withheld from the Federal Aviation Administration (FAA) information that must be reported that is “material and relevant to the performance or the maintenance or operation of such aircraft, or the component, system, subassembly, or other part, that is causally related to the [claimant's alleged] harm.” GARA § 2(b)(1). Critically, knowledge as a state of mind applies to each of these forms of keeping information from the FAA; that is, “knowingly” modifies each of the words “misrepresented,” “concealed,” and “withheld” in the exception.

¶ 4 There is no genuine issue of material fact as to whether Twin Commander knowingly withheld information from the FAA that it was required to report. The claim that the “fraud exception” applies rests on the contention that Twin Commander was required to reevaluate a 1992 accident that had already been reported and thoroughly investigated by the National Transportation Safety Board (NTSB), conclude that the earlier accident involved the same problem that led to other aircraft accidents in 2002 and 2003 (although the board's conclusion about the cause of the crash was otherwise), and connect the earlier accident to the later accidents in reports to the FAA.

¶ 5 It is doubtful that the personal representative has produced sufficient evidence to show that information required to be reported was misrepresented, concealed, or withheld, but we base our decision on other grounds, i.e., the dispositive matter is that the personal representative has produced no facts that could establish the requisite “knowing” state of mind. Although he relies almost exclusively on two e-mails sent by a Twin Commander officer describing the accidents, there is nothing in these e-mails that raises a question of material fact as to whether Twin Commander officials knowingly misrepresented or withheld information from the FAA. Indeed, there is nothing in the e-mails that even suggests such knowledge, a burden that the statute places on the plaintiff to establish.

¶ 6 Absent evidence on this necessary element of the “fraud exception,” there is no material fact issue as to whether the exception applies. This being the case, GARA's statute of repose bars this action.

¶ 7 We conclude that the trial court properly granted summary judgment in favor of Twin Commander and accordingly reverse the Court of Appeals and reinstate the summary judgment.

FACTS

¶ 8 Rockwell International introduced the Twin Commander 690 series aircraft in 1971. In 1979, the FAA issued a type certificate that authorized Rockwell to manufacture the type of aircraft at issue, a 690C dual engine turbo propairplane. A type certificate is issued when the FAA has found that the aircraft is properly designed and manufactured and meets minimum federal safety standards and regulations. 49 U.S.C. § 44704(a)(1). Once a type certificate is issued, the holder of the certificate may seek a production certificate authorizing the holder to manufacture the aircraft. 49 U.S.C. § 44704(c). The holder of the type certificate has exclusive manufacturing authority. 49 U.S.C. § 44704(a)(3).² Type certificates are transferable. 14 C.F.R. § 21.47.

¶ 9 In 1981, Gulfstream American Corporation acquired Rockwell. Gulfstream built the particular airplane that crashed near Aguascalientes, Mexico, in 2004. The aircraft was sold and delivered to its first purchaser in 1981.

¶ 10 In 1989, Gulfstream was sold, and Twin Commander acquired the 690–series type certificates but did not continue manufacturing the aircraft. However, as the type certificate holder, Twin Commander is required to provide support for the 690–series aircraft. As the type certificate holder, Twin Commander must report information to the FAA about any failure, malfunction or defect of any part of the aircraft posing a risk to flight safety, including exhaust system failure; accumulation of toxic or noxious gases; propeller system failure or malfunction; flammable fluid leakage in an ignition area; brake system failure; primary structural defect or failure; abnormal vibration or buffeting; engine failure; malfunction, defect or failure causing interference with normal control of the aircraft; loss of electrical or hydraulic power systems; and failure or malfunction of more than one attitude, airspeed, or altitude instrument. 14 C.F.R. § 21.3; see 14 C.F.R. § 21.7. Also, as a type certificate holder Twin Commander has the obligation to submit design changes if the FAA issues an airworthiness directive that makes such changes necessary, 14 C.F.R. § 21.99, and prepare instructions for continued airworthiness that meet FAA approval, 14 C.F.R. § 25.1529.

¶ 11 In April 2003, after two model 690B aircraft had crashed in 2002 and 2003, Twin Commander issued Alert Service Bulletin 235 (service bulletin 235), titled “Upper Rudder Structural Inspection,” advising the operators of several aircraft models, including the 690–series, to inspect the rudder cap for unusual wear, which could result in the rudder cap separating from the aircraft. Service bulletin 235 required a one-time inspection of the rudder cap, top rudder rib, and forward rudder spar. The bulletin described the reason for the bulletin as being the accidents that occurred in 2002 and 2003.

¶ 12 In May 2004, the crash in Mexico occurred. The model 690C aircraft was at that time owned by Mexico's Procuradia General de la República. Seven government agents were on board; all were killed in the accident. An investigation by the Mexican government reached the conclusion that the rudder came loose during flight, causing the accident. A report by Mexican authorities states that in July and October 2003 the aircraft had been inspected in accord with service bulletin 235.

¶ 13 On April 29, 2005, Mr. Kenneth C. Burton, personal representative of the decedents' estates, filed wrongful death actions against Twin Commander in King County Superior Court, alleging that service bulletin 235 was a defective product that caused the crash and asserting causes of action for product liability, negligence, failure to disclose to/concealment of information from the FAA, and strict products liability. The plaintiff's amended complaint expressly limits all of these claims “solely and only to Service Bulletin 235.” Clerk's Papers (CP) at 221.

¶ 14 Twin Commander moved for summary judgment on the basis of GARA. GARA bars actions against the manufacturers of general aviation aircraft ³ if the accident occurred 18 years after delivery of the aircraft to the first purchaser. Pub.L. No. 103–298, § 2(a), 108 Stat. 1552 (1994), as amended by Pub.L. No. 105–102, § 3(e), 111 Stat. 2204, 2215–16 (1997) (codified at 49 U.S.C. § 40101 note). This statute of repose preempts state law to the contrary. Id. § 2(b)(1). Here, the aircraft was delivered to the first purchaser in 1981, well over 18 years before the accident.

¶ 15 The trial court granted Twin Commander's motion for summary judgment, holding that Twin Commander was a “manufacturer” entitled to the benefit of the statute of repose and that service bulletin 235 did not restart the 18–year period under a “rolling” feature of GARA. Mr. Burton appealed and the Court of Appeals reversed. Burton v. Twin Commander Aircraft, LLC, 148 Wash.App. 606, 221 P.3d 290 (2009). The Court of Appeals held that whether Twin Commander is a “manufacturer” for purposes of GARA is a material question of fact, that the “rolling” provision did not apply to restart the 18–year period and that there is a question of material fact as to whether Twin Commander misled the FAA when reporting the rudder problem and therefore as to whether Twin Commander is entitled to the benefit of the statute of repose. See GARA § 2(b)(1).

¶ 16 We granted Twin Commander's ...