Burton v. Twin Commander Aircraft, LLC

Decision Date09 February 2009
Docket NumberNo. 60163-6-I.,60163-6-I.
Citation148 Wash.App. 606,221 P.3d 290
PartiesKenneth C. BURTON, as Personal Representative of the Estate of Ulises Desposorios Santiago, and on behalf of Erika Barajasa Vasquez, Virginia Desposorios Barajas, Ulises Desposorios Barajas, Teofilo Uvaldo Desposorios Cabrera, and Irene Santiago Nava, Kenneth C. Burton, as Personal Representative of the Estate of Marcelino Gonzalez Alcantara, and on behalf of Rosario Flores Alvarado, Eduardo Gonzalez Flores, Daniel Gonzalez Flores and Christian Nanyeli Gonzalez Flores, Kenneth C. Burton, as Personal Representative of the Estate of Juan Galindo Herrera, and on behalf of Rebeca Escamilla Magallanes, Erick Galindo Escamilla and Lillian Itze Galindo Escamilla, Kenneth C. Burton, as Personal Representative of the Estate of Pablo Lozada Legorreta, and on behalf of Maria De Lourdes Esquivel Avalos, Gerson Fabric10 Lozada Esquivel, Diana Paola Lozada Esquivel and Priscilla Lozada Esquivel, Kenneth C. Burton, as Personal Representative of the Estate of Cesar Gabriel Maya, and on behalf of Stephanie Guadalupe Maya Triujeque and Diego Hanniel Maya Triujeque, Kenneth C. Burton, as Personal Representative of the Estate of Jesus Arciniega Nieto, and on behalf of Angelica Margarita Arizmendi Guadarrama, Estefania Arciniega Arizmendi, Jose Francisco Arciniega Perez and Consuelo Nieto Tapia, and Kenneth C. Burton, as Personal Representative of the Estate Of Marianela Elizardi Rios, and on behalf of Marianela Aida Quezada Elizardi and Aida Magdalena Rios De Elizardi, Appellants, v. TWIN COMMANDER AIRCRAFT, LLC, Respondent.
CourtWashington Court of Appeals

Thomas William Bingham, Jeffrey Carl Jones, Krutch Lindell, Seattle, WA, Gene Hagood, Hagood & Neumann, LLP, Alvin, TX, for Appellants.

Clark Reed Nichols, Perkins Coie LLP, Bellevue, WA, Mary Pedersen Gaston, Perkins Coie LLP, Seattle, WA, Michael Justin Teter, Georgetown Law Center, Washington, DC, for Respondent.

SCHINDLER, C.J.

¶ 1 In May 2004, a Twin Commander Model 690C twin engine airplane crashed, killing all seven people aboard. The personal representative of the decedents' estates, Kenneth C. Burton, filed wrongful death actions against Twin Commander Aircraft, LLC, as the current type certificate holder of the Twin Commander Model 690C aircraft. The "General Aviation Revitalization Act of 1994" (GARA)1 bars civil actions against the manufacturer of the aircraft or the manufacturer of "any new component, system, or other part of the aircraft" 18 years after delivery to the first purchaser or the date of completion of the replacement or addition. GARA § 2(a). However, GARA provides a new 18-year time limitation period for any new component, system, or other part that replaced or added to the aircraft and allegedly caused the accident, known as the "rolling provision." GARA 2(a)(2). There are also several exceptions to the statute of repose, including where the manufacturer knowingly misrepresented, or concealed, or withheld required information from the FAA that is material and relevant to the operation of the aircraft and is causally related to the accident.

¶ 2 In the wrongful death lawsuits against Twin Commander, Burton alleged that the "Alert Service Bulletin Upper Rudder Structural Inspection" (SB 235) that was issued by Twin Commander in April 2003, was the defective part that caused the crash. Burton also alleged that in obtaining approval of the Service Bulletin, Twin Commander knowingly misrepresented, or concealed, or withheld information concerning the structural integrity of the rudder system to the FAA. Twin Commander filed a motion for summary judgment dismissal arguing that as a matter of law, SB 235 was not a new "part" that triggered the rolling provision under GARA. Twin Commander also argued there was no evidence that it knowingly misrepresented, or concealed, or withheld material information from the Federal Aviation Administration (FAA). The trial court granted the motion for summary judgment and dismissed the wrongful death lawsuits against Twin Commander.

¶ 3 We conclude the court did not err in ruling that SB 235 is not a new component, system, or part of the aircraft under the rolling provision of GARA. However, because the record does not permit a reasoned determination of whether Twin Commander is the "manufacturer of the aircraft" under GARA, and there are material issues of fact about whether Twin Commander knowingly misrepresented, or concealed, or withheld material information from the FAA, we reverse and remand for further proceedings.

FACTS

¶ 4 Gulfstream American Corporation was the original manufacturer of the Model 690A, 690B, and 690C, aircraft. In 1979, the Federal Aviation Administration (FAA) issued a type certificate authorizing Gulfstream to manufacture the Model 690C dual engine turbo prop airplane. By issuing the type certificate, the FAA approved the aircraft design and certified that the design complied with safety standards and met FAA regulations.2

¶ 5 In 1981, Gulfstream sold a Model 690C dual engine turbo prop airplane, serial number 11678, to a Venezuelan purchaser. In 2004, the airplane was owned by an agency of the Mexican government, Procuraduria General de la Republica (PGR).

¶ 6 In 1989, Twin Commander Aircraft, LLC, (Twin Commander) acquired the type certificate from Gulfstream for the Model 690A, 690B, and 690C aircraft. Even though the type certificate authorizes Twin Commander to manufacture the aircraft, there is no dispute that Twin Commander did not continue to manufacture the aircraft.3 As the type certificate holder, Twin Commander is required to provide ongoing support to the aircraft and report information to the FAA that could result in a risk to flight safety.4

¶ 7 In November 2002, the rudder system of a Model 690B failed while in flight and the plane made an emergency landing in Texas. The rear structure of the airplane was damaged and the fiberglass rudder cap and upper rudder rib were missing. In March 2003, another Model 690B aircraft crashed in Georgia after experiencing an in-flight breakup when the rudder cap separated from the rudder.

¶ 8 In response to these two accidents, Twin Commander sought and obtained FAA approval on April 18, 2003 to issue "Alert Service Bulletin No. 235, Upper Rudder Structural Inspection" (SB 235) for Twin Commander Models 685, 690, 690A, 690B, 690C, 690D, 695, 695A and 695B. SB 235 required a one-time close visual inspection of the rudder cap, top rudder rib, and forward rudder spar "[w]ithin 25 hours or 90 days, whichever comes first." The rudder caps for the Model 690A and Model 690B aircraft are a fiberglass composite. The rudder cap for the Model 690C is aluminum.

¶ 9 SB 235 describes the two accidents in 2002 and 2003 that involved the Twin Commander Model 690B as the "Reason for Publication." SB 235 also states that field reports indicated unusual wear on the composite rudder tips.

¶ 10 On May 2, 2004, the Twin Commander Model 690C aircraft owned by PGR crashed near Aqua Caliente, Mexico. All seven PGR employees were killed. According to the report by the Mexican authorities, aviation technicians inspected the aircraft in compliance with SB 235 in July and again in October 2003. The accident investigation by the Mexican government determined that the rudder came loose in flight, causing loss of control of the aircraft. The report concludes that SB 235 was inadequate.

¶ 11 On April 29, 2005, the personal representative for the estates of the seven crash victims, Kenneth C. Burton, filed wrongful death lawsuits against Twin Commander.5 Burton asserted that "The rudder tip and rudder assembly separated from the aircraft causing the pilot . . . to lose control" of the aircraft. Burton claimed that SB 235 was the defective product that caused the accident. Burton alleged causes of action for product liability, negligence, failure to disclose and concealing information to the Federal Aviation Administration (FAA), strict products liability, and failure to warn. In the amended complaint, Burton deleted the failure to warn claim and specifically asserted that ". . . all [of] these causes of action relate solely and only to Service Bulletin 235. Plaintiffs do not now allege any cause of action based on defective design, manufacture, marketing, assembly or otherwise of the aircraft in question nor do Plaintiffs state a claim for failure to warn." The amended complaint also sets forth factual allegations to support the claim that Twin Commander "knowingly misrepresented to the FAA or concealed or withheld from the FAA required information" regarding problems with the rudder system that were causally related to the 2004 crash. In addition, Burton alleged that in obtaining certification from the FAA for the Model 690, the testing for rudder problems was inadequate and the rudder problems were not disclosed.

¶ 12 Twin Commander filed a motion for summary judgment dismissal based on the federal statute of repose under GARA. GARA bars actions against the manufacturer of the aircraft if the accident occurred 18 years after delivery to the first purchaser. GARA § 2(a). GARA also contains a "rolling provision" that starts the statute of repose anew with respect to "any new component, system, subassembly, or other part which replaced . . . or which was added to the aircraft, and which is allegedly to have caused such death, injury or damage" . . . of the accident. GARA § 2(a). The GARA statute of repose does not apply to certain exceptions, including those claims related to the manufacturer's knowingly misrepresentation to the FAA of material information related to the cause of the accident. GARA § 2(b). Twin Commander argued that the rolling provision was not implicated by SB 235 and there was no evidence that it knowingly misrepresented material information to the FAA.

¶ 13 In opposition, Burton argued that as a matter of law the rolling provision applied because SB 235 was a...

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