Cockrell v. U.S.
| Decision Date | 03 August 1999 |
| Docket Number | No. 97 CV 0281B(AJB).,No. 97 CV 0350B(AJB).,97 CV 0281B(AJB).,97 CV 0350B(AJB). |
| Citation | 86 F.Supp.2d 994 |
| Parties | Peggy COCKRELL and the Estate of Gary Cockrell, Plaintiffs, v. UNITED STATES of America, Defendant. Newell Netsch, Elizabeth Netsch, and the Estate of Lisa Netsch, Plaintiffs, v. United States of America, Defendant. |
| Court | U.S. District Court — Southern District of California |
Don Alan Ernst, San Luis Obispo, CA, James P. Tessier, Menlo Park, CA, Marguerite I Delbourgo, Costa Mesa, CA, for plaintiff.
U.S. Attorney CV, San Diego, CA, Fernando Campoamor, Washington, DC, for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case arises out of a mid-air collision between two aircraft approaching Ramona Airport, in San Diego County, California, on June 21, 1995. Both aircraft were returning to Ramona after being released from fire suppression activities over the "Butterfield fire."
Gary Cockrell, Lisa Netsch and Michael Smith were killed as a result of the accident. Gary Cockrell and Lisa Netsch, employed by Aero Union Corporation, were the pilot and co-pilot of the DC-4 air tanker aircraft, known as "Tanker 19". Michael Smith, also killed, was a United States Forest Service lead plane pilot of the twin-engine Beech Baron, known as "Lead 5-6".
Plaintiffs Peggy Cockrell and the Estate of Gary Cockrell, and Plaintiffs Newell Netsch, Elizabeth Netsch, and the Estate of Lisa Netsch, filed wrongful death actions under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), against Defendant United States of America, the United States Forest Service and Michael Smith. The cases were filed separately in the United States District Court for the Central District of California. Pursuant to the Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679, the parties stipulated in each lawsuit that Michael Smith was acting within the course and scope of his employment with the USFS at the time of the subject accident. Upon filing the stipulations with the Court, both Michael Smith and the USFS were dismissed as defendants, leaving the United States as the sole defendant in each case.
By stipulation of the parties, the actions were consolidated for purposes of discovery and trial and transferred to the Southern District.
As a result of additional stipulations between the U.S. and Plaintiffs, the only issues remaining for trial in these consolidated actions were: 1) the "special employment" defense and 2) damages. The U.S. admitted liability for causing the deaths of Gary Cockrell and Lisa Netsch, and stipulated that the amount of economic damages suffered by Plaintiff Peggy Cockrell is $1,866,112.00.
Trial of the consolidated actions was bifurcated. The first phase of trial was limited to adjudication of the special employment defense. The bench trial took place over the course of six trial days between December 8 and December 17, 1998. Post-trial closing briefs were submitted by the parties on January 22, 1999.
On April 20, 1999, this Court issued its Memorandum and Decision, deciding the issue in favor of Plaintiffs and against Defendant United States. The Court determined that the U.S. was not the special employer of Plaintiffs' decedents, Gary Cockrell and Lisa Netsch.
The Court's Decision is based on the following findings of fact and conclusions of law. These findings of fact and conclusions of law are based on the evidence and reasonable inferences which the Court draws from that evidence.
1. The Butterfield fire started on June 19, 1995, two days before the accident. Substantial air tanker and other aircraft operations from the Ramona air tanker base in support of this fire had been occurring and could be expected to continue.
2. On the second day of the Butterfield Fire, June 20, 1995, a joint Incident Command System ("ICS") was established, consisting of both California Department of Forestry ("CDF") and United States Forest Service ("USFS") personnel. (RT, IV-205:20 to 206:25.) An ICS is the firespecific management hierarchy controlling the various resources, i.e., personnel and equipment, deployed to combat a large fire. The portion of the ICS controlling the air operations can include both an Air Attack Supervisor and a lead plane. The role of the Air Attack Supervisor is to select the target and inform the lead plane. The lead plane identifies the target for the tanker pilots, identifies any hazards in the vicinity, and may provide additional assistance in an effort to ensure effectiveness and safety.
3. On the morning of June 21, 1995, six air tankers, a CDF Air Attack Supervisor, and a USFS lead plane were operating over the Butterfield fire about 28 miles east of Ramona.
4. The Air Attack Supervisor over the Butterfield fire on the day of the accident was CDF employee Brian Logan. His primary responsibility was the implementation of a plan supplied by the Incident Commanders to accomplish a common fire suppression goal. The USFS lead plane took direction from CDF employee Brian Logan over the Butterfield fire. (RT, IV-221:10-21.)
5. Shortly prior to the accident, the six air tankers were in single orbit at approximately 1,500 feet above ground level, loaded and waiting for instructions. A few minutes before 1100 hours, a USFS lead plane known as Lead 5-5, piloted by Mike Lynn, arrived at the fire. Mr. Lynn arrived to replace Lead 5-6, piloted by USFS employee Mike Smith. After a few minutes of briefing, Lead 5-6 was released to return to Ramona Airport.
6. About three or four minutes after Mike Smith in Lead 5-6 was relieved and presumably was returning to Ramona, Mike Lynn in Lead 5-5 received instructions from CDF Air Attack Supervisor Brian Logan that air tanker operations were to stop and the tankers were to return to base still loaded. Mr. Lynn relayed these instructions to the air tankers. One air tanker was directed to return to Hemet-Ryan Air Attack Base in Hemet, and the other five air tankers, along with Lead 5-5, were directed to return to Ramona.
7. One of the air tankers returning to Ramona was the DC-4 piloted by Gary Cockrell, known as "Tanker 19" or "T-19". His co-pilot was Lisa Netsch. Tanker 19 and lead 5-6, piloted by Mike Smith, collided as both planes neared the airport. Lead plane pilot Mike Smith, air tanker captain Gary Cockrell, and air tanker copilot Lisa Netsch were all fatally injured. The U.S. has admitted liability for causing the accident.
8. In returning to base from the Butterfield fire, the air tankers could be called back to the fire, or diverted to a new fire, by the joint Incident Commanders of the Butterfield fire (CDF and USFS). However, there was no control being exercised by the Incident Commanders, and those within the chain-of-command, including the CDF Air Attack Supervisor and USFS lead plane, as to the manner and method employed by the air tanker pilots in returning to base.
9. USFS lead plane pilot Mike Lynn released the air tankers on instructions from CDF Air Attack Supervisor Brian Logan. Mike Lynn had no authority to dictate, and did not attempt to instruct the tanker pilots, as to speed, altitude, direction, landing pattern, etc., for their return to the Ramona airport.
10. The air tanker pilot alone is responsible for returning to base, and the manner and method that the tanker is flown back to base is controlled by the pilot alone.
11. The air tankers operating over the Butterfield fire on the day of the accident, including Tanker 19, were owned by Aero Union Corporation ("Aero Union"). The Aero Union air tankers were under contract to the USFS for the 1995 fire season.
12. Flying air tanker aircraft is not part of the United States' regular business. Although the USFS in 1995 did operate some of its own waterborne air tankers in 1995, the U.S. has contracted for air tanker services with vendors such as Aero Union for several decades. Richard Denker is the National Contracting Officer for the USFS. Mr. Denker testified that the U.S. has been contracting out for air tanker services for over 30 years.
13. A Contract for Air tanker Services for the 1995 fire season (hereafter "Contract") was awarded to Aero Union on or about November 11, 1994, after an extensive solicitation and bid process. (RT, I-108:2 to 110:13; Ex. X.) Aero Union was one of several vendors selected by the USFS to provide aerial fire suppression services for the 1995 season. The first line of the Contract states that "[i]t is the intent of this contract to provide the Government with Air tanker services as described herein." (Ex. A, p. C-2, § 1.1.1.)
14. The Contract is approximately 150 pages in length and requires Aero Union to provide all of the necessary aircraft, equipment, qualified pilots, mechanics and other support personnel necessary to operate the air tankers on firefighting missions throughout the United States, including Alaska.
15. There is no language in the Contract concerning an alleged "special employment" relationship between the U.S. and the Aero Union air tanker pilots. To the contrary, the Contract draws a distinction between U.S. employees and the employees of air tanker service providers, such as Aero Union. Section I-35 of the Contract (page I-56), entitled "Property and Personal Damage", contains the following section:
(Emphasis added.)
16. The parties to the 1995 Contract did not intend to create a special employment relationship between Aero Union employees and the U.S. Richard Denker, the USFS national Contracting Officer, negotiated and signed the Contract...
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