Hewett v. Raytheon Aircraft Co.
| Decision Date | 11 May 2005 |
| Docket Number | No. A05A0029.,A05A0029. |
| Citation | 273 Ga. App. 242,614 S.E.2d 875 |
| Parties | HEWETT et al. v. RAYTHEON AIRCRAFT COMPANY et al. |
| Court | Georgia Court of Appeals |
E. Alan Armstrong, Law Offices of Alan Armstrong, Atlanta, Floyd Wisner, Nolan Law Group, Chicago, IL, for appellants.
Hugh B. McNatt, McNatt & Greene, Daniel S. Reinhardt, Troutman Sanders, Atlanta, for appellees.
The plaintiffs in the case below — John Edward Harry Hewett, Joan Hewett, and Andrea Nicole Lyons, as administrator of the estate of Brett Hewett (collectively, the "Hewetts") — appeal from the Order entered on May 26, 2004, by the Superior Court of Fulton County dismissing their products liability action on the ground of forum non conveniens. Following entry of that Order, the Georgia General Assembly enacted OCGA § 9-10-31.1 (2005), which sets forth under what circumstances Georgia courts may "decline to adjudicate [cases] under the doctrine of forum non conveniens." OCGA § 9-1-31.1(a). Because we conclude that OCGA § 9-10-31.1 applies in this case, we vacate the May 26, 2004 Order. We remand for the superior court to comply with the terms of the newly enacted statute and to make specific findings of fact and conclusions of law showing the basis for its decision.
This action for wrongful death and survival damages arose from an airplane accident in Queensland, Australia, that occurred on September 4, 2000. The charter flight commenced in Perth, Australia, and crashed into the ground five hours later after flying several hours on autopilot, resulting in the death of all eight occupants, including Brett Hewett. Investigators believed that the cause of the accident was cabin depressurization, but the cause of the depressurization is hotly disputed by the parties.
Prior to and at the time of the accident, the aircraft was owned and operated by an Australian charter operator, which also employed the pilot of the charter flight. All of the passengers were mine workers employed by an Australian company who were planning to fly to Leonora, Australia, for work-related reasons. Hewett, one of the mine workers, was a citizen of New Zealand. Similarly, his administrator and survivors who commenced this action are citizens of New Zealand.
On August 30, 2002, the Hewetts brought this products liability suit against Raytheon Aircraft Company and Professional Aviation Associates, Inc. in the Superior Court of Fulton County. Raytheon is the successor in interest to Beech Aircraft Corporation, which manufactured the plane in the United States. Raytheon is a Kansas corporation that has its principal place of business in Wichita, Kansas, but also conducts business in Georgia. Professional Aviation is a Georgia corporation involved in the sale of new and overhauled airplane parts.
Arguing that Australia would serve as a more appropriate forum for the dispute, Raytheon filed a motion for summary judgment on the ground of forum non conveniens, which Professional Aviation joined.1 After full briefing on the issue, the superior court held a hearing on the motion. After hearing oral argument from the parties, the superior court took the matter under advisement and did not make any oral factual findings on the record. The superior court subsequently issued its Order on May 26, 2004, which stated in its entirety:
This matter comes before the Court on a motion to dismiss for forum non conveniens. Based upon the record in the case, the applicable case law and the argument of counsel, the Court HEREBY GRANTS Defendants' Motion to Dismiss for Forum Non Conveniens.
The Supreme Court of Georgia adopted the doctrine of forum non conveniens in AT & T Corporation et al. v. Sigala et al. v. Perez, et al., 274 Ga. 137, (549 S.E.2d 373) (2001). For this reason and pursuant to all the evidence presented, the applicable case law and the argument of counsel, Defendants' Motion to Dismiss for Forum Non Conveniens is HEREBY GRANTED. The Hewetts timely appealed from the Order.
On February 16, 2005, during the pendency of the Hewetts' appeal, the Governor of the State of Georgia signed into law Georgia Laws Act 1 (Senate Bill 3), which, among other things, revised provisions of the Official Code of Georgia pertaining to liability in medical malpractice tort actions and enacted new provisions regarding civil practice (the "Act"). See 2005 Georgia Laws Act 1 (S.B.3). Significantly, Section 2 of the Act added a new provision to Title 9 of the Official Code of Georgia pertaining to the doctrine of forum non conveniens, OCGA § 9-10-31.1, which provides:
(a) If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action. As to a claim or action that would be more properly heard in a different county of proper venue within this state, the venue shall be transferred to the appropriate county. In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors:
(1) Relative ease of access to sources of proof;
(2) Availability and cost of compulsory process for attendance of unwilling witnesses;
(3) Possibility of viewing of the premises, if viewing would be appropriate to the action (4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff's own right to pursue his or her remedy;
( 5) Administrative difficulties for the forum courts;
(6) Existence of local interests in deciding the case locally; and
(7) The traditional deference given to a plaintiff's choice of forum.
(b) A court may not dismiss a claim under this Code section until the defendant files with the court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, all the defendants waive the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed.
(Emphasis supplied.)
In turn, Section 15 of the Act sets forth the effective dates for the various provisions of the Act:
(a) This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.
(b) Code Sections 51-12-31 and 51-12-33, as amended by this Act, and Code Sections 51-1-29.5, 51-2-5.1, and 51-13-1, as enacted by this Act, shall apply only with respect to causes of action arising on or after the effective date of this Act, and any prior causes of action shall continue to be governed by prior law. It is the intention of the General Assembly that all other provisions of this Act shall apply to causes of action pending on its effective date, unless such application would be unconstitutional.
(Emphasis supplied.) Finally, Section 16 provides that "[a]ll laws and parts of laws in conflict with this Act are repealed."
In light of the enactment of OCGA § 9-10-31.1 after the initial briefing in this appeal had been completed, we ordered supplemental briefing by the parties to address the impact of that provision on the superior court's Order. The Hewetts contend in their supplemental brief that OCGA § 9-10-31.1 applies in this case and mandates reversal. They contend that reversal is required because the trial court did not consider the specific factors set forth in OCGA § 9-10-31.1(a) in rendering its decision, and because the defendants did not file a written stipulation stating that they would waive the statute of limitation defense in all other states of the United States, as required by OCGA § 9-10-31.1(b).
In contrast, the defendants argue that OCGA § 9-10-31.1(a) has no impact on this case because the record reveals that the trial court already considered the factors set forth in OCGA § 9-10-31.1. They further assert that OCGA § 9-10-31.1(b) is not applicable in this case because the subsection does not apply to actions brought by nonresident aliens injured in a foreign country where, as here, the defendants contend that the foreign country, rather than a sister state, is the more appropriate forum.
1. Applicability of OCGA § 9-10-31.1 to this case. We first address whether OCGA § 9-10-31.1 applies in this case. We conclude that it does. This action was pending as of the effective date specified in Section 15(a) of the Act — February 16, 2005 — and remains pending today in this Court. Furthermore, OCGA § 9-10-31.1 is not one of the specific provisions listed in Section 15(b) of the Act as applying "only with respect to causes of action arising on or after the effective date of this Act." Thus, under Section 15(b) of the Act, OCGA § 9-10-31.1 "shall apply to causes of action pending on [the] effective date, unless such application would be unconstitutional." None of the parties have challenged the constitutionality of applying OCGA § 9-10-31.1 in this case. Accordingly, we conclude that OCGA § 9-10-31.1 governs this appeal.
2. OCGA § 9-10-31.1(a). Having concluded that OCGA § 9-10-31.1 applies in this case, we next address the impact of OCGA § 9-10-31.1(a) on the superior court's Order. As set forth above, OCGA § 9-10-31.1(a) lists seven specific factors that a trial court "shall give consideration" in determining whether an action should be dismissed on the ground of forum non conveniens. As such, subsection (a) mandates that a trial court...
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