Insurance Co. of State of Pa. v. United States

• Decision Date: 11 April 1984
• Docket Number: Civ. A. No. J79-0583(R),J79-0594(R).
• Parties: INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, Plaintiff, v. UNITED STATES of America, Defendant. Gary Norman RYAN, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

590 F. Supp. 435

INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, Plaintiff, v. UNITED STATES of America, Defendant.

Gary Norman RYAN, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. Nos. J79-0583(R), J79-0594(R).

United States District Court, S.D. Mississippi, Jackson Division.

April 11, 1984.

Charles R. Davis, Jackson, Miss., for plaintiffs.

George L. Phillips, U.S. Atty., Jackson, Miss., Barbara J. Ballin, Torts Branch, Civ. Div., Dept. of Justice, Washington, D.C., for defendants.

OPINION

DAN M. RUSSELL, District Judge.

Plaintiffs bring this action against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) for damages occasioned by the crash of a Cessna 402A aircraft. The issues were submitted to the Court in a non-jury trial; after a hearing on the merits, the Court now makes its Findings of Fact and Conclusions of Law in accordance with Fed.R.Civ.P. 52.

FINDINGS OF FACT

1. These actions arise from the crash of a Cessna 402A aircraft, registration number N 4559Q at approximately 10:24 p.m. Central Daylight Time in Madisonville, Kentucky, on October 27, 1977.

2. At the time of the crash, the aircraft was piloted by the plaintiff Gary Norman Ryan (Ryan) who was on an air transport flight from Jackson, Mississippi, en route to Detroit, Michigan.

3. This aircraft was insured by the Insurance Company of the State of Pennsylvania. The plaintiff Insurance Company of the State of Pennsylvania seeks to recover the amount it paid under an insurance policy to Miller Air Transporters, Inc., Ryan's employer, for the damage sustained to the aircraft in the crash.

4. As a result of the aforementioned crash, Ryan filed a claim for money damages with the Federal Aviation Administration (FAA) in the amount of $291,725.15. The Insurance Company of the State of Pennsylvania subsequently filed a claim for money damages with the FAA in the amount of $69,711.50. Both claims were denied in writing.

5. On October 27, 1977, Ryan, employed by Miller Air Transporters as a commercial pilot, was to carry cargo for his employer with his intended route of flight being to depart from Jackson, Mississippi, to make a stop in Tupelo, Mississippi, to deliver some freight, then to make a stop in Evansville, Indiana, to refuel, and to resume flight to his final destination of Detroit, Michigan.

6. Approximately one hour before his flight was to begin, Ryan went to the Flight Service Station (FSS) at Thompson Field in Jackson where he obtained a weather briefing. As part of this briefing, Ryan was told that the present conditions at Evansville were clear skies and four miles visibility. At the time of this briefing the forecasted weather in Evansville at 9:00 p.m., Ryan's expected arrival time, called for visibility of three miles and haze and the ceiling to be 1500 feet with scattered clouds. This forecast was good until two hours after Ryan's estimated time of arrival, 11:00 p.m. However, beyond the two hour period of arrival, conditions called for a partial obscuration and two miles visibility and fog with a chance of one mile visibility and fog.

Based upon the 11:00 p.m. forecast, Ryan knew there was a chance of fog forming at the Evansville airport and decided to file an IFR¹ flight plan.

7. Ryan departed Jackson en route to Detroit via Tupelo and Evansville at 5:59 p.m. He flew from Jackson to Tupelo under VFR² conditions.

8. At 6:18 p.m. while in the air enroute to Tupelo, Ryan filed an IFR flight plan for the portion of his flight from Tupelo to Evansville. At the time Ryan filed his flight plan he was required to check the weather; however, he admitted that he made no such weather check.

9. Ryan reached Tupelo at 7:05 p.m. and departed at 7:20 p.m. At approximately 7:26 p.m., Ryan contacted the Memphis Air Route Traffic Control Center³ (Memphis Center) and activated his IFR flight plan.

10. At 8:25 p.m. the Memphis Center informed Ryan that weather conditions at the Evansville airport were down to one-eighth of a mile visibility and that a DC-9 had just missed an approach due to ground fog and haze. Conditions were not expected to improve until the following day.

One-eighth mile visibility means that on the ground a person could see one-eighth of a mile in front of himself. The fact that a DC-9 missed an approach means that the DC-9 was unable to land.

11. A certain visibility minimum is required for a pilot to land at any airport which depends upon the type of approach the aircraft plans to "shoot."

Ryan admitted that the lowest permissible visibility for any landing at Evansville would be one-half mile visibility which is the minimum visibility required to shoot an instrument landing system (ILS)⁴ approach.

12. Ryan as a commercial pilot was governed in the operation of his aircraft by the Federal Aviation Regulations, Part 91 and Part 135. These regulations prohibited him from beginning an approach into Evansville airport with conditions as they were.

13. At approximately 8:27 p.m., Ryan asked the Memphis Center air traffic controller with whom he was speaking the weather conditions at Owensboro, Kentucky. The reply was that the Owensboro weather was "wax off", the worst visibility a pilot can encounter. Owensboro is approximately 70 miles from Evansville.

14. Ryan then requested a frequency change⁵ to contact the FSS at Paducah, Kentucky, for an updated weather briefing. This updated information indicated to Ryan that the fog conditions were local conditions limited to Owensboro and Evansville.

15. Ryan decided to continue to Evansville because conditions to the north were clear as far as he could see, no fog was in sight and he could see airports to the north of his position. Moreover, Ryan was accustomed to flying in areas of patchy ground fog along the Mississippi River, and the information he had received from Paducah FSS indicated that fog conditions were limited to Evansville and Owensboro.

16. Ryan then resumed communications with the Memphis Center. At 8:34:52 p.m. Memphis Center informed Ryan that visibility at Evansville was still one-eighth of a mile. At 8:38 p.m. the Memphis Center advised Ryan that visibility was down to one-sixteenth of a mile.

17. As Ryan neared the Evansville airport, Memphis Center transferred him to the direct control of Evansville Approach Control. At 8:40 p.m. Ryan was informed that visibility at Evansville was one-sixteenth of a mile and fog. At 8:42 p.m. Ryan was informed that several aircraft had executed missed approaches at Evansville.

18. At 8:47 p.m. Ryan got permission to make a frequency change to obtain updated weather information from the Terre Haute FSS. Ryan spoke with James Freeman, deputy chief of the FSS. Mr. Freeman failed to give Ryan an amended AIRMET Alpha One.⁶ This AIRMET had been disseminated to flight service stations at 8:35 p.m. and warned of deteriorating weather conditions in the area where Ryan was heading. The AIRMET contained weather data that would have alerted Ryan that reported conditions at Owensboro and Evansville were not isolated and that such conditions would not be improving as stated in AIRMET Alpha One.

19. At 8:49 p.m., while still flying in clear weather conditions, Ryan determined to proceed to Evansville and view the weather conditions there. Ryan's decision was based on several factors: he had observed several clear airports during the preceding twenty minutes; at Henderson, Kentucky, twelve miles south of Evansville, Ryan observed clear conditions; and Ryan thought that any ground fog which he encountered would be limited to the Evansville area.

20. At 9:02 p.m. Evansville Approach Control cleared Ryan to land at the Evansville Airport. Ryan was forced to execute a missed approach.⁷

21. At approximately 9:10 p.m. Ryan announced that he had missed the approach and asked to be "vectored⁸ around for another approach." At 9:18 p.m. Ryan was cleared for a second approach and at 9:22 p.m. Ryan informed Evansville approach control that he had executed a second missed approach due to fog.

At the time Ryan executed his second missed approach, he had less than one hour of fuel in one of his tanks and one hour and a few minutes in the other.⁹ Air traffic control was given no indication that he was low on fuel.

22. Ryan was instructed to proceed directly to the Evansville VOR¹⁰ which took approximately three minutes. At the VOR, Ryan asked for vectors to the Henderson airport, 8.2 nautical miles south of the Evansville VOR. He requested permission to make a contact approach¹¹ to Henderson and to call the Henderson unicom operator.

Three minutes after receiving clearance for contact approach, Ryan informed Evansville Approach Control that he had forty minutes of fuel remaining.

23. Ryan contacted the unicom operator at Henderson, Mrs. Jo Davis, at 9:30 p.m. informing her that he had less than forty minutes of fuel remaining on board. Ryan was told that visibility at the Henderson Airport was zero-zero.

24. At 9:32 p.m. Ryan re-established contact with Approach Control and informed Approach Control of his fuel situation — approximately forty minutes of fuel remaining on board and requested a frequency change to get more weather information from the Terre Haute FSS. Ryan was instructed to proceed directly to the Evansville VOR and hold on a 360 radial.

25. At 9:34 p.m. Ryan made contact with the Terre Haute FSS and spoke with James Freeman, deputy chief of the FSS. Ryan testified that he informed Freeman of his fuel situation, told him of his need to find an airport at which to land, and advised Freeman of his location. Freeman gave Ryan a weather report encompassing a large area and instructed him to fly to Bowling Green, Kentucky, where visibility was seven miles. Freeman further instructed Ryan that Bowling Green was between eighty and ninety nautical miles away.

Freeman testified that Ryan told him that he had fifty minutes of fuel remaining on board whereas Ryan...