Kalitta Air LLC v. United Air Lines Inc
| Decision Date | 03 January 2011 |
| Docket Number | Case No. 07-14454 |
| Parties | KALITTA AIR, LLC, Plaintiff, v. UNITED AIR LINES, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable R. Steven Whalen
Before the Court is Defendant United Air Lines, Inc.'s Motion for Summary Judgment [Docket #88], filed May 14, 2010. For the reasons set forth below, the motion is DENIED.
Plaintiff Kalitta Air, L.L.C ("Kalitta") and "certain interested underwriter and companies, as subrogree of Kalitta Air, L.L.C." filed suit on October 19, 2007 against United Air Lines, Inc. ("United"), alleging negligence, gross negligence, negligent misrepresentation, and breach of implied warranty. Docket #1. The allegations pertain to an October 20, 2004 flight over Lake Michigan during which an engine separated from one of Kalitta's aircraft, resulting in the total loss of the engine and damage to the aircraft. Amended Complaint at ¶ 22, Docket #12.
Plaintiffs make the following allegations. In September, 1996, Defendant United, then under contract to service repairs for Polar Air Cargo Worldwide, Inc. ("Polar"), performed repairs to a Pratt & Whitney JT9D-7A engine ("engine 662570"), which included repairs to a high pressure turbine module, serial number C009006 (module). Id. at ¶ 9. Defendantprepared a "Disassembly Condition Report" stating that it had diagnosed and/or repaired the following problems: 1) a cracked outer case; 2) worn "Stage 2 duet segments"; 3) worn lungs on the Stage 2 shroud; and 4) "overtemp analysis of Stage 1 and 2 blades, " indicating that they should be discarded. Id. at ¶10. After making repairs, Defendant issued "a maintenance release and Form 337, " certifying that the repairs had been performed properly. Id. at ¶12. Defendant approved the engine and module for return to service. Id. The last repairs to the module were made by Defendant on September 5, 1996. Id. at ¶15.
On August 19, 1998, engine 662570 was removed from service by Polar and placed in storage by the owner of the engine, General Electric Commercial Aviation Services. Id. at ¶16. The engine was not operated between August, 1998 and the date Kalitta purchased the engine in August, 2003. Id. at ¶17. In August, 2004, Kalitta removed the module from engine 662570, and the following month installed the module in another engine ("engine 662253"). Engine 662253, containing the original module, was installed on a Kalitta Air Boeing 747-132 (Aircraft N709CK). Id. at ¶21. On October 20, 2004, engine no. 662253, becoming separated from the craft after take-off from O'Hare International Airport in Chicago, plunged into Lake Michigan. Id. at ¶22.
In June, 2005, portions of engine 662253 were recovered from Lake Michigan. Id. at ¶23. An investigation by the National Transportation Safety Board ("NTSB") found that the module's "2nd stage turbine disk was missing a 180 degree arc of the rim and blade posts." Id. at ¶25. The NTSB also found that the engine's structure had been compromised by "the uncontained liberation of the 2nd stage turbine disk rim followed by the extremeimbalance of the missing rim structuring and the torque loads developed by the clashing of the HPT blades and vanes." Id. at ¶27. On August 3, 2007, the FAA issued a bulletin attributing the cause of the HPT 2nd disk rim failure to the incorrect installation of the HPT 2nd stage vane assembly. Id. at ¶28. On August 29, 2007, Pratt & Whitney issued an Alert Service Bulletin, attributing the misfunction to 1) improper servicing of the 2nd stage HPT vane retaining bolts; 2) improper application of the lock wire on the 2nd stage HPT vane retaining bolts; and 3) the use of used, rather than new, 2nd stage HPT vane retaining bolts. Id. at ¶29. Plaintiffs, alleging negligence, gross negligence, negligent misrepresentation, and breach of implied warranty, request damages for the loss of engine 662253 as well loss of use and incidental and consequential damages. Id. at pg. 12.
On May 1, 2008, the Honorable John Feikens dismissed the breach of warranty claim, but otherwise denied Defendant's motion for dismissal under Fed. R. Civ. P. 12(b)(6). Docket #84 at pg. 4.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). To prevail on a motion for summary judgment, the non-moving party must show sufficient evidence to create a genuine issue of material fact. Klepper v. First American Bank, 916 F.2d 337, 341-42 (6th Cir. 1990). Drawing all reasonable inferences in favor of the non-moving party, the Court must determine "whetherthe evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celetox Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, " there is no genuine issue of material fact, and summary judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000).
Defendant, while not conceding that the 1996 repairs to the module were negligent, argues primarily that it had no duty to parties other than Polar. The Court therefore limits its discussion to the issue of whether Defendant's allegedly substandard repair of the unit and its 337 certification created a duty to subsequent purchaser Kalitta.
Defendant argues that while it had a contractual duty to Polar to perform non-negligent repairs, it did not have any "separate and distinct" duty to non-parties. Defendant's Brief at 2 (citing Fultz v. Union-Commerce Assoc., 470 Mich. 460, 465, 683 N.W.2d 587, 591(2004)). Defendant argues further that its issuance of Form 337 (indicating that the module was serviceable) did not create a duty of care to Kalitta. Id. at 16. Apparently acknowledging that issuing Form 337 would create a duty to the general public, Defendant contends that Kalitta is outside "of the class that federal air safety legislation was enacted to protect." Id. at 16. Defendant, also asserting that Kalitta performed only a visual inspection of the module, contends that Kalitta shirked its own duty to ensure that the unit was airworthy. Id. at 15 (citing 14 C.F.R. § 91.403(a)).
Defendant's argument that its contract with Polar foreclosed the possibility that it owed a duty of care to other entities or individuals damaged by its negligence is unavailing. "If the actor's negligent performance of his undertaking results in increasing the risk of harm to a third person, the fact that he is acting under a contract or a gratuitous agreement with another will not prevent his liability to the third person." Restatement of Torts (2d) § 324A, comment a.
Fultz, cited for the proposition that Defendant's duty was limited to the contractual terms with Polar, is distinguishable from this case. Fultz involved a defendant snow removal company whose failure to perform its duties under a contract with the property owner resulted in an injury to a third party. The Court found no liability for the defendant because the injured plaintiff "allege[d] no duty owed to her independent of the contract." 470 Mich. at 468, 683 N.W.2d at 592. Fultz also found that "defendant CML's nonfeasance [as opposed to misfeasance] of its contractual obligation" was insufficient to establish "the threshold requirement of establishing a duty owed to plaintiff." Id. Defendant, attempting to align the facts of this case to Fultz, suggests that its breach of the contract with Polar amounted nonfeasance rather than misfeasance. However, in contrast to Fultz, the repairs in question could be viewed as both nonfeasance and active misfeasance, given August, 2007, reports by both the FAA and Pratt & Whitney which touch on both the use of improper parts and faulty installation.
The present set of facts is similar to another slip and fall case in which liability was imposed for injuries to an individual outside the contractual relationship. Osman v. Summer Green Lawn Care, Inc., 209 Mich.App. 703, 532 N.W.2d 186 (1995), overruled in part on other grounds Smith v. Globe Life Ins. Co., 460 Mich. 446, 455-456 n. 2, 597 N.W.2d 28 (1999). In fact, Fultz, noting that Osman was distinguishable, found as follows:
470 Mich. at 468-469, 683 N.W.2d at 593 (citing Osman, supra at 704, 532 N.W.2d 186)(punctuation omitted)). Unlike the snow removal defendant in Fultz, present Defendant did not refrain from undertaking the module repairs (nonfeasance), but instead, allegedly performed them negligently, if not in reckless disregard for the safety of others (misfeasance). See Plaintiffs' Exhibit 2 at 5, 8-13.
Defendant cites the Michigan...
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