Retzler v. Pratt and Whitney Co., 1-98-2958.

• Decision Date: 23 December 1999
• Docket Number: No. 1-98-2958.,1-98-2958.
• Citation: 723 N.E.2d 345,309 Ill. App.3d 906,243 Ill.Dec. 313
• Parties: Karen RETZLER, Plaintiff-Appellant, v. The PRATT AND WHITNEY COMPANY, Pratt and Whitney Canada, Incorporated, United Technologies Corporation, and AMR Leasing Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

723 N.E.2d 345

309 Ill. App.3d 906

243 Ill.Dec. 313

Karen RETZLER, Plaintiff-Appellant, v. The PRATT AND WHITNEY COMPANY, Pratt and Whitney Canada, Incorporated, United Technologies Corporation, and AMR Leasing Corporation, Defendants-Appellees.

No. 1-98-2958.

Appellate Court of Illinois, First District, Fifth Division.

December 23, 1999.

Motherway, Glenn & Napleton, P.C., Chicago (Robert J. Napleton, of counsel), for Appellant.

McCullough, Campbell & Lane, Chicago (Michael M. Lane and Rachel M. Krug, of counsel); Wildman, Harrold, Allen & Dixon, Chicago (Robert E. Haley and Jeanne E. Walker, of counsel), for Appellees.

Justice QUINN delivered the opinion of the court:

Plaintiff, Karen Retzler, appeals from three orders of the circuit court disposing of her lawsuit. First, the circuit court dismissed plaintiff's second amended complaint as it related to defendant Pratt & Whitney Canada, Inc. (P & W Canada), with prejudice, because the complaint was barred by the two-year statute of limitations for personal injury actions. Second, the circuit court granted defendant United Technologies Corporation's (UTC) motion for summary judgment without recorded comment. Finally, summary judgment was granted to defendant AMR Leasing Corporation (AMR) on the grounds that a federal statute, 49 U.S.C. § 44112 (1994), impliedly preempted state claims for personal injury against lessors of aircraft. Thus, the case was disposed of in its entirety.¹ For the following reasons, the order of the circuit court granting summary judgment to defendant AMR is reversed. However, the orders of the circuit court granting summary judgment to defendant UTC and granting defendant P & W Canada's motion to dismiss are affirmed.

On September 14, 1991, plaintiff was a flight attendant on American Eagle Flight 4048, an ATR 42-300 aircraft en route from Traverse City, Michigan, to Chicago, Illinois. The No. 4 bearing within the left PW120 engine failed after lift-off from Traverse City. The aircraft cabin and cockpit filled with black smoke. The pilot suddenly reduced cabin pressure and began an emergency descent and landing near Muskegon, Michigan. As a result, plaintiff's body came into violent contact with the galley of the ATR 42-300 aircraft.

Defendant P & W Canada is the manufacturer of the PW120 aircraft engine. P & W Canada is a wholly owned subsidiary of defendant UTC. Defendant AMR leased the ATR 42-300 aircraft to Simmons Airlines, Inc. (Simmons), the owner of plaintiff's employer, American Eagle.

On August 22, 1991, a month before the incident at issue, a series of financial transactions occurred with regard to the aircraft at issue. Avions De Transport Regional G.I.E. (ATR) sold the aircraft to AMR. AMR immediately sold the aircraft to Mathilde Bail G.I.E. (MB), a French company. MB then leased the aircraft back to AMR. AMR subleased the aircraft to Simmons by oral agreement. The lease was not put into writing until September 28, 1993, two weeks after the present action was filed.

On September 14, 1993, plaintiff filed a seven-count complaint against the Pratt & Whitney Company, Inc. (P & W Company), UTC, AMR, Aerospatiale, Inc., and Aerospatiale, a French corporation. On September 29, 1993, summons were served on UTC and P & W Company through Vanessa Kerrigan, an attorney and employee of Pratt & Whitney (P & W), an unincorporated division of UTC. The summons were served at the address for P & W, not P & W Company. P & W Company was a company specializing in making tools. P & W Company declared bankruptcy in 1991, was never a subsidiary of UTC, and never had offices at that address. Further, Kerrigan was not an employee of P & W Company.

In her complaint, plaintiff alleged that P & W Company was the manufacturer of the PW120 engine and was a wholly owned subsidiary of UTC. In its answer, UTC asserted as an affirmative defense that P & W Canada was the manufacturer of the engine and that P & W Company was not a subsidiary of UTC. Plaintiff replied by denying the affirmative defense. Plaintiff further alleged that AMR was the owner of the aircraft in question. The circuit court dismissed without prejudice plaintiff's initial complaint as against AMR because it failed to sufficiently allege that AMR owned the aircraft or had a duty to maintain, inspect, and test the aircraft or engine.

On July 29, 1994, plaintiff filed the first amended complaint. Aerospatiale, Inc., and Aerospatiale, a French corporation, were voluntarily dismissed from the action. In addition, plaintiff alleged that AMR had a duty to maintain, inspect, and test the aircraft and engine in question. Plaintiff claimed that this duty arose because AMR was a commercial airline engaged in the business of carrying passengers and owned or leased the aircraft at the time of the incident. Plaintiff also alleged that the duty was breached by AMR's negligence in maintaining, testing and inspecting the aircraft, which led to the emergency landing situation.

The allegations against P & W Company and UTC remained the same in the first amended complaint as they were in the original complaint. Again, UTC denied that it was the manufacturer of the PW120 engine and denied that it was the parent of P & W Company. UTC also certified for the second time that P & W Canada was the manufacturer of the engine. In addition, UTC answered plaintiff's interrogatories with the name and address of the manufacturer of the engine, P & W Canada.

On February 7, 1996, nearly 2½ years after the statute of limitations for her claim had expired, plaintiff filed a second amended complaint. In this complaint, plaintiff added P & W Canada as a defendant. Plaintiff alleged that P & W Company and P & W Canada were both wholly owned subsidiaries of UTC and were engaged in the business of designing, manufacturing, distributing and selling aircraft engines, including the PW120 engine. Plaintiff failed to distinguish between P & W Company and P & W Canada in the complaint and referred to them collectively as "Pratt & Whitney." Plaintiff claimed that P & W Company, P & W Canada, and UTC were negligent and strictly liable for the improper design, manufacture, distribution and sale of the faulty PW120 engine that necessitated the emergency landing of the ATR 42-300. The allegations against AMR were identical to the ones raised in the first amended complaint.

UTC answered the second amended complaint on May 6, 1996, admitting that P & W Canada was its wholly owned subsidiary, but denying that P & W Company was its wholly owned subsidiary. UTC also denied that it was engaged, together with P & W Canada and P & W Company, in the business of manufacturing aircraft engines, including the PW120.

On June 6, 1996, P & W Canada filed a motion to dismiss on the grounds that the claims against it were barred by the Illinois two-year statute of limitations for personal injury actions. Plaintiff countered that this was a case of misnomer under section 2-401 of the Code of Civil Procedure or, in the alternative, under section 2-616(d) of the Code of Civil Procedure, the complaint should "relate back" to the date of the original complaint, which named P & W Company rather than P & W Canada. 735 ILCS 5/2-401, 2-616(d) (West 1996). On October 2, 1996, P & W Canada's motion to dismiss was granted with prejudice. The circuit court found that there was "not sufficient evidence for relation back under [section] 2-616(d) or that this defendant was named by misnomer under [section 2-401]." On December 20, 1996, plaintiff voluntarily dismissed P & W Company from the litigation.

On December 9, 1996, UTC filed a motion for summary judgment on the grounds that UTC (1) was not the manufacturer, designer, seller or distributer of the PW120 engine, and (2) was not responsible for the products of its subsidiary on a piercing-the-corporate-veil theory because UTC and P & W Canada are separate corporations. Plaintiff responded that UTC should be held responsible for the tortious acts of its wholly owned subsidiary, P & W Canada. Defendant UTC's motion for summary judgment was granted on May 5, 1997.

On March 13, 1998, AMR filed a motion for summary judgment on two grounds: (1) implied preemption of plaintiff's negligence claim under the Federal Aviation Act (FAA), (49 U.S.C. § 44112 (1994)); and (2) plaintiff failed to establish a duty owed to her by AMR to establish that AMR was negligent. On June 19, 1998, the circuit court concluded that AMR had established that, as a matter of law, AMR was entitled to summary judgment based on implied preemption. Although the circuit court judge based his decision on preemption, he commented that he would have been willing to sustain the motion for summary judgment on common law negligence grounds because he felt the aircraft had been adequately inspected.

Plaintiff filed a timely notice of appeal from the summary judgment and dismissal orders entered in favor of the defendants on July 15, 1998.

First, plaintiff claims that the trial court erred in granting defendant AMR's motion for summary judgment because genuine issues of material fact were present and AMR was not entitled to summary judgment as a matter of law.

In all cases involving summary judgment, we review the evidence in the record de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113, 208 Ill.Dec. 662, 649 N.E.2d 1323 (1995)

. The court must consider the affidavits, depositions, admissions, exhibits and pleadings on file and must construe them strictly against the movant and liberally in favor of the nonmoving party. Espinoza, 165 Ill.2d at 113,

208 Ill.Dec. 662,

649 N.E.2d 1323. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party's right to judgment is clear and free from doubt. Espinoza, 165 Ill.2d at 113,

208 Ill.Dec. 662,

649 N.E.2d 1323. Although summary judgment is encouraged to aid the expeditious disposition of a lawsuit, it is a drastic means of...