Transco Leasing Corp. v. U.S., 88-1823

• Decision Date: 26 March 1990
• Docket Number: No. 88-1823,88-1823
• Citation: 896 F.2d 1435
• Parties: TRANSCO LEASING CORPORATION, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants. FIRST WICHITA NATIONAL BANK; First Wichita National Bank in its capacity as representative of the claims of Barbara Ann Williams; Tommy's Well Service, Inc.; and American Eagle Insurance Company, Appellants-Appellees, v. Brenda MANUEL, as Executor of the Estate of Wayne Manuel, Et Al.; Cynthia Manuel Ahart, individually and as Administratrix of the Estate of Steven R. Ahart, Et Al.; United States of America; American Excess Underwriters, Inc.; Cynthia Manuel Ahart, as Succession Representative and Curatrix of the Estate of Steven R. Ahart, Standard Fittings Corporation, and Transco Leasing Corporation, Appellees-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1435

896 F.2d 1435 TRANSCO LEASING CORPORATION, et al., Plaintiffs,
v.
UNITED STATES of America, et al., Defendants.
FIRST WICHITA NATIONAL BANK; First Wichita National Bank in
its capacity as representative of the claims of Barbara Ann
Williams; Tommy's Well Service, Inc.; and American Eagle
Insurance Company, Appellants-Appellees,
v.
Brenda MANUEL, as Executor of the Estate of Wayne Manuel, Et
Al.; Cynthia Manuel Ahart, individually and as
Administratrix of the Estate of Steven R. Ahart, Et Al.;
United States of America; American Excess Underwriters,
Inc.; Cynthia Manuel Ahart, as Succession Representative
and Curatrix of the Estate of Steven R. Ahart, Standard
Fittings Corporation, and Transco Leasing Corporation,
Appellees-Appellants. No. 88-1823. United States Court of Appeals,
Fifth Circuit. March 26, 1990.

Page 1438

Gerald R. Powell (argued), Assoc. Prof., Baylor University, Waco, Tex., D. Bradley Dickinson, Mark A. Hendrix, Vial, Hamilton, Koch & Knox, Dallas, Tex., for First Wichita Nat. Bank.

John D. Copeland, Dallas, Tex., for First Wichita as Representative of Barbara Williams.

P. Michael Jung, Kevin H. Good, Strasburger & Price, Dallas, Tex., for First Wichita as Executor of Jack Williams and Tommy's Well Service.

Christopher G. Gallavan, Johnson, Bromberg & Leeds, Dallas, Tex., for American Eagle.

Guy D. Choate, Mary Noel Golder, Tom Webb, Webb, Stokes, Sparks, Parker, Junell & Choate, San Angelo, Tex., for Brenda Manuel, ind. & Adm., Tina Vidrine and Michael Manuel.

Alex L. Andrus, III, Andrus & Doherty, Opelousas, La., for Brenda Manuel, individually and as Administratrix.

Stephen Santillo, Glen Armentor & Associates, Lafayette, La., for Tina Vidrine & Michael Manuel.

Richard C. Broussard (argued), Domengeaux & Wright, Lafayette, La., James C. Lopez, Opelousas, La., for Cynthia Manuel Ahart, individually and as Administratrix, Etc.

Gary W. Allen, Director, Torts Branch, Civ. Div., Dept. of Justice, Washington, D.C., for U.S.

Clayton E. Devin, Lori J. Bien, McCauley, MacDonald, Love, Devin & Brinker, P.C., Dallas, Tex., for Cynthia Manuel Ahart as Successor Rep. & American Excess Underwriters and Standard Fittings Corp.

Bruce S. Sostek, Thompson & Knight, Dallas, Tex., for Transco Leasing Corp.

Appeals from the United States District Court for the Northern District of Texas.

Before LIVELY ^*, JOLLY, and DUHE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal involves two consolidated Federal Tort Claims Act cases for wrongful death and property damage arising out of a mid-air collision between two airplanes. The district court granted motions for partial summary judgment against the United States, holding that neither of the pilots was contributorily negligent. The district court entered partial summary judgment against the executor of the estate of one of the pilots on the ground that the administrative claim form filed by the executor did not encompass the claims of the surviving wife and daughter. After a lengthy bench trial, the district court held that the government was liable, and assessed damages. We affirm the summary judgments

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on the issue of pilot contributory negligence; reverse the summary judgment dismissing the claims of the surviving wife and daughter of pilot Williams; affirm, in part, and vacate, in part, the damage awards; and remand the case to the district court for further proceedings. I

Two airplanes, a Piper Navaho and a Cessna Skymaster, collided in mid-air near Addison, Texas on October 27, 1982. All persons aboard both aircraft were fatally injured in the collision, and both aircraft were destroyed.

The Piper was owned by Transco Leasing Corporation ("Transco") and was operated for Standard Fittings Corporation ("Standard") by its pilot, Steven Ahart. Another Standard employee, Wayne Manuel, and his five-year-old daughter, Renee, were passengers in the Piper.

The Cessna was owned by Tommy's Well Service and was piloted by Jack Williams, the sole occupant.

The collision occurred as the Piper was descending toward a landing at Dallas Love Field. Immediately prior to the collision the Piper was receiving radar vectors from the Dallas North Controller at the Dallas-Fort Worth Terminal Radar Approach Control ("TRACON"), in preparation for a visual approach and landing at Love Field. At the time of the impact, the Piper was on an assigned heading of 190 degrees (south). The Piper had departed earlier that day from Opelousas, Louisiana on an instrument flight rules ("IFR") flight plan. When flying IFR, the pilot is permitted to fly in clouds when necessary. Navigation and aircraft control are maintained by reference to cockpit instrumentation while the aircraft is in the clouds.

Approximately three minutes prior to the collision, the Cessna departed toward the southeast from Runway 15 at Addison Airport. Williams was flying the Cessna under visual flight rules ("VFR"). Under VFR, a pilot uses his own vision to navigate the aircraft, and is not permitted to fly in clouds. The Federal Aviation Administration ("FAA") Control Tower at Addison Airport was responsible for the sequencing of aircraft arriving and departing Addison under the visual flight rules ("VFR") weather conditions that prevailed that morning. Aircraft operating within five miles of Addison and below 3,000 feet above ground level were required by FAA regulations to maintain communications with Addison Tower.

After departing Addison to the southeast, Williams, the Cessna pilot, made a right turn and headed the Cessna in a northwesterly direction toward his intended destination, Nocona, Texas. At 11:19 a.m., Williams, apparently realizing that his projected course would take him through DFW's Terminal Control Area, requested and received permission from Addison Tower to contact DFW. At 11:19:28 a.m., Williams radioed DFW Departure Control (the same controller who was vectoring the Piper toward Love Field) as follows:

Departure, this is Skymaster 72430 inbound for Nocona, Texas, just departed Addison, climbing to 3500 feet, heading 300, request climbout as soon as possible, sir.

The controller misunderstood the transmission, mistakenly believing that Williams had departed Arlington (instead of Addison), and radioed back, "Okay, if you departed Arlington contact approach on 120.5." At about the time the controller began this mistaken transmission, the mid-air collision occurred, at an altitude of approximately 2250 feet above mean sea level, three miles northwest of Addison Airport.

A Letter of Agreement dated June 1, 1981 between the DFW Terminal Radar Control and Addison Tower established a special descent corridor within the Addison Airport Traffic Area. The agreement provided that when Love Field was landing on Runway 13, as it was on the date of the accident, the portion of the Addison Airport Traffic Area two miles west of a line parallel to Runway 15 at and above 2,000 feet could be used by DFW for descent purposes without prior coordination with Addison Tower.

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Stored radar data indicated that the Dallas North controller's radar vectors to the Piper did not keep it within the Addison descent corridor established by the letter of agreement, and that the collision occurred within the Addison Airport Traffic Area at a point outside the descent corridor. There was no coordination between the Dallas North controller and Addison Tower with respect to the Piper's entry into the Addison Airport Traffic Area. Neither pilot received any traffic advisories from air traffic control personnel.

II

The estate and wrongful death beneficiaries of Piper pilot Ahart sued the Williams estate, Tommy's Well Service, and the United States. The estate of Piper passenger Wayne Manuel and the wrongful death beneficiaries of Wayne and his daughter Renee sued the Williams estate, Tommy's Well Service, Standard, and the United States. First Wichita National Bank ("Bank"), as independent executor of the Williams estate, sued the Ahart estate, Standard, and the United States. The Bank sought to recover damages on behalf of Williams' wrongful death beneficiaries, his widow, Barbara A. Williams, and his daughter, Debra Williams Roan.

Tommy's Well Service sued the Ahart estate, Standard, and the United States, seeking damages for the destruction of the Cessna. Transco sued the Williams estate and the United States, seeking damages for the destruction of the Piper and for ground damages paid by Transco. American Excess Underwriters, Standard's workers' compensation insurer, intervened to recover workers' compensation death benefits paid to the Manuel and Ahart widows.

Numerous cross-claims, counterclaims, and third-party complaints for contribution and indemnity were asserted by the various parties.

The Ahart estate and Standard moved for partial summary judgment against the United States, alleging that there was no evidence of Ahart's negligence. The Williams estate later filed a similar motion, alleging that there was no evidence of Williams' negligence. The United States moved for partial summary judgment as to the wrongful death claim asserted by the Williams estate, alleging that Williams' widow and daughter did not satisfy the jurisdictional notice requirements of the FTCA.

The district court granted all of the motions, holding that neither pilot had any responsibility for the collision and that the Williams estate could not recover damages on behalf of Williams' wife and daughter because of deficiencies in the administrative claim form submitted by the Bank.

The consolidated cases then proceeded to trial. The only issues at trial were whether the government was negligent and the amount of damages sustained by the various claimants. The district court held that the United States was liable for the air traffic controller's negligence in failing to either keep the Piper within the proper descent corridor established by the letter of agreement, or to coordinate the Piper's...