TRUMP TAJ MAHAL, ASSOC. v. Costruzioni Aeronautiche Giovanni

• Decision Date: 11 April 1991
• Docket Number: Civ. A. No. 90-3245(JFG).
• Citation: 761 F. Supp. 1143
• Parties: TRUMP TAJ MAHAL ASSOCIATES, a Limited Partnership, Trump Castle Associates, Trump Plaza Associates, and Helicopter Air Services, Inc., Plaintiffs, v. COSTRUZIONI AERONAUTICHE GIOVANNI AGUSTA, S.p.A., Agusta S.p.A., Gruppo Agusta, Agusta Aviation Corporation, a/k/a Agusta Aerospace, and Paramount Aviation, Inc., Defendants.
• Court: U.S. District Court — District of New Jersey

761 F. Supp. 1143

TRUMP TAJ MAHAL ASSOCIATES, a Limited Partnership, Trump Castle Associates, Trump Plaza Associates, and Helicopter Air Services, Inc., Plaintiffs, v. COSTRUZIONI AERONAUTICHE GIOVANNI AGUSTA, S.p.A., Agusta S.p.A., Gruppo Agusta, Agusta Aviation Corporation, a/k/a Agusta Aerospace, and Paramount Aviation, Inc., Defendants.

Civ. A. No. 90-3245(JFG).

United States District Court, D. New Jersey.

April 11, 1991.

COPYRIGHT MATERIAL OMITTED

Wolk, Genter & Harrington, by Arthur Alan Wolk, James D. Golkow, Catherine B. Slavin, Haddon Philadelphia, Pa., and McGahn, Friss and Miller, by Patrick T. McGahn, Jr., Atlantic City, N.J., for plaintiffs.

La Brum & Doak, by John L. White, Woodbury, N.J., and Condon & Forsyth, by Rudolph V. Pino, Jr., Patricia A. Fried, New York City, for defendants, Agusta S.p.A., Costruzioni Aeronautiche Giovanni Agusta S.p.A., Gruppo Agusta and Agusta Aerospace Corp.

Schnader, Harrison, Segal & Lewis, by George E. Rahn, Jr., Ralph G. Wellington, Philip G. Kircher, Deborah L. Guerra, J. Denny Shupe, Philadelphia, Pa., for defendant, Paramount Aviation Corp.

OPINION

GERRY, Chief Judge:

This case arises from the notorious helicopter crash on October 10, 1989 in Lacey Township, New Jersey, in which three top executives in Donald Trump's organization were killed. Plaintiffs are the three Trump owned Atlantic City casinos (collectively "Trump") and Helicopter Air Services, Inc., a Delaware corporation with its principal place of business in Linden, New Jersey. Defendants are Costruzioni Aeronautiche Giovanni Agusta S.p.A. ("CAGA"), Agusta S.p.A., and Gruppo Agusta (collectively "Agusta"), the Italian corporate entities that manufactured the Agusta A109 helicopter that crashed in the above accident; their United States subsidiary, Agusta Aviation Corporation ("AAC"); and Paramount Aviation, Inc. ("Paramount"), which was "in the business of operating, maintaining and managing the helicopter." Complaint (Compl.) ¶ 9. (Paramount also employed the pilot of the helicopter, who also died in the crash.)

Plaintiffs filed in New Jersey state court. Defendants removed here. Before the court are plaintiffs' motion to remand and defendants' motion to dismiss. Paramount is named in three of the eight counts and joins in Agusta's motion to dismiss those counts.

The Trump plaintiffs seek recovery on two grounds. First, plaintiffs seek reimbursement of benefits they paid to decedents' beneficiaries under New Jersey's worker's compensation law. Second, plaintiffs invoke eight theories of liability to recover damages flowing from the death of their three "key" employees. Compl. ¶ 32-33. Although framed in eight counts, these damages theories are in essence different ways of articulating a wrongful death claim.

Helicopter Air Services seeks to recover $300,000 in damages based on the diminution in value of an Agusta A109 helicopter it owns, a cause of action arising solely as "a further result of the conduct of the Defendants and the public mistrust over the safety of continued operation of the Agusta 109 helicopters" since the October 10, 1989 crash. Compl. ¶ 38. Defendants argue that such a cause of action is "frivolous" and should be "summarily dismissed." We agree. Helicopter Air Services has not opposed the motion, which will be granted.

The motion to remand turns on two issues. First, defendant Agusta S.p.A. removed on the basis that it is an Italian corporation, owned by the Italian government, and so qualifies for removal as a "foreign state." Plaintiffs challenge Agusta's status as a "foreign state." Second, plaintiffs argue that the presence of a non-diverse New Jersey defendant, Paramount Aviation, makes removal improper. Defendants argue that removal is proper at the sole discretion of the "foreign state," despite the presence of a non-diverse defendant. We find that defendant Agusta S.p.A. was entitled to remove this action regardless of the presence of a non-diverse defendant, and will therefore deny the motion to remand.

The key question regarding plaintiffs' claim for reimbursement of worker's compensation benefits is whether defendants received statutory notice from plaintiffs. Because we find that plaintiffs did not provide the expressly provided statutory notice, we will grant summary judgment for defendants on this claim.

The threshold question raised by defendants on their motion to dismiss is whether a corporation can ever recover damages flowing from the death of its employees. Defendants argue that courts have unanimously held that a corporation may not recover for losses arising from the death (as opposed to injury) of its employees; and that no matter what theories of liability plaintiffs invoke, at bottom this is a wrongful death action, and corporations are not a statutorily approved beneficiary of such damages. No matter how properly plaintiffs may have stated a claim for strict liability or negligence, for example, the basis of their claim is the damages they have suffered from the death of their three employees, and defendants assert that that is an impermissible basis for recovery by a corporation. We agree and will dismiss the complaint.¹

Defendants also attack plaintiffs' theories of liability in Count VI, "wilful destruction and spoilation of evidence, and breach of agreement to preserve trial evidence and fraud"; and Count VIII, "willful, intentional interference with contractual employment relations." These counts name only the Agusta defendants. We find that New Jersey does not recognize the cause of action in Count VI, and plaintiffs fail to state a claim against these defendants under Count VIII. These counts would therefore be dismissed even if plaintiffs were entitled to seek damages arising from the death of their employees.

I. FACTS

The following facts are drawn from the complaint and are accepted as true for purposes of the motion to dismiss:

13. Sometime prior to 1984, the Defendants Agusta designed a seven place twin turbine helicopter known as the Agusta 109 ("109").

14. The 109 was designed with four metal rotor blades consisting of a front aluminum spar and aluminum honeycomb filler with an aluminum outer skin.

15. The military variant of the 109 was designated the Agusta "109K," and sold to international military establishments, except in the United States, and were equipped with the same main rotor blades....

16. The main rotor blades were designed, built and sold with a represented service life of 3,000 hours between replacement.

17. Shortly before the introduction of the 109 and 109K, and long before either aircraft achieved 3,000 hours on the main rotor blades, the Agusta Defendants received reports of design and manufacturing defects that resulted in cracks developing in the main rotor blades.

18. The cracks, some of which were usually invisible to the unaided eye, were generally accompanied by vibrations of varying magnitude, which could not be adjusted out of the helicopter through normal maintenance techniques.

19. At all times, the Agusta Defendants held themselves out as experts in the design, construction and maintenance of helicopters and the ultimate authority on the 109 and 109K, upon which expertise the Plaintiffs, the United States Government, and the Italian equivalent of the Federal Aviation Administration relied.

20. Long prior to 1989, the Defendant Paramount acquired the rights to operate the 109 helicopter in charter service under the Paramount certificate of authority.

21. Paramount then arranged and performed management and maintenance of the 109 helicopter, operation of the helicopter under Part 135 of the Federal Aviation Regulations in helicopter taxi service, and was responsible for the scheduling, inspections, maintenance and overhaul of the helicopter and its components.

22. From the very first day the helicopter was delivered to a retail customer and regularly prior to October 10, 1989, the helicopter suffered vibrations identified as emanating from the main rotor blades, especially during translational lift — that period when the flight of the helicopter changes from forward flight to hover and vice versa.

23. Consultations and maintenance performed by and with the Agusta Defendants, by predecessor lessees, Paramount and the Plaintiffs about this vibration resulted in no improvement in the vibration, but rather assurances were given in Philadelphia, Pennsylvania, Morristown, New Jersey and elsewhere, that the vibration was within normal limits and the 109 helicopter was safe for normal operation.

24. Notwithstanding the assurances given by the Agusta Defendants to Paramount, the Plaintiffs, and predecessor lessees, Agusta and Paramount knew that other Agusta 109 and military and 109K helicopters with similar vibrations had suffered catastrophic or near catastrophic rotor blade failures.

25. Notwithstanding the assurance afforded, the Agusta Defendants and Paramount knew that the very sister ship to the 109 helicopter that crashed and killed plaintiffs' employees had suffered a crack in a main rotor blade after similar reports of vibration only one year before October 10, 1989.

26. Notwithstanding these assurances ..., the Agusta Defendants and Paramount knew that the inevitable result of the vibration would be rotor blade failure and the certain loss of life and serious personal injury resulting therefrom.

27. In August 1989 and again in September of 1989, the helicopter that crashed was brought to the Agusta Defendants for further examination of the rotor system vibration, and again the Agusta Defendants assured Paramount and the flight crew that the vibration was within normal limits.

28. Aboard the helicopter at the time of the crash were three passengers, Stephen Hyde, Mark Etess and Jonathan Benanav, all of whom were killed.

29. At the time of his death, Stephen Hyde was employed by Plaintiffs Taj Mahal, Castle and Plaza as Chief Executive Officer, and in that capacity had overall

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