U.S. Aircraft Ins. Grp. v. Global Tower, LLC

• Decision Date: 20 May 2020
• Docket Number: 19-844
• Citation: U.S. Aircraft Ins. Grp. v. Global Tower, LLC, 298 So.3d 214 (La. App. 2020)
• Parties: UNITED STATES AIRCRAFT INSURANCE GROUP v. GLOBAL TOWER, LLC d/b/a Global Tower Partners, et al
• Court: Court of Appeal of Louisiana — District of US

298 So.3d 214

UNITED STATES AIRCRAFT INSURANCE GROUP

v.GLOBAL TOWER, LLC d/b/a Global Tower Partners, et al

19-844

Court of Appeal of Louisiana, Third Circuit.

May 20, 2020

Isaac H. Ryan, Deutsch Kerrigan L.L.P., 755 Magazine Street, New Orleans, LA 70130, (504) 593-0792, Attorney for Appellants: GTP Infrastructure I, LLC and CNA Insurance Company

Kendall J. Krielow, Block Law Firm, APLC, P.O. Box 108, Thibodaux, LA 70302, (985) 446-0418, Attorney for Appellees: Riceland Aviation, Inc. and United States Aircraft Insurance Group

Court composed of Sylvia R. Cooks, Phyllis M. Keaty and Van H. Kyzar, Judges.

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

GTP Infrastructure I, LLC(GTP) is the owner of a certain communication transmission tower located near Jennings, in Jefferson Davis Parish, Louisiana.GTP's tower is insured by CNA Insurance Company(CNA).The tower is located in an agricultural setting surrounded by open fields used for planting various crops.On February 15, 2013, an experienced local crop duster pilot, William Precht, Jr., was killed when his airplane, owned by Riceland Aviation, Inc.(Riceland) and insured by United States Aircraft Insurance Group (USAIG), struck an unmarked guy wire securing GTP's tower.Precht's plane was a total loss.The crash also caused damage to GTP's tower.At the time of the crash, GTP's tower was secured by eight, half-inch guy wires, some of which extended nearly 300 feet out from the base of the tower into the adjacent agricultural field where Precht was aeronautically applying herbicide to prepare the field for planting.The guy wires on GTP's tower were not marked by TANA aviation marker balls as required by Jefferson Davis Parish Ordinance5.5-107(e) which provides that: "Any guy wires used for support of any tower shall include TANA wire markers that enable aircraft pilots to identify the location of such guy wires."

GTP and its insurers sued Riceland and USAIG for property damage to its tower identified as tower LA-5136 (tower).Riceland and USAIG answered the suit and reconvened in docket number 83-14, Thirty-first Judicial District Court, Parish of Jefferson Davis, Louisiana.USAIG sought subrogation for its payment to Riceland for the total loss of the plane in a separate suit filed against GTP, its parent companies, and its insurers, in docket number 93-14, Thirty-first Judicial District Court, Parish of Jefferson Davis, Louisiana.GTP sought to dismiss USAIG's subrogation claim against it through a motion for summary judgment.The basis of GTP's motion was the assertion that the local ordinance requiring TANA markers was not enforceable because the ordinance is preempted by federal law.It also asserted the tower was free of any defects that could have caused the crash and it further alleged Riceland and USAIG could not show that GTP knew or should have known about Jefferson Davis Parish Ordinance 5.5-107.The trial court denied the motion.GTP did not seek appellate review of the denial of its motion for summary judgment.

The two suits were consolidated for trial purposes.On June 27, 2019, a jury returned a verdict finding Precht 21% at fault and GTP 79% at fault for the plane crash.The jury awarded Riceland and USAIG $645,139.58 in damages for the airplane which was determined to be a total loss.The trial court entered judgment in favor of USAIG and against "GTP Infrastructure I, LLC, Global Tower, LLC, GTP Investments, LLC and CNA Insurance Company" in the sum of $509,660.26.GTP and CNA Insurance Company appeal the judgment alleging four assignments of error:

The district court erred in denying GTP's Motion for Summary Judgment because the tower was free of defects and plaintiff did not adduce evidence GTP knew or should have known about Jefferson Davis Ordinance 5.5-107.

The district court erred in instructing the jury regarding Jefferson Davis Parish Ordinance 5.5-107, because that Ordinance is preempted by the Federal Aviation Act.

The jury erred in allocating only 21% fault to Mr. Precht.

The jury awarded damages not allowed by law.

ANALYSIS

Although GTP and its insurer did not seek appellate review of the trial court's judgment immediately after the denial of their motion they now raise the issue on appeal after a full trial on the merits.USAIG asserts we cannot address this assignment of error because the denial of the motion for summary judgment was an interlocutory ruling from which no appeal lies.It asserts GTP's exclusive remedy was by supervisory writ, which it did not pursue.We reject this argument."Generally, pursuant to La.Code Civ.P. art. 968, the denial of a motion for summary judgment is an interlocutory judgment from which an appeal may not be taken.However, when there is also an appeal from a final judgment[,] ... an appellate court may also review the interlocutory ruling."Landry v. Pediatric Servs. of Am., Inc. , 15-899p. 4, (La.App. 3 Cir.4/6/16), 189 So.3d 540, 543–44, (citations omitted), writ denied , 16-785 (La. 6/17/16), 192 So.3d 773, 16-845(La.6/17/16), 192 So.3d 771, 773.Thus, we may review the trial court's denial of GTP's motion for summary judgment in this appeal.But, under such circumstances, the applicable standard of review is not de novo as GTP suggests.As we explained in Lemoine v. Augustine , 16-862 pp. 5-6, (La.App. 3 Cir.2/14/17), 2017 WL 872231(unpublished opinion), writ denied , 17-0534 (La.5/19/17), 221 So.3d 77, the proper standard of review here is the manifest error-clearly wrong standard of review:

[D]efendants did not apply for supervisory writs concerning the denial of their motion.Rather, they challenge, as manifest error, the trial court's casting them in judgment when all claims against Mary were prescribed.It is now well established that an appellate court should not restrict its fact review to affidavits and pleadings in support of the motion for summary judgment where the denial of the motion for summary judgment is appealed after the matter has been fully tried.Hopkins v. Am. Cyanamid Co. , 95-1088(La.1/16/96), 666 So.2d 615.In so ruling, the supreme court explained:

[O]nce a case is fully tried, the affidavits and other limited evidence presented with a motion for summary judgment—later denied by the district court—are of little or no value.Appellate courts should not rule on appeal after a full merits trial on the strength alone of affidavits in support of a motion for summary judgment that was not sustained in the district court.In such cases, appellate courts should review the entire record.

Id. at 624.

Accordingly, the traditional manifest error-clearly wrong standard of review of the entire trial record applies to our review of the trial court's factual findings on the issue of prescription.Marin v. Exxon Mobil Corp. , 09–2368, 09-2371(La.10/19/10), 48 So.3d 234.Nevertheless, we review the trial court's legal conclusion "simply to determine whether or not the trial court was legally correct[.]"Dauzart v. Fin. Indem. Ins. Co. , 10-28, p. 3(La.App. 3 Cir.6/2/10), 39 So.3d 802, 805.

In Janise v. Acadian Ambulance Service, Inc. , 17-1100, pp. 6-7(La.App. 3 Cir.4/25/18), 244 So.3d 541, 546, this court explained the role of appellate review of a jury's findings of fact:

Regarding appellate review of factual findings, the supreme court has explained:

In reviewing the factual findings of a trial court, we are limited to a determination of manifest error.Hill v. Morehouse Parish Police Jury , 95-1100, p. 4(La.1/16/96), 666 So.2d 612, 615.It is well settled that an appellate court may not disturb a jury's finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous.Syrie v. Schilhab , 96-1027, p. 4(La.5/20/97), 693 So.2d 1173, 1176.An appellate court must do more than simply review the record for some evidence which supports or controverts the findings.Stobart v. State of La., through Dep't of Transp. & Dev. , 617 So.2d 880, 882(La.1993).It must instead review the record in its entirety to determine whether the factual findings were clearly wrong or manifestly erroneous.Id.

Significantly, the issue to be resolved is not whether the jury was right or wrong, but whether its conclusion was reasonable.Id.Thus, this Court, after a full review of the record, may not reverse reasonable findings, even if we had weighed the evidence differently sitting as the trier of fact.Siverd v. Permanent General Ins. Co. , 05-0973, p. 3(La.2/22/06), 922 So.2d 497, 500.

Fontenot v. Patterson Ins ., 09-669, pp. 8-9(La.10/20/09), 23 So.3d 259, 267.

We have reviewed the entire record and conclude the trial court did not manifestly nor legally err in denying GTP's motion for summary judgment and it did not err in finding GTP liable for damages.Because we review the denial of the motion for summary judgment in this case based on the entire record there is substantial overlap in the treatment of that issue and GTP's additional issues presented for review.

We find Jefferson Davis Parish Ordinance 5.5-107 is not preempted by federal aviation law.Thus, GTP was not entitled to summary judgment as a matter of law on that basis as they maintain."The critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law."La. Pub. Serv. Comm. v. F.C.C. , 476 U.S. 355, 369, 106 S. Ct. 1890, 1899, 90 L.Ed.2d 369(1986).Additionally, there is a presumption against pre-emption.

The doctrine of preemption is a necessary but precarious component of our system of federalism under which the states and the federal government possess concurrent sovereignty, subject to the limitation that federal law is "the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."U.S. Const. art. VI, cl. 2.Consistent with this principle, Congress has the power to enact legislation that preempts state law. seeArizona v.

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