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Lunn v. Hawker Beechcraft Corp.

Court of Appeals of Oklahoma, Division I

September 29, 2017

WILLIAM D. LUNN, Individually and as Natural Parent, Next Friend and Personal Representative of the Estate of KATHERINE LILLIAN LUNN and the Estate of ADRIENNE BADEEN LUNN and the Estate of MICHAEL DIXON LUNN, Plaintiff/Appellant,
v.
HAWKER BEECHCRAFT CORPORATION, Defendant/Appellee, and Beech Aircraft Corporation, Raytheon Company, Raytheon Corporation, Raytheon Aircraft Company, Teledyne Inc., Continental Motors, Teledyne Continental Motors, Pete Pittenger, Gary Sipes, a/k/a Gary Clayton Sipes and Sipes Aircraft Sales LLC a/k/a Sipes Aircraft and Tulsa Towbot, LLC, Defendants.

          Mandate Issued: 03/01/2018

         APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE CAROLINE WALL, JUDGE AFFIRMED

          Lee I. Levinson, Terence P. Brennan, John M. Thetford, LEVINSON, SMITH & HUFFMAN, P.C., Tulsa, Oklahoma, for Plaintiff/Appellant,

          Sidney G. Dunagan, Amy M. Stipe, GABLE & GOTWALS, Oklahoma City, Oklahoma, for Defendant/Appellee, Beechcraft Corporation,

          Phil R. Richards, Brett E. Gray, Randy Lewin, RICHARDS & CONNOR, Tulsa, Oklahoma, for Defendant/Appellee, Continental Motors, Inc.,

          ROBERT D. BELL, JUDGE

         ¶1 In this action for damages arising out of a 2007 airplane crash, Plaintiff/Appellant, William D. Lunn, individually and as natural parent, next friend and personal representative of the estates of Katherine Lillian Lunn, Adrienne Badeen Lunn, and Michael Dixon Lunn, all deceased, appeals from the trial court's order granting Lunn's request to reconsider a partial summary judgment in favor of Defendant/Appellee, Hawker Beechcraft Corporation (Hawker), but denying the substantive relief requested therein. Lunn asked Judge Wall to reconsider and overturn a summary judgment entered five (5) years earlier by Judge Thornbrugh. Judge Thornbrugh ruled the eighteen (18) year statute of repose in the General Aviation Revitalization Act of 1994 (GARA), Pub. L. No. 103-298, 108 Stat 1552 (reprinted in note to 49 U.S.C. §40101) barred Lunn's claims against Hawker for negligence, strict products liability and breach of contract. Lunn insisted the summary judgment should be overturned because new case law supports his position that GARA did not preempt his state law design defect claims. Lunn also asserted his claims are not barred by GARA's statute of repose because newly discovered evidence place his claims within GARA's "rolling provision" and the "fraud exception." After de novo review of the record, we affirm the trial court's decision to deny the substantive relief requested in Lunn's motion to reconsider.

         ¶2 On October 17, 2007, a Beech Model A-36 Bonanza aircraft crashed in Tulsa County just 3.5 miles after takeoff, killing five (5) passengers including the three (3) teenage Lunn children. The airplane was manufactured by Hawker in 1977. Lunn sued Hawker and other defendants for strict products liability, negligence and breach of warranty. Lunn claimed an incorrectly installed (inverted) main fuel strainer caused the crash. Hawker sought summary judgment on the basis that Plaintiff's action was barred by the 18-year statute of repose set forth at GARA §2. A statute of repose bars a cause of action before it arises. Reynolds v. Porter, 1988 OK 88, ¶7, 760 P.2d 816, 820.

         ¶3 "In GARA, Congress established an 18-year statute of repose for civil actions against manufacturers of general aviation aircraft and component parts. The 18-year period begins anew if the death, injury, or damage is caused by any 'new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to, the aircraft.'" Caldwell v. Enstrom Helicopter Corp., 230 F.3d 1155, 1156 (9th Cir. 2000)(citing GARA §2). Congress enacted GARA because aircraft "manufacturers were being driven to the wall because, among other things, of the long tail of liability attached to those aircraft which could be used for decades after they were first manufactured and sold." Lyon v. Augusta S.P.A, 252 F.3d 1078, 1084 (9th Cir.2001)(citing H.R.Rep. No. 103-525, pt I, at 1-4 (1994), reprinted in 1994 U.S.C.C.A.N. 1638, 1638-41).

         ¶4 Lunn opposed the summary judgment arguing a factual dispute existed as to whether the repose period was tolled by GARA's "rolling provision" that restarts the 18-year statute of repose against the manufacturer of any new or replacement part. GARA's "rolling provision" restarts the eighteen (18) year limitation period as follows:

with respect to any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to the aircraft, and which is alleged to have caused such death, injury, or damage, after the applicable limitation period beginning on the date of completion of the replacement or addition.

GARA §2(a)(2). Lunn argued the "new parts - rolling provision" tolled the repose period because Hawker issued a placard (service bulletin) describing the correct installation of a fuel strainer in the aircraft in 1989, Hawker failed to include the placard in the aircraft's republished flight manual and Hawker recommended replacing the fuel strainer with a new fuel strainer.

         ¶5 Next, Lunn urged a factual dispute existed as to whether GARA's "fraud exception" at GARA §2(b)(1) applies. Under GARA's fraud exception, the repose period does not apply if "the claimant pleads with specificity the facts necessary to prove, and proves, that the manufacturer... knowingly misrepresented to the [FAA], or concealed or withheld from the [FAA], required information that is material and relevant to the performance or the maintenance or operation of" the aircraft or aircraft part and is causally related to the harm suffered. Lunn asserted Hawker failed to disclose to the ...


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