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,
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
FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE
CAROLINE WALL, JUDGE AFFIRMED
Levinson, Terence P. Brennan, John M. Thetford, LEVINSON,
SMITH & HUFFMAN, P.C., Tulsa, Oklahoma, for
G. Dunagan, Amy M. Stipe, GABLE & GOTWALS, Oklahoma City,
Oklahoma, for Defendant/Appellee, Beechcraft Corporation,
R. Richards, Brett E. Gray, Randy Lewin, RICHARDS &
CONNOR, Tulsa, Oklahoma, for Defendant/Appellee, Continental
D. BELL, JUDGE
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
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.
"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).
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
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.
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 ...