TORTS & AVIATION (GARA) / Under the General Aviation Revitalization Act (“GARA”) statute of repose for aircraft manufacturers wrongful death plaintiffs raised a genuine issue of material fact relating that posed a legal question as to whether or not the “rolling provision” applied to restart GARA’s 18-year limitations period.

Sulak v. American Eurocopter Corp., 2012 WL 6567237 (U.S. District Court for the Northern District of Texas, December 17, 2012). No free copy available at time of posting.

Who is affected? Manufacturers of general aviation aircraft and other equipment; and tort plaintiffs claiming products liability in regard to such equipment.

Wrongful death plaintiffs raised a genuine issue of material fact relating to the time at which the lock washer had been replaced and the maintenance manuals had been amended with respect to the subject aircraft (helicopter). 

They do this by pointing to the declaration of the aircraft’s maintenance director who had also served as a participant in the NTSB’s investigation of the crash from which this litigation arose. 

Wrongful death plaintiffs argue that the rolling provision applies to restart the limitations period contained in GARA’s statute of repose because the lock washer had been replaced and the maintenance manuals had been amended. 

Court opinion text on GARA’s language with respect to “rolling provision”:

“The statute of repose includes a “rolling provision” that restarts the 18–year statute of repose against the manufacturer of any new or replacement part:

“[W]ith 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 damages, … the [18–year statute of repose] begin[s] on the date of completion of the replacement or addition.”

The court opined on factual points that raised a genuine issue of material fact about the “rolling provision” question:

“B. ROLLING PROVISION

However, the Sulaks argue that the rolling provision applies to restart the limitations period contained in GARA’s statute of repose because the lock washer had been replaced and the maintenance manuals had been amended. (Resp.4–5, 10–11.) As stated above, the Sulaks bear the burden of producing sufficient evidence to raise a genuine dispute of material fact regarding the applicability of the rolling provision. See Agape Flights, Inc. v. Covington Aircraft Engines, Inc., No. CIV–09–492–FHS, 2011 WL 2560281, at *5 (E.D.Okla. June 28, 2011). Thus, the Sulaks must raise a genuine dispute “that a new item replaced an item either originally in the aircraft or added to the aircraft and the new item was also a cause of the claimed damages.” S. Side Trust, 339 Ill.Dec. 638, 927 N.E.2d at 193 (emphases added); see also GARA of 1994 § 2(a); Sheesley v. Cessna Aircraft Co., No. 02–4185–KES, 2006 WL 1084103, at *4 (D.S.D. Apr.20, 2006); Carson v. Heli–Tech, Inc., No. 2:01–CV–643, 2003 WL 22469919, at *4 (M.D.Fla. Sept. 25, 2003).

“1. Replacement With New Part

“In asserting that there is a genuine dispute of material fact as to whether the original lock washer was replaced with a new lock washer after 1989, FN5 the Sulaks point to the declaration of HeliUSA’s maintenance director and a participant in the NTSB’s investigation, David A. Lok:

“The lock washer … on the lower rod end of the left lateral servo is replaced (or removed and reinstalled) each time the servo is overhauled, which occurs every 1,800 flight hours…. At the time of the accident, Heli–USA was flying its aircraft approximately 1,500 to 2,000 hours per year, so the lock washer would have been replaced (or removed and reinstalled) at least once a year…. At the time of the accident, [the subject helicopter] had a total time of 21642.7 on the airframe. Based on the required overhaul time for the servos, this aircraft would have had the lock washer replaced (or removed and reinstalled) at least 12 times…. It is highly unlikely that the lock washer on the lower rod end of the left lateral servo on [the subject helicopter] at the time of the accident had been first installed on a rod end more than eighteen years before the accident.”

(Resp.App.12–13.)

“The Sulaks’ accident-reconstruction expert, Kenneth L. Orloff, stated that the lock washer was not identified as a “routine replacement” item and had no inspection requirements. (Resp.App.31.) Eurocopter, when designing the lock washer, expected that it would experience wear over time but that it could be reused. (Summ. J.App.96.) It is not possible to determine how long a lock washer has been installed and in use because it is not tracked by a serial number and is subject to replacement at the discretion of the mechanic. (Resp.App.15, 26.) The maintenance records compiled by the NTSB show that the left lateral servo (of which the lock washer is a component part) was overhauled with “serviceable” parts multiple times. (Summ. J.App.48, 51, 82–88.) The NTSB report notes, however, that the “left lateral servo was removed and replaced” on February 9, 2007. (Summ. J.App.16.) These records do not mention the lock washer specifically.

At first blush, this evidence does not seem to establish that the original lock washer was replaced with a new lock washer at any point within 18 years before the 2007 crash. (Reply 4–5.) The majority of Lok’s declaration merely suggests that the lock washer might have been replaced based on the fact that routine maintenance would necessarily involve the lock washer’s being “replaced (or removed and reinstalled)” many times after the helicopter was manufactured.FN6 Of course, an overhauled or “removed and reinstalled” lock washer is not a new lock washer sufficient to reset GARA’s repose period under the rolling provision. See Robinson v. Hartzell Propeller, Inc., 326 F.Supp.2d 631, 663–64 (E.D.Pa.2004); Willett v. Cessna Aircraft Co., 366 Ill.App.3d 360, 303 Ill.Dec. 439, 851 N.E.2d 626, 636 (Ill.App.Ct.2006); Hiser v. Bell Helicopter Textron, Inc., 111 Cal.App.4th 640, 4 Cal.Rptr.3d 249, 257 (Cal.Ct.App.2003). But Lok’s declaration goes one step further than the evidence produced in Agape Flights, which Eurocopter heavily relies on in arguing against the application of the rolling provision. In Agape Flights, the evidence produced by the plaintiffs showed that the part at issue “might have been replaced or should have been replaced given historical data of wearing of the [part]. There is no maintenance record or other similar document, however, establishing that the [part] was indeed replaced with[in] the 18–year period before the date of the crash.” Agape Flights, 2011 WL 2560281, at *5 (emphases added). Lok, however, goes one step further than his assertions that the lock washer might or should have been replaced—he states that it is “highly unlikely” that the lock washer on the helicopter at the time of the crash was the same lock washer that was installed on the helicopter more than 18 years before the accident. In effect, Lok states, in his capacity as maintenance director for Heli–USA, that the lock washer would have been replaced. Cf. Willett, 303 Ill.Dec. 439, 851 N.E.2d at 636 (holding expert testimony that part “would have been either replaced or overhauled” insufficient to trigger GARA’s rolling provision and noting expert did not state part would have been replaced with new part); Agape Flights, 2011 WL 2560281, at *5 (holding rolling provision inapplicable where no evidence of replacement less than 18 years before crash). The Court concludes that this evidence is sufficient to create a genuine dispute that the lock washer had been replaced with a new lock washer less than 18 years before the crash. Cf. Hiser, 4 Cal.Rptr. at 256–57 (holding replacement as used in GARA means substitution of one item for another, new item). In short, a reasonable jury could find by a preponderance of the evidence that the lock washer on the helicopter at the time of the crash was manufactured less than 18 years before the crash.

“The Sulaks argue that Eurocopter did not produce any maintenance records regarding the replacement of the lock washer during discovery. (Resp.8–10.) But as discussed above, it was not Eurocopter’s burden to produce evidence that the lock washer on the helicopter at the time of the crash was either the original lock washer that had been overhauled and replaced or a lock washer that was manufactured more than 18 years before the crash. Further, Eurocopter did not maintain the helicopter after its sale and, thus, would not possess the maintenance records.

“The Sulaks also contend that because Eurocopter’s maintenance manuals were amended in 2004 to provide for a different torque to secure the nut placed over the lock washer, a component part was replaced less than 18 years before the crash. This replacement of a component part, the Sulaks allege, restarts the repose period under GARA’s rolling provision.FN7 (Resp.10.) But as Eurocopter argues, maintenance manuals are not “component parts” subject to the rolling provision of GARA’s statute of repose. See Alter v. Bell Helicopter Textron, Inc., 944 F.Supp. 531, 538–41 (S.D.Tex.1996); Agape Flights, 2011 WL 25602′1, at *6; S. Side Trust, 339 Ill.Dec. 638, 927 N.E.2d at 197. Therefore, the Sulaks have failed to sustain their burden of raising a genuine issue that GARA’s rolling provision applies to reset the statute of repose based on amended maintenance manuals.”