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Alfreda Smith Ovesen v. Mitsubishi Heavy Industries of America

March 1, 2012


The opinion of the court was delivered by: John G. Koeltl, District Judge:


This case arises out of an airplane crash near San Juan Puerto Rico in 2002. The plaintiff, Alfreda Smith Ovesen ("Ovesen"), is the representative of the estate of Svend A. Ovesen (the "decedent"), who was killed after the Mitsubishi MU-2B plane that he was flying crashed. The defendants are two manufacturers of the MU-2B, Mitsubishi Heavy Industries, Ltd., and its subsidiary, Mitsubishi Heavy Industries of America, Inc. (collectively, "Mitsubishi"). The defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the ground that the plaintiff's claims are barred by the eighteen-year statute of repose provided by the General Aviation Revitalization Act of 1994 ("GARA"), Pub. L. No. 103-298, 108 Stat. 1552, (appended as a note to 49 U.S.C. § 40101).

Jurisdiction is proper pursuant to 28 U.S.C. § 1332.


The standard for granting summary judgment is well established. "The [C]court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them." Gallo, 22 F.3d at 1224. The substantive law applicable to the claims will identify which issues are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986); see also Colon v. Trump Int'l Hotel & Tower, No. 10 Civ. 4794, 2011 WL 6092299, at *1 (S.D.N.Y. December 7, 2011).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); Gallo, 22 F.3d at 1223. Summary judgment is inappropriate if there is any evidence in the record from any source from which a reasonable inference may be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). The moving party has the initial burden of demonstrating the lack of a material issue of fact. If the moving party meets its burden, the burden shifts to the nonmoving party to bring forward "specific facts showing a genuine issue for trial." Colon, 2011 WL 6092299, at *1. To meet its burden, the nonmoving party must produce evidence from the record and "may not simply rely on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . ." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114--15 (2d Cir. 1998) (collecting cases).


The following facts are undisputed unless otherwise noted. On April 15, 2002, the decedent was piloting a Mitsubishi MU-2B-35 model twin engine propeller aircraft, Serial No. 558 (the "Aircraft"), operated by his company, Crucian International, Inc. The Aircraft was in a holding pattern near San Juan, Puerto Rico when it crashed, killing the decedent. This lawsuit seeks to recover damages for the decedent's death and the loss of Crucian's property. (Def.'s R. 56.1 Stmt. at ¶¶ 1-2, 7; Pl.'s R. 56.1 Resp. at ¶¶ 1-2, 7.)

The Aircraft was designed and manufactured by the defendant Mitsubishi Heavy Industries in Japan, and exported to the United States pursuant to a Certificate of Airworthiness for Export issued by the Japan Civil Aviation Bureau (the "JCAB") in 1971. (Def.'s R. 56.1 Stmt. at ¶ 2; Pl.'s R. 56.1 Resp. at ¶ 2.) The Aircraft was imported to the United States that same year, pursuant to an Import Type Certificate, Type Certificate A2PC, issued by the United States Federal Aviation Administration (the "FAA") under what is now 14 C.F.R. § 21.29. (Def.'s R. 56.1 Stmt. ¶ 3; Pl.'s R. 56.1 Resp. ¶ 3.) Several models of Mitsubishi aircraft, including the MU-2B-35 model, received an A10SW Type Certificate, which allowed for domestic production of those models in the United States, in 1976. (Pl.'s R. 56.1 Resp. ¶ 3; Def.'s R. 56.1 Repl. ¶ 3.)

The Aircraft received an airworthiness certificate from the FAA in 1972, and was sold to its first purchaser later that year. (Def.'s R. 56.1 Stmt. ¶ 4; Pl.'s R. 56.1 Resp. ¶ 4.)

Ovesen brought this lawsuit against Mitsubishi in 2004. In August, 2009, after extensive discovery and motion practice, Mitsubishi moved for summary judgment, arguing that the eighteen year statute of repose in GARA barred Ovesen's claims. Ovesen argued in response that an exception to the GARA statute of repose exists when the manufacturer of an aircraft has "knowingly misrepresented to the Federal Aviation Administration, or concealed or withheld from the Federal Aviation Administration, required information that is material and relevant to the performance or the maintenance or operation of such aircraft . . . , that is causally related to the harm which the claimant allegedly suffered," GARA § 2(b)(1), and that this exception was applicable in Ovesen's case because Mitsubishi had withheld a 1973 report (the "CAA Report") from the United Kingdom's Civil Aviation Authority (the "CAA") that allegedly highlighted performance problems experienced by the MU-2B in executing maneuvers similar to the holding pattern that the decedent was flying when the accident occurred. At oral argument on January 11, 2010, this Court denied Mitsubishi's motion for summary judgment, finding that Ovesen had "at least raised a material issue of fact as to whether the concerns raised in the CAA report regarding the control of the plane at low speeds were causally related to Mr. Ovesen's crash." (Jan. 11, 2010 Oral Arg. Tr. at 54). The motion was denied without prejudice to the re-filing of another motion for summary judgment. (Jan. 11, 2010 Oral Arg. Tr. at 61).

After further discovery, this motion for summary judgment followed. In this motion, the parties again dispute whether the 1973 CAA Report can serve as a basis for invoking the relevant GARA exception. Mitsubishi also raises a new legal argument: that the CAA Report is not "required information" under the GARA fraud exception with respect to the Aircraft because the relevant regulation defining "required information" exempts information regarding certain imported aircraft, including the Aircraft at issue in this case.*fn1


GARA provides that "no civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft" more than 18 years after the date of delivery of the aircraft to its first purchaser. GARA ยง 2(a), 3(3). It is uncontested that, if no exception applied, the GARA's statute of repose would bar Ovesen's claims because the decedent's accident ...

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