Kodar, LLC v. United States

879 F. Supp. 2d 218, 2012 WL 2054398, 2012 U.S. Dist. LEXIS 78381
CourtDistrict Court, D. Rhode Island
DecidedJune 6, 2012
DocketC.A. No. 11-119-ML
StatusPublished
Cited by2 cases

This text of 879 F. Supp. 2d 218 (Kodar, LLC v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kodar, LLC v. United States, 879 F. Supp. 2d 218, 2012 WL 2054398, 2012 U.S. Dist. LEXIS 78381 (D.R.I. 2012).

Opinion

MEMORANDUM AND ORDER

MARY M. LISI, Chief Judge.

This litigation arose out of the June 6, 2008 collision between two private airplanes, a 1986 Beechcraft A36 Bonanza, FAA registration N27199 (the “Bonanza”) and a Piper PA-30 Twin Comanche, FAA registration N7660Y (the “Comanche”) at North Central State Airport in Smithfield, Rhode Island (“North Central”). The Bo[220]*220nanza was owned by KODAR, LLC, a New Jersey corporation (“KODAR”), and it was insured by Old Republic Insurance Company (“Old Republic”) through its wholly owned subsidiary and managing agent Phoenix Aviation Managers, Inc. (“Phoenix”), a Georgia corporation. On the day of the accident, the Bonanza was operated by Richard J. Darche (“Darche”), a principal shareholder of KODAR. The Comanche was owned and operated by Stuart Gitlow, M.D. (“Gitlow”); and it was insured by Global Aerospace, Inc. (“Global”). According to the Complaint (Docket # 1), as the Bonanza was in the process of departing, it was struck on the left side by the Comanche which had just landed. Complaint ¶ 31. The Bonanza was totaled, resulting in a loss of $288,892. Id. ¶ 32.

The case is before the Court on the motion (Docket # 33) by the United States of America and the Federal Aviation Administration (together, the “FAA”) for (1) partial dismissal of Gitlow’s amended counterclaim (Docket # 22) for lack of subject matter jurisdiction, and (2) for dismissal of Global’s third-party complaint (Docket #21).

I. Summary Background Facts

Although the various parties disagree about the exact sequence of events, the general facts of the collision appear to be essentially undisputed. On June 6, 2008, Darche was piloting the Bonanza for a planned flight from North Central — which does not have an air traffic control tower1 —to Morristown, New Jersey. Complaint ¶ 15. At the same time Darche was getting ready for take-off, Gitlow, who was piloting the Comanche from Nantucket Airport to North Central, was getting ready for approach and landing. Id. ¶ 16, 21. Darche asserts that he was given clearance from traffic control personnel to depart from Runway 5. Id. ¶ 23. He also states that traffic control personnel failed to advise him that the Comanche was in the process of approaching and landing, or to advise Gitlow that the Bonanza was getting ready for departure. Id. ¶¶ 24, 25. According to Darche, the Bonanza was in the process of its takeoff roll to depart Runway 5 when the aircraft was struck on the left side by the Comanche. Id. ¶ 31.

Global, the insurer of the Comanche, asserts that, as a result of Darche’s negligence, the Bonanza struck the Comanche and destroyed that aircraft completely. Global’s Third-Party Complaint (Docket # 21) ¶ 7. Global also alleges that air traffic control personnel monitoring air traffic at North Central failed to obtain and disseminate information regarding the two aircraft and that such negligence resulted in the collision. Id. ¶¶ 15, 16. Likewise, Gitlow, in his third-party complaint against Darche and in his amended cross-claim against the FAA, asserts that Darche operated the Bonanza negligently and/or that the negligence of air traffic personnel resulted in the release of the Bonanza into the path of the landing Comanche. Id. ¶¶ 12,13.

II. Procedural History

On June 2, 2010, the FAA received an administrative claim from Kodar and Phoenix for the damage to the Bonanza. FAA’s Motion to Dismiss (Docket # 33) at 2. On March 22, 2011, Darche, Kodar, and Phoenix (together, the “Plaintiffs”) filed negligence claims against the FAA and Gitlow. With respect to the FAA, the Plaintiffs alleged that air traffic personnel responsible for providing air traffic control services in and out of North Central failed to inform or relay information regarding [221]*221the Bonanza’s departure and the Comanche’s arrival. Id. ¶ 36. According to the Plaintiffs, as a result of the alleged negligence, the Bonanza was cleared for takeoff and released into the path of the landing Comanche. Id. ¶ 37. With respect to Gitlow, the Plaintiffs asserted that Gitlow cancelled his IFR [instrument flight rules] flight plan shortly before engaging in a final GPS Alpha approach. Complaint ¶¶ 42-47. According to the Plaintiffs, Git-low failed to broadcast or announce the details of his final approach and landing procedure on the Common Traffic Advisory Frequency, and he failed to monitor for announcements regarding the Bonanza’s planned takeoff. Id. ¶ 48.

The FAA filed an answer to the Complaint on May 20, 2011- (Docket # 8), asserting a number of affirmative defenses, including lack of subject matter jurisdiction under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(a) and (h). Id. at 10.

On September 16, 2011, Gitlow filed an answer to the Complaint and a. cross claim against the FAA. (Docket # 14). Gitlow brought claims of Indemnity (Count I) and for Contribution (Count II), asserting that, if it were determined that the Plaintiffs were damaged as result of Gitlow’s negligence, he was entitled to indemnification because of the FAA’s primary negligence. Id. at 6.

On October 6, 2011, Global — which was not a party to the litigation — filed a third-party complaint against Darche for negligence and against the FAA for negligence, indemnification, and contribution. (Docket # 21). Global asserted that Darche operated the Bonanza aircraft negligently and that Global suffered a loss of $73,638 as a result — the amount it had to pay to Gitlow under an insurance policy, minus salvage proceeds. Global Complaint at ¶¶6-9. Further, Global alleged that, through the negligence of certain air traffic personnel responsible for monitoring and/or directing flights at North Central, the Bonanza was released into the path of the landing Comanche aircraft. Id. at ¶¶ 15,16.

Also on October 6, 2011, Gitlow filed a third-party complaint against Darche. (Docket #22). Gitlow stated that, as a result of Darche’s negligence, Global had been required to pay to Gitlow the sum of $90,750, but that the fair market value of the Comanche significantly exceeded such an amount. Gitlow Complaint p. 3, ¶ 9. For the first time, Gitlow also asserted that he had suffered bodily injury, lost time from work, and that he had incurred medical expenses. Id. ¶12. Within the complaint, Gitlow also amended his cross claim against the FAA for indemnification (Count I) and contribution (Count II) by adding claims for monetary losses and bodily injury (Count III). Id. at 4-9.

In response, on October 20, 2011, the FAA filed an answer (Docket #23) to Gitlow’s amended cross claim, generally denying Gitlow’s allegations and asserting various affirmative defenses. Inter alia, the FAA asserted that Gitlow had “failed to comply with the provisions of 28 U.S.C. §§ 2675(a), 2401(b)2.” This time, the FAA [222]*222also brought a counterclaim against Gitlow for indemnity and contribution. On the same day, the FAA responded to Global’s third-party complaint against it, (Docket # 24), in which it again asserted counterclaims against Gitlow. Gitlow filed responses to both counterclaims on November 1, 2011 (Docket ## 25, 26).

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Bluebook (online)
879 F. Supp. 2d 218, 2012 WL 2054398, 2012 U.S. Dist. LEXIS 78381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kodar-llc-v-united-states-rid-2012.