Morris Aviation, LLC v. Diamond Aircraft Industries, Inc.

536 F. App'x 558
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 29, 2013
Docket12-6021
StatusUnpublished
Cited by39 cases

This text of 536 F. App'x 558 (Morris Aviation, LLC v. Diamond Aircraft Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris Aviation, LLC v. Diamond Aircraft Industries, Inc., 536 F. App'x 558 (6th Cir. 2013).

Opinions

[560]*560BOGGS, Circuit Judge.

Plaintiff Morris Aviation, LLC (Morris), purchased an airplane manufactured by Diamond Aircraft Industries, Inc. (Diamond), through one of Diamond’s authorized dealers. The airplane’s engines, however, were manufactured and warrantied by a different company, Thielert Aircraft Engines, GmbH (TAE). In sales negotiations with Morris, Diamond and its agents emphasized the “quality and reliability” of TAE and its engines; a few weeks after the sale TAE declared bankruptcy and voided its warranties. Morris filed suit against Diamond, alleging that Diamond fraudulently or negligently misrepresented or concealed TAE’s financial health. The district court dismissed the complaint for failure to state a claim. Because Diamond’s statements were mere predictions and opinions, and because Diamond had no duty to disclose, there was no actionable fraud or negligence. We therefore affirm the judgment of the district court.

I

Dr. John Morris, who had decided to start an air-taxi business, was looking to purchase several aircraft. Lacking significant piloting experience himself, Morris engaged his friend, Dr. Todd House, to assist with the acquisition process. In January 2007, House contacted Diamond, a Canadian aircraft manufacturer, expressing his interest in Diamond’s DA42 Twin Star (“DA42”), a four-seat, two-engine airplane. House traveled to a Diamond facility in Ontario and received an extensive presentation on the DA42 and its specifications. One significant aspect of the potential purchase was the DA42’s turbo diesel engines, manufactured by TAE, a German corporation. Diesel engines were new to the aircraft industry, and as a result would require frequent inspections and maintenance. Diamond explained that the engines would be covered by a TAE warranty, “parts and labor prorated over 2,400 hours or 12 years,” with replacement in full at prorated cost if replacement were necessary before 2,400 flight-hours.

In May 2007, House formally began negotiations to purchase five DA42s from Premier Aircraft Sales, an authorized dealer of Diamond aircraft in Kentucky. Although the contract and purchase would be with Premier, Diamond representatives remained involved in the sales process. In early 2008, while the negotiations were ongoing, Morris was informed that another DA42 had suddenly become available for sale. By the end of March, Morris purchased the single DA42 for $634,977. Approximately two weeks later, TAE declared bankruptcy in Germany, and voided its engine warranties. Left without a warranty on the engines, Morris sought to trade in his aircraft for one of Diamond’s new DA42s, which were powered by Diamond’s own recently developed engines. Diamond refused the trade, and Morris brought this suit, alleging fraudulent misrepresentation and concealment, negligent misrepresentation, and violations of Kentucky’s Consumer Protection Act.

All of Morris’s claims stem from the allegation that Diamond knew of TAE’s impending financial troubles, and misrepresented the nature of the TAE warranty. In his First Amended Complaint, Morris specifically alleged:

[1] During the purchase negotiations, Diamond made representations to Plaintiffs regarding the length and reliability of the TAE engine warranty.
[2] Through sales material and information provided to Plaintiffs by Diamond’s authorized distributors, Diamond endorsed TAE as a reliable and quality company.
[3] Diamond prepared and supplied Morris with a written “Diamond DA42-[561]*561tdi Operating Cost and Break-even Analysis” (“Break-even Analysis”), which indicated that the TAE engines would not require an overhaul until they reached at least 2,400 operating hours.
[4] Plaintiff relied on Diamond’s representations about the quality and reliability of TAE, the TAE engines, and TAE’s engine warranty in electing to purchase the DA42.

Diamond filed a motion to dismiss, which the district court granted. The district court held that Diamond’s alleged statements were opinion, not fact, or were not alleged to be false, and therefore could not form the basis for a fraudulent-misrepresentation claim. As to Morris’s fraudulent-concealment claim, the court explained that a formalized contractual relationship is required for there to be a duty to disclose, and thus Diamond, which was not party to the contract for sale, could not be liable. Finally, the district court concluded that while opinions may be actionable negligent misrepresentations, Morris’s complaint failed to allege fraud with “particularity,” as required by Federal Rule of Civil Procedure 9(b). However, the district court permitted Morris to amend his complaint with respect to the negligent-misrepresentation claim.1

To support his general allegations, Morris provided further details about the representations of Jeff Owen, who dealt with Morris throughout the sales process, initially as Director of Aircraft Sales at Diamond, and subsequently as Regional Sales Manager at Premier. In particular, Morris alleged that Owen:

[1]explained that the engines were manufactured by TAE and that, while the technology was relatively new and untested, Diamond had negotiated with TAE to provide extensive warranties on the engines to make use and maintenance affordable[;]
[2] assured Dr. House that the engine warranty and life-extension program would protect the aircraft owner from the risks involved with new technology and that Dr. House could rely on TAE for this warranty[; and]
[3] flew several demonstration flights and went over many of the details regarding TAE, the engine, and its warranty with Dr. Morris, Dr. House, and others while continuing to tout the security provided by that warranty.

Diamond again filed a motion to dismiss, which the district court granted on the basis of the “economic loss” doctrine, recently recognized by the Kentucky Supreme Court in Giddings & Lewis, Inc. v. Industrial Risk Insurers, 348 S.W.3d 729 (Ky.2011). Under this doctrine, economic losses (i.e., losses from diminution in value of a product) can only be recovered in contract, not tort. Although Giddings dealt with parties to a contract, the district court concluded that if faced with the question, the Kentucky Supreme Court would hold that contractual privity was not necessary for application of the doctrine.

After this decision, Morris filed a motion to reconsider under Rule 59(e), restating some of his legal arguments and presenting “new evidence” that Diamond was aware of TAE’s impending insolvency. In particular, Morris attached an email written by Diamond’s President, Peter Mauer, six months before TAE declared bankruptcy:

[562]*562Wow, good news on the TAE stock he’ll be bankrupt soon! Oh wait, we aren’t finished with our engine what will we do now? Quick get the DA42 Lycoming certified.... or maybe we will take over TAE but then we have to carry his warranty obligations what do we do now? Oh, well main thing is that Thei-lert is dying. Might kill us too, but we WIN!

(ellipsis in original).

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