Pond v. Majercik CV-94-225-M 09/29/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patricia Pond, Individually and as Administratrix of the Estate of Scott Pond, Plaintiff,
v. Civil No. 94-225-M
Donald A. Maiercik, and Parker Aviation Enterprises, Inc., Defendants, and John McGrath, Executor of the Estate of Mary Jane McGrath, Defendant and Third Party Plaintiff,
v.
Nathan Pond, Gary Pond, William Batesole, James Parker, Jr., Lebanon Riverside Rotary, an Unincorporated Association, and the United States of America, Third Party Defendants.
O R D E R
This action arises from a fatal midair collision between an
airplane and a parachutist during an air show in Lebanon, New
Hampshire. The airplane was piloted by Mary Jane McGrath; Scott
Pond was the parachutist. Plaintiff Patricia Pond, both
individually and as Administratrix of her husband's estate, sued
the Estate of Mary Jane McGrath (hereinafter "McGrath Estate").
The McGrath Estate counterclaimed against the Pond Estate and
filed third party claims against, among others, Nate and Gary Pond asserting, inter alia, rights to indemnification.
Administratrix Patricia Pond, Nate Pond, and Gary Pond (the
"Ponds")a now move, pursuant to Fed. R. Civ. P. 12(b)(6), to
dismiss the McGrath Estate's indemnity claims. For the reasons
enumerated below, the Ponds' motion to dismiss the indemnity
claims is granted.
I. BACKGROUND
On July 6, 1993, Parker Aviation ("Parker") in conjunction
with the Lebanon Riverside Rotary Club ("Rotary"), obtained a
Certificate of Waiver ("Waiver") from the FAA authorizing
specific deviations from Federal Aviation Regulations ("FARS")
for an air show to be held at the Lebanon Municipal Airport. The
Certificate waived compliance with specific FARS from July 23
through 25, 1993. The Waiver allowed certain otherwise
prohibited activities, such as aerobatics below 1500 feet and
parachute jumps over an open assembly of spectators. As holders
of the Waiver, the Rotary and Parker were responsible for the
overall safety of the event and compliance with all applicable
regulations.
2 Mary Jane McGrath ("McGrath"), a biplane pilot, and the Pond
Family Skydivers (a family act that included Scott, Nate, and
Gary Pond) were among several performers hired to participate in
the air show. On July 24, 1993, the opening day of the air show,
a program was distributed highlighting the day's upcoming acts.
The program disclosed that Nate and Gary Pond, of the Pond Family
Skydivers, would perform a "flag jump" to open the air show.
That act consisted of Nate and Gary Pond jumping from the same
plane, linking up, deploying their parachutes, and releasing an
American flag to trail behind them during their descent.
On the morning of the opening day, Parker held a pre-show
briefing for all air show participants, as reguired by provisions
of the Waiver. Among those in attendance were McGrath and Nate
Pond (representing the Pond Family Skydivers). Neither Gary
Pond, Scott Pond (a Pond Family Skydiver not mentioned in the
program), nor William Batesole (the Ponds' jump plane pilot)
attended. During the briefing, Parker discussed the various acts
listed in the program. For the first time Parker announced that
the Pond Skydivers would be circled by two biplanes (one piloted
by McGrath) during their descent. That maneuver was not
3 disclosed in the program. Parker then deferred to Nate Pond, who
described the act in greater detail.
Following the briefing, the first act began as scheduled at
approximately 12:45 p.m. The Ponds' jump plane took off followed
by the two biplanes. Upon reaching the proper altitude, Nate and
Gary Pond jumped from the plane and deployed their parachutes.
The first biplane moved towards Nate and Gary Pond and began
circling as they descended. McGrath, piloting the second
biplane, followed immediately behind the first. As McGrath began
her approach, a third skydiver, Scott Pond, jumped from the Pond
plane. McGrath's biplane and Scott Pond collided in midair; both
McGrath and Pond died.
The McGrath Estate claims that only Nate and Gary Pond were
expected to jump and that the Ponds changed the act without
informing Mary Jane McGrath. The McGrath Estate also alleges
that Mary Jane reasonably relied on Nate Pond's instructions,
and, if McGrath was in any way negligent, it was only in her
failure to discover the Ponds' own negligence in failing to
inform her that a third skydiver would be jumping. The McGrath
Estate argues that, to the extent it might be liable to Scott
4 Pond's estate, it would be entitled to indemnity from Gary and
Nate Pond and Scott Pond's estate. The Ponds in turn have moved
to dismiss the indemnity claim pursuant to Fed. R. Civ. P.
12 (b) (6) .
II. STANDARD OF REVIEW
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6) is
one of very limited inquiry, focusing not on "whether the
plaintiff will ultimately prevail, but whether [the plaintiff] is
entitled to offer evidence to support [the] claims." McLean v.
Gaudet, 769 F. Supp. 30, 31 (D.N.H. 1990) (citing Scheur v.
Rhodes, 416 U.S. 232, 236 (1974)). A court must take the factual
averments within the complaint as true, "indulging every
reasonable inference helpful to the plaintiff's cause." Garita
Hotel Ltd. Partnership v. Ponce Federal Bank, F.S.B., 958 F.2d
15, 17 (1st Cir. 1992); see also Dartmouth Review v. Dartmouth
College, 889 F.2d 13, 16 (1st Cir. 1989)). In the end, a motion
to dismiss may be granted under Rule 12(b)(6) "only if it clearly
appears, according to the facts alleged, that the plaintiff
cannot recover on any viable theory." Garita, 958 F.2d at 17
(quoting Correa-Martinez v. Arrillaaa-Belendez, 903 F.2d 49, 52
(1st Cir. 1990) ) .
5 III. DISCUSSION
In this diversity action the Ponds' motion to dismiss the
McGrath Estate's indemnity claims is governed by New Hampshire
law. See Mottolo v. Fireman's Fund Ins. Co., 830 F. Supp. 658,
663 (D.N.H. 1993) (substantive law of state in which federal
court sits governs diversity actions) . The McGrath Estate bases
its indemnity claim on two separate theories under New Hampshire
law. First, the McGrath Estate claims that the Ponds have an
implied duty to indemnify the Estate under the theory articulated
in Consolidated Util. Equip. Serv's v. Emhart Mfg. Corp., 123
N.H. 258 (1983), and its progeny. Second, the McGrath Estate
asserts that New Hampshire has adopted the Restatement (Second)
of Torts § 886B(2)(b) (1979), under which the Estate can invoke
rights to indemnity. For the reasons explained below, neither
claim survives the Ponds' motion to dismiss.
A.
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Pond v. Majercik CV-94-225-M 09/29/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patricia Pond, Individually and as Administratrix of the Estate of Scott Pond, Plaintiff,
v. Civil No. 94-225-M
Donald A. Maiercik, and Parker Aviation Enterprises, Inc., Defendants, and John McGrath, Executor of the Estate of Mary Jane McGrath, Defendant and Third Party Plaintiff,
v.
Nathan Pond, Gary Pond, William Batesole, James Parker, Jr., Lebanon Riverside Rotary, an Unincorporated Association, and the United States of America, Third Party Defendants.
O R D E R
This action arises from a fatal midair collision between an
airplane and a parachutist during an air show in Lebanon, New
Hampshire. The airplane was piloted by Mary Jane McGrath; Scott
Pond was the parachutist. Plaintiff Patricia Pond, both
individually and as Administratrix of her husband's estate, sued
the Estate of Mary Jane McGrath (hereinafter "McGrath Estate").
The McGrath Estate counterclaimed against the Pond Estate and
filed third party claims against, among others, Nate and Gary Pond asserting, inter alia, rights to indemnification.
Administratrix Patricia Pond, Nate Pond, and Gary Pond (the
"Ponds")a now move, pursuant to Fed. R. Civ. P. 12(b)(6), to
dismiss the McGrath Estate's indemnity claims. For the reasons
enumerated below, the Ponds' motion to dismiss the indemnity
claims is granted.
I. BACKGROUND
On July 6, 1993, Parker Aviation ("Parker") in conjunction
with the Lebanon Riverside Rotary Club ("Rotary"), obtained a
Certificate of Waiver ("Waiver") from the FAA authorizing
specific deviations from Federal Aviation Regulations ("FARS")
for an air show to be held at the Lebanon Municipal Airport. The
Certificate waived compliance with specific FARS from July 23
through 25, 1993. The Waiver allowed certain otherwise
prohibited activities, such as aerobatics below 1500 feet and
parachute jumps over an open assembly of spectators. As holders
of the Waiver, the Rotary and Parker were responsible for the
overall safety of the event and compliance with all applicable
regulations.
2 Mary Jane McGrath ("McGrath"), a biplane pilot, and the Pond
Family Skydivers (a family act that included Scott, Nate, and
Gary Pond) were among several performers hired to participate in
the air show. On July 24, 1993, the opening day of the air show,
a program was distributed highlighting the day's upcoming acts.
The program disclosed that Nate and Gary Pond, of the Pond Family
Skydivers, would perform a "flag jump" to open the air show.
That act consisted of Nate and Gary Pond jumping from the same
plane, linking up, deploying their parachutes, and releasing an
American flag to trail behind them during their descent.
On the morning of the opening day, Parker held a pre-show
briefing for all air show participants, as reguired by provisions
of the Waiver. Among those in attendance were McGrath and Nate
Pond (representing the Pond Family Skydivers). Neither Gary
Pond, Scott Pond (a Pond Family Skydiver not mentioned in the
program), nor William Batesole (the Ponds' jump plane pilot)
attended. During the briefing, Parker discussed the various acts
listed in the program. For the first time Parker announced that
the Pond Skydivers would be circled by two biplanes (one piloted
by McGrath) during their descent. That maneuver was not
3 disclosed in the program. Parker then deferred to Nate Pond, who
described the act in greater detail.
Following the briefing, the first act began as scheduled at
approximately 12:45 p.m. The Ponds' jump plane took off followed
by the two biplanes. Upon reaching the proper altitude, Nate and
Gary Pond jumped from the plane and deployed their parachutes.
The first biplane moved towards Nate and Gary Pond and began
circling as they descended. McGrath, piloting the second
biplane, followed immediately behind the first. As McGrath began
her approach, a third skydiver, Scott Pond, jumped from the Pond
plane. McGrath's biplane and Scott Pond collided in midair; both
McGrath and Pond died.
The McGrath Estate claims that only Nate and Gary Pond were
expected to jump and that the Ponds changed the act without
informing Mary Jane McGrath. The McGrath Estate also alleges
that Mary Jane reasonably relied on Nate Pond's instructions,
and, if McGrath was in any way negligent, it was only in her
failure to discover the Ponds' own negligence in failing to
inform her that a third skydiver would be jumping. The McGrath
Estate argues that, to the extent it might be liable to Scott
4 Pond's estate, it would be entitled to indemnity from Gary and
Nate Pond and Scott Pond's estate. The Ponds in turn have moved
to dismiss the indemnity claim pursuant to Fed. R. Civ. P.
12 (b) (6) .
II. STANDARD OF REVIEW
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6) is
one of very limited inquiry, focusing not on "whether the
plaintiff will ultimately prevail, but whether [the plaintiff] is
entitled to offer evidence to support [the] claims." McLean v.
Gaudet, 769 F. Supp. 30, 31 (D.N.H. 1990) (citing Scheur v.
Rhodes, 416 U.S. 232, 236 (1974)). A court must take the factual
averments within the complaint as true, "indulging every
reasonable inference helpful to the plaintiff's cause." Garita
Hotel Ltd. Partnership v. Ponce Federal Bank, F.S.B., 958 F.2d
15, 17 (1st Cir. 1992); see also Dartmouth Review v. Dartmouth
College, 889 F.2d 13, 16 (1st Cir. 1989)). In the end, a motion
to dismiss may be granted under Rule 12(b)(6) "only if it clearly
appears, according to the facts alleged, that the plaintiff
cannot recover on any viable theory." Garita, 958 F.2d at 17
(quoting Correa-Martinez v. Arrillaaa-Belendez, 903 F.2d 49, 52
(1st Cir. 1990) ) .
5 III. DISCUSSION
In this diversity action the Ponds' motion to dismiss the
McGrath Estate's indemnity claims is governed by New Hampshire
law. See Mottolo v. Fireman's Fund Ins. Co., 830 F. Supp. 658,
663 (D.N.H. 1993) (substantive law of state in which federal
court sits governs diversity actions) . The McGrath Estate bases
its indemnity claim on two separate theories under New Hampshire
law. First, the McGrath Estate claims that the Ponds have an
implied duty to indemnify the Estate under the theory articulated
in Consolidated Util. Equip. Serv's v. Emhart Mfg. Corp., 123
N.H. 258 (1983), and its progeny. Second, the McGrath Estate
asserts that New Hampshire has adopted the Restatement (Second)
of Torts § 886B(2)(b) (1979), under which the Estate can invoke
rights to indemnity. For the reasons explained below, neither
claim survives the Ponds' motion to dismiss.
A. Implied Duty to Indemnify
Under New Hampshire law, the right to indemnity is limited
to two situations: "[W]here the indemnitee's liability is
derivative or imputed by law . . . or where an express or implied
duty to indemnify exists." Emhart, 123 N.H. at 261 (citations
omitted); see also Jaswell Drill Corp. v. General Motors Corp.,
6 129 N.H. 341, 346 (1987) (quoting Emhart); Hamilton v. Volkswagen
of Am., 125 N.H. 561, 563 (1984) (same); Hooksett School Dist. v.
W.R. Grace & C o ., 617 F. Supp. 126, 134 (D.N.H. 1984) (same).
The McGrath Estate bases its claim on the second theory
articulated in Emhart, the existence of an implied duty to
indemnify.1
In Hamilton, Justice Souter, speaking for a unanimous New
Hampshire Supreme Court, described the situations in which an
implied duty to indemnify has been found to exist:
In each case the indemnitor had agreed to perform a service for the indemnitee. In each, the indemnitor was assumed to have performed negligently. And in each, the result was a condition that caused harm to a third person in breach of a non-delegable duty of the indemnitee.
Hamilton, 125 N.H. at 563 (emphasis added); see also
Collectramatic v. Kentucky Fried Chicken Corp., 127 N.H. 318,
320-21 (1985) (quoting Hamilton) . The court later expanded its
recognition of indemnity rights to include situations in which
1 The McGrath Estate's objection to the Ponds' limited motion to dismiss explicitly states that "the imputed negligence of another . . . [is] not claimed as a basis for indemnity." (McGrath Objection at 8 (document no. 35).) In addition, the McGrath Estate does not claim that there was an express duty to indemnify.
7 the indemnitor agrees to supply the indemnitee with a product,
rather than a service. Jaswell, 129 N.H. at 346.
The McGrath Estate and the Ponds disagree as to whether the
duty to indemnify implied in these situations must arise from a
contract between the indemnitor and indemnitee. Decisions
subseguent to Hamilton suggest that the implied duty is a
contractual one. See Hooksett, 617 F. Supp. at 134 (stating that
implied indemnity under Emhart is contractual in nature and "may
involve . . . [an] implied contract to indemnify."); Jaswell, 129
N.H. at 34 6 ("an implied agreement to indemnify may exist where
an indemnitor performs a service under contract"). However, the
exact nature of the implied duty is not critical. It is critical
that the implied duty arise out of some agreement between the
parties. While the relationship between the parties need not,
perhaps, rise to the level of a contract, an explicit agreement
between the indemnitor and indemnitee for the provision of a
product or service is necessary before an implied duty to
indemnify can arise.
In each case in which the New Hampshire Supreme Court has
found an implied duty to indemnify, the indemnitee claimed to have some agreement with the indemnitor for the provision of
services or products. In Wentworth Hotel v. F.A. Gray, Inc., 110
N.H. 458 (1970), for example, the plaintiff alleged an oral
contract for services with the defendant. Id. at 459. It was
out of this contract that the implied duty to indemnify arose.
Id. at 460. Similarly, in Sears, Roebuck & Co. v. Philip, 112
N.H. 282 (1972), the implied duty to indemnify arose out of an
explicit contract for services. Id. at 284, 86. Finally, in
Jaswell, 129 N.H. at 343, 46, the duty sprang from an explicit
agreement to furnish a product.
Here, the McGrath Estate alleges no agreement between
McGrath and the Ponds. Rather, the McGrath Estate claims a right
to indemnity as the third party beneficiary of a contract between
the Ponds and Parker. Because McGrath, too, had an agreement
with Parker and was involved in the jump that was the subject
matter of the Pond/Parker contract, the McGrath Estate claims,
essentially, that there was an implied agreement for services
between McGrath and the Ponds as well. From this implied
agreement, the McGrath Estate would also imply a duty to
indemnify under Emhart. New Hampshire common law, however, does not yet recognize
the "bootstrapping" advocated by the McGrath Estate. No
authority has been referenced which would suggest that under
these circumstances New Hampshire's common law would imply an
agreement between the parties and, from that agreement, also
imply a duty to indemnify. Absent an explicit agreement between
the parties for the provision of a product or service. New
Hampshire law does not appear to recognize an implied duty to
indemnify. Because the McGrath Estate does not allege the
existence of such an agreement, its claim for indemnity on the
basis of an implied duty cannot withstand the Ponds' motion to
dismiss.2
B. Restatement (Second) of Torts § 886B
The McGrath Estate also claims a right to indemnity under
the Restatement (Second) of Torts § 886B(2)(b) (1979), which
states that indemnity may be implied among tortfeasors if "[t]he
indemnitee acted pursuant to directions of the indemnitor and
reasonably believed the directions to be lawful." Here, the
2 This outcome is also in accord with New Hampshire's longstanding policy that indemnity agreements are "rarely to be implied and always to be strictly construed." Collectramatic, 127 N.H. at 321 (guoting Hamilton, 125 N.H. at 564).
10 McGrath Estate alleges that Mary Jane McGrath followed the
directions Nate Pond gave at the pre-show briefing. Because
§ 886B(2)(b) would appear, on its face, to apply to the facts
alleged in this case, the validity of the McGrath Estate's
indemnity claim turns, at this stage in the proceedings, on
whether New Hampshire has adopted or would follow § 886B(2)(b).
In support of its claim that § 886B(2)(b) is the law of New
Hampshire, the McGrath Estate cites Sears, Roebuck & Co. v.
Philip, 112 N.H. 282 (1972), and Riparian Land Corp. v. Cannuli,
No. 87-237-D, slip op. at 8 (D.N.H. Nov. 24, 1987), both of which
mention § 886. Sears, the only published New Hampshire case to
refer to § 886, merely cites a tentative draft of § 886B in order
to illustrate a point unrelated to subsection (2)(b) (upon which
the McGrath Estate relies). Sears, 112 N.H. at 286-87. Sears
neither cites to § 886B(2) (b) specifically, nor relies on it in
reaching its judgment. Similarly, Riparian merely refers to §
886B(2)(b) within a long list of authorities in order to
illustrate the theory of implied indemnity writ large. Riparian,
No. 87-237-D at 8.
11 Given New Hampshire's unmistakable policy that indemnity
agreements are "rarely to be implied and always to be strictly
construed," Collectramatic, 127 N.H. at 321 (quoting Hamilton,
125 N.H. at 564), it is far from certain that New Hampshire has
adopted, or would follow, the Restatement (Second) of Torts §
886B(2)(b). A federal court called upon to apply state law must
"take state law as it finds it: 'not as it might conceivably be,
some day; nor even as it should be . 1" Kassel v. Gannett Co., 875
F.2d 935, 950 (1st Cir. 1989) (quoting Plummer v. Abbott
Laboratories, 568 F. Supp. 920, 927 (D.R.I. 1983)). Expansive
reading and recognition of new causes of action under New
Hampshire law are tasks more appropriately left to the New
Hampshire Supreme Court. Therefore, consistent with the federal
courts' obligation to "apply [state] law according to its tenor,"
Kassel, 875 F.2d at 950, the court declines to expand New
Hampshire's common law into areas not yet considered by the New
Hampshire Supreme Court. The McGrath Estate's claim for
indemnity based on § 886B(2)(b) also does not survive the Ponds'
motion to dismiss.
IV. CONCLUSION
12 For the foregoing reasons, third party plaintiff's claims
for indemnity do not survive third party defendants' motion to
dismiss. Accordingly, the Ponds' limited motion to dismiss the
indemnity claims (document no. 31) pursuant to Fed. R. Civ. P.
12(b)(6) is granted.
SO ORDERED.
Steven J. McAuliffe United States District Judge
September 29, 1995
cc: Michael G. Gfroerer, Esg. Jeffrey B. Osburn, Esg. David B. Kaplan, Esg. Garry R. Lane, Esg. Charles W. Grau, Esg. Mark Scribner, Esg. David H. Bradley, Esg. Douglas J. Miller, Esg. Michael G. McQuillen, Esg. Richard B. Couser, Esg. Jeffrey S. Cohen, Esg. Ronald L. Snow, Esg. James C. Wheat, Esg. Gretchen Leah Witt, Esg. Thomas K. Pfister, Esg.