South Side Trust and Savings Bank of Peoria v. Mitsubishi Heavy Industries

• Court: Appellate Court of Illinois
• Decided: March 31, 2010
• Docket: 1-09-0148 Rel
• Status: Published

Opinion

SECOND DIVISION March 31, 2010

No. 1-09-0148

SOUTH SIDE TRUST AND SAVINGS BANK OF ) Appeal from the PEORIA, as personal representative of the Estates of ) Circuit Court of Christine Marie White, deceased, and John Michel ) Cook County White, deceased, ) ) Plaintiff-Appellant, ) ) v. ) ) MITSUBISHI HEAVY INDUSTRIES, LTD, a ) Corporation, MITSUBISHI HEAVY INDUSTRIES ) AMERICA, INC., a Corporation, HONEYWELL ) INTERNATIONAL, INC., a Corporation, ) WOODWARD GOVERNOR COMPANY, a ) Corporation, and AIR 1ST AVIATION COMPANIES, a ) Corporation, ) ) Defendants-Appellees ) ) ) (Stan Blaylock and Wayne Bates, ) Honorable ) Dennis J. Burke, Defendants). ) Judge Presiding.

JUSTICE KARNEZIS delivered the opinion of the court:

Plaintiff, South Side Trust and Savings Bank of Peoria, is the personal

representative of the estates of Christine Marie White (Christine) and John Michael 1-09-0148

White (Michael). Christine and John were killed when the small plane owned and

piloted by Michael crashed in New Mexico. Plaintiff filed an action in the circuit court of

Cook County asserting product liability and negligence claims against the

manufacturers and sellers of the plane and its component parts, Mitsubishi Heavy

Industries, Ltd. (Mitsubishi), Mitsubishi Heavy Industries America, Inc. (Mitsubishi

America), Honeywell International, Inc. (Honeywell), Woodward Governor Company

(Woodward) and Air 1st Aviation Companies (Air 1st) (collectively defendants), and

breach of warranty claims against Air 1st.1 The court dismissed plaintiff’s product

liability claims against Air 1st and granted summary judgment to defendants on all

remaining claims. On appeal, plaintiff argues the court erred in dismissing plaintiff’s

claims and/or granting summary judgment to defendants. It asserts the court erred in

(1) misapplying section 2-621 of the Illinois Code of Civil Procedure (735 ILCS 5/2-621

(West 1994))2, Federal Aviation Administration section 91.403(a) (14 C.F.R. §91.403(a)

1 Plaintiff also filed negligence claims against flight instructors Stan Blaylock

and Wayne Bates but those claims are not at issue here. 2 Public Act 89-7 amended section 2-621 (Pub. Act 89-7, eff. March 9, 1995

(amending 735 ILCS 5/2-621 (West 1994)). However, in Best v. Taylor Machine

Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997), our supreme court, held the act

unconstitutional in its entirety. Accordingly, the version of section 2-621 that was in

effect before the 1995 amendment is applicable to this case.

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(2006)) and the facts to plaintiff’s claims against Air 1st and (2) finding the 18-year

statute of repose provided by the General Aviation Revitalization Act of 1994 (49

U.S.C. §40101 note (2000)) (GARA) applicable to its claims against the other

defendants. We affirm in part, reverse in part and dismiss in part.

BACKGROUND

Michael and Christine were killed on June 10, 2001, when their plane, a model

MU-2B-20 passenger aircraft piloted by Michael, crashed in New Mexico. Mitsubishi, a

Japanese corporation, manufactured the fuselage and frame of the plane. In 1969, it

delivered those components to its subsidiary, Mitsubishi Aircraft International (MAI), in

Texas so that the plane could be assembled and the other components of the plane,

such as the engines and the interior, could be installed. In 1970, MAI sold the plane to

its first purchaser. In 1988, fuel control units and propellor governors manufactured by

Woodward were installed in the plane, replacing existing parts. In October 1994,

Honeywell, the successor to the manufacturer of the plane’s engines and parts of the

power plant control system in the plane, revised the engine maintenance manual and

distributed the revisions.

Air 1st bought the plane in 1998 and registered it with the Federal Aviation

Administration (FAA). Because Air 1st is not a maintenance facility, it contracted with

Epps Aviation (Epps) to update the planes records, to do a logbook search and

determine maintenance or certification issues. Once Epps finished, Air 1st ferried the

plane to Intercontinental Jet (Intercontinental) in order that Intercontinental could

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perform the work necessary to obtain a U.S. certificate of airworthiness.

Intercontinental was to make sure the plane met all the requirements of the

manufacturer’s service bulletins, research all the logbooks and perform inspections to

verify the plane met the specifications in the type certificate for the aircraft.

Intercontinental returned the plane to Air 1st in January 1999, having certified the plane

as meeting the FAA’s airworthiness requirements. The plane was recertified in January

2000. Air 1st sold the plane but subsequently regained title. Air 1st sold the plane to

Michael in April 2000. The crash occurred two months later.

In February 2003, plaintiffs filed a wrongful death and survival action in Cook

County against Mitsubishi; Mitsubishi America, the company which provides customer

support for operators of MU-2 type aircraft in the United States; Honeywell; and

Woodward. Plaintiff subsequently added Air 1st as a defendant. Plaintiff’s fourth

amended complaint charged that defendants manufactured and sold a defective and

unreasonably dangerous product containing defective and unreasonably dangerous

parts and they failed to provide adequate warnings and instructions regarding the

plane's fuel control unit, the idiosyncracies of which allegedly led to the crash.

The court dismissed the two product liability counts against Air 1st pursuant to

section 2-621 of the Code and granted summary judgment to Air 1st on the negligence

and breach of warranty claims against it. The court granted summary judgment to

Mitsubishi, Mitsubishi America, Honeywell and Woodward pursuant to GARA’s 18-year

statute of repose. GARA is an 18-year statute of repose that protects manufacturers of

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“general aviation aircraft” 3 and of new components, parts or systems of such aircraft

from liability for accidents that arise more than 18 years after the date a new aircraft is

delivered to its first purchaser. 49 U.S.C. §40101 note, §2(a)(1)(A) (2006). The 18-

year period of repose restarts with regard to the manufacturer of a new component, part

or system when that component, part or system is installed in a general aviation

aircraft. 49 U.S.C. §40101 note, §2(a)(2) (2006). The statute of repose does not apply

if a plaintiff can plead and prove that a manufacturer “knowingly misrepresented to the

[FAA], or concealed or withheld from the [FAA], required information that is material

and relevant” to the performance and maintenance of a general aviation aircraft or part

thereof and the information “is causally related” to the harm plaintiff allegedly suffered.

49 U.S.C. §40101 note, §2(b) (2006).

The court found the plane was a “general aviation aircraft” within the meaning of

GARA. Pursuant to GARA, the statute of repose on liability would expire in 1988, 18

years after the plane was delivered to its first purchaser in 1970. Plaintiff’s suit was for

an accident that happened in 2001, more than 13 years after the end of the repose

3 A “general aviation aircraft” is any aircraft for which the FAA has issued a type

or airworthiness certificate; has a maximum seating capacity of 20 passengers at the

time the FAA issues the certificate; and is not engaged in “scheduled” passenger

carrying activity at the time of the accident. General Aviation Revitalization Act of

1994, Pub. L. 105-102, §3(e), 111 Stat. 2216 (amended 1997).

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period and, accordingly, the end of the manufacturers’ liability. The court, therefore,

granted summary judgment to Mitsubishi, the plane’s Japanese manufacturer, finding

that GARA applies to a foreign manufacturer and plaintiff presented no evidence that

Mitsubishi knowingly misrepresented to or concealed material information from the FAA

such that the “knowing misrepresentation exception” to the repose period applied.

The court granted summary judgment to Mitsubishi America, finding that

Mitsubishi America qualified as a manufacturer under GARA and was, therefore,

entitled to its protections. The court granted summary judgment to Woodward, finding

the 1988 installation of the parts manufactured by Woodward did not restart the 18-

year repose period because plaintiff failed to present any evidence that those parts

caused the accident. Lastly, the court granted summary judgment to Honeywell, finding

that the revised engine maintenance manual distributed by Honeywell in 1994 did not

constitute a new “part of the aircraft” such that its distribution caused the statute of

repose to restart at that time. Plaintiff timely appealed the court’s order.

Analysis

Air 1st Aviation

a. Dismissal Pursuant to Section 2-621

The court granted dismissal of plaintiff’s strict liability claims against Air 1st

pursuant to section 2-621 of the Code. Section 2-621, also known as the Illinois

distributor statute or the “seller’s exception,” provides that a nonmanufacturer

defendant, usually a distributor or retailer, in a strict product liability action may be

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dismissed from the action if it certifies the correct identity of the manufacturer of the

product which allegedly caused the injury. 735 ILCS 5/2-621 (West 1994); Murphy v.

Mancari’s Chrysler Plymouth, Inc., 381 Ill. App. 3d 768, 770, 887 N.E.2d 569, 573

(2008). As soon as the plaintiff has filed against the product manufacturer and the

manufacturer has answered or otherwise pleaded, the court must dismiss the strict

liability claim against the certifying defendant(s), except where the plaintiff shows the

defendant participated in the design and manufacturer of the allegedly defective

product, had actual knowledge of the defect in the product or created the defect.

Murphy, 381 Ill. App. 3d at 770-71, 887 N.E.2d at 573; 735 ILCS 5/2-621(b), (c) (West

1994).

Pursuant to section 2-621(b), a plaintiff may move at any time for reinstatement

of a defendant previously dismissed pursuant to section 2-621 if an action against the

product manufacturer would be impossible or unavailing. 735 ILCS 5/2-621(b) (West

1994); Murphy, 381 Ill. App. 3d at 771, 887 N.E.2d at 573. Section 2-621(b) provides

in relevant part:

“The plaintiff may at any time subsequent to the dismissal move to vacate

the order of dismissal and reinstate the certifying defendant or defendants,

provided plaintiff can show one or more of the following:

(1) That the applicable period of statute of limitation or statute of repose

bars the assertion of a strict liability in tort cause of action against the

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manufacturer or manufacturers of the product allegedly causing the injury, death

or damage.” 735 ILCS 5/2-621(b)(1) (West 1994).

Air 1st moved to dismiss plaintiff’s strict liability claims pursuant to section 2-621

on the basis that it was not the manufacturer or designer of the plane or its parts, the

manufacturers had been identified and plaintiff had filed suit against the manufacturers.

There is no question that Air 1st complied with the requirements of section 2-621.

Plaintiff opposed the motion pursuant to sections 2-621(c)(2) and (c)(3), asserting that

Air 1st had knowledge or created the defect which caused the Whites’ deaths. Plaintiff

also raised the section 2-621(b)(1) reinstatement provision, asserting that, if the court

granted summary judgment to the manufacturer defendants (Mitsubishi, Mitsubishi

America, Woodward and Honeywell) pursuant to GARA, a statute of repose, its strict

liability claims against Air 1st could be vacated and the claims reinstated pursuant to

section 2-621(b). The court’s written order granted Air 1st’s motion to dismiss “with

prejudice pursuant to section 2-621.” The court stated it “did not consider the

applicability of section 2-621 in light of the rulings on the manufacturers’ motions.”

Plaintiff appealed the court’s order.

We have no jurisdiction to consider the court’s order dismissing plaintiff’s strict

liability claims against Air 1st pursuant to section 2-621. Dismissal of a defendant

pursuant to section 2-621 is not a final appealable order because “[a] dismissal under

section 2-621 does not dispose of the rights of the parties.” Kellerman v. Crowe, 119

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Ill. 2d 111, 115-16, 518 N.E.2d 116, 118 (1987). As the provisions of section 2-621(b)

show, the statute “clearly contemplates the possibility of further action.” Kellerman, 119

Ill. 2d at 116, 518 N.E.2d at 118. Under the circumstances prescribed in section 2-

621(b), a plaintiff may move at any time for the reinstatement of a defendant who was

previously dismissed under the statute. Kellerman, 119 Ill. 2d at 116, 518 N.E.2d at

118. Accordingly, until such occurs, and the motion is decided by the court, a dismissal

pursuant to section 2-621 is not final and appealable.

Here, after the court barred plaintiff’s strict liability claims against the

manufacturers pursuant to the GARA statute of repose, plaintiff did not move to vacate

the dismissal of its claims against Air 1st and seek reinstatement of those claims.

Granted, plaintiff raised the possible reinstatement of its claims pursuant to section 2-

621(b)(1) in its responses to Air 1st’s motion to dismiss. But it did so prior to the court’s

decision on its claims against the manufacturers; the court’s order specifically stated

the court did not consider whether section 2-621 applied in light of its rulings on the

manufacturers’ motions; and plaintiff did not move pursuant to section 2-621(b)(1) or

renew its previous argument after the court did enter judgment for the manufacturers.

Until plaintiff files and the court rules on a motion for vacation of the order dismissing

plaintiff’s strict liability claims against Air 1st and reinstatement of those claims

pursuant to section 2-621(b), we have no jurisdiction to consider the court’s dismissal

of those claims.

b. Summary Judgment on Negligence Count

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The court granted summary judgment to Air 1st on plaintiff’s negligence counts.

Plaintiff had charged Air 1st was a corporation, sold the accident aircraft to Michael

and, upon the sale, “it then and there became and was the duty of [Air 1st] to exercise

reasonable care in its conduct so as not to cause injury to *** plaintiff’s decedents.”

Plaintiff asserted Air 1st breached that duty when it negligently and carelessly sold the

aircraft (1) without “proper and adequate” instructions and warnings regarding the

“proper setting of the engine flight idle fuel flow settings” and “proper propellor rigging”;

(2) “when said aircraft had not been properly maintained, repaired and/or overhauled”;

(3) “without current and proper manuals (e.g. instructions in use)”; and (4) in a

defective and unreasonably dangerous condition.” Air 1st moved for summary

judgment, arguing that, as a prior owner of the aircraft, it owed no duty to plaintiff or its

decedents to maintain the plane in airworthy condition at the time of the accident. It

also asserted, in the alternative, that pursuant to FAA sections 91.403(a) and 91.405

(14 C.F.R. §§91.403(a), 91.405 (2006)), it was not liable for negligence because it

delegated its duty to ensure the airworthiness of the aircraft to FAA-qualified

mechanics at Epps and Intercontinental.

The FAA promulgates regulations imposing certain duties on owners of aircraft

to endure the safety of others. Jarmuth v. Aldridge, 321 Ill. App. 3d 690, 692, 747

N.E.2d 1014, 1017 (2001). To that end, section 91.403(a) provides:

“The owner or operator of an aircraft is primarily responsible for

maintaining that aircraft in airworthy condition, including compliance with part 39

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[airworthiness directives] of this chapter.” 14 C.F.R. § 91.403(a) (2006).

Similarly, section 91.405 provides:

“Each owner or operator of an aircraft --

(a) Shall have that aircraft inspected as prescribed in subpart E of this

part and shall between required inspections, except as provided in paragraph (c)

of this section, have discrepancies repaired as prescribed in part 43 of this

chapter.” 14 C.F.R. § 91.405(a) (2006).

Pursuant to sections 91.403 and 91.405, a “non commercial aircraft owner[]” may

delegate its “duty to ensure the safety of a privately owned aircraft” to FAA-qualified

mechanics and inspectors and cannot be held liable for breach of that duty unless it

knew or should have known of a problem or defect left unrepaired. Jarmuth, 321 Ill.

App. 3d at 693-94, 747 N.E.2d at 1018-19.

Applying sections 91.403(a) and 91.405 to the undisputed facts, the court held

that Air 1st had a duty to maintain the accident aircraft in an airworthy condition and

had delegated that duty to Intercontinental Jet in compliance with section 91.403, thus

discharging its duty; and, given the lack of evidence that Air 1st knew or should have

known of a defect or deficiency left unrepaired, was not liable for any violation of its

maintenance duty. It granted summary judgment to Air 1st. Plaintiff argues the court

erred in applying sections 91.403 and 91.405 because its claims are not negligent

maintenance claims against the previous owner of an aircraft but, instead, are product

liability negligence claims against a previous owner who happens to be a commercial

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refurbisher and reseller of planes and that it sued Air 1st as a seller, not as an owner.

Summary judgment is appropriate if “the pleadings, depositions, and admissions

on file, with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS

5/2-1005(c) (West 2008); Willett v. Cessna Aircraft Co., 366 Ill. App. 3d 360, 368, 851

N.E.2d 626, 633 (2006). It should only be granted if, after construing the pleadings,

depositions, admissions, and affidavits strictly against the movant and liberally in favor

of the opponent, no genuine issue as to any material fact is found and the right of the

moving party is clear and free from doubt. Willett, 366 Ill. App. 3d at 368, 851 N.E.2d at

633. Reviewing the court’s grant of summary judgment de novo (Willett, 366 Ill. App. 3d

at 368, 851 N.E.2d at 633), we find the court erred in granting summary judgment to Air

1st on the basis of sections 91.403 and 91.405.

It is uncontested that Air 1st is a corporation in the business of buying and

selling planes; advertises that it specializes in the Model MU-2; buys planes for its own

account; has the planes inspected, refurbished and maintained in order to meet the

requirements of service bulletins and federal airworthiness directives; sells the planes

once they have passed inspection and are airworthy; is not a maintenance facility;

delegates the inspection and maintenance of the planes to assorted maintenance

facilities; searched out and bought the accident aircraft in 1998 for the purpose of

resale; delegated the inspection and maintenance of the accident aircraft to

Intercontinental; sold the accident aircraft in 1999; reacquired it in 2000; and sold it to

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Michael in 2001. As we found in our previous opinion in this case (Commerce Trust

Co. v. Air 1st Aviation Cos., 366 Ill. App. 3d 135, 851 N.E.2d 133 (2006) (in the context

of Air 1st’s motion to dismiss for lack of personal jurisdiction)), plaintiff’s cause of action

lies in the wake of Air 1st’s commercial activities. There is no question that plaintiff’s

negligence claims are directed to Air 1st as the commercial seller of the aircraft, not

against it as an owner, whether past or present.

Sections 91.403(a) and 91.4054 have no application in the context of plaintiff’s

claims against Air 1st. As the clear language of the sections shows, the responsibility

for maintaining the airworthiness of an aircraft lies with the “owner” of the aircraft, i.e.,

the current owner rather than the past owner. See Tanner v. Rebel Aviation, Inc., 146

Ga. App. 110, 113, 245 S.E.2d 463, 465 (1978) (court held section 91.403(a), formerly

4 “When considering [section 91.403(a), formerly known as 14 CFR § 91.163],

together with all of the other regulations pertaining to the maintenance of aircraft it

appears that the purpose of the regulations is to ‘ . . . promote air safety and protect the

lives of pilots, passengers, and persons on the ground.’ [Citation.] Thus, it is obvious

that the Federal Aviation Regulations do not establish commercial warranties, but seek

to protect the safety of the general public. *** [A] subsequent owner of [an] aircraft[ ] is

not within the class of people protected by this rule.” Tanner v. Rebel Aviation, Inc.,

146 Ga. App. 110, 113, 245 S.E.2d 463, 465 (1978), quoting French v. C. A. B., 378

F.2d 468, 471 (10th Cir. 1967).

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14 C.F.R. §91.163, did not provide current owner of aircraft with cause of action against

past owner of aircraft for failure to maintain aircraft in airworthy condition pursuant to

section 91.403(a) duty). Further, the sections contain no indication that they impose a

continuing duty to maintain on past owners of the aircraft.

At the time of the accident, Michael was the owner of the aircraft. Air 1st was the

previous owner. Air 1st’s duty to maintain the plane pursuant to sections 91.403(a) and

91.405, if any, ceased when it sold the plane to Michael, when it gave up its ownership.

As of the date Michael became the owner of the aircraft, he had the duty to maintain

the plane, not Air 1st. In addition, plaintiff is claiming against Air 1st as the seller of the

plane, not as the owner of the plane. Granted, Air 1st fills both the role of commercial

seller and former owner of the plane, but plaintiff’s claims are solely directed to Air 1st’s

actions as a seller. Sections 91.403(a) and 91.405 have no place in an action filed

against anyone other than the then-current owner of an aircraft. The court erred in

finding otherwise here and in granting summary judgment to Air 1st on that basis.

Further, although we may affirm the court on any basis found in the record (Fabiano v.

City of Palos Hills, 336 Ill. App. 3d 635, 641, 784 N.E.2d 258, 265 (2002)), we find no

other basis here for a grant of summary judgment to Air 1st on plaintiff’s negligence

claims.

In order to establish a cause of action for negligence, a plaintiff must show the

following elements: the existence of a legal duty owed by the defendant to the plaintiff;

breach of that duty; a resulting compensable injury to the plaintiff; and the breach was

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the proximate cause of the injury. Miller v. Dvornik, 149 Ill. App. 3d 883, 891, 501

N.E.2d 160, 166 (1986). To that end, plaintiff’s complaint charged that when Air 1st

sold the plane to Michael, “it then and there became and was the duty of [Air 1st] to

exercise reasonable care in its conduct so as not to cause injury to the person of the

plaintiff’s decedents, and each of them.” Plaintiff asserted Air 1st breached “its duty of

care to the plaintiff’s decedents” when it negligently and carelessly sold the aircraft

without “proper and adequate” instructions and warnings regarding certain

components, proper maintenance and repair, current manuals and “in a defective and

unreasonably dangerous condition.”

Plaintiff’s complaint clearly conveys that Air 1st’s duty of care arose from its

actions as the seller of the plane. There is no question that liability for a defective

product can be imposed on a seller in the business of placing products in the stream of

commerce, especially where, as here, a contract for the sale of goods exists. The

majority of Air 1st’s argument below, however, was directed to asserting it had no duty

as a past owner pursuant to sections 91.403(a) and 91.405 rather than asserting it had

no duty as a seller, i.e., addressing the argument plaintiff actually made. The only

other basis for summary judgment presented by Air 1st was its cursory assertion that

plaintiff’s complaint presented insufficient facts from which the court could infer that Air

1st had a legal duty of care toward the Whites or what the scope of that duty was. As

noted, the complaint was more than sufficient to show Air 1st’s alleged duty of care

toward plaintiff and its decedents arose from Air 1st’s actions as a seller in the

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business of placing products in the stream of commerce. Defendant presented no

evidence showing it had no duty as a seller or that it complied with its duty as a seller.

Defendant did not support its motion for summary judgment with evidentiary facts and

plaintiff may, therefore, rely on its complaint to establish a genuine issue of fact.

Kielbasa v. St. Mary of Nazareth Hospital, 209 Ill. App. 3d 401, 406, 568 N.E.2d 208,

211 (1991). We reverse the grant of summary judgment to Air 1st on plaintiff’s

negligence counts.

c. Summary Judgment on Breach of Implied Warranty Count

The court granted summary judgment to Air 1st on plaintiff’s breach of implied

warranty claims against Air 1st. Plaintiff alleged Air 1st “expressly and/or impliedly

warranted and represented that the subject aircraft, including its instructions and

warnings, was airworthy, of merchantable quality, fit and safe for the purpose for which

it was designed, *** sold, serviced, *** intended and used, and *** was free from

defects” and that Air 1st breached said warranties for assorted reasons as previously

set forth. Air 1st moved for summary judgment, asserting there was no evidence to

show the aircraft was not airworthy when Air 1st sold it to Michael and that the

deposition of Zipper Robbins, Air 1st’s president in 1998, shows he/Air 1st made no

promises or warranties to Michael about the airworthiness of the aircraft when he sold it

to Michael. Finding no evidence that Air 1st “expressly and/or impliedly warranted and

represented that the subject aircraft, including its instructions and warnings, was

airworthy,” and noting its previous finding that Air 1st properly delegated any and all of

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its duties to maintain the aircraft to Intercontinental, the court granted summary

judgment to Air 1st.

Plaintiff argues the court erred in considering the fact that Air 1st delegated its

maintenance duties to Intercontinental and in failing to find the existence of an implied

warranty of fitness for a particular purpose. Given our previous conclusion that the

court erred in applying sections 91.403(a) and 91.405, we agree that the court should

not have considered the fact that Air 1st delegated its duty to maintain the

airworthiness of the aircraft to another party. Indeed, we do not see how the delegation

of this duty is relevant to whether there existed an implied warranty between Air 1st and

Michael and whether Air 1st breached that warranty.

Further, it was not plaintiff’s burden at the summary judgment stage to prove its

assertions where Air 1st did not provide evidentiary support for its motion for summary

judgment. Kielbasa, 209 Ill. App. 3d at 406, 568 N.E.2d at 211. It is uncontested that

there was a contract between Air 1st and Michael for the sale of the plane and that the

contract provided no express warranty for the plane. Plaintiff, however, pled the

existence of an implied warranty of fitness for a particular purpose arising from the sale.

In order to show the existence and breach of an implied warranty of fitness for

particular purpose, a plaintiff must show “(1) a sale of goods, (2) that the seller had

reason to know of any particular purpose for which the goods are required, (3) that

plaintiff, as buyer of the goods, was relying upon seller's skills or judgment to select

suitable goods, and (4) that the goods were not fit for the particular purpose for which

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they were used.” Maldonado v. Creative Woodworking Concepts, Inc., 342 Ill. App. 3d

1028, 1034, 796 N.E.2d 662, 666 (2003).

Plaintiff showed a sale of the aircraft and Michael’s particular purpose for the

aircraft is obvious: to fly it and travel safely in it. The aircraft arguably was not fit for

that purpose because it crashed. Air 1st moved for summary judgment on the basis

that Robbins’ testimony shows he made Michael no promises regarding the

airworthiness of the aircraft and plaintiff failed to show the plane was not airworthy

when sold to Michael. This evidence, Robbins’ testimony that he made no promises to

Michael, was solely directed to negating the existence of an express warranty. But

plaintiff had asserted the existence of both an express warranty and of an implied

warranty. Air 1st presented no evidence negating the existence of an implied warranty,

such as testimony that the plane was airworthy when sold to Michael or that Michael

did not rely on Air 1st’s judgment in selecting the plane. Air 1st contested the

existence of an implied warranty by asserting that plaintiff’s presented no evidence that

the plane was not airworthy. That is not plaintiff’s burden at this stage. Only in the

face of evidence negating the existence of an implied warranty of fitness for a particular

purpose would plaintiff be required to provide evidentiary material in support of its

complaint. The burden was on Air 1st to support its argument that there was no implied

warranty of fitness for a particular purpose with evidentiary facts. It failed to do so.

The court erred in granting summary judgment to Air 1st on plaintiff’s breach of implied

warranty of fitness for a particular purpose counts.

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Woodward Governor

The court granted summary judgment to Woodward, finding that the 18-year

statute of repose provided by GARA protected Woodward from liability in plaintiff’s suit.

There being only one case in Illinois addressing the application of GARA5, we will refer

to other jurisdictions for guidance.

GARA provides, in relevant part, as follows:

“(a) *** Except as provided in subsection (b), 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 or the manufacturer of any new component, system, subassembly, or

other part of the aircraft, in its capacity as a manufacturer if the accident

occurred –

(1) after the applicable limitation period beginning on-

(A) the date of delivery of the aircraft to its first purchaser or

lessee, if delivered directly from the manufacturer; or

(B) the date of first delivery of the aircraft to a person

engaged in the business of selling or leasing such aircraft; or

(2) with respect to any new component, system, subassembly, or other

5 Willett v. Cessna Aircraft Co., 366 Ill. App. 3d 360, 851 N.E.2d 626 (2006).

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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 damage, after the applicable

limitation period beginning on the date of completion of the replacement

or addition.” 49 U.S.C. §40101 note, §2(a) (2006).

The GARA statute of repose does not apply for the following exceptions: (1) where the

plaintiff proves the manufacturer knowingly misrepresented to the FAA or concealed or

withheld from the FAA required information material to the performance or maintenance

of the aircraft or part that is causally related to the injury; (2) for injury to a passenger

traveling on the plane for purposes of medical treatment or other emergency; (3) for

injury to a person who was not on board the plane at the time of the accident; and (4)

for a claim brought under a written warranty enforceable under the law except for the

operation of GARA. 49 U.S.C. §40101 note, §2(b) (2006).

The applicable “limitation period” is “18 years with respect to general aviation

aircraft and the components, systems, subassemblies, and other parts of such aircraft.”

49 U.S.C. §40101 note, §3(3) (2006). Pursuant to GARA section 2(a)(2), referred to as

the “rolling provision,” the 18-year repose period can restart when a new part or

component is installed in a general aviation aircraft as against the manufacturer of that

replacement part. Moyer v. Teledyne Continental Motors, 2009 Pa. Super. 124, ¶ 7.

The rolling provision applies if the plaintiff can show that a new item replaced an item

either originally in the aircraft or added to the aircraft and the new item was also a

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cause of the claimed damages. Hiser v. Bell Helicopter Textron Inc., 111 Cal. App. 4th

640, 650, 4 Cal. Rptr. 3d 249, 257 (2003). The repose period restarts only for the

newly installed part. Hiser, 111 Cal. App. 4th at 650, 4 Cal. Rptr. 3d at 257.

A defendant has the burden of proof in showing that an affirmative defense such

as a statute of repose applies. Willett, 366 Ill. App. 3d at 371, 851 N.E.2d at 635. If a

defendant makes a showing that the statute of repose applies, then the plaintiff has the

burden to show facts that operate to toll or create an exception to the repose period.

Willett, 366 Ill. App. 3d at 371, 851 N.E.2d at 635-36. It is uncontested that: Michael’s

plane was the type of general aviation aircraft covered by GARA; the plane was sold to

its first user in 1970; the 18-year GARA repose period would start at the time of that

sale and expire in 1988; and the accident occurred in 2001, more than 30 years after

the plane was first sold and well beyond the 18-year repose period. Accordingly, a

manufacturer of the plane or a part thereof would be protected from plaintiff’s suit

unless it manufactured new parts which were installed in the plane within 18 years of

the accident or one of the four exceptions applied. 49 U.S.C. §40101 note,

§§2(a)(1)(A), (a)(2), (b) (2006). Woodward was the manufacturer of two fuel control

units and two propeller governors in the plane when it crashed. Arguably, therefore, it

would be protected from plaintiff’s suit under GARA.

Plaintiff’s first amended complaint stated strict liability and negligence counts

against Woodward. The complaint asserted the plane contained fuel control units and

a “propellor synchrophaser” manufactured by Woodward; one of the fuel control units

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and/or the synchrophaser was a cause of the crash; and the action was not subject to

GARA because the two components were manufactured and installed within the GARA

repose period.

Woodward moved for summary judgment, asserting that GARA barred any

claims against it because “[a]ll the Woodward components alleged to have caused the

accident were manufactured more than eighteen years prior to the accident.” It

asserted that it had manufactured and delivered the two fuel control units to the

manufacturer of the engine in the plane in 1968 and 1969 and, at the time of the crash,

those components had been in operation over 30 years. Woodward pointed out that,

contrary to the assertion in plaintiff’s complaint, the plane did not contain a

“synchrophaser” system. Instead it contained two propellor governors corresponding to

a “synchronizer” system. Woodward asserted it had manufactured and delivered “the

last synchronizers” in 1979.6 Woodward attached the affidavit of Steven Krugler, a

senior engineer at Woodward responsible for accident investigation. Krugler stated he

had examined the wreckage, identified the Woodward parts therein, traced available

serial numbers and determined the fuel control units were delivered and manufactured

in 1968 and 1969 and the last propellor governor/synchronizer system was

6 Plaintiff corrected its allegations to show the Woodward parts at issue

included propellor governors and not propellor synchrophasers in its fourth amended

complaint.

22 1-09-0148

manufactured and delivered in 1979.

Plaintiff responded to the motion for summary judgment by arguing that the 18-

year repose period pertaining to Woodward restarted in 1988 for the fuel control units

and in 1999 for the propellor governors because the fuel control units in the plane were

reconditioned with new parts in 1988 and the propellor governors were newly installed

in 1999; the parts were either new or refurbished with new parts when installed; and the

parts were alleged to be a proximate cause of the crash. As a result, the 2001 accident

would fall within the restarted period running from 1988 to 2006 for the fuel control units

and 1999 to 2017 for the propellor governors and plaintiff’s suit against Woodward

would not be barred.

Plaintiff supported its assertion that the parts were new and/or refurbished when

installed in 1988 and 1999 with the affidavit of its expert, William Mermelstein, an FAA-

licensed mechanic with airframe and powerplants ratings and qualified by the FAA as a

designated maintenance examiner and manufacturers inspection representative.

Mermelstein testified that in 1988 the fuel control unit had been repaired and parts

therein replaced with new parts. He also stated the propellor governor had been

assembled in January 1999; it could not, therefore, have been put into the plane before

1999; and it was probably installed in the plane by Intercontinental in 1999.

Plaintiff’s response stated that its complaints had consistently charged that the

defective condition of Woodward’s parts caused the crash. It noted that, from the then-

current pleadings, it appeared “Woodward seeks judgment based solely on the

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passage of GARA’s initial 18-year from date of sale repose period.” Plaintiff stated:

“Whether Woodward will contest causation based on plaintiff’s charges is

undetermined on the papers presently before this Court. In response, plaintiff

refers the Court to the testimony of Woodward’s Krugler who testified ‘you would

have to have both a fuel control and a prop governor failure for it to affect the

NTS system,’ NTS referring to negative torque sensing mode. NTS has been

acknowledged by [Mitsubishi] as a condition which can ‘result in unsafe flight

characteristics.’ “

It then concluded that “the question of causation is adequately established for

purposes of this motion.”

In Woodward’s reply to plaintiff’s response, it did not contest plaintiff’s allegation

that the parts were new or refurbished with new parts or Mermelstein’s support of those

allegations. It agreed there was no doubt the propellor governors was installed in 1999

and the fuel control units were reconditioned in 1988. Instead, Woodward asserted

plaintiff’s “problem” was that Mermelstein’s affidavit did not say “what is required by the

exception to the GARA repose period -- the GARA-exempt parts caused the crash,”

that plaintiff’s expert “refused to back up” plaintiff’s theory of the case with his opinions

as to causation.

The court granted summary judgment to Woodward. Although it found plaintiff

sufficiently showed the relevant fuel control unit and propellor governor were “new”

parts, it held that plaintiff failed to present evidence to support its allegation that the

24 1-09-0148

fuel control unit and/or propeller governor caused the accident because Mermelstein’s

affidavit was insufficient to support plaintiff’s allegation that the right fuel control unit

and propeller governor caused the accident. The court, therefore, determined that the

18-year statute of repose did not restart when the fuel control unit and propellor

governor were installed in the plane and plaintiff was barred from seeking recovery

from Woodward.

Neither party contests the court’s finding that the fuel control unit and propellor

governor were “new” when installed in the plane. The issue is whether plaintiff

sufficiently supported its allegation that the fuel control unit and propellor governor

caused the accident to survive the motion for summary judgment. Plaintiff asserts the

court erred in (1) considering Woodward’s argument regarding plaintiff’s failure to show

proximate cause because Woodward did not raise that argument in its motion for

summary judgment, only in its reply to plaintiff’s response to the motion for summary

judgment and (2) finding that Mermelstein’s affidavit was insufficient, in direct disregard

of plaintiff’s allegations in its complaint and Mermelstein’s statement in his affidavit that

the term “powerplant control system components” (which caused the crash) includes

Woodward’s fuel control units and propeller governors.

Plaintiff is correct that Woodward only raised a single issue in its motion for

summary judgment: that GARA did not restart because the fuel control units and

propellor governors had been in service more than 18 years before the crash and,

therefore, not new when installed in the plane. Plaintiff states it, therefore, conducted

25 1-09-0148

discovery directed to the issue of whether the parts were new when installed and

specifically replied to the argument by providing evidence that the parts were new when

installed. Although plaintiff made a brief mention of proximate cause in its response, it

did not directly respond to any argument by Woodward contesting proximate cause

because Woodward had not made such an argument. Only after plaintiff filed its

response to the motion for summary judgment showing that the parts were new when

installed during the 18-year repose period did Woodward raise the issue of proximate

cause in its reply. Plaintiff argues it had no opportunity to address the issue of

proximate cause because the issue was not at bar when it filed its response. It had

presented Mermelstein’s affidavit for the sole purpose of combating Woodward’s single

contention that new parts were not inserted into the plane.

Woodward having asserted the affirmative defense of the GARA statute of

repose, it was plaintiff’s burden to show facts tolling or creating an exception to GARA.

To that end, plaintiff asserted the 18-year period restarted because the Woodward

parts were installed during the repose period. In order to show GARA restarted,

plaintiff would have to show the parts were (1) new when installed and (2) alleged to

have caused the crash. Plaintiff, as the burdened party, presented evidence to support

both those elements. Granted, because Woodward did not contest causation in its

motion for summary judgment, plaintiff presented only a bare minimum of evidence

supporting its allegation that Woodward’s parts caused the accident, but it did present

some support.

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Woodward, in its response, did not present any evidence to show that the parts

did not cause the crash, i.e., rebut plaintiff’s allegation and evidence that the parts did

cause the crash. It did not present an expert saying the parts were not at fault.

Instead, it argued that Mermelstein’s affidavit was insufficient to show causation.

Plaintiff did not have to prove its case at the summary judgment stage. Where a

defendant does not support its motion for summary judgment with evidentiary facts, the

plaintiff may rely on its complaint to establish a genuine issue of fact. Kielbasa v. St.

Mary of Nazareth Hospital, 209 Ill. App. 3d 401, 406, 568 N.E.2d 208, 211 (1991).

In the absence of evidentiary material from Woodward that the parts did not cause the

crash, plaintiff did not have to present an expert saying that the parts did cause the

crash to oppose the motion for summary judgment. Kielbasa, 209 Ill. App. 3d at 406,

568 N.E.2d at 211. The court erred in granting summary judgment to Woodward

because a question of fact existed regarding whether the Woodward parts caused the

accident.

Honeywell

The court granted summary judgment to Honeywell, finding the GARA statute of

repose applied to bar plaintiff’s suit against Honeywell. It is uncontested that

Honeywell is the successor manufacturer of the plane’s engines, originally installed in

the plane in 1980, and that none of the GARA exceptions apply to Honeywell.

Honeywell is, therefore, protected from plaintiff’s suit unless it manufactured new parts

which were installed in the plane within 18 years of the accident. Plaintiff asserts that

27 1-09-0148

Honeywell did install such new parts when it issued a revised engine maintenance

manual in October 1994 and that the statute of repose restarted at that time. Plaintiff’s

argument is that an aircraft maintenance manual is a “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” under section 2(a)(2).

Plaintiff is correct that a flight manual has been considered a “part” of a general

aviation aircraft for GARA purposes. See Caldwell v. Enstrom Helicopter Corp., 230

F.3d 1155 (9th Cir. 2000); Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1220-21

(10th Cir. 1991). A flight manual is an integral part of every general aviation aircraft

product that a manufacturer sells. Caldwell, 230 F.3d at 1157. It is not a separate,

general instructional guide but a guide specific to the type of aircraft, required by

federal regulation to be on board every aircraft and containing the instructions

necessary to operate the aircraft and used by the pilot. Caldwell, 230 F.3d at 1157. A

flight manual “fits comfortably within the terminology and scope” of GARA section

2(a)(2). Caldwell, 230 F.3d at 1157.

A maintenance manual is not comparable to a flight manual and does not fit

within the scope of GARA section 2(a)(2). Moyer, 2009 Pa. Super. 123 ¶14.; Burton v.

Twin Commander Aircraft, LLC., 148 Wash. App. 606, ___ P.3d ___ (2009).7 Unlike a

7 See also the following cases rejecting the argument that an aircraft

maintenance manual is a “part” of an aircraft for GARA purposes: Robinson v. Hartzell

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flight manual, a maintenance manual is not necessary to operate a plane. Burton, 148

Wash. App. at ___, 221 P.3d at 295, following Colgan Air, Inc. v. Raytheon Aircraft Co.,

507 F.3d 270 (4th Cir. 2007) (determining whether a maintenance manual is “part” of

an aircraft for purposes of warranty claims). It outlines procedures for servicing,

troubleshooting and repairing aircraft and is used by a mechanic on the ground to

service a plane, not by a pilot in the air to fly a plane. Colgan Air, Inc., 507 F.3d at 276.

Unlike a flight manual, a maintenance manual is not integral to safe operation of an

aircraft. Colgan Air, Inc., 507 F.3d at 277. It is not the sole means by which an aircraft

operator can obtain airworthiness. Colgan Air, Inc., 507 F.3d at 277.

Granted, federal regulations require that complete instructions for airworthiness

be furnished to the owner of each type of aircraft and that those instructions must

include an airplane maintenance manual describing the plane’s features “to the extent

Propeller Inc., 326 F. Supp. 2d 631 (E.D. Pa. 2004); Alter v. Bell Helicopter Textron,

Inc., 944 F.Supp. 531 (S.D. Tex. 1996); Carolina Industrial Products, Inc. v. Learjet,

Inc., 189 F. Supp. 2d 1147 (D. Kan. 2001). All were decided in the context of “failure to

warn” claims, finding that the plaintiffs were attempting to circumvent the GARA statute

of repose by arguing that a manual or service bulletin issued within 18 years of an

aircraft accident was defective, i.e., the manual or bulletin failed to warn of or correct a

design flaw, because the plaintiffs were precluded from suing for the flaw itself by

expiration of the period of repose.

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necessary for maintenance or preventive maintenance.” 14 C.F.R. §§21.50(b),

23.1529, §23.2(a) (2006). But there is no federal regulation requiring that a

maintenance manual be on board every plane or that a mechanic use only the methods

prescribed in the current manufacturer’s maintenance manual. Colgan Air, Inc., 507

F.3d at 277. Instead, a mechanic may use the maintenance manual or instructions for

continued airworthiness prepared by the manufacturer or “ ‘other methods, techniques

and practices acceptable to the [FAA].’ ” (Emphasis omitted.) Colgan Air, Inc., 507

F.3d at 277, quoting 14 C.F.R. §43.13 (2006). Because we do not consider a

maintenance manual integral to the aircraft, a maintenance manual is not a “part” within

the scope of GARA section 2(a)(2).

Our decision is reinforced by the fact that, if we did find that the statute of repose

is triggered every time a manufacturer issues a service bulletin or an update to a

maintenance manual, the intent of GARA would be eviscerated. Moyer, 2009 Pa.

Super. 124, ¶ 9. GARA, a product liability statute of repose, was created

“ ‘ “to protect general aviation manufacturers from long-term liability in those

instances where a particular aircraft has been in operation for a considerable

number of years. A statute of repose is a legal recognition that, after an

extended period of time, a product has demonstrated its safety and quality, and

that it is not reasonable to hold a manufacturer legally responsible for an

accident or injury occurring after that much time has elapsed.” ’ ” Burroughs v.

Precision Airmotive Corp., 78 Cal. App. 4th 681, 689, 93 Cal. Rptr. 2d 124, 130

30 1-09-0148

(2000), quoting Altseimer v. Bell Helicopter Textron, Inc., 919 F. Supp. 340, 342

(E.D.Cal. 1996), quoting 140 Cong. Rec. H4998, H4999 (daily ed. June 27,

1994)(Statement of Representative Fish).

Congress determined that general aviation aircraft manufacturers and aircraft

component manufacturers in the United States were facing a “ ‘precipitous’ ” decline

because of the costs associated with defending product liability suits for alleged

design and manufacturing defects. Burroughs, 78 Cal. App. 4th at 690, 93 Cal. Rptr.

2d at 131. The American manufacturers were subject to “long tail” tort liability, liability

from the time an aircraft was sold until it was taken out of service many years later and

concomitantly high product liability insurance rates and legal costs. Burroughs, 78 Cal.

App. 4th at 690, 93 Cal. Rptr. 2d at 131. Congress determined that setting a time limit

on liability was reasonable and necessary to free the manufacturers from the burdens

imposed by the “long tail” liability while at the same time “ ‘affording fair treatment to

persons injured in general aviation aircraft accidents.’ ” Burroughs, 78 Cal. App. 4th at

690, 93 Cal. Rptr. 2d at 131, quoting H.R. Rep. No. 103-525(I), at 1 (1994), as

reprinted in 1994 U.S.C.C.A.N. 1638, 1638.

Congress’s intent was that liability be cut off when a general aviation aircraft or

component of such an aircraft is more than 18 years old. If we interpret GARA as

requiring that the statute of repose restarts every time a new service bulletin or

maintenance manual is issued for an aircraft or component that is more than 18 years

old, that intent will be thwarted. Congress intended that liability start anew upon

31 1-09-0148

installation of a new part affecting the safety of the aircraft (GARA section 2(a)(2)), not

upon each issuance of an updated service guide for mechanics. The court did not err

in granting summary judgment to Honeywell.

Mitsubishi Heavy Industries

The court granted summary judgment to Mitsubishi. Mitsubishi, the

manufacturer of the major structural components of the plane, showed that it is

protected from plaintiff’s suit by GARA because the 2001 accident occurred more than

18 years after the plane it manufactured was sold to its first purchaser. Plaintiff

asserts, however, that the court erred in granting summary judgment to Mitsubishi

because (1) GARA does not apply to Mitsubishi because Mitsubishi is a Japanese

manufacturer and Congress intended that GARA apply to only American manufacturers

and (2) questions of fact exist regarding whether Mitsubishi knowingly misrepresented

to the FAA or concealed or withheld from the FAA material information regarding

improper fuel flow settings and propellor rigging which affected the controllability of the

plane and led to the accident such that the exception to the statute of repose stated in

GARA section 2(b)(1) applies to allow plaintiff’s suit against Mitsubishi.

a. Foreign Manufacturers

The first question is whether GARA applies to a foreign manufacturer. The

circuit court’s interpretation of GARA is subject to de novo review. County of Du Page

v. Illinois Labor Relations Board, 231 Ill. 2d 593, 603-04, 900 N.E.2d 1095, 1101

(2008). Our main objective in interpreting a statute is to determine and give effect to

32 1-09-0148

the intent of the legislature in enacting it. County of Du Page, 231 Ill. 2d at 604, 900

N.E.2d at 1101. The best indicator of that intent is the statutory language, which

should to be given its plain and ordinary meaning. County of Du Page, 231 Ill. 2d at

604, 900 N.E.2d at 1101. Words and phrases must be interpreted in light of other

relevant provisions and the statute as a whole. County of Du Page, 231 Ill. 2d at 604,

900 N.E.2d at 1101. We may also consider the purpose behind the law, “the evils

sought to be remedied,” and the consequences of construing the statute one way or the

other. County of Du Page, 231 Ill. 2d at 604, 900 N.E.2d at 1101. If a statute is capable

of more than one reasonable interpretation, it is deemed ambiguous and we may

consider extrinsic aids such as legislative history in our construction of the statute.

County of Du Page, 231 Ill. 2d at 604, 900 N.E.2d at 1101.

Looking to the GARA language, nowhere does it specifically state that it is only

to be applied to American manufacturers or that foreign manufacturers should be

excluded from its protections and plaintiff does not assert otherwise. Instead, plaintiff

asserts that a congressional intent to limit GARA’s benefits to American manufacturers

can be inferred from GARA’s legislative history. There is no question that GARA was

intended to reinvigorate the American general aviation aircraft industry. As plaintiff

points out, the “purpose of the bill” introducing GARA states the bill “has been

developed in response to a serious decline in the manufacture and sale of general

aviation aircraft by Unites States companies.” H.R. Rep. No. 103-525(I), at 1 (1994),

as reprinted in 1994 U.S.C.C.A.N. 1638, 1638. Further, as plaintiff’s citations to

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assorted congressional proclamations in favor of the bill show, the congressmen

considered that their intent in passing the legislation was to “let us help American

industry win” (140 Cong. Rec. S2452-02, S2464 (daily ed. March 8, 1994 (statement of

Senator Dorgan)); “level the playing field between U.S. manufacturers of light aircraft

versus our foreign competition” (140 Cong. Rec. S2995-01, S2996 (daily ed. March 8,

1994) (statement of Senator Simpson)); and offset the “phenomenal competitive

advantage” foreign manufacturers of small aircraft enjoy over American manufacturers

because of the “excessively burdensome liability laws” imposed upon American

manufacturers (140 Cong. Rec. S2452-02, S2465 (daily ed. March 8, 1999) (statement

of Senator Simpson)). But just because Congress intended GARA to reinvigorate the

American small aircraft industry does not mean that Congress intended to do so to the

detriment of foreign manufacturers.

Looking to GARA’s plain language, it refers only to a “manufacturer” of “general

aviation aircraft” and components. It does not define “manufacturer,” let alone limit the

term to cover only American manufacturers. It does define “general aviation aircraft,”

providing that a general aviation aircraft means “any aircraft” awarded a type certificate

or certificate of airworthiness by the FAA, with a maximum seating capacity of 20

passenger and not engaged in scheduled passenger service at the time the accident.

(Emphasis added.) 49 U.S.C. §40101 note, §2(c) (2006). So, a manufacturer of “any”

aircraft or of a component of “any” aircraft meeting those requirements, i.e., all the FAA

requirements for issuance of a type certificate or airworthiness certificate as well as the

34 1-09-0148

passenger and scheduling requirements of the GARA definition, is covered by GARA.

This would necessarily mean that foreign manufacturers meeting those requirements

are also protected by GARA. See, cited for its persuasive value, LaHaye v. Galvin

Flying Service, Inc., 144 Fed. Appx. 631 (9th Cir. 2005) (rejecting argument that GARA

statute of repose does not apply to foreign manufacturers of general aviation aircraft),

following Lyon v. Agusta S.P.A., 252 F.3d 1078 (9th Cir. 2001) (applying the statute of

repose to bar an action against an Italian aircraft manufacturer without discussing

whether GARA applies to foreign manufacturers).

The fact that we read GARA to protect both domestic and foreign manufacturers

does not mean the term “manufacturer” or GARA itself is ambiguous. In fact, GARA’s

language is very clear: a manufacturer of any aircraft or component of any aircraft

meeting the FAA and GARA requirements is protected by the statute of repose. In

other words, GARA’s statute of repose concerns lawsuits against manufacturers filed in

the United States, not suits filed against United States’ (American) manufacturers.

Reading GARA to include foreign manufacturers does not dilute the congressional

intent to help American manufacturers nor lead to an absurd result such that this

interpretation cannot stand. American manufacturers reap benefits from the statute of

repose, as intended, and, whether by design or accident, foreign manufacturers do as

well. The court did not err in finding as a matter of law that GARA applies to a foreign

manufacturer.

b. Knowing Misrepresentation Exception

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Before a manufacturer can put a new model aircraft into production it must

obtain a type certificate for that model from the FAA. United States v. S.A. Empresa de

Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 804-05, 81 L. Ed. 2d 660,

669, 104 S.Ct. 2755, 2760 (1984). The FAA issues a “type” certificate for a new model

of aircraft upon its approval of the plane’s basic design and analysis of data from

ground and flight tests performed on a prototype of the new aircraft to show the plane

meets minimum safety criteria set out in federal regulations. United States v. S.A.

Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. at 805-06, 81 L.

Ed. 2d at 669-70, 104 S.Ct. at 2760-61. The type certificate freezes the design of the

aircraft as of the date the FAA issues the certificate. Robinson Helicopter Co. v. Dana

Corp., 34 Cal. 4th 979, 985, 102 P. 3d 268, 270, 22 Cal. Rptr. 3d 352, 355 (2004). FAA

regulations provide that “ ‘the holder of a type certificate ... shall report any failure,

malfunction, or defect in any product or part manufactured by it that it determines has

resulted in any [occurrences].’ “ Robinson v. Hartzell Propeller Inc., 326 F. Supp. 2d

631, 657 (E.D. Pa. 2004), quoting 14 C.F.R. §21.3(a) (2004).

If a manufacturer does not fulfill this obligation to report known defects or other

safety information to the FAA, GARA provides an exception to the statute of repose.

Burroughs, 78 Cal. App. 4th at 691, 93 Cal. Rptr. 2d at 131. GARA section 2(b)(1),

referred to as the “knowing misrepresentation” exception, provides that GARA offers no

repose

“if the claimant pleads with specificity the facts necessary to prove, and

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proves, that the manufacturer with respect to a type certificate or airworthiness

certificate for, or obligations with respect to continuing airworthiness of, an

aircraft or a component, system, subassembly, or other part of an aircraft

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, or the component, system, subassembly, or other part, that is

causally related to the harm which the claimant allegedly suffered.” (Emphasis

added.) 49 U.S.C. §40101 note, §2(b)(1) (2006).

Mitsubishi having shown that the statute of repose applied to protect it from

plaintiff’s suit, plaintiff has the burden of proving the existence of facts that would

constitute an exception to the statute of repose. Willett, 366 Ill. App. 3d at 371, 851

N.E.2d at 635-36. To that end, plaintiff asserted that the knowing misrepresentation

exception applied to Mitsubishi. To take advantage of the knowing misrepresentation

exception, a plaintiff “must prove: (1) knowing misrepresentation, or concealment, or

withholding; (2) of required information that is material and relevant; (3) that is causally

related to the harm [the plaintiff] suffered.” Robinson, 326 F. Supp. 2d at 647, citing

Rickert v. Mitsubishi Heavy Industries, Ltd., 923 F. Supp. 1453, 1456 (D. Wyo. 1996).

Plaintiff charged that Mitsubishi knowingly misrepresented to the FAA or concealed or

withheld from the FAA material information regarding the unsafe condition of the

aircraft created by improper flight idle fuel flow setting and propellor rigging, set by the

37 1-09-0148

plane’s last mechanic or servicer. The improper settings could, under certain

conditions, lead to a negative torque sensing mode during a landing approach and loss

of control of the aircraft such as caused the accident here. Plaintiff asserted that

Mitsubishi, although aware of these problems, informed the FAA that the basic

procedures and tolerances for those components could remain as they had been. The

court found plaintiff did not present sufficient evidence to prove the elements of the

GARA exception.

Plaintiff argues the court erred in granting summary judgment to Mitsubishi

because there exist questions of material fact regarding whether Mitsubishi knowingly

misrepresented or concealed or withheld material information from the FAA and,

further, the question of whether a defendant “knowingly” misrepresented is a question

for a jury. But for a question to go to the jury, that question must be supported by

evidence. Here, there is not sufficient evidence to present a question of fact to a jury

regarding whether Mitsubishi withheld, concealed or knowingly misrepresented material

information to the FAA.

To support its allegation that Mitsubishi withheld, concealed or knowingly

misrepresented information, plaintiff presented service bulletin 234, issued by

Mitsubishi in October 1998 with the approval of the FAA. The bulletin required flight

checks of the fuel flow setting be performed at various altitudes in order to prevent

“potential degraded flight handling qualities” and stated that improper settings could

cause a negative torque sensing mode, which could result in “unsafe flight

38 1-09-0148

characteristics.” In contrast, as evidence of what Mitsubishi should have disclosed to

the FAA, plaintiff presented airworthiness directives issued by the Australian and

Japanese governments showing those governments were aware that the matters in

service bulletin 234 were necessary to prevent loss of control of the aircraft and

explaining that incorrect fuel flow setting and propellor rigging were the cause of the

problem. To show that Mitsubishi did “finally” inform the FAA of the severity of the

problem, plaintiff presented an airworthiness directive issued by the FAA five years

after the accident stating that the improper setting and rigging condition could result in

“consequent loss of control of the airplane in certain conditions.”

It is uncontested that Mitsubishi was fully aware of the problem with the fuel flow

setting and propellor rigging. The upshot of plaintiff’s argument appears to be that the

Japanese and Australian directives, which contain a slightly more detailed description

than the service bulletin of the problem with the fuel flow setting and propellor rigging

and possible outcome if the problem occurs, shows that Mitsubishi kept information

from the FAA. Having compared the wording of service bulletin 234 with the wording of

the Japanese and Australian directives, we find little difference between them and the

few differences in the language describing the problem in no way indicates that the

FAA was unaware of the extent of the problem. Service bulletins 234 and 097/73-001

were disseminated in order to “assure the engine and propellor rigging is adjusted

within the manufacturer’s specifications and to prevent potential degraded flight

handling qualitites associated with flight idle power being set asymmetrically low.” The

39 1-09-0148

bulletins explained that incorrectly positioning the power levers, i.e., where an aircraft

mechanic or operator fails to position the levers in accordance with the instructions in

the service bulletins and maintenance manuals for the aircraft, could result in “loss of

control” or “loss of engine power.” The FAA approved those bulletins and thus was

clearly aware of the problem.

This determination is reinforced by the affidavit of Lawrence Timmons, an

aeronautical engineer retained by Mitsubishi America on behalf of Mitsubishi to provide

engineering support for the model MU-2 aircraft type certificate and to coordinate

issuance of the service bulletin regarding the flight check of the fuel flow settings with

the FAA. Timmons testified that on July 16, 1998, he performed a flight test on the

same model of aircraft as the accident aircraft here in order to verify that, if the fuel flow

settings in the craft are set to the specifications specified by the manufacturer, the

plane will perform correctly. His testing showed that if the fuel flow setting was set too

low, the plane could encounter negative torque but that, if the settings were corrected

pursuant to the maintenance manual for the plane, the problem would not occur.

Timmons stated he was responsible for creating service bulletin 234, at the

FAA’s request, as an advisory that an aircraft’s safety could be negatively affected by

improper setting of the idle fuel flow. He stated he was in constant contact with

employees of the FAA, kept the FAA fully apprised of the extent of the problem created

if fuel settings were not properly set and worked closely with the FAA to create a

service bulletin addressing the problem. The flight checks required by the service

40 1-09-0148

bulletin were designed to diagnose whether the flight idle fuel flow in a plane was set

too low in order that an improper setting could be adjusted to the correct level.

Timmons’ account of his constant contact with the FAA and the FAA’s

knowledge of the problem is corroborated by the affidavit of Ralph Sorrells, the deputy

general manager of Mitsubishi America’s aircraft product support division. Sorrells

stated that the FAA had requested issuance of a service bulletin to inform the

maintenance community that changes to the fuel control can affect a plane’s low speed

handling characteristics, “which affects safety.” The FAA had discovered during its

review of the propulsion system for the aircraft that some operators of the aircraft

modified the fuel flow setting. Mitsubishi America hired Timmons to coordinate with the

FAA to develop the service bulletin based on the FAA’s recommendation about

minimum fuel flow settings. Sorrells stated Timmons tested a model aircraft in support

of the service bulletin, apprised the FAA of the results of the testing and coordinated

the bulletin with the FAA. Sorrells himself met with the FAA to discuss the bulletin. He

stated the 1998 Japanese and 1999 Australian directives were based on the same

information he and Timmons had provided to the FAA. In 1999, Sorrells sent a letter to

the FAA inquiring whether the FAA intended to issue an airworthiness directive warning

of the problems with the fuel flow setting similar to the Japanese directive. Thereafter,

during each meeting between Mitsubishi America and the FAA, as shown by minutes

from those meetings, Sorrells continued to inquire whether the FAA would issue a

similar airworthiness directive. The FAA issued such an airworthiness directive in

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2006.

Plaintiff presented another affidavit by Mermelstein in support of its assertion

that Mitsubishi withheld or misrepresented information to the FAA but the affidavit is

insufficient to support the assertion. Mermelstein stated that a representation made by

Mitsubishi in a July 9, 1998, letter to the FAA was not true and that Mitsubishi knew it

was not true. In the letter, Mitsubishi informed the FAA that, “given all the variations

that can occur, the flight idle fuel flow settings result in power settings that provide

positive engine/propellor thrust throughout the flight envelope.” He stated that the July

16, 1998, flight test performed in support of proposed service bulletin 234 showed that,

if the rigging and settings were set per the maintenance manual and verified as such,

the test plane still experienced negative torque, a condition caused by lack of positive

engine/propellor thrust, within the flight envelope for the plane. He stated that, in

service bulletin 234, issued on October 7, 1998, Mitsubishi continued to represent to

the FAA that an unsafe condition resulting in negative torque could only occur within

the flight envelope as a result of improper maintenance.

Mitsubishi did send the FAA a letter on July 9, 1998, informing the FAA that the

flight idle fuel setting could remain as they were. This letter was sent before Mitsubishi

was fully aware of the extent of the problems caused by a low flight idle fuel flow

setting. Not until July 16, 1998, did Mitsubishi perform a flight test on a model of the

aircraft. The report of the testing shows the results of a flight idle fuel flow check

conducted on a model MU-2B-20 aircraft in accordance with the latest proposed

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service bulletin, bulletin 234. Although Mitsubishi/Mitsubishi America was aware that

mechanics and operators sometimes set the fuel flow setting lower than the

recommended level, not until the testing did it know that negative torque and loss of

control could result. Mitsubishi’s knowledge of the problem did not occur until seven

days after its letter to the FAA. Therefore, we do not find the test report evidence that

Mitsubishi withheld information from the FAA.

Moreover, the testing showed that, if the fuel flow was reset in accordance with

the specifications in the maintenance manual for the plane, the problem would not

occur, which is precisely what the FAA intended the service bulletin to convey to the

mechanics and owners servicing the plane. Mitsubishi did not misinform the FAA when

it stated that the settings could remain as they were, i.e., as specified in the

maintenance manual for the aircraft. The settings as specified in the manual were

correct. Only if an operator or mechanic lowered the setting beyond the recommended

level would a problem occur, and the service bulletin was designed by Mitsubishi and

the FAA to avert that problem. Based on the evidence presented, we find nothing to

support plaintiff’s assertion that Mitsubishi withheld, concealed or knowingly

misrepresented material information to the FAA regarding the claimed cause of

plaintiff’s injuries. There being no question of fact created on this issue, the court did

not err in granting summary judgment to Mitsubishi.

Mitsubishi Heavy Industries America

Given its decision that Mitsubishi was protected by GARA, the court also granted

43 1-09-0148

summary judgment to Mitsubishi America, finding that Mitsubishi America was the

successor manufacturer to Mitsubishi and, therefore, the 18-year limitations period

applied to protect Mitsubishi America as well. Plaintiff argues Mitsubishi America is not

a successor manufacturer to Mitsubishi and GARA, therefore does not apply to

Mitsubishi America.

GARA protects “the manufacturer of the aircraft or the manufacturer of any new

component, system, subassembly, or other part of the aircraft, in its capacity as a

manufacturer.” (Emphasis added.) 49 U.S.C. §40101 note, §2(a) (2006). GARA does

not define “manufacturer,” and the statute does not identify whether successor

manufacturers are included within its protections. Burroughs, 78 Cal. App. 4th at 692,

93 Cal. Rptr. 2d at 132. Courts have found, however, that a successor to the original

manufacturer of a general aviation aircraft or component of such an aircraft and the

type certificate holder and/or designer of a general aviation aircraft or part can be

considered a “manufacturer” for purposes of GARA’s statute of repose, even though

the successor did not manufacture the plane or part. Burroughs, 78 Cal. App. 4th 681,

93 Cal. Rptr. 2d 124; Mason v. Schweizer Aircraft Corp., 653 N.W. 2d 543 (Iowa 2002);

Pridgen v. Parker Hannifin Corp., 588 Pa. 405, 905 A.2d 422 (2006).

In Burroughs and Mason, the court found the successor to a product line of

aircraft or aircraft parts to be a “manufacturer” covered by GARA because, as the

holder of either the type certificate or the Parts Manufacturer Approval for the particular

aircraft or part involved in the suits, the successor had taken on the duties and

44 1-09-0148

obligations of the original manufacturer of the plane or part to report problems to the

FAA and disseminate instructions for continued airworthiness of the aircraft or part.

Burroughs, 78 Cal. App. 4th at 692-93, 93 Cal. Rptr. 2d at 132; Mason, 653 N.W. 2d at

548-49. We find that Mitsubishi America has similarly stepped into the shoes of

Mitsubishi with regard to fulfilling Mitsubishi’s duties and obligations regarding the

model MU-2B-20 aircraft and is a “manufacturer” under GARA.

Mitsubishi America is not a “manufacturer” in the standard sense of the word. It

does not manufacture anything, let alone general aviation aircraft or parts of such

aircraft. Further, Mitsubishi America does not hold a type certificate for the Model MU-

2B-20 aircraft at issue here. Mitsubishi continues to hold the type certificate. The

holder of the type certificate or PMA for an aircraft has an affirmative duty to report to

the FAA any problems with an aircraft or part and to issue instructions for continued

airworthiness of the aircraft or part. Bain v. Honeywell International, Inc., 167 F. Supp.

2d 932, 939 (E.D. Tex. 2001); Butler v. Bell Helicopter Textron, Inc., 109 Cal. App. 4th

1073, 1082, 135 Cal. Rptr. 2d 762, 770 (2003). On the basis of these duties, the

holder is considered to be the “manufacturer” of the aircraft for GARA purposes. See

Burroughs, Mason. Therefore, Mitsubishi was and continues to be the “manufacturer”

entitled to GARA protection. Mitsubishi has, however, pursuant to a licensing

agreement and a product support agreement with Mitsubishi America, delegated the

performance of those duties to Mitsubishi America. The question is whether Mitsubishi

America’s assumption of and performance of Mitsubishi’s duties under the type

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certificate is enough to qualify Mitsubishi America as a “manufacturer” under GARA.

We find that it is.

Pursuant to the licensing agreement between Mitsubishi and Mitsubishi America,

as of March 1, 1998, Mitsubishi sought to provide for the “continued field product

support and maintenance” of any planes manufactured under two type certificates and

assorted supplemental type certificates it held, including the Model MU-2B-20 at issue

here, by licensing those certificates to Mitsubishi America. In exchange for Mitsubishi

America’s performance of “all obligations relating to the maintenance of” the

certificates, Mitsubishi America would obtain the FAA production certificate for spare

parts manufactured in the United States for any planes covered by the type certificates

and/or a PMA to produce and/or purchase modification or replacement parts for any of

the planes. Mitsubishi America accepted “full authority and responsibility to act on

behalf of Mitsubishi as the holder of [the certificates] in all matters involving the FAA.”

Mitsubishi America and Mitsubishi agreed “that the FAA may view Mitsubishi America

and not Mitsubishi as the responsible party in all matters relating to the airworthiness of

airplanes covered by [the certificates].” The agreement provides that, although

Mitsubishi has the authority to approve any changes to the covered aircraft or type

design required by the FAA, Mitsubishi America had the “ultimate authority and

responsibility to the FAA for approval of such changes and that Mitsubishi shall comply

with Mitsubishi America’s directions in such cases, as may be necessary to enable

Mitsubishi America to comply with such requirements of the FAA.”

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Mitsubishi America agreed to be responsible for all communication with the FAA

and obtaining approval from the FAA as necessary in order to maintain the aircraft type

design. It agreed to maintain all FAA approved manuals and service documents

applicable to the covered aircraft; coordinate with and obtain approval from the FAA for

changes to those documents; review, print and distribute the approved manuals and

service documents; coordinate compliance with airworthiness directives; report failures,

problems or malfunctions of the aircraft to the FAA; coordinate corrective action for

those problems with the FAA; coordinate with other manufacturers to supply

components for the aircraft; and assist the FAA and National Transportation Safety

Board with investigation of accidents or incidents involving the aircraft.

Pursuant to the services agreement between Mitsubishi and Mitsubishi America,

Mitsubishi America agreed, as an independent contractor, to provide product services

relating to assorted models of aircraft, including the MU-2 model. Among the many

services Mitsubishi America agreed to provide is “type certificate maintenance and

engineering support,” which includes acting as liaison with “government entities”

regarding the type certificate, coordinating with and obtaining approval from the FAA

and “airworthiness authorities” for design changes and revisions of service documents

and providing engineering and service documents to the FAA and/or airworthiness

authorities as needed. It also agreed to provide “accident/incident investigation,” which

encompasses investigating accidents involving the aircraft worldwide, except in Japan,

and coordinating with government entities regarding the investigations. It would

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coordinate service centers for the aircraft, manufacture of spare parts, field technical

support, training support and printing and distribution of publications related to the

covered aircraft.

Like the defendants in Burroughs and Mason, Mitsubishi America took on the

obligations of a general aviation aircraft manufacturer under a type certificate.

Granted, unlike in Burroughs and Mason, Mitsubishi America is not a product line

successor to the original manufacturer. However, pursuant to the licensing and

services agreements, Mitsubishi America took on Mitsubishi’s duties under the type

certificates, including reporting problems with the aircraft to the FAA, obtaining

approval of any changes in design from the FAA and maintaining the airworthiness of

the aircraft by disseminating maintenance manuals and service bulletins. As an entity

which has stepped into the shoes of the original manufacturer by taking on the

manufacturer’s obligations pursuant to a type certificate or PMA, Mitsubishi America is

entitled to the protection that would have been accorded Mitsubishi.

Instead of paying employees to perform its obligations, Mitsubishi is paying an

independent contractor/licensee to do so. If Mitsubishi’s obligations under the type

certificate were being performed by an in-house department at Mitsubishi, there would

be no question that the department would be covered by the protections of GARA

because the department is a part of Mitsubishi. We reach the same conclusion where,

as here, an independent contractor is performing those obligations and is being sued

on the basis of those obligations. Plaintiff charged that Mitsubishi America negligently

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failed to (1) advise owners and operators of the aircraft that the engine flight idle

control settings and propellor rigging could result in loss of control of the aircraft; (2)

communicate with the FAA regarding failures and defects in the aircraft; (3) properly

issue service bulletins on behalf of Mitsubishi and/or verify compliance with mandatory

service bulletins; and (4) otherwise provide proper and adequate advice and support to

aircraft owners and operators. In other words, plaintiff is suing Mitsubishi America for

its failure to perform the duties owed by a manufacturer under a type certificate or PMA.

Plaintiff sued Mitsubishi America in its capacity as a manufacturer. Burroughs, 78 Cal.

App. 4th at 695, 93 Cal. Rptr. 2d at 131; Mason, 653 N.W. 2d at 550. We find the

protection of GARA extends to an independent contractor performing the duties of the

manufacturer, where, as here, the plaintiff’s claims against the independent contractor

are based on its performance of those duties, i.e., on the contractor’s acting as a

“manufacturer”. The court did not err in granting summary judgment to Mitsubishi

America.

For the reasons stated above, we affirm the circuit court’s grant of summary

judgment to Mitsubishi, Mitsubishi America and Honeywell on all counts; reverse the

court’s grant of summary judgment to Air 1st on plaintiff’s negligence and breach of

implied warranty counts; affirm the court’s grant of summary judgment to Air 1st on the

express warranty allegations; reverse the court’s grant of summary judgment to

Woodward on all counts; and dismiss plaintiff’s appeal from the court’s order

dismissing plaintiff’s strict liability counts against Air 1st.

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Affirmed in part, reversed in part and dismissed in part; cause remanded.

CUNNINGHAM, P.J., and HOFFMAN, J., concur.

50 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be Attached to Each case)

SOUTH SIDE TRUST AND SAVINGS BANK OF PEORIA, as personal representative of the Estates of Christine Marie White, deceased, and John Michel White, deceased,

Plaintiff-Appellant,

v.

MITSUBISHI HEAVY INDUSTRIES, LTD, a Corporation, MITSUBISHI HEAVY INDUSTRIES AMERICA, INC., a Corporation, HONEYWELL INTERNATIONAL, INC., a Corporation, WOODWARD GOVERNOR COMPANY, a Corporation, and AIR 1ST AVIATION COMPANIES, a Corporation,

Defendants-Appellees

(Stan Blaylock and Wayne Bates,

Defendants).

Appellate Court of Illinois First District, Second Division

March 31, 2010

JUSTICE KARNEZIS delivered the opinion of the court.

Appeal from the Circuit Court of Cook County.

The Honorable Dennis J. Burke, Judge Presiding.

For APPELLANT: Nolan Law Group, of Chicago (Donald J. Nolan and William J. Jovan,

51 1-09-0148 Page 52 of 2

of counsel)

For APPELLEES MITSUBISHI HEAVY INDUSTRIES, LTD. and MITSUBISHI HEAVY INDUSTRIES AMERICA, INC.: O’Hagan Spencer LLC, of Chicago (Patrick J. Keating and Elizabeth M. Dillon, of counsel) and Condon & Forsyth LLP, of New York, New York (Marshall S. Turner, John D. Horenstein and Timothy H. Eskridge, Jr., of counsel)

For APPELLEE HONEYWELL INTERNATIONAL INC.: Perkins Coie LLP, of Chicago (Bates McIntyre Larson and Charles W. Mulaney, of counsel)

For APPELLEE WOODWARD GOVERNOR: Rothschild, Barry & Myers, LLP, of Chicago (Daniel Cummings and Robin K. Powers, of counsel)

FOR APPELLEE AIR 1ST AVIATION COMPANIES, INC.: McCullough, Campbell & Lane, LLP, of Chicago (Patrick M. Graber and Stephen D. Koslow, of counsel)