Preston v. M1 Support Servs., L.P.

628 S.W.3d 300

Nicole Van Dorn PRESTON as Surviving Spouse and Personal Representative for the Estate of Lt. J Wesley Van Dorn, USN, Deceased; Amy Snyder, as Surviving Spouse and Personal Representative for the Estate of Lt. Sean Christopher Snyder, USN, Deceased; Cheyenne Collins, as Surviving Spouse and Personal Representative for the Estate of Petty Officer 3rd Class Brian Andrew Collins, USN, Deceased; and Petty Officer 2nd Class Dylan Morgan Boone, USN, Appellants

v.M1 SUPPORT SERVICES, L.P., Appellee

No. 02-18-00348-CV

Court of Appeals of Texas, Fort Worth.

Delivered: March 5, 2020

ATTORNEYS FOR APPELLANTS: JAMES H. FURMAN, FURMAN LAW GROUP, AUSTIN, TEXAS, FRANCIS G. FLEMING, JR., KEVIN J. MAHONEY, KREINDLER & KREINDLER LLP, NEW YORK, NEW YORK.

ATTORNEYS FOR APPELLEE: GEORGE S. MCCALL, S. VANCE WITTIE, JUSTIN S. LEVY, DRINKER BIDDLE & REATH LLP, DALLAS, TEXAS.

Before Gabriel, Womack, and Wallach, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Justice Womack

I. INTRODUCTION

This case arises from the crash of a United States Navy helicopter off the coast of Virginia during a minesweeping exercise. The crash, which the Navy determined was related to Kapton¹ wiring issues, resulted in the deaths of three servicemembers and serious injuries to two others. Appellants are the spouses (Nicole Van Dorn Preston, Amy Snyder, and Cheyenne Collins)² of the deceased servicemembers (Lieutenant J Wesley Van Dorn, Lieutenant Sean Christopher Snyder, and Petty Officer 3rd Class Brian Andrew Collins) and one of the injured servicemembers (Petty Officer 2nd Class Dylan Morgan Boone). In this appeal from the granting of a plea to the jurisdiction to appellee M1 Support Services, L.P. (M1), a company who performed maintenance on the helicopter, we are asked to consider whether the political question doctrine applies to the facts of this case. We conclude that it does and, therefore, affirm the order granting the plea to the jurisdiction and dismissing the case.

II. BACKGROUND

In 2013, M1, a small business with its headquarters in Denton, Texas, contracted with the Navy to perform phase maintenance on MH-53E Sea Dragon helicopters in Navy squadrons HM-14 and HM-15. "Phase maintenance" refers to recommended service (based on the original equipment manufacturer's service manuals and the Navy's log books) after approximately 200 flight hours. Work was performed in accordance with a document called the "Performance Work Statement." Pursuant to the contract, M1 was to "provide organizational level (O-Level) maintenance support as outlined in Section 4.0." Section 4.0 stated in part, "The Contractor shall perform requirements in a manner that meets or exceeds the intent of CNAFINST 4790.2 series, applicable Naval Aviation Maintenance Program Standard Operating Procedures (NAMPSOPs)[,] and local NAMPSOP instructions."

The Performance Work Statement required that all work done by M1 be "in accordance with applicable publications, technical directives, instructions, standards, and procedures contained in pertinent manuals utilizing blueprints, drawings[,] or schematics as provided by the [Contracting Officer's Representative]." In addition, it provided a "[m]inimum [t]eam [c]omplement of skill sets required" of M1, which included the specific skills, knowledge, and quantity of M1's staff. It also included "Directives and Instructions," which referenced various military procedures, manuals, guidelines, and publications.

In her affidavit, M1's majority owner, Kathy Hildreth, stated that the Navy prescribed the number of employees for each task order and their specific qualifications. Further, she averred that the Navy not only approved the M1 personnel who provided maintenance services on HM-14's and HM-15's helicopters but also recommended, through its contracting officer's representative Lieutenant Mike Caffey, that M1 hire Gene Mettler as its site lead.

According to Hildreth, phase maintenance was done from May 2013 to September 2015 on HM-14's and HM-15's helicopters. Hildreth stated that the Navy supplied M1 a technical manual, which was only accessible on a Navy website and only during the term of a task order, which contained phase/maintenance cards for all of M1's phase maintenance activities. She testified that the Navy set the timeframes, performed its own quality assurance inspections, and supplied all helicopter parts used in the maintenance activities.

Mettler joined the Navy when he was eighteen years old, received maintenance training, and then served as a remedial instructor for mechanics. After being in Helicopter Combat Support Squadron, he was a quality analyst before serving in maintenance control. He retired in 2012 as a chief petty officer. Mettler testified that he supervised twenty-four employees as site lead for M1, and all of M1's work went through the Navy's Contract Officer Representative Caffey, who set timeframes for completion. According to Mettler, in September and October 2013, M1 performed Phase C maintenance on the subject helicopter. A phase inspection—consisting of A, B, C, and D phases—"identified specific areas and tasks, areas that need to be inspected in that timeframe."

According to Mettler, in approximately 2010, he "was informed by United States Navy publications of Kapton wiring issues in Sea Dragon and Super Stallion helicopters and that the technical manual would eventually be modified to account for those issues." However, to the best of his knowledge, the Navy did not implement those modifications until October 2015.

Mettler averred that the Navy did not require that M1's Phase C maintenance include inspection of the subject helicopter for the Kapton wiring and fuel transfer issues complained of by Appellants in this lawsuit. In addition, "[a]s to the task order regarding HM-14's and HM-15's helicopters and the Kapton wiring and fuel transfer issues complained of by [Appellants] in this lawsuit, M1 did not attempt to modify the existing technical publications or directives or to evaluate the history of the helicopters for discrepancies."

Phase Maintenance Card M-12, dated January 15, 2010, which dealt with the fuel system, required M1 to inspect for "1. Fuel and vent lines in cabin for leakage, chafing, obvious damage, and security[;] 2. Fuel dump tube outlets on outside of fuselage for obvious damage[;] 3. No. 2 engine firewall shutoff valve for leakage and security[; and] 4. Inspect all brackets and lines for cracks and security." The card identified the "work zone" and the time to be spent on the inspection. Other phase cards addressed different parts of the helicopter to be inspected, including "visible structures, skin, and attachment fittings for cracks, distortion, and loose or missing fasteners." The inspection manual "contain[ed] the minimum phased maintenance requirements to inspect the helicopter for material degradation and to perform essential preventive maintenance."

Christopher Varney, the Quality Assurance representative on the contract from the time M1 arrived at HM-14 until 2016, testified that he did "little spot-checks on [M1]," but "was not authorized to inspect their work unless it was -- I seen that it was definitely been done wrong." In their response to the plea to the jurisdiction, Appellants state, "M1 was paid to exclusively perform tasks traditionally done by the Navy on the helicopter precisely because the Navy wanted to ‘free up’ its own ‘manpower’ and focus on other Naval operations."

According to Hildreth and Mettler, the Navy "performed its own quality assurance inspection of M1's Phase C maintenance and accepted same." Further, both testified that the Navy never advised M1 of any issues with M1's Phase C maintenance on the helicopter.

On October 22, 2013, the helicopter was accepted back by the Navy, and a "Certificate of Completion and Acceptance" was signed. The "Certification" on the Certificate stated, "All work and inspection requirements, including ground functional test (if required), in accordance with above numbered order and respective Statement of Work have been satisfactorily completed."

According to Appellants' pleadings, the helicopter was operated by HM-14 for a training flight involving ocean minesweeping and helicopter ramp operator training on January 8, 2014. The training operations began off the coast of Virginia Beach, Virginia, in the morning and included towing a minesweeping device through the water. Appellants' pleadings allege that, after less than two hours³ of operations, an explosion occurred "near the port wall aft of the gunner's window." As smoke filled the helicopter, "the pilots lost spatial awareness and the helicopter violently struck the water and began to sink." As a result, three servicemembers died, and two were injured.

The Navy investigated the crash and prepared a report. Both Hildreth and Mettler testified that the Navy never contacted them regarding its investigation of the crash. The Navy's report concluded that the fire aboard the helicopter "was caused by the ignition of fuel in the aluminum transfer tube which had been breached by the chafing of both the tube and the insulation covering electrical wiring within the aircraft." The Navy's investigation also stated that the helicopter "was in compliance with all required technical directives at the time of the mishap"⁴ and "was in compliance with all special inspections." Further, it concluded that the helicopter was "properly maintained, authorized ‘Safe for Flight[,]’ and scheduled for the mishap flight. The mishap aircraft was properly inspected and mechanically sound prior to the mishap flight." The report

specifically noted that the inspection of internal wiring bundling and other objects inside the aircraft for signs of chafing was not specifically required. While all hands are instructed and encouraged to bring any observed discrepancies to the attention of maintenance and safety personnel and while aircraft are subjected to routine inspections, that no one detected the

...