Southside Trust and Savings Bank of Peoria v. Mitsubishi Heavy Industries, Ltd., No. 1-09-0148 (Ill. App. 12/29/2009)

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SOUTHSIDE TRUST AND SAVINGS BANK OF PEORIA, as personal representative of the Estates of CHRISTINE MARIE WHITE, deceased, and JOHN MICHAEL 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, and STAN BLAYLOCK and WAYNE BATES, Defendants.

No. 1-09-0148.

Appellate Court of Illinois, First District, Second Division.

December 29, 2009.

Appeal from the Circuit Court of Cook County, Honorable Dennis J. Burke, Judge Presiding.

Nolan Law Group, of Chicago (Donald J. Nolan and William J. Jovan, of counsel) for Appellant.

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 Appellees Mitsubishi Heavy Industries, Ltd. and Mitsubishi Heavy Industries America, Inc.

Perkins Coie LLP, of Chicago (Bates McIntyre Larson and Charles W. Mulaney, of counsel), for Appellee Honeywell International Inc.

Rothschild, Barry & Myers, LLP, of Chicago (Daniel Cummings and Robin K. Powers, of counsel), for Appellee Woodward Governor.

McCullough, Campbell & Lane, LLP, of Chicago (Patrick M. Graber and Stephen D. Koslow, of counsel), for Appellee Air 1st Aviation Companies, Inc.

Hoffman, J., and Cunningham, P.J., concur.

JUSTICE KARNEZIS delivered the opinion of the court:

Plaintiff, Southside Trust and Savings Bank of Peoria, is the personal representative of the estates of Christine Marie White (Christine) and John Michael 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 2006))², Federal Aviation Administration Regulation 91.403(a) (14 C.F.R. §91.403(a)) 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). Air 1st sold the plane to Michael in April 2001 and 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 the Illinois Distributor Statute, 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 "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). 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). 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).

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 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

1. 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. Also known as the "seller's exception," section 2-621 provides that a nonmanufacturer defendant, usually a distributor or retailer, in a strict product liability action may be 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 2006); 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) (West 2006); 735 ILCS 5/2-621(c) (West 2006).

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 2006); Murphy, 381 Ill. App. 3d at 771, 887 N.E.2d at 573. Section 2-621(b) provides in relevant part, that:

"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 manufacturer or manufacturers of the product allegedly causing the injury, death or damage." 735 ILCS 5/2-621(b)(1) (West 2006).

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...