Florida Aviation and Space Law Report (2012)

7/27/2019 Florida Aviation and Space Law Report (2012)

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FLORIDA AVIATION AND SPACE LAW REPORT

2012 EDITION_______________________________________________

I. AIRPORTS AND LAND USE 2

II. CORPORATE AND GENERALAVIATION 4

III. LABOR AND EMPLOYMENT 10

IV. LITIGATION 12

V. REGULATORYLAW 17

VI. SPACE LAW 21

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TIMOTHYM.RAVICH,ESQ.FLORIDABARBOARD CERTIFIEDAVIATION LAWYER

RAVICH LAWFIRM,P.A.TELEPHONE:305-213-1223

[email protected]


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FLORIDAAVIATION ANDSPACELAWREPORT

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2012TIMOTHY M.RAVICH Spring 2012 Edition 2

I. Airports and Land Use

Criminal LawTheft of Jet Fuel

Cliff Berry, Inc. v. State--- So. 3d ----, 2012 WL 10846 (Fla. 3d DCA 2012)

A provider of environmental services and its project manager were convicted oftwo counts of first degree grand theft and two counts of organized scheme to

defraud for their stealing jet fuel and money from the Miami-Dade AviationDepartment ("MDAD"). The scheme, which spanned over a three-year period,involved: (1) the theft of hundreds of thousands of gallons of jet fuel, which wassold for profit; and (2) the submission of fraudulent invoices to the MDAD,

resulting in the fraudulent receipt of hundreds of thousands of dollars. Thoughconvicted after a jury trial, Florida's Third District Court of Appeal reversed,reasoning that the trial court abused its discretion in: (1) refusing to give thedefendants' requested special jury instruction that the defendants had a "good faith"

belief that they were entitled to take the property they were accused of stealing;and (2) failing to conduct a timely hearing under the authority of Richardson v.State, 246 So. 2d 771 (Fla. 1971), requiring an inquiry by the court, once adiscovery violation is revealed, to determine what sanctions should be imposed.

Florida's Marketable Record Titles to Real Property Act

Matissek v. Waller51 So. 3d 625 (Fla. 2d DCA 2011)

The Hidden Lakes Estate in Pasco County, Florida, was designed to be an airparkcommunity that would include its own airport and permit its residents to constructaircraft hangers on their property. During the summer of 2007, a resident beganconstructing an airplane hangar on his property and submitted his plans to theCounty to get a permit issued to build a pre-engineered hangar containing a steelframe and steel paneling. Another resident brought suit for injunctive relief,

claiming that the metal exterior of the hangar violated a specific deed restrictionrequiring all buildings to "be constructed of masonry or similar materials." Thetrial court initially ordered that the hanger be brought into compliance with the

deed restriction, but the appellate court reversed, finding that Florida's MarketableRecord Titles to Real Property Act, Fla. Stat. Ch. 712 (2008), had extinguished thecommunity deed restriction, providing free and clear, marketable record title to the

property and permitting construction of the metal hangar.


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Intangible Personal Property Tax

Boca Airport, Inc. v. Florida Dept. of Revenue

56 So. 3d 140 (Fla. 4th DCA 2011)

Fixed Base Operators ("FBOs") that leased government-owned airport properties

challenged a decision made by the Florida Department of Revenue in 2008 toassess intangible personal property taxes on each leasehold interest. The FBOsargued that they were exempt from intangible personal property tax under Fla. Stat. 196.012(6), 196.199(2)(a), which exempt nongovernmental leases ongovernment-owned real property that serve "a government, municipal, or public

purpose or function." The argument was rejected as it was also determined that theFBOs were subject to the intangible personal property tax under Florida law, whichsubjects to taxation the leasehold interests of non-governmental leases on

government-owned real property "predominantly used for ... commercial purposes"where rental payments are due.

Florida Sunshine and Public Disclosure Law

Florida Senate Bill 994 (2011)

The Florida Legislature considered enacting a new statutory section to Chapter 331of the Florida Statutes ("Airports and Other Air Navigation Facilities"), to make

proprietary confidential business information submitted to or held by a public

airport confidential and exempt from public records requirements, until it is nolonger considered to be proprietary confidential business information by theproprietor. The proposed statute, Fla. Stat. 332.16, would also have applied totrade secrets held by a public airport and for any proposal or counterproposalexchanged between a public airport and a nongovernmental entity relating to thesale, use, development, or lease of airport facilities. The measure was rejected,however.


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II. Corporate and General Aviation

Aircraft Management AgreementsMutual Mistake

BP Group, Inc. v. Kloeber664 F. 3d 1235 (8th Cir. 2012)

BP Group, a Florida corporation, leased a Gulfstream G200 from WachoviaNational bank pursuant to an equipment lease (a headlease). In 2008, BP Group

executed an Aircraft Management Agreement ("AMA") with Capital WingsAirlines, Inc. ("CWA"), an "on demand air carrier" licensed by the FederalAviation Administration ("FAA") to conduct operations under Part 135 of theFederal Aviation Regulations. CWA acquired the right to use the aircraft in its

commercial charter operations, and under the terms of the AMA, BP Group wasrequired "to provide the aircraft to CWA 'on a non-exclusive, non-continuous basisand appoint[ ] CWA as the sole and exclusive charter operator of the Aircraft' for aterm of approximately four years." In exchange, CWA agreed to pay BP Group foreach hour of use, with a minimum payment of $80,000 per month.

Although BP Group retained the right under the headlease to sublease the aircraftto an entity under BP Group's direct control, the headlease prohibited theassignment, sublease, or other transfer of BP Group's rights and obligations in the

aircraft absent Wachovia's consent. BP Group never asked for Wachovia's consent

to enter into the AMA. At the time of contract, CWA and one of the guarantorsclaimed not to have been represented by counsel, relying on the assurances of BPGroup's aviation counsel that the AMA would comply with FAA requirements andnot violate the headlease. However, when a dispute arose in connection with anunpaid bill for a painting and refurbishment job for the aircraft, BP Group suedCWA and the guarantors for breach of the Aircraft Management Agreement. Theenforceability of the AMA was at issue.

Applying Florida law, the Eighth Circuit Court of Appeals affirmed summary

judgment in favor of BP Group, holding that (1) the parties' mistaken belief that theAMA transferred control of the aircraft to CWA without violating the headleasedid not give CWA the right to rescind the AMA, and (2) nothing in the plain

language of the AMA made the transfer of operational control to CWA a conditionprecedent to the AMA's validity rather than a covenant. The federal appellatecourt also affirmed the liability of the guarantor for the refurbishment costs thatfueled the lawsuit in the first place.


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Finally, in 2009, BP Group entered into an aircraft management agreement withPriester Aviation, LLC, for rights to use the aircraft in charter operations. Thefederal district court, concluding that the Priester agreement was "substantially

similar" to the AMA with CWA, as required under Fla. Stat. 680.527, allowingBP Group a greater recovery, awarded BP Group $860,632.01 in damages for"monthly payments due under the AMA less charter revenue earned from alternatesources and BP Group's use of the [a]ircraft." The Court of Appeals reversed that

decision, however, finding genuine disputes remained as to whether the AMA andPriester agreement were so similar and whether BP Group otherwise tookreasonable steps to avoid unnecessary damages.

Warranty of Workmanship

In Flight Leasing Group, LLC v. Bizjet Int'l Sales & Support, Inc.

2012 WL 94358 (S.D. Fla. 2012)

PNCEF, LLC ("PNC") contracted for testing, maintenance, and recertificationservices on two engines installed on its Gulfstream IV aircraft. Included in theagreement was an express warranty that "workmanship conforms to the intent ofthe requirement of the manufacturer of the engine or components, and that thequality of such workmanship is in accordance with the applicable provisions of the

Federal Aviation Regulations." The warranty provision also provided that it "maynot be assigned without ... prior written confirmation." Two days after entering

into the contract, PNC sold the aircraft, including the engines, to DFASSManagement, Inc. ("DFASS") via an aircraft purchase agreement. The purchaseagreement contained an assignment to the purchaser of "any and all of Seller'srights with respect to any manufacturer's warranties or repair or maintenanceagreements relating to the Aircraft."

The maintenance company removed the engines from the aircraft to performservice and repairs, but after reinstallation of the engines, discovered that the left-hand thrust reverser was not mounted correctly. The maintenance company agreedthat it was responsible for the repairs, but then refused to perform or pay for the

repairs. After paying for the repairs itself, PNC sued for breach of expresswarranty of workmanship and negligence. United States District Judge Patricia A.Seitz dismissed (with leave to amend) the negligence claim as barred by theeconomic loss rule, but sustained a demand for lost profits arising from negligenceand permitted the warranty claim on the basis the maintenance company knewabout and consented to the warranty transfer.


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Florida Uniform Fraudulent Transfer Act

Turner v. Ramo, LLC

2011 WL 541591 (S.D. Fla. 2011)

A Florida based company facilitated a $4.25 million loan to a corporate buyer forthe purchase of five Israel Industries Westwind jets for use in a new charter-flightservice based in the U.S. Virgin Islands. In consideration for the loan, the lender

was to receive two-thirds of the buyer's net profits and reduced rates for charteredflights aboard the aircraft, which themselves were collateral for the loan pursuantto security interests. In December, 2008, a twin-engine Rockwell International490B chartered by the buyer crashed while on approach to San Juan, Puerto Rico,killing the buyer's president (who piloted the airplane) and both passengers. Afterthe crash, all of the buyer's business operations ceased. Soon thereafter, the lender

called in its loans as immediately due. The buyer then transferred ownership of allfive of its aircraft to the lender in exchange for a discharge of the outstanding debt.

The personal representative of the deceased passengers commenced both awrongful death lawsuit and a separate lawsuit to void the transfer from the buyer tothe lender as fraudulent so that the assets would be available to satisfy a claim inthe wrongful-death matters. The latter lawsuit asserted two claims under the

Florida Uniform Fraudulent Transfer Act ("FUFTA"): (1) that the aircraft transferwas fraudulent against present creditors under Fla. Stat. 726.106(1); and (2) the

aircraft transfer was fraudulent against present and future creditors under Fla. Stat. 726.105(1)(a). The buyer moved for summary judgment, but United StatesDistrict Judge Kenneth A. Marra denied the motion.

The court inferred that the parties never intended for the buyer to pay for theaircraft (i.e., repay the loans). Record evidence established that the lender hadcomplete control and exclusive use of the aircraft, and that the buyer was unable toafford the aircraft or maintenance. Accordingly, a genuine issue of fact existed asto the value the buyer received for the aircraft transfer under the "reasonablyequivalent value" prong of Fla. Stat. 726.106(1). Additionally, a factual issue

also existed as to whether the asset transfer was a "valid conveyance" that"discharg[ed] a pre-existing debt." The court also found, under Fla. Stat. 726.106(1)(a), genuine issues of fact respecting: (1) whether the transfer was to aninsider; (2) whether the debtor was insolvent or became insolvent shortly after thetransfer; and (3) whether the transfer was of substantially all of the debtor's assets.


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Pre-Judgment Writ of Replevin

PNCEF, LLC v. South Aviation, Inc.

60 So. 3d 1120 (Fla. 4th DCA 2011)

A lender moved for a pre-judgment writ of replevin to recover four aircraft valuedat between $9 and $11 million from an Illinois-based borrower. The borrower hadleased the aircraft to a lessee based in Broward County, Florida, and refused to

return the aircraft on the basis of liens the lessee had filed against the aircraft.After obtaining an Illinois court order requiring the borrower and lessee to pay forthe use of the aircraft, the lender brought suit in Florida for replevin, conversion,and injunctive relief against the borrower and lessee. The trial court denied thelender's motion for a pre-judgment replevin writ without making any findings offact or conclusions of law.

The appellate court reversed that decision, finding that (1) the lender's verifiedcomplaint recited and showed all of the information required to obtain an orderauthorizing issuance of a prejudgment writ of replevin under Fla. Stat. 78.055;(2) at a show cause hearing, the lender proved, with reasonable probability, that itwas entitled to possession of the aircraft pending final adjudication of the parties'claims and that the lessee was engaging in conduct that may have placed the

aircraft in danger of removal from the state and the court's jurisdiction; and (3) thelender satisfied the additional requirements of Fla. Stat. 78.068, by alleging

specific facts that clearly showed the nature of the lender's claims, the amountthereof, and the ground relied upon for the issuance of the writ.

The appellate court also cited the underlying mortgage obligating the borrower to"return the Aircraft by delivering the same forthwith to Lender" upon theoccurrence of a default and a provision of the lease between the borrower andlessee pursuant to which the lessee expressed its understanding that its quietenjoyment of the aircraft was subordinate to the lender's rights in the aircraft.


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Florida's Long-Arm Jurisdiction Statute

Corporacion Aero Angeles, S.A. v. Fernandez

69 So. 3d 295 (Fla. 4th DCA 2011)

A Florida-based broker arranged for the sale of a Falcon 900B jet owned by aMexican corporation to a Canadian buyer. Alleging that the seller breached an oralagreement to pay him a commission in Florida, the broker brought suit in Broward

County under Florida's long-arm statute, Fla. Stat. 48.193(g): "Breaching acontract in this state by failing to perform acts required by the contract to be

performed in this state." The trial court found sufficient jurisdiction in Florida onthe basis that the Florida broker sold the airplane, but the Court of Appealreversed, on the basis of specific jurisdiction. The seller's contacts with Florida inrelation to the sale of the airplane to Canadian buyers was non-existent. Neither

the plane, nor even its general director and pilot of the aircraft came to Florida inconnection with the sale. No contract was delivered to the seller in Florida. Nodeposit was escrowed in Florida. The closing took place in Canada. Accordingly,the broker failed to satisfy the minimum contacts requirements for personal

jurisdiction to attach to the Mexican-based seller.

InsuranceStanding

Global Aerospace, Inc. v. Platinum Management, LLC

2011 WL 2530943 (S.D. Fla. 2011)

The agent and manager for a pool of insurance companies defended and settledmulti-million dollar claims arising from a crash, in 2005, of a corporate charter jetin New Jersey. Subsequently, the insurance agent learned that a federal grand juryindicted the principals of the charter company for criminal acts that caused thecrash. The insurance agent then sued for declaratory relief, breach of contract,fraud, civil conspiracy, RICO violations, and alter ego liability. The chartercompany moved to dismiss for lack of subject matter jurisdiction. United StatesDistrict Judge James Cohn denied the motion, finding that (1) an agent whocontracts in his own name may sue on that contract without joining his principal,

and (2) an insurer has standing to sue based on its own injuries in fact ( i.e., $25million in defending, settling, and investigating claims) and further has standing to

bring an action as an agent of underlying insurers based on the insurers' injury.


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Aircraft Purchase AgreementMutual Mistake and Legal Malpractice

KT Holdings USA, Inc. v. Akerman, Senterfitt & Eidson

34 So. 3d 61 (Fla. 3d DCA 2010)

A corporation executed a letter of intent to sell all of its assets for $44 million.Before the closing of the asset purchase transaction, the selling corporation

purchased a new Premier One corporate jet from Raytheon for $4,780,000. The

seller retained a law firm to assist with the asset purchase sale, but not with the jetpurchase, including review of the written conveyance executed by Raytheon forfiling with the Federal Aviation Administration. The seller corporation directed itsattorneys not to disclose the jet purchase to the buyer, and when the asset purchasetransaction closed, the jet was not listed on a schedule of excluded assets. (Thelawyers advised the seller not to take title to the aircraft, but instead to title the

aircraft in a different or new single-asset company).

Approximately eleven months later, post-closing disputes arose and the buyer suedthe seller in circuit court in Tampa, Florida. The buyer then learned that the jetwas titled in the seller on the date of the asset purchase closing and amended its

post-closing complaint to include a claim for "recovery," averring that the aircraftshould have been included in the asset sale. The buyer was awarded the aircraft

and other money damages. Following a post-judgment settlement involving theseller's "repurchase" of the aircraft, the seller then sued its lawyers for legal

malpractice.

The trial court granted summary judgment in favor of the lawyers, reasoning thatthe true cause of any losses by the seller regarding the aircraft was its failure toassert "mutual mistake" as an affirmative defense. Florida's Third District Court ofAppeal, affirmed, noting that the buying corporation had no rights with respect tothe aircraft, having never known about, bargained for, or paid for the jet. Theappellate court also affirmed as to the legal malpractice claim, concluding that thefacts of the case "underscore the hazards of self-representation in a multi-milliondollar aviation transaction. The [seller's] attempt to turn his own mistake into a

claim for millions of dollars of damages (against the law firm that correctly warned[the seller] not to title the aircraft in the name of the [seller] was correctlyrejected."


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III. Labor and Employment

Liability for Injuries to Independent Contractor

Strickland v. Timco Aviation Svcs., Inc.

66 So. 3d 1002 (Fla. 1st DCA 2011)

An employee of a painting company who contracted to pressure wash the roof ofan airport hangar and perform repair and maintenance on roof skylights sued the

hangar operator for negligence after he fell five stories to the ground. Theemployee claimed that the hangar operator failed to furnish him with adequatesafety equipment. In addition, the employee claimed the skylights upon which hestepped were indistinguishable from the color of the roof, that the roof could not

withstand 200 pounds of perpendicular pressure, and that the roof lacked protectiveguardrails in violation of Occupational Safety and Health Administration andindustry standards. The employee's claims were dismissed via summary judgmenton the basis that a property owner who employs an independent contractor to

perform work on his property will not be held liable for injuries sustained by theemployee during the performance of that work. Strickland's claims also did notfall within either of two exceptions to this general rule, namely where (1) the

property owner actively participates in and exercises direct control over the work,or (2) the property owner negligently creates or negligently approved a dangerous

condition.

Age Discrimination

Avera v. Airline Pilots Ass'n Int'l

436 Fed. Appx. 969 (11th Cir. 2011)

Apro se commercial airline pilot sued the Airline Pilots Association and theUnited Airlines Master Executive Council in the United States District Court forthe Northern District of Florida for violations of the Age Discrimination inEmployment Act of 1967 ("ADEA"), 29 U.S.C. 621, the Employment

Retirement Income Security Act ("ERISA"), 29 U.S.C. 1101, and for breach ofthe duty of fair representation under the Railway Labor Act ("RLA"), 45 U.S.C. 151 et seq. The pilot also petitioned for a declaratory judgment that the Fair

Treatment of Experienced Pilots Act ("FTEPA"), 49 U.S.C. 44729, and theFederal Aviation Administration ("FAA") "Age 60 Rule," 14 C.F.R. 121.383,were unconstitutional both facially and to a class of pilots born between 1942 and1947 and as applied to him.


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In aper curiam opinion, the Eleventh Circuit Court of Appeals affirmed dismissalof the pilot's ADEA, ERISA, and constitutional claims for failure to state a causeof action. Applying a rational-basis review (as opposed to strict scrutiny because

age is not a suspect classification), the court found that the FTEPA's non-retroactivity provision and protection-for-compliance provisions satisfied the EqualProtection Clause. The Court of Appeals also found no merit to the pilot's claimsthat the FTEPA effected an unconstitutional taking without compensation or

violated the Due Process Clause of the Fifth Amendment or the prohibition againstbills of attainder (a law that legislatively determines guilt and inflicts punishmentupon an identifiable individual without the protections of a judicial trial). Finally,the Court of Appeals affirmed dismissal of the pilot's RLA claim as barred by theapplicable six-month statute of limitations, measured from the time the pilotdiscovered the acts that formed the basis of his claim.

Finally, the Court of Appeals recognized that, under 49 U.S.C. 46110(a), courtsof appeals have exclusive jurisdiction to review final orders of the FAA, includingthe Age 60 Rule. Accordingly, the pilot was prohibited from bypassing suchexclusive jurisdiction by pursuing in the district court a collateral attack of theFAA's order, as the trial court lacked subject matter jurisdiction over that claim.

Nat'l Aeronautics and Space Admin. v. Nelson

131 S. Ct. 746 (2011)

See Part VI, infra.


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IV. Litigation

Negligent Misrepresentation, Failure to Warn, and Federal Preemption

North v. Precision Airmotive Corp.2011 WL 679932 (M.D. Fla. 2011)

Following the death of her husband in an airplane crash in December, 2006, in Mt.Snow, Vermont, a widow and estate administratrix sued an engine componentmanufacturer under theories of strict product liability, negligence, andmisrepresentation. The lawsuit averred that the manufacturer (and its predecessor)

intentionally and/or negligently distributed communications that were intended toinduce and mislead persons to believe that the engines and fuel control systems

installed on the aircraft involved in the accident were safe. The claimant alsoalleged that the manufacturer had, but failed to abide by, federal reportingobligations, including the duty to report failures and design defects to the FederalAviation Administration ("FAA"). Applying Florida negligent misrepresentationlaw, a federal district court entered summary judgment in favor of themanufacturer on the basis that the claimant had not pointed to any particular FAAreport that the manufacturer should have, but failed, to make, and the claimantcould not demonstrate reliance, justifiable or otherwise, in any event.

The claimant further alleged, as part of her strict liability and negligence counts,

that the manufacturer failed to provide adequate warnings and instructions. Theengine component manufacturer defended on grounds that federal law preemptsstate law in the field of aviation safety, and therefore federal law is the exclusivesource of any duty to warn. Most federal courts have decided that federal law

preempts state law in the arena of aviation safety under the authority of Abdullahv. American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999), and Witty v. Delta AirLines, Inc., 366 F.3d 380 (5th Cir. 2004). However, among the minority of courtsto have reached the opposite conclusion is the United States Court of Appeals forthe Eleventh Circuit, under the authority of Public Health Trust of Dade County,

Fla. v. Lake Aircraft, Inc., 992 F.2d 291 (11th Cir. 1993). Thus, the enginemanufacturer was not entitled to summary judgment in a federal district courtsituated in Florida on the basis of Lake Aircraft, Inc., which may compel a findingthat Congress did not intend to preempt state laws regarding warnings, even if theclaimant did lack evidence of any violation of any federal warning standard.


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RemovalFraudulent Joinder

Dorsch v. Pilatus Aircraft, Ltd.

2011 WL 5459716 (M.D. Fla. 2011)

On July 5, 2009, an airplane from Teterboro, New Jersey, to Tampa, Florida,crashed, killing all on board. Plaintiff, whose mother and father were passengerson board the airplane, sued the aircraft and component manufacturers for

negligence and strict liability, alleging the aircraft's Instrument System, comprisedof two Primary Flight Displays and two Multi Function Displays, failed during theflight by shutting off, and therefore did not provide accurate data to safely operatethe aircraft. The lawsuit was brought in Hillsborough County Circuit Court andremoved to federal court on the basis of diversity jurisdiction. The defendants, intheir removal notice, argued that defendant Leading Edge Aviation Services, a

Florida corporation, was improperly joined and that there was no reasonable basisfor Leading Edge's liability under controlling state law, as the only contact LeadingEdge had with the aircraft was the replacement of its battery more than a year

before the crash.

Noting that the procedure to resolve a claim for fraudulent joinder is akin to theburden-shifting scheme under Fed. R. Civ. P. 56(c) for summary judgment, U.S.

District Judge Elizabeth Kovachevich denied the motion to remand and dismissedLeading Edge from the lawsuit. Defendants had proved by clear and convincing

evidence that there was no reasonable basis in fact to include Leading Edge in thelawsuit as it did not manufacture or design the battery in question and performedno services to the aircraft other than battery installation. Affidavit testimony by

plaintiff's aviation accident reconstruction and aircraft maintenance expert that abattery failure could have contributed to the accident did not controvert this fact.

Forum Non Conveniens

Tazoe v. Airbus, S.A.S.

631 F.3d 1321 (11th Cir. 2011)

July 17, 2007, marked the worst accident in Brazilian aviation history. TAMLinhas Areas Flight 3054, an A320-233 airplane manufactured by Frenchcorporation Airbus, S.A.S, overran a rain-soaked runway as it landed in So Paulo,Brazil. The airplane crashed into a warehouse and fueling station, killing 187

people, including all pilots, attendants, and passengers, together with 12 people onthe ground. One citizen of the United States, a resident of Florida, died in theaccident. The remainder of those killed were citizens or residents of Brazil.


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Three categories of family members of those who died in the accident brought suitagainst the airplane and part manufacturers: (1) the Brazilian family members; (2)the family members of the sole U.S. citizen; and (3) a Brazilian mother whose

complaint was dismissedsua sponte before she served a summons and complainton the manufacturers. (The airline involved in the accident settled with almost allthe family members in exchange for a release from liability.)

The manufacturers moved to dismiss the lawsuit based onforum non conveniens,arguing that (1) an adequate alternative forum was available; (2) the public and

private factors weighed in favor of dismissal; and (3) the plaintiffs could reinstatetheir suit in the alternative forum without undue inconvenience or prejudice. Afterthe manufacturers agreed to submit themselves to the jurisdiction of Brazil and tollits statute of limitations, U.S. District Judge Marcia G. Cooke dismissed the

lawsuit of the Brazilian family members as well as the family members of the onlyU.S. citizen on grounds offorum non conveniens. The Eleventh Circuit Court ofAppeals affirmed that dismissal, but, in a matter of first impression, concluded thatthe trial court abused its discretion when itsua sponte dismissed the Brazilianmother's claim without first affording her notice or an opportunity to be heard.

JurisdictionVenue

Marley v. Jetshares Only, LLC

767 F. Supp. 2d 1337 (S.D. Fla. 2011)

A musician chartered a round-trip flight for himself and his band and crew fromMiami to Abu Dhabi in the United Arab Emirates for $165,000. Upon receipt of a$145,000 deposit to secure the aircraft, the charterer flew the aircraft from Orlandoto Miami in preparation for the trip to Abu Dhabi. The musician became ill andcancelled the chartered flight, however. In turn, the charterer employed the aircraftfor a different flight and retained the musician's deposit, an action for which thecharterer was sued in federal district court in Miami for unjust enrichment, tortuousinterference with a contractual right, and conversion.

The charterer moved to dismiss on grounds of improper venue under Fed. R. Civ.P. 12(b)(3), or alternatively to transfer the lawsuit to the United States DistrictCourt for the Middle District of Florida. In support, the charterer argued that itwas a resident of Orange County located in the Middle District of Florida and thatthe airplane in question was physically based in Orange County and that themonies paid for the flight were wired to the charterer's bank account in OrangeCounty.


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U.S. Magistrate Judge John J. O'Sullivan denied the motion on the basis that venuein diversity cases is controlled by 28 U.S.C. 1391(a), which provides that "[a]civil action wherein jurisdiction is founded only on diversity of citizenship may ...

be brought only in ... (2) a judicial district in which a substantial part of the eventsor omissions giving rise to the claim occurred ..."

The Magistrate Judge determined that the fact that the plane was chartered to fly

out of Miami and return to Miami and that the cancellation of the chartered flighttook place while the plane was in Miami was sufficient to find that a substantial

part of the events or omissions giving rise the musician's claims occurred in theSouthern District of Florida. The Court also declined the charterer's alternativemotion to transfer, concluding that a plaintiff's choice of forum is owedconsiderable deference and that no showing had been made by the charterer that

the Middle District was a more convenient forum than Southern Florida.

GARAFraud Exception

Nowicki v. Cessna Aircraft Co.

69 So. 3d 406 (Fla. 4th DCA 2011)

Two passengers died in June, 2003, when a twin-engine Cessna Model 414 ran out

of fuel during flight and crashed near North Fort Myers, Florida. The personalrepresentative of one of the passengers sued the aircraft manufacturer for

negligence and strict liability, claiming that, notwithstanding the fact the airplanecrashed because of fuel starvation, the passenger's death was caused by a defectiverear passenger seat, which detached from the rails and caused the passenger toviolently strike his head inside the airplane on or before impact.

The airplane manufacturer obtained summary judgment as the aircraft wasmanufactured and delivered thirty-three years before the accident and so the claimwas barred by the eighteen-year statute of repose provided in the General AviationRevitalization Act of 1994 ("GARA"), 49 U.S.C. 40101. Additionally, the

plaintiff failed to persuade the court under the section 2(b)(1) "fraud" exception to

GARA that Cessna concealed or withheld from the Federal AviationAdministration ("FAA") the fact that the fallen aircraft contained a passenger seatassembly (with seat rail and locking mechanism) that was the subject of anairworthiness directive. Plaintiff made no showing that the manufacturermisrepresented or concealed any "required information" it had an affirmativeobligation to report to the FAA, and plaintiff had failed to prove that the harmsuffered was causally related to the disclosure of such required information.


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Statute of ReposeRolling Provision

Inmon v. Air Tractor, Inc.

74 So. 3d 534 (Fla. 4th DCA 2011)

A crop-duster was injured when the right wing of his airplane failed. He sued theairplane manufacturer for negligence, alleging that the crash and destruction of hisairplane (built in 1982) was caused by the installation of a new five-bolt spar splice

at a first fatigue critical location. The manufacturer moved for summary judgmentbased on the 18-year federal statue of repose and the 12-year Florida statute ofrepose.

The primary legal issue was whether the plane manufacturer's design and sale ofthe new part for the wing assembly in 1993 restarted the respective periods of

repose. The manufacturer argued that the pilot had sued over an alleged defect inthe airplane's wing that was over 20 years old, and thus, beyond the statute ofrepose. In addition, the manufacturer contended that any modification to anoriginal part does not restart the statute of repose.

Applying the "rolling provision" of the General Aviation Revitalization Act, 49U.S.C. 40101 notes, Section 2(a)(2), the trial and appellate courts agreed with the

manufacturer. Although the pilot had established that a new part was installed, itdid not replace an item, but rather modified the original design. Moreover, the

pilot failed to demonstrate that the new part actually caused the accident.


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V. Regulatory Law

Claims Against FAA Arising From "Final Orders"

Baltimore Air Transport, Inc. v. Jackson419 Fed. Appx. 932 (11th Cir. 2011)

Air freight and charter companies filed a complaint in federal district court againstvarious officials of the Federal Aviation Administration ("FAA"), arguing that

regulators (1) required them to move their headquarters from one state to anotherwithout following the proper procedures for doing so and without permitting anappeal of the decision; (2) required them to rewrite their maintenance andoperation manuals; (3) refused to grant "check rides" to their pilots and refused to

allow other FAA officials to do so; (4) arbitrarily, capriciously, and unlawfullydirected them to stop using a trade name that they had operated under for years,thereby depriving them of goodwill and reputation and putting them at acompetitive disadvantage; and (5) refused to return certain records and sanctionedthem for not having those records. These claims were dismissed for lack ofsubject matter jurisdiction.

In affirming dismissal, the Eleventh Circuit Court of Appeals recognized that thealleged actions of the FAA were "final FAA orders" in that they either imposed an

obligation, denied a right, or fixed some legal relationship as a consummation of

the administrative process. See, e.g., Greenv. Brantley, 981 F.2d 514, 516 (11thCir. 1993). As such, "because [the claims were] inescapably intertwined with areview of the procedures and merits surrounding the FAA's orders," such claimsconstituted an "impermissible collateral challenge" under 49 U.S.C. 1486(a)

because the courts of appeals are vested with exclusive jurisdiction over caseschallenging "final orders" of the FAA.

Dangerous Instrumentality DoctrineFederal Limitation of Liability

Vreeland v. Ferrer

71 So. 3d 70 (Fla. 2011)

In 2005, a leased airplane crashed after takeoff from an airport in Lakeland,

Florida, killing the pilot and his passenger. The passenger's estate brought awrongful death lawsuit, alleging that the airplane owner was vicariously liable forthe pilot's negligence in the operation and inspection of the aircraft.


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The lawsuit presented a conflict between Florida's "dangerous instrumentalitydoctrine" and a federal statute that limits the liability of aircraft owners. TheSupreme Court of Florida specifically addressed whether Florida's dangerous

instrumentality doctrine conflicted with a federal law, 49 U.S.C. 44112, limitingthe liability of aircraft lessors or owners for personal injury, death, or property lossor damage "on land or water."

Justice Fred Lewis, writing for the majority, held that Florida's dangerousinstrumentality doctrine imposes vicarious liability upon owners and lessors ofaircraft, even where the aircraft is not within their immediate control or possessionat the time of the loss. To the extent that the doctrine applies to injuries, damages,or deaths that occur on the surface of the earth, the doctrine conflicts with, and istherefore preempted by the federal statute. However, because the death of the

passenger in Vreeland occurred while he was in a plane that crashednot on theground beneath the planethe wrongful death action was not preempted.

In dissent, Justice Ricky Polston wrote that the decision "defies reality" because"[e]ven though [the passenger] was in the aircraft when it hit land, his deathoccurred 'on land,' not in the aircraft prior to his contact with land. The majority'sview is inconsistent with the plain meaning of the statute."

Qui Tam ActionFuel Surcharge

DHL Express (USA), Inc. v. State60 So. 3d 426 (Fla. 1st DCA 2011)

New York residents brought a qui tam action in Leon County under Florida's FalseClaims Act, Fla. Stat. 68.081, contending that DHL improperly billed a fuelsurcharge for aviation fuel when packages did not travel by air, including a dieselfuel charge for ground deliveries despite the fact the courier's independentcontractors incurred the cost of such fuel.

The parties' contract authorized DHL to impose surcharges at fixed rates when the

price of fuel rose above an established price. DHL moved to dismiss the complainton the basis the lawsuit was preempted by the Airline Deregulation Act, 49 U.S.C. 41713(b)(1), and the Federal Aviation Administration Authorization Act, 49U.S.C. 14501(c)(1), both of which provide that a state "may not enact or enforcea law, regulation, or other provision having the force and effect of law related to a

price, rate, or service of a ... carrier."


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When its motion was denied, DHL petitioned for a writ of prohibition and the trialcourt was ordered to enter an amended ruling finding that, in fact, the lawsuit was

preempted as it clearly "relates to" DHL's rates, routes, or services as it is directed

at the aviation and diesel fuel surcharges billed by the courier.

Florida BarAttorney Disciplinary Proceedings

Florida Bar v. Herman

8 So. 3d 1100 (Fla. 2009)

A Florida licensed attorney represented Aero Controls, which sold and repairedcomponent parts, and Triple J Leasing ("Triple J"), an aircraft leasing business.The attorney simultaneously represented Aero Controls in a contract dispute andlitigation over the purchase of a DC-10 aircraft and Triple J in negotiating and

drafting the lease of a Boeing 737 aircraft. At the conclusion of both matters, theattorney and several potential investors created an aircraft leasing company, NationAviation, whose stated purpose was the "Purchase, Sale and Lease of aircraftengines and spare parts." Soon after the Triple J lease negotiation closed, AeroControl's top salesman called the attorney to express an interest in working for

Nation Aviation. The attorney, who still represented Aero Controls, agreed and theparties executed an employment agreement.

Months later, after all of the investors of Nation Aviation asked for a return of their

investment, the attorney decided to put Nation Aviation under the direction of hisclient's former top salesman and in direct competition with his client, AeroControls. In that posture, Nation Aviation generated gross revenue of $880,000from the sale of parts to twenty-three customers of Aero Controls. At no time didthe attorney call the owner of Aero Controls to disclose the conflict or request awaiver because of monetary concerns. The owner of Aero Controls eventuallylearned about Nation Aviation, feeling shocked and betrayed by his attorney.Following a lawsuit against his attorney for breach of fiduciary duty and othercauses of action in Broward County Circuit Court, Aero Control's owner filed aBar complaint.

The Florida Bar suspended the attorney for eighteen months for violating the RulesRegulating the Florida Bar respecting conflicts of interest and conduct involvingdishonesty, fraud, deceit, or misrepresentation.


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Capital City Aviation Fuel Tax Act


Died in the Florida Transportation Committee did a proposal to enact the "CapitalCity Aviation Fuel Tax Act," Fla. Stat. 206.9825(7)(a), which would have

provided that a commercial airline that purchased aviation fuel for aircraft inTallahassee Florida, would be eligible for a refund of an aviation fuel tax, provided(i) the airline had a ticket counter presence in the state capital, and (ii) the aircraftwas being refueled in connection with a flight that embarked or disembarked

passengers in Tallahassee.

Florida Wing, Civil Air Patrol Day

Florida Senate Resolution (2011)

April 19, 2011 was designated as "Florida Wing, Civil Air Patrol Day." The CivilAir Patrol ("CAP") was established one week before the attack on Pearl Harbor bycitizens concerned about the defense of America's coastline. It was federally

chartered as a benevolent civilian corporation under the administration of PresidentHarry Truman in 1946, and on May 26, 1948, the United States Congress passedPublic Law 557, which permanently established CAP as the volunteer auxiliary ofthe United States Air Force charged with cadet programs, emergency services, andaerospace education. In 2001, alone, the Florida Wing, Civil Air Patrol had flown

more than 7,145 hours in support of its task to serve the citizens of the State ofFlorida, and executed more than 385 missions in the state, including U.S. Air Forcetraining missions.


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VI. Space Law

Contract EmployeesBackground Investigation

Nat'l Aeronautics and Space Admin. v. Nelson131 S. Ct. 746 (2011)

In 2004, the government implemented a 9/11 Commission recommendation toorder new, uniform identification standards mandating that contract employeeswith long-term access to federal facilities complete a background check, typicallythe National Agency Check with Inquiries. Twenty-eight contract employees of

the Jet Propulsion Laboratory sued their employer, together with the NationalAeronautics and Space Administration and the Department of Commerce, claiming

that parts of a standard employment background investigation violated theirconstitutional right to "informational privacy." Subject to protections afforded bythe Privacy Act, one form ("SF-85") requested basic biographical information, andat issue in the case, information about "any treatment or counseling received" forillegal-drug use within the previous year. Another form ("Form 42"), to becompleted by a reference identified by the employee, asked if there was "anyreason to question" the employee's "honesty or trustworthiness" or whether thereference knew of any "adverse information" concerning the employee's "mental oremotional stability," "financial integrity," "abuse of alcohol and/or drugs," "general

behavior or conduct," or "other matters." Justice Samuel Alito, writing for the

Supreme Court of the United States, concluded that "the challenged portions of[the background check] consist of reasonable, employment-related inquiries thatfurther the Government's interests in managing its internal operations."

Spaceflight Entities

Fla. Stat. 331.501 (2011)

Effective July 1, 2011, the Florida Legislature amended the law relating to theliability of "spaceflight entities." Under Fla. Stat. 331.501(1)(c) a "spaceflight

entity" means any public or private entity holding a United States Federal AviationAdministration launch, reentry, operator, or launch site license for spaceflightactivities." This subsection has now been expanded to include "any manufactureror supplier of components, services, or vehicles that have been reviewed by theUnited State Federal Aviation Administration as part of issuing such a license,

permit, or authorization."


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The Florida Legislature also deleted subparagraph (4) of Fla. Stat. 331.501,which read, "[t]his section expires October 2, 2018, unless reviewed and savedfrom repeal though reenactment by the Legislature."

Launch Support Facilities


Governor Rick Scott signed Florida Senate Bill 634 on February 16, 2012. TheFlorida Senate, meanwhile, designated $10 million for Space Florida. EffectiveJuly 1, 2012, Fla. Stat. 331.303, putatively designed to make it easier for SpaceFlorida to access state and federal transportation money to improve launchfacilities, will contain a new section, as follows:

(11) "Launch support facilities" means facilities that arelocated at launch sites or launch ranges that are requiredto support launch activities, including launch vehicleassembly, launch vehicle operations and control,

communications, and flight safety functions, as well aspayload operations, control, and processing.

This amended statute also will delete Fla. Stat. 331.303(17), which provided,"'Spaceport launch facilities' means industrial facilities as described in s.

380.0651(3)(c), Florida Statutes 2010, and includes any launch pad, launch controlcenter, and fixed launch support equipment."


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Timothy M. Ravich is a Martindale-Hubbell AV-rated business and commerciallitigator who has been recognized as a "Leading Lawyer" by the South Florida

Legal Guide and named among the top five percent of attorneys in Florida as a

"Super Lawyer."

Mr. Ravich also is one of only thirty-four lawyers recognized as a "Florida BarBoard Certified Aviation Lawyer." He chaired the Florida Bar Aviation Law

Committee from 2010-2012, and is an adjunct professor teaching aviation law atthe University of Miami School of Law and Florida International University'sCollege of Law. He earned his M.B.A. in Aviation Policy and Planning fromEmbry-Riddle Aeronautical University and has been a regular commentator forlocal and national media programming featuring aviation and aerospace.

In addition to publishing a course book, AVIATION LAW AFTERSEPTEMBER11TH(Vandeplas 2010), Mr. Ravich has spoken and written extensively about aviationissues in national and international forums and in peer-reviewed journals, includingthe American Bar Association Section of LitigationMass Torts, SouthernMethodist University'sJournal of Air Law and Commerce, theNorth Dakota Law

Review, the Florida BarJournal, the University of Miami Law Review, and theJournal of the Transportation Research Forum.

Florida Aviation and Space Law Report (2012)

Documents

Transcript of Florida Aviation and Space Law Report (2012)