David S. Eady et al. v. Devon Cowles (2013)

MEMORANDUM OF DECISION

INTRODUCTION

The parties have proceeded on an Amended Complaint dated August 1, 2011.   The individual Plaintiff, David S. Eady, is the sole owner, CEO, and CFO of the Co–Plaintiff, IFLIGHT International, LLC (IFLIGHT).   IFLIGHT was, at the time of the subject accident, the sole owner of the 1969 Piper Cherokee Six which is the subject of this accident.   The aircraft was purchased on September 25, 2007, by Eady for the purpose of individual rentals and/or flight training of student pilots;  it accomplished such purposes through a leaseback agreement with Oxford Flight Training, LLC (hereafter, OFT), which operates out of Waterbury–Oxford Airport in Oxford, Connecticut.   IFLIGHT is based in Southbury, Connecticut (at the residential address of David Eady).   Eady purchased the aircraft for eighty-four thousand dollars ($84,000.00) by way of an aircraft loan from Bank of America in the amount of sixty-two thousand dollars ($62,000.00) and a personal contribution of twenty-two thousand dollars ($22,000.00).   It was part of the business plan of IFLIGHT that all flight instructors of student and other pilots of the subject aircraft would be independently contracted with and provided through OFT.

Devon Cowles was the “pilot in command” of the aircraft when it crashed on May 24, 2008, and, as such, he was the person responsible for the operation of that plane.   He obtained his private pilot's license in 2006 and thereafter earned various endorsements to that license.   Neither party questioned this gentleman's qualifications to operate the subject plane or to carry four (4) passengers as he was then doing.   He had left Oxford Airport and was intending to land in Millinocket, Maine, to enjoy white water rafting when, having passed Bangor, Maine, he realized he had a fuel emergency.   There is also no disagreement that the 14.1 gallons of fuel Cowles estimated he would burn per hour was inaccurate and that slightly in excess of twenty (20) gallons per hour was required.¹  The plane crashed one-half (1/2) mile from the Millinocket airport.   There were no serious injuries but the aircraft was deemed a total loss.

The Amended Complaint of August 1, 2011, alleges four (4) counts.   In Count 1, Eady alleges Cowles' negligent operation of the plane proximately caused the property damage to the aircraft and the loss of personal property on board (The Complaint includes no listing of such personal property items and there was no evidence offered at trial to substantiate the claim for damage to any such items.).   In Count 2, IFLIGHT alleges Cowles' negligence proximately caused the same property losses as alleged in Count 1—again without specification or evidence of such losses other than the aircraft.   In Count 3, Eady asserts a breach of contract claim and, in Count 4, IFLIGHT asserts the same breach of contract claim.

The case was tried to the court on April 25, 2013, and, at the conclusion of the evidence, the Defendant moved for a directed verdict on all four (4) counts and submitted a written motion re same.   Argument on that motion was heard by the court.

ADJUDICATION

It ought first be noted the Defendant's Motion for Directed Verdict is properly a Motion for Judgment of Dismissal under P.B. § 15–8, which motion is properly granted if the Plaintiff has failed to make out a prima facie case.

The standard for determining whether the plaintiff has made out a prima facie case under P.B. § 15–8 is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case—not whether the trier of fact believes it.   To grant the motion, the proponent must submit evidence which, if credited, is sufficient to establish the fact(s) which it is adduced to prove.   Evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to the plaintiff.   In testing the sufficiency of the evidence, the court must compare the evidence offered at trial with the allegations of the complaint.   See e.g., Charter Oak Lending Group, LLC v. August, 127 Conn.App. 428, 434 (2011), citing to Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 846 (2005).  “The right of the court to grant such a motion is to be sparingly exercised ․” Thomas v. West Haven, 249 Conn. 385, 391 (1999).

The only allegation regarding the Defendant's alleged breach of contract is in Paragraph 14 of the Third and Fourth Counts of the Amended Complaint.   In full, that paragraph reads:

Defendant breached the Rental Agreement and the obligations thereunder owing to Eady, in one or more of the following respects, in that Defendant:

a. violated Federal Aviation Regulations, Code of Federal Regulations, Title 14 C.F.R. §§ 91.13, 91.109 and 91–151;

b. used settings for RPM, manifold pressure, and fuel mixture that did not conform to the approved flight manual (AFM), including without limitation power settings, weight/balance and range/distance calculations;  and/or

c. conducted flight training with an unapproved safety pilot, using a vision restriction device for instrument simulation, thereby diverting his attention from safe, proper and responsible flight operations with passengers on board.

The “Rental Agreement” (Exh. A to Amended Complaint) is an Agreement between Oxford Flight Training, LLC (OFT) and Cowles as renter of the aircraft.   OFT is not a party plaintiff.   There is no contract between Eady and Cowles or IFLIGHT and Cowles.   What then is meant by the reference to “the obligations thereunder owing to Eady”? How could Cowles breach an Agreement which obligated him to Eady or IFLIGHT without an agreement with one or both of them?   The only obligation under that Agreement is that OFT “maintain insurance of each of its aircraft covering renters and students as well as any passengers on board, (sic) as long as the pilot is acting in accordance with Federal Aviation Regulations.”   Exh. 7. The Plaintiffs offered no evidence of a contract—either oral or written—between the parties.

Nor does either Plaintiff plead it was the intent of the Defendant (when he entered into the Rental Agreement with OFT (not a party here) to assume a direct obligation to either Plaintiff as a third-party beneficiary.   Neither Plaintiff has pleaded the Defendant promised OFT he would assume a direct obligation to either Plaintiff.   The ultimate test to be applied “is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and ․ that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties ․” Electric Cable Compounds, Inc. v. Seymour, 95 Conn.App. 523, 530 (2006).   The Court continued:

The requirement that both contracting parties must intend to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts.   That is, each party to a contract is entitled to know the scope of his or her obligations thereunder.   That necessarily includes the range of potential third persons who may enforce the terms of the contract.   Rooting the range of potential third parties in the intention of both parties, rather than in the intent of just one of the parties, is a sensible way of minimizing the risk that a contracting party will be held liable to one whom he neither knew, nor legitimately could be held to know, would ultimately be his contract obligee.”  Id., citing Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580–81 (2003).

Since there is no evidence the contracting parties intended the Defendant (as promisor) assume a direct obligation to either Plaintiff, the Plaintiffs cannot recover under any theory of contract alleged in Counts Three and Four and those counts are here dismissed.

Counts One and Two allege the Defendant's negligence was the proximate cause of the Plaintiffs' damages—specifically, property damages to the airplane (a total loss) and the loss of Eady's personal effects (Paragraph 13 of both counts).²

The Defendant asserts (on un-numbered Page 5 of his Motion for Directed Verdict) that the Plaintiffs' failure to disclose an expert “on a claim of negligence arising out of an airplane crash” is fatal.   He cites to Dunham v. Dunham, 204 Conn. 303, 317 (1987).   That case did not involve an airplane crash;  specifically, the third count (the count considered in the referenced citation) was construed by the Court to be a legal malpractice claim which necessitated expert testimony to establish the standard of care applicable to the practice of law.   The question posed here is whether the want of care or skill is so gross as to present an almost conclusive inference of want of care so as not to require expert testimony (See e.g., Puro v. Henry, 188 Conn. 301, 305 [1982] ) or whether expert testimony is required to inform either about the applicable standard of professional skill or care or about the conformity of the defendant's conduct to that standard of professional behavior (See e.g., Doe v. Yale University, 252 Conn. 641 [2000] ).

Where, as here, the centerpiece of the Plaintiff's negligence claims at trial was the Defendant's failure to correctly calculate the amount of fuel required for the planned flight (a claim conceded by the Defendant at trial), this court concludes expert testimony was not required.   The evidence was that the Defendant did not monitor his fuel consumption throughout the flight and, had he done so, he would have discovered he was burning fuel at a much higher rate than he had anticipated would be necessary and would have been able to safely land at another airport for re-fueling, thus successfully completing his trip to Millinocket.   This want of care or skill was, in this court's view, sufficiently evident as to be within the knowledge of the average trier of fact, be it jury or judge.  Id., at 252 Conn. 687 (2000).   The Defendant testified it was his responsibility to ensure safe arrival at the intended destination and that to do so required sufficient fuel.

Additionally, the Plaintiffs claimed the Defendant's violation of 14 C.F.R. § 91.151 which addresses fuel requirements for flights under visual flight rules (VFR).³  That regulation provides:

§ 91.151 Fuel requirements for flight in VFR conditions.

(a) No person may begin a flight in an airplane under VFR conditions unless (considering wind and forecast weather conditions) there is enough fuel to fly to the first point of intended landing and, assuming normal cruising speed—

(1) During the day, to fly after that for at least 30 minutes;  or

(2) At night, to fly after that for at least 45 minutes.

(b) No person may begin a flight in a rotorcraft under VFR conditions unless (considering wind and forecast weather conditions) there is enough fuel to fly to the first point of intended landing and, assuming normal cruising speed, to fly after that for at least 20 minutes.

The Defendant was flying during the daylight and early evening hours.   Under § 91.151(a), his obligation was to carry enough fuel to reach Millinocket (his ONLY intended landing) and to have sufficient fuel to fly at least thirty (30) minutes beyond that destination.   Thus, that requirement was not satisfied and the failure to load sufficient fuel was clearly a proximate cause of the in-flight crash and whatever damages resulted.⁴

The Plaintiffs allege the following damages in Counts One and Two:

1. the destruction and total loss of the aircraft (Count 1, Para 12);  and

2. the loss of Eady's personal effects on board the plane (Count 1, Para 13).

At trial, Plaintiff Eady claimed lost income from the inability to lease the aircraft for use by pilots such as Cowles—though that loss of income was not pled.   The Defendant did not object to such testimony nor did Eady ask to amend his complaint to include such damages.   For reasons here later stated, the extent of those damages is minimal.

A former flight instructor, Eady purchased the Piper Cherokee in September of 2007 (in his name alone) with it in mind to lease it back to OFT for rentals.   The purchase price was $84,000.00.   One year later, he transferred the registration of the craft to the company of which he was the sole owner—IFLIGHT International, LLC (the named co-plaintiff) and the loan obligation was then transferred to the LLC. The plane was registered with the Federal Aviation Administration (FAA).   Eady made certain upgrades to include the installation of an audio panel, “push-to-talk” switches, and a headphone and jacks at each seat.   Pl. Exh. 26 substantiates the total expenditure of $7,835.25.⁵  “Lease Back Reports” from OFT to Eady (Pl.Exh. 27), which summarize lease rentals and expenses incurred for the period beginning 10/1/07 and ending 1/31/08 ⁶ substantiate losses of $855.34 over three (3) of those months and income to Eady in the amount of $282.70 for December of 2007.   Thus, there was a loss of income from documented lease activities and, given the brief leasing period documented, the court cannot speculate re the amount of lease income lost were it not for the crash.   The Plaintiffs' claim of lost leasing profits was not proven.

Under the terms of the contract between OFT and Cowles, Cowles was responsible for the deductible amount of $1,000.00.   The insurance carrier did not deny coverage, which was in the amount of eighty thousand dollars ($80,000.00).   Seventy-nine thousand ($79,000.00) of that amount was paid to them.   The Defendant paid OFT the $1,000.00 deductible amount for which he was liable under his contract with OFT and OFT paid the Plaintiffs that amount.   Eady's testimony was that he was required to pay back $63,000 (to include interest) on the Bank of America loan and used the remainder ($17,000.00) to pay down his home equity loan (also from Bank of America).

For reasons unknown to this court, Eady insured the Piper Cherokee for four thousand dollars less than its purchase price and he then invested $7,835.25 on improvements—both of which were unfortunate decisions.

The Plaintiffs cannot look to the Defendant to recoup their losses.   The only duty Cowles owed was to OFT;  in fact, Cowles had never met Eady before the date of the accident.   His liability was capped at one thousand dollars under the agreement he had with OFT, which amount was paid to Eady. Mr. Eady chose to under-insure the aircraft and he cannot now look to Cowles for the cost of either that decision or the improvements he chose to make on the plane (at a time when his expenses exceeded his leasing income).

JUDGMENT

Judgment for Defendant on Counts One and Two enter this date in the absence of a duty owed the Plaintiffs;  the Plaintiffs are non-suited on Counts Three and Four for failure to make out a prima facie case.

BY THE COURT,

B.J. Sheedy, JTR.

FOOTNOTES

FN1. Cowles testified the passengers were instructed to weigh themselves and their baggage;  though he believed that was done, he did not oversee that activity and thus it is not known whether it was done inaccurately—or in fact not done..  FN1. Cowles testified the passengers were instructed to weigh themselves and their baggage;  though he believed that was done, he did not oversee that activity and thus it is not known whether it was done inaccurately—or in fact not done.

FN2. Included in the negligence claims of the first two counts is Paragraph 11 which asserts the insurance provision of the Rental Agreement between the Defendant and OFT and notes the [i]llegal use of the aircraft or violation of the Federal Aviation Regulations will be grounds for the insurance company to deny coverage.   The court, having already herein dismissed the contract claims asserted in Counts Three and Four, does not again address the contract claim asserted in Paragraph 11, which paragraph is inappropriately asserted in Counts One and Two (negligence counts)..  FN2. Included in the negligence claims of the first two counts is Paragraph 11 which asserts the insurance provision of the Rental Agreement between the Defendant and OFT and notes the [i]llegal use of the aircraft or violation of the Federal Aviation Regulations will be grounds for the insurance company to deny coverage.   The court, having already herein dismissed the contract claims asserted in Counts Three and Four, does not again address the contract claim asserted in Paragraph 11, which paragraph is inappropriately asserted in Counts One and Two (negligence counts).

FN3. Both the Plaintiff's testimony and the transcript are inconsistent re whether Cowles was flying under “visual” or “instrument” flight rules.   More frequently he testified to flying under “visual” flight rules—which would invoke the application of 14 C.F.R. § 91.151..  FN3. Both the Plaintiff's testimony and the transcript are inconsistent re whether Cowles was flying under “visual” or “instrument” flight rules.   More frequently he testified to flying under “visual” flight rules—which would invoke the application of 14 C.F.R. § 91.151.

FN4. Because the Defendant did not allege Eady's negligence (i.e., in not providing the above regulation in prominent display in the cockpit), the court considers only the negligence of Mr. Cowles..  FN4. Because the Defendant did not allege Eady's negligence (i.e., in not providing the above regulation in prominent display in the cockpit), the court considers only the negligence of Mr. Cowles.

FN5. Invoices # B71984 and 0049674 (totaling $2,440.50) are in the name of Eady only and Invoice # 1–8255 (in the amount of $5,894.75) is made out to both plaintiffs..  FN5. Invoices # B71984 and 0049674 (totaling $2,440.50) are in the name of Eady only and Invoice # 1–8255 (in the amount of $5,894.75) is made out to both plaintiffs.

FN6. No documentation after 1/31/08 and to the date of the crash substantiate further lease activity;  in fact, no income activity for the date of crash is provided..  FN6. No documentation after 1/31/08 and to the date of the crash substantiate further lease activity;  in fact, no income activity for the date of crash is provided.

Sheedy, Barbara J., J.