12-1288-cv
Ovesen v. Mitsubishi Heavy Indus.


                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
25th day of March, two thousand thirteen.

PRESENT:
            RALPH K. WINTER,
            JOSÉ A. CABRANES,
            DEBRA A. LIVINGSTON,
                         Circuit Judges.
_____________________________________

ALFREDA SMITH OVESEN, as personal representative of the Estate of Svend A. Ovesen, DBA
Crucian International, Inc.,

                    Plaintiff-Appellant,

                              v.                                    No. 12-1288-cv

MITSUBISHI XYZ CORPORTATIONS, HONEYWELL INC., PROPULSION ENGINES INC., AIRESEARCH
MANUFACTURING COMPANY OF ARIZONA GARRETT AIRLINE SERVICES DIVISION, MOONEY
AIRPLANE COMPANY, INC., MITSUBISHI AIRCRAFT INTERNATIONAL INC., MAXFLY AVIATION INC.,
ABC CORPORATION, DUNCAN AVIATION INC., RAYTHEON AIRCRAFT COMPANY, FORMERLY BEECH
AIRCRAFT CORPORATION AND SUCCESSOR IN INTEREST TO MOONEY AIR CRAFT,

                    Defendants.

MITSUBISHI HEAVY INDUSTRIES OF AMERICA INC., MITSUBISHI HEAVY INDUSTRIES LTD.,

            Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT:                                 CHERIE K. DURAND (Paul H. Hulsey, Hulsey
                                                         Law Group, LLC, Todd E. Duffy, Anderson,
                                                         Kill & Olick, PC, on the brief) Hulsey Law
                                                         Group, LLC, Charleston, SC.

FOR DEFENDANTS-APPELLEES:                                MARSHALL SETH TURNER (Diana Kim,
                                                         Timothy H. Eskridge, Jr., on the brief) Condon
                                                         & Forsyth, LLP, New York, NY.


          Appeal from judgment of the United States District Court for the Southern District of New

York (John G. Koeltl, Judge).

          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the March 1, 2012 judgment of the District Court

dismissing plaintiff’s complaint in its entirety is AFFIRMED.

          This case arises from a 2002 airplane crash that killed Svend A. Ovesen (“decedent”) while

he was piloting a MU-2B aircraft manufactured by defendants-appellees Mitsubishi Heavy Industries

of America, Inc., and Mitsubishi Heavy Industries, Ltd. (jointly “defendants”). Plaintiff Alfreda

Smith Ovesen (“plaintiff”) subsequently instituted this action for damages based on the parties’

diversity of citizenship, see 28 U.S.C. § 1332, individually and as personal representative of the estate

of decedent, seeking damages against defendants for design flaws in the MU-2B aircraft. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

          On March 22, 2011 defendants filed a motion for summary judgment, arguing that plaintiff’s

claims were barred by an eighteen-year statute of repose provided by the General Aviation

Revitalization Act (“GARA”), Pub. L. No. 103-298, 108 Stat. 1552 (codified at 49 U.S.C. § 40101

note). See GARA § 2(a), 3(3). In response, plaintiff claimed that a “fraud exception” to the statute

of repose—covering instances where an aircraft manufacturer “knowingly misrepresented to the

Federal Aviation Administration, [(“FAA”)] or concealed or withheld from the [FAA], required

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information that is material and relevant to the performance or the maintenance or operation of [an]

aircraft”—allowed it to proceed against defendants. See GARA § 2(b)(1). Specifically, plaintiff

claimed that defendants were required to disclose to the FAA information contained in a 1973

report to the United Kingdom’s Civil Aviation Authority (“CAA report”), concerning supposed

flight performance problems, and that defendants’ failure to do so rendered the statute of repose

inapplicable.

        In a thorough Memorandum Opinion and Order of March 1, 2012, the District Court

considered the applicability of this fraud exception, see GARA § 2(b)(1), as well as the relevant

regulations for a manufacturer’s reporting requirements, see 14 C.F.R. § 21.3(a) and (d), for the

specific aircraft and corresponding FAA design approval (otherwise known as a “type certificate”) at

issue in the case. See Ovesen v. Mitsubishi Heavy Indus. of Am., Inc., No. 04 Civ. 2849(JGK), 2012 WL

677953, at *3-6 (S.D.N.Y. Mar. 1, 2012). Based on this analysis, the District Court concluded that

defendants were not required to disclose the information contained in the CAA report to the FAA,

making the fraud exception inapposite, and barring plaintiff’s action under the 18-year GARA

statute of repose. Id. at *6. Accordingly, the District Court entered judgment dismissing plaintiff’s

complaint in its entirety.

        On March 14, 2012, plaintiffs sought reconsideration of the District Court’s decision, raising

a new statutory interpretation argument based on the GARA’s legislative history. In a

Memorandum Opinion and Order of May 7, 2012, the District Court considered these arguments

and denied plaintiff’s motion for reconsideration. See Ovesen v. Mitsubishi Heavy Indus. of Am., Inc., No.

04 Civ. 2849(JGK), 2012 WL 1583566 (S.D.N.Y. May 7, 2012). This timely appeal followed.

        We review an order granting summary judgment de novo and “resolv[e] all ambiguities and

draw[ ] all permissible factual inferences in favor of the party against whom summary judgment is

sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted); see also

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Fed. R. Civ. P. 56. On appeal, plaintiff primarily argues that, based on the legislative intent of

GARA, defendants were required to disclose the CAA report to the FAA under the relevant

regulations. See 14 C.F.R. § 21.3.

        Having conducted an independent and de novo review of the record, we disagree with

plaintiff’s statutory interpretation arguments and affirm the District Court’s dismissal of plaintiff’s

complaint, substantially for the reasons stated in Judge Koeltl’s well-reasoned orders of March 1,

2012 and May 7, 2012.

                                           CONCLUSION

        We have considered all of plaintiff’s arguments on appeal and find them to be without merit.

Accordingly, we AFFIRM the District Court’s March 1, 2012 judgment.



                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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