                                   Cite as 2013 Ark. 474

                SUPREME COURT OF ARKANSAS
                                      No.   CV-12-261

DAVIS TILLMAN, SPECIAL                           Opinion Delivered NOVEMBER 21, 2013
ADMINISTRATOR OF THE ESTATES
OF RODNEY NICKLE TILLMAN AND
REBECCA ANN TILLMAN, DECEASED                    APPEAL FROM THE GARLAND
                    APPELLANT                    COUNTY CIRCUIT COURT
                                                 [NO. CV2009-1677]
V.
                                                 HONORABLE JOHN                        HOMER
RAYTHEON        COMPANY,                         WRIGHT, JUDGE
INDIVIDUALLY AND AS SUCCESSOR
IN INTEREST TO RAYTHEON
                                                 AFFIRMED.
AIRCRAFT COMPANY; HAWKER
BEECHCRAFT CORPORATION;
HAWKER       BEECHCRAFT,
INCORPORATED; AND BEECH
AIRCRAFT CORPORATION
                     APPELLEES


                          DONALD L. CORBIN, Associate Justice

       Appellant, Davis Tillman, as special administrator of the estates of Rodney Nickle

Tillman and Rebecca Ann Tillman, deceased, appeals the amended order of the Garland

County Circuit Court granting summary judgment to Appellees, Raytheon Company,

Hawker Beechcraft Corporation (“HBC”), Hawker Beechcraft Incorporated, and Beech

Aircraft Corporation (collectively “the Beech defendants” or “Appellees”). For reversal,

Appellant contends that there are genuine issues of material fact in dispute as to whether the

fraud exception to the General Aviation Revitalization Act of 1994 (“GARA”), Pub. L. No.

103-298, 108 Stat. 1552 (1994) (codified at 49 U.S.C. § 40101 (2006), note), applies and as
                                     Cite as 2013 Ark. 474

to whether GARA’s limitation period began anew by Appellees’ publication of an allegedly

defective flight manual. In addition, Appellant contends that GARA is unconstitutional in

violation of the Due Process Clause and Equal Protection Clause of the Fourteenth

Amendment. Jurisdiction of this case involving a fatal airplane crash is properly in this court,

as it presents an issue of first impression for this court concerning interpretation of the federal

statute, GARA. Ark. Sup. Ct. R. 1-2(b)(1) (2013). We conclude that the circuit court did

not err in granting summary judgment and affirm.

       The following facts are taken from the allegations in the fifth amended complaint.

Appellant’s decedents hired Gregory L. Secrest to fly them from Hot Springs, Arkansas, to

Nashville, Tennessee, on November 24, 2008. Mr. Secrest was the owner and pilot of a 1979

Beechcraft 95 B55 Baron airplane, Serial Number TC-2198 (“the subject aircraft” or “the

Beech Baron”). Mr. Secrest and his two passengers departed Hot Springs Memorial Field at

approximately 9:11 a.m., and the flight proceeded under instrument flight rules because of

prevailing weather conditions. During the flight, the left engine of the Beech Baron lost

power, and the light twin-engine plane went into a flat spin and then crashed into a wooded

area near Whites Creek, Tennessee. All persons on board, the pilot and two passengers, died

as a result of injuries sustained in the crash.

       Appellant filed suit in the Garland County Circuit Court on behalf of his decedents’

estates alleging claims of wrongful death based on negligence and products liability. The

complaint was ultimately amended several times and named numerous defendants, including

the pilot, Appellees as manufacturer of the subject aircraft, as well as many other defendants


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who manufactured, sold, or installed parts on the subject aircraft subsequent to its original

manufacture in 1978. With respect to Appellees, the complaint alleged that they negligently

designed the subject aircraft due to its propensity to engage in an unrecoverable flat spin and

that Appellees misrepresented, concealed, or withheld material information from the Federal

Aviation Administration (“FAA”) about the flat-spin characteristic of the Beech Baron. The

complaint also alleged that Appellees negligently failed to include in its revised flight manual

the most current instructions on spin avoidance and control.

       Appellees moved for summary judgment on the basis that Appellant’s suit was barred

by the 18-year statute of repose set forth in GARA. Appellant responded to the motion,

contending that genuine issues of material fact existed as to the applicability of the fraud

exception to GARA and to the new-part rolling provision of GARA; alternatively, Appellant

responded that GARA is unconstitutional. After a hearing, the circuit court entered an

amended order granting summary judgment to Appellees on the basis that Appellant’s claims

were barred by GARA and that neither the fraud exception or the new-part rolling provision

of GARA applied. In addition, the circuit court found in its amended order that Raytheon

Co., Hawker Beechcraft Inc., and Beech Aircraft Corp. were improperly named defendants

as they did not design or manufacture the subject aircraft and could have no liability to

Appellant even if separate defendant and Appellee HBC were liable. The amended order also

dismissed with prejudice the cross-claims against the Beech defendants. Finally, the amended

order contained a certificate, pursuant to Rule 54(b) of the Arkansas Rules of Civil

Procedure, stating that considerations of judicial economy and fundamental fairness to the


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litigants of preventing duplicate trials justified the entry of a final order with regard to the

summary judgment granted to the Beech defendants.

       Appellant has timely appealed the order granting summary judgment and raises three

points for reversal. Appellant does not challenge the circuit court’s findings that HBC was

the only properly named defendant and that GARA applies here and operates to bar this suit.

Rather, Appellant challenges the circuit court’s findings as to the fraud exception and the

new-part rolling provision of GARA. Appellant also raises a constitutional challenge to

GARA.

       Prior to addressing the merits of the arguments on appeal, however, a very brief review

of the federal statute in question is helpful. A statute of repose proceeds on the basis that it

is unfair to make someone defend an action long after a product is sold; it declares that

“nobody should be liable at all after a certain amount of time has passed, and that it is unjust

to allow an action to proceed after that.” Lyon v. Agusta S.P.A., 252 F.3d 1078, 1086 (9th

Cir. 2001). GARA establishes a federal statute of repose, and was enacted by Congress in

1994 to revitalize the general aviation industry by protecting manufacturers from the long tail

of products-liability lawsuits arising out of accidents involving general aviation aircraft or

component parts that are more than 18 years old. See id. at 1084 (citing H.R. Rep. No. 103-

525, pt. I, at 1–4 (1994), reprinted in 1994 U.S.C.C.A.N. 1638); see also Wright v. Bond-Air,

Ltd., 930 F. Supp. 300 (E.D. Mich. 1996). GARA is a classic statute of repose, as it does not

run from the date of injury but from what is effectively the date of the first transfer from the

manufacturer. Lyon, 252 F.3d 1078. Unless one of GARA’s four exceptions applies, or unless


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the new-part rolling provision applies, GARA “supersedes any state law to the extent that

such law permits a civil action . . . to be brought after the applicable limitation period.” See

Wright, 930 F. Supp. at 303 (quoting in pertinent part GARA § 2(d)).

       One exception to GARA is at issue in this case, as is the rolling provision. The

exception at issue here is sometimes referred to as the “fraud exception” or the “knowing

misrepresentation” exception. The 18-year limitation of GARA does not apply if plaintiff

pleads with specificity facts and proves that (1) the manufacturer knowingly misrepresented,

concealed or withheld from the FAA required information that is material and relevant to the

performance, maintenance, or operation of the allegedly defective aircraft or component part;

and (2) the misrepresentation, concealment, or withholding is causally related to the harm

allegedly suffered. GARA § 2(b)(1); see Wright, 930 F. Supp. 300. “It is not sufficient for a

plaintiff to allege that the aircraft was negligently designed. The plaintiff must offer evidence

that the defendant knowingly misrepresented or concealed or withheld this design defect in

communications with the FAA.” Robinson v. Hartzell Propeller Inc., 326 F. Supp. 2d 631, 647

(E.D. Pa. 2004).

       The rolling provision at issue in this case is not a true exception, but is a rolling feature

of the statute that begins a new 18-year period when a new part is installed as a replacement

part. Although not a true exception, the rolling provision is nonetheless sometimes referred

to as the “new-part exception.” Section 2(a)(2) of GARA sets out the rolling feature and

provides that the addition of “any new component, system, subassembly, or other part which

replaced another component, system, subassembly, or other part originally in, or which was


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added to, the aircraft, and which is alleged to have caused such death, injury, or damage” can

start a new 18-year period of repose running from the date of completion of the addition of

that part to the aircraft. See Lyon, 252 F.3d 1078.

       Turning now to our standard of review in summary-judgment cases, we note our well-

settled law that summary judgment is to be granted by a circuit court only when it is clear that

there are no genuine issues of material fact to be litigated, and the party is entitled to

judgment as a matter of law. Skalla v. Canepari, 2013 Ark. 415, ___ S.W. 3d ___. Once the

moving party has established a prima facie case of entitlement to summary judgment, the

opposing party must meet proof with proof and demonstrate the existence of a material issue

of fact. Id. On appellate review, we determine if summary judgment was appropriate based

on whether the evidentiary items presented by the moving party in support of the motion

leave a material fact unanswered. Id. We view the evidence in the light most favorable to

the party against whom the motion was filed, resolving all doubts and inferences against the

moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits

and documents filed by the parties. Id. With respect to cases involving time-bars, albeit from

statutes of limitation rather than statutes of repose, we note that “[u]nder Arkansas law, once

it is clear from the face of the complaint that an action is barred by an applicable statute of

limitations, the burden shifts to the plaintiff to prove that the limitation period was in fact

tolled.” Summerhill v. Terminix, Inc., 637 F.3d 877, 880 (8th Cir. 2011).

       Appellee moved for summary judgment on the basis that the subject aircraft was

delivered to its first purchaser on December 21, 1978, and therefore GARA’s period of repose


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ran on December 21, 1996, over 12 years before the fatal accident in question. As noted,

Appellant does not challenge the circuit court’s findings in this regard.

        As his first point for reversal, Appellant contends that the circuit court erred in granting

summary judgment because a genuine issue of material fact exists with respect to whether the

fraud exception to GARA applies here. The gist of Appellant’s argument is that HBC

withheld or concealed material information from the FAA or misled or misinformed the FAA

about the propensity of the Beech Baron to enter what Appellant describes as an

uncontrollable flat spin. Under GARA’s fraud exception, GARA’s period of repose does not

apply

        if the claimant pleads with specificity the facts necessary to prove, and proves, that the
        manufacturer with respect to a type certificate or airworthiness certificate for, or
        obligations with respect to continuing airworthiness of, an aircraft or a component,
        system, subassembly, or other part of an aircraft knowingly misrepresented to the
        Federal Aviation Administration, or concealed or withheld from the Federal Aviation
        Administration, required information that is material and relevant to the performance
        or the maintenance or operation of such aircraft, or the component, system,
        subassembly, or other part, that is causally related to the harm which the claimant
        allegedly suffered.

GARA § 2(b)(1).

        The Supreme Court of Washington has observed that there is a split of authority as to

whether “knowingly” modifies only “misrepresented” or whether it also applies to

“concealed” and “withheld.” Burton v. Twin Commander Aircraft LLC, 254 P.3d 778, 785

(Wash. 2011) (comparing Rickert v. Mitsubishi Heavy Indus., Ltd., 923 F. Supp. 1453, 1456,

rev’d on other grounds on reh’g, 929 F. Supp. 380 (D. Wyo. 1996) (holding that knowledge is

a separate element that must be pled and proved with regard to misrepresentation,


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concealment, or withholding), with Butler v. Bell Helicopter Textron, Inc., 135 Cal. Rptr. 2d

762, 774 n.25 (Cal. Ct. App. 2003) (indicating that the knowing requirement applies only to

misrepresentation)). We agree with the reasoning and conclusion of the Washington Supreme

Court that, when construing GARA as a whole and with Congressional intent in mind,

“[m]isrepresented,” “concealed,” and “withheld” together indicate that a mental state of

“knowingly” applies to all of the means by which information may be kept from the FAA.

Burton, 254 P.3d 778, 786. In addition, we agree that the requirement of knowledge extends

to the nature of the information, such that a manufacturer would also have to know that the

information was material and relevant. Id. Finally, we agree with the conclusion that GARA

expressly provides that it is the claimant who must set out the facts to show that the fraud

exception applies and must do so with specificity. Id. Accordingly, we conclude that GARA

places the burden on Appellant to plead facts with specificity and to prove that the fraud

exception applies.

       Although Appellees argued at the hearing below that Appellant had not sufficiently

pled facts to establish the fraud exception, that was not the basis of the circuit court’s ruling.

We do note, as did the Sixth Circuit Court of Appeals in Crouch v. Honeywell International,

Inc., 720 F.3d 333 (6th Cir. 2013), that Appellant’s complaint clearly failed to plead

sufficiently specific facts to invoke GARA’s fraud exception.1 The circuit court in this case


       1
       Beginning with Appellant’s second amended complaint, as that is the first version of
the complaint appearing in the record, and concluding with the fifth amended complaint,
we see the same following conclusory allegations: the Beech defendants “misrepresented,
and/or concealed, and/or withheld information of the problem associated with the flat spin


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did, however, rule that “the actions which the [Appellant] alleges would invoke the fraud

exception do not constitute fraud as defined and contemplated by [GARA] and would not

serve to invalidate or toll the statute of repose.” Thus, our review on appeal is focused on this

ruling. And we are mindful that this case was decided on a motion for summary judgment

rather than a motion to dismiss for inadequate pleading.

       It was not until Appellant filed his response to Appellees’ motion for summary

judgment that we see any factually specific allegations of fraud. To his response, Appellant

attached several exhibits demonstrating ongoing communications over a period of years

between the FAA, the National Transportation and Safety Board (“NTSB”), and the Beech

defendants about the safety of general aviation aircraft and specifically about the flat-spin

characteristic of the Beech Baron. On appeal, Appellant’s argument that the fraud exception

applies focuses on the contention that the Beech defendants either misled the FAA or failed

to report to the FAA in the following ways.

       First, Appellant relies on the letter dated March 12, 1981, from HBC to the FAA,

which was a response to the FAA’s request for HBC to comment on a safety

recommendation. Appellant maintains that HBC’s response in this letter was misleading

because it criticized results of the tests conducted by the United States Army on the military



characteristic of the aircraft” and “[t]he knowing misrepresentation, omissions, and
concealment . . . are related to information that was material and relevant . . . and directly
relate to the cause of the accident and [Appellant’s] injuries and deaths.” The Sixth Circuit
Court of Appeals observed that similar allegations were conclusory and insufficient to satisfy
GARA’s requirement of pleading specific facts. See Crouch, 720 F.3d 333.


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version of the Beech Baron as being due to inappropriate or unreliable flight procedures.

Appellant maintains that the falsity of this response is demonstrated in HBC’s own internal

engineering report dated June 9, 1982, where Appellant maintains that HBC admits to

following the same procedures used by the Army. The specific flight procedures at issue here

are the deceleration rate of one knot per second and whether full asymmetric power was held

during a stall and for how long.

       Second, but also in the March 12, 1981 letter, Appellant points to HBC’s statements

on the Army’s use of neutralized ailerons in a stall. HBC stated that such was an “improper

use of ailerons [and] is contrary to accepted practices under FAA training and certification

procedures, which emphasize use of the ailerons in the stall to maintain wings level.”

(Emphasis added.) Appellant maintains that this statement from HBC is false and contrary to

HBC’s “Safety Information” pamphlet reissued in March 1981, wherein HBC directs pilots

to maintain neutral ailerons during recovery from a spin.

       Third, but also in the March 12, 1981 letter, Appellant points to HBC’s reference to

statements made by Mr. Bobby Bray who conducted the spin testing on the military version

of the Beech Baron. According to Appellant, Appellees misrepresented that Mr. Bray had no

difficulty in recovering from a spin using the recovery methods recommended by HBC.

Appellant contends that this statement was false and misleading, and points to a letter from the

NTSB to HBC indicating that the NTSB had contacted Mr. Bray, who revealed, “[a]s

outlined in his original statement regarding those tests, he indicated that the spin went flat,




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as a result of the application of asymmetric power and that all subsequent efforts to recover

were futile until in desperation he applied power in the pro-spin direction.”

       Fourth, and finally, Appellant points to HBC’s Pilot Operating Handbook and FAA

Approved Airplane Flight Manual (“POH” or “flight manual”) and HBC’s “Safety

Information” pamphlet as withholding material information about the sufficiency of HBC’s

spin-recovery recommendations. Appellant argues that the Safety Information pamphlet

instructs that a pilot is certain to become disoriented if an airplane flown under instrument

conditions is allowed to enter a stall or spin because the pilot will not be able to reference the

horizon. Yet, Appellant points out, the POH instructs a pilot to immediately engage in

specified spin-recovery techniques, if a spin is entered inadvertently. Appellant contends that

this is misleading because, according to the Safety Information pamphlet, a pilot who is flying

under instrument controls will be disoriented in a spin and will not be able to immediately

engage in HBC’s spin-recovery techniques. Appellant argues that, per applicable federal

guidelines, HBC was under a continuing duty to disclose this dilemma to the FAA under 14

C.F.R. § 21.3 and was also under a duty to disclose to the FAA the adequacy of its procedures

outlined in the POH.

       Appellees respond by disputing Appellant’s interpretation of the March 1981 letter.

Appellees contend that they criticized how late the Army pilot initiated recovery measures in

the flight tests and how long asymmetric power was continued into the stall, and did not

challenge the use of the industry standard-deceleration rate. Similarly, Appellees respond that

it was not the use of neutral ailerons in general, but the timing of their use in the spin recovery


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as opposed to the stall, that Appellees challenged in the March 1981 letter. Appellees respond

further that its flight manual is consistent with its criticism of the Army flight tests and is not

any evidence of misinformation or fraud. With respect to statements of Mr. Bray, Appellees

respond that HBC had already supplied copies of Mr. Bray’s statement to the FAA prior to

the March 12, 1981 letter, thus there was no knowing misrepresentation or concealment of

his statements. As for Appellant’s challenge to the dilemma described in the POH and Safety

Information pamphlet, Appellees respond that Appellant’s challenge demonstrates a basic

misunderstanding of two principles: (1) spin avoidance is ideal, and immediate action is

appropriate as soon as the pilot experiences the first sign of loss of control; and (2) the laws

of physics cannot be changed. Appellees maintain that by advising pilots to take immediate

action because they will become disoriented without reference to the horizon is merely stating

sound advice and scientific truth on the laws of physics. Finally, Appellees respond that,

despite having no duty to disprove the fraud exception, HBC volunteered a plethora of

evidence showing that the FAA received all required material information relevant to the stall

and spin characteristics of the Beech Baron aircraft.

       In reply, Appellant contends that, by arguing the facts and substance of the March 1981

letter as HBC perceives them to be, HBC has demonstrated that a genuine issue of material

fact exists as to whether and to what extent this letter misled the FAA.

       At first glance, Appellant’s argument in reply appears meritorious, as generally speaking,

fraud is a question of fact. See, e.g., Delanno, Inc. v. Peace, 366 Ark. 542, 237 S.W.3d 81

(2006) (stating that although the question of fraudulent concealment sufficient to toll the


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statute of limitations is usually one of fact and, thus, unsuited for summary judgment, a trial

court may resolve the question as a matter of law when there is no evidentiary basis for

reasonable differences of opinion). However, upon review of all the information volunteered

by Appellees as well as all of the exhibits attached to Appellant’s response to the motion for

summary judgment, it is clear that what we have in the present case is a years-long discussion

occurring via letters back and forth between the Beech defendants, the FAA, and the NTSB

that establish a genuine concern on the part of all those involved as to the safety of twin-

engine general aviation aircraft. In reading these letters and internal documents of HBC’s

such as the engineering reports, the flight manual, and the Safety Information pamphlets, it

is clear that both the FAA and the Beech defendants disagree at various points. But it is

equally clear that despite the disagreement, there is nothing in any of the letters or internal

documents to indicate a knowing misrepresentation, concealment, or withholding of material

information that was causally related to the crash and subsequent deaths of Appellant’s

decedents. On the contrary, the letters are evidence of the Beech defendants’ open and

candid communications with the FAA about the safety of the flat-spin characteristic of the

subject aircraft. Appellant thus falls woefully short of demonstrating any intent the Appellees

knowingly misled, concealed, or withheld material and relevant required information from

the FAA. Accordingly, the circuit court’s finding that “the actions which the Plaintiff alleges

would invoke the fraud exception do not constitute fraud as defined and contemplated by

the act and would not serve to invalidate or toll the statute of repose” is affirmed.




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       For his second point for reversal, Appellant contends that there is a genuine issue of

material fact with regard to whether the statute of repose has been rolled by HBC’s

publication of an allegedly defective flight manual. As noted, the rolling feature of GARA

extends the 18-year statute of repose “with respect to any new component, system,

subassembly, or other part which replaced another component, system, subassembly, or other

part originally in, or which was added to, the aircraft, and which is alleged to have caused

such death, injury, or damage.” GARA § 2(a)(2).

       Appellant argues that the original version of the POH was produced in 1976, and then

supplemented in 1980, 1983, 1990, 1994, 1997, and 2002. According to Appellant, the

original POH provided limited instructions with regard to spin avoidance that were based on

the “best available information.” Appellant points out that from 1998 to 2004, HBC issued

a series of “Safety Communiques” to its authorized service centers, dealers, operators, and

owners of record for all Beech Baron airplanes on the subject of spin-avoidance and spin-

recovery characteristics. Appellant then points to the 2002 supplement to the POH where

“[n]o [c]hange” is indicated with respect to the section related to “Handling, Serv[ice] &

Maint[enance].”

       Appellant thus argues that none of the information included in the Safety

Communiques was published in the most recent version of the POH prior to the accident in

question. Appellant maintains that a jury could easily conclude that the POH, as revised, was

defective in that it did not contain the most updated warnings and instructions regarding spin

avoidance and spin control, which were the alleged proximate cause of the accident at issue


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here. Appellant also argues that further evidence of Appellees’ failure to provide a meaningful

POH can be found in its letter to the FAA of May 31, 1991, in which Appellees discuss the

results of tests that Appellees conducted relating to the effect of the installation of a V.G.

Systems vortex generator on the Beech Baron planes. In that letter, Appellant points out that

Appellees bring to the FAA’s attention certain characteristics of the modified airplane that are

not defined in the POH. Appellant also emphasizes that although Appellees stated in the

letter that they were considering putting the test results of the modified airplane in a Safety

Communique, such information was never included in the POH.

       Appellees respond that Appellant’s allegations are insufficient to invoke GARA’s new-

part rolling provision as a matter of law. Appellees maintain that passing up the opportunity

to revise the POH within 18 years of the accident is not analogous to revising the POH in

a defective way. Appellees respond that the May 31, 1991 letter concerned an after-market

kit that was not manufactured by HBC; and HBC could therefore not include any

information about that after-market kit in HBC’s POH. Appellees also respond that

Appellant is in effect raising a “failure-to-warn” argument and that the failure to warn of a

newly perceived problem does not amount to the replacement of a part. Accordingly,

Appellees respond that the case law uniformly holds that there must be a substantive change

to the POH that is causally related to the accident in order to roll the GARA repose period

and start the running of a new 18-year period.

       Appellant relies primarily on Caldwell v. Enstrom Helicopter Corp., 230 F.3d 1155 (9th

Cir. 2000) to support his argument that a revised aircraft manual constitutes a new system or


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other part of an aircraft so as to fall within GARA’s rolling provision. Appellant’s reliance on

Caldwell is misplaced. Caldwell does indeed recognize that a revised FAA approved flight

manual can constitute a new part of an aircraft such that GARA is rolled. However, Caldwell

does not stand for the proposition that the complete omission of material from a flight manual

triggers the rolling provision of GARA. Rather, Caldwell stands for the proposition that

GARA’s rolling provision is triggered when a manufacturer “substantively alter[s], or delete[s],

a warning . . . from the manual within the last 18 years.” Id. at 1158. According to Caldwell,

in order for a revised flight manual to constitute a new part that triggers the rolling of the

GARA period of repose, the revision must either contain wrong instructions or delete existing

warnings or information. “No change,” which is what Appellant argues occurred here with

respect to the POH in question, is not a deletion or alteration of information that previously

appeared in the manual, but is an alleged omission of information, or, in other words, a failure

to warn. See Crouch, 720 F.3d 333 (observing that if claims for negligently failing to warn

in manual revisions were not barred by GARA’s period of repose, plaintiffs could artfully

plead suits arising out of design defects as “failure-to-warn” claims, thereby defeating

Congress’s intent); see also Lyon, 252 F.3d 1078 (rejecting proposition that failure to warn of

a newly perceived problem in revised manual is analogous to a replacement part triggering

new period of repose).

       Appellant’s argument as to the failure to revise the POH to include a warning about

the flat-spin issue is contrary to the foregoing case law and is therefore without merit. The

circuit court’s finding that “as a matter of law . . . the [Appellees’] failure to revise the Subject


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Aircrafts’s flight manual in the ways [Appellant] suggests is not a basis to invoke GARA’s new

part provision” is therefore affirmed.

       As his final point for reversal, Appellant raises a constitutional challenge to GARA,

arguing that the statute violates the Due Process Clause and Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution. Appellant argues that GARA, by

its terms, places an unreasonable and arbitrary restraint on a person’s ability and right to be

compensated for a loss that was proximately caused by a third party. Appellees respond that

the constitutionality of GARA has been upheld, even for lawsuits involving passengers on the

same airplane. E.g., Lyon, 252 F.3d 1078 (upholding GARA as “assuredly rational,” even

though plaintiffs who filed actions before GARA’s effective date received “special protection”

while those plaintiffs who filed after GARA’s effective date were time-barred). Appellees

respond further that an even more recent challenge to GARA’s constitutionality has failed

both due-process and equal-protection challenges. In support, Appellees cite Bianco v. Cessna

Aircraft Co., 1 CA-CV 03-0647, 2004 WL 3185847, ¶ 65 (Ariz. Ct. App. Oct. 19, 2004)

(upholding Fifth Amendment substantive due-process challenge because there is no property

interest in common-law claims that are not reduced to judgment and because GARA is not

arbitrary or irrational; and upholding Fifth Amendment equal-protection challenge because

GARA’s line-drawing is not arbitrary but strikes a reasonable balance “between the

competing interests of fairly compensating accident victims and keeping the price of general

aviation aircraft at an affordable level”).




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        We are precluded from reaching Appellant’s constitutional argument because the

circuit court did not rule on it. Appellant raised this constitutional argument for the first time

in his response to Appellees’ motion for summary judgment. The abstract does not reveal that

Appellant ever argued the constitutional challenge at the hearing, although Appellees very

briefly defended the constitutionality at the hearing. In any event, the circuit court did not

rule on this issue or mention it in the order granting summary judgment. It is Appellant’s

burden to obtain a ruling to preserve an issue for appeal, and the failure to do so precludes our

review. Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328, ___ S.W.3d ___.

        The circuit court specifically ruled that GARA applied and that it barred Appellant’s

suit, that Appellant’s allegations in support of the fraud exception did not constitute fraud as

defined in GARA, and that the new-part rolling provision was not triggered. The order was

silent as to the constitutional claim, and we are therefore precluded from reviewing that

argument on appeal. TEMCO Constr., LLC v. Gann, 2013 Ark. 202, ___ S.W.3d ___

(stating that we do not presume rulings on constitutional challenges to statutes even when the

trial court’s decision enforces or applies the statute). We also note that, because the circuit

court made specific findings as to the application of GARA and the inapplicability of the fraud

exception and the new-part rolling provision, our recent decision in Hardin v. Bishop, 2013

Ark. 395, ___ S.W.3d ___, does not require that we address the constitutional argument in

the absence of a specific ruling.

        The circuit court’s order granting summary judgment to Appellees on Appellant’s

claims and dismissing with prejudice the cross-claims against them is affirmed.

        Affirmed.
        The Boswell Law Firm, by: Ted Boswell, Dennis J. Davis, and John Andrew Ellis, for appellant.

       Rose Law Firm, A Professional Association, by: Patrick J. Goss; and Martin, Pringle, Oliver, Wallace
& Bauer, L.L.P.100, by: William L. Oliver, Michael G. Jones, and Teresa L. Adams, for appellees.


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