United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. LEINENWEBER, JUDGE.
Sky Jet M.G., Inc. (“Sky Jet”) sued Defendants,
Elliott Aviation, Inc. (“Elliott”) and Elliott
Aviation of the Quad Cities, Inc. (“Quad Cities”)
(collectively, the “Defendants”), alleging
negligence and breach of contract against Elliott (Counts I
and III, respectively) and negligence against Quad Cities
(Count II). After several months of discovery, Defendants
moved for summary judgment on Count III and partial summary
judgment on Counts I and II [ECF No. 39].
Motion for Summary Judgment on Count III is granted in part
and denied in part. Sky Jet's warranty claim is
time-barred, but it may pursue a breach-of-contract claim for
damages in excess of the repair or replacement value of the
left landing gear. Defendants' Motion for Partial Summary
Judgment on Count I based on the Contract's negligence
disclaimer is granted in part and denied in part. The
Contract limits liability for negligence but the facts do not
establish, as a matter of law, that Sky Jet's recovery is
limited to repair or replacement of the left landing gear.
The Court denies Defendants' Motion for Partial Summary
Judgment on Counts I and II to the extent it is based on the
absence of extra-contractual duties to Sky Jet. The
undisputed facts do not show that Quad Cities was a party to
the Contract or is otherwise entitled to its negligence
liability disclaimer. Nor do the facts speak clearly as to
Elliott's freedom from extra-contractual liability for
Quad Cities' or its own potentially tortious conduct.
offers private aircraft charters throughout Quebec, Ontario,
and the United States. (ECF No. 41 (“Defs.'
SOF”) ¶ 2.) Elliott and its subsidiary company,
Quad Cities, offer aviation-related services such as
inspection, servicing, repair, and maintenance of aircraft
and aviation components. (Id. ¶¶ 5-6.) Sky
Jet entered into a contract with Elliott for maintenance of
its Beech King Air 200 (“the Subject Aircraft”).
(ECF No. 48 (“Pl.'s Resp.”) ¶ 11-12.)
That contract was in the form of a quotation; Elliott
prepared it on May 31, 2013, and Sky Jet accepted the terms
by signing on June 4, 2013 (“the Contract”).
(Id. ¶ 13.) Under the Contract, Sky Jet agreed
to pay $15, 000 in exchange for maintenance
“overhaul” of its left and right landing gears,
including removal and disassembly of the landing gear
components, their actuators, and the gear box. (Pl.'s
Resp., Ex. A, p.3.) The Contract either incorporates or
expressly includes the following six (6) salient provisions:
Customer agrees and understands that Customer is responsible
for all claims, demands, suits, judgments, losses, damages,
costs and expenses arising out of the inflight operation of
the Aircraft, except to the extent that such claims, demands,
suits, judgments, losses, damages, costs and expenses arise
out of Elliott Aviation's negligence in performing
Services, (as defined in the Proposal) on the Aircraft.
Customer agrees that Elliott Aviation is not responsible for
the pilots who operate the Aircraft regardless of who
provides the pilot(s). Customer represents and warrants that
it has procured insurance for the hull of the Aircraft and
acknowledges that Customer is responsible for all damages to
the hull of the Aircraft regardless of which party causes the
damage to the hull. Upon request, Customer shall provide
evidence of hull and liability insurance in a form
satisfactory to Elliott Aviation.
Limitations of Liability
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOSS OF USE OF
THE AIRCRAFT OR LOSS OF PROFITS, DIMUNITION IN VALUE OR
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES,
INCLUDING WITHOUT LIMITATION, ANY LOSS OR DAMAGE TO THE
AIRCRAFT RESULTING FROM ANY FAILURE OR REFUSAL TO PERFORM
CUSTOMARY RECOMMENDED OR REQUIRED STORAGE AND MAINTENANCE
PROCEDURES ON ANY AIRCRAFT REMAINING OR HELD ON THE
COMPANY'S PREMISES, UNLESS SPECIFICALLY AGREED IN
WRITING. IN NO EVENT SHALL ANY ACTION BE COMMENCED AGAINST
COMPANY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION WITH
RESPECT TO WHICH THE CLAIM IS MADE HAS ACCRUED. In the event
Elliott Aviation physically damages Customer's property,
Customer's sole and exclusive remedy, and Elliott
Aviation's sole and exclusive liability, is limited to
the repair or replacement (at Elliott Aviation's option)
of the damaged portion of the property.
Warranty and Disclaimers
The “Statement of Warranty” of the Company in
effect as of the date of this Work Authorization shall govern
the work. A copy has been provided to Customer, or will be
provided to Customer, upon request. THE STATEMENT OF WARRANTY
IS EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED
WARRANTIES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. Any repair or replacement shall be performed at an
Elliott Aviation facility and Customer shall be responsible
for transportation costs.
Scope of Warranty
This warranty and the liability of Elliott Aviation for
breach of warranty shall be limited to correcting or
repairing such portions of the Work that is [sic]
not in accordance with the Aircraft Work Authorization or
Specifications. Elliott Aviation warrants only that the Work
shall be free from defects under normal aircraft use. Elliott
Aviation's obligations under this Warranty, and
Owner's exclusive remedy, shall be limited solely to the
repair, or replacement, at Seller's election, of any
workmanship which is determined to be defective under normal
use and service within the earliest to occur of three hundred
(300) hours of aircraft operation or one (1) year after
completion of the Work (the “Warranty Period”).
Right to Subcontract. Elliott Aviation has the right to
subcontract any Service to any subcontractor properly
certified and rated by the Approved Aviation Authority.
Assignment. This Agreement may not be assigned without the
prior written consent of the other party, except that your
consent will not be required for an assignment by us to one
of our affiliates.
(Pl.'s Resp. ¶¶ 17-20 & Ex. A, p.5.)
Cities, not Elliott, performed the maintenance and certified
on June 19, 2013 that the Subject Aircraft was in airworthy
condition and that all work was performed in conformance with
applicable manufacturing maintenance manuals. (ECF No. 50,
“Defs.' Resp., ” ¶ 4.) Only Quad Cities
provided any work, testing, or services on the Subject
Aircraft. (Id. ¶ 3.)
September 22, 2014, the Subject Aircraft's left landing
gear malfunctioned in flight, forcing the pilots to land it
with only partial landing gear assistance. (Pl.'s Resp.
¶ 16.) In addition to that affecting the landing gears,
the Subject Aircraft sustained other damage upon landing.
filed suit against Defendants on September 15, 2015, claiming
that Elliott and Quad Cities “breached the duty owed to
Sky Jet to use reasonable care in the inspection, servicing,
repairing, and maintenance of the Subject Aircraft and its
component parts and assemblies.” (ECF No. 1,
“Compl., ” ¶¶ 17, 21.) Specifically,
Sky Jet alleged that Defendants negligently and carelessly
inspected, serviced, repaired, and maintained the Subject
Aircraft's landing gear systems, assemblies, actuators,
gearbox, and motor; negligently and carelessly certified the
Subject Aircraft as airworthy; and negligently violated FAA
regulations, the instructions provided with the aircraft
manufacturer's maintenance manual, and other industry
standards and customs. (See, id.) Sky Jet's
breach of contract claim against Elliott includes similar
allegations plus an additional assertion that Elliott failed
to “comply with other express warranties.”
(Id. ¶ 27.)
terms of damages, Sky Jet seeks recovery for “property
damage to the Subject Aircraft, to a cargo pod affixed to the
Subject Aircraft, and to other property in or near the
Subject Aircraft; diminished value of the Subject Aircraft;
loss of revenues and profits; loss of good will; damage to
business reputation; loss of the use of the Subject Aircraft
and other aircraft; investigation, maintenance, and recovery
costs; and other damages as allowed by law.” (Compl.
¶ 18; see, Id. ¶¶ 22, 28.) Sky Jet
does not distinguish among its counts with respect to the
types of damages sought.
judgment must be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A genuine issue of material fact exists
if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
evaluating summary judgment motions, courts must view the
facts and draw reasonable inferences in the light most
favorable to the non-moving party. Scott v. Harris,
550 U.S. 372, 378 (2007). The Court does not make credibility
determinations as to whose story is more believable.
Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d
697, 704 (7th Cir. 2011). It must consider only evidence that
can be “presented in a form that would be admissible in
evidence.” Fed.R.Civ.P. 56(c)(2).
party seeking summary judgment bears the initial burden of
showing that there is no genuine dispute and that it is
entitled to judgment as a matter of law. Carmichael v.
Vill. of Palatine, 605 F.3d 451, 460 (7th Cir. 2010);
see, also, Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If this burden is met, then the adverse party
must “set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S.
their memorandum of law, Defendants argued that (i) Elliott
is entitled to summary judgment on Count III because Sky
Jet's breach of contract and warranty claims are
time-barred; (ii) they are entitled to partial summary
judgment on the negligence counts because the Contract limits
Sky Jet's recoverable damages to repair or replacement of
the left landing gear; and (iii) they are entitled to partial
summary judgment on the negligence counts because they sound
in contract and do not allege any extra-contractual duty owed
to Sky Jet.
response, Plaintiff contended that (i) the breach of contract
cause of action is timely because, under the discovery rule,
it accrued when the aircraft crashed, not when the work was
performed; (ii) the limitation of liability does not apply to
Elliott's own negligence; and (iii) it never agreed to
any limitation of the liability of Quad Cities.
then filed a reply, arguing that (i) Sky Jet's
contractual agreement to a one-year limitations period dooms
its breach of contract claim, and Sky Jet's failure to
plead the discovery rule bars its application; (ii) the
Contract limits Sky Jet's recoverable damages because
Elliott assigned the contract to Quad Cities; and (iii) the
limitation of liability provision of the Contract applies to
both of Sky Jet's negligence claims, and Defendants did
not owe any extra-contractual duties to Sky Jet anyway.
Court granted Sky Jet leave to file a sur-reply to address
these arguments. In its sur-reply [ECF No. 55], Sky Jet
argued that (i) Defendants have not carried their burden of
showing that the Contract was in fact assigned to Quad
Cities; and (ii) if indeed Elliott established an assignment
of the Contract to Quad Cities, then Elliott is not entitled
to summary judgment on Sky Jet's claims against it.