United States District Court, W.D. Washington, Tacoma
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
J. BRYAN, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Aircraft
Solutions, LLC (“Aircraft Solutions”) Renewed
Motion for Summary Judgment (Dkt. 101), Defendant David
Kilcup and International Jets, Inc.'s
(“International Jets”) Motion for Summary
Judgment (Dkt. 107) and motion to strike (Dkt. 136), Alden
Andre's Motion for Summary Judgment (Dkt. 110) and
Plaintiff's Motion for Partial Summary Judgment (Dkt.
112). The Court has considered the pleadings filed in support
of and in opposition to the motions and the file herein. Oral
argument was requested, but is not necessary to decide the
case arises out of Plaintiff's purchase of a 1977 Cessna
Citation ISP (“aircraft”) from International Jets
that Plaintiff asserts was not airworthy and required
thousands of dollars to repair. Dkts. 1 and 48. The parties
now move for summary judgment. For the reasons provided
below, Plaintiff's motion for summary judgment (Dkt. 112)
should be denied; Defendant Andre's motion for summary
judgment (Dkt. 110) should be granted; and the remaining
Defendants' motions (Dkts. 101 and 107) should be
granted, in part, and denied, in part.
relevant to this motion, the Federal Aviation Administration
(“FAA”) defines “airworthy” as
meaning that an “aircraft conforms to its type design
and is in a condition for safe operation.” 14 C.R.F.
§ 3.5 (a). The regulations further state that:
“[n]o person may operate a civil aircraft unless it is
in an airworthy condition, ” and that “[t]he
pilot in command of a civil aircraft is responsible for
determining whether that aircraft is in condition for a safe
flight. The pilot in command shall discontinue the flight
when unairworthy mechanical, electrical, or structural
conditions occur.” 14 C.F.R. §91.7 (a)-(b).
to the events that gave rise to this case, the aircraft was
owned by VonJett, Inc. (“VonJett”) and leased to
another company, American Care Aviation. Dkts. 113-4, at 38
and 113-6, at 55. Defendant Alden Andre was the director of
maintenance for the aircraft (along with other aircraft)
under a contract with American Care Air. Dkt. 113-6, at
55-56. (An aircraft director of maintenance monitors the
extensive maintenance and regulation requirements for an
aircraft, and arranges for repairs and inspections. Dkt.
113-11, at 3.) Andre also had a contract with Defendant
Aircraft Solutions, an aircraft repair company, to be an
aircraft maintenance sales representative for it; he received
monthly compensation plus commission on work he acquired for
the shop. Dkts. 111, at 46; 113-6, at 117-118 and 113-7, at
before the summer of 2013, at the recommendation of Andre,
VonJett hired Defendant International Jets (its president is
Defendant David Kilcup) to sell the aircraft. Dkts. 113-5, at
42 and 113-7, at 21. (Andre was not employed by International
Jets, but did receive a referral commission from
International Jest on the eventual sale of the aircraft.
Dkt.113-4, at 139-141.) In August or September of 2013,
VonJett repossessed the aircraft from American Care Aviation
for failure to make payments under the lease agreement. Dkt.
113-4, at 77. The aircraft was flown to Aircraft Solutions in
Spokane, Washington. Dkt. 113-4, at 79.
September of 2013, International Jets began advertising the
sale of the aircraft. Dkt. 113-4, at 38. Kilcup was not aware
of any maintenance due on the aircraft until Andre informed
Kilcup that in October it would be due for a Phase V
inspection. Dkt. 113-4, at 79.
V inspection is performed on this type of jet aircraft every
1, 200 hours or 36 months of flight, whichever comes first.
Dkt. 113-1, at 51. While it is a very extensive review of
many of the major systems and airframe, it does not require
inspection of all aspects of the aircraft (particularly the
engines). Dkt. 113-8, at 38-39. It is done while the aircraft
is on the ground. Dkt. 113-1, at 139.
September 17, 2013, Dr. David Fallang contacted Kilcup about
purchasing the jet aircraft. Dkt. 113-9, at 31-32. Fallang is
the sole “representative” of Plaintiff Cozumel
Leasing, LLC (“Cozumel”); the owner of Cozumel is
the Fallang Family Limited Partnership and Cozumel was formed
to hold aircraft. Dkt. 113-9, at 137; 108, at 25. Fallang is
a pilot and owned two other aircraft at the time, but neither
were jets. Dkt. 113-9, at 7-8. He is a retired physician, and
owns two other businesses: a for-profit hospital and a waste
heat recovery business. Dkt. 113-9, at 10-11.
event, during their initial conversation, Fallang states that
Kilcup told him that jet aircraft have phase inspections
rather than annual inspections. Dkt. 113-9, at 33. Fallang
testified that he did not know the inspection schedules of
jet aircraft at that time. Dkt. 113-9, at 33. Fallang states
that Kilcup told him that the aircraft had recently undergone
Phase I-IV inspections and was shortly due for a Phase V
inspection, which was a “very extensive inspection of
all the major systems.” Dkt. 113-9, at 35.
September of 2013, Kilcup sent Fallang a Letter of Intent
(“LOI”). Dkt. 113-19, at 1. The LOI provides that
the aircraft was to be purchased for $1, 430, 000 subject, in
part, to the following: “1) Aircraft is to be delivered
in an airworthy condition, no damage history, represented per
the information received, current on its inspection program,
and with a clear and unencumbered title. 2) A satisfactory
pre-purchase inspection is to be completed at buyer's
expense . . .” Id. The LOI also provides:
BUYER REALIZES THAT THE AIRCRAFT IS USED, AND BUYER AGREES
THAT THE AIRCRAFT IS PURCHASED “AS IS” TO THE
EXTENT ALLOWED BY APPLICABLE LAW, (I) SELLER MAKES NO
WARRANTIES, (II) BUYER WAIVES AS TO SELLER ALL WARRANTIES,
WHETHER AS TO MERCHANTABILITY, FITNESS, OR OTHERWISE, AND
(III) BUYER AGREES THAT SELLER SHALL NOT BE LIABLE FOR ANY
GENERAL, CONSEQUENTIAL, OR INCIDENTIAL DAMAGES, INCLUDING
WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF USE OR LOSS OF
PROFITS, OR ANY DAMAGES CLAIMED BY THE BUYER OR ANY OTHER
PERSON OR ENTITY UPON THE THEORIES OF NEGLIGENCE OR STRICT
LIABILITY IN TORT.
Id. (emphasis in original). Fallang signed
the LOI on behalf of Cozumel on September 21, 2013 and Kilcup
signed for International Jets on September 23, 2013.
this time, Kilcup told Fallang that he could save money on
the pre-buy inspection if he just combined it with the Phase
V inspection. Dkts. 113-9, at 56 and 113-4, at 87 and 91.
Kilcup assured Fallang “that a Phase 5 [inspection]
would be an adequate pre-buy” inspection. Dkts. 113-9,
at 116 and 113-4, at 93. (Fallang did not pay for pre-buy
inspections on his other two aircraft because other potential
purchasers had already done them and the inspections were
still timely. Dkt. 113-9, at 56.) Unlike the Phase V
inspection, there is no set way to do a pre-buy inspection;
what buyers choose to do varies widely - from a simple walk
around the airplane to a check of everything. Dkt. 113-4, at
around October 10, 2013, Fallang states that Kilcup suggested
that the Phase V inspection “etc.” be completed
by Defendant Aircraft Solutions. Dkt. 113-9, at 53-54 and
60-61. Fallang agreed. Dkt. 113-9, at 61. Aircraft Solutions
had a repair station certificate for Citation 500 series
aircraft, like the one here. Dkt. 102-6, at 6. Kilcup and
Fallang knew that VonJett, as the owner, was responsible to
pay for the Phase V inspection and for any repairs that were
needed as a result of the inspection. Dkt. 113-5, at 32-33.
were made, and Aircraft Solutions started the inspection.
Dkt. 113-5, at 27. Kilcup asserts that he told Andre and
Charlie Archer, Aircraft Solutions' General Manager, that
the aircraft was being sold and that the Phase V inspection
was to serve as the pre-buy inspection. Dkt. 113-4, at
128-129, 131. Kilcup states that he told Floyd Larson,
Aircraft Solution's Director of Maintenance, (either
directly or indirectly) the same thing. Dkt. 113-4, at 131.
Andre maintains that Aircraft Solutions knew they were
performing both a Phase V inspection and a pre-buy
inspection. Dkt. 113-7, at 13-15. Archer (Aircraft
Solution's corporate representative for this lawsuit)
states that Aircraft Solutions did not know the Phase V
inspection was to be used as the pre-buy inspection. Dkt.
113-2, at 81 and 83. Larson states that Andre told him the
aircraft was being sold at the time the Phase V inspection
was scheduled, but not to whom. Dkt. 113-3, at 84-86.
Solutions mechanic Peter Reed, who worked on the aircraft,
claims that a Phase V inspection does not require a review of
the log books; he maintains that ordinarily the log books are
reviewed in a pre-purchase inspection. Dkt. 113-1, at 55 and
71. Kilcup (who is not a mechanic) asserts that the log books
are to be reviewed in a Phase V inspection. Dkts. 113-4, at
59 and 113-5, at 24. Andre, who is a mechanic, states that
the log books should be reviewed as a part of a pre-buy
inspection. Dkt. 113-7, at 13-15.
early October 2013, Kilcup and Fallang began negotiating the
sales contact, which although originally drafted by Kilcup,
included changes by Fallang. Dkt. 108, at 15-16. On October
14, 2013, Cozumel (through Fallang) and International Jets
(through Kilcup) entered an “Aircraft Sales
Agreement” (“Sales Agreement”). Dkt.
113-20. The Sales Agreement provides, in relevant part:
PURCHASER agrees to pay SELLER the total purchase price of
$1, 430, 000.00 USD. The PURCHASER will expect the aircraft
to be delivered in an airworthy condition with no damage
history, with all systems operating normally, all
Airworthiness Directives and Mandatory Service Bulletins
complied with and all logbooks in the SELLER's
possession. The PURCHASER, at the PURCHASER'S expense
will perform a pre-purchase inspection at a location
acceptable to both parties. The SELLER will remedy all
airworthy discrepancies. An airworthy discrepancy is defined
as any item discovered during the pre-purchase inspection and
included in the Inspection Report which the Inspection
Facility deems to render the Aircraft unairworthy and
necessary to be corrected to render the Aircraft airworthy.
If at any point during pre-purchase inspection the cost of
AIRWORTHY discrepancies exceeds $25, 000.00 the Seller has
the right to terminate this sale and refund the PURCHASER for
all the PURCHASER'S out of pocket expenses incurred
during the pre-purchase inspection and repositioning of the
aircraft. Should the aggregate cost of NON-AIRWORTHY
discrepancies exceed $25, 000.00 the PURCHASER has the right
to terminate this sale and receive a refund of their deposit
from the Escrow Company unless SELLER agrees to correct those
NON- AIRWORTHY items at SELLER's expense. The PURCHASER
will place a fully refundable deposit in the amount of $50,
000.00 at JetStream Escrow and Title Service. The deposit
will become non-refundable upon receipt of the signed Visual
Acceptance Certificate in the form of Exhibit B hereto
attached following SELLER's visual inspection of the
Aircraft at Spokane, Washington and a demonstration test
flight in the Aircraft. The deposit is non-refundable subject
only to the performance of the parties under the terms and
conditions of this Agreement. The Balance due and payable at
time of closing/delivery of said Aircraft in the amount of
$1, 380, 000.00 USD.
Dkt. 113-20, at 1 (emphasis in original). It also
THE AIRCRAFT IS BEING SOLD ON AN AS IS BASIS, AND THERE ARE
NO WARRANTIES WHICH EXTEND BEYOND THE DECRIPTION OF THE
AIRCRAFT. Seller disclaims all express or implied warranties
or representations of any kind or nature whatsoever including
merchantability and fitness except that Seller warrants that
the Aircraft will be delivered with the appropriate Bill of
Sale and all other title documents.
Id., at 2 (emphasis in original). The Sales
Agreement further states, “Purchaser warrants the terms
and conditions of this Sales Agreement were fully read and
understood and that they constitute the entire agreement
between the parties. There are no other agreements written or
oral which pertain to the sale of the Aircraft.”
Id., at 3.
D to the Sales Agreement, entitled “Aircraft Warranty
Bill of Sale, ” includes only a signature line for
International Jets, and was signed on November 21, 2013. Dkt.
113-20, at 10-11. This document provides, in part:
Other than the warranties of title and the absence of liens
or encumbrances expressly set forth in the Agreement or in
this Warranty Aircraft Bill of Sale, the Aircraft and
Aircraft Documentation is being sold on a strict “AS
IS, WHERE IS” basis and without recourse or warranty.
SELLER HEREBY DISCLAIMS ALL WARRANTIES RELATING TO THE
AIRCRAFT AND THE AIRCRAFT DOCUMENTATION, AND PURCHASER AGREES
THAT IT ACQUIRED THE AIRCRAFT AND THE AIRCRAFT DOCUMENTATION
FROM SELLER ON AN “AS IS, WHERE IS” AND
“WITH ALL FAULTS” BASIS. WITHOUT LIMITING THE
GENERALALITY OF THE FOREGOING, PURCHASER HEREBY RELEASES,
RENOUNCES AND DISCLAIMS (a) ANY WARRANTY AS TO THE
AIRWORTHINESS OR CONDITION OF THE AIRCRAFT; (b) ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS; (c) ANY IMPLIED
WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE; (d) ANY OBLIGATION, LIABILITY,
RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM
THE ACTUAL OR IMPUTED NEGLIGENCE OF SELLER; AND (e) ANY
OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR
DAMAGE TO ANY TANGIBLE OR INTANGIBLE THING, FOR LOSS OF USE,
REVENUE OR PROFIT, OR ANY OTHER DIRECT, INCIDENTAL OR
Id. (emphasis in original).
October 21, 2013, Fallang traveled to Spokane, Washington for
a demonstration flight of the aircraft. Dkts. 113-9, at 34
and 113-21. Ben Hoffman was the pilot. Dkt. 113-9, at 44.
According to Fallang, they went to around 14, 000 or 16, 000
feet, flew around for about 18 minutes, landed at Felt Field
and had lunch. Dkt. 113-9, at 46-48. During his deposition,
Fallang acknowledged that they would need supplemental oxygen
in an unpressurized airplane above 12, 500 feet. Dkt. 113-9,
at 48. Fallang further testified that they did not use
supplemental oxygen on this demonstration flight; so, the
pressurization system worked as far as he could tell. Dkt.
113-9, at 46-47. After lunch, they had difficulty getting the
aircraft to start. Dkt. 113-9, at 48-49. On inspection, they
noticed a frayed battery cable. Dkt. 113-9, at 51. Fallang
asserts that Kilcup “assured [him] that that was . . .
nothing serious” and the “upcoming Phase V
pre-buy would find any other issues that would affect
airworthiness.” Dkt. 113-9, at 51. Fallang acknowledges
that Kilcup did not tell him that the Phase V pre-buy would
be an inspection of every component of the aircraft. Dkt.
113-9, at 51-52.
Solution's Larson supervised the entire Phase V
inspection on the aircraft. Dkt. 113-1, at 68. They used the
checklist created by Cessna that completely outlines the
Phase V inspection requirements. Dkt. 113-1, at 54-57. They
knew what maintenance the jet needed based on items that came
up on the checklist and by following the maintenance manual.
Dkt. 113-1, at 56. Mechanic Reed, who performed portions of
the Phase V inspection, and other mechanics, ordinarily
initialed by the items they completed or inspected. Dkt.
113-1, at 54. Although not every item on the Phase V
checklist was initialed as completed, Archer states that
Aircraft Solutions did do every item because it was reflected
on the work orders; when asked about the particulars, he was
not sure why certain items had not been initialed. Dkt.
113-2, at 118-121.
did not perform any of the Phase V inspection. Dkt. 113-6, at
177. He was involved only with the borescope of the engines
(which was not a part of the Phase V). Dkt. 113-6, at 177 and
195. He also acquired a part for the landing gear with which
Aircraft Solutions used to repair the aircraft. Dkt. 113-6,
was still interested in purchasing the aircraft after the
demonstration flight, and did not attempt to unwind the deal
at that point. Dkt. 113-9, at 52. On October 24, 2013,
Fallang executed the Visual Acceptance Certificate even
though the Phase V inspection was not complete. Dkts. 113-9,
at 78-79 and 113-20, at 8. Later that day, Kilcup emailed
Fallang, and told him that he would contact Larson and Andre
and ask what happened to the engines on the demonstration
flight. Dkt. 113-22, at 1. Kilcup's email further
I'll shoot you a note later on today after speaking with
Floyd and assure you the little things they find along the
way (table fixes included) will be addressed at no expense to
you. When it comes out of a Phase 5 things are fixed properly
and it'll be a terrific vehicle . . .
Dkt. 113-22, at 1.
November 1, 2013, Larson emailed Kilcup, with a subject line
“Phase 5 Pre-buy Inspection;” Larson indicated
that the inspection was around 60% completed, and listed the
discrepancies found on the aircraft to that point Dkt. 113-4,
at 234-235. On November 5, 2013, Kilcup told Fallang that the
Phase V inspection was close to complete and that he had
approved repair of all airworthy maintenance deficiencies,
including replacement of a main landing gear actuator due to
a leak. Dkt. 113-9, at 115-117.
completion of the Phase V inspection, Larson at Aircraft
Solutions completed the official “Maintenance
Transcript Report, ” certifying “that [Aircraft
Solutions] had completed the Phase V inspection and that the
aircraft was airworthy, to [their] knowledge.” Dkts.
102-6, at 12; and 113-2, at 75-76 and 105-106. Larson states
that at the time the inspection was completed, the aircraft
had no fuel leaks, he checked all systems, including the
pressurization system, and all were operational. Dkt. 113-2,
at 170 and 211-214.
November 21, 2013, Fallang testified he met with Kilcup and
Andre at the Spokane International Airport to take delivery
of the aircraft. Dkt. 113-9, at 89. Fallang, his wife, Kilcup
and Jeff Schreiber, the pilot, intended to fly the aircraft
to Bozeman, Montana to close the sale. Dkt. 113-9, at 90.
recalls that Andre told him that only one wing needed to be
inspected during the Phase V inspection, and that the
“left side gear cylinder, actuator, or something like
that, had been inspected, and was faulty and was
replaced.” Dkt. 113-9, at 97. Fallang asserts that
Andre also mentioned that he might be available to be the
aircraft's director of maintenance, but Fallang
doesn't remember much of the conversation. Dkt. 113-9, at
98-99. Fallang had the impression that Andre was either an
employee of Aircraft Solutions or was substantially involved
with it. Dkt. 113-9, at 99. Andre remembers talking to
Fallang “for a while, ” but he was busy with
another airplane's paperwork at that point in time. Dkt.
111, at 23. Andre states he answered some of Fallang's
questions about the aircraft, “like [Fallang] was
talking about the tables and stuff, could they fix the slides
in them or something like that.” Dkt. 111, at 23. In a
declaration filed in opposition to a March 2, 2017 motion for
summary judgment (which was stricken so the parties could
conduct further discovery) (Dkts. 62 and 82), Fallang asserts
that Andre told him that “Aircraft Solutions' Phase
V inspection resolved all airworthy discrepancies and that
the aircraft was in airworthy condition.” Dkt. 73, at
3. Other than this interaction, Fallang thinks that he and
Andre may have spoken on the phone “once or
twice” but doesn't remember. Dkt. 113-9, at 98.
Andre has no recollection of a phone conversation with
Fallang. Dkt. 111, at 25.
pilot, Schreiber, did a pre-flight inspection of the
aircraft. Dkt. 109, at 2. He walked around the aircraft and
did not see, or smell, any fuel. Dkt. 109, at 2. Using the
checklist approved by the FAA and Cessna, he also checked the
aircraft's systems to determine whether the aircraft was
airworthy before they took off. Dkt. 109, at 2. Schreiber
states that all systems were operating normally and that the
aircraft was airworthy. Dkt. 109, at 2. Fallang, his wife,
Kilcup, and pilot Schreiber, boarded the aircraft for the
delivery flight to Bozeman. Dkt. 113-9, at 95.
in flight, Schreiber noticed that the aircraft pressurized
faster than he anticipated and mentioned this to the
passengers. Dkts. 113-9, at 101 and 109, at 2. (Schreiber is
also a mechanic and has substantial experience maintaining
Cessna Citations like the aircraft at issue here. Dkt. 109,
at 1). Schreiber flew over 12, 500 feet, no one on board used
supplemental oxygen, and they did not declare an emergency.
Dkt. 113-9, at 101-104. Kilcup got up, and approached
Schreiber about the pressurization issue; Schreiber told him
“yeah, I can handle it;” Schreiber determined
that the aircraft was still safe to fly, not only to Montana
but to Florida, as Fallang planned. Dkts. 113-5, at 87; and
109, at 2. According to pilot Schreiber, on “landing,
the aircraft de-pressurized completely, with the
pressurization (WOW weight on wheels) safety systems working
properly.” Dkt. 109, at 3. Fallang states that Kilcup
told him, while they were on the ground in Bozeman, that
“they would have this problem repaired at their
expense.” Dkt. 113-9, at 105.
they were in Bozeman, Kilcup asserts that he called Aircraft
Solutions and told them there was a problem with the
pressurization system. Dkt. 113-5, at 87. Andre states that
Kilcup talked with him and Larson on a speaker phone in
Larson's office about it. Dkt. 113-7, at 42-43. Larson
asserts he doesn't remember being on the phone, but that
he told Andre to tell them to turn the aircraft around and
let Aircraft Solutions try to troubleshoot the problem. Dkt.
113-3, at 110 and 222. Kilcup denies anyone told them to
return the aircraft to Aircraft Solutions. Dkt. 113-5, at 88.
According to Fallang, Kilcup called Naples Jet Center in
Florida to arrange for repairs and assured Fallang that the
pressurization problem would be fixed. Dkt. 113-9, at 105.
did not rescind the Sales Agreement; Fallang states that he
was not a trained pilot in this aircraft, didn't really
understand what the problem was or whether the problem made
the plane un-airworthy, and so did not realize that he could
avoid the sale without losing his deposit. Dkt. 113-9, at
105-106. Cozumel accepted delivery of the aircraft.
Id. Fallang did not notice any fuel leaking out of
either wing prior to the time he took delivery of the
aircraft. Dkt. 113-9, at 126.
they were on the ground in Montana, International Jets
purchased the aircraft from the prior owner VonJett. Dkt.
113-4, at 38. In a “back to back” sales
transaction, International Jets then immediately sold the
aircraft to Cozumel. Id. As they were eating lunch
and finalizing the paperwork, the aircraft was filled with
fuel. Dkt. 109, at 3. After all the documents were signed,
Schreiber did another pre-flight inspection of the aircraft;
which included walking around it. Dkt. 109, at 3. He did not
detect any fuel leaks. Dkt. 109, at 3. Fallang, his wife and
Schreiber then flew the aircraft to Naples, Florida. Dkt.
113-9, at 108. They stopped in Mississippi to refuel. Dkt.
113-9, at 3. Although the pressurization problem continued,
Schreiber felt that the aircraft was safe - they flew over
12, 500 feet and did not need supplemental oxygen. Dkts.
113-9, at 108-109; and 109, at 3. Schreiber states that he
did not determine, at any point, that the aircraft was not
airworthy. Dkt. 109, at 3.
November 26, 2013, Fallang and pilot Ben Hoffman attempted to
fly the aircraft. Dkt. 136, at 3. According to Fallang,
“as soon as [they] left the ground the pressurization
system failed to operate normally again.” Dkt. 136, at
3. Fallang states that Hoffman “advised me that it was
not safe to operate the aircraft with the pressurization
system malfunctioning i.e. it was not airworthy.”
Hoffman grounded the aircraft. Dkt. 136, at 3.
Jet Center began repairs; they worked on the pressurization
system, but were unable to repair it. Dkt. 113-9, at 127-128.
In addition to the issues with the pressurization system,
Naples Jet Center told Fallang it found problems with various
fittings and mounds of sealant on connections. Dkt. 113-9, at
127-128. Further, Naples Jet Center informed Fallang that
Aircraft Solutions used screws that were too long when they
reinstalled the leading edge of the right wing, the screws
pierced a fuel tank and caused a leak which soaked a high
current wiring bundle. Dkts. 73, at 4 and 113-9, at 130-131.
They also asserted that there were issues with the other
wing. Id. Fallang maintains that there was an
additional x-ray inspection that was overdue. Dkt. 73, at 5.
According to Plaintiff's expert, Donald Sommer, these
issues made the aircraft unairworthy. Dkt. 113-12, at 4-6.
at the Naples Jet Center hanger, watching fuel drip from the
aircraft, Fallang states he called both Kilcup and Andre and
told them about the fuel leak. Dkt. 113-9, at 134. Andre
denies ever talking to Fallang after the sale was completed.
Dkt. 111, at 30. Fallang asserts that “one of the two
of them said that they would pay to have it repaired.”
Dkt. 113-9, at 134. Aside from paying for a $1, 300 pressure
control valve that was sent to Naples Jet Center, Andre
denies paying for, or offering to pay for, repairs. Dkts.
111, at 30 and 113-5, at 105. Fallang states that he also
talked with Larson, and Larson “admitted to [Fallang]
that their mechanics should not have placed improperly sized
screws into these openings.” Dkt. 113-9, at 135.
to Fallang, Kilcup again assured him that the aircraft
“would be fixed and we would pay for it.” Dkt.
113-9, at 133-134. Fallang acknowledges that he did not have
any direct discussions with anyone at Aircraft Solutions
about Aircraft Solutions paying for any of the repairs. Dkt.