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Cozumel Leasing, LLC v. International Jets, Inc.

United States District Court, W.D. Washington, Tacoma

April 11, 2018

COZUMEL LEASING, LLC, Plaintiff,
v.
INTERNATIONAL JETS INC., a Washington corporation, DAVID KILCUP, an individual, ALDEN ANDRE, an individual, and AIRCRAFT SOLUTIONS LLC, a Washington limited liability company, Defendant.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN, UNITED STATES DISTRICT JUDGE

         This 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 motions.

         This 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.

         As is 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).

         I. FACTS

         Prior 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 15.

         Sometime 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.

         In 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.

         A Phase 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.

         Around 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.

         In any 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.

         In 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:

DISCLAIMER
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. Id.

         Around 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 51-53.

         On or 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.

         Arrangements 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.

         Aircraft 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.

         In 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 provides:

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.

         Exhibit 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 CONSEQUENTIAL DAMAGES.

Id. (emphasis in original).

         Around 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.

         Aircraft 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.

         Andre 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, at 134.

         Fallang 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 provided:

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.

         On 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.

         After 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.

         On 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.

         Fallang 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.

         The 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.

         While 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.

         While 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.

         Cozumel 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.

         While 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.

         On 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.

         Naples 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.

         While 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.

         According 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. ...


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