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Hanover Insurance Co. v. Riceland Aviation, inc.

Court of Appeals of Louisiana, Third Circuit

April 10, 2019

HANOVER INSURANCE COMPANY, ET AL.
v.
RICELAND AVIATION, INC., ET AL UNITED STATES AIRCRAFT INSURANCE GROUP
v.
GLOBAL TOWER, LLC., ET AL.

          SUPERVISORY WRIT FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. 83-14 C/W 93-14 HONORABLE C. STEVE GUNNELL, DISTRICT JUDGE.

          Isaac H. Ryan, Deutsch Kerrigan, L.L.P., Counsel for Defendants/Respondents: Global Tower, LLC GTP Investments, LLC GTP Infrastructure I, LLC

          Kendall J. Krielow, Block Law Firm, APLC, Counsel for Defendants/Applicants: United States Aircraft Insurance Group Riceland Aviation, Inc.

          Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.

          JOHN D. SAUNDERS, JUDGE.

         Relators, Riceland Aviation, Inc. (Riceland) and its insurer, United States Aircraft Insurance Group (USAIG), seek writs regarding several evidentiary rulings rendered by the trial court.

         STATEMENT OF THE CASE

         On February 15, 2013, a plane owned by Riceland and flown by William "Billy" Precht, Jr. (Precht), crashed while spraying herbicide on a field near Jennings. The plane was a total loss, and Precht died in the crash.

         Relators contend that the crash was caused by unmarked guy wires supporting a communications tower, LA-5136, owned by Global Tower, LLC; GTP Infrastructure I, LLC; and GTP Investments, LLC (collectively referred to as "GTP"), which was located adjacent to the field. Relators contend that GTP violated Jefferson Davis Parish Ordinance 5.5-107, which requires that all tower guy wires be marked with TANA markers[1] to enable pilots to identify the location of the wires. GTP contends that the crash occurred because Precht was purposely flying very close to the tower wires in order to cover as much of the field as possible.

         Hanover Insurance Company (Hanover), as the subrogee of GTP, filed suit against Relators to recover the $125, 830.00 it paid to GTP for damages to the tower caused by the crash. USAIG filed suit against GTP; Telcom Rentals, Inc.; American Tower Corporation; Hanover; and CNA Insurance Company to recover the $560, 000.00 in property damages and $9, 100.00 in expenses to clean up the debris that it paid to Riceland. The two suits were consolidated.

         This case has previously been before this court on Relators' writ application regarding the trial court's ruling that excluded the testimony of their expert in visibility studies, Paul Kayfetz, and his visibility study. Hanover Ins. Co. v. Riceland Aviation, Inc., 18-783 (La.App. 3 Cir. 10/12/18), writs denied, 18-1847 (La. 1/14/19), 260 So.3d 1218 (unpublished writ decision). That writ application was denied. There are no other cases pending in this court that are related to the subject accident; however, there is a case filed by Precht's widow in the United States District Court for the Western District of Louisiana, Lake Charles Division.

         Relators filed two motions in limine. The first motion sought the following pre-trial evidentiary determinations: (1) that Relators would be allowed to offer and introduce evidence of GTP's installation of TANA markers after this incident; (2) that any reference to the National Transportation Safety Board's (NTSB) investigation's conclusion and its accident identification number would be excluded; (3) that any reference to Precht's knowledge or familiarity with the tower, guy wires, or the adjacent property would be excluded; and (4) that any reference to trees/vegetation that existed around the guy wire anchors on the date of the accident but are no longer in existence would be excluded. The second motion sought to exclude the testimonies of Colonel J. F. Joseph (Colonel Joseph), GTP's aviation expert, and Robert D. Bartlett (Bartlett), GTP's expert in accident reconstruction.

         The motions came for hearing on October 10, 2018. The trial court denied the motion as to numbers (1), (3), and (4) above and denied the motion to exclude the testimony of Colonel Joseph. The motion was granted as to evidence regarding the NTSB's investigation. The argument and ruling on the motion to exclude the testimony of Bartlett was postponed, and this is not included in the writ application.

         A written judgment was signed on October 12, 2018. Written reasons for the rulings were issued on October 1, 2018, and October 23, 2018. Relators gave timely notice of their intent to apply for supervisory writs in open court when the rulings were issued and later in writing. The trial court set a return date of November 24, 2018. This writ application was timely filed in accordance with that order.

         GTP filed an opposition to the writ application, and Relators filed a reply.

         Trial in this matter is scheduled to begin on Tuesday, June 25, 2019. There are no other hearings scheduled.

         ON THE MERITS

         Relators argue that they are entitled to a de novo review because the trial court committed legal errors. However, the correct standard of review is abuse of discretion. "A trial court has great discretion in evidentiary matters, and its decisions regarding motions in limine are reviewed using the abuse of discretion standard." Sonnier v. State, Dept. of Trans. & Dev., 18-73, 18-74, 18-75, p. 4 (La.App. 3 Cir. 6/6/18), 249 So.3d 51, 54.

         Testimony of Colonel Joseph

         GTP's aviation expert, Colonel Joseph, [2] opines that Precht failed to maintain sufficient wing-tip clearance with the fixed and known communication tower and allowed the aircraft to collide with one of the tower's guy wires. Colonel Joseph further stated that no number of colored spheres or wire sleeves would have prevented the accident because the failure to maintain sufficient clearance was due to Precht's loss of situational awareness and his failure to maintain a proper lookout. Important to Colonel Joseph's conclusion were the facts that Precht had been flying for over ten hours at the time of the crash and that Precht had successfully avoided the guy wires on several past occasions. GTP contends that Colonel Joseph used the same methodology as that ...


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