FIU Law Review

Volume 10 Number 2 Article 13

Spring 2015

Vanished Planes

Robert M. Jarvis Nova Southeastern University

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Online ISSN: 2643-7759

Recommended Citation Robert M. Jarvis, Vanished Planes, 10 FIU L. Rev. 519 (2015). DOI: https://dx.doi.org/10.25148/lawrev.10.2.13

This Article is brought to you for free and open access by eCollections. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections. For more information, please contact [email protected]. 37333-fiu_10-2 Sheet No. 86 Side A 01/11/2016 08:19:25 , REE FTER F YDER A Emma Emma R HE Flightplan See :T APPINGS M IKIPEDIA W , Jodie Foster’s (2014); Patrick Weidinger, See alsoSee Over Records ASN ULTURAL e.g. (1990)); and television shows shows television and (1990)); :C OUND F UINS R ,Mar. 18, 2014, http://news.aviation- 2014, 18, ,Mar. EVER * N The Langoliers ERE ETWORK W , Mar. 14, 2011, http://listverse.com/2011/03/14/ EYOND THE N B AFETY S ISTVERSE AVANA List of Aerial Disappearances, NTRODUCTION H , L Stephen King’s , in , I. I Robert M. Jarvis Robert M. ISAPPEARED AND ISAPPEARED e.g. D Vanished Planes Vanished VIATION , A HAT T Such flights leave a host of legal issues in their wake, and and wake, their in issues legal of host a leave flights Such IRCRAFT 1 )1/4/166:38PM The City in Midair :A ELETE , Centurion Capital Corp. v. Guarino, 951 N.Y.S.2d 85, No. 11117/05, 2012 WL 1543286, WL 2012 11117/05, No. 85, N.Y.S.2d 951 Guarino, v. Corp. Capital Centurion , , http://en.wikipedia.org/wiki/List_of_aerial_disappearances. , D HOSTS e.g. OT , G N (ABC television broadcast 2004-10)). They also occasionally have provided fodder for judicial O It generally is agreed that Matías Pérez was the first person in history to vanish in flight—on flight—on in vanish to history in person first the was Pérez Matías that agreed is generally It See The history of aviation is marked by aircraft that have disappeared (D Lost 1 , M K IDNIGHT NCYCLOPEDIA ARVIS ARVIS e.g. 80 Aircraft Missing Since 1948 without a trace. at *6 (N.Y.C. Civ. Ct. disappearance]; such as they moved Apr. their law office to Brigadoon, 30, Scotland and they will reappear in 2012) a (“The hundred years; or the the entire Bermuda firm Triangle; went or on perhaps a they stowed cruise in away court can posit several on Amelia possibilities Earhart’s plane.”); Arzumamyants v. for Fragetti, 862 N.Y.S.2d 806, No. [counsel’s 300078/06, 2008 WL ( safety.net/2014/03/18/asn-records-over-80-aircraft-missing-since-1948/ safety.net/2014/03/18/asn-records-over-80-aircraft-missing-since-1948/ (reporting “that passenger, corporate, at cargo, and military transport least aircraft [have gone] 1948”). missing 88 without a trace since Not surprisingly, the foregoing incidents have inspired numerous movies ( (Touchstone Pictures 2005)); novels ( Top 10 People Who Vanished in Airplanes M E Luanda, Angola); and, of course, Malaysia Airlines’ Flight 370 (2014). Other episodes that have captured have that episodes Other (2014). 370 Flight Airlines’ Malaysia course, of and, Angola); Luanda, the public’s imagination include British South American Airways’ impossible run of bad luck (1947-49) (the meaning of the Star Dust’s frantic last transmission—“STENDEC”—continues to be the source of much speculation, while the loss of the Star Ariel and the Star Tiger Triangle” figure lore); the prominently “Kinross in Affair” (1953) “Bermuda (involving the disappearance of U.S. Air Force Lieutenant Felix Moncla while chasing what some believe was an alien spaceship); and “D. B. Cooper” (1971) (the $200,000 with airliner Orient Northwest a of out jumped who hijacker still-unidentified, and found, never Recovery, Aircraft Historic for Group Int’l v. Mellon e.g., see, discussion, further a For money). ransom in No. 14-8062, 2015 WL 3389859 (10th Cir. May 27, defendant was 2015) refusing (dismissing to the reveal the plaintiff’s location claim of suit that (defamation Amelia 1976) Div. (App. 772 Earhart’s N.Y.S.2d the 382 Inc., McGraw-Hill, plane v. Bolam activities); fundraising in order to not jeopardize its brought by a woman against the publisher of a book that claimed she was Amelia Earhart); C.R. * Professor of Law, Nova Southeastern University ([email protected]). (explaining 2011) trans., Felipe-Barkin Eric eds., Vhitfield Esther & Birkenmaier (Anke 167 149, at 1989, Matías like [away] flew (He Pérez’ Matías como ‘Voló phrase colloquial the in immortalized “is Pérez that Pérez)”). In the 159 years since Pérez’s (1937); band leader Glenn Miller (1944); and Earhart including, most famously, aviation pioneer Amelia misadventure, many other individuals have U.S. suffered Representative the Hale same Boggs fate, (1972). Likewise, notoriety, certain such as the U.S. Navy bombers of missing Flight 19 (“The Lost Patrol”) (1945); N844AA planes (2003) (the have achieved their former own American Airlines 727 that disappeared after taking off from Quatro de Fevereiro Airport in J top-10-people-who-vanished-in-airplanes/; June 29, 1856, he took off from Havana, Cuba, in a hot air balloon and was never seen again. Even today, Even again. seen never was and balloon air hot a in Cuba, Havana, from off took he 1856, 29, June when someone or something disappears, it is common for locals Álvarez-Tabío Albo, to invoke Pérez’s name. humor. C Y 37333-fiu_10-2 Sheet No. 86 Side A 01/11/2016 08:19:25 A 01/11/2016 86 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 86 Side B 01/11/2016 08:19:25 , . , M K C Y See e.g. cert , See Possible Possible 4 also is an an is also [Vol. 10:519 10:519 [Vol. 3 , 506 U.S. 1080 (1993) An Airliner and Perhaps a Perhaps and Airliner An Complaint, In the Matter of of Matter the In Complaint, denied . See Air Crash Disaster Over Makassar Makassar Over Disaster Crash Air cert res ipsa loquitur In re Fatt v. Boeing Co., No. 14-L-3555, 2014 WL WL 2014 14-L-3555, No. Co., Boeing v. Fatt See AUSATION , No. 1-14-1108, 2014 WL 6686651 (Ill. App. Ct. Nov. 26, 487 (2015). II. C ) 1/4/16 6:38 PM FIU Law Review Law FIU petition and alleging a violation of the rules against frivolous frivolous against rules the of violation a alleging and petition rev’d THICS ELETE E D Siregar OT N EGAL O (D .J.L can be grouped into six categories: causation; choice of of choice causation; categories: six into grouped be can 2 Reynolds’s Estate, 180 N.Y.S.2d 456 (Sur. Ct. 1958) (wreckage located after five EO DOCX United States v. Reed, Nos. 88-10049-01, 88-10049-02, 1990 WL 66043 (D. Kan. Apr. In re _1.4. , 28 G 28 , INAL _F See also See Seeking to capitalize on this fact, a Chicago law firm filed discovery petitions directed at Boeing Except as otherwise indicated, the facts and procedural history of each case appearing in this this in appearing case each of history procedural and facts the indicated, otherwise as Except Omitted from this survey are cases in which a plane went missing but later was found. When When a the plane disappears, first always question is: why? , 389 U.S. 1044 (1968) (wreckage located after one day); 4 2 3 ARVIS , Coughlin v. Trans World Airlines, Inc., 847 F.2d 1432, 1433 (9th Cir. 1988) (“Mrs. Coughlin’s 24, 1990) (missing airplane reappeared after four years, during which time it may have been used by the 149 S.A., Enters., Layale v. Aviation HMS America); Central in activities illegal out carry to government S.W.3d 182 (Tex. Ct. App. 2004) (727 that disappeared from an airport in Jordan discovered five years Texas). in later Similarly, this survey does not include cases in which human remains disappeared during a flight. e.g. baggage, which contained the cremated remains of her ALOMAR husband, (“MR. was 2005) lost (D.P.R. 324 by 323, Trans 2d World Supp. Airlines[.]”); F. 383 España, de Aereas Lineas Iberia v. Noboa Simo aircraft 747 Boeing IBERIA an of 5 No. Compartment in box the placed he that deposition his in testified found.”).been never have and lost were ashes The Republic. Dominican the to bound explanations include government malfeasance, military operations, criminal activity, weather, and pilot error. The doctrine of option. months); Ideal Mut. Ins. Co. v. Waldrep, 400 So. 2d 782 (Fla. Dist. Ct. App. 1981) (wreckage after located several days); Praznik v. Sport Aero, Inc., 355 N.E.2d 686 (Ill. App. Ct. 1976) (wreckage located after two years); months). (wreckage located after eight years); Cox v. Northwest Airlines, Inc., 379 F.2d 893 (7th Cir. 1967), denied nineafter located (wreckage 2011) 11, Jan. Ill. (N.D. 91037 WL 2011 09-CV-3805, No. Sulawesi, Strait, months); three after located (wreckage 1967) (N.M. 418 P.2d 423 Inc., Paving, Four Big v. Collins days); Sam v. Okanogan Cnty. Sheriff’s Office, 148 P.3d 1086 (Wash. Ct. App. 2006) (wreckage located after 15 after located (wreckage 1991) App. Ct. (Idaho 333 P.2d 804 Co., Ins. Life U.S. v. Wells months); four Siemer v. Learjet Acquisition Corp., 966 F.2d 179 (5th Cir. 1992), 2115277, at *4 (N.Y.C. Civ. Ct. Apr. 17, 2008) (“Because neither party provided the court with a copy of copy a with court the provided party neither (“Because 2008) 17, Apr. Ct. Civ. (N.Y.C. *4 at 2115277, the title report, the exact status of this property must remain a Earhart.”). Amelia mystery, along with what happened to 520 have generated dozens of reported U.S. cases. These decisions, which are discussed below, 10 - J law/forum;limitation;of claims; statutes judgments;taxes. and pleading, subsequently was filed against one of the firm’s Monica E. Ribbeck, Ill. Att’y Registration partners. & Disciplinary Comm’n (No. 6225920) (filed July 31, 2014), https://www.iardc.org/14PR0092CM.html, and Answer, In the Matter of Monica E. Ribbeck, Ill. Att’y Registration & Disciplinary Comm’n (No. Note, Jr., Danford, B. James see discussion, further a For ANS14PR0092.pdf. 6225920) (filed Contemplate to Time Long a Aug. Them Give May Actions 25, Hasty Lawyer’s a How Disappear: 2014), License Lawyer’s https://www.iardc.org/ Decisions Their and Malaysia Airlines within days of would it firm Flight the warned and 370 petitions the dismissed disappearing Flanagan, Judge per in Court, Circuit Illinois March the orders, 2014. In two sharply-worded be severely punished for any further publicity stunts. 1303097 (Ill. Cir. Ct. Mar. 31, 2014), 2014), and Siregar v. Boeing Co., No. 14-L-3408, 2014 WL 1303096 (Ill. Cir. Ct. Mar. 28, 2014). ethics An complaint, based on the survey are taken from the court’s opinion. court’s the from taken are survey 37333-fiu_10-2 Sheet No. 86 Side B 01/11/2016 08:19:25 B 01/11/2016 86 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 87 Side A 01/11/2016 08:19:25 the plaintiff filed multiple the plaintiff similarly filed 8 5 , 521 521 , http://www.ruudleeuw.com/search126.htm. , requests to learn more about her father, 6 Vanished Planes Vanished ) 1/4/16 6:38 PM review. On appeal, the First Circuit, per Judge Judge per Circuit, First the appeal, On review. ELETE D OT 7 N O (D in camera DOCX The Search for Douglas DC-3 ECT-025 DC-3 Douglas for Search The , 992 F.2d at 1256. at F.2d 992 , _1.4. INAL 9 Sullivan v. Central Intelligence Agency, Whitaker v. Central Intelligence Agency Intelligence Central v. Whitaker _F Sullivan 992 F.2d 1249 (1st Cir. 1993). 5 U.S.C. § 552. 31 F. Supp. 3d 23 (D.D.C. 2014). The Dutch aviation photographer Ruud Leeuw has created a web page about Whitaker’s claims. In Although Plaintiff’s [first FOIA] request referred to his father by name When his requests were met with bureaucratic stonewalling, the plaintiff plaintiff the stonewalling, bureaucratic with met were requests his When provides no principled basis for a remand and, thus, no detour around below.ruling the Although we sympathize with appellant’s desire to learn the details of her father’s fate, she, like all other litigants, must abide by Congress the crafted the rules. CIA Information Act to strike a balance between not is role Our apparatus. intelligence effective an and disclosure public to reassess the relative interests wrote Congress as law simplythe but apply engaged, sympathiesto are . . . or standard stringent to the and request appellant’s of generality the Given it. yield whenever human of confidentiality contained in the Information Act, the district appropriately court granted summary judgment in the government’s favor. Further, as we have explained, the freshly minted JFK Act claim After searching its records, the government reported it had no In 5 6 7 8 9 ARVIS Ruud Leeuw, Ruud M K turn a blind eye to obviously relevant information:relevant obviously to eye blind a turn brought a federal lawsuit in the District of Columbia. In a lengthy opinion, explanation Defense’s of Department U.S. the accepted Kollar-Kotelly Judge that it had no records, but ordered both the Central Intelligence Agency and the U.S. Department of State to recheck their files and warned them not to Freedom of Information Act (FOIA) Act Information of Freedom numerous FOIA According requests Germany. to Spain from flight DC-3 1980 a during disappearance to discover information to the about plaintiff, the his plane mission. may father’s have been part of a covert government Selya, affirmed:Selya, who disappeared in a twin-engine Beechcraft during a 1963 trip from Mexico from trip 1963 a during Beechcraft twin-engine a in disappeared who drop to was purpose real theflight’s to the According plaintiff, Honduras. to Cuba. materialsover propaganda responsive, non-privileged documents, a credible claim after an the district court found 2015] 10 - J A. Government MalfeasanceA. See C Y 37333-fiu_10-2 Sheet No. 87 Side A 01/11/2016 08:19:25 A 01/11/2016 87 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 87 Side B 01/11/2016 08:19:25 M K C Y [Vol. 10:519 10:519 [Vol. but came to a different 12 referred specifically to a co- also Valentine a Beechcraft Queen Air 65-B80 went went 65-B80 Air Queen Beechcraft a 11 Judge Costantino of the Eastern District District Eastern the of Costantino Judge , 13 , ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE D OT N 10 O (D DOCX , 31 F. Supp. 3d at 45 (emphasis in original). Five months later, the case was dismissed was case the later, months Five original). in (emphasis 45 at 3d Supp. F. 31 , _1.4. Whitaker v. Central Intelligence Agency, 64 F. Supp. 3d 55 (D.D.C. 2014). 2014). (D.D.C. 55 3d Supp. F. 64 Agency, Intelligence Central v. Whitaker at 1131. INAL See Valentine v. United States Mooney Mooney v. United States Id. Whitaker _F 630 F. Supp. 1126 (S.D. Fla. 1986). No. CV-84-4827, 1987 WL 9683 (E.D.N.Y. Apr. 9, 1987). In as one of the plane’s pilots, the request request the pilots, plane’s the of one as pilot on board the plane. The co-pilot was admittedly unnamed, but the plane, the of occupant second concrete a identified nevertheless request . . . . occupant additional hypothetical or potential a merely to opposed as Accordingly, upon learning from its search for documents related Harold to Whitaker that the up followed have should . . . Department State the Eckmann, Lawrence co-pilot referenced in the . . . . lead the on request was The government argues that the decedent survived the plane crash, plaintiff and thus cannot establish that cannot FAA establish that RaymondMooney’sof proximate cause the way any in was negligence the to the safety equipment, the possibility of a submerged crash, and a host a and crash, submerged a of possibility the equipment, safety the to of other possibilities, it is simply impossible for the Court to find that the government’s erroneous communication to Nassau Flight Service was even factor in a the contributing fate ultimate of James Valentine, demise. his of cause proximate the less much The Coast Guard launched its search approximately twenty-four hours after the plane went down. By drowned from that fatigue, time, exposure or the succumbed occupants to the had dangers waters. infested shark of either the attempt any present, variables of myriad a such with that finds Court The to determine what actually happened is speculation at best. Looking at the varying testimony damage constraints, regarding time injuries, possible infestation, shark conditions, factors such as the weather, sea In 10 11 12 13 ARVIS 522 10 - J of New York faced facts similar to those in those to similar facts faced York New of New from flight 1982 a during disappeared airplane Grumman A conclusion. sued estate passenger’s the of administrator the When Massachusetts. to York the government, it moved wrote: Costantino to dismiss. In denying the motion, Judge missing during a during missing 1982 from flight to Florida the The wife Bahamas. pilot’s subsequently sued the government, claiming that it was slow in starting its rescue efforts. In dismissing the lawsuit, Judge Spellman of noted: Florida of District the Southern with prejudice when the government renewed its motion for summary judgment and Whitaker offered no offered Whitaker and judgment summary for motion its renewed government the when prejudice with opposition. 37333-fiu_10-2 Sheet No. 87 Side B 01/11/2016 08:19:25 B 01/11/2016 87 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 88 Side A 01/11/2016 08:19:25 In re modified on modified . 75 (1996). 75 . The New Law on Department of Department on Law New The EV .L.R IL 523 523 , 152 M 152 , a U.S. Army pilot made a will dated dated will a made pilot Army U.S. a 16 , Vanished Planes Vanished ) 1/4/16 6:38 PM Townsend v. Carter, 476 F. Supp. 1070 (N.D. Tex. 1979); 1979); Tex. (N.D. 1070 Supp. F. 476 Carter, v. Townsend ELETE D 15 OT See also N O (D DOCX 14 _1.4. at *1-2. The pilot’s estate also sued the government, but was considerably less successful. successful. less considerably was but government, the sued also estate pilot’s The *1-2. at INAL In re Hansen’s Estate Id. _F The military’s procedures for declaring an aviator who fails to return from a flight either “dead” 205 P.2d 686 (Cal. Dist. Ct. App. 1949). notes 98-102 and accompanying text. In On the appeal of Doris Toomey she contends there was no evidence to This 1944. 13, March occurred death decedent’s that finding the support In a detailed opinion, the California District Court of Appeal, per also asserts that the monitoring of negligent manner, thus the causing or aircraft contributing to the was crash itself, and conducted in . . . . life decedent’s the of loss the therefore, a possibility a to point that data and opinions expert produced has Plaintiff deceased. the of life the saved have could timelyrescue a air/sea that Thus, it appears that the government’s motion is at odds with the well settled rule that a complaint is not subject to dismissal unless plaintiff support in proved be might which facts of state any under prevail cannot thereof. death. The speciousness of this superfluous. be would contention this of discussion argument is apparent, and The government also contends further that because plaintiff cannot prove that FAAfor but negligence that and crash the survived fact in decedent the would have been rescued, the plaintiff has failed to stake a claim upon fails however, argument, government’s The granted. be can relief which to recognize the entirety of the plaintiff asserts that negligence the in defendant’s monitoring the flight plaintiff’s complaint. Although the prevented the initiation of immediate search procedures, the plaintiff , 210 Ct. Cl. 748 (1976). 14 15 16 ARVIS M K Wood’s Estate, 62 A.2d 883 (N.J. Orphans’ Ct. 1946); Pamela M. Stahl, M. Pamela 1946); Ct. Orphans’ (N.J. 883 A.2d 62 Estate, Wood’s Action Hostile of Result a as Missing Personnel Defense or “presumed dead” are described in detail in Crone v. United States, 538 F.2d 875 (Ct. Cl.), (Ct. 875 F.2d 538 States, United v. Crone in detail in described are dead” “presumed or reh’g See infra See B. Military Operations Military B. September 22, 1943, that left $1 to his wife and the remainder of his estate to estate his of remainder the and wife his to $1 left that 1943, 22, September his daughter. On March 13, 1944, his bomber disappeared in heavy weather while on a mission over New Guinea. remarried. On On January 27, 1946, the Army December changed his status from missing 28, 1944, his wife in action (MIA) to presumed dead and paid his estate $4,716.29. The trial court treated this money as community property and, after giving $1 to the daughter. the and her between remainder the split wife, awarded the Presiding entire Justice Shinn, amountreversed and (less $1) to the daughter. It argumentalso rejected the that wife’s death had occurred on 1946: 27, January 2015] 10 - J C Y 37333-fiu_10-2 Sheet No. 88 Side A 01/11/2016 08:19:25 A 01/11/2016 88 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 88 Side B 01/11/2016 08:19:25 M K C Y appeal Accident , , 50 years 50 , e.g. , i.e. [Vol. 10:519 10:519 [Vol. See 20 17 Five months earlier, a court in Spokane, Spokane, in court a earlier, months Five a U.S. Navy lieutenant, his wife, and their their and wife, his lieutenant, Navy U.S. a 19 21 , http://aviation-safety.net/database/record.php?id=19541030- , ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE a U.S. Navy pilot disappeared during a 1944 attack ETWORK D N 18 OT , N O (D AFETY S DOCX , 1998 WL 834833, at *2. *2. at 834833, WL 1998 , To gain access to Caryl’s only asset—a $2,700 life insurance insurance life $2,700 asset—a only Caryl’s to access gain To _1.4. VIATION 22 . at 687-88. at . INAL , A In re Jacobsen’s Estate Finrow v. West v. Finrow Id Finrow _F , 215 F.3d 1341 (Fed. Cir. 1999). 1999). Cir. (Fed. 1341 F.3d 215 , 16 Vet. App. 289, No. 97-1605, 1998 WL 834833 (Ct. Vet. App. Oct. 28, 1998), 1998), 28, Oct. App. Vet. (Ct. 834833 WL 1998 97-1605, No. 289, App. Vet. 16 however, sources, Other headed. was The court’s opinion does not say where the attack took place. plane the where indicate not does 143 N.Y.S.2d 432 (Sur. Ct. 1955). opinion court’s The contention cannot prevail . . . . [T]he parties on the appeal agree that the that agree appeal the on parties [T]he . . . . prevail cannot contention facts are as stated in government [various] listing the date of communications death as March 13, [received 1944,] and they, no from the doubt, had the same understanding at the trial. Assuming, however, as the parties do, that this correspondence constituted the only evidence that was before the court, the finding that death supported. well opinion, our in is, 1944, occurred March 13, knowledge . . . . However, as the Board pointed out, an seeking the indeed was he that department personnel Navy the informed veteran had alleged has appellant the that appears also It marriage. his of annulment that the annulment decree was obtained in violation of the Due Process Clause in the Fifth Amendment to the U.S. However,Constitution. this Court has no jurisdiction to disturb an annulment decree issued by the has decision Board’s the that holds Court The . . . . Washington of State mustand affirmed.record be the in basis plausible a The Veterans Administration’s Board of Veterans’ Appeals denied the The appellant claims fraudulent that action the by annulment the was veteran’s obtained mother through without the veteran’s In In 17 18 19 20 21 22 ARVIS two-year-old twins (Caryl and Craig) were passengers from departed that flight 1954 a during disappeared that Constellation Super aboard an R7V-1 Maryland. on an enemy carrier task force. Washington had annulled his marriage to the plaintiff. In 1994 ( 1994 In plaintiff. the to marriage his annulled had Washington later), the plaintiff, claiming to be the surviving spouse of a veteran, sought government death benefits. In her application, she explained her mother-in- was plaintiff the when time a at annulment the obtained fraudulently had law pregnant and lacked the money to travel from Rhode Island to Washington it. contest to Court U.S. the decision, Board’s the affirming Summarily request. plaintiff’s observed: Holdaway, Judge per Appeals, Veterans of 524 10 - J Description dismissed report its destination as Port Lyautey, Morocco, after a refueling stop in the Azores. 0. 37333-fiu_10-2 Sheet No. 88 Side B 01/11/2016 08:19:25 B 01/11/2016 88 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 89 Side A 01/11/2016 08:19:25 525 525 Vanished Planes Vanished ) 1/4/16 6:38 PM ELETE D OT N , 143 N.Y.S.2d at 434. 434. at N.Y.S.2d 143 , O (D DOCX _1.4. 23 father, or unmarried dependent stepchild or adopted child designated under been has as dependent such or age, of years twenty-one determinedindividual an by or dependent records, be official to in the head of the department concerned, or subordinate designated him[.]”by “(c) the term ‘dependent’ as used in this Act (sections 1001-1016 of this Appendix) includes a lawful wife [and an] unmarried child mother, dependent a also includes It age. of years twenty-one under INAL Valley Forge Life Insurance Co. v. Republic National Life Insurance Life National Republic v. Co. Insurance Life Forge Valley Jacobsen’s Estate Jacobsen’s _F 579 S.W.2d 271 (Tex. Civ. App. 1978). a U.S. Navy navigator disappeared in 1967 while engaged in a combat In respect of dependents of persons within the armed services. Under the aforesaid definition of “dependents,” the two whom twin children, was one of Caryl respect with determinations any and Jacobsen Lieutenant of dependents Leigh Jacobsen the to them or either of them are decedent properly within the contemplation of the herein, Missing Persons Act are as to the of conclusiveness the of determination the death. Under Under the provisions of Section 1009, Title 50 as subordinate departmentsuch the or amended,of concerned, head the U.S. Code Ann., as necessary determinations all make to authority the has designate, may he “as conclusive are determinations Such Act. the of administration the in to death or finding of death” and “as to any essential date” of death. In the opinion of the Court, the Act permits determinations to be made in The “Missing Persons Act” relates to persons within the armed forces as well as to dependents. In fact the word “dependent” is specifically follows: as defined The trial court entered summary judgment for the defendant. On appeal, On defendant. the for judgment summary entered court trial The 24 23 24 , ARVIS M K 2015] 10 - J Co. policy—her paternal grandfather petitioned for letters of administration. In granting his request, Surrogate Moss of King’s County (Brooklyn) accepted wasshe dead: that proof conclusive as certificate death naval Caryl’s agreement with the defendant that ran from 1965 to 1967. After paying on the policy, the plaintiff sought reimbursement from the defendant. Relying as demand plaintiff’s the rejected defendant the status, of change 1976 the on period. coverage agreement’s the outside being CourtCivilTexas Appeals,of the Chiefper Guittard, Justice reversed: mission over mission Viet Nam. In 1976, the Navy his changed status from MIA to killed in action (KIA). Prior to his disappearance, he had insurance policy with the taken plaintiff. It, in turn, had entered into out a reinsurance a life C Y 37333-fiu_10-2 Sheet No. 89 Side A 01/11/2016 08:19:25 A 01/11/2016 89 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 89 Side B 01/11/2016 08:19:25 M K C Y [Vol. 10:519 10:519 [Vol. 25 27 9 J. Wigmore, Evidence § 2493 2493 § Evidence Wigmore, J. 9 See , 640 F.2d 163 (8th Cir. 1981). 1981). Cir. (8th 163 F.2d 640 , aff’d a U.S. Air Force captain disappeared during 26 ) 1/4/16 6:38 PM FIU Law Review Law FIU , ELETE D the plaintiff’s husband was a U.S. Air Force captain OT 28 , N O (D DOCX _1.4. at 277-78. at 479. INAL Ward v. United States United v. Ward Darr v. Carter v. Darr Id. Id. _F 646 F.2d 474 (Ct. Cl. 1981). 487 F. Supp. 526 (E.D. Ark. 1980), is entitled to . . . deceased expressly Captain designated her Ward’s by name as pay the beneficiary and [on his allowances because emergency paperwork] the and not because of her widow. status Captain as Ward’s his designation wife is or not limited by that necessary not is It date the to death. prior the of or subsequent whether remarriage here. deceased the of dependent a be beneficiary a In provide circumstantial evidence that he died when his plane was shot down over North Viet [N]am. Proof of the perilous circumstances in which he was last seen raises a counter-presumption, cast which to thus serves and certificate, to the by established presumption the overcome to []tending evidence produce to burden the Republic reinsurer] [the on prove that he survived that peril. (3rd ed. 1940). Since, by the terms of the stipulation, no other evidence accordingly. rendered judgmentbe available, should is The certificate by the Navy Department shows only that February 24, 1976, is the date on which the insured’s department’s records status from “missing was in action” changed to “presumed on killed the in action.” In itself, the certificate does not tend logically to establish the . . . . death of date Although the opposing evidence here may witness testimony, we hold that sufficient it to rebut is the presumption fall short of direct eye- and to raise a counter-presumption that the insured died in 1967. The circumstances of his disappearance, as established by the stipulation, Citing the wife’s 1972 remarriage, the trial judge awarded the money to money the awarded judge trial the remarriage, 1972 wife’s the Citing the not was plaintiff third-party that finding the irrelevant as reject [W]e wife or widow of Captain Ward on June 20, Third-party 1978. plaintiff In 25 26 27 28 ARVIS who disappeared after his B-52 was hit by missile fire during a 1972 bombing 1972 a during fire missile by hit was B-52 his after disappeared who run over North Viet Nam. In 1979, the change, the enjoin to sued plaintiff governmentThe deceased. to MIA from classification sought to change his but the trial court dismissed her complaint as premature. On appeal, the 526 10 - J his wife and his mother.his and wife his of Court reversed: the Nichols, Claims,appeal, Judge On per mother. the a 1969 combat mission over Southeast Asia. In 1972, his wife remarried. In the time, this By KIA. to MIA from status his changed government the 1978, decedent’s back pay had reached $131,223.18, an amount claimed by both 37333-fiu_10-2 Sheet No. 89 Side B 01/11/2016 08:19:25 B 01/11/2016 89 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 90 Side A 01/11/2016 08:19:25 per Darr v. reached the Fifth Fifth the reached Believing that the 33 Darr 527 527 31 , 219 So. 2d 703 (Fla. 1968). (Fla. 703 2d So. 219 , denied . 29 cert Vanished Planes Vanished ) 1/4/16 6:38 PM the plaintiff tried to stop the government from government the stop to tried plaintiff the 30 , ELETE D OT N O (D a plane’s owner filed an insurance claim after its plane plane its after claim insurance an filed owner plane’s a DOCX 32 , _1.4. , 640 F.2d 163 (8th Cir. 1981) . . . . The reasoning of the court in court the of reasoning The . . . . 1981) Cir. (8th 163 F.2d 640 , , 640 F.2d at 166 (footnote omitted). omitted). (footnote 166 at F.2d 640 , Lewis v. Reagan v. Lewis is persuasive, and we adopt it here. at 126-27. INAL National Insurance Underwriters v. Melbourne Airways and Air Darr Id. _F decision, affirmed the trial court’s refusal to halt the reclassification: 660 F.2d 124 (5th Cir. 1981). 210 So. 2d 267 (Fla. Dist. Ct. App.), The court’s opinion does not indicate when the plane went missing. The Status Review Board in the present case has recommendedthe has that case present the in Board Review Status The in Killed to Action in Missing from changed be Lewis Colonel of status Action . . . . The case is thus in precisely the same posture as Carter Darr case in particular. We do not hold that Mrs. Darr has no right information. to We this do hold that whether she has such a right should decided, be in the first instance, by Secretary the of Status the Review Board Air and Force, Secretary’s final determination the of Captain Darr’s status is unfavorable. with review in the This is not a case where courts the right claimed must be judicially only considered if the now if it is ever to be adjudicated by a court. A decent respect for the Air Force’s procedures, and unnecessary burdens on the courts, alike counsel an that we not intervene awareness of proceedings. the of stage this at the need to avoid Our conclusion might be different if the Air Force were acting in clear excess of unconstitutional on its authority, face. Neither statement can be made here. Mrs. or Darr does claim if she was not allowed to present all the the evidence she deems relevant . status-review . . . procedure But hearing status-review the that assertion an is case, this of circumstances what this claim were really amounts to, in should have the been postponed until the Air Force produced additional a documentation mass not shown of to have any relation to the Darr In A short time later, a case with facts identical A to a time short later, case with identical facts 29 30 31 32 33 ARVIS M K curiam owner’s employee had made off with the plane, the insurer refused to pay disappeared during a flight from Florida to the Bahamas. the to Florida from flight a during disappeared 2015] 10 - J changing her husband’s classification from MIA to KIA. While serving as a colonel in the U.S. Air Force, he had disappeared during a 1965 flight over a in panel, the casualty, war a was certainly almost he that Finding Laos. Eighth Circuit, per Judge Arnold, agreed: Arnold, Judge per Circuit, Eighth Circuit. In In Circuit. College, College, Inc. C. Criminal Activity Activity Criminal C. C Y 37333-fiu_10-2 Sheet No. 90 Side A 01/11/2016 08:19:25 A 01/11/2016 90 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 90 Side B 01/11/2016 08:19:25 M K C Y When When 36 [Vol. 10:519 10:519 [Vol. the plaintiff’s case are nearly 35 , Boyd ) 1/4/16 6:38 PM FIU Law Review Law FIU Firemans Fund Ins. Co. of San Francisco, Cal. Francisco, San of Co. Ins. Fund Firemans 34 . ELETE D OT , 210 So. 2d at 268-69. at 2d So. 210 , N O supra (D DOCX , Fla. 1950, 45 So. 2d 499. The facts of the of facts The 499. 2d So. 45 1950, Fla. , _1.4. decision, INAL Gonzalez v. La Concorde Compagnie D’Assurances Compagnie Concorde La v. Gonzalez Melbourne Airways Melbourne _F 601 F.2d 606 (1st Cir. 1979). The court’s opinion does not provide any other information about the plane’s disappearance. reason of the fact that the pilot was one “in lawful possession” of the opposite, the holding In terms. policy the of meaning the within aircraft of case the upon rely we Boyd v. Melbourne Melbourne Airways chartered the aircraft, with a pilot who employee was of the an corporation, to a third party for a trip to the Bahama Islands.appearsIt thataircraftthe waslostwhile beingpilot the usedby and the charter passengers to drop leaflets . . . . plaintiff the orof knowledge consent the without done was which over the island of Cuba, The basis of appellant’s objection is that no “theft” has occurred, by Boyd identical, the difference being that Florida the insurer, the the from collect item could therein plaintiff “stolen” the that ruling was a truck. In Supreme Court stated, at page 501: employee) custody by virtue “The of his employment by plaintiff truck as a truck came into his driver, and (the he had not that possession, nor that contractual bailment.” a of obligation characteristic bailed thing the to respect with We are of the in out set lawas withthe and case the of facts withthe substantially the opinion that the instruction as given comports below, and, even if we assume that it plaintiff was given was, an opportunity the to present evidence. fact Defendant had is that only the no opportunity by way of affidavit or otherwise to set forth any facts. Appellee’s counsel forgot, as he obviously did adversary system requires that both sides be given an opportunity to be at the trial, that our heard. It is not the label that is important, but the principle which is Appellee’s counsel suggested at oral argument directed verdict should that be viewed the as one granting order summary judgment for a for plaintiff. No such motion was ever made or mentioned in the court In 34 35 36 ARVIS 528 based on the policy’s conversion clause. Finding instead that the loss came within the policy’s criminal activity clause, the jury sided with the owner. agreed: Hendry, Appeal, Judge of per Court District Florida The 10 - J the plaintiff put in a claim with his insurer, it declined to pay on the ground that the plaintiff was not, as stated in the policy documents, the plane’s sole owner. At trial, the district court directed a verdict in favor of the plaintiff without giving the insurer a chance to defend remanded:and reversed Bownes, Judge per Circuit, itself. On appeal, the First Cessna 310 vanished, with the most likely explanation being theft. 37333-fiu_10-2 Sheet No. 90 Side B 01/11/2016 08:19:25 B 01/11/2016 90 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 91 Side A 01/11/2016 08:19:25 a a 38 ., the plaintiff’s Piper Navajo Navajo Piper plaintiff’s the 529 529 40 , 39 When the corporate owner of the plane filed 41 Vanished Planes Vanished ) 1/4/16 6:38 PM ELETE D OT 37 N O (D DOCX _1.4. at 608-09 (footnote omitted). at 1111 (footnote omitted). INAL Aero International, Inc. v. United States Fire Insurance Co Beta II, Inc. v. Federal Insurance Co. Id. Id. _F 713 F.2d 1106 (5th Cir. 1983). No. C-830779, 1984 WL 6951 (Ohio Ct. App. Aug. 15, 1984). The court’s opinion does not provide any further details about the disappearance. and last month’s rental payments in advance. From this evidence, the jury could reasonably conclude that the aircraft was not converted by sea. at lost was instead but Oostrum Van party. either support overwhelmingly not does case this in evidence The Perhaps we would have drawn different inferences from some of the facts than did the jury, but that evidence to is support not the our verdict task. and There the fromjury. case the the take to was refusing district enough court did not err in U.S. Fire’s final asserted basis for a directed verdict or judgment n.o.v. is that the policy excludes coverage for any loss due to conversion by one in possession of the aircraft. As evidence of conversion, U.S. Fire 1980 August the Aero paid not had Oostrum Van that facts the to points rental charge and that, prior to filing suit, Aero filed criminal charges against Van Oostrum for embezzlement by contract. However, Aero’s representative testified that the criminal charges shows also record The proceed. could investigation police no otherwise were filed because that the aircraft disappeared in August 1980, that rental payments had been made through July 1980, and that Van Oostrum had paid the first In central to our whole system jurisprudence. whole of our to central While this case may ultimately mylife,” in heard ever[] have I case clearest “the prematurely declared, prove to be, as remand. must we the court below In Subsequently, the owner sued the insurer for bad faith. The trial court 37 38 39 40 41 ARVIS M K plaintiffs, the defendant unsuccessfully moved to set aside the verdict. On affirmed:Gee, Judge per Circuit, Fifth the appeal, Cessna vanished during a 1980 flight from Haiti to Aruba. When the plane’s plane’s Whenthe Aruba. fromto Haiti flight 1980 a during vanished Cessna owner and mortgagee sought insisted compensation, defendant the the sea; insurer at lost refused been to had plane pay. the At argued plaintiffs the trial, the pilot had absconded with the aircraft. After the jury sided with the 2015] 10 - J Chieftain disappeared in 1981. in disappeared Chieftain unsuccessful attempt to avoid payment. According to the insurer, the owner’s the insurer, the to According payment. avoid to attempt unsuccessful mostplane. lessee the stole likely granted the insurer’s motion to dismiss, but the Ohio Court of Appeals an insurance claim, the insurer brought a declaratory judgment action in an C Y 37333-fiu_10-2 Sheet No. 91 Side A 01/11/2016 08:19:25 A 01/11/2016 91 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 91 Side B 01/11/2016 08:19:25 M K C Y [Vol. 10:519 10:519 [Vol. a Piper Navajo 43 , 42 , 806 F.2d 254 (3d Cir. 1986). 1986). Cir. (3d 254 F.2d 806 , ) 1/4/16 6:38 PM FIU Law Review Law FIU aff’d mem. aff’d ELETE opinion. In addition to finding that subject matter matter subject that finding to addition In opinion. D OT N O (D DOCX per curiam _1.4. at *2. INAL Royal Insurance Co. v. Ideal Mutual Insurance Co. Insurance Mutual Ideal v. Co. Insurance Royal Id. _F 649 F. Supp. 130 (E.D. Pa.), McHenry must be brought as a shareholder, merely enforcing a right or or right a enforcing merely shareholder, a as brought be must McHenry obligation to the corporation. Appellee’s because McHenry logic was is personally faulty, liable however, on General the Electric promissory [the note plane’s to insurance the When faith. good in act to refusal alleged the by damaged mortgagee] and was thus claim was personally not paid, Beta was unable to meet its obligation on the note to General Electric and General Electric obtained a judgment against Beta and McHenry for $258,523.26 plus interest. suffered McHenry the consequences directly of appellee’s refusal to pay interest. in party real a is claim,he and the insurance In the first assignment of error, appellants contend that the trial McHenry. to court respect with dismiss to motion appellee’s granting in erred relief for claim a state to fails McHenry that alleges Appellee agree. We because that contends Appellee interest. in party real a not is he because by action any contract, the on insured named the is McHenry) (not Beta Hortman on prior occasions and he had always returned the aircraft on the fly to permission had Vincent that establish not does occasions these was there that undisputed is It hand. at situation the Miamiin to Navajo no discussion between Mrs. Hortman and Vincent regarding the use of the aircraft for any purpose Tennessee, and other that there was no charge to Vincent or remuneration than to the flight demonstration in Royal argues that a finding of conversion is precluded because there is no proof that [the dominion or control over the Navajo given the pattern of prior dealings pilot] Vincent intentionally exercised between Vincent wrongful and [the plane’s owner] Hortman, and there was no evidence of continued usage after the plane was lost. This argument is without merit. The fact that Vincent had rented the aircraft from In 42 43 ARVIS 530 reversed in a 10 - J jurisdiction jurisdiction existed and the declaratory judgment present suit, it held that H. Thomas McHenry, the action owner’s sole shareholder, did not bar the damages:individual seek could Tennessee, where a potential buyer was scheduled to see it. After paying the paying After it. see to scheduled was buyer potential a where Tennessee, claim, the reinsurer sued the insurer, arguing that no coverage existed under the reinsurance agreement. In entering McGlynn of the Eastern judgment District of concluded the Pennsylvania pilot most for the insurer, plane: the diverted had likely Judge disappeared in 1981 while it was being transported from Pennsylvania to 37333-fiu_10-2 Sheet No. 91 Side B 01/11/2016 08:19:25 B 01/11/2016 91 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 92 Side A 01/11/2016 08:19:25 44 46 531 531 numerous individuals were charged with with charged were individuals numerous 45 , Vanished Planes Vanished ) 1/4/16 6:38 PM ELETE D OT N O (D , 649 F. Supp.F. 649 , 137-38. at DOCX _1.4. at 1470-71. INAL Rollins Burdick Hunter of New York, Inc. v. Euroclassics Limited, United States v. Orozco Ideal Mut. Ideal Id. _F 630 F. Supp. 1418 (S.D. Cal. 1986). In a possible stop in Canada. According to the FAA, the plane never made never plane the FAA, the to According Canada. in stop possible a it to Houston. It has not been heard from since. The confidential source told Customs that the four individuals who leased observed loading the the airplane with food and airplane money and that they were were Mexico.was destination true their saying overheard participate. participate. Carlos responded that the “four ones I knew were on that airplane that’s gone.” Carlos said the four guys missing that airplane had took 1.5 off million in [dollars] the which was Customs 1984, 20, September on and airplane missing this investigated lost. The FBI Special Agent Steve Trent of Unit the Air Support informed informant a that confidential Walker advised [FBI Special] 1984. 29, August on disappeared Agent which airplane leased a about Customs [Charles] four by 1984 20, August on Airport Palomar from leased was plane The individuals, one of a filed whom airplane this leased who individuals The pilot. was Airlines Western Charles Eric Jenkins, a flight plan from San furloughed Diego to Houston, Texas, to Orlando, Florida and On On September 18, 1984, Carlos told Sullivan [co-defendant unknown]. name [last Carlos call Michael] to phone business Sullivan used his that he was attempting to raise money and what of part a get was or dollar their on return quick looking a make to wanted “who for someone participate not could he that Sullivan told Carlos in.” bring to trying am I to like might who anyone knew Carlos if asked Sullivan and time this at conversion has been made aircraft. the given was he which for purpose the with inconsistent out because his use of the plane was Hortman in connection with the flight. (J.S.F. 23, 24). 24). 23, (J.S.F. flight. the with connection in Hortman Moreover, the fact that neither Vincent nor the Navajo has ever been located and that it is uncertain whether to Vincent continued use it after does its not disappearance a preclude the plane was destroyed virtue by simply occurred or conversion the because conversion, of finding of the fact that the aircraft was taken to consent and never returned to the owner, Miamithus depriving Hortman of its without the owner’s plane the take to intended Vincent if Even plane. the in rights possessory to Tennessee after he left Miami and it was somehow lost en route, a In 44 45 46 ARVIS M K drug-related offenses. Denying their suppression motions, Judge Irving of the of Irving Judge motions, suppression their Denying offenses. drug-related of Southern California District relied in part on a phone call about a missing airplane: 2015] 10 - J C Y 37333-fiu_10-2 Sheet No. 92 Side A 01/11/2016 08:19:25 A 01/11/2016 92 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 92 Side B 01/11/2016 08:19:25 M K C Y 49 When the the When 48 [Vol. 10:519 10:519 [Vol. ) 1/4/16 6:38 PM FIU Law Review Law FIU a Beech Bonanza disappeared during a 1953 1953 a during disappeared Bonanza Beech a 50 , ELETE D OT N O (D DOCX _1.4. at 962. INAL Stewart v. Rogers Id. _F 502 So. 2d 959 (Fla. Dist. Ct. App. 1987). The court’s opinion does not provide the date of the plane’s disappearance. 133 S.E.2d 155 (N.C. 1963). a twin-engine plane disappeared while in the Caribbean. the in while disappeared plane twin-engine a In February 1953, at approximately 11:40 a.m. He flew a small plane into weather conditions constituting a hazard to a pilot of his experience flying a plane equipped as his was; his intended path of flight would have carried him along the coast line for a considerable distance, at a time when the wind was of such velocity and direction as to blow him We We hold that the evidence was to sufficient have supported a finding that Worth Stewart died soon after he left Jacksonville, Florida, on 26 owner] Euroclassics would not have been entitled to insurance coverage insurance to entitled been have not would Euroclassics owner] becauseofKartee’s misrepresentation. This affirmative defense isvalid trial.at proven if RBHliability of wouldexonerated and have It is clear that the trial court’s denial of [broker] harmful RBH’s error. motion was On appeal, RBH relies primarily on Kartee’s representation made its at the assertion time of application, that that the misrepresentation plane material a was trips, pleasure for solely used be would which would have voided the policy. RBH claims, and would Federal insurer] [the and RBH both that contention, the supports the evidence have refused to contract with Kartee had he told them that he had been using the plane and planned to use it in the future for drug smuggling. Consequently, regardless of RBH’s alleged negligence, [the plane’s During discovery, the broker was stymied in its attempt to get answers 47 , 47 48 49 50 ARVIS flight from The Florida trial to judge North ruled Carolina. that weather was to blame. On appeal, the North Carolina Supreme Court, per Chief Justice agreed: Denny, D. Weather D. 532 Inc. 10 - J immunitycriminal federal unrelated an in Karteecase, admittedused had he Appeal, of Court District Florida the result, a As drugs. smuggle to plane the Nesbitt,newJudge a by ordered trial: opinion an in plane’s corporate owner filed an insurance claim, the insurer refused to pay on the ground that the policy’s geographical limits had been breached. As a result, the owner sued the insurer for wrongfully denying the claim and the broker for procuring the wrong type of insurance. The trial court found for broker. the against and insurer the AmendmentFifth the asserted president, who owner’s the Kartee, fromJack during his deposition. Subsequently, while testifying under a grant of 37333-fiu_10-2 Sheet No. 92 Side B 01/11/2016 08:19:25 B 01/11/2016 92 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 93 Side A 01/11/2016 08:19:25 . cert. dismissed sub nom 533 533 , 545 F.2d 1298 (5th Cir. 1976), 51 a Cessna 210 made a “gear-up” landing landing “gear-up” a made 210 Cessna a 53 54 a Cessna 337 Super Skymaster disappeared disappeared Skymaster Super 337 Cessna a , Vanished Planes Vanished ) 1/4/16 6:38 PM 52 , ELETE reh’g denied D OT N O (D DOCX , 540 F.2d at 784 (footnote omitted). omitted). (footnote 784 at F.2d 540 , _1.4. Fleischman v. Department of Transportation, National . at 158-59. at . INAL Solomon v. Warren Id Solomon _F 540 F.2d 777 (5th Cir.), Cir.), (5th 777 F.2d 540 927 F.2d 609, No. 89-70367, 1991 WL 26487 (9th Cir. Mar. 1, 1991). In In out to sea; and it communicate has with any airport within the flying range of his plane. The been determined that he search for him was thorough did and exhaustive. From these facts, the trial not land at or judge found that Worth Stewart was dead on 30 May 1956, over three disappearance. his after years that Warren’s negligence was a proximate Levins. the of deaths the and aircraft cause of the loss of the This argument misconceives our appellate function . . . . [W]here the conclusions of the trial even appeal, on aside set judge be not will conclusions those may whole a as record reasonably be inferred from the though “conflicting inferences of equal reasonableness may be drawn the of scrutiny careful after Here, evidence.” of body same the . . . from record, . . . we liability. to as conclusions find sufficient evidentiary support for that court’s On appeal the appellants contend that the appellee did not establish by a preponderance of the evidence that Paul Warren was negligent in the 1971, 23, July on aircraft the of operation the in and trip the of planning and that Warren’s negligence proximately caused the Levins’ deaths. The argument goes that even when viewed in a light most favorable to the appellee, the evidence at trial acceptable showstheories of the cause of the fatal crash: (1) the negligence of that there are two equally and Warren (2) the in defect the in main system fuel tank this venting model of aircraft. The assert appellants therefore that the appellee did not carry his burden of proof and that the district court erred in finding 51 52 53 54 ARVIS M K Warren v. Serody, 434 U.S. 801 (1977). (1977). 801 U.S. 434 Serody, v. Warren E. Pilot Error Error Pilot E. 2015] 10 - J judge placed the blame on Simpson,Judge explained: per Circuit, affirming,Fifth the the pilot rather than the plane’s design. In during a 1971 flight from Curacao to Barbados. After a bench trial, the district the trial, bench a After Barbados. to Curacao from flight 1971 a during during a 1986 flight at that an began airport Whenand in ended Nevada. the the the incident, investigated (NTSB) Board Safety Transportation National plane’s owner admitted he piloting been had “George,” had named man a passengers, his been of one that claimed at the controls. Later, however, he Transportation Safety Board C Y 37333-fiu_10-2 Sheet No. 93 Side A 01/11/2016 08:19:25 A 01/11/2016 93 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 93 Side B 01/11/2016 08:19:25 M K , 25 C Y 56 . [Vol. 10:519 10:519 [Vol. 55 the flight. Rejecting this this Rejecting flight. the res ipsa loquitur ipsa res after Res Ipsa Loquitur in Aviation Accidents ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE D OT N O (D Theresa Ludwig Kruk, Annotation, Annotation, Kruk, Ludwig Theresa DOCX _1.4. . at *1, *6 (footnote omitted). (footnote *6 *1, at . INAL See generally Id _F Where Where it is impossible to say what caused a plane to both disappear, ALJ who heard the deference. great accorded be should witnesses testimony and observed the demeanor of the Inspector Morgan’s testimony that Mr. Fleischman admitted being the pilot-in-command of the flight when the inspector first questioned him following the landing. The inspector’s credibility was bolstered by his detailed account of Mr. Fleischman’s initial explanation of why he had forgotten to lower the landing gear. At the same time, Mr. Fleischman offered the highly implausible story that he turned the controls of not his did he whom know, not did he name last whose man a to over plane know to have a pilot’s license, and who has since vanished without a trace despite having frequented the airport prior to the ALJ, incident. who The had the opportunity to observe both witnesses’ believed demeanor, the inspector and found Mr. Fleischman’s version of the facts incredible. This circuit has recognized that the factual findings of the was accompanied by a “friend that ran around with him all the time” whose name he never but could incident the to prior not years two for recall airport the around at frequently all; that George had friend his or George whether been know not did he that seen and afterwards; again many fly George seen had he that but certificates, pilot private valid had times. Mr. Fleischman also testified that he had been unable to locate . . . . him knew who else anyone know not did and George The petitioner contends that there is not record to substantial support the ALJ’s and evidence Board’s finding that in he was the pilot- the in-command at the time of the gear-up landing. The petitioner was the owner of the plane and the only passenger in the aircraft known to be the holder of a pilot’s license. In addition, the ALJ found credible At the hearing Mr. Fleischman denied telling Inspector Morgan that he improperly.He landed was plane pilot-in-commandthe [the] when was potential a to it show to day that out plane the taken had he that testified purchaser, and that the potential purchaser, “George,” had been flying the plane during the relevant flight. Fleischman testified that he could not recall George’s last name; that George had an accent; that George 55 56 ARVIS Res Ipsa Loquitur Ipsa Res F. F. of doctrine the on relied have courts and litigants 534 the airplane and had vanished immediately story, the NTSB suspended the owner’s license for 40 days. On appeal, the memoranduma in Circuit, Ninth affirmed: opinion, 10 - J 37333-fiu_10-2 Sheet No. 93 Side B 01/11/2016 08:19:25 B 01/11/2016 93 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 94 Side A 01/11/2016 08:19:25 L. ARM H ENT .-K HI MOTIONAL , 84 C E a plane disappeared disappeared plane a 57 , HYSICAL AND P Res Ipsa Loquitur in the Restatement (1965) provided: . The defendant objected to 535 535 ORTS T OF ) IABILITY FOR :L ECOND ORTS (S T in missing plane cases, its comment d (“Evidence about other res ipsa loquitur OF OF ) Daniel J. Pylmana, Note, Note, Pylmana, J. Daniel Vanished Planes Vanished ) 1/4/16 6:38 PM see HIRD ELETE (T D ESTATEMENT OT N O res ipsa loquitur ipsa res (D DOCX ESTATEMENT _1.4. INAL Haasman Haasman v. Pacific Alaska Air Express, Inc. _F 100 F. Supp. 1 (D. Alaska 1951). In of this flight. No trace of the plane, its cargo or passengers has ever been ever has passengers or cargo its plane, the of trace No flight. this of found. The plaintiffs by appropriate allegations rely on the doctrine of . . . . loquitur ipsa res The question presented, therefore, is whether the trace. a without doctrine flight during of disappears plane res the where applies ipsa loquitur The defendant’s contention that the doctrine is not applicable to a case such as this is based primarily disappeared without a on trace, the the defendant can have ground no knowledge that of since the the cause of plane the loss of the plane superior to that possessed by the The plaintiffs, as personal representatives, seek to recover damages for the death of their decedents airplane on a who flight from Yakutat, were Alaska, to Seattle, passengers Washington, on on November 4, defendant’s 1948. The plane was time the last at route this heard along prevailed conditions storm from or icing No in Sitka. the vicinity of The tension between the Illustrations are resolved in this Comment. Everything Second [now] depends on how strong the inference Restatement’s black letter is of and defendant negligence the before evidence Second is introduced alternative causes. To present the matter quantitatively, if a type of accident is caused by defendant that Restatement’s diminishes the likelihood of any negligence 70 percent of the time, the plaintiff’s res ipsa case can proceed even without evidence from the plaintiff But negating for another any of type the of remaining accident, causes. defendant negligence may be implicated only 45 percent of the time; two other causes are 30 percent and 25 percent possibilities. In such cases the plaintiff must offer evidence negating at least one of these acceptable. claim ipsa res the render to order in causes The extent to which the plaintiff is required to offer evidence ruling out alternative explanations for response. ambivalent an provides Torts of Second Restatement the which to issue an is accident the accident the for causes” responsible “other unless apply not does ipsa res that states it letter, black In . . . Yet 328D(1)(b). § Torts Second, Restatement See evidence.” the by eliminated sufficiently “are the if even weather, good in disappears plane a when applies ipsa res that indicates Restatement the sabotage. . or failure . . mechanical disproving 3. evidence Illustration See no introduces plaintiff A is a passenger in the airplane of B Company, a common carrier. In good flying weather the plane common carrier. A is a passenger in the airplane of B Company, a disappears, and no trace of it is ever found. There is no other and evidence. care, reasonable by prevented Various been have not explanations could which failure mechanical are including possible, bombs planted on the plane. It may, Company. B of part the on negligence some is explanation however, be inferred by the jury that the most probable 57 ARVIS . 907 (2010). (2010). 907 . M K EV For a criticism of this new approach, (Third) of Torts: Liability Based Upon Naked Statistics Rather Than Real Evidence (2010) preserves the use of use the preserves (2010) 3: Illustration rejects causes”) possible conclusions”) of § 328D of the R the of 328D § of conclusions”) A.L.R. 4th 1237 (1983 & Supp. 2015). Interestingly, Illustration 3 to comment e (“Permissible 2015] 10 - J R during a 1948 flight from Alaska to Washington. reason, the Unable plaintiffs relied to on pinpoint the Alaska: of District the of Folta Judge by rebuffed was but use doctrine’s the While § 17 of the R C Y 37333-fiu_10-2 Sheet No. 94 Side A 01/11/2016 08:19:25 A 01/11/2016 94 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 94 Side B 01/11/2016 08:19:25 M K C Y ., 153 aff’d mem [Vol. 10:519 10:519 [Vol. , 438 F.2d 1386 (3d 58 a small plane disappeared during , 153 N.Y.S.2d 567 (App. Div. 1956), a separate a 1956), Div. (App. 567 N.Y.S.2d 153 , 59 ., vacated and remanded on other grounds ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE D OT N O appeal and reargument denied reargument and appeal (D DOCX _1.4. . at 1-2. In Des Marais v. Thomas, 147 N.Y.S.2d 223 (Sup. Ct. 1955), INAL , 147 N.Y.S.2d at 225-26. at N.Y.S.2d 147 , Id Dugas v. National Aircraft Corp Aircraft National v. Dugas _F 310 F. Supp. 21 (E.D. Pa. 1970), 1970), Pa. (E.D. 21 Supp. F. 310 In I am of the opinion that the doctrine of res ipsa loquitur is applicable and that the motion to dismiss should be denied . . . plaintiffs. the for entered be accordingly . Judgment may specific acts of negligence is a prerequisite to the doctrine application itself, of the it follows that application. But from this it does not follow that conversely equality of equality of knowledge precludes ignorance will its likewise preclude applicability, for the function of to the is Loquitur, Ipsa Res Shain’s to introduction the in stated as doctrine, supply a fact, i.e. defendant’s negligence, which must have existed in the omissionby to or defendant act from the stretching chain causal the the injury suffered by the plaintiff, but which the plaintiff because of circumstances surrounding the causal chain, barring cannot rule the know that therefore, and conclude, I cannot existed. actually have to prove the application of the doctrine where there is equality of knowledge is . . . . bar at case the to applicable not plaintiffs. plaintiffs. The rule the precluding doctrine the where application the of plaintiff’s knowledge is equal to An 299. Section that 995, Am.Juris. 38 and 1000 page of 220(5), § Negligence, the defendant is stated in examination 65 of C.J.S., the authorities cited in support discloses of the that rule it however, is the to accessible equally is cause the of knowledge where or applied knowledge to cases where the plaintiff—not to cases in which plaintiff there is an equality of has show ignorance to as knowledge, of in lack a equal of because inability, Since case. instant the opposing affidavit herein, state that the first pilot actually had all the requisite qualifications stated in Endorsement No. 4 (this is not disputed by defendant) and “if a specific request had been made there would have been no valid basis for refusal by MacDonald.” It is thus conceded that his name MacDonald. to submitted even not was It is also not disputed that the co-pilot on this trip held only a student pilot certificate and did not possess the certificate or ratings required under the policy. Plaintiff’s answer and affidavit certificate merely airman pilot’s valid a be to face its on appeared ‘what plaintiff to ‘exhibited’ he that claim carriers.air other by co-pilot employedfull been a previously as had and ratings’ proper with . . . . policy the of conditions stated with comply to failure a was there respects both in that clear is It policy.this under recovery a prevented neglect own his by has plaintiff that is conclusion My It is not disputed that the first pilot on this fatal trip was neither of the two named pilots “approved by [the insurer] D. K. MacDonald and Company.” Plaintiff’s answer to the notice to admit, and the 59 58 ARVIS a 1965 flight from the Bahamas to Puerto Rico. Lawsuits were brought 536 10 - J Cir. 1971). Cir. Des Marais Des N.Y.S.2d 532 (App. Div.), (App. 532 N.Y.S.2d lawsuit brought by the plane’s owner against his insurer was conditions: policy’s the with comply dismissed due to the owner’s failure to 37333-fiu_10-2 Sheet No. 94 Side B 01/11/2016 08:19:25 B 01/11/2016 94 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 95 Side A 01/11/2016 08:19:25 62 , 306 by name, we know from from know we name, by 60 the plaintiff’s brother was a a was brother plaintiff’s the 537 537 ORUM Hawaii Clipper 61 , /F AW , a Martin M-130 seaplane that L Vanished Planes Vanished ) 1/4/16 6:38 PM HOICE OF HOICE Blument[h]al v. United States of America C ELETE D Hawaii Hawaii Clipper III. OT N O (D DOCX , 310 F. Supp. at 26. at Supp. F. 310 , _1.4. INAL Choy v. Pan-American Airways Co. Dugas _F Although the court’s opinion does not mention the the mention not does opinion 1941 A.M.C. 483 (S.D.N.Y. 1941). court’s the Although caused the death of his daughter and her companion.her and daughter his of death the caused Plaintiffs have failed to meet their burden of proof to establish liability against National Aircraft Corporation. There is no evidence that Hart Mr. was acting as National Aircraft Corporation’s agent or when the accident occurred. All of the evidence indicates that Mr. Hart servant counsel Plaintiffs’ trip. vacation winter personal a for plane the used had conceded in oral argument of before theory the on Corporation Aircraft National against liability establish this Court that he had ground. other any on or superior respondeat failed to caused the accident. Since the ordinary rules of negligence apply to this to apply negligence of rules ordinary the Since accident. the caused suit, the plaintiffs’ evidence negligence proximately convincingly caused shows the that death compelling of Mr. inference both Hart’s from young plaintiffs’ girls. The evidence crashed in adverse is weather conditions for that which the airplane the was not Mr. trained. properly not airplane was pilot the which for and equipped properly the of seriousness the of himself appraise to opportunity ample had Hart weather conditions for his small Furthermore, airplane, he was and warned about blatant he His Rico. the Puerto Juan, San weather failed to Caicos South conditions from fly to attempted to before he do so. disregard of these warnings demonstrates a flagrant breach of his duty duty of dereliction Such passengers. his protect to care reasonable use to The plaintiffs’ evidence establishes liability on the part of Theodore M. Theodore of part the on liability establishes evidence plaintiffs’ The Hart’s estate. Since it was admitted that the airplane over disappeared the high seas, the doctrine of res ipsa loquitur permits an inference of negligence in this case. F.2d 16 (3d Cir. 1962). Without Hart, H. Theodore pilot, an the of negligence the explanation that hold would I crashed, of how the airplane Missing plane cases often require courts to make difficult choice of law law of choice difficult make to courts require often cases plane Missing In 60 61 62 ARVIS M K 2015] 10 - J passenger aboard the disappeared in 1938 during a flight from Guam to the Philippines. against the pilot’s estate and the absence company that of owned the any plane. In concluded: Pennsylvania of District Eastern the Higginbothamof firm the proof as to why the plane disappeared, Judge or choice of forumof determinations. choice or other sources that Watson Choy was one of the plane’s passengers and that Frank Choy was his brother. C Y 37333-fiu_10-2 Sheet No. 95 Side A 01/11/2016 08:19:25 A 01/11/2016 95 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 95 Side B 01/11/2016 08:19:25 M K , 49 C Y 63 Hawaii Hawaii (1940), 110 110 (1940), [Vol. 10:519 10:519 [Vol. appeal denied Middleton vs. vs. Middleton Restatement of See $250,000 Mystery $250,000 See , 324 U.S. 882 (1945). (1945). 882 U.S. 324 , denied . , Justice Schreiber of the cert involved a different ., July 4, 1940, at 4. 4. at 1940, 4, July ., Choy 64 RIB T ., 48 N.Y.S.2d 459 (App. Div.), AKLAND , O Hunter vs. Derby Foods, Inc. aff’d mem ) 1/4/16 6:38 PM FIU Law Review Law FIU ., 59 N.E.2d 785 (N.Y. 1944), (N.Y. 785 N.E.2d 59 ., ELETE D OT , Aug. 29, 1941, at 7. 7. at 1941, 29, Aug. , , sec. 391; N O aff’d mem aff’d IMES (D T , 1934 A. M. C. 649, 70 F.(2d) 326 (2CCA). 326 F.(2d) 70 649, M.C. A. 1934 , DOCX , N.Y. , passenger. Without discussing discussing Without passenger. _1.4. , 1941 A.M.C. at 487. Shortly after Judge Clancy’s decision, the parties settled for $4,000. for settled parties the decision, Clancy’s Judge after Shortly 487. at A.M.C. 1941 , treaty on 3000, the p. 2, Part part Large, at Statutes of 49 1934, 29, the October on President United States was proclaimed by the The rights of the parties are fixed by the rules for “International Air “International for rules the by fixed are parties the of rights The Transportation” established and concluded at Warsaw, Poland, on October 12, 1929, at a including convention the United of States. Final adherence nearly to this all international governments, INAL Choy _F 43 N.Y.S.2d 420 (Sup. Ct. 1943), 1943), Ct. (Sup. 420 N.Y.S.2d 43 Clipper Victim’s Kin Sues for $52,718 for Sues Kin Victim’s Clipper , assistance, which it has not as yet received. yet as not has it which assistance, Whether or not the Philippine law resolve. whichcan fact trial of a question only a upon rests liability will determine the defendant’s Conflict of Laws exclusively. governs Act Federal The (2CCA). 970 F.(2d) Luckenbach Nor do we think the claim under the Warsaw insisted Convention upon. should There be is no enabling act vesting the cause of action stated by ownership the Warsaw Convention nor even stating who of the stated liability the though and, a by death injured be to thought be may in Article 17 is part understand of the how treaty it which was can adopted, be we do defined not or enforced without statutory We can see no support for any claim plaintiff makes under the Nevada Nevada the under makes plaintiff claim any for support no see We can of place the of law The apply. ever can neither for statutes York New or wrong covers the right of action for wrongful death. We conclude We that the conclude Death on the High Seas Act vests a right in this plaintiff to recover here and that that commonaction. law right may be asserted in this Wyman Wyman v. Pan American Airways, Inc. Clipper New York Supreme Court held that the ticket supplied the answer to the the to answer the supplied ticket the that held Court Supreme York New question: law of choice 63 64 e.g. ARVIS , of action but put off choosing between the first and fifth causes of action: action: of causes fifth and between first choosing the off put but action of N.Y.S.2d 271 (App. Div.), (App. 271 N.Y.S.2d See 538 Uncertain which law governed his claim, the plaintiff brought five separate law state Nevada law; admiralty federal respectively, under, action of causes (Pan American’s place of incorporation); New York state law; international aviation law; and Filipino law. In a causes pre-trial fourth and opinion, third, second, the Judge dismissed York Clancy New of District of Southern the 10 - J It then was revealed that Watson Choy had been on a secret mission to deliver a large sum of cash to the Nationalist Chinese government. This money Committee. Relief had War Chinese the been of president raised as capacity from his in Chinese-Americans Choy to and entrusted had been Closed Chinese of 37333-fiu_10-2 Sheet No. 95 Side B 01/11/2016 08:19:25 B 01/11/2016 95 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 96 Side A 01/11/2016 08:19:25 a Cessna 182 182 Cessna a 66 68 , 65 539 539 the administrator of one of the the of one of administrator the 69 , Listing on Vietnam Wall Sought for Troops Killed Troops for Sought Wall Vietnam on Listing , July 24, 2013, http://www.stripes.com/news/listing-on- Vanished Planes Vanished ) 1/4/16 6:38 PM TRIPES S ELETE Matthew M. Burke, D OT See N O TARS AND (D , S DOCX , 43 N.Y.S.2d at 422. at N.Y.S.2d 43 , _1.4. 67 which thus becomes part of the law of the land . . . . The said rules rules said The . . . . land the of law the becomesof thus part which . . . . herein ticket the madeof were condition a . at *10 (author’s trans.). (author’s *10 at . INAL Fornaris Fornaris v. American Surety Co. of New York Pardonnet v. Flying Tiger, Inc. Wyman Id _F The families currently are campaigning to have the soldiers’ names added to the Viet Nam Nam Viet the to added names soldiers’ the have to 93 D.P.R. 29, No. R-63-296, 1966 WL 16541 (P.R. Jan. 24, 1966). campaigning are currently families The 233 F. Supp. 683 (N.D. Ill. 1964). corporation that owns it, successors (here plaintiffs) the were or are, as the four case may be, of public deceased its and Puerto laws its of protection the owes Rico Puerto them To Rico. passengers and the of fate their the and factor fortuitous completely a is site crash The policy. such of mercy the to left be not should law of system rational a in parties a capricious factor. We therefore adopt the doctrine of the key contacts which we find is more realistic and fair and apply Rico. the law of Puerto On appeal, the Puerto Rico Supreme Court, in an opinion by Justice From the above analysis it will be clear that Puerto Rico, and not Thomas, St. has the dominant contacts in this case . . . . The plane, the The defendants (the airplane’s corporate owner and its insurer) argued In Three different choice of law/forum decisions owe their existence to In 65 66 67 68 69 ARVIS M K the law of the Virgin Islands, which capped damages at $10,000, should be used. Siding with the plaintiffs, the trial court opted for the law Rico, of Puerto which did not contain $255,000. a cap, and ordered the defendants to pay Lord, affirmed. After first deciding that that federal case law was (because not the controlled casualty by almost Puerto test” “center-of-gravity the under that explained Lord Justice waters), certainly occurred in territorial Islands: Virgin the of those outweighed interests Rico’s disappeared disappeared in 1957 while traveling from the U.S. Virgin Islands to Puerto Rico. It was agreed by all that between the the two islands. plane This assumption, must however, raised have the question of crashed somewhere whether the law of the the Virgin Islands, law of Puerto Rico, or the law of Unitedthe was States applicable. vietnam-wall-sought-for-troops-killed-in-1962-plane-crash-1.231996. soldiers’ estates sued the airline in federal court in Illinois. After entering a 2015] 10 - J Flight 739, a chartered Lockheed L-1049H that disappeared in 1962 while fromViet soldiers to Nam.U.S. California 93 transporting memorial in Washington, D.C. Washington, in memorial in 1962 Plane Crash C Y 37333-fiu_10-2 Sheet No. 96 Side A 01/11/2016 08:19:25 A 01/11/2016 96 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 96 Side B 01/11/2016 08:19:25 M K C Y Article 28 of the of 28 Article [Vol. 10:519 10:519 [Vol. 71 , 370 F.2d 46 (9th Cir. 1966). 1966). Cir. (9th 46 F.2d 370 , the pilot’s family was was family pilot’s the 74 , . 697 (1966). 697 . the administrators of four other other four of administrators the EV 72 , .L.R , 352 F.2d 494 (9th Cir. 1965). 1965). Cir. (9th 494 F.2d 352 , INN aff’d in part and rev’d in part in rev’d and part in aff’d rev’d , 50 M 50 , ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE D OT N O (D Flying Tiger Lines, Inc. v. Landy , 233 F. Supp. at 688. 688. at Supp. F. 233 , DOCX 73 , 352 F.2d at 498. 498. at F.2d 352 , _1.4. INAL In denying this request, Judge Decker of the Northern District of of District Northern the of Decker Judge request, this denying In Warren v. Flying Tiger Line, Inc. Line, v. Warren Tiger Flying Pardonnet Warren _F Convention for the Unification of Certain Rules Relating to International Carriage by Air art. art. Air by Carriage International to Relating Rules Certain of Unification the for Convention 234 F. Supp. 223 (S.D. Cal. 1964), 250 F. Supp. 282 (N.D. Cal. 1965), 70 In Under the facts of the delivered at case the foot before of the us, ramp just the as plane. the passenger None of servicemen the passengers were tickets boarded afforded a the reasonable opportunity were of even reading the ticket, much less obtaining additional before they were accepted insurance, by boarding the plane. The passengers were thereby deprived of a right which was intended to [under be the afforded treaty] them as a concomitant to liability. the carrier’s right to limit its Lastly, Lastly, in to the jurisdiction of this Court, that the Warsaw Convention does apply does Convention Warsaw the that Court, this of jurisdiction the to to this case, Article 28(1) determines only which nations can hear the by 28(2), Article nation. appropriate an within court which not but case, leaving questions of procedure submitted, to would determine which the court within an court appropriate nation to of and statutes venue may hear a jurisdiction the Under domestic case. which the case is the United States, the libel in personam in the case at bar is filed properly in the Northern District of Illinois, and this mattersubject the parties. and of venue and jurisdiction Court properly has In conclusion, assuming only for the purposes of respondent’s exception exception respondent’s of purposes the for only assuming conclusion, In 70 71 72 73 74 ARVIS the airline was entitled to limit its liability. On appeal, the Ninth Circuit, per not was airline the Hamley,ruled but Judge applicable was treaty the agreed limitation:to entitled passenger estates sued the airline court, The in noting district California. the soldiers had been issued tickets incorporating the Warsaw Convention, held 540 special appearance, the by governed was action the that argued airline it motion, its of support In California. moved to four the of one in brought have be to had suit such, as and, Convention the Warsaw the case transferred to forums specified by location Article the (California), business of place principal airline’s the (Delaware), 28(1) of the treaty: where the the ticket was issued airline’s (California), or the intended domicile destination (Viet Nam). 10 - J 28 § 1, Oct. 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11. For a further discussion, see Note, see discussion, further a For 11. L.N.T.S. 137 3000, Stat. 49 1929, 12, Oct. 1, § 28 Analysis Suggested A Convention: Warsaw Illinois wrote: wrote: Illinois 37333-fiu_10-2 Sheet No. 96 Side B 01/11/2016 08:19:25 B 01/11/2016 96 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 97 Side A 01/11/2016 08:19:25 at 75 77 A deputy deputy A 76 a Piper aircraft aircraft Piper a 78 , 541 541 Vanished Planes Vanished ) 1/4/16 6:38 PM ELETE D OT N O (D DOCX The pilot’s estate objected because there was no proof the the proof no was there because objected estate pilot’s The 79 , 370 F.2d at 51-52 (footnote omitted). (footnote 51-52 at F.2d 370 , _1.4. INAL Kelley v. Central National Bank of Richmond Landy _F Cal. Labor Code §§ 3200-6208. 42 U.S.C. §§ 1651-1654. 345 F. Supp. 737 (E.D. Va. 1972). 28 U.S.C. § 1333. have been the plane was briefly spotted off the coast: employments which fall within its scope . . . . award disputed the Commissionerrender to jurisdiction had . . . . [Thus,] the Deputy Although the record on this appeal does not contain a transcript of the entire proceedings Commission, the referee’s before award is before us. the It specific finding that does the federal Defense not Base Act include is inapplicable, and jurisdiction a federal of California issue the that briefs their in concede appellants the Industrial Accident . . . . body state the before raised never was There is more weight to appellants’ contention that the applicants, by seeking and recovering benefits under the state act, election of remedies made . . a . . But binding the coverage provisions of the Defense Base Act clearly evidence the intent that the act shall afford remedy the sole for injuries or death suffered by employees in the course of In Beach en route to Richmond, Virginia. Richmond,Virginia. to route en Beach A member of a [civil crew air spotted patrol] submergedsearch objects about twenty-four hundred yards off shore east of Melbourne Beach in about forty feet of water. This observer thought the submerged objects After considering the matter, Judge Lewis of the Eastern District of Vero of SSE miles ten some be to reported last was aircraft missing The 75 76 77 78 79 ARVIS M K $17,500 rather than $16,819.91 but otherwise affirmed:otherwise but $16,819.91 than rather $17,500 a rate of $70 per week for 250 weeks, or $17,500. receiving, After agreeing a to, and lump sum payment of benefits $16,819.91, the under family sought death the federal Defense Base Act (DBA). 2015] 10 - J awarded death benefits under California’s workers’ compensation statute compensation workers’ California’s under benefits death awarded disappeared during a 1969 flight from Florida to Virginia. The passenger’s estate sued the pilot’s estate jurisdiction. in federal court on the ocean. the in up ended had plane basis of admiralty what from wreckage because existed jurisdiction admiralty that held Virginia might commissioner granted the family $68.25 a week for as long as they met the DBA’s age and dependency requirements and gave the airline a credit for what it already had paid. When the airline sued the deputy commissioner to set aside his award, the district court dismissed the lawsuit. On appeal, the of credit a received have should airline the held Ely, Judge per Circuit, Ninth C Y 37333-fiu_10-2 Sheet No. 97 Side A 01/11/2016 08:19:25 A 01/11/2016 97 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 97 Side B 01/11/2016 08:19:25 M K C Y , 409 U.S. 409 , 80 [Vol. 10:519 10:519 [Vol. a 1972 flight flight 1972 a 81 , In disagreeing with the latter latter the with disagreeing In 83 ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE D Executive Jet Aviation v. City of Cleveland of City v. Aviation Jet Executive OT N O (D DOCX , 345 F. Supp. at 739-40. at Supp. F. 345 , _1.4. and the Suits in Admiralty Act. Admiralty in Suits the and INAL American Home Assurance Co. v. United States 82 Kelley _F 389 F. Supp. 657 (M.D. Pa. 1975). 28 U.S.C. § 1346(b). 46 U.S.C. §§ 741-752 (now codified as 46 U.S.C. §§ 30901-30918). “traditional maritime“traditional . . . . activity” Combining the Supreme Court’s limited view of admiralty jurisdiction in aviation tort cases with a conclusion that no “traditional activity” has maritime been demonstrated here, this Court holds that the instant suit is not cognizable under the Suits in Admiralty Act. Consequently, The Government does not contest our jurisdiction under the Federal Tort Tort Federal the under jurisdiction our contest not does Government The Claims Act. However, it has filed a motion to dismiss with respect to Admiraltyin Act. Suits the under jurisdiction alleged our Disposition of this motion is completely controlled by in the decision Court’s Supreme 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). That case held that the mere fact that an alleged wrong takes navigable place waters is not by or itself sufficient to turn has an aviation tort case its effect on into or a over “maritime tort.” Rather, for admiralty, such the a alleged case wrong to must be bear cognizable a in significant relationship to preventing the cutter from sending divers found. be not could submergedobjects Thursday—bythe then down until the following No other aircraft was reported missing in the area in question. It does not follow from the there. not were they that recovered fact that the submerged The Court concludes from the evidence presented that the objects seen objects were never beneath the surface of the ocean off Melbourne Beach in the navigable question. in aircraft the of remains the were Florida of waters were parts of the missing airplane they described what were he saw then in some looking detail—The searching for—He aircraft circled the spot for some time and radioed for a Coast Guard vessel to come to scene. the The cutter did not reach the scene until the next morning—The divers buoy marker sharks—A of presence the to due water the enter not could was placed on the spot and arrangements were made for a Navy diving Sunday. on cutter teamembarkthe to with High winds causing sixteen-foot seas washed the marker buoy away— In 80 81 82 83 ARVIS 542 10 - J contention, Judge Muir of the Middle District of Pennsylvania wrote: Pennsylvania of MiddleMuirDistrict the Judge of contention, disappeared between New Jersey and New York. The plaintiff argued that federal court jurisdiction existed under both the Federal (FTCA) Torts Claim Act 37333-fiu_10-2 Sheet No. 97 Side B 01/11/2016 08:19:25 B 01/11/2016 97 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 98 Side A 01/11/2016 08:19:25 . ex rel Bazor Bazor See a helicopter ferrying 85 , 87 543 543 IMITATION 84 L Vanished Planes Vanished ) 1/4/16 6:38 PM TATUTES OF TATUTES S ELETE Although all sides agreed that the helicopter must must helicopter the that agreed sides all Although D 86 OT IV. N O , 389 F. Supp. at 658. 658. at Supp. F. 389 , (D DOCX _1.4. , 2007 WL 1560303, at *1-2. *1-2. at 1560303, WL 2007 , INAL Bazor v. Grasso Production Management, Inc. Management, Production Grasso v. Bazor American Home American Bazor _F Among the defendants was the owner of the rig from which the helicopter had departed. In an an In 2007 WL 1560303 departed. (E.D. May 25, 2007). had helicopter the which from rig the of owner the was defendants the Among In Helicopters’ search and rescue efforts are claims. Six relevant or seven of the pilots may have participated in those efforts to the plaintiffs’ the depose to basis no is There efforts. those on information possess and the to and, efforts rescue and search the in participate not did who pilots extent these pilots possess cumulative. and testimonyredundant [their] is procedures, information on shall subjects Helicopters Industrial noticed. were pilots eight of depositions The like company produce those pilots who participated in the search and rescue efforts. Its motion to quash is granted as to any of the eight pilots that did not efforts. rescue and search the in participate In an effort to resolve this critical issue, Magistrate Judge Shushan Industrial Helicopters urges that the pilots do not possess information relevant to the parties’ claims and defenses. This plaintiffs. is For disputed example, by they the contend that the further helicopter than twelve miles went from shore down while Industrial Helicopters will urge the helicopter went down within the twelve mile limit. Plaintiffs contend that, if the helicopter went down beyond the twelve mile limit, . . damages. non-pecuniary . recover may they and pilot its helicopter, The unusual. are action the of circumstances The the two men on the platform were lost without a trace. Industrial the Defendant’s motion to dismiss with respect to jurisdiction under 46 granted. be will seq. et 741 § U.S.C. To be timely, death actions must be filed within the applicable statute of statute applicable the within filed be must actions death timely, be To 84 85 86 87 ARVIS M K permitted the plaintiffs to take extensive discovery: discovery: extensive take to permittedplaintiffs the 2015] have crashed, there was sharp disagreement law regarding admiralty federal or law state Louisiana the whether determine would which exact location, applied. 10 - J limitations (SOL). But when does the SOL begin to run in a missing plane the 2) date; departure flight’s the 1) possibilities: five least at are There case? earlier decision, its motion to be let out of the lawsuit had been denied as premature. (E.D.625846 WL 2007). 2007 23, Inc., Feb. Mgt., La. Prod. Grasso v. Lantier workers between oilrigs in the Gulf of Mexico disappeared during a 2005 flight. The ex-wife of one of the workers, acting on behalf of his children, sued numerous parties. C Y 37333-fiu_10-2 Sheet No. 98 Side A 01/11/2016 08:19:25 A 01/11/2016 98 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 98 Side B 01/11/2016 08:19:25 M K C Y Judge Judge 91 [Vol. 10:519 10:519 [Vol. text accompanying infra a pilot of a small small a of pilot a 93 , . 79 (1938). 79 . EV L. R IR case. Whatever the meaning of Presumption—Evidence of Death—Doctrine In 1971, when his wife sought to , 9 A 9 , 94 Jackson a DC-4 disappeared on March 28, 1964, en 89 , ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE D OT N O (D DOCX , 43 F.R.D. at 303-04. at F.R.D. 43 , _1.4. had abolished the “exclusive remedy provision” of the DBA, DBA, the of provision” remedy “exclusive the abolished had 92 INAL 90 Carman v. Prudential Insurance Co. of America Storey v. Garrett Corp. Garrett v. Storey Storey _F For an early treatment of this problem, see Note, Note, see problem, this of treatment early an For 43 F.R.D. 301 (C.D. Cal. 1967). Jackson v. Lykes Bros. S.S. Co., 386 U.S. 731 (1967). 46 U.S.C. § 763(a) (now codified as 46 U.S.C. § 30106). As explained 748 P.2d 743 (Alaska 1988). The court’s opinion provides no further information about the plane or the flight. 88 Thereafter, the plaintiffs, asserting that a recent U.S. Supreme Court In In handed down its decision in the in decision its down handed that decision, it cannot reasonably be held to have limitations revived of statute a the of lapse cause by extinguished of been had which action . . . . entry its of date the to prior Plaintiffs seek to avoid the effect of the foregoing rule by reliance on the “relation back” doctrine of Rule 15(c) of the Federal Rules of Civil recognized been long has It justified. be cannot reliance Such Procedure. that the “relation back” doctrine does entirely not new enable parties as a defendants plaintiff after the to statute join of run. limitations has On March 28, 1966, the two-year period 763. § U.S.C. 46 expired. of based, are libels these which upon occurrence limitation following the Since that date, any claim these plaintiffs may until havenot was It againstlaw. of matter a FMC,as barred been and has thereon, remedy their almost 14 months after been this bar raised had that the Supreme Court 88 89 90 91 92 93 94 ARVIS District of California. of District decision route from Hawaii to California. By March 24, 1966, the estates of three of 16, January On operator. plane’s the against lawsuits filed had passengers the 1967, these actions were consolidated before Judge Hauk of the Central of Specific Peril—Disappearances After Airplane Crashes Airplane After Peril—Disappearances Specific of 544 flight’s scheduled arrival date; something has gone wrong; 4) 3) when rescue efforts are called off; and 5) the when it first day becomes a obvious specific that participant circumstances, is the time declared between these legally events dead. can long. be Depending very short on or quite the 10 - J Hauk wrote: wrote: Hauk sought to add Facilities Management Corporation (FMC), the passengers’ employer, as an additional defendant. In upholding FMC’s objection based on the expiration of the two-year SOL applicable to maritime torts, note 105, the SOL for maritime torts was increased to three years in 1980.in years three to increased was torts maritime for SOL the 105, note airplane disappeared during a 1970 flight. 1970 a during disappeared airplane 37333-fiu_10-2 Sheet No. 98 Side B 01/11/2016 08:19:25 B 01/11/2016 98 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 99 Side A 01/11/2016 08:19:25 a pilot disappeared disappeared pilot a 96 , 95 545 545 Vanished Planes Vanished ) 1/4/16 6:38 PM ELETE D OT N O (D DOCX _1.4. . at 745. Justice Matthews, believing the claim was timely, dissented: dissented: timely, was claim the believing Matthews, Justice 745. at . INAL Scharwenka v. Cryogenics Management, Inc. Id _F 394 A.2d 137 (N.J. Super. Ct. App. Div. 1978). In date of his disappearance. Thus, because Mrs. Carman did not file her complaint until April 8, 1985, the statute of limitations had run and her claim was untimely. No injustice limitations period here, particularly results since Mrs. Carman has from offered no enforcement of informed being despite claim her make to 1985 until waiting for excuse the 1977. in so do could she that Prudential by The statute of limitations for actions 09.10.050(1). on The contracts probate is six master years. concluded presumed to AS have died on or about August 7, that 1975, five years from the Mr. Carman was of the occasion selected by decedent’s next of kin to procure an Although petitioner has not overtly contended that the discovery rule ...... rule discovery the that contended overtly not has petitioner Although aver so to impliedly seems she situation, this in relief her giving justifies in arguing that the “acquisition of the enforceable right” did not in this lacks contention That decree. Court Probate the of entry until occur case cogency. The time adventitious. It of could have been procurement delayed vagaries the by displaced be cannot timeaccident the the of of criterion indefinitely. of The statutory the decree was purely On February 25, 1975, the pilot’s widow and infant son filed for New Mrs. Carman would be presumed to have made a demand at the expiration of the six-year limitations six-year the of expiration the at demand a made have to presumed be would Carman Mrs. period which began when death was presumed, August 7, 1975. Thus, the demand date would of be the August presumed 7, 1981. That demand would be deemed brought was action present the Since 1981. 7, August from run immediately to begin would limitations of statute refused and the barred.be not would it 1985, 7, August on 95 96 ARVIS M K . at 746. at . 2015] 10 - J collect on his life insurance policy, his insurer informed her that she had to wait until he had been missing for seven years. In 1985, an Alaska probate court declared the pilot dead and fixed time- his was date claim of her death told as was 1975. but payment The for wife insurer the to again applied then barred. The trial court agreed. On appeal, the Alaska affirmed: Rabinowitz, Supreme Justice Chief Court, per Id Jersey workers’ compensation benefits. Measuring the state’s two-year SOL from the time of the the with agreed Compensation plane’s Workers’ of Division Jersey New The claims. disappearance, the employer opposed their employer, as did Judge Division: Appellate Conford of the New Jersey Superior Court’s whileflying his employer’s Cessna 310J from New Jersey to Massachusetts. Massachusetts a 1973, 12, April on 1972; 9, September on place took trip The dead. pilot the declared court probate C Y 37333-fiu_10-2 Sheet No. 99 Side A 01/11/2016 08:19:25 A 01/11/2016 99 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 99 Side B 01/11/2016 08:19:25 M K C Y [Vol. 10:519 10:519 [Vol. , 1987 WL 15267, WL 1987 , Weiss On July 30, 1986, 1986, 30, July On 99 Based on the FTCA’s 100 notes 13-14 and accompanying text. See supra See . Mooney 97 a Grumman airplane disappeared during a a during disappeared airplane Grumman a . 98 , ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE vel non vel D OT N O (D the government moved to dismiss. In response, the executor DOCX 101 _1.4. . at 139-40. at . INAL Weiss Weiss v. United States According to the complaint, “the decedent’s death was caused by the negligence of Air Traffic 28 U.S.C. § 2401(b). Id _F No. CV-86-3548, 1987 WL 15267 (E.D.N.Y. July 15, 1987). This is the same flight that gave rise to limitations . . . . The statute of limitations of defense the F.T.C.A. to is a valid this action and therefore this court grants defendant’s [W]hen coupled some of victim the fact with in was plane the that reached be must conclusion painstaking efforts to unfortunate catastrophe. In find view of this fact, this court must . . . assume the plane, 1982. metdecedent 12, July the on that with death his the Since the claim for wrongful death arose on July 12, 1982 . . . the possible lastdate which the plaintiff could have brought this action would court the to reasons any give to failed Plaintiff 1984. 12, July been have for his delay in presenting his petition before the Although Surrogate’s the Court. court is aware that the arbitrary, period the court of has no limitationauthority to extend may or narrow seem the period of contention, we find it without merit. Tort actions, death workers’ actions, and compensation proceedings, are purpose, sufficiently distinctive function in differentiation and in effect respect tolling of incidence to of limitation rationally provisions, warrant including the legislative adjudication of death for entirely disparate purposes. purposes. disparate entirely for death of adjudication all at is rule discovery the that deciding, not but assuming, Furthermore, applicable . . . the facts at hand would not bespeak relief for petitioner. knew either have should or petitioner As reasonably indicated, already known, well before a date two years prior to the filing of her claim, the existence of facts equatable with a compensation cause of . . . . death accidental action for Petitioner [also] argues that the limitation period should be tolled as to her infant son until majority . . . . To the extent that we understand the In 97 98 99 100 101 ARVIS found the suit time-barred:suit the found argued the SOL did not begin to run until December 18, 1985, the date on which a New York surrogate’s court declared the pilot legally dead. After considering matters, Judge Constantino of the Eastern District of New York the pilot’s executor filed a lawsuit under the FTCA. the under lawsuit a filed executor pilot’s the two-year SOL, two-year at *1. at Controllers who are employees of the Federal Aviation Administration (F.A.A.).” Administration Aviation Federal the of employees are who Controllers 546 10 - J July 12, 1982, flight from New York to Massachusetts. 37333-fiu_10-2 Sheet No. 99 Side B 01/11/2016 08:19:25 B 01/11/2016 99 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 100 Side A 01/11/2016 08:19:25 102 On February 104 547 547 , 510 U.S. 905 (1993). (1993). 905 U.S. 510 , denied . Vanished Planes Vanished ) 1/4/16 6:38 PM the plaintiff’s son disappeared on March 21, 21, March on disappeared son plaintiff’s the cert 103 ELETE , D OT N O , Civ. a. No. 89-0748(OG), 1991 WL 45734, at *1 (D.D.C. Mar. 21, 1991).21, Mar. (D.D.C. *1 at 45734, WL 1991 89-0748(OG), No. a. Civ. , (D DOCX , 1987 WL 15267, at *2. *2. at 15267, WL 1987 , _1.4. INAL Weiss Heine v. Mynatt Phillips v. Heine 984 F.2d 489 (D.C. Cir.), _F In 12(b)(1) motion to dismiss for lack of subject matter subject jurisdiction. motionof dismiss 12(b)(1) lack to for the time the full nine and one-half months that passed statute, the before of version prior he the that filed note We 1990. 12, December on suit 46 U.S.C. app. § 763 (repealed Pub. provided L. for explicit tolling, No. but extended the 96-382, period for Oct. only 90 days 6, statutory 1980), the extended Congress When event. tolling the of end the after period from two years to three and deleted any reference to tolling, we spent until February 26, 1990, the date upon which the California court declared Brian Phillips dead, was reasonable in order to establish his death. It does not follow, however, that appellant was entitled to three . . . . action the bring fromyears to date that Here the for justifications delay, viewed in the light most to favorable plaintiff, ended no later withoutuntil expire statute, not The 1990. did 26, tolling, any February than the California March court’s 21, 1990. certificate As nothing of had prevented plaintiff from information gathering in the statute the extend to need any was there whether question we remained, preceding years, and at more all. But plaintiff’s reasonable needs surely did not require extending than three weeks 1987, the date upon which the plane disappeared; hence the cause of date. that on run, limitationsto of began statute the and accrued, action In the absence of some congressional intent statutes to of the limitation where contrary, cases are in federal limitations subject of statute the to from plaintiff the the shelters doctrine which of equitable tolling, strict application would be inequitable . . doctrine, saying that the . statute should have been tolled . to account for Appellant invokes the the delay until a conservator had been appointed for the pilot and Brian conservator a of dead. legally declared been had Phillips absence the that case this of purposes the for assume We for the pilot and of a declaration of death for plaintiff’s decedent were appellant time the that assume also We tolling. justifying circumstances In this case, the date of death was indisputably on or about March 21, 102 103 104 ARVIS M K 2015] 10 - J 1987, during a flight in a Piper Cherokee from Malta to Italy. to Malta from Cherokee Piper a in flight a during 1987, 26, 1990, a California state court declared him legally dead. On December 12, 1990, the plaintiff filed a federal lawsuit against the pilot’s conservator District the in Columbia.of movedsuccessfully defendant The dismissalfor due to the three-year SOL for maritime tort actions. On appeal, the District Williams,Judge Columbiaper of Circuit, affirmed: C Y 37333-fiu_10-2 Sheet No. 100 Side A 01/11/2016 08:19:25 A 01/11/2016 100 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 100 Side B 01/11/2016 08:19:25 M K C Y In In 107 108 [Vol. 10:519 10:519 [Vol. a crop duster duster crop a 106 , 105 a couple’s 1978 divorce decree decree divorce 1978 couple’s a 109 , LAIMS C V. ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE D OT N O (D DOCX , 984 F.2d at 491-92 (footnote omitted). (footnote 491-92 at F.2d 984 , _1.4. . at 264. at . Hopper v. Dependable Life Insurance Co. INAL Chiaramonte v. Chiaramonte Phillips Id 615 So. 2d 263 (Fla. Dist. Ct. App. 1993). The court provides no further information about the flight. 435 N.Y.S.2d 523 (Sup. Ct. 1981). _F 1. Spouses 1. In Since Mrs. Hopper brought her action within five years of the accrual of accrual the of years five within action her brought Hopper Mrs. Since her cause of action, the was action of statute cause the that finding of in erred court limitations trial the Accordingly, did not bar the action. judge. probate the by selected death of date the of because barred In doubt it meant to allow plaintiffs more than 90 days from correction of that factor extraordinary some of absence the in least at event, tolling the reasonable. extension an long makeso would When the occupants of a plane go missing, a host of relational rights are are rights relational of host a missing, go plane a of occupants the When In general, a provision in a judgment in a matrimonial action for alimony for action matrimonial a in judgment a in provision a general, In death, husband’s the upon and husband; the of death the survive not does 105 106 107 108 109 ARVIS implicated. Depending on what is at stake, the resulting claims-wrangling may be limited to family members companies. insurance and government,unions, or include such third parties as the Matters Intra-Family A. 1985. The trial court agreed but the appeals court reversed. In its view, the missing been had husband the until run to begin not did limitations of statute for the entire statutory is period, five which years. in As Florida a result, the sue: to 1990 February until had wife September 1988, a probate court found that the presumptive date of death was February 6, 1980. Following this ruling, the wife sued to collect on her husband’s life insurance policy. The underwriter moved to February by brought been have should it that arguing untimely, as dismissed have the case disappeared disappeared during a February 1980 flight from Florida to Colombia. 548 10 - J of the New York Supreme Court explained: SupremeCourt York New the of required the ex-husband to pay $100 a week in alimony and child support. After he disappeared on a 1980 flight from the Bahamas to Florida, his ex- wife sought an order requiring him to keep paying her (so as to be able to attach his assets). In ruling that no further payments were due, Justice Spatt 37333-fiu_10-2 Sheet No. 100 Side B 01/11/2016 08:19:25 B 01/11/2016 100 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 101 Side A 01/11/2016 08:19:25 549 549 112 , 182 N.Y. 408, 75 N.E. 236 (1905); a pilot disappeared during a 1996 flight flight 1996 a during disappeared pilot a a couple disappeared during a 1948 flight flight 1948 a during disappeared couple a 111 , , 42 A.D.2d 590, 345 N.Y.S.2d 73 (2d Dept. Vanished Planes Vanished ) 1/4/16 6:38 PM 113 , , 41 A.D.2d 642, 340 N.Y.S.2d 783 (2d Dept. ELETE D OT N O (D Wilson Wilson v. Hinman DOCX Enos v. Enos _1.4. 110 . at 525. at . *6. at . INAL Id Id In re Walsh’s Estate In re Estate of Pringle 2000 WL 1349231 (V.I. Terr. Ct. July 25, 2000). 223 P.2d 322 (Cal. Dist. Ct. App. 1950). _F the obligation for support and maintenance enforced. ceases and may not be In 2. Children 2. In conducted to assist in the procurement of the divorce. No matter which party initiated the proceedings, procurement. each An absence of participation from either party would have played an active that holds Court the such, As action. Republic Dominican the frustrated role in the both the Petitioner and the Decedent procured the divorce decree. The fact that neither individual was physically present in consequence. no of is Republic the Dominican Even if the Petitioner’s allegations of deception were accepted as true, the Court would still distributive find share of that the she Decedent’s Estate was 87(2) . pursuant . . . barred to [T]he Petitioner voluntarily 15 chose fromto appear in V.I.C. the divorce receiving § action. a In fact, the utilizing Dominican a Republic procedure divorce where both was parties action. obtained The mutually mere by consented presence to of the the is damaging More divorce. Petitioner the of furtherance in act sufficient a at is office the Consul General’s the testimony elicited from the herself. Petitioner She admitted to lying to the Office of the Consulate General in order to obtain the divorce. It is abundantly clear to the Court that such an affirmative act was Rosenberg Rosenberg v. Rosenberg 1973); 1973). 110 111 112 113 ARVIS M K three-year-old who had been living with them in British Guiana, and George, and Guiana, British in them with living been had who three-year-old a five-year-old who they had placed in a with live to went Texas Michael will, husband’s the with accordance institution In disabilities. because of his his paternal George, grandmotheron the in other California. hand, remained institutionalized. over the jungles of British Guiana. They left behind two sons: Michael, a 2015] 10 - J Court wrote: Court from the U.S. Virgin Islands to Dominica. After he was declared dead, estate. his of his share a sought sham, a was divorce 1980 their insisting ex-wife, In rejecting her claim, Judge Steele of the U.S. Virgin Islands Territorial C Y 37333-fiu_10-2 Sheet No. 101 Side A 01/11/2016 08:19:25 A 01/11/2016 101 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 101 Side B 01/11/2016 08:19:25 M K C Y . (“[W]e will [Vol. 10:519 10:519 [Vol. See id 114 opinion: the plaintiff’s ex- plaintiff’s the 116 , per curiam per Autrey v. Harris In In ) 1/4/16 6:38 PM FIU Law Review Law FIU 115 ELETE D OT N O (D DOCX _1.4. . at 326. at . INAL Id 20 C.F.R. § 404.721(b). This period can be shortened as the facts dictate. dictate. facts the as shortened be can period This 404.721(b). § C.F.R. 20 639 F.2d 1233 (5th Cir. 1981). _F and hearing the parties and the witnesses or of applying any of the tests the of any applying of or witnesses the and parties the hearing and may parties the of other the or one appointing of propriety the which by be determined. Appellant “has failed to establish any greater grievance here than she might in any case where the evidence would conclusion support either way but a where the trial court has decided it to weigh more heavily for Riesenberg error.” not is evidence the the of weight the of opposite views permissible party. Such a choice 578. 577, P.2d 218 714, Cal.App.2d 97 Riesenberg, v. between two Subsequently, the boys’ maternal grandmother sought to be named their their named be to sought grandmother maternal boys’ the Subsequently, contrary substitute and court trial the of findings the reject not may We findings. contrary supported have would that evidence is There findings. That the trier of fact seeing of opportunity the have not do We conclusions. his of soundness rejected that evidence does not impeach the Social Security benefits are available after a person has not been seen or seen been not has person a after available are benefits Security Social 1. Social Security Benefits Security Social 1. file federal income tax returns in 1967, 1968 and 1969; (2) a suggestion a (2) 1969; and 1968 1967, in returns tax income federal file that he was trying have may to there that children avoid her and [plaintiff] child the by comments support random payments; and (3) several minorbeen family difficulties. The administrative law judge [accepted the government’s contention that the ex-husband simply ran away based on]: (1) Fisher’s failure to 114 115 116 ARVIS heard from for seven years. use as the person’s date of death either the date he or she left home, the date ending the 7 year period, or death.”).of date likely most the is shows evidence the what upon depending date other some 550 guardian. After the trial court dismissed her petition regarding George for lack of jurisdiction, it granted her petition paternal regarding grandmother Michael. When appealed, the the California affirmed: District Court of Appeal 10 - J B. Extra-Family Matters Matters Extra-Family B. husband disappeared in 1969 while piloting a small plane from Kansas to Nevada. In 1970, the plaintiff applied for surviving child benefits but was turned down by Administration the (SSA) Social on Security the ground her request was premature. In 1976, she reapplied and was turned down again, this time because the SSA felt “unexplained.” The her district court ex-husband’s upheld the SSA’s disappearance decision in was a one-page not a in reversed Circuit Fifth the appeal, On order. 37333-fiu_10-2 Sheet No. 101 Side B 01/11/2016 08:19:25 B 01/11/2016 101 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 102 Side A 01/11/2016 08:19:25 the Eighth Circuit faced faced Circuit Eighth the 118 , 551 551 . In 1980, the plaintiff’s husband was supposed was husband plaintiff’s the 1980, In . Vanished Planes Vanished ) 1/4/16 6:38 PM ELETE D Autrey OT N O (D DOCX 117 _1.4. . at 1235 (footnote omitted). omitted). (footnote 1235 at . INAL Id Brewster on Behalf of Keller v. Sullivan 972 F.2d 898 (8th Cir. 1992). _F In this case, the Secretary argues that he has rebutted the presumption of death by providing “facts” that explain Keller’s “disappearance in a Keller that notes Secretary The life.” continued with consistent manner was under investigation for drug smuggling and had stolen an airplane In 1981 and again in 1984, the SSA denied the plaintiff’s request for In A confidential A informant then confidential reported the plane had crashed while en The plaintiff soon learned that the police had her husband under a as well as grenade a yielded work at locker husband’s the of search A Plainly, these are not sufficient to satisfy the Secretary’s rebuttal burden, burden, rebuttal Secretary’s the satisfy to sufficient not are these Plainly, and are not enough to justify a phony disappearance in conclusion order to change his identity. The burden of the that Fisher engineered a Secretary requires more explanations . . . . Here, the than Secretary did no more than present which mere facts hardly support conjecture a somewhat bizarre conclusion. as The and judgment of certainly the to district speculative court must be reversed, possible remanded and with directions to enter a contrary judgment in favor of the appellant. 117 118 ARVIS M K decision upheld by the district court. On appeal, the Eighth Circuit, per Senior per Circuit, Eighth the appeal, On court. district the by upheld decision reversed: Henley, Judge Circuit route to Barranquilla, Colombia. confirmed that When a DC-3 contacted, with two the Although bodies the plaintiff U.S. had forwarded her gone husband’s dental consulate down records, a near positive made. be not could the match town. After time. third a applied she 1987, In children. two couple’s the for benefits granting this application, the SSA reopened the file and reversed itself, a birth certificate and a witnesses, driver’s on several occasions license the husband with had talked about fake wanting “to Rica.” Costa moveto and all it chuck names. According to facts similar to those in those to similar facts to fly his employer’s DC-3 from San Antonio, undergoing Texas, modifications, where back it to California. had Instead, been after purchasing 800 gallons of fuel, the plane took off from Waco, Texas, and was never again. seen investigation for drug smuggling and a stolen company credit card had been used to pay for the 800 gallons of fuel. She also discovered that during the two weeks before he disappeared, her husband had been seen in Waco with man.another 2015] 10 - J C Y 37333-fiu_10-2 Sheet No. 102 Side A 01/11/2016 08:19:25 A 01/11/2016 102 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 102 Side B 01/11/2016 08:19:25 , , M K C Y see , 619 , Brown v. Brown Secretary v. [Vol. 10:519 10:519 [Vol. See Autrey v. Harris v. Autrey See , 659 F.2d 59 (5th Edwards v. Califano v. Edwards , 607 F.2d [1178,] at 1178 [(6th . , 737 F.2d [278,] at 280 [(2d Cir.1984)] See id See ) 1/4/16 6:38 PM FIU Law Review Law FIU See Wages v. Schweiker ELETE D OT N O Johnson v. Califano (D DOCX , 723 F.2d 1135, 1137-38 (3d Cir.1983) (husband disappeared _1.4. Mando Mando v. Secretary , 368 F.2d [389,] at 389 [(9th Cir.1966)] (evidence suggesting that suggesting (evidence Cir.1966)] [(9th 389 at [389,] F.2d 368 , INAL , _F We also believe little weight should be given to Keller’s statements that that statements Keller’s to given be should weight little believe also We Rica.” Costa to move and all it “chuck to wanted he and credit card. He also notes that a grenade and fictitious identification identification fictitious and grenade a that notes also He card. credit and were found in Keller’s possessions Rica. Costa in live to desire statementsa Keller’s expressing in California and further notes We disagree that these “facts” are to sufficient rebut the presumption that Keller is dead. As evidence Brewster that Keller was aware points of the drug out, investigation or had taken the that record indicate record the does Nor Texas. to identification fictitious other reveals no theft alleged the with connection in filed been ever had charges criminal . . . . card credit and airplane the of (husband disappeared one week before sentencing on gun conviction, time”); long a for away go might he “that wife his telling after Heckler and later wrote wife that he was leaving country and had changed his themfind distinguishable. we but nameidentification), and We further note disappearances, we believe there is strong circumstantial evidence that that in Keller is dead. A this DC-3 airplane with two bodies, case, which were burned beyond unlike recognition, had many crashed near Barranquilla, unexplained which was South where a confidential America,informant had advised the police the 639 F.2d at 1235 (failure to file income tax returns coupled with random with coupled returns tax income file to (failure 1235 at F.2d 639 comments regarding marital presumption). difficulties Moreover, we find the insufficient Secretary’s scenario engineer to whichorder in to occupants two with airplane the up blowing has Keller overcome “a phony disappearance conclusion.” speculative . . . Our a review of the applicable caselaw somewhatprovides further support for our bizarre conclusion and that certainly in this presumption case of the death. Secretary has failed to rebut the order and withdrawal of funds from bank account insufficient to rebut presumption); Cir.1981) (wage earner’s disappearance after receiving spousal support Cir.1979)] (evidence of presumption); rebut to wage insufficient difficulties earner’s severe marital F.2d [865,] and at 865 [(10th career Cir.1980)] (evidence that wage alive earner was four years after abandoning Meza family insufficient); wage earner was insufficient). attempting to We note there are cases in have which courts found that the Secretary avoid child had produced sufficient evidence support to rebut a presumption of death, payments e.g. ARVIS 552 10 - J 37333-fiu_10-2 Sheet No. 102 Side B 01/11/2016 08:19:25 B 01/11/2016 102 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 103 Side A 01/11/2016 08:19:25 553 553 . at 904. at . See id See the plaintiff’s husband disappeared in in disappeared husband plaintiff’s the 120 , Vanished Planes Vanished ) 1/4/16 6:38 PM 119 ELETE D OT N O (D DOCX _1.4. . at 902-04 (footnotes omitted). Believing the case should have been remanded for further INAL Id Perez-Sordo v. Heckler No. 82-1134-CIV-CA, 1984 WL 145983 (S.D. Fla. July 13, 1984). _F In airplane could be found and corroborates the information Brewster had May1980. in reported and heard Accordingly, the judgment is reversed and the case is remanded to the district court with instructions to remand to the Secretary for an award benefits. children’s of mention by anyone else of such involvement. The wives also reported a a reported also wives The involvement. such of else anyone by mention which returning were men the that stated caller the but call, mysterious they never did. This can .” . . . evidence hardly be said to Christmasthe for back expected was and Perez-Sordo holidays Alberto constitute “substantial up put to arrival his for wait to Perez-Sordo, Maggie wife, his asked had the plane, had taken off, had issued a distress, and had never returned. Both wives stated that there was simply no reason for disappear. Each had either had no man marital or to financial problems. No one has unnatural most be to Court this to appears It since. man either seen ever wife his only not abandoned completely have to Perez-Sordo Alberto for but his three children. Similarly for the other occupant Roberto of Hernandez, the plane, as to his daughter children by a and prior marriage two (T. 340). The step-sons only evidence and which even two hints at the continued survival of the men is in message the this took Security FAA Social Though involvement. note CIA possible regarding a phone contact, there is no follow-up at all on it, nor is there any In the instant case, a thorough review evidence substantial no is there of and exists death of evidence substantial the record establishes that upon which the Secretary that can the base wage a earner finding is not dead. The probate court heard evidence, made extensive findings, and determined that plaintiff had died. The insurance companies paid out large sums of money in reliance upon Perez-Sordo’s death. The wives of the lost conducted men their [Perez-Sordo and documentation own by corroborated were These findings. and conversations co-pilot investigation, Roberto and in Hernandez] the file[,] which established both that Perez-Sordo had been hired to fly testified to their 119 120 ARVIS M K 2015] 10 - J proceedings before the SSA, Judge Hansen dissented.Hansen Judge SSA, the before proceedings When When the plaintiff took reversed: be SSA’sshould the decision concluded the SSA to court, Magistrate Judge Shapiro 1978 while piloting an Aerocommander from Liberia, Costa herself of behalf on benefits Rica, survivors’ sought she 1979, In Rica. Costa Jose, to San proof. sufficient of lack for claim her denied twice SSA The children. her and C Y 37333-fiu_10-2 Sheet No. 103 Side A 01/11/2016 08:19:25 A 01/11/2016 103 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 103 Side B 01/11/2016 08:19:25 M K . at . C Y See id See [Vol. 10:519 10:519 [Vol. , 691 F.2d 966, 970-71 (11th , 496 U.S. 936 (1990). (1990). 936 U.S. 496 , denied . a fact the plaintiff eventually learned on her her on learned eventually plaintiff the fact a ) 1/4/16 6:38 PM FIU Law Review Law FIU cert the plaintiff’s ex-husband disappeared during a a during disappeared ex-husband plaintiff’s the 124 In 1980, she contacted her local SSA office and and office SSA local her contacted she 1980, In ELETE 122 123 , D OT N O (D See Simpson v. Schweiker note 115 and accompanying text. 121 DOCX 125 , 886 F.2d at 100. 100. at F.2d 886 , _1.4. . at *4. The district court subsequently accepted Judge Shapiro’s recommendation. Shapiro’s Judge accepted subsequently court district The *4. at . INAL See supra See Duthu Id Duthu v. Sullivan v. Duthu 886 F.2d 97 (5th Cir. 1989), The court’s opinion does not indicate the trip’s starting point. _F rule . . . that a government employee’s misinformation and ineptitude will not estop the government from a requiring written for application benefits. We We cannot escape the fact, however, that Mrs. Duthu did not written file a application for benefits until December 1985. Although failure her to file the waste a and futile application be would filing that effect the to statements erroneous is explained by the SSA of employees’ time, there is no contention here that specific the request SSA to actually make refused a a written application, which have conduct might constituted the sort assertion of the doctrine of estoppel. As sympathetic as we are to of Mrs. affirmative Duthu’s misconduct position, we find that the blunders of required the SSA employees . . . for were simply not of the character to overcome the well-established The SSA ruled that James was eligible for benefits but only from 1985 their Christmas tree; also, Mrs. Perez-Sordo had given her husband a list list a husband her given had Perez-Sordo Mrs. also, tree; Christmas their of gifts to purchase in San Jose, Costa Rica . . . . The wage earner absence cannot of be deemed the to be considered unexplained. A plane flew off into the wild blue yonder. There is no evidence to show that it returned. The occupants never returned and have not decision been the heard from. reasons, these all For sea. the of depths the in lost were They of the Secretary must be evidence.” reversed as unsupported by “substantial In Cir.1982). 121 122 123 124 125 ARVIS 1979 flight to Venezuela. inquired about applying for benefits. On that occasion, as well subsequent ones, she as was told that without several proof of her ex-husband’s death she would have to wait seven years. In actuality, the SSA’s regulations on this point are quite flexible, appeal, the Fifth Circuit, per Judge Gee, affirmed:Gee, Judge per Circuit, Fifth the appeal, own. Accordingly, in 1985 she submitted written applications on behalf of children. two couple’s the Kelly, Jamesand onwards. As for Kelly, it determined she had “aged out” and therefore was not entitled to any benefits. After these decisions were upheld by the SSA’s Appeals Council, the plaintiff took the government to court but lost. On 554 10 - J *1. 37333-fiu_10-2 Sheet No. 103 Side B 01/11/2016 08:19:25 B 01/11/2016 103 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 104 Side A 01/11/2016 08:19:25 a a 128 , 127 555 555 . If you cannot obtain the preferred evidence preferred the obtain cannot you If . Vanished Planes Vanished ) 1/4/16 6:38 PM the plaintiff’s husband and a friend flew from from flew friend a and husband plaintiff’s the 126 , ELETE D OT N O (D DOCX _1.4. . at 1438-39 (emphasis in original; footnote omitted).footnote original; in (emphasis 1438-39 at . INAL Other evidence of death of evidence Other Id McKee McKee v. Sullivan Estate of Kowalski v. Iron Workers Local No. 25 Pension Fund 903 F.2d 1436 (11th Cir. 1990). No. 07-11014, 2008 WL 375208 (E.D. Mich. Feb. 12, 2008). _F that this regulation requires direct argues evidence that the of example does death. not foreclose the Mrs. consideration of McKee other report. NTSB the and decision court probate the as such evidence that conclude we regulation, the of language plain the of reading a From the district court in and not the considering ALJ the probate erred court decision and the NTSB report. We agree with example Mrs. provided in McKee the regulation is that merely illustrative the and does not preclude the consideration of other evidence. The plain meaning of the term “other convincing evidence” includes either direct any or circumstantial . available . . . The evidence, Secretary’s argument that the regulation only provides for direct evidence does violence to both the commonto and sense. regulation the meaningof plain The SSA denied the applications on the basis that there was no proof provides: 404.720(c) § C.F.R. 20 (c) of a person’s death, you will be more asked or two to of statements explain signed the why as: such and evidence convincing to other give us and date, place, the giving death, the of knowledge personal with people death. of cause Directing our attention to the example provided, the Secretary argues On On January 24, 1986, the plaintiff filed a petition for a declaration of In 2. Pension PaymentsPension 2. In 126 127 128 ARVIS M K for herself and her children. her and herself for that the plaintiff’s husband was dead. After this decision was upheld by the SSA’s Appeals Council and the district court, the plaintiff appealed to the Anderson: Judge by opinion an in reversed which Circuit, Eleventh their Cessna disappeared off the coast of Jacksonville. A week-long search men.the or Anplane the either NTSBof trace regarding no report up turned the loss referred to the plane as “presumed destroyed” and the occupants as “presumeddead.” letters granted was she 1986, 7, August On court. probate Georgia a in death of administration. On August 13, 1986, she applied for survivors’ benefits Georgia to Florida to go fishing. On January 14, 1985, while returning home, returning while 1985, 14, January On fishing. go to Florida to Georgia retired steelworker disappeared in 1999 while flying his private plane from Iron County, Michigan to Oakland County, Michigan. In 2000, his family 2015] 10 - J C Y 37333-fiu_10-2 Sheet No. 104 Side A 01/11/2016 08:19:25 A 01/11/2016 104 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 104 Side B 01/11/2016 08:19:25 M K C Y . at *1. at . a soldier soldier a [Vol. 10:519 10:519 [Vol. 130 , See id See , 868 F.2d 929, 936 (7th Cir. (7th 936 929, F.2d 868 , , 153 F.2d 224 (3d Cir. 1946). Cir. (3d 224 F.2d 153 , aff’d mem. aff’d ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE D OT N O Smart v. State Farm Ins. Co. Ins. Farm State v. Smart (D 129 DOCX _1.4. . at *3-4. The district court accepted Judge Whalen’sJudge accepted recommendation. court district The *3-4. at . INAL Barringer v. Prudential Insurance Co. of America Id 62 F. Supp. 286 (E.D. Pa. 1945), _F In 3. Insurance Proceeds Proceeds Insurance 3. permission to open an estate in early 2000. early in estate an permissionopen to Under the “arbitrary and capricious” standard of review, the Fund need only “articulat[e] a rational connection between the facts found and the made.” choice 1989). It did so when it denied the benefits claimed by Mr. Kowalski’s denial final the argument, Plaintiff’s the to contrary Furthermore, estate. (AR 1-3) clearly considered and took into account the Court opinion, 2005 and articulated Probate a rational and legally correct reason for it. rejecting nature of the death certificate, the question is whether rational the grounds Fund to had find that Mr. Kowalski’s February 9, 2005, but on death or about November 12, 1999, when his occurred plane not on . . . . disappeared In the present case, there is clear evidence that well before February 9, 2005, Mr. Kowalski encountered a specific peril that might reasonably be expected to have caused his death. His plane took off on November 12, 1999, and was never heard from again. It did not land in Oakland County, his intended destination. As the probate judge noted, circumstantial evidence this of a fatal is accident. Moreover, Mr. Kowalski’s family—the personal representatives of the rational estate, and people—believed presumably that he was dead, since they sought Upon his retirement in 1993, the decedent had begun collecting a union a collecting begun had decedent the 1993, in retirement his Upon Given the rebuttable statutory presumption and the non-conclusive In an attempt to avoid the clause, the wife insisted there was no proof 129 130 ARVIS disappeared in 1943 while flying from Puerto Rico to Trinidad in an Army insurer the policy, insurance life his on collect to sought wife his When C-47. provision, this Under triggered. been had rider” “aviation policy’s the argued if the insured died while riding in an airplane the payout would be reduced reserve. net its to value face frompolicy’s the 556 sought to have him declared legally dead, but the Iron County probate court familythe submittednew 2005, petition, a In premature. deemedrequest the 2005. 9, February as death of date the fixed and granted was which pension. After he disappeared, this money stopped. As a result, in 2005 the family requested 62 months of back checks. When the union refused to pay, the family took it to court. Magistrate Judge Whalen of the Eastern District dismissed: be should suit the Michiganconcluded of 10 - J 37333-fiu_10-2 Sheet No. 104 Side B 01/11/2016 08:19:25 B 01/11/2016 104 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 105 Side A 01/11/2016 08:19:25 , 335 U.S. 830 denied . cert 557 557 Smith v. Massachusetts MutualMassachusetts v. Smith , 167 F.2d 992 (5th Cir.), Vanished Planes Vanished ) 1/4/16 6:38 PM also gave rise to reh’g denied 131 ELETE D OT This time, the airman’s wife sought to avoid the the avoid to sought wife airman’s the time, This N O 132 . (D Barringer , 62 F. Supp. at 288. at Supp. F. 62 , DOCX _1.4. INAL Barringer 167 F.2d 990 (5th Cir.), Cir.), (5th 990 F.2d 167 _F the acceptance without conditions of a debt due on the policy would not would policy the on due debt a of conditions without acceptance the prejudice the Company. It is entitled to this payment in any event. need It not accept premiumssimply will policies The if years. itseven the after fears till be an need or estoppeloffered now therefrom. None are The established. is death till are normally policies life as suspense, in be trial has demonstrated that the Company has no evidence save the War The appellee puts forward, indebtedness as the tendering the is Smith Mrs. reasons that now, judgment why declaratory it should be given a against the policies and if automatically the carry the premiums till February, 1950, more tender than seven is accepted the years from the reserves insured’s death (meaning his disappearance), and if said will estop likely will it accepted, are premiums any if or accepted, is payment it to claim the amendment it was further alleged that appellee might lose aircraft its evidence Surely weighty. provision, are fears these of None disappear. might to witnesses its or its irreparable damage. By insured’s death resulted from riding in an airplane. possible Again, theories which there might are account for his death otherwise as, for example, gunfire from a German Certainly, if submarine, it be but taken as established they that, having are been airplane riding remote. which in an fell into the sea and insured was lost is with dead, all it on seems board, the to reasonable and melogical to conclude that that he met his it death as a result is of not airplane. the in riding only permissible but Various more or less fantastic explanations of disappearance of plane and passengers might be suggested but, with practically no land on the direct route to Trinidad, I do not see how there could be much doubt in the mind of any reasonable person that it came down in the sea. At any precludepossibilities. to other necessary all not is it rate If the plane fell into the sea then, again, the reasonable, probable and the that is accident, the of nature fromthe conclusion, almostnecessary The flight in flight The 131 132 ARVIS M K airplane). In permitting this strategy (and thereby reversing the trial court), observed: Sibley, Judge per Circuit, Fifth the aviation rider by keeping his two policies in force until he could be declared an in perishing to opposed (as absence prolonged of basis the on dead legally 2015] 10 - J (1948). the insured had died while riding in an argument:this of made work Pennsylvania short of District Eastern airplane. Judge Kilpatrick of the Life Insurance Co C Y 37333-fiu_10-2 Sheet No. 105 Side A 01/11/2016 08:19:25 A 01/11/2016 105 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 105 Side B 01/11/2016 08:19:25 M K C Y reh’g [Vol. 10:519 10:519 [Vol. Boye v. United States Life Insurance , 335 U.S. 828 (1948). (1948). 828 U.S. 335 , , 344 U.S. 823 (1952). (1952). 823 U.S. 344 , denied . ) 1/4/16 6:38 PM FIU Law Review Law FIU denied . cert ELETE D cert OT N O (D Massachusetts Mut. Life Ins. Co. v. Smith, 193 F.2d 511 (5th Cir. 1951), See was distinguished in in distinguished was DOCX 133 , 167 F.2d at 991-92. Several years later, the insurance company filed a new declaratory _1.4. INAL Smith 168 F.2d 570 (D.C. Cir.), _F The insured’s B-17 disappeared during a 1944 bombing run from from run bombing 1944 a during disappeared B-17 insured’s The Barringer event was rather like the The Trinidad. one and Rico in Puerto between disappeared the insured the Knouse carrying case. An army airplane court duly [in]ferred that it fell into if recovery allowed the have would it that effect in said sea, court The recovery. and accordingly denied there had been reason to believe that an enemy submarine had shot the resulted from a risk of war that the policy did not exclude and not from much is case the Wethink exclude. did policy the that aviation of risk a riding or operating to death “due excluded had policy the if sameas the in an automobile” and the insured had been armyan car. driving killed by gunfire while In Knouse v. Equitable Life Ins. Co. of Iowa, 163 Kan. 213, 181 P.2d 310, 311, on which appellee relies, . . . the insured was not gunfire killed but by by jumping from a bomber whose gasoline supply had run out during a mission. Recovery on the policy was of course denied. In Barringer v. Prudential Ins. Co., D.C., 62 F.Supp. 286, affirmed 3 Cir., 153 F.2d 224, the exclusion clause was like the one before us but the The exclusion clause in [this] suit is headed “Aviation Exclusion.” If Lieutenant Boye’s death resulted directly or indirectly from gunfire, as the District Court thought and we think it probably did, we think it inconveniences there is no need now for a declaratory judgment, and that the complaint should be dismissed without prejudice, at the cost of appellee. Department records, and testimony is no now preserved by this trial should these witnesses die. On oral is husband Her evidence. testimony important acquire may she side, Smith’s Mrs. of importance. This not yet known to be dead nor so presumed by any law binding on her. She may learn that her husband, if dead, did not die by reason of airplane trip, but the survived it and died from other causes. She ought not answer cannot she known is it when now, judicata res a into hurried be to the circumstances which do indicate death from riding in an airplane, but not at all conclusively. We are of opinion that on a just balance of , 194 F.2d 1006 (5th Cir.), (5th 1006 F.2d 194 , 133 134 134 ARVIS . Co England to Germany. When the beneficiaries of found court trial The rider. aviation the his invoked insurer the collect, to sought life insurance policy for the insurer, but the District of Columbia Circuit, reversed: per Judge Edgerton, 558 10 - J action and lost again. denied 37333-fiu_10-2 Sheet No. 105 Side B 01/11/2016 08:19:25 B 01/11/2016 105 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 106 Side A 01/11/2016 08:19:25 a U.S. Navy pilot pilot Navy U.S. a a U.S. Air Force pilot 136 , 138 , 559 559 Vanished Planes Vanished ) 1/4/16 6:38 PM ELETE D OT N O (D 135 137 DOCX , 168 F.2d at 570-71. at F.2d 168 , _1.4. . at 463. at . INAL Heikes v. New York Life Insurance Co. Boye Id 171 F.2d 460 (8th Cir. 1948). 84 N.W.2d 513 (Mich. 1957). Wadsworth v. New York Life Insurance Co. Insurance Life York New v. Wadsworth _F In plane down. plane In Reviewingthe record ofthis case, canwe think offew circumstances in clearly more were decision prompt and truth unvarnished the where life called for than in the solicitation and processing of Captain insured to keep the policy in force until the time of his death. Had the insured failed to do so, the plaintiff could have recovered nothing from insurer. the The plaintiff in the instant case, we think, has completely failed to prove to failed completely has think, we case, instant the in plaintiff The expressed was which that than contract different a made insured the that policy. the in The inaccurate statement made by the agent of the insurer, more than a year after the policy was issued, to subject the to no restrictions, is, effect in our opinion, that of no help to its the plaintiff. coverage was There was no evidence that his of terms the the of knowledge with insured charged was he since and, was statement, actually misled by this policy, he could not reasonabl[y] be held to have been deceived. The agent was probably referring to the policy as a straight life policy and did not have in mind its double indemnity feature. The only effect that the induce to was had have possibly could agent the of misstatement the 135 136 137 138 ARVIS M K 2015] 10 - J the judgment and remanded for a new trial: new a judgmentremandedthe and for stationed filled had in he States, United Japan the in leave disappeared bereavement on while earlier, during months a 1951 combat mission. out an application for Several a general life insurance policy. When his wife sought to collect, the insurer told her that it had declined the application and instead made a counter-offer that would have added an aviation rider exclusion clause to and the policy. In the a resulting lawsuit, the trial judge war found vacated Edwards, Justice per Court, Supreme Michigan the but insurer the for disappeared disappeared during flight a off 1943 the training Two coast years of Florida. earlier, he had taken out a $2,500 claim, life a submitted insurance wife his policy When with provision. indemnity the double a defendant included that the insurer refused to pay due to the policy’s clause. Alleging aviation mistake rider and and fraud, war the risk wife sued the insurer but court the dismissed trial her complaint. On appeal, the affirmed: Sanborn, Eighth Circuit, per Judge C Y 37333-fiu_10-2 Sheet No. 106 Side A 01/11/2016 08:19:25 A 01/11/2016 106 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 106 Side B 01/11/2016 08:19:25 M K C Y a plane plane a 140 , [Vol. 10:519 10:519 [Vol. 139 the insured, a Delta Air Lines 142 , , 231 F.2d 347 (4th Cir. 1956). 1956). Cir. (4th 347 F.2d 231 , aff’d ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE D OT N O 141 (D , 231 F.2d at 352-53. at F.2d 231 , DOCX . at 520. at . _1.4. at 519-20. Justice Sharpe, believing the insurer had properly rejected the application, INAL Id. Commander Fidelity and Casualty Co. of New York v. Commander 135 F. Supp. 59 (W.D. Va. 1955), 506 F. Supp. 1332 (N.D. Tex. 1981). See id See Griffith v. Continental Casualty Co. Casualty Continental v. Griffith _F notice was given, under the provisions of the policy and the Virginia possible.” “reasonably was as accident the after soon as Statute, The District Judge stated: “I circumstances, have found the as notice a fact was possible.” This overturn finding only of if fact we we hold can that it is that, given under the as soon clearly erroneous. We cannot so hold. as The circumstances distinctive of and this peculiar case, a was up make opinion, this in earlier detail in reasonably out set pattern. Under that pattern, we must sustain this factual finding of the Court. District It is quite clear that notice of the accident specific 20 was days set not out both in given the Virginia within Statute and the in the policy, whether arises then question The Statute. this with conform to extended In Wadsworth’s Wadsworth’s application for life insurance. Sympathy for his widow should not occasion court imposition of a life insurance contract which is not justified by the actions of the should parties of use judicial themselves. of duties But twin recoil companies neither insurance life on from imposes law Michigan sentiment occasion our forgetting language which that is clear and understandable to laymen and reasonable . . . . risk the of rejection or promptnessacceptance in In 139 140 141 142 ARVIS Massachusetts to Provincetown, Massachusetts. The plaintiff’s husband, who who husband, plaintiff’s The Massachusetts. Provincetown, to Massachusetts was a passenger aboard the flight, disappeared in the mishap and was never seen again. On September 1, 1953, the plaintiff, having traveled from couple’s home the in Virginia to Provincetown, where she conducted her to own sought drowning, from died likely most husband her concluded and search collect on an insurance policy he machine. Insisting had it brought had not from received an timely notice airport insurer declined of to pay. The vending trial court the rejected this defense. On accident, appeal, the the affirmed: Dobie, Judge per Circuit, Fourth made made a forced water landing during a July 8, 1953, trip from Boston, to Florida. When his father sought to collect on his Delta group life insurance life group Delta his on collect to sought father his When Florida. to the clause, coverage” “air policy’s the Citing rejected. was request the policy, the disappearance, his of time the at because, liable not was it argued insurer insured had been neither an nor airplaneworking as passenger a Delta flight pilot, disappeared in 1975 while flying his personal Beechcraft from Texas 560 10 - J dissented. 37333-fiu_10-2 Sheet No. 106 Side B 01/11/2016 08:19:25 B 01/11/2016 106 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 107 Side A 01/11/2016 08:19:25 561 561 a physician and his wife disappeared 144 , Vanished Planes Vanished ) 1/4/16 6:38 PM ELETE D OT N O (D , also is a “passenger.” Judge Sanders of the Northern DOCX 143 _1.4. Since, in its inception, liability insurance was intended solely for the benefit and protection party a not was who plaintiff, of injured the that followed it the tortfeasor, insured, which is to say to the contract, the had at common law no direct remedy against the company.insurance . at 1336-37. at . INAL a fortiori Id 627 P.2d 649 (Alaska 1981). Severson v. Severson’s Estate Severson’s v. Severson _F Prosser explains that rule as follows: as rule that explains Prosser We We are aware of only two states which allow a direct cause of action against a tortfeasor’s insurer, Louisiana and Wisconsin. In those states, however, such actions are Elsewhere, the expressly common law authorized rule of no by direct liability prevails. statute Dean . . . . member member of any aircraft owned, leased or operated by [Delta] . . Plaintiff asserts . that .” the coverage afforded in the first instance in this provision encompasses Griffith’s death; to this interpretation of end the phrase, he “riding as espouses a passenger” an which includes a . . . within. pilot scope its The facts clearly indicate and the Court finds that Court Lee the R. Consequently, Griffith airport. was Dallas the left it when plane his piloting concludes that he was not riding disappearance, as and that a his disappearance was passenger not covered at within the the time “Air Coverage” provision of It the followspolicy. that Exclusion (5) in of his Part IX applies and that policy. Plaintiff is not entitled to recover on the Although Although the plaintiff conceded the second point, he insisted that a Plaintiff contends that if Griffith did aircraft, indeed his die death while was riding covered under in Part an provision. VIII, Under this provision, the insured the was covered while “riding “Air Coverage” as a passenger in any aircraft properly licensed to carry passengers and while Insured Employee is operating or performing duties as a crew In 143 144 ARVIS M K in 1978 while the wife was flying the couple in their personal Homer, plane from Alaska to Anchorage, Alaska. The husband’s estate subsequently sued the wife’s estate for wrongful Whendeath. it later attempted to add the Alaskan that ground the on objected insurer the defendant, a as insurer wife’s law bars direct action suits against liability insurers. The Alaska Supreme agreed: Burke, Justice per Court, 2015] 10 - J crew member.crew “pilot,” otherwise: found Texas of District C Y 37333-fiu_10-2 Sheet No. 107 Side A 01/11/2016 08:19:25 A 01/11/2016 107 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 107 Side B 01/11/2016 08:19:25 M K a a 147 C Y 146 , [Vol. 10:519 10:519 [Vol. Congleton v. National Union ) 1/4/16 6:38 PM FIU Law Review Law FIU was relied on in in on relied was ELETE D In 1980, a couple’s plane disappeared from a a from disappeared plane couple’s a 1980, In OT N 148 Compass O . (D 145 DOCX _1.4. Prosser on Torts, § 82 at 544 (4th ed. 1971). 1971). ed. (4th 544 at 82 § Torts, on Prosser . at 651 (footnote and citation omitted). omitted). citation and (footnote 651 at . omitted). (citations 518 at . INAL Id Id Compass Insurance Co. v. Palm Beach Lakes Aircraft, Inc. 399 So. 2d 517 (Fla. Dist. Ct. App. 1981). 234 Cal. Rptr. 218 (Ct. App. 1987). _F proper for the trial court to disbelieve it. Notwithstanding rejection of the plaintiff’s evidence concluded regarding there a was crash, . . . . disappeared the coverage In court motion. in while because aircraft the to . . . applied [policy] The We reverse. apparently the plane the instant case, had there was absolutely no proof which was . accepted . by . in . motion in while aircraft the to happened anything that court trial fact the Here, at best, plaintiff proved that the whereabouts of the plane were unknown. . . In . . the coverage absence the of within proof risk a of prove takeoff to or failed that simply the plaintiff plane motion, was in The trial judge rejected the officer’s story but found that coverage announced that he did At not a non-jury believe the trial, the trial judge evidence that the plane had been crashed into the ocean. This evidence was severely impeached and indeed plaintiff concedes it was perfectly The holding in Despite Despite petitioner’s argument, we are not persuaded that we recognize a direct should cause of action against the insurer in the case at bar. AS 01.10.010 provides: “So much of the common law not inconsistent with the of Constitution the State of Alaska or the of Constitution the United States or with any law passed by the legislature of the State of As the is common law in noted, Alaska the state.” rule of this decision on this subject is clear and overwhelmingly contrary to the rule urged petitioner. by In 145 146 147 148 ARVIS corporate-owned plane disappeared in 1978. In plane the crashed accidentally he a claimed officers company’s the sworn of one trial, statement before disappeared. makingstatement,officer after this the Shortly ocean. the into existed under the plane’s insurance policy. On appeal, Court the Florida of District Appeal, per Judge Beranek, second: his not but conclusion agreed with the trial judge’s first Tennessee airport. The insurer, suspecting fraud, disclaimed coverage. When coverage. disclaimed fraud, suspecting insurer, The airport. Tennessee the couple sued, the insurer successfully moved for summary judgment. On appeal, the California Court of Appeal, affirmed: per Associate Justice Arguelles, Fire Insurance Co 562 10 - J 37333-fiu_10-2 Sheet No. 107 Side B 01/11/2016 08:19:25 B 01/11/2016 107 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 108 Side A 01/11/2016 08:19:25 (Fla. App. App. (Fla. the plaintiff plaintiff the 150 , After collecting collecting After 151 149 563 563 Vanished Planes Vanished ) 1/4/16 6:38 PM ELETE D OT N O Compass Ins. Co. v. Palm Beach Lakes, etc. (D DOCX _1.4. . at 223-24. at . INAL Id J & B Slurry Seal Co. v. Mid-South Aviation, Inc. 362 S.E.2d 812 (N.C. Ct. App. 1987). The court’s opinion provides no further details about the plane’s disappearance. _F In “In the absence of proof of takeoff or that plaintiff the plane simply was in motion, failed to above prove . . . .” a ( risk within the coverage stated Unable to show that a theft actually occurred—or even that someone wrongfully took interpretation of “disappearance” possession—appellants that is inability to locate the aircraft. Such an interpretation synonymous would be in clear essentially with a mere derogation of an express urge policy definition of “disappearance,” a term used an in an insuring in a case, where in similar Additionally, an clause an insuring aviation clause rather than in policy an purported to cover “All Risks exclusionary While In Motion” and clause. contained language similar to that in appellants’ policy here, the court held that, Plaintiff’s status as partial assignor and a real party in interest turns on those includes which loss, entire plaintiff’s of extent factual disputed the immediate submission of their circumstances could be said to reasonably raise respondents’ eyebrows claim to respondents claim.the considering in under these Accordingly, we find that appellants’ failure to sustain their burden of producing evidence of their aircraft’s “disappearance” so as to invoke coverage under the policy entitled here. circumstancespresented the under coverage respondents reasonably to deny 1981) 399 So. 2d 517, particularly compelling here because the aircraft 518.) was reported missing Application of within this a interpretation few is weeks after apparently the made no showing of what efforts, if any, they undertook policy on was procured, and appellants their own to investigate the facts and circumstances surrounding mysterious disappearance of the a plane they had recently purchased for almost a quarter of a million dollars and immediately leased smuggling and drug both then for investigation under already people to subleased Appellants’ . . . . aircraft other of disappearances mysterious similar and 149 150 151 ARVIS M K leased one of its planes to the defendant. When it disappeared, possibly as a result of theft, the plaintiff filed a claim with its insurer. 2015] 10 - J on the ground the plaintiff lacked motion, but standing. the North The Carolina Court of trial Appeals, in an judge opinion by granted Judge remanded:and reversed Greene, the $600,000, the plaintiff, contending that its losses totaled $1.25 million, sued the defendant for the remaining $650,000. The defendant moved to dismiss C Y 37333-fiu_10-2 Sheet No. 108 Side A 01/11/2016 08:19:25 A 01/11/2016 108 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 108 Side B 01/11/2016 08:19:25 M K C Y [Vol. 10:519 10:519 [Vol. an Esso employee employee Esso an 153 , After his minor son son minor his After 154 ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE D OT N O (D On appeal, the guardian for the first time argued that that argued time first the for guardian the appeal, On 155 DOCX 152 _1.4. . at 822. Although he concurred in the result, Judge Phillips did not join the majority because majority the join not did Phillips Judge result, the in concurred he Although 822. at . INAL Id 56 V.I. 558, S. Ct. Civ. No. 2010-0025, 2012 WL 1353527 (V.I. Apr. 12, 2012). The court’s opinion provides no further details about the flight. 29 U.S.C. §§ 1001-1461. Benjamin v. AIG Insurance Co. Benjamin of v. Puerto AIG Rico Insurance _F losses neither covered by nor compensated under plaintiff’s insurance contract with Insurer. Therefore, we reverse the trial court’s summary interest in party real a of lack for claims plaintiff’s dismissing judgment and remand the case for further proceedings not inconsistent with this opinion. arguments to the Superior Court in her dismiss, opposition or in to any subsequent filings, the and, in motion fact, raises to them for the first time on appeal. Generally, we consider all arguments made for the the offering party the unless waived as cases civil in appeal on time first argument presents exceptional circumstances . . . . Benjamin has presented not us with any exceptional circumstances to warrant we Therefore, deviation arguments. three first her of any for rule general this from merits.their reach not do and argumentswaived these consider As her fourth argument, Benjamin impermissiblydocuments insurance life determinedthe to that attached argues three all that unlike that, note We . . the . . plan ERISA an Superior up made complaint the Court Benjamin begins her Appellant’s brief with three arguments: (1) that the that (1) arguments: three with brief Appellant’s her begins Benjamin Superior Court’s order granting the motion to affirmative dismiss defense of based preemption on was improper, the because affirmative defenses cannot be the basis of a grant of a motion for judgment on the ERISA an raise can that entity of kind the not is Esso that (2) pleadings; defense; and (3) that the claims in the complaint are claims not preempted the by kind ERISA. of However, Benjamin never raised these In [N]o further findings are necessary because the materials before plaintiff assigned to the its insurance company only court that part of its indivisible clearly claim that company the insurance insurance establish the and action that the to party necessary a still is plaintiff thus and for, paid company party. either of motion the at joined be can 152 153 154 155 ARVIS . at 823. at . disappeared in 1994 while piloting an airplane. 564 10 - J he felt the record was sufficiently complete:sufficiently was record the felt he Id ERISA was inapplicable. Finding that the issue had been waived, the Virgin court: trial the affirmed Cabret, Justice Associate per Court, Supreme Islands additional $26,000 was due. The trial court dismissed on the basis that the suit was preempted by the Employee Retirement Income 1974 Security Act (ERISA). of collected nearly $74,000 in group life insurance proceeds, the child’s court- appointed guardian sued Esso and its insurance company, claiming that an 37333-fiu_10-2 Sheet No. 108 Side B 01/11/2016 08:19:25 B 01/11/2016 108 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 109 Side A 01/11/2016 08:19:25 , are 158 Ayala 565 565 a case involving a twin-motor twin-motor a involving case a 157 , , which, of course, also are the facts in , 171 N.Y. 114, 127, 63 N.E. 823, 827. 827. 823, N.E. 63 127, 114, N.Y. 171 , UDGMENTS Mulligan VI. J Vanished Planes Vanished ) 1/4/16 6:38 PM plaintiffs were seeking to use Mulligan v. Airborne Transport, Inc., Inc., Transport, Airborne v. Mulligan use to seeking were plaintiffs ELETE D OT Ayala Rudd v. Cornell v. Rudd N O 156 (D , 2012 WL 1353527, at *4. *4. at 1353527, WL 2012 , DOCX _1.4. . at 562-63. The Ayala v. Airborne Transport, Inc. INAL Id Benjamin 124 N.Y.S.2d 561 (App. Div. 1953). _F only that the severed actions be tried separately, but that “judgment may “judgment that but separately, tried be actions severed the that only be entered in the severed cause *.” * * other each of independently and separately remainingherein of action and the causes of action been in favor of the defendant, the present plaintiffs, not having had an opportunity to be heard, would not have been bound by the consequent judgment. The plaintiffs estoppel, nor therefore is there any showing of cannot privity, derivative or dependent establish . . . . liability mutuality of of dint by passengers], other four represent who plaintiffs[, present The complaint same the in co-plaintiffs as linked once were they that fact the web ambiguous some weave to tried have Administrator, Public the with of unity with him. A reading of the complaint, however, discloses that there is no privity, nor any relationship akin to privity, among the five original plaintiffs. Furthermore, the order of severance provided not Of course, plaintiffs in this case were not parties and took no [the] action part [brought by in Mulligan, the Public Administrator, on behalf of a passenger named Perez]. Also, if the verdict in the latter case had If a missing flight results in a judgment for one litigant, may others rely others may litigant, one for judgment a in results flight missing a If The issues in both cases may be identical. However, before the judgment the before However, identical. be may cases both in issues The in the first parties case same the “between will is action this operate that establish also as must plaintiffs an estoppel in the second case, privies,” their the or of the previous arguments, Benjamin made a similar argument to the Superior Court . . . . However, while the error may have been correctly preserved for consideration before this Court, Benjamin failed to bring until waited instead and brief, appellate original her in argument this up first the for raised is argument an When issue. this raise to brief reply the because waived deemed is argument that brief, reply a in appeal on time the appellee will argument. . . . not get an opportunity to respond to the 156 157 158 ARVIS M K on it? In plane that disappeared during a 1948 trip from Puerto Rico to Florida, a panel a Florida, to Rico Puerto from trip 1948 a during disappeared that plane “no”: answered judges appellate State York New of 113 N.E.2d 148 (N.Y. 1953). The facts in 2015] 10 - J reported at 305 N.Y. 743 (1953). (1953). 743 N.Y. 305 at reported C Y 37333-fiu_10-2 Sheet No. 109 Side A 01/11/2016 08:19:25 A 01/11/2016 109 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 109 Side B 01/11/2016 08:19:25 . M K Id 162 C Y ATIONAL 160 ,N e.g. , [Vol. 10:519 10:519 [Vol. See , http://www.ntsb.gov/_layouts/ the Alaska Supreme Court, Court, Supreme Alaska the 161 , a plane disappeared during a 1972 flight flight 1972 a during disappeared plane a 159 , ) 1/4/16 6:38 PM FIU Law Review Law FIU Jan 1975 Aviation Accidents . at 536. at . , ELETE D See id See OARD OT N B O (D Matter of Estate of Pushruk of Estate Matter AFETY DOCX S _1.4. . at 534-35 (internal citations omitted). Chief Justice Boochever, believing the statute clearly statute the believing Boochever, Justice Chief omitted). citations (internal 534-35 at . INAL Id Brown v. Estate of Jonz The court’s opinion contains only one sentence regarding the trip: “Donney Pushruk was a a was Pushruk 591 P.2d 532 (Alaska 1979). “Donney trip: the regarding sentence one only contains 562 P.2d 329 (Alaska 1977). opinion court’s The _F If any money is paid to a missing person’s estate, is it available to his or his to available it is estate, person’s missing a to paid is money any If and mother passenger’s missing [the Mogg Mrs. that established Having sole heir] is not entitled to recover as a statutory beneficiary, we In her contention, if the instruction given constituted Because of the lack of precision in the language of the Wrongful Death plain error . . . . Act, AS 09.55.580, the status of stepchildren as potential beneficiaries excluding ruling court’s superior the that find not do we but clear, not is the McDaniel children from issue. this on instruction reviewcourt’s wenot the therefore do recovery was plainly erroneous, and Instruction 35, “Do you Appellant originally submitted sixteen proposed have instructions and later any objection to submitted two “supplemental proposed jury that instructions,” but none of instruction?” these instructions dealt with the issue appellant seeks to raise . . . . appeal in this In addition to asking explicitly whether appellant had objections to the instructions, the trial court had previously invited appellant to brief the issue of whether no to brief submitted the in court trial Death Act. Appellant Wrongful stepchildren could recover concluded have therefore might court trial The request. that to response under the [Alaska] . . . . issue the abandoned had appellant that Although appellant made no objection at trial, we could still consider Appellant in this case made no objection relating to the exclusion of the of exclusion the to relating objection no made case this in Appellant McDaniel children, although the trial court asked, in reference to 159 160 161 162 ARVIS RANSPORTATION her creditors? In per Chief Justice Boochever, said “yes” in a case arising from a 1975 flight: 1975 a from arising case a in “yes” said Boochever, Justice Chief per ntsb.aviation/brief.aspx?ev_id=46534&key=0 (under the first entry for “Monday, January 13, 1975”). 13, January “Monday, for entry first the (under ntsb.aviation/brief.aspx?ev_id=46534&key=0 passenger in a Channel Flying, Inc. airplane which disappeared during a flight on January 13, 1975.” T 566 10 - J included stepchildren, dissented. dissented. stepchildren, included from Anchorage, Alaska to Juneau, Alaska. The passenger’s wife, on behalf of herself, the couple’s biological daughter, and her three children from previous a marriage, sued the pilot’s estate. Because the trial court instructed only recovery, from excluded were stepchildren passenger’s the that jury the the wife and daughter were awarded damages. When the wife appealed this Burke, Justice affirmed: AlaskaSupremeper the Court, instruction, at 330. Other sources, however, reveal that the plane was a DeHavilland DHC-2 air taxi that went missing went that taxi air DHC-2 DeHavilland a was plane the that reveal however, sources, Other 330. at passengers. four and pilot a with Alaska Juneau, to Alaska Tenakee, from flying while 37333-fiu_10-2 Sheet No. 109 Side B 01/11/2016 08:19:25 B 01/11/2016 109 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 110 Side A 01/11/2016 08:19:25 567 567 . provide detailed and explicit AXES et seq a U.S. Navy pilot, flying a Vega Ventura 164 , VII. T Vanished Planes Vanished ) 1/4/16 6:38 PM ELETE D OT N O (D DOCX , 562 P.2d at 332-33 (internal citations omitted).citations (internal 332-33 at P.2d 562 , 163 _1.4. INAL Pushruk 208 P.2d 349 (Or. 1949). In re Thornburg’s Estate Thornburg’s re In _F On appeal, the Oregon Supreme Court, per Chief Justice Lusk, reversed: reversed: Lusk, Justice Chief per Court, Supreme Oregon the appeal, On [T]he question here is whether the arbitrary presumptive date of death, fixed by Congress and found by the Navy Department, must give way to facts which to a reasonable mind establish with convincing force an actual earlier date of death. Conceding to the Department’s finding the been wehas thinkentitled, effect primais facie whichits it to force full When the father’s will was probated, the county court, concluding that that concluding court, county the probated, was will father’s the When Just as the taxman plagues the living and the dead, so he afflicts the In the estate. Nothing in the chapter exempts estates consisting in whole or whole in consisting estates exempts chapter the in Nothing estate. the recovery. death wrongful a of part in The estate suggests that if the proceeds of a wrongful death action are subject to the claims of creditors in cases where there are no statutory beneficiaries, then “any person, action death wrongful a including institute could person, deceased the of creditors the State of Alaska the only however, and statute, the Under person.” deceased the of behalf on some under that true is It action. an institute may representative personal circumstances the action might benefit only the estate’s creditors, but we do not find this result necessarily inconsistent with the legislative scheme. conclude conclude that according to the statute, the proceeds death of action the pass wrongful directly into context. the this in creditors [passenger’s] of rights the of estate. question the consider We to proceed therefore Since AS 09.55.580 provides that recovery on of behalf the estate shall be “administered property of the deceased”, as other personal this issue administration. estate ordinary of problem a as resolved be must Personal property of the deceased is clearly subject to the valid claims of creditors. AS 13.16.460 procedures for presentation, allowance and payment of claims against 163 164 ARVIS M K the father had died first, assessed $324.51 in state inheritance taxes. In holding, so it rejected the state treasurer’s argument that the son had died first and that his widow (the father’s daughter-in-law) was the actual legatee and taxes. in $5,416.79 additional an owed bomber, disappeared in 1944 while on combat patrol in the Philippines. Six months later, his father died. Six months after the father’s death, the Navy fromdeceased. MIAstatus to son’s the changed presumeddead. 2015] 10 - J C Y 37333-fiu_10-2 Sheet No. 110 Side A 01/11/2016 08:19:25 A 01/11/2016 110 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 110 Side B 01/11/2016 08:19:25 M K C Y [Vol. 10:519 10:519 [Vol. a couple boarded their private plane in 167 166 , ) 1/4/16 6:38 PM FIU Law Review Law FIU ELETE D OT N O (D 165 DOCX _1.4. . at 355. at . 171-72. at . INAL Id Id 115 T.C. 161 (2000). Harrison v. Commissioner v. Harrison _F In overcome. finding it “more probable than not” that the Harrisons died as a result of result a as died Harrisons the that not” than probable “more it finding an aircraft crash en route to their destination. In [the] absence of any evidence that might suggest a period of survival by either spouse, we all for death of dates 1 April presumed the accept to incongruous it find other estate tax purposes while at the same time rejecting the rationale presumptions.such underlying [A]n underlying rationale for deeming valueless life estates transferred upon simultaneous deaths is that a willing buyer with knowledge of all relevant facts would pay nothing for the interest. Here would such a be buyer aware or one left that either misfortune some of minimum, at or, deaths simultaneous of an airplane crash both spouses stranded and in an area apparently consequent so remote that not near even a possible crash site was found for many months. In both scenarios, we believe that a buyer probability that any so survival would be informed brief and, accordingly, would issue. at estates life the for anything pay to declined have would have realized the Moreover, the high record before us registrations reflects presuming probate identical orders April and 1, death 1994, dates of death and 165 166 167 ARVIS 568 10 - J 1993 for a trip from Utah to California but never arrived. Both of their wills presumed survival by the other spouse and transferred to the survivor a life estate. The executor valued each life estate on the basis of actuarial tables and claimed a credit of $16,457 Service for disallowed these calculations on the ground each that the life estates had spouse. The Internal Revenue no value. When the executor appealed, Judge Nims of the Tax Court upheld government’sthe position: 37333-fiu_10-2 Sheet No. 110 Side B 01/11/2016 08:19:25 B 01/11/2016 110 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 111 Side A 01/11/2016 08:19:25 , 972 F.2d 972 , See Brewster See (Twentieth Century Fox Cast Away Cast 569 569 ONCLUSION 168 C Vanished Planes Vanished ) 1/4/16 6:38 PM VIII. ELETE D OT N O (D laws to protect the remarried spouse from bigamy charges. DOCX _1.4. (1864), which concerns a mariner who suffers a similar fate. Some jurisdictions have enacted INAL This possibility, of course, provides the plot for the movie _F Enoch Arden Enoch As the foregoing makes clear, many of the legal issues that can arise 168 ARVIS M K 2000), which stars Tom Hanks as a FedEx employee who returns home four years after a plane crash to find that his wife has remarried. The film is a modern retelling of Lord Tennyson’s well-known Arden Enoch poem so-called 2015] 10 - J at 902 n.4. 902 at when a plane goes missing already have Some, received however, judicial are still consideration. waiting for their day intriguing in is what court. happens Among if a the pilot most or a passenger, having alive. be to discovered is later dead, been declared C Y 37333-fiu_10-2 Sheet No. 111 Side A 01/11/2016 08:19:25 A 01/11/2016 111 Side Sheet No. 37333-fiu_10-2