Sun, Nov. 17

Appeals Court paves way for lawsuit against kit airplane firm

PHOENIX -- The state Court of Appeals has rejected a bid by an Australian company that manufactures kit airplanes to avoid being sued in Arizona over a 2008 crash in Marana that killed the pilot.

In a unanimous decision, the judges rejected the contention by attorneys for Jabiru Aircraft that Arizona courts have no jurisdiction over the firm.

Judge Garye Vasquez, writing the ruling, acknowledged that Jabiru has no offices or employees in Arizona. And he said the company does not directly sell its products to retail customers anywhere in the United States.

But Vasquez said the company clearly understood that its products were being sold in this country -- and to Arizona residents -- through its North American distributors. And the judge noted those distributors were contractually required to do their best to sell Jabiru products.

The ruling, unless overturned, gives the family of Gerald Van Heeswyk a chance to sue.

Court records said Van Heeswyk had assembled an aircraft from a kit sold by Jabiru's distributor, Jabiru USA Sport Aircraft, which is located in Tennessee. He built the aircraft in a Marana hanger, completing construction in late 2007.

After an inspection and successful first flight by a for-hire test pilot, he flew the aircraft uneventfully for several hours between late February and mid-May. But on June 1, the propeller assembly detached and the plane crashed; he died at the scene.

His survivors filed a product liability and breach of warranty suit against several defendants, including Jabiru. But a trial judge concluded the state had no jurisdiction over the Australian company.

The survivors sued, contending Jabiru specifically used its North American distributors "to penetrate the American market' and target Arizona customers. They cited steady and consistent sales of Jabiru products in Arizona.

Jabiru's lawyers said that as far as the company was concerned regarding this particular engine, its commercial business was complete when it shipped the engine to the distributor. They also said the Australian company never "had any reason to expect' it would end up in Arizona and never did anything to cause it to enter the state.

But Vasquez said that argument held no more legal water than a similar one the Arizona Supreme Court rejected in 1995 from an Italian handgun manufacturer seeking to avoid being sued in Arizona when one of its revolvers, sold to an Arizona resident, accidentally discharged and killed a 2-year-old Tucson girl.

In that case, the Supreme Court said the Italian company's firearms were exported to the U.S. "by direction rather than chance.'

The judge said the same situation applies here.

He said that in 2006 alone -- the year Van Heeswyk bought the engine -- Jabiru's distributors sold at least 61 products in Arizona, including five engines. And Vasquez said the fact that these sales amounted to less than 2 percent of the company's overall sales is irrelevant.

Vasquez also said there is nothing in the record to show Jabiru placed any restriction on the sale of its products in Arizona. In fact, he said, the reverse appears to be true: Jabiru's products, including the engine at issue here, were part of a stream of products generally directed for export to the United States and Arizona specifically.

"And we are unwilling to ignore the economic reality that Jabiru, as the manufacturer and, thus, the head of the distribution network, realizes the bulk of the economic benefit from its sales in 'distant forums' such as Arizona,' Vasquez wrote.

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