Opinion
Plaintiffs suffered injuries in the crash of a light aircraft, allegedly due to a malfunction in the engine’s carburetor. Defendant is an aircraft parts manufacturer who did not manufacture or sell this particular model of carburetor but acquired the product line from a predecessor who had acquired it from the original manufacturer. The carburetor was manufactured and sold in 1968, over 25 years prior to the accident. A recent federal statute of repose (The General Aviation Revitalization Act of 1994 (GARA), Pub.L. No. 103-298, 108 Stat. 1552, 49 U.S.C. § 40101 note) bars claims arising from accidents involving light aircraft brought against “the manufacturer of any new component ... or other part of the aircraft, in its capacity as a manufacturer” (Pub.L. No. *684 103-298, § 2(a), 108 Stat. 1552) more than 18 years after the product is first sold. The trial court in this case granted summary judgment against plaintiffs, finding that the federal statute barred their claims against defendant in its capacity as successor to the original manufacturer.
Two questions are presented in this appeal. Is defendant a “manufacturer” within the meaning of the federal statute? If the statute applies to bar plaintiffs’ claims against defendant acting in its capacity as a manufacturer, can plaintiffs nonetheless proceed against defendant on a theory that defendant breached an independent duty to warn about the defective product? We find that defendant, as the successor manufacturer, stands in the shoes of the manufacturer and is entitled to the protection of GARA. We further find that defendant, in engaging in the conduct complained of by plaintiffs, was acting in its capacity as a manufacturer pursuant to the duties and obligations imposed by federal law on manufacturers of general aviation aircraft and aircraft parts. Plaintiffs’ theory of independent liability is not viable under these circumstances. We therefore affirm the judgment.
Background
On February 26, 1995, a two-seater aircraft piloted by plaintiff James Burroughs took off from Reed-Hillview Airport in San Jose. The passenger was plaintiff Jared Burroughs, James Burroughs’s nephew. Shortly after takeoff, the aircraft lost power and crashed. Both James and Jared Burroughs suffered serious personal injuries. Plaintiff Joseph Burroughs, father of Jared, witnessed the crash from the ground.
Plaintiffs’ expert stated that the source of the plane’s losing power was a defective carburetor containing a float made from composite materials. Over time and with changes in the chemistry of gasoline, the composite float absorbed fuel and became heavy. The float’s loss of buoyancy caused a change in the fuel-air mixture, resulting in interruption of power. The carburetor, known as the Marvel-Schebler Aviation carburetor, or MSA carburetor, model MA-3A, was manufactured in 1968 by the MarvelSchebler Division of Borg-Wamer Corporation (now known as Borg-Warner Security Corp., hereafter Borg-Wamer). Borg-Wamer sold its MarvelSchebler carburetor line to Facet Aerospace Products Co. in 1983 (a subsidiary of Facet Enterprises, Inc., hereafter Facet). Facet sold the MarvelSchebler product line to Zenith Fuel Systems, Inc., in 1990, and shortly thereafter defendant Precision Airmotive Corp. (Precision) acquired the product line. Although Precision began manufacturing aircraft carburetors in 1991, it did not manufacture, design or sell the model of carburetor involved *685 in the accident in this case. Production of this particular carburetor containing the composite float ceased in 1984, six years before Precision acquired the product line.
Problems with composite carburetor floats absorbing fuel and sinking were well documented. Facet issued a service bulletin in May of 1984 to “All Outlets,” recommending the replacement of composite floats with metal floats in all Marvel-Schebler carburetors “at next overhaul or immediately.” Later that year, in August of 1984, Facet requested that the Federal Aviation Administration (FAA) issue an airworthiness directive relating to the replacement of composite floats in Marvel-Schebler carburetors. An airworthiness directive (AD) is a finding by the FAA of an unsafe condition in a product and it orders corrective action with which aircraft owners must comply. A notice of proposed rulemaking appeared in the Federal Register proposing the adoption of an AD that would require all carburetor composite floats to be replaced with metal floats by 1988. The notice stated that “the FAA has determined that composite carburetor floats are absorbing fuel and becoming less buoyant, thus adversely affecting the carburetor’s ability to control fuel level, leading eventually to carburetor flooding.” The notice further stated that Facet, which had purchased the Marvel-Schebler carburetor line, had obtained a design change which would reintroduce a metal float compatible with the chemistry of current blends of aviation gasoline. Facet had available a replacement kit for approximately $57, which would require approximately four hours to install. Although this notice was published in the Federal Register, the AD was not adopted by the FAA.
In June of 1990, Facet renewed its request for an AD. In its letter to the FAA, Facet noted that there continued to be incidents of saturation of composite floats due to increased use of low lead fuels and autogas. Facet estimated that it had sold approximately 75,000 replacement kits but that there were still approximately 83,000 composite floats in the field. Facet urged the issuance of an AD requiring the replacement of the composite floats remaining in the field. The engine manufacturer, Textron-Lycoming, Inc., supported the request.
Shortly thereafter, in July of 1990, Precision acquired the Marvel-Schebler product line. In October of 1990, Precision issued a “Mandatory Service Bulletin” (No. MSA-1) “to clarify time of compliance for replacement of the carburetor float and to reflect acquisition of the Facet Aerospace product line (Marvel Schebler Aviation Carburetors) by Precision Airmotive Corporation.” The bulletin noted that reports from the field indicated that composite floats “may be absorbing fluid and sinking.” It stated that Precision considered it was “mandatory” to replace the composite floats with metal floats *686 “within the next 90 days or 25 hours of engine operation” if the aircraft was experiencing a flooding carburetor, rough engine or inconsistent engine shutdown. The bulletin provided information about metal float replacement kits which were available from local distributors. Finally, it noted that that an AD had been requested of the FAA. This bulletin was sent to aircraft repair stations and maintenance personnel and to Textron-Lycoming, manufacturer of the engine.
In September of 1991, the AD had not been issued and Precision wrote again to the FAA requesting the issuance of an AD requiring replacement of composite floats with metal floats in all Facet/Marvel-Schebler carburetors. The letter stated: “As the new manufacturer of the Facet/Marvel Schebler carburetor, Precision Airmotive feels very strongly that the composite floats constitute a significant safety of flight problem and must be removed from service.” Randy Jenson, manager of engineering and product support for Precision, met with a representative of the FAA regarding the AD requested for replacement of the composite float and two other AD’s requested by Precision.
Thereafter, in November of 1991, Precision sent out a new service bulletin package, with a revised Mandatory Service Bulletin No. MSA-1, to all repair stations and maintenance personnel. This package included a cover letter informing the recipient that Precision was now the original equipment manufacturer (OEM) of the Marvel-Schebler carburetor, having purchased the product line from Facet. Revised No. MSA-1 required that the MarvelSchebler composite float be removed “immediately” and replaced with a metal float as per the instructions in the replacement kit.
The FAA once again declined to issue an AD regarding the replacement of the composite float with a metal float. The FAA informed Precision in July of 1992 that after reviewing service difficulty records it had concluded that “there was not significant difference in the problems associated with the composite or metal floats and that regulatory action was not warranted at this time.”
Vem Miller, the mechanic for the aircraft in question in this case, stated that he was aware of reports of composite floats absorbing fuel and sinking and that he had received the Mandatory Service Bulletins issued by Precision. However, when he conducted the annual inspection of the aircraft in September of 1994, just months before the accident, he did not inspect the carburetor to see if it had a metal or a composite float. He did not feel it was necessary to comply with the Mandatory Service Bulletins because he did *687 not believe the bulletins constituted an “airworthiness requirement.” He performed the annual inspection and certified the aircraft as airworthy.
The owner of the aircraft, David Gray, stated that he did not receive a copy of No. MSA-1 from Precision. In September of 1993, he did receive a notice sent by Textron-Lycoming, Inc., informing him of the active service publications which could pertain to the model of engine in his airplane. This notice suggested that he have his maintenance facility review the list of service bulletins for their relevance to his specific model of engine. The notice further explained that service bulletins “describe mandatory procedures that must be observed for safety reasons . . . .” It advised him to “please make sure you have complied with each of [the Service Bulletins.]” The notice then listed 20 active service bulletins, including the No. MSA-1 issued by Precision. However copies of these service bulletins were not attached to the notice. Gray stated that he expected his mechanic, Vem Miller, to be familiar with the mandatory service bulletins and to comply with them during his annual inspection.
Plaintiffs sued Gray, Miller (doing business as Vern Miller Aviation), Precision, and Textron-Lycoming, Inc. The complaint was amended to add defendant Borg-Warner. Plaintiffs alleged theories of negligence, strict liability and breach of warranty relating to the design, manufacture and maintenance of the aircraft’s engine and carburetor. Motions for summary adjudication by Borg-Warner and Textron-Lycoming were granted as to all three causes of action of plaintiffs James and Jared Burroughs on the ground that their .claims were time-barred under the provisions of the federal GARA (Pub.L. No. 103-298, 108 Stat. 1552, 49 U.S.C. § 40101 note). That statute provides for an 18-year limitations period for lawsuits against manufacturers of general aviation aircraft or component parts of such aircraft. The court likewise granted Precision’s motion for summary adjudication under GARA as to the theories of strict liability and breach of warranty on the ground that Precision was a successor to the manufacturer of the carburetor, but the court denied Precision’s motion as to the negligence cause of action, finding that, “liberally construed,” the complaint stated a cause of action for negligence on a theory of product support. 1
Thereafter, Precision filed a second motion for summary adjudication as to the remaining cause of action for negligence of plaintiffs James and Jared Burroughs on grounds that 1) this was a product liability claim which was barred and preempted by GARA, 2) Precision owed no independent duty *688 with regard to the product, and 3) even if it had a duty, Precision satisfied that duty by issuing the service bulletins. The court granted the motion for summary adjudication, finding that Precision, as a successor to the original manufacturer of the product, was entitled to the protection of GARA and that any duty to warn was the same duty owed by the original manufacturer and not an independent duty. Judgment was entered in favor Precision.
Analysis
Standard and Scope of Review
A defendant is entitled to summary judgment only if he or she establishes as a matter of law that none of plaintiff’s asserted causes of action can prevail. (Code Civ. Proc., § 437c, subd. (c).) On appeal from a summary judgment, we conduct an independent review, applying the same three-step process as the trial court.
(AARTS Productions, Inc. v. Crocker National Bank
(1986)
The proper interpretation of a statute is a question of law, subject to our independent review
(Simpson v. Unemployment Ins. Comp. Appeals Bd.
(1986)
We note that these summary proceedings applied only to plaintiffs James and Jared Burroughs. We note further that plaintiffs have not appealed the previous summary adjudication in favor of Precision on their causes of action for strict products liability and breach of warranty. Therefore the only cause of action at issue in the summary adjudication motion we *689 review is a cause of action against Precision for negligence. This was pleaded generally in plaintiffs’ first cause of action, which alleged that the accident was “caused by defendants because they carelessly and negligently owned, operated, furnished, rented, designed, manufactured, assembled, supplied, sold, maintained, inspected, overhauled and gave instructions as to the use and operation of [the aircraft], its engine, carburetor and components.” More particularly, the theory of plaintiffs’ negligence claim against Precision is that Precision failed to adequately warn customers of the MarvelSchebler carburetor about its defects by not sending the relevant service bulletins directly to the aircraft owner.
The General Aviation Revitalization Act of 1994
Defendant and two amici curiae, the General Aviation Manufacturers Association and the Product Liability Advisory Council, Inc., argue that the federal act, GARA, bars any claim against Precision, by virtue of its assumption of the duties imposed by federal law on the manufacturer of an aircraft or component part.
In pertinent part, GARA provides that “no civil action for damages or death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft[ 2 ] may be brought against the manufacturer of the aircraft or the manufacturer of any new component, system, subassembly, or other part of the aircraft, in its capacity as a manufacturer if the accident occurred . . . [more than 18 years after the date of delivery of the aircraft and/or component to the first purchaser or lessee].” (GARA, Pub.L. No. 103-298, § 2(a), 108 Stat. 1552.)
GARA established a “ ‘statute of repose to protect general aviation manufacturers from long-term liability in those instances where a particular aircraft has been in operation for a considerable number of years. A statute of repose is a legal recognition that, after an extended period of time, a product has demonstrated its safety and quality, and that it is not reasonable to hold a manufacturer legally responsible for an accident or injury occurring after that much time has elapsed.’ ”
(Altseimer v. Bell Helicopter Textron, Inc.
(E.D.Cal. 1996)
GARA expressly preempts state law. Section 2(d) provides that “This section supersedes any State law to the extent that such law permits a civil action described in subsection (a) to be brought after the applicable limitation period for such civil action established by subsection (a).” (GARA, Pub.L. No. 103-298, § 2(d), 108 Stat. 1552.)
The legislative history of GARA indicates that it was passed in response to a serious and “precipitous” decline in the manufacture and sale of general aviation aircraft by United States companies, caused in part by the tremendous increase in the industry’s liability insurance. (GARA, H.R. No. 103-525(II), 103d Cong., 2d sess. (1994) p. 1646;
Campbell v. Parker-Hannifin Corp.
(1999)
The statute does not apply if manufacturers fail to fulfill their obligations to report known defects or other safety information to the FAA. (GARA, Pub.L. No. 103-298, § 2(b)(1), 108 Stat. 1552.) It also does not provide protection for a manufacturer acting in any other capacity than “as a manufacturer.” (GARA, § 2(a).) For example if the manufacturer committed a negligent act repairing or servicing an aircraft or as a pilot, and such act was the proximate cause of an accident, the victims would not be barred from bringing suit against the manufacturer acting in a capacity other than as a manufacturer. There are also exceptions in the statute for passengers being transported for medical emergencies and persons injured on the ground or in other aircraft. (GARA, § 2(b)(2), (3).)
Another perceived element of fairness in the legislation is that GARA is a “rolling” statute of repose. When any part or subassembly in an aircraft is replaced with a new part, a new 18-year period begins for that part from the date it is installed. (GARA, Pub.L. No. 103-298, § 2(a)(2), 108 Stat. 1552; GARA, H.R. No. 103-525(II), 103d Cong., 2d Sess., supra, p. 1647.) Since almost every major component of the aircraft will be replaced over its lifetime, the “rolling” aspect of the statute of repose was intended to provide that victims and their families would have recourse against the manufacturer of the new component part in the event of a defect in the new part causing an accident.
Given all of these considerations, “[t]he legislation attempts to strike a fair balance by providing some certainty to manufacturers, which will spur the development of new jobs, while preserving victims’ rights to bring suit for compensation in certain particularly compelling circumstances. In essence, the bill acknowledges that, for those general aviation aircraft and component parts in service beyond the statute of repose, any design or manufacturing defect not prevented or identified by the Federal regulatory process by then should, in most instances, have manifested itself.” (GARA, H.R. No. 103-525(II), 103 Cong., 2d Sess., supra, p. 1648.)
Applying GARA to the facts before us, its provisions clearly shield the manufacturer of the carburetor Borg-Wamer and the engine Textron-Lycoming, Inc., from liability for claims based on any defect in the MarvelSchebler carburetor. Plaintiffs do not argue otherwise. The particular model *692 of carburetor was manufactured and sold in 1968, over 25 years prior to the accident.
Plaintiffs claim that GARA does not apply to Precision, however, because Precision is not the “manufacturer” of the carburetor. The term “manufacturer” is nowhere defined in GARA, and GARA does not specifically include successor manufacturers within the protection of the statute. Although Precision did not actually manufacture the particular carburetor in this case, it is a manufacturer of general aviation aircraft parts, 3 including carburetors, and it took over the manufacturer’s responsibilities for the Marvel-Schebler product line. Precision is part of the general aviation industry which GARA was specifically enacted to “revitalize,” as the title of the act indicates, and Precision is thus precisely the type of entity GARA was designed to protect from the long tail of liability. The central objective of GARA would be materially undermined if its protection did not apply to a successor to the manufacturer who, as part of its ongoing business, acquired a product line long after the particular product had been discontinued and years after the statute of repose had run as to the original manufacturer. To construe GARA to allow liability claims against the successor manufacturer in these circumstances while barring the same claims against the actual manufacturer would defeat its purpose. We conclude, as we explain further below, that if GARA applies to shield the original manufacturer of a defective product from product liability claims such as the failure to warn alleged here, a successor manufacturer who has taken over the duties and obligations of the original manufacturer as to that product is also protected from liability for such claims.
Plaintiffs appear to concede the logic that “GARA, which would immunize the manufacturer from liability for failure to warn, would also immunize a successor to the extent it has assumed such liability from the manufacturer.” Plaintiffs refer here to the rules of successor liability under California state law, which provides for a successor’s assumption of liability for torts of a predecessor only in limited circumstances, which do not apply here. (See
Ray
v.
Alad Corp.
(1977)
*693 We believe GARA contains an implicit recognition that as a matter of federal law, by virtue of the extensive rules and regulations governing the aviation industry, a successor manufacturer steps into the shoes of the predecessor with regard to the duties of reporting defects. The drafters of GARA recognized that the aircraft industry is unique because of the extensive “cradle to grave” federal regulatory oversight of the industry. (GARA, H.R. No. 103-525(11), 103d Cong., 2d Sess., supra, p. 1647.) For instance, a holder of a parts manufacturer approval (PMA), such as Precision, must report to the FAA “any failure, malfunction, or defect in any product, part, process or article manufactured by it” that has resulted or could result in an incident such as engine failure. (14 C.F.R. § 21.3 (1999).) Precision, as the holder of the PMA on the Marvel-Schebler line of carburetors, was obliged to comply with these reporting requirements even though technically the particular model of carburetor in question here was not “manufactured by it.” Applicable regulations regarding maintenance, preventive maintenance, and alterations of aircraft provide that the manufacturer’s instructions for continued airworthiness are to be followed as contained in the maintenance manuals, service bulletins, service letters and service instructions. (14 C.F.R. § 91.403(c) (1999).) Again, after Precision took over the Marvel-Schebler carburetor line in 1990, it became the entity responsible for issuing these manuals and bulletins and fulfilling the manufacturer’s obligations for continued airworthiness. In the eyes of the FAA, Precision was the “new manufacturer” of the Marvel-Schebler carburetor.
As plaintiffs’ expert explained, when Precision purchased the MarvelSchebler carburetor product line in 1990, “it became the Original Equipment Manufacturer (‘OEM’). In the aviation field, this means that it [Precision] now stands in the same shoes as the two prior companies with respect to providing service information and replacement parts for existing carburetors ... It was the only source of FAA-approved service bulletins and instructions, maintenance manuals, parts catalogs and replacement parts.” Thus Precision took over the manufacturer’s obligations “with respect to continuing airworthiness” of the Marvel-Schebler product line. (See GARA, Pub.L. No. 103-298, § 2(b)(1), 108 Stat. 1552.) It obtained and became the holder of a PMA issued by the FAA, and it identified itself in its service bulletins and to the FAA as the new OEM for the Marvel-Schebler float carburetor.
The federal regulatory scheme contemplates that at all times there will be a designated OEM for an aircraft part or component, burdened with the reporting duties and responsibilities as to that particular product. Here Precision was the entity which assumed those duties with respect to the MSA model carburetor in this case. As a successor to the Marvel-Schebler *694 product line of Borg-Wamer (through Facet and Zenith), Precision became the OEM, or “manufacturer,” of that product, within the meaning of aviation law in general and GARA in particular. Nothing in GARA provides or suggests that a successor’s acquisition of a product from the original manufacturer tolls or restarts the 18-year statute of repose as to the new OEM. The running of the statute of repose is determined by reference only to the date the product was originally manufactured and purchased. The only “rolling” aspect of the statute is where a new replacement part or component is installed in the aircraft.
To the extent that Precision, as the OEM for the Marvel-Schebler product assumed and carried out the duties of the previous OEM’s, we believe it is entitled to the protection of the statute of repose applying to claims against manufacturers based on a breach of those duties. In other words, GARA would shield Precision from liability as to any claim against it “in its capacity as a manufacturer” of the product (GARA, Pub.L. No. 103-298, § 2(b)(1), 108 Stat. 1552). This includes claims based on the alleged failure to deliver adequate warnings of known defects.
(Alter v. Bell Helicopter Textron, Inc.
(S.D.Tex. 1996)
In our case the GARA period of repose for the Marvel-Schebler carburetor elapsed in 1986, almost 10 years before the injury occurred and four years *695 before Precision purchased the product line and succeeded to the obligations and duties imposed upon its predecessors by the various rules and regulations governing the aviation industry. To the extent that Precision was acting in its capacity as manufacturer of the product within the meaning of federal law, we conclude that GARA applies to bar a claim against it for a defect in the carburetor based on any theory of product liability, including a continuing duty to warn.
Independent Liability
Plaintiffs contend that even if Precision cannot be held derivatively liable for breaching a duty to warn assumed from its predecessors, Precision can nonetheless be liable for a failure to warn independent of its status as a successor manufacturer, in which case it would be outside the reach of GARA. Plaintiffs argue that this theory of independent liability applies here because Precision established an ongoing relationship with purchasers of the Marvel-Schebler carburetor, from which it derived an economic benefit, and because it was aware of known defects in the carburetor. Thus it had a duty to warn those customers of the defects. Precision breached this duty, they contend, by failing to send its Mandatory Service Bulletins directly to owners of aircraft with engines containing the Marvel-Schebler carburetor, a list of whom is readily available from the FAA.
Although California has not expressly adopted this independent duty to warn theory of liability, other jurisdictions, as well as the Restatement of Law, have recognized it.
(Patton
v.
TIC United Corp.
(10th Cir. 1996)
In
Gee, supra,
The court in.
Gee
found that “a successor corporation may acquire an independent duty to warn where defects in a predecessor’s products come to its attention.”
(Gee, supra,
A New York court in
Schumacher v. Richards Shear Co., Inc., supra,
As further support for their theory that tort law generally recognizes a successor company’s duty to warn of known defects in a predecessor’s product, plaintiffs rely on the Restatement Third of Torts, Product Liability, section 13. That section provides that a successor company may be subject to liability for harm caused by its failure to warn of a risk created by a product sold or distributed by the predecessor if “the successor undertakes or agrees to provide services for maintenance or repair of the product or enters into a similar relationship with purchasers of the predecessor’s products giving rise to actual or potential economic advantage to the successor,” and if “(1) the successor knows or reasonably should know that the product poses a substantial risk of harm to persons or property; and fl[] (2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; and [^] (3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and [^] (4) the risk of harm is sufficiently great to justify the burden of providing a warning.” (Rest.3d Torts, Products Liability, § 13, subd. (b).)
Plaintiffs argue that under this theory of liability they made a sufficient factual showing, in opposition to Precision’s motion, to create a triable issue as to whether Precision had an independent duty to warn. Precision undertook to provide service for the Marvel-Schebler carburetor and promoted itself and its replacement parts in the various notices and bulletins sent out to repair stations. Although it did not assume service contracts, enter into new service contracts, or actually perform service on the carburetors, it held itself out as the source of FAA-approved service information, parts catalogues, and replacement parts. The sale of replacement parts created a potential economic benefit to it from the owners of aircraft equipped with MarvelSchebler carburetors. Furthermore, Precision clearly knew of the substantial *698 risk of harm posed by the failure of the carburetor due to the sinking of the composite float, and was aware of numerous incidents resulting from this failure. Precision had access to the list of owners maintained by the FAA. And the issuance of warnings to the owners, who likely were otherwise unaware of the problem and who would be at the greatest risk, would have been the most effective means of communicating the warning.
We reject plaintiffs’ theory of independent liability, for a number of reasons. First, as noted, California has not adopted an independent duty to warn theory of liability.
(Gee, supra,
Furthermore, plaintiffs’ cases discussing general tort principles do not consider the effect of products liability statutes of repose. Cases that do involve statutes of repose have routinely applied such statutes to bar claims against successor manufacturers when the claim against the manufacturer is barred. (See
Allison v. ITE Imperial Corp.
(S.D. Miss. 1990)
As discussed in the previous section, when Precision became the OEM, it stepped into the shoes of the manufacturer and took on the duties and *699 obligations with respect to this product which are imposed by federal law. Those duties, including a duty to warn, are coextensive with the duties of a manufacturer acting in its capacity as a manufacturer. Congress has clearly occupied the field in this area and GARA bars claims based on a breach of a manufacturer’s duty to warn, as those duties are described and defined by federal law and regulated by the FAA. Furthermore, GARA would expressly preempt any claim based on state tort law establishing a manufacturer’s independent duty to warn. (GARA, Pub.L. No. 103-298, § 2(d), 108 Stat. 1552.) Thus, in order to survive summary judgment, plaintiffs must raise a triable factual issue that there was negligent conduct by Precision outside the scope of the duties imposed on it by federal law as the successor manufacturer of the product. In other words, plaintiffs must show that Precision was not acting “in its capacity as a manufacturer” when it committed the acts complained of here. Nothing in plaintiffs’ factual showing indicates that Precision was acting outside the scope of its duties as the successor manufacturer.
Plaintiffs argue here that their claim against Precision is based on Precision’s allegedly negligent service, maintenance and repair of the MSA carburetor. Their pleadings and arguments belie this assertion. Plaintiffs sued Precision because of its relationship to the product line of allegedly defective carburetors. Precision is identified in the complaint as follows: “At all times herein mentioned, defendant Precision Airmotive Corp. was a successor corporation to Facet Aerospace Co. and Marvel Schebler Co. and had acquired their product lines. The carburetor mentioned herein was initially designed, manufactured and sold by said companies and was one of their products.” In plaintiffs’ responses to interrogatories, they stated that by issuing service bulletins to service centers and not to the owners, “Precision failed to confirm [szc] to the common and accepted practice of aircraft and engine manufacturers, such as Cessna and Lycoming, to ensure the safety and airworthiness of its products.” (Italics added.) They further stated that Precision’s duty to warn “arose because Precision became the Original Equipment Manufacturer in July 1990 and undertook to provide product support from Marvel Schebler carburetors, when it purchased the product line from Facet and so informed the FAA and repair stations.” In their “Additional Facts” in opposition to the summary adjudication motion plaintiffs state that when Precision purchased the product line from Facet, “it then became the original equipment manufacturer, standing in the same shoes as the two prior companies with respect to providing service information and replacement parts for existing carburetors.”
This record shows that Precision’s duty with respect to reporting and issuing service bulletins and information was the same as its predecessors’ *700 and derives from its status as the manufacturer, or OEM, for the product. It is precisely this duty, to provide adequate and effective service information, that plaintiffs claim was breached by Precision when it failed to send the relevant notices directly to aircraft owners. Precision is not a mechanic. It never repaired or serviced the Marvel-Schebler carburetors or acted in any capacity other than as a manufacturer carrying out its obligation to ensure airworthiness. If Precision were deemed to be acting in a capacity other than its capacity as a successor manufacturer in these circumstances, then the same could be said of its predecessors. This would render GARA a nullity, since all manufacturers issuing required service bulletins, manuals, instructions and other reporting information could be said to be acting in a capacity to service, maintain and repair the product.
GARA cannot be interpreted in a way that would eviscerate its effect. The phrase “in its capacity as a manufacturer” was intended to provide a limited exception for the situation where a party who was the manufacturer of an aircraft or of a component part also “committed some negligent act as a mechanic of an aircraft or as a pilot, áhd such act was a proximate cause of an accident.” (GARA, H.R. No. 103-525(II), 103d Cong., 2d Sess., supra, p. 1649.) Precision was not acting in a role “as a mechanic” when it issued the service bulletins plaintiff claims should have been sent to the owners. We reject plaintiffs’ claim that Precision undertook to service all Marvel-Schebler carburetors and thus stepped into the role of a mechanic. The record shows that Precision undertook what it and its predecessors were required by law as manufacturers to do, namely to report defects, issue service bulletins and provide service instructions and information.
Schamel v. Textron-Lycoming
(7th Cir. 1993)
*701
The Seventh Circuit court in
Schamel
disagreed. The court held that the issuance of service information by the manufacturer was not a separate and discrete postsale undertaking because such information is “generally necessary to satisfy the manufacturer’s duty to warn.”
(Schamel, supra,
Other cases addressing this issue are in accord. In
Alexander v. Beech Aircraft Corp., supra,
We conclude that plaintiffs have failed to establish a negligence cause of action based on an independent duty to warn theory of liability. Precision’s duty to warn derived from the duty of manufacturers and successor manufacturers of general aviation aircraft parts imposed by federal law. Product liability claims based on breach of such a duty are barred by the statute of repose contained in GARA.
Disposition
The judgment is affirmed.
Wunderlich, J., and Mihara, J., concurred.
A petition for a rehearing was denied March 23, 2000, and appellants’ petition for review by the Supreme Court was denied May 24, 2000. Mosk, J., was of the opinion that the petition should be granted.
Notes
It is represented that plaintiffs settled their case with both Vem Miller, the mechanic, and David Gray, the owner of the aircraft.
A “general aviation aircraft” is defined as any aircraft for which an “airworthiness certificate” has been issued by the FAA, which has a maximum capacity of fewer than 20 passengers and is not, at the time of the accident, engaged in scheduled passenger-carrying operations. (Pub.L. No. 103-298, § (2)(c), 108 Stat. 1552.)
“General aviation” is all civil aviation activity except for scheduled commercial carriers.