NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 11 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIOLETA ESCOBAR, AKA Violeta No. 17-15590 Escobar Cline, Individually, and as Personal Representative for The Estate of Nathan D.C. No. Cline, Deceased, 1:13-cv-00598-HG-RLP

Plaintiff-Appellant,

MEMORANDUM*

v.

NEVADA HELICOPTER LEASING, LLC,

Defendant-Appellee.

Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, District Judge, Presiding

Argued and Submitted October 12, 2018 Honolulu, Hawaii

Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges.

Violeta Escobar (“Escobar”), the widow of deceased helicopter pilot Nathan

Cline (“Cline”), appeals from the grant of summary judgment to Nevada

Helicopter Leasing LLC (“Nevada Leasing”), the owner and lessor of a helicopter

that was the subject of a crash resulting in Cline’s death. The district court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. concluded that Escobar’s state claims were preempted by 49 U.S.C. § 44112,

which at the time limited the liability of an aircraft’s lessors, owners, and secured

parties unless the aircraft was “in the actual possession or control of the lessor,

owner, or secured party.” 49 U.S.C. § 44112(b) (2018) (emphasis added),

amended by FAA Reauthorization Act of 2018, Pub. L. No. 115-254, § 514, 132

Stat. 3358 (Oct. 5, 2018).1 The court found that Nevada Leasing did not have

“actual possession or control” at the time of the crash. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we reverse and remand for further proceedings.

We reverse the district court’s grant of summary judgment because a

genuine dispute exists as to whether Nevada Leasing had “actual possession or

control” of the aircraft. Fed. R. Civ. P. 56(c); Nidds v. Schindler Elevator Corp.,

113 F.3d 912, 916 (9th Cir. 1996) (“There must be sufficient evidence that a

reasonable jury could return a verdict for the nonmoving party.” (internal quotation

marks and citation omitted)). The text of 49 U.S.C. § 44112 provides protection

from liability only when the aircraft’s lessor possesses neither actual possession

nor actual control. See Westwood Apex v. Contreras, 644 F.3d 799, 804 (9th Cir.

2011) (“An excerpted clause in a statute cannot be interpreted without reference to

1 The statutory amendment substituted the language “actual possession or operational control,” for “actual possession or control.” 49 U.S.C. § 44112(b) (emphasis added). Upon remand, the district court should consider whether this amendment alters or merely clarifies the exception to liability and whether it has any effect on this case.

2 the statute as whole, nor can it be understood free from the sentence in which it

was included.”). Legislative history supports this reading of the statute, as the

statute’s “purpose was to assure that liability under such laws would not attach to

the holder of a security interest solely by virtue of that interest.” S. Rep. No. 86-

221, at 2 (1959).

A genuine factual dispute exists as to whether or not David Chevalier—an

owner of both Nevada Leasing and the lessee company, Helicopter Consultants of

Maui, Inc., doing business as Blue Hawaiian Helicopters (“Blue Hawaiian”)—and

Blue Hawaiian employees were acting as agents of Nevada Leasing and actually

exercised control over the aircraft when it crashed. Chevalier owned about 89% of

both Nevada Leasing and Blue Hawaiian. In the 2010 version of the Master Lease

Agreement, Chevalier was the sole signatory and signed on behalf of both Nevada

Leasing and Blue Hawaiian. Chevalier stated in his deposition that the employees

of Blue Hawaiian often performed aircraft-related tasks for Nevada Leasing,

including administering aircraft leases and making decisions about fixed minimum

rent for the aircraft, and that Chevalier had executive authority in his roles at both

Blue Hawaiian and Nevada Leasing to cancel flights. Taking these facts together,

a jury could find that Blue Hawaiian personnel, Chevalier, or both, as agents of

Nevada Leasing, had actual control of the aircraft.

REVERSED; REMANDED.

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