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Fagerquist v. Western Sun Aviation Inc.4/29/1987
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
No. D002309
1987.CA.40726 ; 236 Cal. Rptr. 633; 191 Cal. App. 3d 709
April 29, 1987
KRISTINA FAGERQUIST, A MINOR, ETC., PLAINTIFF AND RESPONDENT,
v.
WESTERN SUN AVIATION, INC., DEFENDANT AND APPELLANT
Superior Court of San Diego County, No. 471618, Carlos A. Cazares, Judge.
Kern & Wooley and Ralph S. LaMontagne, Jr., for Defendant and Appellant.
Luce, Forward, Hamilton & Scripps, Donald L. Salem, Ned Good and Michael D. Michaels for Plaintiff and Respondent.
Opinion by Work, J., with Benke, J., concurring. Separate dissenting opinion by Wiener, Acting P. J.
Work
Western Sun Aviation, Inc. (Western Sun) appeals from the $1.5 million judgment entered against it in the wrongful death action brought by Kristina Fagerquist (Kristina). Western Sun contends the damage award is excessive as a matter of law, and the special verdict finding it negligent must be set aside because of evidentiary and instructional error. The finding as to negligence is vacated; the remainder of the judgment is affirmed.
Factual Background
In October 1979, Western Sun sold David Prizio and other investors a 42X Piper aircraft. Western Sun both retails and maintains the aircraft it sells. The engines of the plane purchased by Prizio were manufactured by Avco Lycoming, Inc. (Lycoming). Prizio leased the aircraft to Air Bahia which flew commercially between California, Arizona and Mexico. Kristina's father, Thomas Fagerquist (Fagerquist), was an Air Bahia pilot and killed when the plane crashed due to engine malfunction.
Western Sun performed a scheduled maintenance on the 42X Piper, a 100-hour inspection and a compression check, replacing the No. 6 left cylinder with a new cylinder manufactured by Lycoming. Three days later, Fagerquist, piloting a different aircraft, flew from San Diego to Long Beach. Upon his return to San Diego, Air Bahia had Fagerquist change aircraft. Fagerquist completed the remaining legs of his flight plan in the 42X Piper. Fagerquist performed a "run up" on the aircraft and determined it was running rough. Western Sun sent a mechanic to check the plane. The mechanic did some trouble-shooting and cleaned and replaced some parts in the engine before the plane was tested. On that test, the engine checked out satisfactorily.
Fagerquist then flew the plane without incident from San Diego to Tijuana and then to Guaymas. However, from Guaymas to Tuscon, Arizona, the left engine ceased functioning and the plane crashed. Experts determined the left engine failed because of a hole in the No. 6 cylinder caused by defective casting in the manufacturing process.
Procedural Background
Kristina sued Western Sun on two theories: Strict products liability for selling a defective aircraft and engine parts, and negligently maintaining the airplane. Although Kristina's second amended complaint identified the defective parts sold as the cylinder and piston assembly manufactured by Lycoming, she did not sue Lycoming. Western Sun cross-complained against Lycoming for total indemnification; however, this cross-complaint was deemed barred when Lycoming's $20,000 payment to Kristina and $20,000 to Prizio was found to be a good faith settlement. (Code Civ. Proc., ยง 877.6.)
The
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