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The Estate of James Butler v. Tri-State Care flight, LLC

United States District Court, D. New Mexico

March 28, 2019

THE ESTATE OF JAMES BUTLER, deceased, Through Personal Representative, LEE HUNT, and PEARL YEAST, James Butler's Wife, Plaintiffs
TRI-STATE CARE FLIGHT, LLC, and Estate of David Cavigneux, deceased, through Personal Representative VALERIE CAVIGNEAUX, Defendants.



         THIS MATTER comes before the Court on Defendant Tri-State Care Flight, LLC's Motion for Dismissal of Plaintiffs' Claims Pursuant to Fed.R.Civ.P. 12(b)(1) and (6) [Doc. 15]. The Court, having considered the motion and relevant law, finds that the motion is well-taken and will be granted.


         This matter arises out of a helicopter air ambulance crash on July 17, 2014, as a result of which James Butler, a paramedic employed by Defendant Tri-State Care Flight, LLC (“Tri-State”), was killed. The facts as alleged in Plaintiffs' Complaint for Wrongful Death and Loss of Consortium are as follows. The helicopter air ambulance industry had high crash levels and resulting fatalities between 2003 and 2008. Doc. 1-2 at ¶ 24. The Federal Aviation Administration (“FAA”) began reviewing the regulations governing the helicopter air ambulance industry in 2003, and the FAA Modernization and Reform Act of 2012 became law in February 2012. Id. at ¶¶ 25, 27. In January 2014, the FAA published new rules for helicopter safety. Id. at ¶ 28. In developing the new rules, the FAA identified four common factors in the helicopter air ambulance crashes that occurred from 1991 through 2010: inadvertent flight into instrument meteorological conditions; loss of control; controlled flight into terrain; and night conditions. Id. at ¶ 35.

         In February 2014, the FAA announced new operational procedures and equipment requirements (“New Operational Requirements”) to address the increase in helicopter air crash levels. Id. at ¶ 36. Although originally intended to go into effect on April 21, 2014, the effective date was extended, and as a result, the New Operational Requirements did not become mandatory for helicopter air ambulance companies until April 21, 2015, after the crash at issue in this case occurred. Id. at ¶¶ 39-40. Nonetheless, as of July 17, 2014, the date of the crash, Tri-State was “aware of the safety value” of the New Operational Requirements. Id. at ¶ 47.

         As of July 17, 2014, Tri-State “had an operational control center (“OCC”) to communicate with pilots, provide weather information, provide management control of flight operations, monitor flights, and assist with preflight risk information.” Id. at ¶ 48. Also as of that date, Tri-State's OCC procedures were to: advise a pilot tasked with taking a flight whether the flight request had been refused or rejected [by] any other pilot or operator; provide weather information to the pilot; provide risk assessment of the proposed flight; require management approval of acceptance of a flight that had previously been refused or rejected because of weather; update the pilot and medical team with weather information; and monitor progress of the flight. Id. at ¶ 49.

         Despite those procedures, Tri-State's business model established a financial incentive for management to encourage pilots to accept flights in unsafe conditions. Id. at ¶ 50. Specifically, Tri-State's management prohibited its OCC dispatchers from discussing weather conditions with pilots and from offering information to pilots about others who had previously refused the flight request due to weather conditions. Id. at ¶¶ 52-53. Whenever a pilot refused or rejected a flight, the dispatcher would record the rejection and the Tri-State owner and/or management would be informed of the refusal. Id. at ¶¶ 54-55. When a flight request was refused, a member of Tri-State management would contact the pilot by private cell phone, rather than through the Tri-State phone system which automatically recorded calls, to pressure the pilot to accept the flight request. Id. at ¶¶ 56-57. Tri-State employees had been fired or disciplined for refusing flights because of unsafe weather conditions. Id. at ¶ 58. The culture at Tri-State was for pilots to accept as many flights as possible. Id. at ¶ 59.

         It is against this backdrop that, at 12:18 a.m. on July 17, 2014, a hospital in Tucumcari called Tri-State's dispatch center to request a patient transfer from Tucumcari to a hospital in Albuquerque. Id. at ¶ 60. Tri-State dispatch contacted Tri-State's Flight Crew 21, based in Tucumcari, to transport the patient. Id. at ¶ 64. Flight Crew 21 refused the flight due to dangerous weather conditions, after having earlier in the evening been forced to land in a field and reroute to Amarillo rather than return to Tucumcari because of a thunderstorm. Id. at ¶¶ 62-65. Tri-State's dispatch then contacted Tri-State's Flight Crew 23, based in Roswell. Id. at ¶ 66. Flight Crew 23 also refused the flight because of dangerous weather. Id. at ¶ 67. The westerly moving storm, which was slow moving, included heavy downpours, and fog called “creepers, ” “was one of the more violent storms in eastern New Mexico of the year.” Id. at ¶¶ 68-71. That evening, both the Storm Prediction Center and National Weather Service Office in Albuquerque predicted severe thunderstorms, including damaging wind, fog, and hail, for the relevant region. Id. at ¶¶ 72-75.

         At 12:42 a.m., a Tri-State dispatcher called Tri-State's Crew 5, based in Santa Fe, and spoke with pilot David Cavigneaux to request that Crew 5 take the flight. Id. at 76. The Tri-State dispatcher did not inform Mr. Cavigneaux that two other crews had declined the flight request due to weather conditions. Id. at ¶¶ 77, 80. Mr. Cavigneaux “immediately” accepted the flight and, at 12:50 a.m., he and two paramedics, Rebecca Serkey and Mr. Butler, departed from the Santa Fe Municipal Airport toward Tucumcari. Id. at ¶ 78. There is no record that Mr. Cavigneaux or the medical team received information about the weather before taking the flight or were informed that two other crews, including a crew that had just been in the Tucumcari area, had refused the flight due to dangerous weather. Id. at ¶¶ 79, 80. Mr. Cavigneaux “knew of and experienced pressure by the owners and management of Tri-State to take as many flights as possible and to take undue risks in dangerous weather conditions.” Id. at ¶ 81. At 1:42 a.m. on July 17, 2014, the Crew 5 helicopter crashed into a mesa in rugged terrain, killing everyone on board. Id. at ¶ 82.

         Based on these allegations, Plaintiffs Lee Hunt, as Personal Representative of James Butler's estate, and Pearl Yeast, Mr. Butler's wife, commenced the instant action against Tri-State and the Estate of David Cavigneaux in state court on May 16, 2017. Doc. 1-2. Tri-State filed a Notice of Removal to Federal Court on June 29, 2017. Doc. 1-3. Plaintiffs subsequently filed a motion to remand, which was denied. Docs. 45, 47. Defendant Estate of David Cavigneaux was dismissed without prejudice on December 21, 2018. Doc. 47. The Complaint alleges claims against Tri-State of wrongful death (Count I) and loss of consortium (Count II).

         On July 6, 2017, Tri-State filed the instant motion to dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Doc. 15. On July 20, 2017, Plaintiffs filed a response in opposition to Tri-State's motion. Doc. 24. Tri-State filed a reply on August 3, 2017. Doc. 31.


         I. Rule 12(b)(1)

         Rule 12(b)(1) states that a party may present the defense of lack of subject matter jurisdiction by motion. Fed.R.Civ.P. 12(b)(1). Motions to dismiss under Rule 12(b)(1) “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). If the motion is brought as a facial one, the Court must treat the plaintiff's allegations as true, just as the Court would in a motion brought under Rule 12(b)(6). Id. In reviewing a factual attack, a court has “wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). In the course of a factual attack under Rule 12(b)(1), a court's reference to evidence outside the pleadings does not convert the motion into a Rule 56 motion. Id.

         II. Rule 12(b)(6)

         Under Rule 12(b)(6), a Court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). When considering a Rule 12(b)(6) motion, the Court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009), cert. denied, 558 U.S. 1148 (2010).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). The “court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial” but to determine whether the pleadings have facial plausibility. Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135 (10th Cir. 2014). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

         The Court in Iqbal identified “two working principles” in the context of a motion to dismiss. 556 U.S. at 678. First, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Accordingly, Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. “Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679; see Twombly, 550 U.S. at 570 (holding that a plaintiff must “nudge” her claims “across the line from conceivable to plausible”). Accordingly, “where the well-pleaded facts do not permit the court ...

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