Michael Terhar was named a Southern California Super Lawyer for 2009 by Law & Politics and Los Angeles Magazine. This recognition is the end result of a unique multi-step process that evaluates attorneys to find evidence of peer recognition and outstanding professional achievement. It is considered to represent the top 5% of Southern California attorneys. This is the fourth year in a row in which Mike was so honored having previously been selected in 2006, 2007 and 2008.

February 2009

Attorneys from LaMontagne & Terhar have prevailed in a federal court case which has now resulted in a published 9th Circuit opinion of significant interest to the aviation community on the issue of federal preemption . Martin v. Midwest Express Holdings, Inc., 555 F3d. 806 (2009). Ralph LaMontagne wrote the appellate briefs and argued the matter before the 9th Circuit panel in 2008. The district court litigation was handled by Michael Terhar. The matter will now return to the District Court for trial against the airframe manufacturer regarding the design of the airstairs of the regional jet unless the matter goes to the U. S. Supreme Court.

To summarize the underlying facts very basically, an airline’s insurer paid an $8 million settlement to an injured pregnant passenger and her subsequently born child who was born prematurely as a result of her mother’s fall with resultant physical and developmental disabilities, following the passenger's fall from the airstairs. After the settlement funds were tendered, the airline and its insurer sought indemnity from the aircraft manufacturer on the theory that the "single handrail" airstair was defectively designed. The manufacturer moved for summary judgment on two grounds: (1) federal preemption; and (2) applicability of an exculpatory provision in the aircraft purchase agreement. The District Court granted summary judgment and we appealed on behalf of the airline.

The Ninth Circuit Court of Appeals reversed the summary judgment, accepting both of our principal arguments -- i.e., that there was no federal preemption, and that the exculpatory provision was not intended to encompass personal injury indemnity claims such as the one at issue here. The Court's holding as to the latter issue was extremely abbreviated and was conveyed in a short, unpublished memorandum opinion. Insofar as the preemption issue is concerned, however, the court issued a very significant published opinion.

The published opinion, authored by Chief Judge Kozinski, provided much needed clarification regarding the intended scope of the Court's prior holding in Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007). In Montalvo, the Ninth Circuit, quoting language from the Third Circuit Court of Appeal's opinion in Abdullah v. American Airlines, 181 F.3d 363 (3d Cir. 1999), held that the Federal Aviation Act indicated "an intent to occupy exclusively the entire field of aviation safety."

In our case, Chief Judge Kozinski gave what essentially amounted to a rather narrow interpretation of the term "aviation safety." Specifically, he held that the Federal Aviation Act only preempts state law in those situations where the Federal Aviation Administration has promulgated "pervasive regulations" as respects the particular area in question. For example, in the context of a product liability claim based upon defective design, preemption would be found only where there existed "pervasive [federal] regulations on the allegedly defective part." A concurring opinion, filed by Judge Bea, argued that the majority's interpretation of the scope of federal preemption was too narrow in light of the somewhat expansive language contained in the earlier Montalvo decision. While Judge Bea's opinion makes some reasonable points, it is only the majority opinion of Chief Judge Kozinski that has controlling precedential value.

Being a decision of the Ninth Circuit, this new decision will be binding on all federal and state courts sitting in the states of California, Hawaii, Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona. It may also be considered persuasive (but not binding) authority in other states.

December 2008

Ralph LaMontagne obtained summary judgment on behalf of an aviation insurer in a 7 million dollar insurance bad faith lawsuit in federal court in Los Angeles. The litigation arose from an aborted take-off of a corporate jet in Santa Barbara in which the jet overran the end of the runway resulting in substantial damage to the jet. Subsequent investigation of the accident revealed that the co-pilot did not meet the pilot warranty provisions of the aviation policy and coverage was denied for the property damage. The aviation insurer was sued for breach of contract, reformation, declaratory relief and first party bad faith. Compensatory and punitive damages were requested. Summary judgment was obtained on all causes of action and the plaintiff insured is currently appealing.

March 2007