Starr Indemnity and Liability Company et al v. Signature Flight Support Corporation et al, No. 2:2022cv02011 - Document 77 (D. Nev. 2024)
Court Description: ORDER Denying 70 Motion for Summary Judgment and Granting 71 Motion for Summary Judgment. The Clerk of the Court is directed to enter judgment accordingly and close this case. Signed by Judge Larry R. Hicks on 3/28/2024. (Copies have been distributed pursuant to the NEF - ABG)
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Starr Indemnity and Liability Company et al v. Signature Flight Support Corporation et al Doc. 77 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 11 STARR INDEMNITY AND LIABILITY COMPANY, dba STARR INSURANCE COMPANIES as Subrogee of GLF AIR, LLC., and 60-206, LLC, 14 15 16 17 ORDER Plaintiffs, 12 13 Case No. 2:22-cv-02011-LRH-CLB v. SIGNATURE FLIGHT SUPPORT CORPORATION, a Nevada corporation; SIGNATURE FLIGHT SUPPORT, LLC, a Nevada limited liability company; SIGNATURE FLIGHT SUPPORT OF NEVADA, INC., a Nevada corporation; DOES 1 – X, inclusive, and ROW CORPORATIONS 1 – X, inclusive, 18 Defendants. 19 20 Before the Court are cross motions for summary judgment. Plaintiff Starr Indemnity and 21 Liability Company (“Starr”) filed its motion for summary judgment (ECF No. 70), Defendant 22 Signature Flight Support, LLC (“Signature”) responded in opposition (ECF No. 74), and Starr 23 replied (ECF No. 76). Signature also filed a motion for summary judgment (ECF No. 71) to which 24 Starr responded in opposition (ECF No. 73) and Signature replied (ECF No. 75). For the reasons 25 articulated herein, the Court denies Starr’s motion and grants Signature’s motion. 26 I. BACKGROUND 27 This subrogation matter stems from property damage done to a privately owned non- 28 commercial aircraft while it was parked and stored at a third-party aircraft facility. At all relevant 1 Dockets.Justia.com 1 times to this litigation, Patrick Marino (“Marino”) owned a 2000 Bombardier 60 Learjet bearing 2 Federal Aviation Administration (“FAA”) Registration No. N448GL (the “Learjet”) through 60- 3 206, LLC, his limited liability company. ECF No. 70-1 at 4, 5; ECF No. 71-7 at 4. After purchasing 4 the Learjet, Marino informally used a friend-of-a-friend Kevin Young (“Young”) and his company 5 GLF Air, LLC—an aircraft management and consulting company specializing in Gulfstream 6 aircraft management—to insure and make the Learjet operational while Marino shopped around 7 for a management company. ECF No. 70-1 at 130, 190, 191. Once operational, Young informally 8 contacted an independent contractor pilot Leonardo Gomez to pilot the Learjet when needed by 9 Marino. Id. at 191, 192. On several occasions, however, Gomez arranged for other independent 10 contractor pilots to fly the Learjet. ECF No. 70-2 at 4. In May of 2019, Gomez arranged for 11 independent contractor pilot Thomas Troncone to fly Marino and others on the Learjet from 12 Florida to Las Vegas, the flight underlying this litigation. Id. at 7; ECF No. 70-1 at 74, 85. Upon 13 arrival in Las Vegas, Troncone parked the Learjet at a fixed base operation (“FBO”) operated by 14 Signature (“Signature’s Las Vegas FBO”) and signed a Landing Card. 1 ECF No. 71-2 at 2; ECF 15 No. 71-9 at 5–8. The Learjet was stored at Signature’s Las Vegas FBO overnight and damaged the 16 following day when Signature employees towed another aircraft which hit the Learjet. See ECF 17 No. 40-2. At the time the property damage occurred, GLF Air, LLC arranged for the Learjet to be 18 insured pursuant to its fleet insurance policy, a policy issued by Starr (Policy No. 1000229146- 19 03). ECF No. 70-1 at 238, 198, 199. Armed with this background, the facts to which the parties have jointly stipulated are more 20 21 properly framed: 22 This matter involves an incident that occurred on or about May 18, 2019, at the Harry Reid International Airport, located in Las Vegas when employees of [Signature], a [FBO], were towing a Citation 650 bearing [FAA] Registration No. N820FJ (“Citation”) when the wingtip of the Citation made contact with [the Learjet], causing damage to [the Learjet’s] baggage door (“Incident”). At the time of the Incident, [the Learjet] was owned by 60-206, LLC and was insured by [Starr]. Prior to the Incident, [the Learjet’s] pilot signed [Signature’s] Landing Card while 23 24 25 26 27 28 1 Signature describes an FBO as an airport terminal for non-commercial, general aviation airliners such as private, chartered, and government aircrafts. ECF No. 71 at 2. According to Signature, FBOs lease property from airports and provide general aviation services for non-commercial aircrafts. Id. After a non-commercial aircraft landing at an airport, the aircraft then taxis to an FBO, parks, unloads its passengers and cargo, and receives any requested aviation services. Id. at 2, 3. 2 9 at [Signature’s Las Vegas FBO], which provided, in part, that “under no circumstances shall Signature be liable to the customer for indirect, consequential, special or exemplary damages, whether in contract or tort (including strict liability and negligence), such as, but not limited to, loss of revenue, loss of use or anticipated profits, diminution or loss of value, or costs associated with substitution or replacement aircraft.” … As a result of the Incident, Starr alleges that its insureds incurred $61,277.21 to repair [the Learjet] (the “Repair Damages”) and $279,413.23 of other damages for loss of use and rental aircraft expenses (“Other Damages”), all of which were paid by Starr pursuant to the insurance policy for [the Learjet] … The parties have resolved [Starr’s] claims for the Repair Damages, and on September 12, 2022, the parties filed the Stipulation to Dismiss with Prejudice All Claims Regarding the Repair Damages… On September 13, 2022, the Court granted the stipulation… As to the alleged claim for Other Damages, the parties agree that the facts of the Incident are not in dispute, and that liability of [Signature] as to the Other Damages, is contingent only on the enforceability of the terms of the Landing Card. If there is no liability because of the Landing Card, then there will be no need to conduct discovery on damages. Once liability is determined, damages can be the focus of the case if liability is found. 10 ECF No. 40 at 2, 3. Thus, at primary dispute here is the enforceability of the fourth footnote clause 11 in the Landing Card that the Learjet’s contract pilot Troncone executed upon arrival to Signature’s 12 Las Vegas FBO. 1 2 3 4 5 6 7 8 13 In December 2019, Starr demanded that Signature pay for the post-accident costs its 14 insureds incurred (ECF No. 18 at 3) but Signature rejected the demand. Subsequently on January 15 31, 2022, Starr filed an original complaint in the Second Judicial District Court of the State of 16 Nevada in and for the County of Washoe. ECF No. 1 at 3. After correcting plaintiff-related party 17 information, Starr filed an amended complaint on March 28, 2022, in which it alleges that 18 Signature negligently cared for and maintained the Learjet. ECF No. 1-2. In April 2022, Signature 19 then removed the matter pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. ECF No. 1. Upon 20 removal, the matter was randomly assigned to the Honorable James C. Mahan of the District of 21 Nevada’s unofficial Southern Division until it was ordered “administratively closed and 22 transferred to the unofficial northern division in Reno for further action per LR IA 1-8(c)[.]” ECF 23 No. 5. After transfer, the matter was reassigned to the Honorable Larry R. Hicks and Magistrate 24 Judge Carla L. Baldwin of the District of Nevada’s unofficial Northern Division. ECF No. 17. 25 After reassignment, Starr filed a motion to remand (ECF No. 18) and Signature filed a motion for 26 intradistrict transfer back to the unofficial Southern Division (ECF No. 33). The Court denied 27 Starr’s motion to remand and granted Signature’s motion for intradistrict transfer but ordered that 28 the action remain before the two unofficial Northern Division courts. ECF No. 41. 3 1 On November 7, 2022, Magistrate Judge Carla L. Baldwin granted the parties’ joint 2 stipulation to bifurcate liability and damages. ECF No. 40. As a result of bifurcation, the only issue 3 remaining before the Court is the issue of liability, namely the enforceability of the Landing Card 4 that the Learjet’s pilot signed upon arrival at Signature’s Las Vegas FBO and, consequentially, 5 whether Signature can be held liable for the Other Damages. ECF No. 40 at 3, 4. On July 18, 2023, 6 both Starr and Signature filed competing motions for summary judgment on the issue of the 7 Landing Card’s enforceability and Signature’s possible liability for the Other Damages. ECF Nos. 8 70, 71. The motions are addressed below. 9 II. LEGAL STANDARD 10 Summary judgment is appropriate only when the pleadings, depositions, answers to 11 interrogatories, affidavits or declarations, stipulations, admissions, and other materials in the 12 record show that “there is no genuine dispute as to any material fact and the movant is entitled to 13 judgment as a matter of law.” Fed. R. Civ. P. 56(a). In assessing a motion for summary judgment, 14 the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in 15 the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith 16 Radio Corp., 475 U.S. 574, 587 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 17 1148, 1154 (9th Cir. 2001). 18 The moving party bears the initial burden of informing the court of the basis for its motion, 19 along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. 20 Catrett, 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the 21 moving party must make a showing that is “sufficient for the court to hold that no reasonable trier 22 of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 23 (6th Cir. 1986) (quoting W. Schwarzer, Summary Judgment Under the Federal Rules: Defining 24 Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)); see also Idema v. Dreamworks, 25 Inc., 162 F.Supp.2d 1129, 1141 (C.D. Cal. 2001). 26 To successfully rebut a motion for summary judgment, the nonmoving party must point to 27 facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson 28 Sch. Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000). A “material fact” is a fact “that might affect 4 1 the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 248 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment 3 is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material 4 fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for 5 the nonmoving party.” Liberty Lobby, 477 U.S. at 248. “The mere existence of a scintilla of 6 evidence in support of the [party’s] position [is] insufficient” to establish a genuine dispute; “there 7 must be evidence on which the jury could reasonably find for the [party].” Id. at 252. 8 “A moving party without the ultimate burden of persuasion at trial … has both the initial 9 burden of production and the ultimate burden of persuasion on a motion for summary judgment.” 10 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “In order to 11 carry its burden of production, the moving party must produce either evidence negating an essential 12 element of the nonmoving party’s claim or defense or show that the nonmoving party does not 13 have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 14 Id. 15 III. DISCUSSION 16 In evaluating cross motions for summary judgment, the Court “must consider each party’s 17 evidence, regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. 18 Nehme, 632 F.3d 526, 532 (9th Cir. 2011); see also Fair Hous. Council of Riverside Cnty., Inc. v. 19 Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001) (“the court must consider the appropriate 20 evidentiary material identified and submitted in support of both motions, and in opposition to both 21 motions, before ruling on each of them”). Furthermore, the Court must consider each motion “on 22 its own merits” to determine whether any genuine issue of material fact exists. Riverside Two, 249 23 F.3d at 1136. While the Court considers each motion separately and on its own merits, Starr and 24 Signature offer nearly identical arguments in support of their own motion and in response to the 25 opposing party’s motion. For this reason, the Court’s written analysis of the motions is combined. 26 /// 27 /// 28 /// 5 1 2 3 4 A. The Court denies Starr’s motion for summary judgment (ECF No. 70) and grants Signature’s motion for summary judgment (ECF No. 71) because there is only one inference that can be made from the undisputed facts: the pilot had apparent authority to execute the Landing Card, an enforceable contract, which included a valid limitation of liability clause, upon the Learjet’s arrival to Signature’s Las Vegas FBO. 5 In sum of its motion, Starr argues that summary judgment should be granted in its favor 6 based upon the following: (1) there is no contract because Marino and 60-206, LLC are not parties 7 to the Landing Card; (2) the footnote at issue is an exculpatory clause that is disfavored and 8 unenforceable; (3) the pilot did not have apparent authority to bind the Learjet owner; and (4) 9 Signature’s apparent authority reliance was not reasonable. See generally ECF No. 70. In 10 opposition to Starr’s motion and in support of its own motion, Signature argues that the pilot 11 Troncone was an agent of the Learjet’s owner, 60-206, LLC, or its management company, GLF 12 Air, LLC, and possessed actual and apparent authority to bind them to the Landing Card’s terms. 13 ECF No. 71 at 10–16; ECF No. 74 at 13, 14. As to Starr’s contract arguments, Signature argues 14 that (1) 60-206, LLC is a party to the Landing Card because the Learjet’s FAA tail number appears 15 on the Landing Card multiple times; (2) the Landing Card itself is not an adhesion contract; and 16 (3) the footnote at issue in the Landing Card is not an unenforceable exculpatory clause but rather 17 an enforceable limitation of liability clause. ECF No. 71 at 16, 17; ECF No. 74 at 9–13. 18 First, the Court is unpersuaded by Starr’s argument that the Landing Card is not a contract 19 to which 60-206, LLC or Marino are parties because neither appears by name on it. ECF No. 70 20 at 18. It is undisputed that N448GL, the Learjet’s FAA Registration Number, appears at least three 21 times on the Landing Card, two of which appear in the largest, most bolded, and noticeable font. 22 See ECF No. 70-1 at 2. It is further undisputed that the Learjet bearing FAA Registration No. 23 N448GL was registered to and owned by 60-206, LLC when the Landing Card was executed and 24 when the Incident occurred. See ECF No. 70-1 at 4, 5. Thus, because its property is listed on the 25 Landing Card, 60-206, LLC is a party to its terms. The fact that GLF Air, LLC, an entity that 26 Marino and 60-206, LLC informally used to manage the Learjet, is also identified on the Landing 27 Card strengthens the conclusion that Marino and 60-206, LLC are parties to the Landing Card. 28 Lastly, Marino confirmed that he was a passenger on this specific flight (ECF No. 70-1 at 130) 6 1 and the independent contract pilots deposed here testified that when a pilot executes a FBO landing 2 card for a flight carrying the aircraft owner, the pilot executes the landing card on behalf of the 3 aircraft and the owner (ECF No. 71-8 at 16, 17; ECF No. 71-10 at 19, 20). Thus, any argument 4 that the Landing Card at issue here was unrelated to Marino or 60-206, LLC or somehow unbinding 5 on them because they are not listed by name is misplaced and unsupported by the undisputed facts. 6 The Court is similarly unpersuaded by Starr’s argument that the footnote at issue in the 7 Landing Card is an unenforceable exculpatory clause that should be void as against Nevada public 8 policy. ECF No. 70 at 18–23. The footnote at issue in the Landing Card states: 9 11 The parties agree that under no circumstances shall Signature be liable to the customer for indirect, incidental, consequential, special or exemplary damages, whether in contract or tort (including strict liability and negligence), such as, but not limited to, loss of revenue, loss of use or anticipated profits, diminution or loss of value, or costs associated with substitution or replacement aircraft. 12 ECF No. 71-2 at 2. While Starr is correct that contractual exculpatory clauses are disfavored in the 13 law and strictly construed by Nevada courts, Moffitt v. 24 Hour Fitness USA, Inc., Case No. 14 2:12- CV- 00469-PMP, 2013 WL 1080441, at *2 (D. Nev. Mar. 14, 2013) (citing Agric. Aviation 15 Eng'g Co. v. Bd. of Clark Cnty. Comm'rs, 106 Nev. 396, 399–400 (1990)), contractual limitation 16 of remedies clauses are allowable under Nevada Revised Statute § 104.2719 and that is the type of 17 clause at issue here. The language of the footnote does not operate to exculpate or excuse Signature 18 from any and all liability, but rather limits the type of damages recoverable. In Nevada, 19 consequential damages “may be limited or excluded unless the limitation or exclusion is 20 unconscionable.” Nev. Rev. Stat. § 104.2719(3). Generally, a limitation of consequential damages 21 clause is prima facie unconscionable “when [it] preclude[s] consumers from recovering 22 consequential and incidental damages due to personal, rather than purely economic, injuries.” 23 Skiles v. Reno Dodge Sales, Inc., Case No. 2-08-CV-01365-RLH-PAL, 2009 WL 10710370, at *3 24 (D. Nev. Jan. 28, 2009) (citing Nev. Rev. Stat. § 104.2719(3)). When a limitations clause is related 25 to commercial loss not personal injury or damage, the case here, the burden to prove 26 unconscionability is on the party seeking to invalidate the contract as unconscionable. Bill 27 Stremmel Motors, Inc. v. IDS Leasing Corp., 89 Nev. 414, 418 n.3 (1973). 28 /// 10 7 1 “A contract is unconscionable only when the clauses of that contract and the circumstances 2 existing at the time of the execution of the contract are so one-sided as to oppress or unfairly 3 surprise an innocent party.” Id. at 418 (citations omitted). In Nevada, both procedural and 4 substantive unconscionability are required to invalidate a contract or contractual provision as 5 unconscionable. U.S. Home Corp. v. Michael Ballesteros Tr., 134 Nev. 180, 190 (2018) (citing 6 Burch v. Second Jud. Dist. Ct. of State ex rel. Cnty. of Washoe, 118 Nev. 438, 443 (2002) 7 (“Generally, both procedural and substantive unconscionability must be present in order for a court 8 to exercise its discretion to refuse to enforce a contract or clause as unconscionable”)). 9 Substantive unconscionability is present when a contract “contains oppressive terms or is 10 one-sided.” Mohazzabi v. Wells Fargo, N.A., Case No. 2-18-CV-02137-RFB-VCF, 2019 WL 11 4675768, at *4 (D. Nev. Sept. 25, 2019) (citing Gonski v. Second Judicial Dist. Court of State ex 12 rel Washoe, 245 P.3d 1164, 1169 (Nev. 2010), overruled on other grounds by U.S. Home Corp., 13 134 Nev. 180). Procedural unconscionability deals with whether a party “lacks a meaningful 14 opportunity to agree to the [contract or] clause terms either because of unequal bargaining power, 15 as in an adhesion contract, or because the clause [or contract] and its effects are not readily 16 ascertainable upon a review of the contract.” D.R. Horton, Inc. v. Green, 120 Nev. 549, 554 (2004), 17 overruled on other grounds by U.S. Home Corp., 134 Nev. 180. Procedural unconscionability is 18 supported by the “use of fine print or complicated, incomplete or misleading language that fails to 19 inform a reasonable person of the contractual language’s consequences.” Id. 20 Here, Starr has failed to offer evidence that the limitation of incidental and consequential 21 damages footnote at issue in the Landing Card is procedurally unconscionable. Although the 22 footnote font is slightly smaller than the rest of the Landing Card’s font, it is undisputed that 23 Signature presented the Landing Card to Troncone who testified he did not read it. Signature’s 24 policy is to offer the customer time to read and execute a landing card upon arrival. The customer 25 receiving the landing card can then choose to sign or not sign and, regardless of execution, 26 Signature still provides the services requested by the customer. Here, Troncone was given the 27 opportunity to review the Landing Card and ascertain the effects of the footnote at issue. 28 Additionally, Troncone did not have to execute the Landing Card and Signature would have 8 1 provided Learjet with any services he requested on behalf of the Learjet, 60-206, LLC, and Marino. 2 Such undisputed facts place Troncone in a position of equal, not unequal, bargaining power. The 3 mere fact that Troncone testified he did not read the Landing Card and that Marino testified he has 4 never seen a landing card do not provide a proper basis on which procedural unconscionability can 5 be supported. Finally, the language of the footnote at issue is clear, not misleading, or complicated 6 and unambiguously limits any recoverable incidental and consequential damages. “Generally, 7 when a contract is clear on its face, it ‘will be construed from the written language and enforced 8 as written.’” Canfora v. Coast Hotels & Casinos, Inc., 121 Nev. 771, 776 (2005) (citing and 9 quoting Ellison v. C.S.A.A., 106 Nev. 601, 603 (1990)). With such clear limiting language, a simple 10 reading of the footnote would inform a reasonable person of the contractual language’s legal 11 consequences. Moreover, the fact that the Landing Card was not offered on a “take it or leave it” 12 basis defeats any argument that the Landing Card is an adhesion contract. Accordingly, the Court 13 finds that Starr has failed to offer evidence that the Landing Card’s footnote is procedurally 14 unconscionable. Because at least some procedural unconscionability is required to render a 15 contract unenforceable due to unconscionability, see U.S. Home Corp, 134 Nev. at 190, the Court 16 finds the footnote at issue is an enforceable limitation of liability clause to which Marino and 60- 17 206, LLC are parties. See Hunt v. Zuffa, LLC, Case No. 2-17-CV-00085-JAD-VCF, 2019 WL 18 6255478, at *2 (D. Nev. Nov. 22, 2019) (finding that a contractual provision barring consequential 19 damages was valid partly because the party claiming unenforceability failed to demonstrate how 20 the clause was unconscionable) aff'd in part, rev’d in part on other grounds and remanded, Case 21 No. 19-17529, 2021 WL 4355728 (9th Cir. 2021). 22 With a valid limitation of liability clause and contract established, the Court turns to the 23 question of agency to determine whether the Troncone had authority to bind Marino, 60-206, LLC, 24 or GLF Air, LLC to the terms of the Landing Card. Typically, an “agency relationship” exists 25 when one “hires another” and “retains a contractual right to control the other’s manner of 26 performance.” Grand Hotel Gift Shop v. Granite St. Ins. Co., 108 Nev. 811, 815 (1992). In such a 27 case, the principal “is bound by acts of its agent” while the agent acts “in the course of his 28 employment” and the principal “is liable for those acts within the scope of the agent’s authority.” 9 1 Nevada Nat. Bank v. Gold Star Meat Co., Inc., 89 Nev. 427, 429 (1973) (citations omitted). 2 However, and agent-principal relationship does not always require direct employment as courts 3 have found independent contractors may be agents. See, e.g., Upper Deck Co. v. Matt Const., LLC, 4 128 Nev. 941, 2012 WL 6681924, *1, 2 (2012) (affirming district court’s finding that an 5 independent design consultant was an agent of a condominium owner). “To bind a principal, an 6 agent must have actual authority, express or implied, or apparent authority.” Dixon v. Thatcher, 7 103 Nev. 414, 417 (1987); see also Salyers v. Metro. Life Ins. Co., 871 F.3d 934, 940 (9th Cir. 8 2017) (citing Restatement (Third) of Agency § 2 intro. note (2006)). 9 Apart from the contractual disputes already addressed, the parties primarily dispute 10 whether the pilot Troncone was an agent of Marino, 60-206, LLC, or GLF Air, LLC as to bind 11 them to the limitation of liability footnote in the Landing Card. Signature argues that the pilot was 12 an actual and apparent agent and, as such, possessed authority to bind (ECF No. 71 at 2; ECF 13 No. 75 at 3) while Starr argues that the pilot did not have actual or apparent authority to bind (ECF 14 No. 73 at 7–10). “[A]lthough the existence of an agency relationship is a question of fact, whether 15 there is sufficient evidence of such a relationship so as to preclude summary judgment is a question 16 of law.” PetSmart, Inc. v. Eighth Jud. Dist. Ct. in & for Cnty. of Clark, 137 Nev. 726, 730 (2021) 17 (citation omitted). Put alternatively, “existence of an agency relationship is generally a question of 18 fact for the jury if the facts showing the existence of agency are disputed, or if conflicting 19 inferences can be drawn from the facts” but a “question of law exists as to whether sufficient 20 competent evidence is present to require that the agency question be forwarded to a jury.” 21 Schlotfeldt v. Charter Hosp. of Las Vegas, 112 Nev. 42, 47 (1996). 22 After careful review of the record, the Court finds that there is insufficient competent 23 evidence present to require that the question of agency in this matter be forwarded to a jury. Here, 24 there is no genuine issue as to whether the pilot Troncone had apparent authority to bind the Learjet 25 owner to the terms of the Landing Card and, moreover, the facts showing the existence of agency 26 are not in dispute. “‘Apparent authority’ arises when a principal holds his agent out as possessing 27 certain authority or permits him to exercise or to represent himself as possessing such authority 28 under circumstances that would estop the principal from denying its existence.” Gold Star Meat, 10 1 89 Nev. at 429 (citation omitted). The party claiming apparent agency as a basis for contract 2 formation “must prove (1) that he subjectively believed that the agent had authority to act for the 3 principal and (2) that his subjective belief in the agent’s authority was objectively reasonable.” 4 Great Am. Ins. Co. v. Gen. Builders, Inc., 113 Nev. 346, 352 (1997) (citation omitted). Reliance is 5 not reasonable where the party claiming apparent agency closes his or her eyes to warnings or 6 inconsistent circumstances. PetSmart, 137 Nev. at 733 (citation omitted). “Absent a showing of 7 third party reliance on some conduct of the alleged principal, there can be no apparent agency.” 8 Hunter Min. Lab'ys, Inc. v. Mgmt. Assistance, Inc., 104 Nev. 568, 571 (1988) (citation omitted). 9 Here, Signature has shown, and Starr has failed to genuinely dispute, that it subjectively 10 believed Troncone had authority to act for Marino, 60-206, LLC, and GLF Air, LLC, and that its 11 subjective belief in Troncone’s authority was objectively reasonable. The following facts are 12 undisputed in the record: (1) on the day of the Incident, the Learjet was owned by Marino through 13 his limited liability company 60-206, LLC; (2) through an informal and friendly deal, GLF Air, 14 LLC insured the Learjet with a Starr insurance policy and arranged independent contract pilots for 15 the Learjet through aviation acquaintance Gomez; (4) for this particular Las Vegas-bound flight, 16 Gomez arranged for Troncone, an independent contractor pilot, to fly the Learjet; (5) Marino was 17 a passenger on this particular flight; (6) upon arrival to Signature’s Las Vegas FBO, Signature 18 presented Troncone with the Landing Card which he executed; and (7) the Landing Card executed 19 by Troncone included a footnote limiting consequential and incidental damages. In addition to 20 these undisputed facts, Signature introduced evidence—and numerous deponents confirmed—that 21 it is common industry standard procedure for (1) an FBO to present a landing card to the pilot of 22 an arriving non-commercial flight; (2) a pilots to interact FBO employees regarding the landing 23 card and arranging services for the aircraft; and (3) a pilot, or other non-aircraft owner, to execute 24 a landing card. ECF No. 71-8 at 28; ECF No. 71-10 at 13, 14, 17; ECF No. 70 at 5. Moreover, 25 there is no evidence in the record that Signature was notified that the flight at issue here deviated 26 from these established and agreed-upon standards or, more specifically, that Troncone lacked 27 authority to execute the Landing Card on behalf of Marino, 60-206, LLC, or GLF Air, LLC. In 28 11 1 fact, Troncone himself testified that there were no documents reflecting the fact that he did not 2 have authority to act as an agent of the owner. ECF No. 71-10 at 26, 27. 3 Instead of genuinely disputing these facts, Starr concedes them. For example, Marino 4 testified that he left immediately when the Learjet arrived in Las Vegas and that he has never seen 5 a landing card. ECF No. 70-1 at 142. Albeit reluctantly, Marino additionally testified that he relied 6 on someone else to interact with Signature upon arrival and that he could not think of anyone else 7 other than the aircraft owner for which a pilot might execute a landing card. Id. at 142–45. Also, 8 as previously noted, the contract pilots deposed in this case agreed that an FBO landing card is 9 normally executed by the pilot and, further, executed on behalf of the aircraft owner when the 10 owner is a passenger on the flight. ECF No. 71-8 at 16, 17; ECF No. 71-10 19, 20. This is the 11 precise situation here: Troncone executed Signature’s Landing Card upon arrival of a flight 12 carrying Marino, the Learjet owner. With these undisputed facts, and others previously mentioned, 13 Signature has shown that (1) it subjectively believed that the Troncone had authority to act for the 14 Learjet owner, and (2) its subjective belief in the pilot’s authority was not only objectively 15 reasonable, but an industry standard. 16 Alternatively, Starr claims that Signature’s reliance supporting apparent authority was not 17 reasonable because there was no act of the principal on which it could rest its theory of apparent 18 authority. Here, it is largely undisputed that the only representative from the Learjet Signature 19 communicated with was the pilot Troncone and that Marino did not communicate with anyone 20 from Signature. However, Starr’s argument overlooks an obvious fact: Marino placed Troncone 21 in a position of authority by allowing him to pilot the Learjet from Florida to Las Vegas. Although 22 intermediaries like GLF Air, LLC, Young, and Gomez made the technical arrangements that 23 physically placed Troncone at the helm of the Learjet, each of those entities and persons acted on 24 behalf of Marino and 60-206, LLC. As Marino testified, he used GLF Air, LLC to make the Learjet 25 operational and to organize flights. Thus, Marino’s act of using GLF Air, LLC, which resulted in 26 Young arranging for Gomez to find Troncone to pilot the flight, are all acts clearly traced back to 27 the principal on which Signature reasonably relied. While there is evidence in the record that 28 Troncone and Marino had never met, Marino ultimately placed Troncone in a place of authority 12 1 as pilot of the Learjet. As such, Troncone was subject to Marino’s control while performing acts 2 related to the job he was hired to do as well as acts that would be required for him to complete to 3 carry out his objective. 4 Starr additionally argues that Troncone did not have authority to agree to the limitation of 5 liability footnote because Troncone himself and Marino both believed he did not. While this 6 testimony exists in the record, it is the relying party’s subjective belief, not the principal or agents, 7 that is the inquiry of apparent authority. See PetSmart, 137 Nev. at 733. Moreover, Starr’s 8 argument that the pilot lacked authority because the Learjet owner Marino never communicated to 9 Signature that Troncone had authority is unpersuasive and unsupported by law as “a principal can 10 hold its agent out as possessing authority through silence.” W. Nevada Precious Metals, Corp. v. 11 Sunago, Case No. 2:05-CV-00886-RLH-GWF, 2007 WL 710187, at *3 (D. Nev. Mar. 5, 2007) 12 (reasoning that the lack of direct communication from a principal to a relying party strengthened 13 the inference of agency because the alleged agent’s interaction with the relying party obviated the 14 need for direct communication between the principal and relying party) (citing Goldstein v. Hanna, 15 635 P.2d 290, 292 (Nev.1981)). 16 Because there is insufficient evidence present to require that the question of agency be 17 forwarded to a jury and, more pointedly, because the facts supporting the existence of apparent 18 agency are not disputed, the Court finds that summary judgment is appropriate. See Schlotfeldt, 19 112 Nev. at 47. Here, Marino ultimately placed Troncone in a position of authority as a pilot for 20 the Learjet on its flight from Florida to Las Vegas, a flight on which Marino was a passenger. As 21 such, Marino cloaked Troncone with apparent authority to act on his behalf and handle every 22 aspect of the flight including its post-arrival parking and storage transaction with Signature. There 23 is no genuine dispute then that Troncone had apparent authority to bind Marino and 60-206, LLC 24 to Signature’s Landing Card including the valid limitation of liability clause footnote because a 25 principal “is estopped from later denying the actions of the agent” once he “cloaks the agent with 26 the apparent authority to act[.]” See Forrest Tr. v. Fid. Title Agency of Nevada, Inc., 281 P.3d 27 1173, 2009 WL 3190357, at *1, 2 (Nev. 2009) (concluding an individual had apparent authority 28 to act on behalf of a trust where the trustor placed him a position to handle and arrange trust 13 1 transactions, including the litigation-underlying transaction for which the individual selected and 2 interacted with the title company and handled the transaction through the close of escrow) (citing 3 Ellis v. Nelson, 68 Nev. 410, 418 (1951)). With apparent authority clearly established, the Court 4 need not analyze whether the pilot had actual authority to bind Marino or 60-206, LLC because 5 the “legal consequences of an agent’s actions may be attributed to a principal when the agent has 6 actual authority (express or implied) or apparent authority.” See Salyers, 871 F.3d at 940 (citation 7 omitted) (emphasis added). For these reasons, the Court finds that the terms of the Landing Card 8 are an enforceable contract, including the limitation of liability footnote at issue. On the issue of 9 liability for the Other Damages then, Signature is not liable under the terms of the Landing Card. 10 For these reasons and on these issues, the Court grants Signature’s motion for summary judgement 11 and denies Starr’s motion for summary judgment as to the same. 12 IV. 13 14 CONCLUSION IT IS THEREFORE ORDERED that Starr’s motion for summary judgment (ECF No. 70) is DENIED. 15 IT IS FURTHER ORDERED that Signature’s motion for summary judgment (ECF No. 16 71) is GRANTED. Under the valid limitation of liability footnote in the Landing Card, an 17 enforceable contract as against Marino, 60-206, LLC, and GLF Air, LLC, Signature is not liable 18 for the Other Damages. As indicated by the parties then, there is no need to conduct discovery on 19 damages (ECF No. 40 at 3). 20 The Clerk of the Court is directed to enter judgment accordingly and close this case. 21 IT IS SO ORDERED. 22 DATED this 28th day of March, 2024. 23 24 LARRY R. HICKS UNITED STATES DISTRICT JUDGE 25 26 27 28 14
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