my name is tony job i represent the plaintiff escobar kline and here to decide the most important issue that has to be decided i believe is simply whether or not problem with it was that all the competent evidence that we have whether it's the lease or the operating agreement or the amended lease all gave the owner of nevada leasing the right to do whatever he needed to do with his helicopter at any owner impaired grip be that he has the right to manage and operate any company property and he had the exclusive part of form all of necessary functions leasing right well this is very unusual because we simply have a mom and pop shop not a big bank or a financial institution which is why that's one big legal reason why divide a leasing does  qualify immunity under a for liability but or forty nine u s c section four for one went to the to the case law is clear that you have to be a financial to have the financial asset under your control the only that he passed on that day that he got the helicopter you have to remember he bought the helicopter controller possession right correct and which you read the briefs the defendants have filed they did they put words ahead of that phrase and after that phrase and those words don't exist in the statute that it has to be actual control of possession of the helicopter at the time of the crash right no that's the that's where a lot of the helicopter you know the actual control of possession of one of the ownership rights to make the decisions to take the helicopter back off the lease you know and say no longer can operate it because the eat the statue used to say under fourteen zero four back in the fifty's that you did have to have actual control  at the time of the accident congress amended the statute in the ninety's we now have forty four one one two and forty four one two does it say that they took it specifically out because they wanted to be broad enough for the leasing company to operate its assets the way they wanted to and and so the test defendant has taken the position in their briefs as really pretty simple that they that we should  were actually to exercise actual control or possession at the time of the crash the statute is doesn't say that at all they put the words back in from the fifty's don't apply anymore so that i think it's very singular simple issue of a misinterpretation of the actual words of the statute and the statute in the case law now s that financial less or is like big banks at least the companies which is forty four one one two were designed for are the only ones that are qualified for immunity under the federal statute they were trying to encourage the growth of airlines after war two and subsequently but they clearly the case law that controls that we either makes the mistake of thinking it's like you said your honor that they have to do exercise something or they have to be at the time of the crash in this case we should value his company were at the same airport what does actual possession of control mean it just means that it's a down not a verb there's no real out of their possession or control or used as nouns only way you could try to turn him into a verb is to say that the day to do something at a certain time to prevent it actually is a legal term in that way that could congress use it do you have the documents we we do have the documents these agreements the lease the operating cited in our brief that he admits to the fact that he knew the seller copter had failures in the tail off but most brand new in europe and before this crash occurred the federal aviation administration fixes had to be made to it but the fixes didn't seem to be preventing the fact that tail falls off the tail was found nine hundred feet from the main wreckage but more importantly we later found out in the discovery with their bus testified to in the airbus case and basically it applies here he and he admitted he knew about these eighty's he knew about the problems in europe and he still kept point but he's the one that can can take it out of service but of course he could have acted either way because you know both companies but he kept all the formalities like a corporation fine you're not reliant on an eagle theory so what does it matter that he owned companies it doesn't it is that he never made the decision  to remove the helicopter from the flight line and do something about it he did give it back to the manufacturer make them fix it you know just like of automobiles you know some of these ababil recalls are very dangerous and have to be better so he just never made that choice with the leasing companies are responsible if they don't qualify for liability under state law which we have right here and why if the federal law doesn't apply well the way they rewrote federal law and took out all this business about exercise at some time or or the time of the crash all that's go on all this left is actual which i think is an  day right now in this case specifically that's going to that we want to get back good to take to trial the valise he controlled was the ultimate controller of their ownership interest in the helicopter to go back to the jury yet which we got deprived of so i mean really it was such a summary dismissal so it's all these facts are material facts that are in dispute and the jury never got a chance of to side and i'm sure the jury here in hawaii with a lot of helicopter accidents over the last decades written up by the n t s b in their body else would be interested in doing the safe thing and this is a thing didn't happen so whether the statute was read correctly is very important at least it's a summary judgment level so it doesn't mean that you have to go fly it you just have to say you can't fly to anymore so as mr should value in his deposition aircraft should not be allowed it had the power to do it before during and after all the time it had the power to say no that came in your possession or control both they they own it and they control the right under the leasing documents which is again contract like i've been here about this morning in these other cases the provisions are very clear for example they are pretty remote at four point seven of the agreement between physical idea of possession what lets us know that what helps you figure that out is go on with the with the with with the statute or control right i get the order i mean all but i don't i don't get your argument regarding possession being a legal possession as opposed to physical possession because to me physical possession is more related to control but we're terms of being able to opposed to physical possession no i don't think you're going to you're going to see the use the exact way would you just use what the result is what you as what i'm saying that if they had the legal right to take the plane back for the answer is there is no case that tells us whether possession means legal possession or physical this would be essentially a landmark case but it would provide to the specific facts only you know i mean we have the right to bring an action that's what these cases stand for on federal conflict preemption on this statute and then for leasing companies that write that is so then the are saying that the proof of the possession and control is paris of managers four point seven the operating company but it doesn't say anything about who gets control or possess in already least helicopter that after the bottle leasing went one step further and gave it security interest because the f a a requires you to follow a document if you own it it you own this helicopter it's an actual operating certificates granted to you and they granted the security interest which the money came from the first bank of a why the bottle leasing didn't have any money in this other than you know what blue one was doing was steady like a and perhaps bring this back around to what is really at issue in the case judge roll and sent to answer your question there is no case that says that well actually both you and judge person asked a similar question but there is no case that says legal possession for whatever that means or legal control for whatever that means is what's at issue in the statute in fact if there was that would be remarkable because it would be completely contrary to the entire body of law a limited as that is completely contrary to the entire body of law which underpins this that you there was a question from the bench that said how are we supposed to know what can i look to to find out whether we're supposed to be looking at legal versus actual possession and also i think the answer is relatively straightforward we look to the plain language of the statute and the legislative history when you look at the legislative history of section four four one one two it tells you that it's designed to provide absolute immunity for lessers of aircraft for the purposes of allowing more people us in i'm going to summarize here more people to get into the aviation business aircraft are very expensive liability is very high nobody wanted to purchase these things because their liability would execute their investment so congress stepped in and said we will provide a munity to those who are willing to do it and lisa that tells you something about what they meant about actual physical possession and judge gilmore in her opinion here granting summary judgment she did a very very good job of going through what she called in what many other courts of called plainly an ambiguous language which is a lesser of an aircraft to another party is not liable for injuries or death in unless they have physical actual control there is certainly no statement in the statute that says at the time however if you let's presume that it isn't at the time let's presume that it's at any time so the opposite of being at the time of the accident then what you have is a statute that's meaningless no sides disagree what that me is they disagree what control means there's no question for example explain there is no dispute in this case that the two entities are separate legal entities one is a separate legal entity in nevada one is a dispute would be the wrong way to put it there's no question i agree with mr jope that mr shaul you testified in deposition that he believed he had the ability to cancel a flight under i think i don't have the exact language right believe you can flight isn't that control a certain level of control i would agree yes but what he actually said was that as the chief executive officer of blue hawaiian or as the owner of manager in hawaii neither of those rules today have the authority and he said yes well in one of those unfair roles he clearly did have the authority right yes he did say both of those roles he said in either of their own i agree and i didn't say that but it's actually ambiguous whether he meant either of them meant both or either of the men each one i think that's i think that's absolutely right that's what that leads to the notion that if that's just positive there should be a trial i don't think so you are there's other stuff so this is just this  one little issue because what that requires and why isn't that the key question he question is could he have had did he have the authority to cancel the flight and i don't know why not i don't believe that is the key question i think we have to keep in mind  the statute talks about less source the stature talks about someone or a company that leases these helicopters long term a bit you can be a listener and still retain actual possession or and or control  over the plane at any given moment in time so just saying that's a less so or isn't the end of the inquiry i don't think it is what i think is that a being a less or at all any situation or at least any that i can think of as i stand here necessarily presume some level of control otherwise it would be up by the fact that the individuals  various controlling type roles and both of the companies it is your honor but i think that it gets uncomplicated if we look back at what we're actually trying to apply here the basic elements of section four four one one two don't ask about those details that doesn't require them in order for that to work on it is a national question i mean right you'd be saying it's a legal question but you start out by saying it's not i think if we disputed for example whether mr chabot here had some type of ability to have an impact or have an interest or or cancel a flight or something if we disputed that would that would be a true factual issue that a jury would have to decide  saying all what i'm saying is that in any at least situation there's going to be an owner somewhere that has some level of control and the plaintiff's argument here is based on the idea that any bit of control any small bit of control anywhere in this regard and it has sort of flight because the that we're talking about one one statement during deposition testimony that frankly i think is being taken out of context let's keep in mind the event of leasing is not a helicopter operation blue hawaiian helicopter but you think he's wrong i don't know if he didn't answering a a loaded question at a deposition that's you know and that creates the m b and every day every day so that's is there anything in the documents that would support the conclusion that he had the authority to cancel a flight or anything  answered my position is that in that circumstance they have some ownership retention that's specified in the lease but they have taken as mr jobs said this they actually followed all the little rules they complied with all the details they've taken every step to identify the parameters here the same lease by the way the same lease agreement that upon which plaintiffs rely for this particular claim well also specifically on their own law in the operating agreement i don't know they're not willing to leave green on i'm sorry i'm referring to their they rely on the release agreement in their briefs in the lease agreement their briefs for their co management portions and the well is that aspect of their art but that same agreement all courts to look at this and identify this exact problem when you win when congress makes a relatively clear statement and says let's source you don't have control over helicopters that they lease out should be liable for their injuries and then someone comes along and says well what's control as they are required to do both as a part one thirty five operator and as the lessee that they had received notifications that operators will occasionally receive airworthiness directives from the f a a and things of that nature but  regulations the document that i'm that i was just referencing reading from she values testimony oh or he was talking about having listed himself as the person who was responsible for operational control and a document b to get from the f a a to be the operator at one thirty five carry passengers for are like blueboy did to fly but that doesn't have anything to do really with what we're here about because it's really what's in the lease the controlling conditions of the lease at provisional eleven assert the vital leasing its authority to control modifications failaka thirty to control the number of hours flown the reserve the authority to monitor the operation of the here it's just another variation of things were happening for example the vital leasing gave it security for security interest that it had as the owner the actual physical owner from it f a a they they owned it lisa to come in and do all the things i was just reading about the amended lease gives them other provisions that's all in the brief and then and and see these they have to be read together there's nothing exclusive ok tell me lumina