NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIOLETA ESCOBAR, AKA Violeta 

Escobar Cline, Individually, and as Personal 

Representative for The Estate of Nathan 

Cline, Deceased, 

Plaintiff-Appellant, 

 v. 

NEVADA HELICOPTER LEASING, LLC, 

Defendant-Appellee.

No. 17-15590 

D.C. No. 

1:13-cv-00598-HG-RLP 

MEMORANDUM*

Appeal from the United States District Court

for the District of Hawaii

Helen W. Gillmor, District Judge, Presiding

Argued and Submitted October 12, 2018

Honolulu, Hawaii

Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges.

Violeta Escobar (“Escobar”), the widow of deceased helicopter pilot Nathan 

Cline (“Cline”), appeals from the grant of summary judgment to Nevada 

Helicopter Leasing LLC (“Nevada Leasing”), the owner and lessor of a helicopter 

that was the subject of a crash resulting in Cline’s death. The district court 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

FEB 11 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

concluded that Escobar’s state claims were preempted by 49 U.S.C. § 44112, 

which at the time limited the liability of an aircraft’s lessors, owners, and secured 

parties unless the aircraft was “in the actual possession or control of the lessor, 

owner, or secured party.” 49 U.S.C. § 44112(b) (2018) (emphasis added),

amended by FAA Reauthorization Act of 2018, Pub. L. No. 115-254, § 514, 132 

Stat. 3358 (Oct. 5, 2018).

1

 The court found that Nevada Leasing did not have 

“actual possession or control” at the time of the crash. We have jurisdiction 

pursuant to 28 U.S.C. § 1291, and we reverse and remand for further proceedings.

We reverse the district court’s grant of summary judgment because a 

genuine dispute exists as to whether Nevada Leasing had “actual possession or 

control” of the aircraft. Fed. R. Civ. P. 56(c); Nidds v. Schindler Elevator Corp., 

113 F.3d 912, 916 (9th Cir. 1996) (“There must be sufficient evidence that a 

reasonable jury could return a verdict for the nonmoving party.” (internal quotation 

marks and citation omitted)). The text of 49 U.S.C. § 44112 provides protection 

from liability only when the aircraft’s lessor possesses neither actual possession

nor actual control. See Westwood Apex v. Contreras, 644 F.3d 799, 804 (9th Cir. 

2011) (“An excerpted clause in a statute cannot be interpreted without reference to 

 

1 The statutory amendment substituted the language “actual possession or 

operational control,” for “actual possession or control.” 49 U.S.C. § 44112(b) 

(emphasis added). Upon remand, the district court should consider whether this 

amendment alters or merely clarifies the exception to liability and whether it has 

any effect on this case.
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the statute as whole, nor can it be understood free from the sentence in which it 

was included.”). Legislative history supports this reading of the statute, as the 

statute’s “purpose was to assure that liability under such laws would not attach to 

the holder of a security interest solely by virtue of that interest.” S. Rep. No. 86-

221, at 2 (1959).

A genuine factual dispute exists as to whether or not David Chevalier—an

owner of both Nevada Leasing and the lessee company, Helicopter Consultants of 

Maui, Inc., doing business as Blue Hawaiian Helicopters (“Blue Hawaiian”)—and 

Blue Hawaiian employees were acting as agents of Nevada Leasing and actually 

exercised control over the aircraft when it crashed. Chevalier owned about 89% of 

both Nevada Leasing and Blue Hawaiian. In the 2010 version of the Master Lease 

Agreement, Chevalier was the sole signatory and signed on behalf of both Nevada 

Leasing and Blue Hawaiian. Chevalier stated in his deposition that the employees 

of Blue Hawaiian often performed aircraft-related tasks for Nevada Leasing, 

including administering aircraft leases and making decisions about fixed minimum 

rent for the aircraft, and that Chevalier had executive authority in his roles at both 

Blue Hawaiian and Nevada Leasing to cancel flights. Taking these facts together, 

a jury could find that Blue Hawaiian personnel, Chevalier, or both, as agents of 

Nevada Leasing, had actual control of the aircraft.

REVERSED; REMANDED.